Frequently Asked Questions

Click on each question below to learn more.

  1. What is ERISA?

  2. How are ERISA cases decided?

  3. How do I know if my case is ERISA or non-ERISA?

  4. What is Short Term Disability?

  5. What is Long Term Disability?

  6. What is a Waiver of Premium?

  7. What is a pre-existing condition?

  8. What is a look-back period?

  9. What is a buy-up?

  10. How do I find out what kind of policy I have?

  11. What is a claim file?

  12. I was awarded social security, so this should be easy, right?

  13. Is the insurance company allowed to use a private investigator to watch me?

  14. The insurance company says they have video of me. Does this hurt my case?

  15. Can I sue the insurance company for what they’ve put me through?

  16. What is an “other income offset” and why are insurance companies allowed to do this?

  17. What are SSD Offsets and how are they calculated?

  18. Should I pay back my overpayment?

  19. Do I still have a claim if I go back to work?

  20. What if I returned to work because I feel better?

  21. What is a “closed period”?

  22. Can I file for unemployment while waiting for a decision on my claim?

  23. What if my doctors won’t fill out paperwork?

  24. Why should I use an attorney during the administrative process?

  25. Is this even worth pursuing?

  26. What is a mediation?

  27. Do I have to settle at mediation?

1. What is ERISA? ERISA is the Employee Retirement Income Security Act of 1974, a federal statute that governs employee benefit plans. The ERISA statute controls your remedies if it governs your case, so that a judge rather than a jury would hear your case, and affects admissible evidence in some cases so that the judge generally reviews the administrative record compiled by the administrator rather than taking evidence from witnesses.
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2. How are ERISA cases decided? If you receive a denial letter from an insurance company that says you have 180 days to appeal, there’s a good chance your case is governed by the ERISA statute unless you work for a government or church organization or purchased your policy privately instead of receiving it through your employment. It is a good idea to discuss your denial letter with a law firm which practices ERISA litigation before appealing the denial, because if the appeal is denied, all evidence in the ERISA can close at that point, and it is quite possible any attorney you consult after a final denial of your claim may have been able to do more for you if consulted while the appeal is still open. Once the appeal is denied, the case must be filed –generally in Federal Court, and heard by a Federal Judge employing a standard of review – meaning how the judge decides the case – which can either be a one-step process if the ERISA plan governing your case does not say the ERISA administrator has discretionary authority to decide whether you get the disability benefits, or a two-step process if the ERISA plan says the ERISA administrator has discretionary authority to decide whether you get the disability benefits. Step one is always whether the decision is wrong. In some states, the inquiry ends at that step. In Florida, where our firm practices, the inquiry can continue to step two when the insurer has discretionary authority, which means the Court can continue to decide whether the ERISA administrator’s wrong decision is not only wrong but also unreasonable.
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3. How do I know if my case is ERISA or non-ERISA? Generally, any dispute relating to an employee benefit plan is governed by ERISA unless the plan is a government or church plan (you work for a government or church employer). Non-ERISA plans are governed by state law. State law can often be more favorable for many cases.
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4. What is Short Term Disability? A plan or policy covering the initial period during which a person is disabled, generally from the last day worked to three months or six months.
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5. What is Long Term Disability? A plan or policy covering a longer period of disability after the initial three or six months from the last day worked (called the elimination period) which is often the same as the Short-Term Disability Period. A typical Long-Term Disability Plan might pay for 24 months for disability from the person’s own occupation, then to age 65 (or the Social Security Normal Retirement Age, if later) for disability from any occupation.
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6. What is a Waiver of Premium? Sometimes a Life Insurance policy (and some other policies) provides that the obligation to pay premiums is waived when a person is disabled. The insurance company might disagree as to whether the person meets this standard.
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7. What is a pre-existing condition? When a person obtains insurance coverage, particularly long-term disability insurance coverage, the insurer expects to receive premiums for a while before the person makes a claim under the policy. If a person makes a claim within a certain period after obtaining coverage (usually within the first year, but every policy is different and has its own language which governs pre-existing conditions) then the insurer will look to see if the person was treated for the same medical condition during a period called the “look-back period” immediately before obtaining the new coverage. A medical condition for which the person was treated may be excluded from coverage as a “pre-existing condition.” Generally, if the insured goes for a certain time without being treated for the condition, (often a year, sometimes longer) it ceases to be pre-existing.
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8. What is a look-back period? The period during which a person must not have been treated for a medical condition for which that person seeks disability benefits or other benefits under a new policy during the period immediately before the onset of coverage in order to avoid the medical condition being considered a pre-existing condition.
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9. What is a buy-up? An increase in coverage. If your employer provides a long-term disability benefit of 50% of earnings, and allows employees to increase their coverage to 60% of earnings by paying an additional premium, the increased premium for increased coverage is called a buy-up.
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10. How do I find out what kind of policy I have? The ERISA statute entitles employees whose employers create ERISA plans to obtain a free copy of their ERISA plan documents (which usually include a summary of the disability insurance policy) from their plan administrator upon request. For most larger corporations, the ERISA plan administrator is the national human resources department. You can usually obtain the address and fax number of your national human resources department from your local human resources department, which may also have copies of your ERISA plan documents. Smaller corporations generally either have the ERISA plan documents on hand at the local human resources department (which is generally the plan administrator) or order them from the insurance company (note: the insurance company is almost never the plan administrator, and thus generally has no legal obligation to provide you with ERISA plan documents. They might well do so upon request, but only the plan administrator is actually legally obligated to do so.) Send any request for plan documents by certified mail. A confirmed receipt may help support a later claim for statutory penalties in the event you correctly identify the plan administrator and they refuse to comply with your request.
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11. What is a claim file? A claim file is the group of documents an ERISA claims administrator (usually the insurance company, sometimes a third-party administrator) maintains with respect to the claim. It contains most of the evidence that a reviewing court will eventually see regarding any dispute in an ERISA case.
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12. I was awarded social security, so this should be easy, right? ERISA litigation is actually more challenging for the plaintiff (you) than social security litigation for a number of reasons.
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13. Is the insurance company allowed to use a private investigator to watch me? Probably. It depends on the laws of your state.
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14. The insurance company says they have video of me. Does this hurt my case? It could. Some surveillance video has nothing to report. Some does not demonstrate anything relevant to disability. Often it demonstrates very little about a disabled person’s ability to work. It can also be marginally damaging or more damaging depending on what the surveillance contains.
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15. Can I sue the insurance company for what they’ve put me through? Yes, if your case is governed by state law, and your state allows extra-contractual damages. No, if your case is governed by the ERISA statute. ERISA limits your remedies and generally does not permit what are called extra-contractual damages beyond actions for plan benefits, actions for clarification of plan benefits, actions for breach of fiduciary duty (which generally do not result in awards for the pain and suffering the ERISA fiduciary’s actions may cause you to encounter), and actions for attorneys fees and costs.
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16. What is an “other income offset” and why are insurance companies allowed to do this? All disability insurance contracts, being contracts, provide only the rights written in the contract. So if the disability insurance contract says the insurance company pays a certain percentage of what you used to earn less some other amount of money, like social security disability or worker’s compensation, the reason the insurance company may be able to deduct that from what it pays you is that the contract language says so, and all of the parties’ rights are created by the contract. The first place any reviewing court will look to determine the rights of the parties to a contract is the contract itself. Of course, that is not the end of the story. Some contracts are ambiguous – unclear and subject to more than one reasonable interpretation – and in that case, the court might decide differently than the insurance company. There are other rules of contract interpretation which might make a court decide differently than an insurance company.
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17. What are SSD Offsets and how are they calculated? To keep things simple, let’s say the contract says the insurance company pays a percentage of basic monthly earnings which results in a monthly long term disability benefit of Three Thousand Dollars. You then receive monthly Social Security Disability of Two Thousand Dollars. The policy says the insurance company is entitled to deduct Other Income Offsets, and SSD is listed as an Other Income Offset. Your net long-term disability benefit is One Thousand Dollars. The insurance company generally does not get credit for annual cost of living increases to SSD in most disability insurance policies.
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18. Should I pay back my overpayment? It depends. You should probably consult with an attorney on this question. For example, if the disability insurance company has stopped paying your benefits, you should definitely consult an attorney before paying the insurance company anything, because you may not owe them anything.
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19. Do I still have a claim if I go back to work? Possibly. It depends on the language of your policy. If it permits partial (sometimes called “residual”) disability benefits, you may be allowed to collect benefits even if you return to work. Also, some policies pay benefits for a limited period while disabled people return to work.
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20. What if I returned to work because I feel better? You may be entitled to a “closed period” of benefits for the period you were disabled.
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21. What is a “closed period”? A period of benefits due for the time you were disabled before returning to work.
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22. Can I file for unemployment while waiting for a decision on my claim? You can, but filing unemployment requires you to tell the state you are ready willing and able to work and requires you to seek employment every month as a condition of obtaining benefits. For example, it is possible you are disabled from a very demanding occupation and not disabled from some theoretical less demanding occupation. However, as a general rule, filing for unemployment points in the opposite direction of a disability insurance claim.
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23. What if my doctors won’t fill out paperwork? It depends why. If your doctors won’t fill out your paperwork because you aren’t disabled, then there isn’t much an attorney can do to help. Some otherwise fine doctors minimize their interaction with insurance companies in every way they can, including refusing to complete disability insurance paperwork. This can happen to people who are very much disabled. Under those circumstances, a seasoned disability insurance litigation firm can generally help.
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24. Why should I use an attorney during the administrative process? In an ERISA case, the administrative record is open during the appeal, which means the medical evidence can still be affected. Under most circumstances, the file will close if the ERISA administrator makes a final decision to deny the appeal (not in all cases, but in a high enough percentage to make it a risk not worth taking before you speak with an attorney). Unless you have experience with ERISA litigation or are a medical professional, building your own administrative record for an ERISA case which will close before you contact the attorney who will file the case in court is probably unwise when you can contact the attorney while the medical evidence can still be gathered.
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25. Is this even worth pursuing? Talk to a disability insurance attorney. If an attorney is willing to work on a contingency fee basis (for a percentage of what the attorney obtains for you) that can be interpreted as a sign of confidence that the attorney finds the case worth pursuing.
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26. What is a mediation? A settlement conference where you can resolve your case without the court ruling in favor of one of the parties. Some courts require mediation.
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27. Do I have to settle at mediation? As a general rule, you never have to settle your case. The decision to settle a case is a voluntary one you make in consultation with your attorney.
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