If I lose My Disability Appeal Who Pays My Attorney Fees ?

What Happens After Your Long-Term Disability Claim Is Denied

If your long-term disability benefits have been denied or terminated by the insurance company, you should have received a letter explaining why the insurance company decided to deny or terminate your disability benefits. Most long-term disability claims are covered by federal law (ERISA) and your appeal is regulated by the U.S. Department of Labor.

You normally have 180 days from the day you receive the denial letter to submit an appeal, but due to COVID-19, the Department of Labor has extended the time to file an appeal. Under existing law, the deadline is limited to one year.
In March 2021, the Department of Labor extended certain time frames, including the time to file an appeal, to the earlier of:
  • One year from the date you were first eligible for relief
  • 60 days from the end of the COVID-19 national emergency (the emergency has not ended)

The first step in appealing your disability denial is to review and analyze your claim file in detail to determine mistakes, inconsistencies, or what the disability insurance company overlooked in the evidence. Depending on whether you were receiving benefits and the type of injury or medical condition you have, this file can be hundreds and hundreds of pages. Initially, your analysis of the claim file should focus on:

  • Are there documents that are missing that ERISA requires
  • Does the denial letter address your specific medical condition
  • Does the denial letter accurately describe your job
  • Does the denial letter accurately describe your limitations
  • Did the insurance company use the correct medical specialty for your condition

These are a lot more things to identify and address of course, but these are a few basic factors to get started.

Through your well-researched, documented written appeal, you are trying to convince the insurance company that you are disabled and can’t work under the terms of your long-term disability policy. You really need to drill down on that claim file and counter what is in there. You should be reviewing all of your medical records, the insurance expert medical examiner reports, job descriptions, transcripts, email chains, and video surveillance (many insurance companies hire private investigators to monitor your activities and film you). All of the information in your appeal should support your best legal, procedural, medical, and vocational arguments that you are entitled to disability benefits under the policy. You should counter the reasons the insurance company gave for denying your claim or terminating benefits. Remember, if your appeal is unsuccessful, you will need to file a lawsuit in federal court.

Losing Your ERISA Disability Appeal On The Federal Level

If your appeal is denied by the insurance company and you have to file your case in federal court, you can’t add new evidence. There is no jury trial or ability to surprise a witness in these cases. You can call a lawyer at that point, but if you are this far in the process and have made any mistakes in the appeal, haven’t included everything, or just sent a letter saying “I appeal”, a lawyer may not be able to help you. If you have already filed your appeal in federal court with the help of an attorney, then you’re on the right track.

It is unusual that an insurance company will be awarded its attorney fees (meaning you would have to pay for their lawyers) for successfully defending your long-term disability denial in federal court.

While ERISA allows your disability insurance company to petition the court to award its attorney fees if it wins your disability case, it is rare that a court will make you pay. If you filed your case in good faith, you should be OK, and courts usually recognize that there is limited ability to pay – the person who lost the case is probably disabled, can’t work, and doesn’t have the money to pay big law firm rates.

A judge could certainly award fees if he or she thought the claimant was playing games, not adhering to court deadlines, or had filed a frivolous claim.

Let’s face it, it’s tough, nearly impossible to successfully handle your own federal court case against an insurance company.

You’ll benefit by at least consulting with an attorney who handles ERISA long-term disability denials, and hiring and relying on the advice of a good lawyer early in the process should improve your chances of successfully getting benefits and make the process a lot easier on you – so you and your family can focus on your rehab and treating your serious medical issues.

Don’t Wait – Speak To An Experienced Disability Appeal Lawyer Today

Take advantage of the time given to you by the extensions to speak to an experienced long-term disability attorney. we know how difficult this process is for our clients. Appealing a long-term disability denial can be exhausting and that’s why we make it easy for our clients. We do everything we can to help you stand up to the insurance company.
And just because you have more time to file an appeal does not mean that you should wait. If you are no longer receiving long-term disability benefits or were denied these benefits, you should move aggressively to get them reinstated.
Call us today at 202-393-3320 for a free review of your denial letter and our analysis of your next steps.
by Frank R. Kearney, Attorney-at-Law

Experienced DC Workers’ Comp, Long Term Disability & Accident Lawyer,

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