FAQs

Frequently Asked Questions

Q. My benefits were denied. Do I have to appeal, or can I go straight to court?

In the case of group-sponsored benefits subject to ERISA, you must appeal prior to filing suit. Otherwise, your suit could be dismissed due to "failure to exhaust administrative remedies." There are some exceptions to this rule, so it’s best to discuss your options with an experienced benefits attorney. In the case of individual disability and health insurance policies, there is no exhaustion requirement; and you may proceed directly to court. Nonetheless, the plan may still permit you to submit an internal appeal, which may be worth pursuing and also something to discuss with a benefits attorney.

Q. I’ve incurred many extra costs and extreme stress because of this benefit denial. Can I make my plan reimburse me for those costs or recover pain and suffering (punitive) damages as the result of my benefits being denied?

In the case of group-sponsored benefits subject to ERISA, no. The only damages you can recover are the benefits due under the plan, plus prejudgment interest, costs, and potentially attorneys’ fees. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985) (no right of action for compensatory or punitive damages under ERISA); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) (ERISA pre-empts state bad faith law).

In some circumstances, the plan may also be required to reimburse or credit you for attorneys’ fees incurred for a separate disability-related matter (such as Social Security Disability benefits). See Montanile v. Bd. of Trs. of Nat'l Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 657 (2016).

Some other additional remedies may exist for what is known as a "breach of fiduciary duty," but only in very select circumstances. Therefore, it’s best to discuss with an experienced ERISA attorney.

For non-ERISA claims, you may be able to pursue damages for insurer bad faith, but the law varies from state to state.

Q. Can I recover my attorneys’ fees?

Under the ERISA statute, you cannot recover attorneys’ fees for a pre-suit appeal, but a claimant may seek a court award of attorney’s fees for time spent drafting the complaint onwards. Non-ERISA claims are subject to state law, and the laws regarding fee-shifting vary from state to state.

Q. Why were my long-term disability benefits denied even though I was approved for Social Security disability benefits?

Many group disability plans, and some individual disability policies, limit the duration of benefits for mental/nervous and other conditions, whereas the Social Security Administration does not apply such limitations. Private insurance policies also exclude claims based on pre-existing conditions; i.e., conditions for which you received testing or treatment during the period leading up to when your coverage commenced. You should consult your disability plan to confirm. Generally, the Social Security Administration utilizes more rigorous criteria than most disability plans for determining disability; and a plan administrator’s disregard of a favorable Social Security award can be evidence of conflict of interest. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). If you have been awarded Social Security disability benefits but denied private disability benefits, you should contact an experienced benefits attorney to discuss your options.

Q. Why did my disability plan terminate my benefits despite previously approving my claim?

Many group disability plans contain a two-part definition of "disability" that provides 24 months of disability benefits if you are unable to perform your "own occupation." After that, claimants must demonstrate the inability to perform "any occupation." Plan administrators often use this change in definition as an opportunity to re-evaluate the claim. If your claim is denied based on your ability to perform "any occupation," it is important that you contact an experienced benefits attorney immediately to discuss your options, as the time to appeal is limited; and failure to timely appeal will likely bar you from later pursuing litigation. Other reasons your disability claim may be denied include policy limitations for mental/nervous or other conditions. It is important to obtain a copy of your long-term disability plan from your employer to confirm.

Q. How long does the appeal process take?

Employee benefit plans subject to the ERISA statute are required to provide claimants with at least 180 days to appeal the denial of health or disability benefits (60 days in the case of pension or life insurance benefits). Once the appeal is submitted, the benefit plan has a defined amount of time to issue its decision: in the case of single-employer disability plans, 45 days. However, the disability plan administrator may (and usually does) extend that period of time by requesting a 45-day extension before the expiration of the first 45 days, for a total of no more than 90 days. The plan administrator must cite "special circumstances" in its request for an extension. Different rules apply for other benefits, and vary depending on the type of plan (single employer v. union) and the type of benefit (urgent care, concurrent care, etc.). It’s best to consult an experienced benefits attorney regarding your appeal rights.

Q. I stopped working five years ago. Can I still apply for disability benefits?

Perhaps. Most disability plans (whether group or individual) require "proof of loss" to be submitted within 30 to 90 days, but no later than one year, from the date the claimant stopped working. However, a majority of states have adopted some form of "notice prejudice rule" that requires insurers to demonstrate that they have been unfairly prejudiced to deny a claim based on late notice. In UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358 (1999), the Supreme Court ruled that the notice-prejudice rule is saved from ERISA preemption and, thus, applies to group coverage as well (but not if the plan is self-funded). Thus, if you live in a state that has adopted the notice-prejudice rule, your claim cannot be denied based on late notice unless the insurer demonstrates it was prejudiced by the delay. Even if your state has not adopted the notice-prejudice rule, you should still submit a claim, particularly if you can supply a good reason for the delay (i.e., mental incapacity). If you think you may have a late disability claim, you should consult an experienced benefits attorney regarding your rights.

Q. I missed the deadline to appeal the denial of my benefits. Can I still appeal?

Maybe, but it may be too late. In the case of group-sponsored benefits, the ERISA claims regulations provide that a plan administrator must provide the claimant "at least" 180 days to appeal in the case of health and disability benefits (60 days in the case of pension and life insurance benefits). ERISA plan administrators are fiduciaries; and many ERISA plans confer discretion upon the plan administrator to interpret the terms of the plan. Arguably, plan administrators should use their discretion to entertain a late appeal, particularly if the claimant provides a good reason for the delay, such as a mental incapacity. Failure to "exhaust appeals" prior to filing suit under the ERISA statute will result in dismissal of the suit. If you think you may miss the deadline, it’s best to request an extension prior to the expiration of the initial appeal deadline, if possible. For non-ERISA claims, there is no exhaustion requirement; and you may appeal, or not, prior to filing suit.

Q. If my employer terminates me for exceeding my FMLA leave, will that affect my disability benefits?

Generally, no. So long as you were "actively employed" on the date the disability began, you are covered under the disability plan, regardless of whether you are later terminated. "Active employment" usually includes regularly scheduled vacations, sick days, and holidays, but may exclude leaves of absence not related to disability, so it’s important to consult the plan documents. Some plans also exclude coverage for employees who are terminated "for cause." Again, you should always consult the plan documents. In the case of individual policies of disability insurance, the carriers usually look to see if there has been a significant drop in earnings and tend not to be concerned about the insured’s employment status, though you should be on alert lest the insurer try to characterize your pre-disability occupation as that of an "unemployed person," as we have seen some insurers do. The skilled attorneys at DeBofsky, Sherman & Casciari, P.C., can help you navigate these pitfalls.

Q. My short-term disability benefits were denied. Can I still apply for long-term disability benefits?

Generally, yes. Unless the disability plan specifically states that receipt of short-term disability benefits is a prerequisite to applying for long-term disability benefits (and most do not), the plan administrator should conduct an independent investigation as to whether you qualify for long-term disability benefits. Although it may seem counterintuitive, if you intend to remain out of work beyond the short-term disability benefits period, you should apply for long-term disability benefits, even if your short-term disability claim was denied, because failure to do so could preclude you from suing to recover long-term disability benefits later.

Q. My disability claim was denied based on a pre-existing condition, even though I worked for my employer for many years. How can that be?

If you have worked for your employer for years but did not elect long-term disability coverage until recently, your claim could be subject to the pre-existing condition exclusion. Even if you have participated in your company’s disability plan for many years, sometimes a coverage issue can arise when an employer switches long-term disability carriers and neglects to include language in the new policy honoring the years of coverage under the previous policy. Employees in these circumstances should demand written assurance from their employer of their grandfathered status, ideally in advance of the change in carriers. If you are concerned about losing your grandfathered status under your disability plan, the experienced attorneys at DeBofsky, Sherman & Casciari, P.C. can help.

Q. What happens if my claim appeal is denied?

You have the right to take your case to court. Depending on whether or not your case is governed by the ERISA statute, your case will likely be decided in a federal court. The attorneys at DeBofsky, Sherman & Casciari, P.C. have extensive experience litigating cases across the country up to federal appellate court level.

Q. Can I hire an attorney on a contingency fee basis where I don’t have to pay fees unless I win?

Yes. The attorneys at DeBofsky, Sherman & Casciari, P.C. often handle matters on a contingency fee basis so long as the claim is meritorious and there are enough benefits at stake to justify such a fee arrangement (which is mostly based on a percentage of the past-due benefits we recover).

Q. Do you handle cases other than cases involving disability benefits?

Yes. The lawyers at DeBofsky, Sherman & Casciari, P.C. handle a wide variety of matters. In addition to disability benefit claims, we have extensive experience in handling life and accidental death and dismemberment insurance cases, health-insurance related matters, long-term care insurance, and disputes relating to retirement benefits.

DeBofsky, Sherman & Casciari, PC represents people who are having difficulty applying for or receiving long-term disability insurance, pension or retirement and other employment benefits. Here are links to frequently asked questions that may provide some general answers to your questions.

Get help from experienced and respected disability and employment benefits attorneys

If you are suffering from a severe disability or financial hardship due to denial of benefits that you have worked or paid for, consult a knowledgeable and experienced disability and employment benefits attorney to discuss your particular circumstances. DeBofsky, Sherman & Casciari, PC has a team of such attorneys ready to answer your call. Contact us today for an evaluation of your claim. Your Illinois disability attorneys.