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If your benefits are based on employment by a non-governmental entity, your retirement, disability, and medical benefits are governed by federal law. That law, known as ERISA (for Employee Retirement Income Security Act of 1974) requires that certain procedures be followed in connection with your claim, but also limits the remedies you can receive when you are denied benefits. If you are a governmental employee, but your benefits are provided through an insurance company, very similar procedures will probably be used. When government employees claim benefits that are required by law, the law that establishes the benefit often provides specific procedures for handling benefit claims.
The description below applies only to claims covered by ERISA. Please note that this information is not intended as legal advice, and should not be used as a replacement for consulting a lawyer. Key features of ERISA: • Your right to benefits is governed by the written plan that creates the benefit. The plan is summarized in the Summary Plan Description ("SPD"), which you should have received from your employer. • The Administrator of your plan must provide you with a copy of the plan and the SPD if you make a written request. Fines of up to $110 per day may be imposed for failure to provide these documents within 30 days of you request. • You cannot go to court to obtain benefits until you have completed the internal review process provided by your plan - so take that process seriously • If you do sue after the internal review process, the court will generally not consider either evidence of arguments that were not presented in the internal review process - so you must make sure that all relevant information is submitted during that process. • Most plans contain language granting discretion to whoever makes decisions regarding your claim. If the plan contains this language, and the decision maker follows proper procedures, the court will reverse the plan's decision only if no reasonable person could have reached that decision. • Because plan administrators (and especially insurers) know that the courts generally only reverse their decisions in extreme circumstances, in the internal review process you must present a case so strong that the plan knows that a court will not just disagree with a decision denying your claim, but will feel that it is "arbitrary and capricious." • In ERISA claims, courts will not award punitive damages, or damages for pain and suffering, or for the financial damage you suffered from being without needed income. The court may award only benefits actually owed, plus attorneys' fees and costs in the lawsuit, and sometimes interest on delayed payments. Key Issues in Disability Claims: • The burden to prove disability is on you. Therefore, the absence of evidence usually hurts you, not the insurer. • If evidence of disability exists, but the insurer did not receive it before it decided your appeal, the court probably will not consider it. • Therefore, if your claim is denied, or your benefits are terminated, immediately write to the insurer requesting "all information relevant to your claim," including the Plan Document, the Summary Plan Description, any guidelines relevant to the claim, and the medical reports and qualifications of any medical personnel that reviewed your claim. Notify the insurer that you intend to appeal the decision, but that you will submit your appeal after you have received and reviewed the information you are requesting. • Immediately obtain a complete copy of all your medical records, to make sure that the insurer received all helpful information from those records • It is not enough for your treating doctor to write a letter stating that you are disabled, and that he or she disagrees with the insurer's conclusions. You need to get the definition of disability from the SPD, a description of your job (if disability is defined in terms of your own occupation), and a copy of the medical review conducted by the insurer, and have your doctor explain, in detail, why you are disabled, and why the opinion relied upon by the insurer was incorrect. • If your doctor is a primary care physician, but your condition is one usually treated by a specialist, obtain a consultation with a specialist to address the specific question of whether your condition is disabling • Specific tests can often establish that you are disabled. For example, a physical capacities evaluation may establish that you cannot stand for more than two hours in a day, whereas your occupation requires standing for at least four hours. Likewise, cognitive testing may establish that your condition has reduced your mental functioning so you can no longer work in your former occupation. These tests can be quite expensive, and medical insurance coverage is often not available, but they can make the difference between winning and losing your appeal • Obtain statements from co-workers, friends, and family that contrast your condition before your disability with your current condition. The statements should provide specific information about tasks that you are now unable to do that are required as part of your former occupation (or, if the applicable definition of disability is "any occupation," that are required in order hold any job). • Submit a personal statement that explains, in concrete terms, why you are disabled under the applicable definition. • You must carefully follow all time limits imposed by the plan. You normally have 180 days to appeal a denial or termination of benefits. If you miss that deadline, the insurer will not consider your appeal. If there is a very good reason why you cannot complete your appeal on time, request an extension to a specific date. If the insurer does not grant the extension, submit as much as you can before the deadline, and send the rest as soon as possible after the deadline. Even if the insurer refuses to consider the additional information, usually the court will review all information received by the insurer before it made its decision. • When you have assembled all the materials in support of your claim, prepare a carefully reasoned letter that refers to the materials you are submitting, and explains how they address every reason the insurer gave for denying you benefits. If you have access to court decisions that reject reasoning of they type presented by the insurer in its denial letter, cite those decisions, and explain how they apply. • At the end of the letter, tell the insurer that before it makes a decision on your appeal, it should provide you with any additional materials that are generated in connection with the appeal, so that you can address those materials before the insurer makes its final decision. How a Lawyer Can Help in This Process There are several ways an experienced disability insurance attorney can frame your appeal so it is more likely to succeed. These include: • Knowing how the courts have interpreted various standards for disability • Knowing which providers of services, such as physical capacities evaluations and cognitive testing, are familiar with the disability insurance process, and generate reports that address the key issues in these cases • Working with your treating physician to assure that the critical issues are addressed • Locating specialists who may support your physician's conclusions • Drafting a persuasive appeal letter, including citation to key decisions that affect the standards by which the insurer should be evaluating your claim • Assuring that your internal appeal includes all the information you will need if you must go to court • Putting the insurer on notice that if your claim is denied, you are likely to seek court review, which results in additional expense for the insurer. Because I am a sole practitioner, you can be confident that you will receive personal attention, and the benefit of my experience and knowledge. Contact me for a free, one-hour consultation. My offices are open from 9 am until 5 pm, Monday through Friday. If you are unable to travel to my offices, I can arrange to visit you at a location of your convenience. Law Office of James D. Oswald
100 S. King Street, Suite 560
Seattle, WA 98104-2847
Toll Free: 877-814-0216
Phone: 206-812-8546
Fax: 206-629-7657 At the Law Office of James D. Oswald, I represent individuals across the state of Washington, from Seattle to Spokane; including Bellevue, Tacoma, Everett, Yakima, Vancouver and Richland; and throughout King County, Snohomish County, Pierce County, Spokane County, Yakima County and Clark County.
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