Portland Long Term Disability Lawyer
Posted on behalf of Rizk Law on Sep 19, 2018 in Consumer Alerts
Resolving your disability appeal with a private insurer is our main focus. Disability Insurance Plans which are provided by your employer are governed under a Federal Law known as ERISA (The Employee Retirement and Income Security Act). Generally speaking, disability plans not provided by an employer are not subject to ERISA and are litigated in State Court. Richard Rizk is fully licensed in Federal Court as well as the State of Oregon.
Please Note: We do not handle social security or workers compensation disability claims.
Your long term disability denial arrived. Now what?
#1: Request the Claim File, Policy and Plan
If your long term disability policy was provided by your employer, then a federal law known as ERISA applies to your case. Although ERISA is generally known as pro-insurer law, ERISA contains at least one pro-claimant provision: ERISA requires long term disability insurers to provide you with a complete copy of its entire claim file FOR FREE.
So, before you request an appeal, fax and email your insurer requesting a complete copy of your long term disability claim file. Appeals are based on the claim file record. Thus it is crucial to get positive medical evidence in the claim file before perfecting an appeal. In order to know what should be added to the claim file, you need to know what is already there.
A request for your long term disability claim file might read: “Please now send a complete copy of your claims file, the policy and plan. I will later notify when I intend to appeal.” I reserve all rights under any potentially applicable coverage under the long term and short term disability policies issued.” Send directly to the long term disability insurer listing the claim number and assigned claims examiner.
#2: Request your Entire Personnel File
If your claim is in the “own occupation” period you will need to prove you cannot perform the material duties of your own occupation. Your personnel file may contain detailed information concerning what your job involves. The file may also provide hints to your employers’ true motivations. It sometimes takes employers some time to comply with your request, so do not delay. Make sure the request is in writing.
#3: The Initial Appeal
Thus, a good appeal will cite medical evidence tracking the policy and plan’s appeal standard of disability. Under ERISA you will have 180 days to send your written appeal and supporting medical evidence. (READ DENIAL AND POLICY). Since you probably won’t be able to testify, consider submitting a video explanation filmed by a significant other with the appeal. The disability plan administrator has 45 days to respond, with a one-time extension of another 45 days. First extensions are typically allowed.
#4 A Second Denial
If your ERISA long term disability appeal is denied, your second appeal is to Federal District Court. Some insurers consider settlement at this stage; most do not unless an attorney pressures them to do so. To obtain an acceptable settlement, you must be willing to file a lawsuit in federal court. Many insurers are not motivated to consider a settlement unless convinced that a suit is imminent. Most claims examiners do not have global settlement authority anyway. Half the battle is finding an insurer representative with authority to settle.
Richard Rizk is an attorney based out of Portland Oregon. His firm represents persons who have been denied long term disability benefits. He can be reached at email@example.com or through his website: rizklaw.com / phone: 503.245.5677.
Whether or not ERISA applies is important because:
- Punitive Damages (damages to punish) are generally unavailable under ERISA;
- Damages beyond what is set out in the contract (“extra-contractual damages” are generally unavailable under ERISA;
- ERISA claims are heard by Federal Judges (as opposed to Jurors) who are often un-sympathetic to claims of disabled persons;
- ERISA’s strict procedure and timelines for filing and appealing denials applies to employer provided disability plans.
- If the plan administrator is not given discretionary authority to determine plan eligibility, Judicial Review of an ERISA determination is narrow. In that case, the court must defer to administrative findings if “any reasonable basis” supports the administrative conclusion. On the other hand, if the plan does give the administrator such authority, the court will not give deference to the administrator’s eligibility decision and will decide that question on its own.
Your outcome could likely depend on whether or not:
- ERISA applies
- A narrow or broad standard of review applies
Contact Richard Rizk today at 503-245-5677 to help get your claim on the right track.
ERISA Regulates Insurers by:
- Prohibiting claims procedures that “Unduly hampers initiation or processing of a claim”;
- Requiring claimant notification of an adverse decision within 45 days;
- Requiring a written denial setting out:
- Specific Reasons for denial;
- Specific Plan Provisions justifying denial;
- Describing additional information needed to perfect claim; and,
- Describing specific criterion relied on;
ERISA Appeal Procedures:
All ERISA plans must establish and maintain an appeal procedure which:
- Allows claimant 60 days after denial receipt to appeal;
- Provides an opportunity for claimant to submit comments, documents and records;
- Provides claimant with copies of all relevant records at no charge; and,
- Takes into account all information submitted;
Retaliation for pursuing an ERISA claim. In other words, legally you can’t be fired for pursuing your rights under ERISA.
Attorney Fees Under Erisa
Attorney fees may be allowed to either party involved in an ERISA dispute. To determine whether attorney fees are allowed under ERISA, a judge will consider:
- The degree of bad faith;
- The ability of opposing party to satisfy the award;
- Any deterrence effect;
- Whether all plan beneficiaries will benefit;
- Whether a significant legal question will be resolved; and,
- The merits of each position.
Richard Rizk has both defended and pursued bad faith claims. He knows insurer’s fears and common mistakes. Don’t be in the dark.
Put Richard Rizk’s claims experience to work for you. He resolves many disability claims without ever filing a lawsuit!
Call 503.245.5677 today as time limits apply to presenting and appealing ERISA (as well as non-ERISA disability claims).