Introduction to ERISA Long-Term Disability Claims

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1 Introduction to ERISA Long-Term Disability Claims By: Clay Williams SinclairWilliams LLC

2 What Is ERISA? The Employee Retirement Income Security Act of 1974 is a comprehensive and complex federal enactment that applies to most claims for employee benefits. Was initially envisioned in response to rising reports of corporate mishandling of large pension plans (e.g., the Studebaker-Packard failure), but was amended at the last minute to address employee welfare benefits.

3 So What if ERISA Applies? Preempts state law causes of action (breach of contract, etc.) 29 U.S.C. 1144(a). Preempts state law defenses Causes of action other than ERISA 502(a)(1)(B) must be brought in Federal Court Courts apply ERISA statutory and common law

4 So What if ERISA Applies? Claimant must file appeals on time Claimant must exhaust administrative remedies Claimant must submit all evidence that supports the claim to the insurance company or ERISA plan for it to be in the Court s review record ERISA plan/insurance companies have deferential standard of review

5 Advice for Attorneys Who Do Not Typically Handle ERISA Benefits Cases (like LTD) VERY COMPLICATED DO NOT DABBLE!

6 Types of Disability Insurance Long-term Disability Insurance (LTD) Usually refers to group policies offered through work Also applies to group plans offered by employers through a self-funded plan Also applies to group plans offered by unions Usually ERISA unless offered by an employer that is a government entity or a church

7 Types of Disability Insurance Private Disability Insurance Usually purchased directly from an insurance company or insurance salesman Usually offered to professionals and other high income people, such as doctors, lawyers, business owners and executives Litigated as breach of contract cases under state law; sometimes other causes of action such as bad faith are also available. Often referred to as DI, IDI, or ID policies

8 ERISA ERISA 4(a), 29 U.S.C. 1003(a) provides that ERISA shall apply to any employee benefit plan if it is established or maintained (1) by any employer...; or (2) by any employee organization or organizations representing employees (i.e. a union)... ; or (3) by both.

9 The Meaning of Established and Maintained Donovan v. Dillingham, 688 F.2d 1367 (11 th Cir. 1982) (en banc): The established and maintained requirement is satisfied if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.

10 ERISA s Safe Harbor 29 C.F.R (j): Four requirements-- 1. Employee organization makes no contributions to the plan 2. Employee s participation is voluntary

11 ERISA s Safe Harbor 29 C.F.R (j), cont d: 3. Involvement of the employer is limited to being a go-between, but does not involve endorsement of the plan 4. The employee organization receives no consideration in connection with the program, other than reasonable compensation for limited administrative services.

12 These Plans Are Excepted (1) such plan is a governmental plan (2) such plan is a church plan [unless the church opts in] (3) such plan is maintained solely for... complying with... workers compensation laws or unemployment compensation or disability insurance laws; (4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens;

13 ERISA Applies! Bottom Line to What Itself Can Be a Complicated Question Under the Statute: If an employer was involved at all in providing the coverage (even if the employee paid for it) it is most likely ERISA Unless provided by a government employer or church, unless church has opted in to ERISA

14 ERISA LTD Procedures Two big phases: 1: Administrative appeal at the claims level to the insurance company or plan 2: Litigation in court

15 ERISA LTD Procedures Administrative Claim procedures Claimant must file a claim in time required by policy or plan Must appeal on time as set out in the policy or plan (within limits set out in claims regulations at 29 C.F.R ) May be offered additional voluntary appeals Must be vigilant about the applicable limitations period

16 ERISA LTD Procedures Administrative Claim procedures ERISA plans must establish maintain reasonable claims procedures. 29 C.F.R Administrator must make timely decision, or risk losing its deferential standard of review Administrator must give written explanation Administrator must provide copy of all relevant documents if requested

17 ERISA LTD Procedures Practical Advice: Never miss an appeal deadline Always submit all evidence in support of the claim during the process, because the court will not consider anything not submitted If you need more time to complete your submission, file the appeal on time and ask for more time to submit additional evidence. This will often be granted; if not the Plan can look unreasonable

18 ERISA LTD Procedures at the Administrative level Practical Advice: There are no rules of evidence that apply; submit whatever will support the claim Ask for the claim file from the administrator Ask for the actual plan documents from the Plan Administrator (usually the employer) Read the policy and denial letters closely and address the reasons for denial and the policy requirements

19 ERISA litigation Claim for benefits is filed pursuant to ERISA 502(a)(1)(B), codified at 29 U.S.C. 1132(a)(1)(B) Complaint may be filed in state or federal court Defendant may remove to federal court

20 ERISA litigation The court decides based on the ERISA record or administrative record that consists of the plan documents and documents before the administrator There is almost never discovery on the merits of the case Limited discovery into the conflict of interest may be allowed

21 ERISA litigation Most courts decide based on the attorneys briefs, and, maybe, oral arguments There is no jury trial Courts use a judgment on the record or summary judgment procedure Conflict of interest sometimes to be considered as a factor as to whether discretion was abused

22 Issues Attorney Not Handling Disability Claim Should Be Aware Of Ask if your client has LTD coverage Be aware, so your representation does not interfere with LTD Advise your client to get help with LTD if you are not going to handle it Deadlines may be running! It is almost always best for person to pursue both Social Security and LTD

23 Issues Attorney Not Handling Disability Claim Should Be Aware Of If You Are Handling Your Client s SS Claim Amending your client s SS onset can affect your client s LTD claim LTD companies use mental/nervous limitations against the claimant Be knowledgeable of how the LTD/Social Security offset works

24 Issues Attorney Not Handling Disability Claim Should Be Aware Of Understand how amending the SS onset can affect your client s LTD claim LTD carriers love to look to an amended onset in the SS case to say the person was not disabled until later than the onset Most LTD policies cover the person only through the end of employment; thus, you must prove the onset coincided with the end of work

25 Issues Attorney Not Handling LTD Should Be Aware Of Understand how LTD companies use mental limitations against the claimant Most LTD policies limit benefits to 12 or 24 mental and nervous conditions, so you need to be careful over-emphasizing your client s mental disability in the Social Security case. Obviously, do what you need to do win the SS case, but be aware of this issue

26 Issues Attorney Not Handling LTD Should Be Aware Of Be aware how the LTD/Social Security offset works LTD policies usually reduce LTD benefits by the amount paid in SS LTD policies usually allow a recovery if LTD is paid and SS is won later If your clients are not aware, they will be mad at you for not telling them when the LTD company wants their SS backpay

27 Issues Attorney Not Handling LTD Should Be Aware Of Work with the LTD attorney if your client is denied LTD benefits If your client has an LTD attorney, or you refer the case to one, be sure to share information (i.e., from WC, SS, or PI case) The LTD attorney may have a better doctor s opinion, for example

28 Conclusion If ERISA applies and you elect to handle, obtain Plan document, claim file, and denial letter, with particular attention paid to running of critical deadlines at all times!! Compliance with ERISA plan appeal procedures and evidentiary development during the administrative phase is critical!!

29 Introduction to ERISA Long-Term Disability Claims By: Clay Williams SinclairWilliams LLC

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