ERISA – Frequently Asked Questions

What is ERISA?

Commonly referred to as ERISA, the Employee Retirement Income Security Act of 1974 is a federal law that regulates various types of employment benefits. ERISA governs all types of insurance coverage, including short-term disability policies, long-term disability policies, life insurance, health insurance and accidental death and dismemberment (AD&D) policies that are provided to employees as a benefit of employment. 

ERISA is a very specialized area of law, and ERISA litigation is very different from the more standard breach of contract litigation that usually arises when an insurance company denies a claim.  Not only is litigation different, with more limited discovery and no right to a jury trial, but the available damages and remedies also differ.  Visit our ERISA practice page to learn more.

What types of insurance are governed by ERISA?

With the exception of CIty, State and Federal government, and church employees, ERISA governs the insurance provided by your employer. The insurance provided by your employer may include health, disability, life, dental, vision, and accidental death and dismemberment coverage. 

Group insurance policies are purchased, negotiated, and provided by an employer and the employee generally has no input in the type of coverage their employer provides them. These insurance policies are governed by ERISA, while individual policies that are purchased without an employer’s involvement are not.

What do I need to know before submitting an ERISA disability claim?

Before submitting a claim, familiarize yourself with your insurance policy to understand your coverage. Under ERISA, you have the right to receive copies of the necessary documents, such as your Summary Plan Description and the policy itself. Submit a request to your plan administrator — typically your employer — to receive the proper documents. 

Importantly, ERISA has very strict deadlines that you must meet. You will need medical evidence to support your claim.  For example, if you are submitting a disability claim, you will need a note from at least one doctor specifically detailing why you are no longer able to continue working. You must meet ERISA’s strict deadlines in order to qualify for benefits and have all of your information organized to present to your insurance provider.

Can I have an attorney review my policy?

Yes. Insurance policies are complicated and each policy is different. Because each policy is written by a different insurer, and there is no standardization throughout the insurance industry, policies can be difficult to understand. Oftentimes, it seems like policies are deliberately written to confuse you. Our team of attorneys has extensive experience working with insurance companies and denied claims. We know how to interpret the language insurance companies use to intentionally confuse you, their policyholders.  The attorneys at Donahue & Horrow are willing to explain confusing provisions in your policy to you.

When do I file an ERISA disability claim?

As soon as possible after you stop working. Each policy will have its own deadlines but generally, the earlier you file a claim the better because it will take time for your claim to be processed. Do not wait or delay for any reason. The sooner you begin your filing process, the sooner you will understand what steps you will need to take.

How do I make an ERISA disability claim?

Contact either the insurance company or your employer to acquire the requisite forms. You will need to review these forms to ensure you have all of the necessary information to provide to the insurer. You should try to include all relevant information in an organized manner to make it easier for the insurance company to review and approve your claim. You should also ensure your forms are carefully and comprehensively filled out so that it does not add further delays or increase the likelihood of the claims denial. Donahue & Horrow, LLP is here to help review your information and complete the necessary paperwork.

Why was my ERISA disability claim denied?

There are many reasons your ERISA disability claim may have been denied.  The insurance company believes that you did not provide enough medical support for your claim.  Or maybe the company concluded that one of the policy’s exclusions prevents your claim from being approved. Your insurer is required to explain their reason for denying your claim. Whatever the reason, you do not simply have to accept the insurer’s decision. Some insurance companies will act in bad faith and deny valid claims.  And if your ERISA claim is denied, the insurance company is required to offer you an appeal process challenging the insurer’s initial decision to deny your claim.

If my ERISA disability claim is denied, do I have to file an appeal or can I sue my insurance company immediately?

You cannot sue the insurance company without first formally appealing the denial. There are specific guidelines and deadlines that must be met or else you will forfeit your right to any benefits. To make sure you do not accidentally give up your right to benefits, you should contact a trusted and experienced ERISA attorney to assist you in working through the appeals process. They know the best way to process the appeal of your claim and can help you later determine if a lawsuit against the insurance company is warranted and advisable.

What can I do when my ERISA disability claim is denied?

Similar to the question above, you will need to file an appeal to your claim before you can explore filing a lawsuit. The deadlines to file your appeal will be strict and you must meet them as the insurance companies will not offer you any flexibility. Do not make it easy for them to deny you of your benefits by missing a deadline. Contact us for guidance, we can handle your appeal for you. With over 50 years of experience appealing claims, our attorneys know how to present your appeal to the insurance company to elicit the best result possible. We help our clients put their best foot forward and ensure the information provided in your appeal will make it more difficult for the insurance companies to deny your benefits for a second time.

Do I really need to hire a lawyer for my appeal or can I file on my own?

We recommend hiring an experienced ERISA attorney to assist in filing your appeal. The process of filing an appeal is purposely complicated by insurance companies. Our team has over 50 years of experience navigating the red tape of the appeal process that stands between you and your benefits. We treat each client with the respect they deserve and we are contingency fee-based which means that we do not receive payment unless your claim is approved.

How long can I wait to file my ERISA lawsuit?

ERISA has very strict deadlines that must be met.  This includes the deadline to file a lawsuit.  Some insurance policies have internal deadlines, which state that a lawsuit must be filed within a certain number of days after the claim denial.  Absent such a provision, courts will apply your state’s statute of limitations.  Regardless, it is crucial that you file your lawsuit as quickly as possible so that you do not forfeit your right to benefits. Do not delay; contact our team immediately. We will work to review your policy, determine your deadline to file a lawsuit, and come up with a strategy to ensure you receive the benefits you are owed.

If my employer paid for my insurance, is it automatically subject to ERISA?

Most likely “yes.”  Your insurance coverage and claim are automatically subject to ERISA if you are insured through coverage provided by your employer unless you are employed by a government agency, church, or state organization.

What is the difference between short-term disability and long-term disability insurance?

Short-term disability benefits are generally limited to six months and are almost always payable after you have missed one week of work. Long-term disability typically covers you up to age 65 or your Social Security retirement age, but benefits generally do not start until after you have been disabled for 180 days.

What is accidental death and dismemberment insurance?

Accidental death and dismemberment (AD&D) is a limited form of insurance that covers the insured if they die or severely injure a body part as a direct result of an accident. The insured’s beneficiaries will be granted a set payment as a result of the death. AD&D is not a replacement for life insurance, it is strictly limited to accidents, so it does not provide the same type of coverage found in most life insurance policies. It is also not a replacement for disability insurance. 

If I file a lawsuit, what remedies am I allowed to pursue?

With ERISA, you will potentially be eligible for past-due benefits, interest, and attorneys’ fees and costs. You will not receive, nor are you eligible for, extra-contractual damages such as emotional or financial distress damages. You are also not entitled to a jury trial.

How do State Disability Insurance benefits, Social Security Disability Insurance benefits, and workers’ compensation benefits impact my claim?

These benefits typically act to reduce/offset your disability benefits on a dollar-for-dollar basis.  For example, if you are otherwise entitled to $2000 in disability benefits, but get $1000 per month in Social Security Disability benefits, the insurer only has to pay you $1000 per month. On the plus side, the award of those types of benefits can also be used to support your claim. Showing that you are entitled to state claims bolsters the efficacy of your ERISA claim.

What tools will insurance companies use to improperly deny my ERISA disability claim?

Insurance companies are not financially inclined to accept and pay your ERISA disability claim. They make money by collecting premiums from employers, not by paying claims to disabled employees. As a result, they use a variety of reasons to improperly deny valid ERISA claims. These may include:

  • Falsely claiming there is not enough medical evidence to support your claim
  • Refusing to believe your subjective complaints are real
  • Relying on the opinions of in-house doctors whose opinions overwhelmingly tend to support their employer, the insurance company
  • Hiring so-called “independent” outside physicians to review your medical records, with the expectation that those doctors will also produce reports to support a denial
  • Failing to talk to your doctors, or even worse, calling your doctors without an appointment so they are unprepared in an attempt to trick them into saying that you are not disabled
  • Conducting surveillance in an attempt to “catch you” acting in a manner inconsistent with your claimed restrictions and limitations
  • Reviewing your social media posts to use what they find against you
  • Misrepresenting your actual job duties
  • Not fully advising you of your rights and obligations under the policy
  • Stalling by continually asking for more records to support your claim, even if you already provided them with access to all of your medical records
  • Attempting to rescind your policy because the insurance agent did not include information that you told them on the application
  • Failing to be specific with the information you can provide to support your claim

You should never accept a denied claim for any of these reasons. You should fight for your claim and for what is rightfully yours. Most importantly, you do not have to fight for yourself. With over 50 years of experience, our team is here to help you.

Will the insurance company review my social media posts?

Insurance companies will do anything they can to find a way to deny your claim. They may take anything you say on social media and use it against you, even if it is taken out of context. They will use all public sources of information to find a reason to deny your claim. Although you will most likely try to appear healthy in your social media profiles as a way to “put your best foot forward,” insurance companies will use your positive social presence as a means to argue that you are not being honest about your disability. If you are filing an ERISA claim, adjust your privacy settings across your social media accounts or simply stop posting altogether.

Why should you hire Donahue & Horrow, LLP to fight for your claim for insurance benefits?

Insurance companies have tricks they use to deny your claim. Our attorneys have over 50 years of experience successfully navigating through those tricks to ensure your claim is approved. When you hire Donahue & Horrow, LLP, you are hiring a team of passionate and trusted professionals who will stand by your side in the fight against your insurer. We will work tirelessly to ensure that your file contains the information and documentation you need for your lawsuit. We are able to review the insurance company’s initial review of your claim to understand what the issues were. Then, we make certain they are noted and used in pursuant litigation. Furthermore, when an insurance company sees they are arguing with an experienced team of attorneys, they are more likely to approve your claim.

What law governs my claim?

ERISA claims are federally governed, under the Employee Retirement Income Security Act of 1974, 29 USC § 1001. ERISA sets minimum standards for the establishment of retirement and health plans in the private industry to provide protection for the individuals covered by these plans.

Will I have to testify in court? 

No. ERISA trials are conducted on the motions placed before a judge. Typically, the judge will review your insurance company file and written arguments. The trial is based on the filings and arguments of counsel.  No expert witness testimony, nor any testimony for that matter, is allowed.

Am I allowed a jury trial if my claim is governed by ERISA?

No. There are no rights to a jury in an ERISA action. The only trials conducted are on the motions placed before a judge and are based on the Administrative Record, which is the file maintained by the insurance company. The judge will review your file and reach a decision without a jury trial.

Can I file an ERISA disability claim if I am still working?

Some policies do offer partial disability benefits and you may be able to transition your role to adjust your work hours and/or to accommodate your disability. Typically you must stop working entirely, but whether you are entitled to the insurance benefits while you continue to work will depend on the specific terms of your policy.