What if Claim Denied 1

Oh, well, if you are just not ready to contact a lawyer yet, I do have some pointers on what to do after the denial letter comes in. (Weasely lawyer disclaimer - this is general advice, not tailored to your particular situation, and you rely on it at your peril). By the way, here is the advice provided by the Department of Labor, in my own humble opinion it is not all that useful.

First, it would be a good idea if you had an understanding whether ERISA preempted your claim. The denial letter might refer to your rights under ERISA, but the claims handler who wrote it probably doesn’t understand all the fine points any better than most lawyers do. Whether the claim is governed by ERISA is important, as it will have an impact on what you do next. If ERISA applies, you will have to take advantage of the Plan’s appellate procedures, or else (maybe) lose your right to sue. If state law applies, going through the appellate procedures might do nothing more than allow the insurer to "paper" the denial with some worthless medical opinions by tame, in house, doctors.

A brief description of when a plan might be subject to ERISA is here. But unless your case is clear cut (for example, your employer (who is not a church or a governmental entity) purchased a group insurance policy, and pays at least some of the premiums), you should really talk to a lawyer.

Assuming that ERISA applies, as I noted above you certainly want to go through the appeal process referenced in the denial letter. By that I mean you should write the insurer (or other plan fiduciary) and tell it that you want to appeal, and provide them with all the evidence you can scrape together (more about that below) which supports your right to benefits. There are three reasons for this.

First, exhausting the appeal is a pre-requisite to a lawsuit. If you don’t appeal, you could conceivably lose your right to take legal action over the benefit denial.

Second, you might convince the insurance company or plan representative to pay the claim. Even the worst insurance company pays some claims, why not yours?

Third, and most important, is what will happen after your ERISA claim goes to court. In most jurisdictions, the "trial" of an ERISA claim is based on the "Administrative Record", which is a fancy name for the insurance company’s file on your claim. This will include your claim form, any other information you or your doctors have sent the insurance company, and any documents created by the insurance company (like phone memos, in-house doctor reports and the like). So, if your claim is a disability claim, for example, when the trial occurs you won’t be able to testify why you are entitled to benefits, and you won’t be able to call your physician to testify as to how sick you are. Rather, the Judge (not a jury) will decide the case solely on the file that the insurance company had when it decided your case. (With some important exceptions, which are beyond the scope of this primer).

So, this "appeal" is your sole remaining chance to provide all the evidence that you will want the Judge to see in making the determination whether you are entitled to benefits. So, don’t blow this chance.



			What If My Claim Is Denied
			What If My Claim Is Denied


		So what do I do if my claim is denied? You should talk to a lawyer. Preferably, because ERISA is technical and, in some cases counter-intuitive, you should talk to a lawyer who has worked in that field before. You can e-mail me (find our more about me on my web site, http://Petti-Legal.com) or call a lawyer you trust to get a good referral.





	Go Ahead, you should probably be talking to a lawyer.

Oh, well, if you are just not ready to contact a lawyer yet, I do have some pointers on what to do after the denial letter comes in. (Weasely lawyer disclaimer - this is general advice, not tailored to your particular situation, and you rely on it at your peril). By the way, here is the advice provided by the Department of Labor, in my own humble opinion it is not all that useful. First, it would be a good idea if you had an understanding whether ERISA preempted your claim. The denial letter might refer to your rights under ERISA, but the claims handler who wrote it probably doesn’t understand all the fine points any better than most lawyers do. Whether the claim is governed by ERISA is important, as it will have an impact on what you do next. If ERISA applies, you will have to take advantage of the Plan’s appellate procedures, or else (maybe) lose your right to sue. If state law applies, going through the appellate procedures might do nothing more than allow the insurer to "paper" the denial with some worthless medical opinions by tame, in house, doctors. A brief description of when a plan might be subject to ERISA is here. But unless your case is clear cut (for example, your employer (who is not a church or a governmental entity) purchased a group insurance policy, and pays at least some of the premiums), you should really talk to a lawyer. Assuming that ERISA applies, as I noted above you certainly want to go through the appeal process referenced in the denial letter. By that I mean you should write the insurer (or other plan fiduciary) and tell it that you want to appeal, and provide them with all the evidence you can scrape together (more about that below) which supports your right to benefits. There are three reasons for this. First, exhausting the appeal is a pre-requisite to a lawsuit. If you don’t appeal, you could conceivably lose your right to take legal action over the benefit denial. Second, you might convince the insurance company or plan representative to pay the claim. Even the worst insurance company pays some claims, why not yours? Third, and most important, is what will happen after your ERISA claim goes to court. In most jurisdictions, the "trial" of an ERISA claim is based on the "Administrative Record", which is a fancy name for the insurance company’s file on your claim. This will include your claim form, any other information you or your doctors have sent the insurance company, and any documents created by the insurance company (like phone memos, in-house doctor reports and the like). So, if your claim is a disability claim, for example, when the trial occurs you won’t be able to testify why you are entitled to benefits, and you won’t be able to call your physician to testify as to how sick you are. Rather, the Judge (not a jury) will decide the case solely on the file that the insurance company had when it decided your case. (With some important exceptions, which are beyond the scope of this primer). So, this "appeal" is your sole remaining chance to provide all the evidence that you will want the Judge to see in making the determination whether you are entitled to benefits. So, don’t blow this chance.