WIE Season 2: How To Hire An Attorney For Your ERISA Long-Term Disability Claim

Welcome to another episode of Winning Isn't Easy with your host Nationwide ERISA Disability Attorney Nancy L. Cavey! On this weeks episode we will be talking about How To Hire An Attorney For Your ERISA Long-Term Disability Claim!

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Transcript

Nationwide ERISA Attorney Nancy L. Cavey: 0:15

Hey, I'm Nancy Cavey, national ERISA and Individual Disability Attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. This podcast isn't legal advice. The Florida Bar Association says I have to say this, so I've said it, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. If you're on disability or applying for disability insurance benefits, there's a lot of things that you need to know. First and foremost, I think you need to know how to hire a lawyer. Knowing what to look for in a competent disability attorney can be, uh, important for you to understand, and it can be difficult to find a lawyer who specializes in ERISA disability and individual disability law. So I'm gonna walk you through, uh, the process of finding the right disability attorney for you. I think it's crucial that you have a disability attorney from the get-go. I know that some people don't think they need a lawyer, don't wanna pay a lawyer. Um, think they can do it like they slept at the Holiday Inn last night. Uh, it doesn't work this way. This is a highly specialized area of the law, and a simple mistake can doom and even destroy your disability claim. So what I'm gonna talk about today is number one, what lawyers who masquerade as ERISA disability attorneys will tell you about your claim. The 21 telltale signs that an attorney dabbles in ERISA two, well answer the question I get all the time, and that is, should I hire an attorney that lives in my state or a national law firm to handle my irisa disability claim? And I'm gonna give you a checklist for hiring the right lawyer for you and your case. So let's take a break for a moment before we get started with this week's episode.

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Nationwide ERISA Attorney Nancy L. Cavey: 2:38

Welcome back to Winning Isn't Easy, ready to Get Started. What Lawyers Who Masquerade as ERISA Disability Attorneys will tell you about your claim and the 21 telltale signs that an attorney dabbles in ERISA and isn't a specialist. Now, I bet you were stunned when you got a denial or termination letter from the disability carrier telling you too bad. So said, we're not gonna pay your disability benefits. We're not gonna pay these disability benefits anymore. I bet you read that letter over and over and you saw all sorts of errors in the denial letter that made you see red. There's probably steam coming out of your ears. You realized based on the terms of the denial letter, that you have to file an appeal and you have to do so in 180 days. What you probably don't understand is that the appeal is the trial of your ERISA disability claim. You have to present medical evidence, vocational evidence, lay evidence that supports your claim, and to do so, you need to understand the terms of the policy. You also need to understand what the carrier has on you. That's the basis of the denial so that you can formulate a winning appeal letter. Now, my appeal letters are 25 to 65 pages long, and I quite frankly don't think that a disability claimant should be preparing their own denial letter and a letter that simply says, I appeal is the wrong thing to do. So let's talk about going about finding an ERISA attorney. I'm sure that you have asked family, friends or even your attorney friends to handle a, a, you know, a disability claim. Who, who would you go to? You might have gotten recommendations for a personal injury attorney or a family law attorney or a Social security attorney, or even your cousin Vinny, all of whom who said they handle an ERISA claim. The reality is they don't handle ERISA claims. I don't do personal injury work. I don't do family law. I don't do criminal law. I do ERISA disability and individual disability law. That's my specialty. And I will tell you that there's only a small fraternity of experienced ERISA disability attorneys in the United States and everyone else is masquerading. How can you tell? Number one, they ask you what ERISA is. Were they saying I've gotta research the ERISA law? Two, they don't ask to see the denial letter three. They don't ask to see the summary plan description, uh, or the actual plan or policy. Number four, they can't explain to you the denial letter. Number five, they can't explain the strategy to address the denial. Letter six, they tell you that they've never handled a case with that type of medical problem or problems You have seven. They can't explain the appeal process and they can't explain the evidence that needs to be developed. Eight, they insist that they will hold your best evidence for a trial. Guess what? There is no trial in an ERISA case. Your appeal is your trial and you can't add things after the appeal process is ended. Number nine, they can't explain their fee. At each stage of a case number 10, they'll tell you they'll only write the appeal for a large flat fee. Number 11, they'll tell you they don't litigate ERISA disability claims after the appeal process is exhausted. Number 12, they tell you they haven't dealt with your disability insurance carrier. Number 13, they tell you they've never heard of the liar for hire. Peer review, doctor, that your disability carrier used to deny your claim. 14. They tell you, we're not gonna take the statement of your doctor as part of the appeal. Number 15, they tell you they won't take your statement or that of a family member or friends as part of the appeal. Number 16, they tell you that they won't get a functional capacity evaluation or a, uh, cardiac, uh, chronological pulmonary function test a c PET test as part of the appeal. Number 17, they tell you they won't get a vocational report as part of the appeal. 18. They tell you we're not gonna get our own independent medical evaluation as part of the appeal. 19, they tell you that your social security disability case doesn't matter. Um, 20, did they tell you that your social security decision is all that you need to win your case? And 21, they tell you that they win every case when you're talking to an attorney about hiring them to represent you and your disability claim. If they say any one of those 21 things, hang up politely and go on to the next attorney. Better yet, contact my office. Let's take a break. Welcome back to Winning Isn't Easy. Should I hire an ERISA disability attorney that lives in my state or should I hire a national law firm to handle my ERISA disability insurance claim? The Employee Retirement Income Security Act, ERISA is a federal law that controls employee benefit plans that offer group health, life and disability insurance. Now, if your disability insurance benefits are delayed, denied or terminated, you can't bring a lawsuit in state court. Any claim that you try to bring in state court will be removed by the insurance company to federal court. That means it's gonna be transferred from state court to federal court. Now, I will tell you that the average personal injury, social security, or family lawyer or criminal lawyer knows nothing about the ERISA law. They didn't learn about this in law school. And in fact, most law schools don't even have classes about erisa and they have worse yet little to no federal court experience. ERISA law and the IR regulations that enact, uh, the ERISA law are highly complex. Very few lawyers have the experience or expertise to handle an ERISA claim during the application process, the appeal process or the litigation phase. You don't have to hire a lawyer in your own town or your own state. You just need to find an experienced ERISA attorney that gets it, gets your disability carrier, gets your medical condition and gets your case. Now, you need to remember that federal circuit law is going to govern your case. There is no state law that's particularly going to be applicable to your case unless this is an individual disability claim. And if that's the case, you've got a state law breach of contract case. Since most benefits are offered by employers, it's gonna be covered under the ERISA statute with the exception of a claim that you might have by virtue of your employment with a municipality or with a church, uh, based organization. What you need to understand is that there are 12 federal circuits, the their 11 circuits, and then there's the DC circuit. Each circuit has their own approach to handling an ERISA appeal. And that is, um, important for you to understand. And as a result of that, most lawyers who you talk to don't understand the applicable standard of review or federal law that's applicable to an ERISA disability case. I'm one of those lawyers who practices across the United States. While I'm based in Florida, I handle cases across the United States, uh, and I'm familiar with and keep up with all of the case law in each circuit. So in my view, you don't have to have a local lawyer, and you should be talking to a lawyer who understands the ERISA law across the United States and in particular, uh, how your disability carrier handles cases because it doesn't really matter what circuit, for example, uh, your case might be. And if it's a Unum case, um, Unum handles these claims pretty similarly regardless, uh, across the United States. What they do ha do, however, is take advantage of the applicable federal circuit law to create reasons to deny the claim, to justify the denial, uh, and engage in certain tactics in each circuit. So what's important, as I've said, is a lawyer that understands not only the disability carrier, your medical condition, but the circuit law, uh, regarding, uh, the standard of review and how federal courts review these types of cases. Got it? All right, let's take a break.

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Nationwide ERISA Attorney Nancy L. Cavey: 12:03

Welcome back to Winning Isn't Easy. I'm gonna talk about a checklist that you can use for hiring a lawyer. Now, I think that you need to make sure that any attorney that you ultimately hire in your ERISA disability case fits these criteria before hiring them to represent you in your ERISA disability case. And this could be at the application stage, the appeal stage, or the litigation stage. So what are my view the characteristics of a great ERISA disability lawyer? I think that there are nine key criteria that should be used when evaluating a lawyer. Now, each of these criteria are important, um, and I know that researching this can be consuming, but I think you need to find the right lawyer to represent you and your disability claim. It would be worth your time investment of your time to do a little bit of homework. And personally, I wouldn't compromise in any of these areas if I needed an ERISA disability attorney. So number one, you wanna know what is their number of years of practicing law experience counts. Would you let a first year medical student perform your heart surgery? The same, I think, applies to a lawyer. It usually takes years of handling cases and negotiating with insurance companies before an attorney starts to learn and to fully understand the industry's strategy and tactics. By the time the attorney has usually handled a lot of cases and has had exposure to different kinds of illnesses, they will have learned also the legal issues and strategies employed by disability insurance carriers. I think it takes years of experience of learning how to deal with disability insurance claims and experience with ERISA disability law. I don't think you want a young lawyer who's just at a law school, uh, unless that is a young attorney who has been working with an experienced ERISA disability attorney who is being supervised by an experienced ERISA disability attorney. Now, many large firms have a hands-off, uh, approach that allows a young associate to gain experience by handling things themselves. Um, that's not how I certainly do things in my law firm. You want a lawyer who is going to be primarily working on your case to have the experience, uh, and not some old fart, if you will partner who only is gonna review the file a few times if that. Number two, you want an attorney that specializes in disability. There are many attorneys who represent CL clients in divorce matters, civil, uh, litigation, personal injury cases, real estate, criminal defense, you name it. They don't do ERISA disability work. And you need to be working with an attorney whose practice is devoted to disability litigation, uh, long-term disability work, ERISA disability work, and even social security disability work. So long as that Social security attorney also specializes in ERISA disability and I d i disability work, these areas of law, uh, ERISA and I d i individual disability policies are just too complex for a part-time lawyer who dabbles in Arista. You have to take the time to learn this law, experience it firsthand working with clients. You've gotta learn how to negotiate with client, uh, the disability carriers. You've gotta learn how to write appeals, gather the medical vocational issue, and write winning appeal letters. Now, the specialist is gonna typically subscribe to legal publications in their field of practice. They're gonna devote time to mastering and perfecting the skills. It's just not sufficient for an attorney who tried a personal injury case to hold themselves out as a long-term disability attorney because they just don't get what needs to be, uh, proven. And they certainly don't understand the subtleties and nuances, uh, in an erisa a long-term disability case. Again, would you hire a medical school student or a general surgeon to do your heart surgery? I think you'd probably choose the heart surgeon. And the same is true here. You want a specialist. All lawyers do not have the same training because many, uh, schools don't even offer ERISA disability litigation classes. So it's not something they're necessarily gonna learn in law school. They will learn based on experience. Number three, wins a trial. Now this may sound strange, but in my view, trial experience doesn't necessarily matter since there are no trials in ERISA litigation. You should pick attorneys who have good results, but we have to define what a good result is in the context of an ERISA case. A win can be very difficult in an ERISA dis case because one, there is no trial. But more importantly, in an ERISA case, there is a standard of review called arbitrary and capricious. Now, I wish that it was exactly what it sounds like, arbitrary and capricious. What's important here is that the attorney needs to understand the burden of proof that you have and the difficulties overcoming an arbitrary and capricious standard of review. What's ultimately important is a well-reasoned appeal and creating a record that gives the judge potentially a reason to award benefits. But you need to know that there are extremely limited rights in taking depositions in an ERISA case. Some lawyers don't even understand that they think they're going to be able to take the deposition of the adjuster. And while maybe they can, there's some significant limits on the kinds of questions that can be asked of an adjuster. And you have to ultimately be skilled in, um, taking a deposition. Part of taking a deposition is, uh, preparation. And again, most lawyers aren't gonna devote the necessary time to understand records. Sometimes these records are six and 7,000 pages long. Um, and I find that many lawyers, particularly young lawyers, get very flustered in taking a deposition and questioning an expert, particularly in an individual disability, uh, case can take a very high skill and finesse level that attorneys just don't have. I think that there's also something intangible that good attorneys have. It might be charisma, it might be charm personality or presence. Most good trial lawyers have that intangible to help them communicate and build credibility with opposing counsel and the judge. Now this is important, particularly in the context of an ERISA case because there, as I've said, there is no trial. You're not gonna appear in front of the judge and present evidence unless this is an individual disability policy that's been removed to federal court. Most ERISA cases, if they aren't resolved, settle, uh, I'm sorry, are decided ultimately by a judge based on a motion for summary judgment. So writing skills are really crucial. Now, I think it's also important that you, uh, um, understand that here in Florida you won't see much information about past cases, uh, in websites or advertisements other than, you know, I got a million dollar billboard in a personal injury type lawsuit. That doesn't mean that lawyers aren't good lawyers, that's just a form of advertising. The Florida bar specifically prohibits a lawyer from giving out specific information or making, um, claims about the results that they can achieve. So you need to understand that they're also ethical rules on what a lawyer can put on their website and what they can say, um, on a billboard. Four similar cases. Look, I know that there are lots of medical conditions that prevent people from working. And although the circumstances of every case are different, you wanna make sure that the attorney has handled cases similar to yours. So if you have Parkinson's, for example, you wanna make sure that you are talking with a lawyer who has experience in handling Parkinson's disease, long-term disability cases. It's sort of like finding a doctor who subs specializes, um, like a, a plastic surgeon who might subspecialize in doing, um, uh, cosmetic noses, uh, nose jobs, if you will. Um, five, the quality of the website contact. Now, I hope that you've had an opportunity to look at my website and I think it's a fairly comprehensive site and, and unique, uh, based on the approach that I've taken in regard to talking about different, different insurance companies, different medical conditions, and the educational, uh, material that's on my website. Many websites though, seem to be nothing more than electronic business cards, uh, or, um, you know, have, uh, popups that will say fill out this form and really don't give you a lot of information. I think as a matter of ethics, um, and good common sense that a lawyer's goal should be educating you on the rights that you have in an ERISA case. Uh, information about the disability carrier that you're dealing with, your medical condition so that you understand the games that are being played in ERISA disability cases and understand the strategy that the particular lawyer is gonna undertake to overcome this. Um, claims denial. So I think informational books, articles, videos, blogs, and even a podcast are really tell tale signs of a caring attorney and one who is experienced. Number six, published author, frequent speaker. Now, you know, for decades, colleges and universities only hired professors who are knowledgeable enough to publish articles in texts. Um, these days it seems to be more about football. But in any event, um, I think that an attorney who has written articles who is invited to share their knowledge of ERISA with support groups, um, has been asked to speak at organizations including legal conferences, is demonstrating not only a recognized skill, but an openness to share their knowledge. It's all a matter of public service. It tells me that the lawyer is credible and that the lawyer's knowledge and skills are in demand. Ask if the attorney has any written information about consumer books that explain your disability rights. After all, this is an educational process so you understand, again, your rights, your responsibilities, you understand what it takes to formulate winning appeal letters and your expectations are set properly. Number seven, a good listener, perhaps more than any other type of law. I think ERISA demands that you have an attorney who's a good listener without good listening skills, the lawyer cannot fully understand your case and the impact that they have on your life and your ability to work. But the listening is only part of these communication skills because ERISA is such a complex area of law, I think it's crucial that an attorney explained to you the not so wonderful world of erisa. So you understand in particular your policy or plan provisions. You understand how disability carriers go about playing games with claims. You understand what it takes to formulate an appeal. You agree with a lawyer on the strategy to undertake this particular appeal, and the methods that are going to be used to obtain the necessary medical vocational and lay evidence to submit this appeal. And that you're talking with the attorney about, uh, ultimately the value of the case if the case isn't reinstated. And what happens in the litigation stage, the communication involves not only listening, but explaining, educating, answering questions. Number seven, I'm sorry, number eight, a great support staff. Now, paralegals and legal assistants do a great deal to help attorneys such as myself manage these claims during certain stages of a claim, is not uncommon for, uh, the client to have more contact with other members of the legal team than they do with their lawyer. Um, and I will tell you if the staff is overworked and they don't enjoy their work environment, they don't like their boss, um, they're not gonna work well as a team and it can have a negative impact on your case. So if from day one you don't know the names and contact information of every member of your team, then that might be a problem. Now, as I've said, during certain stages, um, you may not be communicating as much with your lawyer and that's not, um, you know, that's not a knock on the lawyer because there are many times when I'm writing an appeal letter, as I said, there are 25 to 65 pages long, I kinda lock myself in a room and I write it out and I write it out and I rewrite it out. If I take a phone call and I don't take unscheduled phone calls, um, I lose my train of thought and I have to sort of get it all back again. I want to get the flow of the case going in my head and on paper there are times, for example, when I'm in depositions, we're preparing for depositions. For example, tomorrow I'm gonna be preparing one of my clients for a deposition. That deposition will only be seven hours long, but we're going to be spending several days getting my client ready for the deposition. So when I'm engaged in litigation, for example, you may be talking more to my uh, paralegal or associate attorney, but that doesn't mean I don't know what's going on. And it certainly doesn't mean that when I'm popping my head back up out of the uh, uh, the, the, uh, um, the waters, if you will, that I'm not there to to speak with you. You just need to understand again, this is a complex area of the law, which requires extreme concentration and dedication. Number nine, what every long-term disability and ERISA attorney should be doing in a case. I think that the best legal advice comes before you file a claim so you can fully understand your policy, the benefits that you're be entitled to, how to successfully prepare your claim and what you can expect in the claim and litigation process. Now I think that there are a number of things that the attorney should be telling you that they're doing and in fact should be doing. So as part of my initial case evaluation and claims handling, I think that a lawyer should be doing the following, one, obtain an review, the actual claims filed from your disability insurance company. Now that can take about 30 to 60 days to get, but it's a wealth of information. And now you know the real basis and the hidden reasons why the disability carrier has denied your claim. In my appeal letters, I sometimes point out 15 to 20 reasons why the appeal, uh, should be overturned and I may have only seen three or four of those in the actual denial letter. So number two, obtain and review the insurance policy plan and summary plan description cuz there can be differences between the two, which can impact the applicable standard of review. Obviously. Number three, we wanna be obtaining and reviewing any updated medical records that haven't been provided to the disability insurance carrier. The fourth thing is to closely read the definitions in the policy and to also understand if necessary, how the court in your, uh, particular circuit have interpreted the terms of this particular policy or dealt with this similar language in cases before it, I always number five, outline the insurance company's claim notes, which again reveal not only the players, but often hidden reasons, which are the basis of the denial. Now, number six, the attorney can repair, prepare a report for you that outlines the strengths or weaknesses of the claim and propose a course of action. Um, and I normally do that quite frankly from the beginning. Uh, and I will have conversations with my clients as we move along to supplement this so you understand why the carrier really denied the claim. What steps are going to be taken to write that winning appeal letter, uh, or an appeal letter that will be considered by the court. Um, so everybody's kind of on the same page. Now, I think number seven is key. I think that you have to agree to this course of action because when I'm handling a claim, there are many times what I am gonna ask my client to maybe get a functional capacity evaluation or a medical evaluation or see a vocational, uh, rehabilitation counselor. I am going to be obtaining the necessary medical reports. Um, we're gonna be taking your statement and that of family or friends as a case is appropriate. Um, we may even prepare a video of your job or daily activities or other relevant EV evidence. So it obviously takes a team approach and a coordinated approach to gather, uh, this evidence for the appeal. Number eight, handle your social security case. Now, I know that there are some Eris disability firms that do not do social security work. I think that's a bad idea because as a Social Security disability attorney and an ERISA disability attorney, I am coordinating the development and filing of evidence of both cases. My strategies are consistent, um, and are designed to maximize your benefits. Many times social security lawyers simply don't understand the ramifications of what they're doing in the social security case and how it can adversely impact your ERISA case. For example, many ERISA policies will have mental nervous condition limitations that just pay benefits for two years, or subjective medical condition limitations that pay benefits for just two years. The, uh, the Social Security attorney does not understand what impact developing the wrong evidence can have, not only on your social security case, but on your ERISA disability case. So I think that you should be represented by an attorney who handles both Social security and ERISA disability work. Number nine, that attorney's gotta be careful with deadlines. Um, we've got 180 days in which to appeal. Uh, the disability carrier has 2 45 day, uh, periods in which to render a decision. And if they don't render a decision timely or reserve the right to, um, consider additional evidence under the eissa regulations, we can go into court early. Um, so we want to, if possible, change that standard of review from a deno, from a, I'm sorry, a uh, arbitrary and capricious standard to a de novo standard of review. So keeping track of deadlines is really crucial in an ERIS appeal. Now, number 10, if your benefits are awarded or reinstated, determine the correct amount of your benefits. Many policies require, uh, an offset for social security benefits and that may include that of your dependent benefits. They screw that up all the time. So we always check these calculations. Number 11, the attorney should be preparing a post acceptance report regarding future disability issues that can arise. Number 12, if your appeal is denied, prepare and file a complaint with the appropriate court. Engage in all the appropriate discovery, prepare for and attend mediations, prepare and attend conferences with the court. Uh, prepare motions for summary judgment, uh, and when appropriate, certainly in an individual disability, uh, file, prepare for a jury trial. These are things that an experienced ERISA disability attorney should be doing in concert with you, uh, to make sure that you understand your disability policy, how to get your benefits, how to deal with a wrongful denial or termination, how the the uh, appeal process works, your involvement in the appeal process, your approval of what's gonna be happening, um, and if the claim is, uh, is accepted, making sure you're getting paid benefits and talking with you about a strategy for keeping you on claim. And then lastly, if your claim is denied, uh, and your appeal is denied dealing with the litigation issues in your case, it's not an easy area of law. It's one that's very complex. And quite frankly, most attorneys do not understand ERISA disability, nor are they willing to take the time to understand it and develop a winning appeal or develop the evidence that can, uh, result in a favorable settlement. I hope that you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please consider liking our page, leaving a review, and sharing it with your friends and family. Please subscribe to this podcast that way you'll be notified every time there is a new episode. I hope you tune in next week to another episode of Winning Isn't Easy. Thanks.