What Kind of Attorney do I Need?

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Things to consider when choosing a Disability Lawyer
WHY DO I NEED A LAWYER?

You may be encouraged by the insurance company to simply handle your claim by yourself. This is what they want, but may be very bad for you. For example, once you handle your own “administrative” appeal, your record, upon which further appeals in court are based, cannot be supplemented, even if necessary, because you did not know what information needed to be sent to the insurance company. You cannot add important information later. The file becomes frozen.

WHEN DO I NEED A LAWYER?
  • Search for a lawyer as soon as you realize you may be disabled.
WHAT KIND?
  • The lawyer must be experienced with disability claims and be familiar with “bad faith” recovery possibilities and be willing and able to commit plenty of time toward your case. Austin Mehr authored a published book on bad faith law, and frequently lectures other lawyers on the topic.
  • As long as the attorney has a detailed knowledge of ERISA law (Employee Retirement Income Security Act of 1974), he or she is capable of representing you. All Mehr Disability Law Group’s lawyers are familiar with ERISA.
GIVE THE LAWYER A TEST

Make sure the lawyer has handled cases in court. Ask her or him a few key questions like:

  • Are you familiar with the Safe Harbor provisions of ERISA?
  • How many prongs comprise the test? (Answer: 4). If the lawyer cannot answer this question, then they are not an experienced disability lawyer.
  • Ask if they have taken cases to the Federal Court of Appeals. If they haven’t, then they are lacking invaluable experience.
  • Ask “What does ERISA stand for?” (Answer: it is an acronym for the Employee Retirement Income Security Act.) If they miss this one, they lack knowledge about this specialized area.

 

FREE INFORMATION TO HELP FIGHT INSURANCE COMPANIES
  • If you win your case, it does not automatically mean that the insurance company will be required to pay the attorney’s fees. Many times the court awarded attorney’s fees is a much smaller amount than you will pay.
  • If you file a lawsuit, it is most likely that you will settle the case without going to trial. This can take up to 2 years, depending on how far along you are in the process when the case settles. If an agreement cannot be reached and the case goes to trial, it will most likely be more than a year before the case is decided.
  • Disabilities based on mental and nervous disorders may limit your benefits. For example, some plans cease benefits after 24 months whether your condition has improved or not. If you have become depressed as a result of a physical disability, you must make this clear so that the insurance company realizes the depression is a secondary- and not the primary- medical condition.
  • Prior to becoming disabled, your employer or your insurance company can modify your disability plan. The plan is a contract between your employer and your disability insurance company and they can make changes as they alone desire. Any changes they make to the plan after you have filed a claim, however, will not affect your claim. Your claim will always refer to the plan as it was at the time of your claim.
  • If the insurance company says that you have missed a deadline, all is not necessarily lost. There are many deadlines created by both the policy and the law. Sometimes these deadlines may not even apply to your particular case. It is possible that the insurance company is simply mistaken. The law may allow for a larger deadline. An ERISA lawyer should be able to look over all of these deadlines and determine if your case should continue or not.
  • Any appeal is very important. It forms the “record” upon which your entire case is built. You need someone very knowledgeable in ERISA law to give you guidance.
  • If you are denied from receiving disability payments from your employer, you may no longer be covered under their health insurance. This is a common reason to appeal a termination of benefits. Policies vary from employer to employer, however, so if you believe you may lose your health benefits, you should immediately contact a lawyer with knowledge of ERISA law. It is important that steps toward an appeal be made as soon as possible.
  • There are different definitions of disability:
    • “Own Occupation” disability means you are unable to perform the duties of your actual regular occupation due to illness or accident. This is the occupation you held at the time of becoming disabled; the insurance company will pay the claim if you are “own occupation” disabled. Often, after 24 months, the definition changes to benefit the insurance company.
    • “Any Occupation” disability is frequently the definition after you have been disabled for 24 months. That means you must prove that you cannot work at any occupation for which you are suited by education or training.
  • When you have disability insurance through your employer, many policies provide that your health and life insurance premiums be waived during a period of disability. If you are denied disability benefits, therefore, it can sometimes have a “snowball effect” when suddenly all of these premiums must be paid by you rather than the carrier. This is something to keep in mind when battling with a disability insurance company.
FEES
  • Lawyers are expensive. Most clients prefer a contingency fee arrangement. This means that your lawyer will not get paid unless your case is successfully resolved, either in settlement or trial. Naturally, this is often the best option for those who could not otherwise afford a lawyer, as you will not have to pay any fees until the case is resolved successfully. Hourly arrangements are also an option, but do require monthly payments.
  • There are also costs you may have to pay, other than attorney’s fees, such as costs for mediations, obtaining medical records, service of process, court filings, and compensation to doctors or other experts for their opinions. Your attorney should be able to give you an estimate and help you calculate the total amount you may have to pay.
DEFINITIONS
  • A “pre-existing condition” is a medical condition for which you have been treated at least three months prior to the date you began receiving insurance coverage.
  • “Medical Treatment” or “Medical Care” includes visits and consultations with your physicians as well as any prescription medications you may have taken.
  • “Own Occupation” disability means you are unable to perform the duties of your actual regular occupation due to illness or accident. This is the occupation you held at the time of becoming disabled; the insurance company will pay the claim if you are “own occupation” disabled. Often, after 24 months, the definition changes to benefit the insurance company.
  • “Any Occupation” disability is frequently the definition after you have been disabled for 24 months. That means you must prove that you cannot work at any occupation for which you are suited by education or training.
WHAT IS THIS “ERISA” LAW?
  • Most group disability insurance policies provided by employers fall under the federal law of the Employee Retirement Income Security Act of 1974, known commonly by its acronym, ERISA.
  • Originally, ERISA law was intended by Congress to ensure that pension plans were managed responsibly, so that employees would receive the benefits when they retired. They wanted to restrict high risk investment practices and increase the disclosure requirements of pension plans. The law was later interpreted to apply to health and disability insurance plans.
  • Unfortunately, the original purpose of ERISA law has been unfulfilled. It has reduced, rather than expanded, the legal protections available to policyholders. It left the door wide open to insurance companies who choose to handle claims with a, “When in doubt, deny the claim” attitude.
  • ERISA law replaces state laws that, in Kentucky and most states, can provide a higher level of protection to employees in situations where an insurance company unjustly denies benefits. Under state law, an employee has a right to a jury trial, and could receive damage awards in addition to the benefits due under their policy. Damages could be compensatory, punitive, and emotional distress. These things are not available if the ERISA law applies.
  • ERISA law does not apply to private disability insurance policies purchased directly by an individual from an insurance agent. It also specifically excludes policies where the employer is a church or a governmental entity. In special cases, it may not apply, if you paid all the premiums for your insurance through your employer.
  • ERISA law permits the plan administrator to decide if a claimant is disabled. You get to appeal, but claimants must exhaust the 180-day appeals process before they can file a lawsuit to obtain benefits. To make matters worse, the courts will usually assume that the plan administrator has made a reasonable decision unless it has acted in an “arbitrary or capricious” manner. ERISA law makes the insurance company’s decision carry a lot of weight.
  • It is not unusual for courts to uphold an ERISA plan administrator’s decision to deny benefits based on one opinion from a doctor or nurse chosen by the insurance company. This can happen even if the doctor or nurse is not a specialist, or is less qualified in that medical specialty than the patient’s own doctor.
  • In spite of these legal obstacles, those disabled from working can be protected under existing law. Benefits are being approved for many people every day. You can increase your odds of prevailing by hiring one of our lawyers to help.
    • Although originally intended to help people obtain benefits, the law has caused insurance companies to more often deny long-term disability benefits.
  • Under ERISA, insurance companies basically have free rein to decide whether to accept or deny disability claims. ERISA also protects the insurance companies from having to pay punitive or “punishment” damage awards to the insured person. Most lawyers believe the fear of being punished for wrongful denials help keep the playing field level.
  • ERISA does not give insurance companies much incentive to pay claims.
  • If you work for the government, ERISA does not apply on any level (federal, state or local). If you work for certain specified non-profit employers, such as churches and other religious institutions, ERISA may not apply.
  • ERISA policies generally expect you to cooperate. If you do not cooperate, the insurance company may use this as a basis for denying your benefits. Some forms are very confusing, so much so that one may wonder whether the confusion was intentional! There are specific definitions for different types of physical labor- sedentary, light, etc. If you are unsure as to whether a request made by your insurance company (to take tests or give interviews, etc.) is appropriate, it is best to consult a lawyer with knowledge of ERISA law before you can respond. It is not uncommon for the insurance company to put the insured under surveillance to determine which daily activities you can and cannot perform. If you believe you are under surveillance, it is a very good idea to contact a lawyer to see if your rights are being violated.
Can I sue for “Bad Faith”?

When ERISA law does not apply, you may sometimes file a lawsuit against your disability insurer alleging that their claim denial involved “bad faith” conduct. This means they violated the general duty to handle your claim with good faith (ERISA disability carriers have no such duty.)

Insurance companies have a legal obligation in Kentucky to act fairly and in good faith when evaluating claims from their policyholders. When a company violates that duty by engaging in unfair claim handling practices, they can be held liable for the amount of the claim as well as punitive damages and other damages. The insurance company must also fight the case under legal rules that are much less favorable than the ERISA law.

Any of the following have been deemed to be “bad faith” insurance claim practices:
KRS § 304.12-230 Unfair claims settlement practices

  1. Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;
  2. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
  3. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
  4. Refusing to pay claims without conducting a reasonable investigation based upon all available information;
  5. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;
  6. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;
  7. Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;
  8. Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;
  9. Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured;
  10. Making claims payments to insureds or beneficiaries not accompanied by statement setting forth the coverage under which the payments are being made;
  11. Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
  12. Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;
  13. Failing to promptly settle claims, where liability has become reasonably clear, under one (1) portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;
  14. Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; or
  15. Failing to comply with the decision of an independent review entity to provide coverage for a covered person as a result of an external review in accordance with KRS 304.17A-621, 304.17A-623, and 304.17A-625.

The attorneys at Mehr Disability Law Group have been leaders in shaping the laws that govern insurance companies. Austin Mehr has written a book on this subject, Bad Faith Insurance Law in Kentucky, has been appointed to a task force to study insurance and frequently consults with lobbyists.

Read the decisions of Kentucky Courts on bad faith handled by Mehr Disability Law Group:

Barnett v. Hamilton Mutual
Grange v. Trude
Hamilton Mutual v. Buttery
Johnson v. Kentucky Farm Bureau
Perrin v. Hartford
Shepherd v. UNUM
King v. Liberty Mutual
Hall v. MLS
Morton v. Standard Life (getting life insurance paid- verdict for client)

MEDICAL INFORMATION

• It is very important whether your medical doctor supports your disability. Before applying for disability, communicate with your doctor in detail so that he/she fully understands what you are requesting and why you believe you can no longer perform work.
• Understandably, some doctors grow tired of filling out long disability forms. Often, the doctor is paid nothing to do this and the insurance company will ask for monthly forms. If your doctor refuses to cooperate, you may want to consider getting a second opinion from another doctor who specializes in the field of your disability. Give the doctor the page of your policy that defines “disability” so your doctor can more accurately give their opinion about your disability.
• When you do attend your appointments with the medical doctor, you should get copies of your medical records on a regular basis. Check these records; if they appear to be incomplete or inaccurate, be sure and address these issues with your doctor. You want to be sure they reflect your medical condition as accurately as possible.

SOCIAL SECURITY DISABILITY INFORMATION

• If you apply for Social Security disability benefits (“SSDI”), as is required by many disability insurance plans, then your disability insurance may be affected. Any benefits you receive from Social Security will usually “offset” the liability of your insurance company. For every one dollar you receive from Social Security, you will receive one dollar less from your disability insurance company. Ironically, sometimes, a disability insurance company will not accept that a claimant is disabled, even if Social Security has declared them so.