Hiring a Disability Lawyer

When is the best time to hire a lawyer?

Long term disability claimants are well-advised to consult an attorney early in the process. In practical terms, that means you should speak with an attorney as soon as you have any indication that your condition will limit your ability to perform full-time work. Many deserving claimants lose their right to the disability benefits they earned through ignorance of the law or unnecessary delay. In some cases they leave their jobs before applying for benefits or miss an important deadline. In other cases they take actions or make statements that are well-meaning efforts to continue working, but are later used against them by the insurance company. If you consult an attorney early in the process, you can protect your rights.

Do I need to have a local lawyer?

No.  An attorney with specialized knowledge in ERISA law and disability law is far more likely to obtain the maximum benefits than a local lawyer without the same experience. Our clients find it very convenient to work with us by telephone and e-mail on a regular basis.

I’m not happy with my lawyer. Can I change to a new lawyer? When and how?

You have a right to change to a new attorney at any time. Bar regulations and legal ethics prohibit any attorney from "interfering" with your relationship with your current lawyer, which would include statements actively encouraging you to change to a new attorney. We are permitted, however, to consult with you about your case, its status, and its handling by your current lawyer. Some of this information may assist you in determining whether to change counsel.

Under what conditions will the insurance company have to pay my attorney fees?

If your case goes to trial and if you prevail, a court can make an award of attorney's fees.  Remember, different parts of the country have different rules as to grants of attorney's fees.  It is also possible to obtain an allowance for such fees in mediation, though that amount is generally incorporated in a "lump sum" settlement.

What should I look for in a law firm?

The bottom line is expertise in handling disability claims.  The law firm you select should also be knowledgeable about changes to ERISA law, and the possibility of "bad faith" recovery for your claims.  Lastly, the law firm must have adequate time to handle your claim in a professional manner.

What is a contingency fee arrangement?

With a contingency fee, you do not pay any legal fees to your attorney unless there is a successful resolution of your case. The contingency has been very popular with ERISA Law Group clients. For those who can afford it, hourly fee arrangements are also available.

What other costs may I incur in addition to attorney fees?

In addition to attorney's fees, you can also incur out of pocket expenses for: court filings, service of process, obtaining medical records, compensating doctors for their opinions, costs of mediation, etc.  A qualified law firm can apprise you of your expected costs and, if the matter is mediated, should be able to identify and quantify those costs in order to permit you to calculate your projected "net" award.

If I am involved in a lawsuit, how long will it take to reach a conclusion?

The reality is that most cases settle; but every case is different.  Cases that settle may take 6-12 months, depending on where you are in the appeals process.  If the case goes to trial, expect the matter to take more than 12 months, especially if there is an appeal to the Circuit courts.

Should I expect a fight to obtain my disability benefits?

In a perfect world, you should obtain all the benefits to which you are entitled under an enforceable policy of insurance.  Unfortunately, insurance companies aren't perfect and don't play fair.  You should expect a fight for disability, no matter who the provider is.

Disability Plan Terms and Definitions

What is a pre-existing condition?

This is usually defined as any medical condition for which you have received “medical care” three or more months prior to the effective date of insurance coverage.  Medical care includes the use of prescription drugs and physician consultations and services.  Disability plans usually exclude or limit coverage for that medical condition for a specified time period.

What are some typical definitions of "own occupation" disability?

"You are considered totally disabled if, due to sickness or accidental bodily injury, you are unable to perform the material and substantial duties of your occupation."

"The inability to perform the material and substantial duties of your regular occupation, the insurance company will consider your occupation to be the occupation you are engaged in at the time you become disabled, they will pay the claim even if you are working in some other capacity"

What is a "modified own occupation" definition of disability?

"You are totally disabled, if solely due to sickness or injury, you cannot perform the material and substantial duties of your regular occupation and you are not working in any gainful occupation."  This definition is typically used to reduce benefit payments to someone who is disabled from their occupation but chooses to work in another occupation.

What are some typical definitions of "any occupation" disability?

"You are considered totally disabled if you are unable to perform the material and substantial duties of any occupation for which you are reasonably fitted by education, training, or experience."

"Because of sickness or injury you are unable to perform the material and substantial duties of your occupation, and are not engaged in any other occupation."

"a total disability, which is a medically determinable physical or mental impairment which renders the Participant incapable of engaging in any substantial gainful employment activity productive in nature, provided that the Plan Administrator finds, and a physician or physicians designated by the Plan Administrator certify, that the Disability is likely to be permanent during the remainder of the Participant's life."

What is a partial disability?

"You are considered partially disabled if, due to sickness or accidental bodily injury, you are unable to perform the material and substantial duties of your occupation on a full-time basis, but can work at your own occupation on a part-time basis or at another occupation on either a full- or part-time basis."

"The result of an illness or injury which prevents an insured from performing one or more of the functions of their occupation."

"A condition in which, as a result of injury or sickness, the insured cannot perform all of the duties of his occupation but can perform some. Exact definitions vary from policy to policy."

"A disability that prevents an insured from engaging in some of the duties of his or her usual occupation or from engaging in the occupation on a full-time basis."

What is "residual disability"?

Residual disability provisions, if provided in the policy, cover those who have begun to recover from total disability but continue to have limitations.  Residual disability may be defined as an inability to earn your former salary (usually below 80%) or an inability to work full time or perform the same duties you performed prior to illness.

What is an elimination period?

The elimination period is a waiting period to determine that you are truly disabled.  It usually ranges from three to six months.

What are offset provisions?

Most group disability plans reduce their benefit payments by "offsetting" other income you receive. Typically you will be required to pursue any benefits or compensation from other sources, including workers compensation benefits, social security disability benefits, retirement benefits, money received from a third-party lawsuit, money you receive from a personal insurance policy, and money you earn for any work you do while disabled from your job.

What are typical plan limitations for Mental and Nervous disorders?

In recent years many group disability plans have instituted a two-year limitation on benefits to individuals who are disabled by mental and nervous disorders. If you are subject to this limit, your payments will cease after 24 months, regardless of your medical condition.  Frequently the disability insurance company will try to define a physical disability as a mental and nervous

disability subject to the limit.  If you have a physical disability and are also depressed as a result of being disabled, you must make sure your doctor clearly indicates that you are depressed secondarily and as a result of your physical disability.  If the depression is put down merely as a second reason for your disability, the insurance company may try to apply the two-year limit.

ERISA Law

What does ERISA stand for?

The Employee Retirement Income Security Act of 1974.

What has been the impact of ERISA on the regulation of disability insurance plans?

The unintended impact of the ERISA law has been to facilitate the denial of legitimate long term disability claims by insurance companies.  ERISA makes the insurance company judge and jury of its own disability claims, and puts a large burden on the claimant throughout the process.  ERISA also removes the threat of damage awards in court proceedings that the insurance company has to consider when the case is governed by state law.  In spite of these hurdles, disabled individuals can still prevail when their claim is contested.

Does ERISA apply if I work for a government agency?

ERISA regulations do not apply to any government employees at any level - local, state, or federal.

Does ERISA apply if I work for a non-profit employer?

ERISA governs most disability plans sponsored by non-profits, with the exception of churches and certain other religious institutions.

Can the terms of my disability plan be modified by the insurance company or my employer?

Your disability claim will be governed by the language in your disability plan at the time you first file the claim. Since your group disability plan is based on a contractual relationship between your employer and your disability insurance company, they can modify the plan at any time. Any modifications made after you file your claim, or after your claim has been approved, will have no impact on your claim.

During the Claim Process

What should I do when I get a letter terminating my benefit?

Your best bet is to contact a qualified law firm and start to assemble all the paperwork in your possession that supports your disability, including medical records, correspondence with the insurance company, etc.

What if the termination letter says I missed a deadline: Is my case lost?

Not necessarily.  There are many internal (created by the policy) and statutory (created by law) deadlines that may apply to your case.  Often your insurance company does not examine all the appropriate deadlines that may apply to your particular case and, regretfully, sometimes, misstates those deadlines.  A knowledgeable ERISA lawyer should be able to correctly identify the applicable deadline and see if your case can be placed "back on track."

What information should be included in my appeal to my insurance company?

The information in your appeal is very important because it establishes, in part, the "administrative record" that forms the basis of any future litigation of your case.  Therefore, you should not undertake to prepare your own appeal -- at least without the help of a lawyer knowledgeable in ERISA law.

What if my doctor refuses to cooperate with me in applying for disability?

Your physician is a very important component in your application for disability benefits.  It is imperative that he/she supports your request for benefits.  Therefore, you should make certain that your doctor fully understands your request and why, in your opinion, you believe you cannot perform part-time or full-time work.  If your doctor still refuses to participate, consider obtaining a "second opinion" from another specialist in the medical field of your disability.

What should I do if I think my doctor’s records are inaccurate? Or incomplete?

It is always a good idea to obtain copies of your medical records on a periodic basis.  If the records are inaccurate or incomplete (or illegible), talk to your doctor about your concerns.  Generally, he/she will be very willing to assist you in understanding your records and making certain they completely and accurately reflect your true medical condition.   When you go to see the doctor, be sure that he notes the symptoms and the dysfunction, and it's a good idea to give him the notes that you've made -- being sure to mention specific functional problems.

Do I have to pay for medical records?

Sometime your doctor will require reimbursement for the copying costs.  This is most certainly true if you request a third-party company to copy the records for you.  Generally, though, the costs are not exorbitant -- unless your records are voluminous.

Do I have to pay for doctor to fill out disability forms?

Typically your doctor will complete the forms for you as a part of his care and treatment of you.  If additional opinions are needed during the course of an appeal or litigation, then your doctor may request appropriate reimbursement for providing those opinions.

Must I do everything requested by my insurance company, such as taking tests and allowing home interviews?

Most ERISA policies require insureds to "cooperate" with the plan administrator.  Failure to cooperate may form a basis for denying benefits.  But that is not to say that all insurance company requests are appropriate.  Therefore, if you receive a request from your insurance company, it is best to consult with an ERISA-knowledgeable lawyer to determine how best to respond.

Is the insurance company likely to put me under surveillance?

It can and often does.  Surveillance can be used to determine what tasks of daily living you are capable of performing, like driving, carrying items or children, leaving the house to shop or socialize, engaging in sports activities. 

Insurance companies often misuse the results of surveillance to form a basis for denying your claim.  Therefore, if you believe you are being surveilled, it is imperative that at the very least you contact a lawyer to determine your rights in this area.

Social Security and Employer Plans

What is a Social Security offset?

Most disability insurance plans require beneficiaries to apply for Social Security disability benefits (SSDI) as soon as they are approved for benefits under their plan. They also require the beneficiary to appeal an adverse decision.

Unfortunately, you will receive no financial benefit if the Social Security examiners determine that you are disabled. Any benefits you receive under the SSDI program are used to "offset" the liability of the disability insurance company. This means that your check from the insurance company is reduced by one dollar for every dollar you receive from Social Security, so all of the gain goes to the insurance company.

We find it reprehensible that the disability insurance companies are happy to receive the financial gains from SSDI, but they will often give no weight to a determination by Social Security examiners that a claimant is disabled, and reject the very same claim.

If I am covered by a disability insurance plan, when should I apply for SSDI benefits?

In most cases, as soon as possible.  First, private disability often pays immediately; Social Security can take a year and a half to two years, or longer, to pay.  Second, your insurance company will usually require you to apply for SSDI and will often deduct estimated SSDI benefits from your payment if you do not make the application.

Employment and Compensation

Can I negotiate a severance package?

In many instances, it is possible to negotiate a severance package. Many employers will provide salary and/or medical benefit continuation, if you provide them with a release of legal claims. If you decide to take such a package, you must be careful not to endanger your ability to apply for disability benefits under the company's long term disability plan. Long term disability plans only cover you if you become disabled while employed. If you resign and then only later apply for disability benefits, you may find it difficult to prove that you became disabled before you resigned.

Can I lose my health insurance?

If you are terminated from receiving disability payments, you may no longer be considered an "employee" for the purposes of receiving health insurance.  Often, one of the primary reasons to appeal a termination of benefits is to regain cancelled health benefits.  But policies and employer practices can vary.  Therefore, if there is a risk that you may lose your health benefits as part of a denial of disability benefits, it is important to immediately take steps to appeal that denial.

What is a waiver of premium?

Some disability policies provide that, during a period of disability, health, life, and/or disability insurance premiums are waived.  This is another enormous benefit of remaining on disability in that these often expensive premiums are paid by the carrier.  Loss of disability benefits can therefore result in the "domino effect" of your losing other valuable benefits.