No Brothers-In-Law In ERISA

Many people have lawyers in their family. Maybe your brother-in-law? But, if you have an ERISA disability claim, it is not for your lawyer brother-in-law to handle just because he’s related to you. Many lawyers know little more about ERISA than do the people they undertake to represent.

What such representation may lead to was made clear in Riley v. Metropolitan Life Insurance Company,WL 814742 C.A.1 (2014), recently decided in Massachusetts.

Mr. Riley worked for Metlife in a managerial position when he was stricken by chronic pain in his back, neck and some joints. He applied for and received STD, but was denied LTD.

The following year, he was able to resume working, but in a non-managerial position. He earned substantially less than he had previously. About a year later, Mr. Riley’s pain returned and he stopped working again. This time he received both STD and LTD. But, his LTD benefit left him only $50/month of his MetLife benefit after it took its offset for a Social Security benefit he was receiving.

He tried to argue that his ERISA benefit should have been based upon his managerial salary of $80,000 when he was first stricken not his substantially lower salary after he returned to work. If this had been the case, Mr. Riley would have received a monthly benefit of about $1400 from Metlife, not $50.

It seems obvious that his then legal counsel was unaware, as so many attorneys are, that ERISA is a law unto itself. His attorneys started suit in State court in February, 2007, alleging violation of a Massachusetts statute! They did not realize that ERISA, a Federal statute, preempts state law. Jurisdiction lies only in Federal District Courts. So, his case was dismissed.

In 2011, at Mr. Riley’s urging, his then attorneys filed again, but in the Federal District Court. Their filing did not conform to the rules of that Federal District (each has their own) and the pleading was not served properly. Again the suit was dismissed on motion in January, 2012.

By March, 2012, claimant Riley had retained counsel knowledgeable in ERISA who filed a proper complaint, except for one thing – it was filed after the 6-year statute of limitations had run and was dismissed for that reason.

This is a prime example of what can happen when a lawyer representing an ERISA claimant has no idea of what ERISA is all about and doesn’t invest the time and effort to learn even the basics.

There is no way of knowing if Mr. Riley’s claim could have been successful because he never had his day in court. His original attorney didn’t seem to know enough ERISA fundamentals to get him there.

If Mr. Riley’s second round of pain was caused by the condition that caused his first round, he stood a reasonable chance of establishing that his actual date of disability was the earlier STD claim and therefore his benefit should have been based on his first salary and not his lesser second one.

We live in a world of specialization, and ERISA lawyers are specialists in the arcane world that is ERISA. Because the stakes can be so high, it is critical to get advice and guidance from someone who knows the ropes so that you don’t learn about ERISA the hard way.


In ERISA, Go It Alone At Your Peril

Every night, before going to bed, every disability insurance company executive prays for each ERISA claimant to go it “alone” without a lawyer, in filing a disability claim. This is especially so if the claim is based upon a mental or nervous condition.

Why? Three reasons. First, the prosecution of such a claim requires knowledge of a highly technical law which is sometimes counterintuitive to common sense. What you might expect is not what necessarily what you get with ERISA. Secondly, because insurance companies have developed, down through the years, an arsenal of strategies which surprise the uninitiated and can sink an ERISA claim before it even gets started. Thirdly, because such claimants may be impaired by their mental condition, they are even more vulnerable than most to the rigid, technical requirements of pursuing an ERISA claim.

Some people seem to have an intuitive dislike for dealing with an attorney. Likewise, some attorneys give good cause for people to have such feelings. But, at bottom, people hate to pay attorney fees unless they think they are getting a real benefit. Insurance companies know and encourage this feeling so that ERISA claimants will often go it alone into an area of law filled with land mines and booby traps.

The ERISA statute, 29 USC, Sec. 1001, et seq., has been around since 1974. It has developed an encyclopedia of decisions, some very technical, interpreting the meaning of the statute in those 40 years. Insurance companies have followed these decisions religiously, most times as a party to the litigation which produced the decision. On the other hand, you, the claimant, are likely to be totally unfamiliar with ERISA, or the way courts have interpreted and applied it.

Add to this mix that an ERISA disability involves a person who can’t work, is sick or injured, is probably under severe financial pressure -- and you can see that the cards are stacked in favor of the insurer. Plus, if the disability is psychiatric, this may add a new dimension to the person’s ability to withstand the rigors of making such a claim.

If the claim is based on a psychiatric condition, a lawyer should have experience with this type of issue. Not only are the medical questions different, requiring specialized knowledge of these types of illnesses, but the relationship of client to attorney also may require a special “touch” to be effective.

Some people think an ERISA claim is similar to a Social Security disability claim. Not so. The fundamental difference is in who decides the claim.

In Social Security, it is an impartial judge whose job it is to weigh the evidence and then come to an impartial decision. The judge has no axe to grind.

In ERISA, it is a plan administrator who is employed by or closely affiliated with the same insurance company which has been fighting your claim all the way and will have to pay the claim if the decision favors you. The difference is obvious.

When you have an ERISA claim you have to decide how to pursue it. You can decide to go it alone and take your chances that without the requisite knowledge you’ll be able to work your way through. Or, you can retain a lawyer who has the experience necessary to help you work your way through. When you make the decision, give some thought to the stakes involved and avoid being penny wise and pound foolish.

It’s your call.








Stay Awake In ERISA

There is no way an ERISA claimant can ease up on the pressure while pursuing an LTD claim, hoping that matters will take care of themselves. Despite setbacks and claim denials, the claimant must be certain to meet all time constraints required by the terms of ERISA plan documents, insurance policies and rules and regulations.

This overriding importance of claimant conduct was reemphasized in the recent case of Engleson v. Unum,2013 WL 3336741 CA 6 (Ohio) (NO. 21-4049), in which a disability case with a long history was finally dismissed because the plaintiff failed to file an appeal within the 3-year period permitted in his ERISA plan.

Despite having filed two denial appeals in 2001 with Unum, Mr. Engleson’s claim remained dormant until 2008 when he felt his condition became so severe that he refiled for LTD benefits. He wanted the Court to consider his claim as an appeal of the prior denials which Unum issued in 2001, declaring that benefits had been wrongfully denied at that time. He further alleged that he was not given a full and fair review of his claim in 2001.

The District Court dismissed his suit holding that the 3-year contractual limitation had expired and he could not bring such a suit.

On appeal Mr, Engleson claimed he was entitled a ruling that the contractual limit should be tolled under Cigna v. Amara, 131 S. Ct. 1866 (2011), but the appellate court disagreed, finding no facts upon which to consider tolling the 3-year time limit on appeals.

To illustrate its point, the Court reviewed the facts in  Calanderia v.Orthobiologics, 661 F3d 675 (C.A.1 Puerto Rico) 2011), a case in which the claimant actively twice asked for and received copies of the ERISA plan documents to which he was subject. At the time he received them the plan had no time limit on filing a suit after a denial.

A week after the last time the plan was disclosed to Mr. Calandria, the plan was changed to require that a claim to the court be filed within one year of the date of occurrence. Plaintiff had received no notice of this change from his employer and reasonably believed that the statute of limitations on his claim was 15 years.

Since this policyholder had tried to stay abreast of his claim rights and had not been advised of a critical change in his policy rights, the 1st Circuit held that the 1-year limitation on the right to appeal should tolled and allowed Mr. Calandria to file his claim.

The ERISA lesson in Calandria: Don’t sleep on your rights!






ERISA And SSDI Are Very Different Animals

Many people, including a number of attorneys, think ERISA and Social Security disability claims are joined at the hip.  They definitely are not. 

The only similarity between them is they were both created by Federal statute.  In ERISA a private insurance company is usually added to the mix and that adds tons of problems.

A Social Security claim requires a disabled employee to persuade an administrative law judge, an employee of the Federal government with no financial interest in the outcome, that the claimant is unable to work in any occupation for which claimant is reasonably suited by education, training or experience.  Such a person is entitled to benefits under Social Security law.  Social Security rules and regulations are followed and the imagination is given very little leeway to interpret. 

In ERISA the disability claimant not only has to deal with the requirements of the ERISA statutes and Department of Labor regulations, but also with a for-profit insurance company which runs the show.  The insurance company has the right to deny benefits which, if granted, it would have to pay.  Talk about a financial conflict of interes and an incentive to deny, deny, deny!
Having pursued disability income claims for more than 30 years, we are constantly amazed to find that many people, including attorneys, think ERISA and Social Security law are more or less the same

Our practice is in ERISA and private disability income claims.  ERISA disability income benefits derive from both the ERISA statutes and regulations and from insurance policies which employers purchase for their employees as part of their employment benefits package.

Social Security disability income benefits derive from Social Security taxes paid by the employer and the employee and has its own statutory requirements.

Add to the difference, the requirement in ERISA law that the plan administrator's (most often an insurance company which would have to pay the benefit if the claim is approved) decision to deny benefits must be deferred to by the courts in adjudicating disputes. 

In Social Security, a disinterested administrative law judge decides the matter.  In ERISA, a very interested insurance company first decides a claim.  Guess which way the decision tends to go. 

This is only one difference between the two statutes, but it is obviously a major difference.

Confusing Social Security apples and ERISA oranges in the law doesn’t do much for desperate  people who need benefits.