Erisa Disability Questions

[jsdwd]

I saw a mention of private insurance and ERISA in another post and thought I'd comment.

ERISA (The Employment Retirement Security Act) was originally written to protect employees retirement funds from abuse by employers and union management. It became law in 1974.

Since that time it has been subverted by insurance companies to cover employee health, life and disability insurance plans under the guise of 'defined benefits plan coverage'.

It is a nasty business for consumers or claimants (Plaintiffs). Since it is a federal law, plans covered under ERISA are not subject to state insurance regulation. Most regulation of insurance is at the state level and ERISA plans are exempt. They operate at the federal level where there is (essentially) no regulation of insurance companies other than that written into the law itself (minimal protection for claimants). Suits brought against insurers at the state level are specifically pre-empted by ERISA and years can spent arranging a suit, getting discovery done and getting a court date only to have it all thrown out because of this pre-emption. Naturally, insurance companies love it. As a general rule something the insurance company likes is not good for the insured. Their primary goal is to avoid paying claims at all and, if they are forced to pay them, to delay the payment as long as possible.

If you have a dispute with an insurance company the first thing you need to find out is whether the plan is an ERISA plan or not. If it is, you need legal representation that specializes in ERISA based issues. A regular insurance lawyer (who handles auto or workmen's comp. cases, for example) won't give you good representation.

I have been down this path and it is a rocky road indeed. Getting proper (ERISA knowledgeable) legal help right away is a must. You must begin building what is called an "adminsitrative records". Watch out for Google searches on ERISA. Much of what is written is published by attorneys who represent employers in ERISA matters and it is biased. A couple of sites are:

http://www.californiainsurancelawyerblog.com/ (NOTE - I have no relationship with any of the sites I am listing) I am listing these not to endorse them, but because they have a lot of links. If you doubt the good faith of the insurance industry, you should. See:

http://www.washingtonpost.com/wp-dyn/conte...2401636_pf.html (I have a .pdf of this article if the link is taken down).

This site has good info and links: http://www.bostonerisalaw.com/archives/cat...-to-settle.html

Good information here (note importance of 'administrative record'): http://law.freeadvice.com/insurance_law/di...erisa-claim.htm

A private lawyer sites, but with good general description:

http://www.bryant-cantorna.com/erisa.html

http://www.kantorlaw.net/Areas_of_Practice/ERISA_Claims.aspx

Like the VA Disability process and the Social Security Disability process, the best weapon you have to arm yourself with is information. ERISA is complicated and beyond the lay person's ability to figure it out. There is voluminous case law. Get help, but make sure the help you get is knowledgeable. A lot of lawyers don't take ERISA cases because attorney fees are not (as a general rule) awarded in addition to the claim. In fact, the there are also no punitive damages (no penalty for abusing and lying to claimants). Thus, the most a claimant can get is what he or she would have gotten had the insurer paid the claim in the first place. So out of the box, the claimant is at best going to get 60 cents on a dollar and in most cases, they end up with half of that.

I told you the insurance companies love it.

If you are covered under an ERISA plan watch out! It is so bad that the little pamphlet you get describing your coverage doesn't even have to accurate. Your actual coverage is covered by a long plan that the insurance company will go to any length to keep you from seeing.

[jsdwd]

An excellent video from the Foster Law Firm explaining ERISA in simple and understandable terms can be found at www.erisaexperience.com.

I can state from personal experience that Rob Hoskins is an excellent ERISA attorney.

I watched the video and it seems reasonable. I tried to avoid endorsing specific lawyers. Many are available, but it is important that the lawyer you choose be specifically schooled in the ERISA case law as Mr. Hoskins seems to be. The whole area is very legalistic and complicated. The insurance companies like that because it discourages claimants from going after them. They have dozens of lawyers who do nothing but write contracts that virtually no one can understand. Then the hide behind them.

[blackbird]

It's no joke if you file a claim. You have re-establish your disability almost every year and you have to pay for it. You can sue them but need a lawyer who is on to their tricks and familiar with the (complicated) case law.

There are good ones out there. My lawyer (CA) was excellent.

You're right, they will cut your disability off after two years almost 100% of the time. You can however sue and win, I did! It took about a year to reach a settlement, didn't have to go to court. You must get a lawyer that specializes is ERISA cases. In my case I was an exempt employee, the lawyer proved that the attending neurosurgeon's statements were disregarded by the insurance company and their decision to stop my disability was totaly arbitrary. Proving that they made an"arbitrary" decision in dening your disability is a way to win. I settled for twice what I would have got had they continued to pay me originally from one of the major insurance companies. One thing that encouraged me was the personel mgr discreetly told me that I had been done wrong, then she recommended the attorney I should use. A truly caring person!

[vaf]

I watched the video and it seems reasonable. I tried to avoid endorsing specific lawyers. Many are available, but it is important that the lawyer you choose be specifically schooled in the ERISA case law as Mr. Hoskins seems to be. The whole area is very legalistic and complicated. The insurance companies like that because it discourages claimants from going after them. They have dozens of lawyers who do nothing but write contracts that virtually no one can understand. Then the hide behind them.

We found in my husband's case that the evidence we accumulated over the years for his VA disability claims came in handy as documentation for his short-term and long-term disability claims, as well as for his Social Security disability claim. It kept us from having to recreate the wheel.

Regarding recommending attorneys, we only speak from personal experience. I don't have a horse in this race, other than a desire to help anyone interested in my opinion avoid the grief of securing an attorney who in the end provides subpar representation -- and we know they're out there...

[jsdwd]

We found in my husband's case that the evidence we accumulated over the years for his VA disability claims came in handy as documentation for his short-term and long-term disability claims, as well as for his Social Security disability claim. It kept us from having to recreate the wheel.

Regarding recommending attorneys, we only speak from personal experience. I don't have a horse in this race, other than a desire to help anyone interested in my opinion avoid the grief of securing an attorney who in the end provides subpar representation -- and we know they're out there...

I don't doubt that Hoskins is good. The lawyer I used was also excellent, so the good news is there are good guys out there. I am in CA so used a CA atty., Ron Dean, but I'm sure both could recommend other good attorneys that might be nearer to home for some.

You raise an excellent point. The ERISA paperwork process is very demanding and would provide a good starting point for VA or SS claim. I am on SS disability now and the medical records I accumulated were used for both application.