ERISA Claims Appeals: What Are Your Chances Of Winning?
When you’ve been denied ERISA (Employee Retirement Income Security Act) benefits and are thinking about appealing your denial, it’s helpful to know your chances of winning and whether or not you need to hire an attorney. While there are no magic formulas, Ron Dean, a California attorney who has been practicing ERISA law for over 35 years, provided us with answers to some common questions about the process.
Answers to common ERISA appeals questions
Dean knows first hand that magic formulas don’t exist when it comes to prevailing in ERISA claims. In a recent interview, he provided us with answers to the following questions about winning a case and whether or not you should hire an attorney to represent you:
Question: What are my chances of winning?
Answer: Let me answer it this way. If your treating doctor is on your side and willing to take time to explain your case to the insurance company, your chances are pretty good. If your treating doctor is not on your side or does not believe you’re disabled, your chances are lousy.
Question: Do claimants often “shop around” for a doctor who will agree that they’re disabled?
Answer: Yes, and doctors are born to disagree with each other. Some doctors won’t consider you disabled unless all you can do is sell pencils on the street corner. Other doctors take a more realistic view. We’re all different from each other. That’s all there is to it.
Question: Do I need an attorney?
Answer: Obviously an experienced attorney can do it better than the individual because an attorney is trained in these things and does it all the time. At the same time, you’re going to have to pay an attorney to do it. You’re paying the attorney to do a better job on the appeal than you could do yourself. Is that worth the money? Usually it is, because if you’re denied and you haven’t introduced the right evidence, not many lawyers will take your case to court. So unless you feel highly qualified to do this, I would recommend getting an attorney at the final appeal stage.
Question: Can a claimant also collect attorneys’ fees?
Answer: Yes. Some cases are easier than others, though. However, even if you do collect them, attorneys’ fees are awarded by the court on an hourly basis, not on a risk based basis. So if you’ve hired the attorney on a contingency basis, all of your fees are not going to be awarded to you.
Question: How are attorneys compensated in this area?
Answer: Most attorneys work either on an hourly basis or a contingency fee basis. On a contingency fee basis, you only pay the attorney if you win, but the amount you pay the attorney is greater because the attorney is taking part of the risk of the case losing. As a general rule of thumb, if an attorney is not willing to take a case on a contingency fee basis, then that would usually indicate that the attorney doesn’t think much of the risk of the case and maybe you don’t want to pay that attorney on an hourly basis.
If you’ve been denied valid benefits under ERISA, consult with an experienced ERISA attorney to discuss your situation and evaluate your options. Consultations are free, without obligation and strictly confidential.