Appealing — Suing Over Your Claim

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In order for you to get your ERISA disability insurance claim approved, you must follow certain required steps. This includes submitting a timely appeal and, depending on the insurance company's policy, possibly filing a second appeal. If and when your appeals are denied a lawsuit can be filed. All of these steps have time limitations that must be met, or you will lose your right to continue to the next step of your claim.

With extensive experience in disability and life insurance claims governed by the Employee Retirement Income Security Act of 1974 (ERISA), ERISA Law Center can represent you in your appeal or lawsuit for benefits. Call us today!

Pre-Litigation Internal Appeal

Before filing suit, you must pursue an internal appeal. The internal appeal is required by law. If you do not submit an internal appeal, the denial or termination of your benefits cannot be challenged in a lawsuit. Because most internal employee benefit appeals are denied, it is likely that your appeal will be denied as well. However, this does not mean that you do not have a good case.

Disability insurance companies are required by law to have an appeal process, so they do. However, there is very little "downside" for an insurance company to deny an appeal because many people do not find a lawyer, and most people do not sue. Even when suits are filed, the courts often support the insurance company's decision, so the disability claimant is faced with a significant challenge.

This is generally how we handle an administrative appeal to an insurance company or third party claims administrator after benefits have been denied or terminated:

  • If we do not already have your records from the insurance company, we get them.
  • If we do not already have the insurance policy, the certificate of insurance, and/or the summary plan description from your employer, we get them.
  • We identify all your current treating physicians and any other treating physicians who are not listed in the insurance company's records. We get authorizations from you and use those authorizations to get current medical records. It is important to submit new medical evidence with the appeal and we try to be as comprehensive as possible in submitting new medical evidence.
  • If your doctor's records are unclear or if there is any uncertainty, we may ask your doctor to submit a detailed report regarding your status. If your doctor's opinions are contradicted by the insurance company's opinion, we may ask your doctor to make a comment on the insurance company's doctor's opinions. (A lot of doctors are not willing to do "legal medical" evaluations. They often do not like writing letters to insurance companies; they often do not like talking to lawyers. We may ask you to talk to your doctors; we may write a letter to your doctor; we may call the doctor's office.)
  • We investigate the insurance company's doctors, who are used to terminate or deny your benefits. Sometimes we have files, prior opinions about, or other useful information on those doctors, which we can include that in the appeal.
  • Sometimes, the defense doctors do not properly understand the disease from which you are suffering. We often include medical literature regarding your disease and/or symptoms.
  • We believe that it is important that you submit a declaration supporting your claim. Based on a review of the records that we have, we will draft a declaration for your review and approval. We will then send the declaration to you and ask you to comment on it and make corrections, changes, and/or additions. Sometimes we get declarations from persons and your doctor - especially when you have care takers or significant others who can describe the nature and extent of your disability. Sometimes we submit a video showing how you live so that the insurance company can fully appreciate how disabled you are.
  • Since we have a lot of information from the beginning, we start working on our appeal letter right away. However, the letter is not completed until we have all the information we need.
  • If you have Social Security Disability or workers' compensation benefits, we get the records from those claims.

What do Our Appeal Letters Often Contain?

Our appeals generally consist of:

  • A lengthy appeal letter (often of 50 to 100 pages) together with your declaration
  • Your doctor's letter
  • Other declarations (if necessary)
  • Medical literature about your conditions and symptoms
  • New medical records
  • Information about the insurance company's doctors
  • Information we have (if any) about the insurance company's unfair practices

The insurance company has 45 days to decide most appeals. However, usually the insurance company takes more time and requests more time. Therefore, the appeals are usually not decided until approximately 75 days after they are submitted. (For claims that arose before January 1, 2002 the insurance company has 60 days plus 60 days, not 45 plus 30 days). When the insurance company orders additional medical reviews or an independent medical examination that may further delay a decision on the appeal - by several additional weeks or even months.

  • It is also important to submit a comprehensive appeal because if you have to sue, once you go to court, most of the time the only evidence which a court will consider on the merits of your claim is the evidence in the administrative record. So, if we do not put it in now, it is likely the judge will never see it.
  • If your appeal is granted, then you will be placed back on claim retroactively and paid back benefits. If the appeal is denied, we will usually file suit seeking benefits through the litigation process.

ERISA Lawsuits

At ERISA Law Center we can file a lawsuit against a disability insurance company for the wrongful denial or termination of benefits.

We have successfully sued:

  • Aetna
  • American United
  • Anthem
  • Assurance
  • Blue Cross
  • Cigna
  • First Reliance
  • Guardian
  • Hartford
  • LINA
  • Lincoln Financial
  • Matrix
  • MetLife
  • Mutual of Omaha
  • Provident Life & Accident
  • Prudential
  • Reliance Standard
  • Reliastar
  • Sun Life
  • The Standard
  • United of Omaha
  • Unum

We have handled many cases in federal district courts around the country and reached settlements or won hundreds of cases on behalf of our disabled clients.

If you would like to speak to a member of our team, call ERISA Law Center today. We are ready to put our experience on your side.

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We file a complaint against the plan and/or the insurance company. The complaint seeks a declaratory judgment to require the Insurer or plan to pay or reinstate benefits, pay back benefits (with interest), pay attorney fees incurred prosecuting the suit and perhaps other remedies. Under ERISA law you are not entitled to recover any other amounts. You may not recover compensation for pain and suffering or punitive damages - you can only receive what the plan or insurance company should have paid you in the first place. You may not recover the value of future benefits, only the right to receive future month-by-month benefits month-by-month if you continue to demonstrate that you are entitled to them. (This is one of the major reasons why insurance companies deny claims and then deny appeals. If the insurance company loses in court, it only has to pay the benefits it otherwise would owe, plus, perhaps, attorney fees and interest.)


Once the complaint has been served, the plan or insurance company defends the lawsuit and the plan's or insurance company's attorney will file an answer to the complaint, admitting certain facts, denying most other facts.


Early in your suit, the "Administrative Record" is prepared. Usually, litigation of an ERISA benefits suit is limited to the Administrative Record: the evidence and materials obtained by the plan or insurance company before suit was filed. Often, the only evidence that is allowed to be presented in court is the administrative record of your claim, plus evidence relevant to the insurance company's conflict of interest. This may include the plan provisions, your claim for benefits, all correspondence regarding your claim for benefits, internal insurance company reviews, records, reports, analyses and other information submitted during your administrative claim regarding "other benefits" such as Social Security or workers' compensation, you applied for or received, the medical records the insurance company obtained or you submitted and employment records which the insurance company obtained or you submitted. Medical and other records after the denial of your appeal are generally inadmissible. New evidence is often inadmissible, except evidence that shows the insurance company's conflict of interest.


About 90 days after the complaint is filed, the court will hold a scheduling conference. At that time deadlines and dates for various matters, including motions and trial, will be set. You need not attend this conference.


A critical issue in ERISA benefit litigation is the standard of review. Sometimes the standard of review is "de novo." If so, the judge (there are no juries in ERISA suits) weighs the evidence without regard for or deference to the insurance company's or plan's decision. However, if the plan (or insurance policy) grants plan fiduciaries discretion to determine eligibility for benefits or to construe plan provisions, the judge uses the "abuse of discretion" (sometimes called "arbitrary and capricious") standard of review. This means that the judge will defer to any reasonable opinion of the insurance company or plan. When the judge applies abuse of discretion standard of review, the insurance company can win the lawsuit even if you are disabled.


Discovery (depositions, interrogatories, - questions to be answered under oath-), requests for production of documents, in ERISA cases is generally limited, if permitted at all, to facts and circumstances regarding the plan fiduciary/insurance company's conflict of interest. Thus, such discovery will generally not involve you, your disability, or your medical condition. Instead, it will involve the insurance company, any the doctors who evaluated you or your records, and facts such as how often the doctors work for the insurance company, how much they are paid and how frequently they conclude that claimants are not disabled.


There commonly are one or more mediations or settlement conferences in a lawsuit. Judges encourage lawsuits to settle. Many cases settle. If we file suit for you, we will evaluate your case and prepare you to decide whether it is best for you to settle your case or fight it. The judge will require us to participate in settlement negotiations. But you - and only you - decide whether or not to settle your case.


If the case does not settle, each side usually files a motion and asks the court to grant judgment in its favor.


If the case is not otherwise decided or settled, the matter proceeds to trial. The judge decides the case - there is no jury. Usually the evidence presented is the administrative record plus, where appropriate, evidence regarding the nature and extent of the plan/insurance company's conflict of interest. If you win the trial, the judge will issue an order that your benefits be paid retroactively with interest and that your benefits be reinstated prospectively. You only get a lump sum payout of past benefits; you do not get a lump sum payout of future benefits. If you prevail at trial, a motion to request an award of attorney fees can be filed with the court.


Many cases are not finally resolved in the trial court. Frequently, the judgment is appealed to a federal circuit court of appeals. Internal appeals take time and work; lawsuits take time and work; if your lawsuit is unsuccessful and you lose, appeals to a circuit court or appeals takes time and more work. At ERISA Law Center, we are willing and able - and experienced - to fight your case as long as it takes.

Call an ERISA Lawyer at 855-837-5333

Let ERISA Law Center help you in your lawsuit for your disability claim. Our team is seasoned and skilled when it comes to ERISA lawsuits and appeals. Contact us today.