How Can an ERISA Attorney Help You?

July 27, 2023 | J. Price McNamara
How Can an ERISA Attorney Help You?
How Can an ERISA Attorney Help You?

ERISA is a federal law that regulates employee benefits, such as a disability policy that your job provides you. The intent of the law does not always match the actual situation. If the law fully protected employee benefits and insurance companies made it easy for you to get your benefits, you will usually not need an ERISA attorney. The reality is entirely different. You often need an attorney to apply for benefits, and definitely need an ERISA lawyer to fight for you when your claim ends in a denial. An ERISA lawyer can help you at several phases of your claims process. You may want to consider hiring an attorney before filing a claim. Insurance companies will make the process as hard on you as possible simply because they can.

Insurance Companies Often Take Liberties When ERISA Governs a Claim

How Can an ERISA Attorney Help You?ERISA is an insurance-friendly law. The insurance company may use its usual tricks and tactics for other types of insurance claims. Still, there is an outer limit on what the insurance company can do without getting into trouble. The insurance company must know what can open it up to a bad-faith lawsuit. There is no such punishment for an insurance company under ERISA. The worst thing that can happen to an insurance company is that they will lose an appeal in federal court. Until recent rule changes, insurance companies never faced penalties for violations while processing claims.

An ERISA Attorney Can Help Prepare Your Claim

Accordingly, you must be as careful and thorough as you file your initial claim. The insurance company may deny a significant percentage of initial claims, but they do not reject everything. If you clearly show that you meet the policy's definition of disabled, you may still receive benefits. Thus, an ERISA attorney can help you prepare your initial claim to make the most persuasive case to the insurance company that you deserve benefits. They will look for any reason to deny your claim. To demonstrate your condition and your entitlement to disability benefits under the terms of your policy, your initial claim should include:
  • The medical records that show the extent of your condition and demonstrate that you are not suffering from a preexisting condition
  • A statement from your treating physician that describes your condition and physical limitations
  • A personal statement about what you are experiencing because of your physical illness or condition
  • Statements from others who see you regularly, such as family, friends, or coworkers
  • Vocational evidence that shows your job skills, employment history, and whether you can meet the requirements of your job with your disability (after some time, you will must to show that you cannot do any work, as opposed to just your job)
Your lawyer's work shaping and structuring your claim becomes even more critical when your injury is more subjective and does not necessarily appear on medical tests. You can get long-term disability benefits for conditions such as anxiety or depression, but these are among the more complex claims. The insurance company will almost always try to downplay and minimize your condition, making an ERISA attorney even more critical.

Your Attorney Would Communicate With the Insurance Company When Necessary

While your claim is pending, your ERISA attorney will guide and represent you. The insurance company may have questions, or they may request additional documentation. An attorney can communicate with the insurance company on your behalf. Ant conversation or communication with the insurance company is fraught with risk because they will use everything you say against you. In addition, you may need to attend an independent medical examination, where a supposedly independent doctor will examine you and present their conclusions to the insurance company. The insurance company pays the doctor and can charge thousands of dollars for an exam. In reality, the doctor often acts as a gatekeeper for the insurance company because they want to maintain a very profitable source of revenue. What you do and say at the independent medical examination is critical. An ERISA attorney will prepare you for the examination. They may even communicate with the insurance company to allow for audio or video recording of the examination, in case you need it for a future appeal.
Your ERISA attorney will also caution you about what not to do at your exam. Volunteering for additional information or convincing the doctor about your condition can be counterproductive and harm your claim. Your lawyer will give you detailed advice about how to handle the examination.

An Attorney Will Represent You in the Appeals Process

You may get an unwelcome surprise when you receive a letter from the insurance company telling you it denied your disability claim. You may have thought that your condition prevents you from working and that any rational person should agree. However, insurance companies are not known for being rational actors. They are known for pursuing profit at all costs, regardless of your condition. If you receive a claim denial, it is far from the end of the story. While ERISA gives the insurance company much power, the law does not give them the power of a federal judge. That is who will ultimately have the final say in your case, but first, the ERISA attorney will need to guide you through an appeals process.

Your Attorney Performs the Crucial Step of Preparing the Appeal File

The first thing that your ERISA lawyer will do is prepare the appeal file for the insurance company. The law allows the insurance company to have the first chance to review your claim, even though they were the ones who denied it in the first place. If you wonder whether you will get a fair shake at this point in the process, you probably already know the answer. Still, your lawyer will do everything possible to convince the insurance company why they made a mistake and why you deserve benefits. In most cases, this is easier said than done because it is not easy to persuade insurance companies - they need a forceful push to correct errors, especially claim denials. The insurance company should have explained why they denied the claim. They will be obligated to share the underlying materials that support their conclusion. The first thing that your lawyer will do after notifying the insurance company of your intention to appeal is study the underlying documentation. Your lawyer will then begin to prepare your file showing that you are disabled within the policy's language. They will spare no effort on your appeal file, even though you stand little chance of winning at this case stage. Even though the insurance company promises different reviewers, the result is usually preordained. Nonetheless, ERISA dictates that this is the only chance you will get to introduce evidence. If your appeal continues, you will not get an opportunity to build the record unless some minimal exceptions apply. You should not rely on this happening. Thus, your attorney will put much effort early in your case to assemble the strongest possible record.

Your ERISA Attorney Represents You in Federal Court

When you get the inevitable letter that tells you the insurance company denied your appeal, you will have to take your case to the next level. For you, that means federal district court. Your ERISA attorney will represent you in this proceeding. While the judge will look at your appeal with an unbiased set of eyes, the process differs from other federal cases. There will be no witnesses, and you will not get a chance to speak for yourself in court. Instead, the bulk of the proceeding will be the written briefs that your attorney and the insurance company's lawyer will write that describe their positions. In many cases, federal courts give some degree of deference to an insurance company's initial decision. The insurance company will show up to fight because your total benefits can surpass $1 million. Your lawyer must persuade the court that the insurance company made a mistake in denying your claim. They will argue the weight of the evidence supports your argument that you are disabled. If your appeal at the federal district court level is unsuccessful, your attorney will take your case to the next level. The ERISA attorney will file an appeal with the federal Court of Appeals, where they will write a new brief and potentially participate in oral arguments.

Your Lawyer May Negotiate a Settlement Agreement on Your Behalf

Your ERISA attorney may also negotiate a settlement with the insurance company. In some cases, they may evaluate their risk and decide that they have a chance of losing the case. They may settle the case with you for some of what you deserve. Your attorney will counsel you about whether a settlement is in your best interests and how to reach the best agreement effectively. You can be sure that the initial settlement offer will not come close to being fair or reasonable. Your attorney may negotiate for a long time to get the insurance company to raise their settlement offer. If you can reach a settlement, your lawyer will review the language of the actual agreement that the insurance company proposes. They may recommend changes and negotiate them with the insurance company as necessary.

Your Lawyer May Fight for You to Keep the Benefits that You Need

Even if the insurance company grants your initial claim for disability benefits, it does not mean you will get them forever. Insurance companies tighten their requirements after you receive benefits for a certain period. They will change the definition of disability at that time to keep you from receiving benefits if you can do any work. Your ERISA lawyer will fight to keep your benefits. When you get a letter from the insurance company informing you that you are to show up for an independent medical examination, it is a sign that you may be in for a fight. At that point, your lawyer will advise you on how to handle this exam. You must show up and participate if you want to keep your benefits, but you must also be very careful in what you say. Stripping you of your benefits is the same thing as denial as far as ERISA is concerned. You will follow the same process in your fight to keep your benefits. The first step will be to appeal the denial to the insurance company. Then, you will take your case to federal court if your insurance company's appeal is unsuccessful. Insurance companies will often fight these cases tooth and nail because losing means they may need to pay you benefits for what should have been the rest of your career.

You Can Afford an ERISA Lawyer

Given everything your attorney does and your precarious financial situation, you may wonder how you will afford an ERISA attorney. This worry should not keep you awake at night. An ERISA lawyer works for you on a contingency basis. You do not need to worry about coming up with the money needed to pay an attorney while your case is pending. You will not need to pay your lawyer if you do not win your case. You only pay your attorney if and when you win. The court may even order the insurance company to pay some or all of your legal costs if you need to sue them for your benefits.

Consult an ERISA Attorney Immediately

We all hope a disability or another insurance claim will go smoothly and result in benefits without much hassle. However, this is rarely the case, and ERISA makes appealing a denial much more challenging. You should never worry about the insurance claim process when you are already dealing with a disability and the challenges it brings. This is why ERISA claim attorneys are ready to represent you. Seek a free consultation and case assessment today.
J. Price McNamara Author Image

J. Price McNamara


Losing my own brother, then my father and sister after long, disabling illnesses just a few months apart drove a career change for me. Before that experience, I never truly understood the place you’re in. I never understood the dramatic impact that receiving (or not receiving) the disability and life insurance benefits you paid for and counted on can have on your life especially when you need to focus on family and healing. What I experienced with my own family now drives the way I view my clients and my work, and I will never forget it!

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