Omit ERISA Data At Your Peril

If you don’t put all of your eggs in one basket when filing an ERISA claim, you’ll most likely to wind up with “scrambled” rather than with your “sunny” side up.

Knowing that the insurance company is likely to deny your claim no matter how good you think it is, it is imperative that you present a full and complete story of your claim from the very beginning, leaving nothing to the imagination. There is little to no chance that you will be able to add to the record after a claim denial.

Why? Because the basic foundation of an ERISA claim is what is called the administrative record. This record is ordinarily composed of witness reports, medical and hospital reports, and medical and occupational evaluations and other written or pictorial evidence which is presented to the insurance company, and what the insurance company relies on in making its claim decision.

If you fail to provide a necessary piece of the case, the insurance company can’t and won’t consider it and it is likely a denial of claim will be upheld even if appealed to a Federal Court.

Obviously, an insurance examiner can’t weigh evidence you don’t provide. And the examiner’s decision can’t be faulted by a court if you didn’t provide the necessary data. If you have evidence that will support your claim – use it or lose it!

Despite omitting crucial evidence, a claimant caught a break in Acree v. Hartford, 2013 U.S. Dist. LEXIS 3687, because the Hartford so overreached in denying an ERISA accidental death and dismemberment claim, that the Court felt compelled to send it back and to allow the claimant to add evidence for that new review.

The issue was whether an insured died as a result of suicide or was accidentally killed while cleaning his gun. The final autopsy report listed the cause of death as “undetermined” although there was mention of suicide in the preliminary autopsy report and in the police incident report.

Naturally, Hartford grabbed on to the “suicide” reference and denied the claim, ignoring the final “undetermined” finding of the coroner. Death by suicide was not covered by the policy and Hartford could pay nothing to the unfortunate victim’s family.

There were pictures of the scene of death which showed that the deceased had beside him gun cleaning paraphernalia which would seem to clinch the theory that the shooting was an accident which happened while the gun was being cleaned.

However, the claimant failed to provide the photos when filing the claim. Therefore, even though the insurer was aware that there had been pictures taken, the picturtes were not provided for the record by claimant and were not considered.

Luckily for claimant, there is a negative presumption in Federal common law against suicide. Unless the evidence shows that the deceased likely committed suicide there is an affirmative presumption of accidental death. Ignoring this presumption weighed heavily in causing the Court to send the matter back for a de novo review and reopening the record thereby allowing the claimant to put the pictures of the scene of the accident into the record.

The importance of having a full and complete record before filing suit on an ERISA claim denial is clearly set forth by the Court at Page 5 of the opinion, when Judge Treadwell says:

 “In the Court’s experience, lawyers for ERISA claimants all too often do not appreciate the importance of getting all of their evidence in the administrative record,  Thus, it is not uncommon for ERISA claimants, when they get to court, to discover  they cannot use what they think is critical evidence.”


Your first step (the administrative appeal) in appealing an ERISA insurance denial is likely your last word. Make sure you’ve got it all and you’ve got it right!