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When Should You Hire An Attorney? Long-Term Disability

Article written and provided by: Jeremy Bordelon, Esquire (Jeremy’s Profile)Jeremy Bordelon, Esq. Cascadia Law

Evergreen Disability Law

Portland, Oregon

Many times, people who get a disability insurance denial will not know what to do next.  Do you appeal on your own?  Hire an attorney now?  Hire one later?  Sometimes, the first thing they do is to contact their State’s Insurance Commissioner, asking for advice.  Unfortunately, the advice people get from those departments is not always good.  Sometimes it’s very, very bad. Consider this question I received from someone online:

“I have a group LTD plan with Standard. I have been on LTD for 12 months. I was notified last week that I am no longer eligible for coverage (despite restrictions and limitations assessed by two of my doctors!)  My state insurance commissioner said I could not use an attorney until after my appeal was denied and even then it would be difficult to find someone willing to take this kind of case.  He said with ERISA laws if I lost the appeal and wanted to pursue legal action that I would sue my employer NOT Standard.”

Thankfully, this person thought to ask a lawyer before following that advice!  Here was my answer:

Your insurance commissioner, or whoever you spoke to in his office, is wrong. Dead wrong. Dangerously, woefully wrong. About the only thing he was right about is that it can indeed be difficult to find an attorney to work on an ERISA LTD case. Those of us who do work on them have to be very picky about what cases we take, both medically and financially, because we typically charge a percentage of the person’s benefits, only if they win or settle.

A couple of things to know about ERISA – first, it’s a Federal law, and it trumps most State laws, so I suppose it’s not surprising that the State insurance commissioner doesn’t know much about it. I believe the proper defendant in your case probably WOULD be Standard. You live in Virginia, which is in the 4th Circuit’s jurisdiction (for Federal courts). Last I checked, the 4th Circuit had not made a clear pronouncement about who the proper defendant was in an ERISA case, but the lower courts within the 4th Circuit have followed the rule that the proper defendant is the entity which has responsibility for making decisions under the plan. For you that’s Standard, not your employer.

The other thing the commissioner was wrong about is when you should hire an attorney. Do it BEFORE the final denial. One of the other things about ERISA is that when these cases do go to court, they generally do so on a closed record. What I mean is that anything not submitted to Standard will probably be excluded from the court’s consideration. You will not get to testify. Your doctors will not get to testify. There will be no jury. It’s generally just Standard’s claim file, plus arguments from both sides’ attorneys, so if there’s any good evidence you want to use in the future, you have to make sure it’s in Standard’s claim file BEFORE the final denial, otherwise you may not be able to use it. That’s why you hire an attorney before the final denial – so he or she can help you build that record.

Find a competent employee benefits attorney who understands ERISA and get his or her help on your appeal. It may be difficult to find someone in your area, but you do not need to limit yourself to your local area. Because ERISA is a federal law, the rules don’t change much from place to place, and those of us who work on these cases can often do so from a distance. Also, because there isn’t a traditional trial if the case goes to court, attorneys have a little more leeway about where they can practically file the case. For example, I’m in Portland, Oregon.  I have had people hire me from all over the country, to work on cases with several different insurance companies, but when I get hired on a case involving Standard Insurance, no matter where the client lives, I can file those cases here in Portland, because that’s where Standard is headquartered!  The same goes for Unum – until recently, I practiced in Chattanooga, Tennessee, which is Unum’s headquarters.  A woman in Hawaii hired me to represent her, and I could have filed her court case there in Chattanooga. In most of these cases, there are two or three different options available for where to file the case, and you want to hire an attorney that can make the best choice for your case.

I encourage everyone to look around on the web, talk to people in the know, and find someone you’re comfortable with, no matter where their office is located. ERISA is too complicated to go it alone, and too specific to take the advice of those who don’t understand it (like your insurance commissioner, apparently).

–Jeremy Bordelon, Esquire

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