Long-Term Disability Benefits
Q: I am about to apply for long-term disability benefits at my job. Do I need a lawyer?
A: We recommend that you consult with a lawyer. Claims for benefits you receive through your employment, such as long-term disability insurance benefits, are governed by a federal law commonly called ERISA. Claims under ERISA are usually won or lost with the insurance, or other forms, you completed when you applied for benefits. By the time you get to court, it will usually be too late to add new proof supporting your claim. You may decide to retain a lawyer only to advise you privately, but you should speak to a lawyer so that you do a thorough job of providing the facts about your disability during the claim procedures, when it counts most.
Q: I don't have the insurance policy for my disability benefits at my job. Do I need it before I apply for long-term disability benefits?
A: If you have long-term disability benefits at your job, the insurance company will have issued a group policy, not to you, but to your employer, a trust or some other entity. But you are entitled by law to get a detailed summary of the terms of that policy. You should first look at any employee handbook or manual you may have received; that publication may provide information about your benefits and how to apply for them. You should also ask your employer for two other documents: The "summary plan description" and the "insurance certificate."
Q: I am applying for long-term disability benefits and the insurance company sent me a form with questions for my doctor to complete. Is there anything I should tell the doctor?
A: Yes. The doctor's answers — and yours — are crucial to the success of your claim. Many doctors understandably do not appreciate how important their answers will be. Doctors almost always give a brief conclusion — that you are disabled — without discussing in detail why they have reached that conclusion. Your application must compare the relevant duties of an occupation with the limitations caused by your injury or illness. You should read the terms of your disability plan carefully to learn whether you must show that you are disabled from your own occupation or from any occupation. You must help the doctor by providing a detailed statement of the work duties you cannot perform. Then, the doctor must explain in detail what your condition is and how and why you are not able to perform some or all of the duties you have described. The doctor should prepare a separate report, rather than just fill in a short space in a form. In summary, the doctor must contrast the specific duties of the occupation in question with your medical condition to persuade the insurer why you meet the insurance policy's definition of disability.
Life Insurance
Q: My husband died recently. He had life insurance, but the insurance company is refusing to pay me; instead, they returned the premiums, saying that my husband lied on his application when he said he didn't smoke. Can they do that?
A: It depends. In New York, an insurance company is entitled to rely on the accuracy of the answers given in an application. If your husband died within two years after the insurer issued the policy [and sometimes even if he was insured for more than two years], the insurer can "rescind" the policy (meaning cancel it as if it never existed), but only if your husband gave the wrong answer to the question and the insurer can prove it would not have issued the policy at the same premium if it had received the correct information. We recommend that you ask the insurance company for copies of the following: The application your husband filled out, the insurance policy or, if it is a group policy, the insurance certificate and the insurer's written explanation why it has decided not to pay the benefits. Once you have those papers, we recommend that you consult a lawyer who can help you decide whether the insurance company can prove both that your husband answered a question incorrectly and that the company would not have issued the policy had it received the correct answer.
Default Judgment
Q: I just learned that someone has a default judgment against me. Is there anything I can do?
A: There may be. To vacate (remove) a default judgment against you, you will need to make a motion and persuade a judge to issue an order in your favor. Generally, you must prove two things: (1) You have a reasonable excuse why you defaulted, for example, you did not receive the papers on time or did not receive them at all, and (2) you have a defense to the claims against you. You should go to the court where the judge decided the case against you. The court file is open to the public, and you can make copies of its contents. You should go to the clerk's office and ask to see the court file. Once you get it, try to find and to copy the following papers: the judgment (usually only a page or two), the order and, if it exists, the decision on which the order granting the default judgment is based (anywhere from one to several pages), the notice of motion or order to show cause that asked for the default judgment against you and last, but not least, the "affidavit of service" of the summons on you (usually a form and sometimes there is more than one). Once you have these documents, we recommend that you consult a lawyer.
The attorneys at Dwyer & Brennan represent clients throughout New York City in state courts in Manhattan, Brooklyn (Kings County), Queens (Queens County), and the Bronx, and in all New York federal courts.
