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 federal law, ERISA (the Employee Retirement Income Security Act) which 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 fail 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.
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. Give us a call today at 2020-393-3320
Frank Kearney was a guest on a local TV show speaking about our firm’s work with families of special needs children and our approach to medical malpractice cases. He explains how medical malpractice cases work, from how a case is investigated to the benefits of a successful case, and everything in between.
Here’s a clip of Mr. Kearney explaining the cost of hiring an experienced medical malpractice attorney. Many people don’t realize that it doesn’t cost any more to hire an experienced, Board certified attorney with a track record of successful medical malpractice cases than it does to hire a lawyer right out of law school.
Frank Kearney, Esq:
“Most of the families that we work with can’t afford the services of a lawyer billing on an hourly rate and there are very different reasons for that. As a civil justice attorney, what I do, my law firm and I, work on a contingent fee, which means it’s a percentage of any total verdict or award after the case is finished. And these cases can go on for several years and many times do.
We also front all the costs and expenses associated with the case. For example, when there’s been a violation of a patient safety rule by an HMO or a hospital, it takes a very thorough investigation. We need experts, and physicians, primarily in all different specialties to review the case, to review the chart, to work with you.
Obviously, all those things cost money before you even file a case or when you’re still investigating it. So we don’t require our families to front those costs in the beginning because again, if you have a special needs child or if you’re dealing with a death in the family due to a medical error, you know, that’s a 24/7 occupation. You can’t be worried about your lawyer calling you up saying, ‘Oh you need to pay me this much this month, or this much next week, I need this, or I need that.’
It’s just not the best way to help families—we don’t think.” If you missed it, here’s a YouTube link to watch Mr. Kearney’s full interview.