Handling An ERISA Client That Walks Through the Door
The first thing we do when a client comes in with a potential ERISA case, is to make sure that the employer is not a governmental or church entity, which would make it non-ERISA.
We immediately (or as soon as possible) look at the date of the claim denial (or appeal denial) letter from the insurer to make certain that it is within the deadline by which a response is required. ERISA deadlines are strict, and if the client has blown the deadline by coming in late, there isn't much that can be done about it. The client's case is probably a non-starter.
We review the basis for denial in the claim or appeal denial letter and review the medical records to see if there has been an abuse of discretion on the part of the insurer in denying the claim or the appeal.
We also consider whether California Insurance Code § 10110.6, enacted in 2012 and made applicable to ERISA cases by Orzechowski v. Boeing Co. Non-Union LTD Plan, No. 14-55919, 856 F.3d 686 (9th Cir. 2017), modifies the standard of review from "abuse of discretion" to the more favorable "preponderance of the evidence." Section 10110.6 prohibits discretionary clauses that require deference to a plan administrator's decision.
We see how much time there is to try to "rehabilitate" the case (if necessary), and what the feasability of working with the treating doctors might be, to submit additional medical records, medical source statements, opinion letters, perform objective tests, or submit declarations that support the disability claim.
We review pertinent medical literature that supports the LTD claim. For example, in one of our clients, with chronic fatigue related to multiple sclerosis (MS), submitting peer-reviewed medical journal articles from authoritative sources was persuasive in overturning a long-term disability (LTD) denial. In that case, disability benefits were initially denied because our client's underlying MS was stable, while his subjective symptoms of fatigue were progressively getting worse. The medical literature we submitted documented that MS-related fatigue could get worse, even when the MS itself was stable.
If we decide to take the case, we give our client the option of a fee-for-service agreement or a contingent fee agreement (which most clients prefer), with a lien on any net recovery made or secured on behalf of the client.
We send a notice of representation to the insurer/claim administrator and to the employer/sponsor of the plan and request the medical file from the insurer/claim administrator and the plan documents (including the SPD) from the employer/sponsor.
We keep our relationship with our adversaries cordial, professional, and respectful, but we let them know we are competent, knowledgeable, and experienced ERISA attorneys, who will zealously represent our client's interests.
We keep our clients informed as to the status of their case, explain what's going on, and work hard to get them the disability benefits that they deserve.
ERISA law is complicated. At Law Med, we are ERISA knowledgeable and experienced.