Originally posted on https://www.longtermdisabilitylawyer.com/disability-attorney/

 

If you’re thinking about hiring a disability attorney or ERISA lawyer, understand that disability law differs significantly from personal injury law. A general practice attorney should not handle cases involving individual or group disability benefits. You wouldn’t hire a cardiologist or family practice doctor to perform brain surgery, so be very careful not to hire a lawyer who doesn’t focus on individual and long-term disability insurance to handle your valid disability claim.

In fact, disability insurance law is so complicated that few attorneys will find success in this specialized field if they take other types of cases. This especially is true when a complicated and continually evolving federal law, the Employee Retirement Income Security Act (ERISA), is involved. ERISA generally governs group and employer-sponsored disability insurance policies.

Whether you’re applying for individual or group disability benefits or your valid disability claim was wrongfully delayed or denied, here’s why you should consult an experienced disability lawyer or ERISA attorney who focuses exclusively on disability insurance cases.

 

 

What Is Disability Insurance and How Do I Get It?

Many clients come to disability attorneys or ERISA lawyers not knowing the particulars of disability insurance, or how they qualify for individual or group disability benefits.

Disability insurance is essentially income replacement insurance. If you suffer from a disabling illness or injury outside of work, your disability insurance should replace a percentage of your monthly income. Most individual and group long-term disability policies will provide these primary benefits, subject to the terms and limitations of the individual policy:

• Monthly payments to replace a portion of your salary or hourly wages
• Rehabilitation/return-to-work incentives, which may include financial incentives or benefits designed to help you get back to work sooner.

While many individual and group disability insurance companies make it “easy” to file a disability claim online, avoiding bad-faith delays or denials or maintaining your disability benefits over the long term is difficult. Hiring an experienced individual or long-term disability attorney early in the disability claims process can help you obtain maximum disability benefits. It may also streamline the disability insurance claims and payment process to protect your family from financial distress.

If you’re an employer, an ERISA lawyer or disability attorney can help you understand your group disability policy’s features, advantages, terms, and limitations, and how your employees can use their coverage should they suffer an illness or injury. If you’re struggling to get by due to a disabling injury or illness, an experienced disability lawyer or ERISA attorney can help you learn how you may successfully claim your individual or long-term disability benefits.

Types of Disability Insurance

If you’re suffering from a disabling injury or illness, we don’t want to burden you with the complexities of American disability law. The best solution is to consult an experienced disability lawyer or ERISA attorney.

It is important, however, to understand why you should secure representation from an experienced disability lawyer or ERISA insurance attorney, not a general practice, personal injury, or workers’ compensation attorney. By reading on about the basics of individual and group long-term disability law, you may learn more about this subject than many practicing attorneys know!

To hire the right disability lawyer or ERISA attorney, you need to know what kind of disability insurance you qualify for. This depends on your illness or injury, how it affects your occupation, your income level, and the state you work in.

Generally, the three main types of disability insurance include:

Federal Social Security Disability Insurance (SSDI) – You may qualify for SSDI benefits if you’re (1) totally disabled—that is, you can’t engage in any meaningful work; (2) you paid enough into SSDI; and (3) you have enough “work credits” based on your age. “Work credits” are the way the federal government determines if you’ve worked long enough to claim disability benefits.

For example, if you suffered a traumatic brain injury at age 35, you need to have paid into federal SSDI for at least five full years between the ages of 25 and 35. You also need to have made enough income during that period to qualify.

State disability insurance -A handful of states—California, Hawaii, New Jersey, New York, and Rhode Island—have passed unique state disability insurance requirements. Some states offer state-funded benefits, and others, like New York and Hawaii, make a certain level of employer-sponsored disability insurance mandatory. The disability laws passed in some of these states may differ from or contradict federal disability statutes or case law in the federal court circuit or jurisdiction where you live.

If your state offers disability insurance or mandates that employers provide it, you need an experienced disability attorney or ERISA attorney who understands employer-sponsored long-term disability insurance—and how your state law may interact or conflict with your group coverage. Insurance disability attorneys who focus on individual and long-term disability insurance law already know these legal pitfalls, and can help you avoid the fatal claim mistakes made by attorneys without extensive experience in disability insurance cases.

Private disability insurance – Federal and state-based disability insurance plans set high standards for claiming disability benefits. For this reason, the majority of Americans suffering from a disabling illness or injury must rely on private individual or employer-sponsored disability benefits.

If you’re wrongfully denied individual or long-term disability insurance benefits, some general practice attorneys may stop there and mistakenly file a breach of contract claim on your behalf. But did you know that ERISA prohibits you from bringing a breach of contract action against group disability insurers? Instead, you need to submit a comprehensive, timely, thorough administrative appeal before filing an ERISA complaint in federal court.

Social Security Disability Insurance

Although DarrasLaw does not file Social Security Disability Insurance (SSDI) cases, we receive many questions about it. Therefore we wanted to provide helpful information about SSDI, particularly its application and appeal process, for people who may need those benefits.

SSDI is a federal benefit, funded through payroll taxes, that provides monthly benefits to some disabled American workers. Applying for SSDI is a complicated and fact intensive process. Workers who attempt it on their own often make fatal claim mistakes that lead to a wrongful denial of their claim applications—and many attorneys don’t even know how to successfully apply.

The better choice is to consult a skilled Social Security Disability Insurance lawyer to help apply for benefits. An experienced SSDI attorney can also help workers who have received wrongful denials of valid claims appeal those decisions in the hope of reversing them.

Eligibility for Social Security Disability Insurance

Only certain disabled workers can qualify for Social Security Disability Insurance. According to the Social Security Administration, which (together with state-level agencies) administers the SSDI program, to qualify (1) you must have worked in a job covered by Social Security Disability Insurance; (2) you must have worked long enough and recently enough to have enough work credits to quality; and (3) you must have a disability as the Social Security Administration defines it.

Covered Job Requirement

Social Security Disability Insurance does not cover all jobs. For example, certain federal government employees, employees of railroads, state and local government employees, and children employed by their parents, are not covered by SSDI. Many people will know if they are covered by Social Security by whether they see a deduction for Social Security in their paychecks. If you are unsure whether your job is covered by SSDI, consult an experienced Social Security Disability Insurance lawyer.

Work Credit Requirement

People age 62 and older need a minimum of 40 work credits, at least 20 of which were earned during the past 10 years, to qualify for Social Security Disability Insurance. Younger workers can achieve eligibility with fewer credits. You earn a work credit by working and paying Social Security taxes. You can earn as many as four work credits per year, depending on how much money you earn in that year. According to the Social Security Administration, to earn the maximum of four credits in 2019, you will need to have at least $5,440 in covered earnings in that year.

Disability Requirement

To be eligible for Social Security Disability Insurance, you must also have a disability defined by federal law. According to the Social Security Administration, “the law defines disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

A “medically determinable… impairment” is one that “results from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques.”

Applying for Social Security Disability Insurance

To apply for Social Security Disability Insurance, you must present proper medical evidence to the Social Security Administration that you have satisfied each of the eligibility requirements above. Most of the compelling medical evidence and proof you supply will consist of documentation you gather and submit to the Administration. You must also submit a completed Social Security Disability Insurance benefits application.

Once you submit an application for Social Security Disability Insurance, the Social Security Administration reviews your claim application in a sequential evaluation process. This determines whether you meet each eligibility requirement. It consists of evaluating:

• Your work activity and history;
• The severity of your impairment(s);
• Whether your impairment(s) is included in the official listing of impairments “considered severe enough to prevent an individual from doing any gainful activity”;
• Whether you currently have the ability to reliably perform the important duties of your occupation; and
• Whether you currently have the ability to perform the duties of any occupation by which you are trained, educated or suited.

The Social Security Administration performs the first of these reviews. Your local State Disability Determination Service evaluates whether you are disabled and not otherwise disqualified from receiving Social Security Disability Insurance.

To succeed in a claim application for Social Security Disability Insurance benefits, applicants must provide thorough, detailed information. This often includes complete documentation of work history and the disabling medical condition(s).

Many applicants find it difficult to compile this information. They also often have difficulty explaining the nature and extent of their disability. As a result, the Social Security Administration may wrongfully deny their claim application for Social Security Disability Insurance benefits.

How a Social Security Disability Insurance Lawyer Can Help

A skilled Social Security Disability Insurance Lawyer can help you prepare a complete, thorough, well-documented claim application for SSDI. This can help maximize your chances of having your claim application for benefits approved, and of avoiding making mistakes that lead to a wrongful denial.

If you have applied for Social Security Disability Insurance benefits and the Social Security Administration has wrongfully denied your claim application, then a seasoned SSDI lawyer can help you timely appeal the decision.

• An appeal has four distinct levels of review.
• Reconsideration, in which the Social Security Administration essentially takes another look at your claim application;
• Administration hearing before an administrative law judge;
• Appeals council, at which a panel of judges review the decision of the administrative law judge; and
• Litigation in federal district court.

A Social Security Disability Insurance lawyer can provide invaluable help at each level of appeal. Applicants should avoid the temptation to go it alone. Appeals of wrongful denials of Social Security Disability Insurance benefits involve challenging legal, medical, occupational and factual complications. Most people who attempt to navigate the appeal process without the help of a Social Security Disability Insurance attorney will end up making fatal claim mistakes that can cost them the chance to receive much needed benefits.

Choosing a Social Security Disability Insurance Lawyer

To give yourself the best chance of receiving the Social Security Disability Insurance benefits you deserve, seek out an experienced SSDI attorney. Applying for and appealing the wrongful denial of Social Security Disability Insurance benefits with the help of a skilled attorney is the best option for obtaining the benefits you need as a disabled worker.

Disability Insurance Offsets

Disability attorneys and ERISA lawyers focus on private individual and group long-term disability insurance. Private disability insurance, however, still interacts with federal and state-based disability policies.

Because your disability insurance company is a for-profit corporation, it’s interested in paying out as little as possible. Your private individual or group disability insurance carrier may require you to apply for SSDI. Your private individual or group disability insurance company can then offset any disability benefits it has to pay you with any benefits you receive from SSDI.

For example, let’s say you qualify for $2,000 a month in group or private disability benefits, representing about 60 percent of your monthly income. If you are totally disabled and awarded $1,500 a month in federal disability benefits, your private or group insurance company will only pay you $500 a month after the elimination period.

Lawyers who do not specialize in disability insurance law often have difficulty with these policies. To maximize your individual or group long-term disability benefits and avoid detrimental wrongful delays and denials, consult a dedicated disability lawyer or ERISA attorney.

An Overview of Private Disability Insurance

Though determining the types of disability benefits you qualify for is confusing enough, private disability insurance is further divided into three categories:

Employer-sponsored disability insurance – Some states, such as New York and Hawaii, actually require all employers to cover their employees with off-the-job disability insurance. While you may need to share the cost of such plans, if you have a New York or Hawaii employer, you should have private employer-sponsored disability benefits.

Many employers in other states voluntarily provide disability insurance as part of an employee benefit package.

Generally, if you suffer from an injury or illness that prevents you from performing the essential duties of your current occupation, then you may qualify for long-term disability benefits under an employer-sponsored disability insurance plan.

Hiring a dedicated disability attorney or ERISA lawyer, however, is crucial because of the complex federal ERISA laws that apply to employer-sponsored disability plans. Your employer-sponsored policy also contains a plethora of exclusions, exceptions, cut-offs, and monthly reporting requirements. One poorly worded answer on a claim application can mean the difference between financial security for your family and an arbitrary and capricious denial of a valid group disability claim.

Group disability insurance – This is similar to employer-sponsored disability insurance, but is maintained through a professional or voluntary organization, such as a union. Group disability insurance policies are also governed by ERISA, which complicates your right to disability benefits. The main advantage of group-sponsored disability insurance is that it may travel with you between jobs, so long as you maintain your membership in the union. While employer-sponsored insurance only covers you while you’re employed in your current job, you may generally still keep your union disability benefits if you lose or change jobs.

Individual disability insurance – These policies are completely private, meaning you select the coverage from an agent or broker and pay for these disability benefits out of pocket. They are not provided through your employer or an organization. If your employer does not offer disability benefits or if you are self-employed, your disability policy is likely an individual plan. ERISA does not generally cover these disability insurance policies. That changes the entire legal landscape when it comes to litigating a bad-faith denial of disability benefits.

Experienced disability attorneys and ERISA lawyers will begin by analyzing the nature of your private individual or group disability policy. They will review the terms of your policy and help protect you from falling into the insurance company’s “traps.”

Policy Reasons That Individual and Group Disability Insurance Companies Use to Deny Valid Claims

Most clients wait to contact an ERISA attorney or disability lawyer until after their disability insurance company has wrongfully delayed or issued a bad-faith denial of benefits.

Don’t wait to consult an experienced disability lawyer or ERISA attorney. Consulting an experienced individual or group long-term ERISA lawyer or disability attorney early in the disability claims process can help prevent a wrongful delay or denial of disability benefits and, if applicable, protect your group administrative appeal and federal ERISA lawsuit.

Many wrongful denials are based on the terms of your policy and whether you have a qualifying disability under that policy. This is why you need a seasoned ERISA attorney or highly skilled disability lawyer.

Your individual or group long-term disability insurance company may have wrongfully delayed or denied your valid disability claim because your illness or injuries was:

• Self-inflicted – While this means “intentional”—that is, you disliked your job so much that you injured yourself to claim disability benefits—beneficiaries often misunderstand the term. If you cause a car accident, that’s not a self-inflicted injury.
• Pre-existing – Often, individual and group disability insurance companies will blur the legal definition with legal mumbo-jumbo to confuse the claimant.
  • If you have individual disability insurance, you may then file a lawsuit to overturn a wrongful denial of disability benefits.
  • If you have group disability insurance and your carrier denied your claim based on a pre-existing condition, you must to file a complete, legally sufficient administrative appeal. If you fail to do so by the strict and unforgiving deadline, you could lose your right to disability benefits, no matter the validity of your disability claim. Consult an experienced disability attorney or ERISA attorney as soon as you receive a wrongful denial of your valid claim.
• Excluded – Certain conditions that would otherwise meet the definition of a disability may still result in a denial of disability benefits. Individual and group disability insurance companies may exclude intentional acts. However, don’t take your insurance company’s word for it. Depending on the nature of your condition and the medical evidence you submitted, an experienced disability attorney or ERISA lawyer could make all the difference. Do not accept a wrongful denial of disability benefits until a disability lawyer or ERISA attorney reviews your case.
• Unproved – You can’t submit a successful application for disability benefits based on your own description of your illness or injury. A successful disability claim for an obvious illness or injury, such as a broken leg, still may require you to submit objective medical evidence. This means you must submit hospital records, treating physician reports and chart notes, and pharmacy records to qualify for individual or group disability benefits. Your individual or group long-term disability insurance company may require you to do this each month that you claim disability benefits.

Experienced individual and group long-term disability attorneys know how to fight each type of denial and what evidence you may need to prevail in your valid disability claim. Remember, your private disability insurance company is trying to make money, not pay it out to you. Insurance is a business, so disability insurance companies always look for ways to wrongfully delay, deny or reduce your disability benefits. Don’t accept a wrongful delay or bad-faith denial of disability benefits.

Medical Reasons That Individual and Group Disability Insurance Companies Use to Deny Valid Claims

Many wrongful denials are predicated on your medical condition and how you document it.

You can submit all of the medical evidence in the world proving you permanently injured your back, but if the insurance company claims it was a work-related injury or otherwise excluded from coverage, your ERISA attorney or disability lawyer will need to submit legally sufficient counter-arguments. Hiring an ERISA lawyer or disability attorney is crucial, because the reasons for your bad-faith denial don’t always make sense when you’re clearly injured and can’t work.

Your individual or group disability insurance company may base your denial on a failure to submit proper medical evidence or comply with insurance company requirements. Individual and group long-term disability insurance companies may require you to submit a monthly disability statement. They may also mandate that you attend so-called independent medical exams (IMEs) with insurance company-hired doctors. An insurance physician who may lack the proper specialization or training to evaluate your condition could declare you’ve sufficiently recovered or are no longer disabled after a cursory IME.

An experienced individual disability attorney or ERISA insurance lawyer will know how to question an insurance company doctor’s credentials to assess your disability. When appropriate or available, an experienced ERISA attorney or disability lawyer will also know how to challenge the results of an IME with evidence from your treating doctor and specialists, pharmacist, physical or occupational therapists, and mental health counselor or case manager.

Hiring a Disability Lawyer for a Claim With an Individual Disability Insurance Company

You were wrongfully denied disability benefits, but your insurance company has offered you the right to appeal. What does this mean? It depends on the type of plan that covers you.

If you have an individual disability plan—that is, one that you purchased and paid for yourself—you may face more traditional litigation that may not require an administrative appeal.

You can generally file a case in court for breach of contract for a wrongful denial of individual disability benefits. There, you can call witnesses on your behalf, such as friends, family, and your treating doctors. You can submit expert witness reports. Through the discovery process, you can demand evidence from the insurance company. You may then take all of this evidence to make your case before the judge and jury, and oftentimes ask for attorney fees and emotional distress along with punishment damage.

Hiring a Disability Insurance Lawyer for a Claim With a Group Disability Insurance Company

As mentioned above, a complex, constantly changing set of federal laws called the Employee Retirement Income Security Act (ERISA) generally governs group long-term disability policies. Many attorneys may believe that ERISA only covers retirement plans or pension issues. In reality, ERISA often covers a number of employee benefits, including employer and group long-term disability and life insurance plans.

ERISA cases are litigated in federal district court. The court’s interpretation and application of ERISA may differ depending on your judicial district, further complicating matters.

If you have an employer-sponsored or group disability policy, ERISA preempts the rights and remedies you would have under a pure individual disability policy. Some beneficiaries do not understand why they can’t just sue after a wrongful denial of disability benefits. In fact, many attorneys don’t understand how ERISA curtails a beneficiary’s rights. These attorneys may file cases that are easily dismissed under ERISA and preclude further litigation or appeals.

To understand why you should call an insurance attorney who focuses on ERISA and disability law in these cases, let’s take a look at the complicated disability claim denial process under ERISA.

How ERISA Governs Group Disability Claims Denials

Unlike with an individual disability policy, if you have long-term group disability insurance governed by ERISA, you must file an administrative appeal if:

• Your valid disability claim was wrongfully denied when you applied for your long-term group disability benefits
• Your insurance carrier cut off your disability benefits in an arbitrary or capricious manner

Your group disability insurer must inform you of your right to do so, but if they do not, immediately contact an ERISA attorney or disability lawyer.

The most important reason to consult an experienced ERISA attorney or disability lawyer before filing an administrative appeal: The evidence you submit during your administrative appeal affects your entire case. An incomplete record in your administrative appeal can result in the court upholding a wrongful denial of your disability benefits.

The record of your administrative appeal should contain all of the available medical evidence, chart notes, tests, pharmacy records, and adverse side effects from medication. Your administrative appeal should include expert witness reports from treating doctors, occupational therapists, vocational experts, and economists. You also must present all of the relevant legal arguments, insurance policy provisions that apply, ERISA statutes, and case law from your federal jurisdiction.

This may seem unnecessary to attorneys without ERISA experience, but failure to provide a complete record in your administrative appeal can constitute a fatal claim error. More importantly, ERISA also limits your federal lawsuit to the record in your administrative appeal and the underlying claim.

The judge cannot consider anything you don’t submit in your group administrative appeal. If you file a federal ERISA lawsuit, you do not have the right to a trial before a judge and jury. You may not call your treating doctors, friends, employer, coworkers, family members, or even expert witnesses to testify about your disability. You have no right to discovery, other than the administrative record. You may not cross-examine insurance company witnesses, because there is no trial. There are almost no exceptions to these limits.

An experienced disability attorney or ERISA lawyer will know what information needs to go into a complete, legally sufficient administrative appeal, and this can help position you for your federal ERISA lawsuit later.

Settlements in Disability Cases

The ERISA appeals process may seem daunting for beneficiaries, especially the length of time it takes. Although an ERISA attorney or disability lawyer can guide you through this, consulting an experienced disability attorney or ERISA lawyer doesn’t always result in automatic reinstatement of your disability benefits.

Good ERISA attorneys and disability lawyers fight not just for wrongfully delayed or denied individual and group disability benefits. They also listen to their clients’ needs. If you’re one of the millions of Americans living paycheck to paycheck, you don’t have a few years to wait for the approval or reinstatement of disability benefits. You need your disability benefits yesterday. Experienced disability lawyers and ERISA attorneys understand that need.

An experienced disability attorney or ERISA lawyer can act as counsel and file your case. That attorney can also work with you if you have both group and individual disability providers.

When appropriate, experienced disability attorneys or ERISA lawyers will review your policy and medical records and get experts on your side. Economic and medical experts may try to determine your future financial needs, then your disability lawyer or ERISA attorneys may present a settlement options to your insurer.

This might result in complete or partial reinstatement of your disability benefits or result in a lump-sum payout.

If it is clear from the evidence you will be entitled to years of disability benefits, your disability insurer may try to cut its losses by offering you a single, lump-sum settlement. Great disability attorneys or ERISA lawyers will fight for justifiable settlements for their clients. An experienced ERISA lawyer or disability attorney can also help you decide if a lump-sum settlement would offer the best deal for you and your family.

What Will Hiring a Disability Attorney or ERISA Lawyer Cost Me?

You’re out of work, and you were wrongfully denied disability benefits. Not to mention you probably are only receiving a fraction of your income, if anything. So how can you afford to consult a top disability attorney or ERISA lawyer? After all, many disability law firms will start charging you by the hour, especially in ERISA cases, just to look at your material.

Look instead for a disability litigation firm that offers completely free consultations and policy analysis, one that charges no upfront fees or costs, and that covers all litigation expenses. Furthermore, find a national, top-rated disability litigation firm that charges only a contingency fee (a percentage of your total recovery if you win your case)— including when dealing with complex ERISA cases.

The Protections of Hiring a Disability Lawyer

Another benefit of hiring a disability attorney or ERISA lawyer is the protection that it provides you. Once you retain an attorney, your insurance company needs to contact your attorney directly for any further documentation.

Your ERISA attorney or disability lawyer can collect and advise on filling out all of your forms, and knows the tricky questions to look for. An experienced disability attorney or ERISA lawyer also knows your rights under ERISA. For example, if your insurance company did not provide you with the right disclosure statements before your appeal, you may be entitled to re-appeal, and undertake another one with your ERISA attorney’s assistance.

Other Things to Look for in a Disability Attorney or ERISA Insurance Lawyer

We’ve consistently emphasized the need for an experienced, ERISA lawyer or top-rated, national disability attorney, but haven’t yet discussed what that means. Here are a few questions, the answers to which may help you select the best ERISA attorney or top disability lawyer for you:

• Does the lawyer or firm exclusively take individual or group disability and life insurance cases? Lawyers and firms that practice other areas of law may lack the experience or knowledge that comes from a singular focus on pursuing individual or group ERISA disability claims.
• How long has the attorney or firm practiced individual or group disability insurance law, and how many cases have they taken on? Generally, the more experience, the better.
• How much money has the lawyer or firm recovered for his or her disabled clients? This is perhaps the best metric of past success. A national disability litigation firm that has won hundreds of millions of dollars on behalf of its clients certainly has established a stronger track record than those new to the field.

Consult a Disability Attorney or ERISA Lawyer Today

Don’t let disability benefits that are rightfully yours and for which you dearly paid sit in the pockets of the insurance companies. Contact a disability lawyer or ERISA insurance attorney to discuss your case if you suffer from any disabling condition that prevents you from working in your current occupation, including:

• Back, neck, or thoracic issues
• Cancer, chemotherapy, or radiation
• Pregnancy complications, including postpartum depression
• Heart disease, diabetes, stroke, and COPD
• Depression, PTSD, dementia, and cognitive problems
• Fibromyalgia, chronic fatigue, and migraines
• Lyme disease and other tick-borne illnesses
• Lung diseases, including asthma
• Multiple sclerosis, rheumatoid arthritis, and lupus

No matter what stage of the disability insurance claims process you’re in, hiring a top-rated disability attorney or ERISA attorney can change the outcome of your case. Whether you’re hurt and need help to apply for disability benefits, were wrongfully delayed or denied your disability insurance benefits, or are seeking to litigate after an administrative group appeal, an experienced, national disability attorney or ERISA insurance lawyer should know how to help.