Most disability insurance policies are provided by an employer, and if you have a long term disability policy through your job, it probably falls under a federal law, ERISA (the Employee Retirement Income Security Act) that governs any claim for long term disability if you can't work because of an injury or medical condition.
Under ERISA, if you file your case in federal court (after a denial of your appeal by the insurance company), and win, you may be able to recover attorneys fees from the insurance company. The federal judge who awarded your benefits will also determine whether you can recover attorneys fees as well for the federal court litigation. In other words, there is a "fee shifting" provision of the law that allows this.
Unlike in some insurance litigation, you do not have to prove "bad faith" conduct by the insurance company, which is a difficult standard. Instead there are a number of factors a court could look to in awarding attorneys fees - just remember the difficulty of the standard you are probably up against to get a denial of benefits reinstated is probably an "abuse of discretion" meaning was the insurance company denial of your claim reasonable, not whether it was right.
This is why your appeal is so critical - that appeal and all of the evidence and arguments you provide in it - are what a federal judge reviews in deciding your case.
But after a win, the judge may look to certain factors in making this determination.
Did the insurance company failed to engage in a fair and open-minded consideration of the claim, or was it just a rubber stamp denial?
Did the insurance company deny your claim based on one of their own consulting physicians who is not a specialist on your illness or injury, did not review relevant medical information or use a reasonable medical or scientific analysis in coming to his conclusion?
Did the insurance company disregard or reject medical opinions that were in your favor without properly following up with the doctors or considering all of the relevant, available medical information.
Like many things involving ERISA long term disability, the decision to award attorney fees is within the judge's discretion. Just make sure you have the best chance by putting everything into your appeal of that denial letter.
If you received a denial letter, call us at 202-393-320. We’re happy to help. In fact, we'll review your denial letter for free and give you our sense of the next steps you'll need to take. But don't delay - these cases have strict time limits and a proper appeal - one that puts you in the best position to get disability benefits awarded - is a lot of work.