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The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that governs employer sponsored retirement plans. ERISA is notoriously complex, and many individuals run into confusion and challenges when they are seeking to assert a disability claim under their plan. Here, our experienced Chicago ERISA disability attorneys discuss a recent case that highlights one the most important ERISA concepts: the difference between diagnosis and disability. The Case of Decovich v. Venetian Casino Resort, LLC Factual Background Decovich v. Venetian Casino Resort, LLC was decided in January of 2017 by a Nevada district court. That being said, this case provides instructive information for ERISA claimants all around the country, including in Illinois. The case centered around a Las Vegas casino card dealer who developed a medical condition that left her with widespread, chronic pain. She received a valid medical diagnosis for this condition from her local physician. However, when she sought disability benefits, her claim was denied. This remained true despite the fact that she had a valid diagnosis. Why the ERISA Disability Claim Was Denied The court accepted that her diagnosis was valid. However, the court agreed with the insurance company’s argument that the plaintiff failed to present any evidence that her diagnosis actually prevented from her working. More specifically, the court pointed to the fact that none of her medical records contained any information related to ‘job restrictions’ or ‘the inability to work’. Thus, while the medical diagnosis was valid, there was simply insufficient information provided to establish a disability claim. What This Means For You This case provides a textbook demonstration of the importance of getting proper medical documentation and records. The burden of proving a disability is always on the plaintiff. The courts have made it very clear, under ERISA regulations, a diagnosis is not, by itself, sufficient to get disability benefits. Getting your condition properly diagnosed is a required first step in the claims process, but you also need to ensure that you have medical documentation that explicitly asserts that your condition will prevent you from working. Disabled individuals should always work with an experienced ERISA claims attorney who can help them ensure that they have the proper supporting evidence needed to prevail in their case. Contact Our ERISA Attorneys Today Were you denied disability benefits in Illinois? If so, we can help. At the Comerford Law Office, LLC, we have extensive experience handling a wide array of ERISA claims. To learn more about what our lead attorney, James Comerford can do for you, please call us today at (312) 863-8572 to set up your free initial legal consultation.

If you applied for Social Security disability benefits (SSDI) and received a “ technical denial,” you may be wondering what that means. SSDI claims are commonly rejected based on medical grounds, meaning that the Social Security Administration (SSA) did not feel that the claimed medical conditions were sufficient enough to warrant SSDI benefits. However, a technical denial occurs when the claimant is found ineligible for benefits even before the SSA reviews the medical proof. In order to help you understand why you might have received a technical denial, consult with the Chicago Social Security lawyer at The Comerford Law Office, LLC today. Grounds for a Technical Denial When individuals come to us with a technical denial, we explain to them that there is one of three reasons that they could have been denied. They include: Making Too Much: If, despite your disability, you are employed, and if you make more than the “substantial gainful activity (SGA)” threshold, which is currently $1,130, you will receive a technical denial; You Did Not Work Long Enough: In order to be eligible for SSDI benefits you must have worked a certain number of years and contributed to the nation’s overall Social Security fund. The amount of years you must have worked is directly related to your age. To learn more about the age/contribution eligibility requirements, check out this contribution and benefit base chart. You Have Not Worked Recently Enough: Another reason that you may have received a technical denial is because you have not worked recently enough—or, more specifically, you were not disabled before the date that you were last insured. SSDI lapses if you do not pay into it. As a general rule, the SSA requires that you worked at least five of the past ten years in order to qualify for SSDI benefits. If you have not, and if your disability did not occur within five years of the date last insured (DLI), you may have received a technical denial. Appealing a Technical Denial Unfortunately, most technical denials are set in stone and cannot be reversed. For instance, if you have not contributed enough to SSDI through work credits, appealing the administration’s decision is not going to change that fact. However, if you feel that the SSA unfairly or wrongly evaluated your income, or if the denial was due to missed paperwork, missing information, or some other error, we may be able to build a case. Though appealing a technical denial is not always easy, if you believe that you were wrongly denied your Social Security benefits, reach out to the team at The Comerford Law Office, LLC for a case evaluation, advice, and a legal strategy. To schedule a free consultation with James R. Comerford, leading attorney and founder of our Chicago firm, call 312-863-8572 today.

According to MedlinePlus, post-traumatic stress disorder (PTSD) affects nearly 31 percent of all Vietnam veterans; 10 percent of Gulf War (Desert Storm) veterans; 11 percent of the War in Afghanistan veterans; and 20 percent of Iraqi war veterans. PTSD is a very serious condition in which the sufferer relives one or more traumatic events from their past. This condition causes extreme fear and anxiety in both sleeping and waking life. In fact, PTSD has been described as an extreme form of an anxiety disorder. However, unlike other anxiety disorders, PTSD can occur for a considerable amount of time after the traumatic event, and even affect the afflicted their entire lives. Fortunately, regulations passed in 2010 made it easier for veterans to obtain benefits for PTSD; however, that does not mean that all sufferers receive the compensation they deserve for putting themselves in such a dangerous situation in the first place. If you or a loved one suffers from PTSD, and if you are having difficulties in obtaining your benefits, reach out the James R. Comerford of The Comerford Law Office, LLC in Chicago, IL. With years of experience in helping veterans fight for their rights to benefits, our legal associates have what it takes to help you achieve a successful outcome to your case. Qualifying for VA Benefits Due to PTSD In order to qualify for benefits for PTSD, you must first file your claim with the Veterans Administration (VA). They will send you to a psychiatrist who will examine you and make a diagnosis. If it is confirmed that you do, in fact, suffer from PTSD, you must meet the following extra requirements: Your symptoms are directly related to a traumatic event that happened during your time of service (the “stressor”); The VA psychiatrist confirms that the stressor was enough to cause PTSD; The stressor is related to fear of hostile military or terrorist activity; and The stressor is one that is likely to have happened in the locations of your service, and under the circumstances you described (and there is no evidence to the contrary). Thanks to the new guidelines implemented in 2010, veterans no longer have to provide evidence of the triggering event, thereby making it much easier for veterans to obtain their benefits in a timely and stress-free manner. PTSD Disability Rating As with all combat-related injuries, the VA is going to want to know how severe your injuries are. In this case, they will measure the severity of your PTSD symptoms, how frequently they occur, and how much your symptoms hinder your ability to perform normal, everyday functions, including work. Your disability rating can range from 10 percent (symptoms are slight and can be successfully managed with medication) to 100 percent (symptoms are severe, occur frequently, and require ongoing, extensive therapy). For a complete list of ratings and what each entails, visit this website. Consult a Chicago Veterans’ Benefits Lawyer Though proving PTSD is easier today than it was ten years ago, many veterans’ continue to not receive the proper care and compensation that they need to get better. Our job at The Comerford Law Office, LLC is to ensure that wounded veterans’ are not slighted by the U.S. government which they served, and that they obtain the benefits they fought for and deserve. If you have been denied benefits for PTSD, call VA benefits lawyer James R. Comerford at 312-863-8572 to schedule a free consultation today.

When people think of Social Security beneficiaries, they think of elderly and disabled individuals. Not too often does a young child pop into mind. However, according to the Social Security Administration, approximately 4.4 million children receive Social Security benefits each year. These children receive benefits because one or both of their parents are disabled, retired, or deceased. If you are interested in applying for Social Security benefits for children, reach out to the team at The Comerford Law Office, LLC to speak with an attorney regarding the eligibility requirements you and your family must meet in order to have your claim approved. Eligibility Requirements for Child Social Security Beneficiaries In order for your child to qualify for Social Security benefits under you, he or she must be your biological child, adopted child, stepchild, or dependent grandchild. They must also meet the following eligibility requirements: They must be under the age of 18; They must be unmarried; They may be between 18 and 19 years old if they are a full time student, and no higher than grade 12; and/or They can be 18 or older if they are disabled, and if that disability started before the age of 22. Unless the child is disabled, normal benefits will stop when the child reaches the age of 18 or, if the child is still at a secondary (or elementary) school at the age of 18, when the child graduates or after two months after the child turns 19, whichever comes first. If your child does receive Social Security benefits under you, it will not decrease the amount of retirement benefits you stand to receive. In fact, many older and/or disabled parents find it more advantageous to take their benefits earlier when they have younger children to support. Amount of Benefits Your Child May Receive Each qualified child may receive up to one half of your full retirement benefit amount. With that in mind, your family as a whole is limited to the amount of benefits it can receive. While this amount varies on a case-by-case basis, the general consensus is that no family shall receive more than 150 to 180 percent of the main beneficiary’s full retirement benefit. The amount changes again if your child works. If your child holds a job, the same earnings guidelines apply to them as apply to you. Retain the Help of a Chicago Social Security Lawyer Applying for Social Security benefits is, in general, a difficult and time-consuming process. However, when you attempt to apply for children’s benefits, it becomes even more so. This is because children are not the prime or even intended demographic for social security benefits. When you apply for benefits for your child, you may get denied. If you do, reach out to Social Security attorney James R. Comerford at The Comerford Law Office, LLC in Chicago. We understand how the SSA thinks and operates, and can help you successfully obtain the benefits you need to raise your family. To learn more, call 312-863-8572 to schedule your free consultation today.

The wars in Iraq and Afghanistan left an increased number of veterans with traumatic brain injuries (TBI), which is a head injury that results in the loss of consciousness, possible amnesia, and ensuring neurological deficits. According to the Department of Defense and the Defense and Veteran’s Brain Injury Center, an estimated 22 percent of all combat casualties from those conflicts are brain injuries; an additional 60 to 80 percent of veterans who suffered blast injuries also suffer TBIs. Unfortunately, because much of the symptoms of a TBI occur directly after impact, veterans often have trouble obtaining compensation for their head injuries. At The Comerford Law Office, LLC, VA disability attorney James R. Comerford understands how devastating a TBI can be to your future, and so will do everything in his power to make sure that you are rightfully compensated for your wartime injuries. Determining the Severity of Your TBI The severity of a traumatic brain injury is directly related to the severity of the symptoms associated with the injury. Your TBI may be ranked as either mild, moderate, or severe. To learn more about how your injury may rank, review the accepted definitions below: Mild TBI: The loss or alteration of consciousness for < 30 minutes; post-traumatic amnesia for <24 hours; focal neurologic deficits; and/or Glasgow Coma Score (GCS) of 13-15; Moderate TBI: The loss of consciousness for > 30 minutes; post-traumatic amnesia for > 24 hours; and an initial GCS of 9-12; and Severe TBI: All of the criteria listed for a moderate TBI, but with a  GCS of <9. Nearly 80 to 100 percent of individuals who suffer from a mild TBI (mTBI) will experience immediate symptoms, such as headache, dizziness, insomnia, impaired memory, and/or lowered tolerance for noise and light. In many cases, the victim of a mTBI will return to their normal state of function within three to six months; however, in 10 to 15 percent of cases, patients end up developing chronic symptoms that continue to affect them for the rest of their lives. These symptoms include headache, tinnitus, insomnia, memory loss, inability to concentrate, irritability, depression, and other somatic, cognitive, and behavioral issues. These are the individuals that most need VA benefits for their TBI, but they are also the individuals that have the hardest time proving that their symptoms are combat-related. Individuals with moderate and severe TBIs experience the same long-term effects of their injury as someone with a chronic mTBI, but to a greater degree. Oftentimes they require ongoing cognitive and vocational rehabilitation, and pharmacological intervention. Diagnosis and Obtaining Benefits Unfortunately, it is very difficult to diagnose a TBI, as there are no screening instruments that can detect symptoms. It is wholly up to the suffering patient to paint a picture of how they feel on a day-to-day basis, and for the physician to make a diagnosis based on what they have been told. In order to obtain a positive diagnosis, it would be in the patient’s best interest to present unequivocal evidence relating their injury to an event that happened in combat (such as evidence of an IED exploding under their combat command vehicle). Once a thorough interview has been conducted and a connection between a combat-related event and the injury has been established, it is up to the clinician to make a diagnosis. Consult a Chicago Veterans’ Benefits Attorney If you or a loved one suffered a TBI while in the military, and if the clinician either failed to make a positive diagnosis or you have been denied your benefits despite a positive diagnosis, reach out to Chicago veterans’ benefits attorney James R. Comerford. With years of experience helping veterans obtain the benefits they need and deserve, our team has the knowledge and skill necessary to guide you towards a successful outcome. To learn more about how the team at The Comerford Law Office, LLC will fight for your rights to your VA benefits, call 312-863-8572 to schedule your free consultation today.

What Is Disability PayBack? Ask A Social Security Attorney Libertyville If you have been awarded Social Security disability benefits by the Social Security Administration (SSA), you will probably also be entitled to back pay benefits, also known as past due benefits. When your claim for disability benefits is approved, make sure you know whether or not you are entitled to back pay benefits as well, and contact an attorney if you have questions. What Are Past Due Benefits? When your application for Social Security disability is approved, you are entitled to start receiving your benefits on the sixth full month after the date that your disability began. Because it is very likely that it took months’ worth of time to process your claim, you may be entitled to past due benefits for this time frame. In fact, in some cases, you may also be eligible for retroactive benefits up to one year prior to the date of your original application for Social Security disability benefits. Important Dates to Know The Social Security Administration uses two important dates to calculate how much you are owed in disability back pay: Your claim application date and your disability established onset date (EOD). The date that you file your application is typically considered your EOD, and the date that will be used to determine back pay. However, if your disability began well before you applied for benefits, you can challenge the EOD – you should hire an attorney to represent you during this process. The Five-Month Waiting Period Remember, there is still the five month waiting period. For example, if the onset date of your disability was 12 months from the date that you were approved for benefits, you would be entitled to seven months of backpay. As a note, there is no mandatory five-month waiting period for SSI (Supplemental Security Income) claims. How Are Past Due Benefits Paid? Past due benefits are paid in one of two ways: as a lump-sum payment or in three separate payment increments. You will most likely receive the payment in three periodic payments unless special circumstances warrant a lump-sum payment. The Benefits of Working with a Social Security Disability Attorney When you are filing a claim for Social Security disability benefits, it is important to know as much as you can about the process and be prepared for any hiccups along the way. It is also important to understand the full extent of the benefits to which you are entitled, including disability back pay. At The Comerford Law Office, LLC, we want to make sure that you get your full benefit amount. We can represent you if there is a dispute over your established onset date, and help you to understand for which months you may be entitled to benefits. To learn more about our services and the Social Security disability process, contact us today. A consultation with our experienced Chicago Social Security lawyers is always free.

Don’t Ruin Your Claim: Talk To A Social Security Attorney Crystal Lake Receiving Social Security disability benefits can provide you with the financial support you and your family need when you are unable to work and earn an income. However, if you are disabled and apply for Social Security disability benefits, benefits are not guaranteed; the Social Security Administration (SSA) is extremely particular in the claims it approves. Here are three things that can quickly ruin a claim for Social Security disability benefits. Failing to Obtain Enough Medical Evidence to Support Your Claim When you are applying for Social Security disability benefits, one of the most critical parts of your application is your medical evidence. If you do not have enough medical evidence to prove that you are disabled and that your condition is severe and prevents you from working and has lasted or is expected to last for at least 12 months or result in death, your claim will be denied. Further, do not assume that because the SSA requests a consultative exam (which is requested when medical sources provided are inadequate), your claim will be approved. In addition to not providing enough medical evidence, failing to follow a prescribed treatment from a doctor can also result in a denial of benefits. The examiner in charge of your case for the SSA will review your treatment history. Not Hiring an Experienced Chicago Social Security Disability Attorney Many people assume that because they are disabled, they can file their application on their own and will likely be approved for benefits. However, this is not the case; filing an application for Social Security disability benefits is rarely advised. As stated above, the SSA is very particular in its eligibility requirements for benefits, and denies thousands of claims. An experienced Chicago Social Security disability attorney will know exactly what the SSA is looking for, and how to fill out your application to improve the chances that is approved the first time without having to go through the appeals process. Contact The Comerford Law Office, LLC Today Do not wait to take action if you are disabled and are in need of Social Security disability benefits. At The Comerford Law Office, LLC, our Chicago Social Security disability attorneys care about you and are ready to help. Contact us today for your free consultation.

In Martorello v. Sun Life Assurance Co. of Canada, 2009 U.S. Dist. LEXIS 41465, No. C 09-0912 PJH (May1, 2009), the court held the Sun Life failed to state a claim for equitable relief under 502(a)(3) of ERISA (29 U.S.C. 1132(a)(3)) sufficient to compel reimbursement of amounts previously paid. Charles Martorellowas a Senior Vice President of Sales for Hilti, Inc. As a benefit of his employment, Mr. Martorello was a participant under the Hilti Long Term Disability Plan. Unfortunately, on December 22, 2005, Mr. Martorellosuffered a Type A aortic dissection which required multiple surgeries. At the time of his disability, Mr. Martorello base salary was $172,636 prior to bonuses received. In 2006, Mr. Martorello returned to work in a different capacity, receiving roughly $100,000 prior to any bonuses received. Mr. Martello invoked the residual disability provisions contained in his insurance policy and sought payment for his loss in income. Sun Life agreed to pay such amounts until June18, 2008. In a letter of the same date, Sun Life informed Mr.Martorello that it would not pay any benefits retroactive to September 1, 2007, as Mr. Martorello’s loss income did not meet the 20% reduction required under the terms of the Plan. In reaching this conclusion, Sun Life determined that while Mr. Martorello’s pre-disability earnings were determined without consideration of his bonus, for purposes determining his loss of income, his bonuses would be used. Mr. Martorello filed suit seeking, amongst other claims, a right to receive benefits. Sun Life filed a counterclaim alleging a right to reimbursement for the amounts it “mistakenly” overpaid. The district court dismissed Sun Life’s claim for reimbursement under 502(a)(3). In doing so, the court relied on the Supreme Court’s ruling in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). Great-West mandates that suit brought under that section must be of the type traditionally found inequity-namely a constructive trust or equitable lien. As Sun Life plead an entitlement to specific funds, the court held that its claim was insufficient for purposes of 502(a)(3) and dismissed the claim.

The Sixth Circuit in American Council of Life Insurers, et al. v. Ken Ross, No. 08-1406, 6th Cir.; 2009 U.S. App. LEXIS 5748 (March 18, 2009) upheld. Michigan’s prohibition against discretionary clauses in insurer issued Welfare Benefit Plans. The Court held that administrative rules prohibiting insurance companies from issuing policies containing discretionary language were intended to regulate the insurance industry as outlined in the savings clause and thus not preempted by ERISA. COMMENTARY: The Ross decision is a victory for plan participants. Participants now may be permitted to conduct discovery outside of the administrative record and submit new evidence when pursuing their claim in federal court. It will be interesting to see whether the Ross decision is followed by circuits in which the director of insurance has issued similar prohibitions.