Even for well-trained attorneys who don't specialize in insurance claims, long-term disability policies can be confusing. You must be able to read between the lines and sort through a whole bunch of industry-specific terms and conditions. You may read something like this in your employer's long-term disability plan documents:
“ERISA requires that you go through the Company's administrative review process before pursuing any legal action challenging our claim administration. Submit your appeal to us within 180 days.”
Huh? What does that even mean? You might infer from this that the company's administrative review process is going to be on your side. As if it's a safeguard before entering the world of litigation. This is simply not true.
This language may also lead you to believe that you can't (or shouldn't) use an attorney during the appeal process. That is also not true. In fact, you should at consult with a lawyer before crafting your long-term disability appeal because 1). You need someone who understands the language to clarify the process and the parameters; and 2). You need someone with experience in insurance litigation to craft the appeal, to work with experts, consultants, your doctors, witnesses. You also need someone who will understand how to prepare an your appeal to be read by a federal judge (you have to file a federal lawsuit if your appeal is denied) so you have a fighting chance to win your appeal.
Many judges even say that ERISA is so confusing that without an attorney, many claimants are fighting an uphill battle. Check out this quote from Ruth Bader Ginsberg:
“[T]he rising judicial chorus urging Congress and the Supreme Court to revisit what is an unjust and increasingly tangled ERISA regime.” The problem, she says, is that through its decisions, the Court has made it so that virtually all state law remedies which would provide just relief are preempted, but very few federal substitutes are provided. She pointed out that a “series of the Court’s decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain ... relief” and that the current situation needs to be remedied “quickly” because it is “untenable.”
In a perfect world, here is what the plan documents would say:
“Get a lawyer to do your appeal. What we know (but you don't) is that if you have to litigate your case later, the only thing the federal judge will decide is whether the insurance company's decision was reasonable, and the only evidence the judge will consider to make that decision is the "administrative record" (documents, reports, evidence and arguments that were in your original appeal). Our claims adjusters are trained to not only deny claims but to "bullet-proof" the claim file (e.g. the evidence to support denying your claim) so that even if you get a GREAT lawyer later to file your case in court, he/she doesn't have any ammunition to use.”
We believe that these policies should be more transparent and easier to understand for the people who invest in them. We also believe employers should notify their employees of the potential pitfalls in their long-term disability policy, and how easily it can be denied.
If you are confused about the language in your long-term disability policy, call us today at 202-393-3320.
If you’ve received a denial letter from your employer’s insurer, give us a call at 202-393-3320 and we’ll be happy to help.
Don't try to draft your appeal alone. Read this book first - and then decide if you need an attorney to help.
Remember, you only get one shot. Make it a good one.