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Should I do my ERISA Long Term Disability Appeal on my own Without a Lawyer?

A “Do-it-yourself (D.I.Y) approach to appealing an ERISA Short Term Disability (STD) or ERISA Long Term Disability (LTD) claim denial may very well cost you your financial and medical security.

In a world where “DIY” is commendable and sometimes makes financial sense, it is a huge mistake with ERISA disability claim appeals, and here are the reasons why:

First there is no reason a disability claimant who is not either an insurance adjuster or a lawyer would know that when appealing an STD or LTD claim denial a claimant should also be preparing the case for court. This is critical because someone who is not a lawyer will have no idea what kind of documents and evidence are needed for court.

Often, the first and the only thing that a claimant without a lawyer will send to the insurance company for appeal is a letter from their doctor or a new medical record. Yet only an experienced disability lawyer can sort through what exactly is needed from your doctor for your appeal and also figure out how your own doctors might actually be hurting your case more than helping. Because claimants are so involved in the everyday struggles that result from their medical condition, claimants often do not understand that other people (including a judge reviewing your case) would have no way of knowing how difficult life can be for the claimant unless the claimant’s symptoms and limitations are well documented. There is no “pain-o-meter” that can assist an outsider to understand what a claimant is going through. And the disability insurance company knows this and uses it to their own advantage.

Moreover, in regards to documentation for your disability claim or appeal, medical consults alone will not necessarily provide the supporting evidence required to prepare your case for court. Remember that while the goal of the appeal is to persuade the disability insurance company to reverse the denial decision without having to go to court, the claimant should remember that if the insurance company rejects the appeal evidence and sticks with their denial decision, the only remaining option for the claimant is to file a lawsuit in the Federal District Court.

The main reason why medical records alone are often labeled insufficient by the disability insurance company or a reviewing district judge is that quite often the claimant’s doctors do a poor job of recording a claimant’s symptoms and limitations and what happened at the medical visits. Also many claimants have no idea that they may not even be seeing the right types of doctors! Add to this that the medical records computer software used in many doctors’ offices have settings that will often “default” to outdated and inaccurate content, which often makes a serious condition seem “normal” or “within normal range”, or “mild” or “unremarkable”; things of that sort. Try taking a look at the “Physical Examination” section of one of your medical consult records. If for example your condition requires you to use a cane for balance because of neuropathy or a brain injury but the medical consult record does not specify in the “physical examination” section that you have limitations on “gait” (the way you walk), it could be that the consult record defaulted to a“normal gait” category despite your need for the cane, and it should actually say “abnormal gait” or something of that sort. These and similar type errors have caused many cases to be denied. This is
one very critical reason to retain an attorney with years of ‘medical-legal’ experience.

Another reason is that an experienced attorney can also identify what other kinds of “specialist” medical providers would be appropriate and helpful in exploring and documenting your condition and your claim; and this is something that it is unlikely the insurance company will tell you, no matter how ‘helpful’ or friendly they may seem over the phone! We have heard time and again claimants who tell us that the disability insurance company actually discouraged them from obtaining new medical opinions or the specialist medical opinions that we as lawyers know would have been helpful and sometimes critical to your claim or appeal.

Another important consideration when deciding whether you want to risk appealing a disability claim denial on your own is that most people do not realize (and the ERISA disability insurance company will not tell you) that once you say you are appealing only the records you submit with the appeal will become part of the file that is allowed into court; so that once the insurance company processes the appeal and issues a ‘final denial’, it will be very difficult if not impossible to get any different or new evidence in front of the district court judge. This is a very serious consideration for several reasons:

First, the average claimant is not a lawyer and once a claim receives the ‘final denial’, this type of lawsuit is quite complex, and you will have a very difficult if not impossible time successfully navigating the lawsuit yourself.

Second, because no new evidence can be added after the final denial, any attorney you then ask to consider taking your case can only work with what you gave the insurance company, which means that the attorney cannot coordinate the new evidence that the attorney knows is needed to improve your chances of winning, and that makes it unlikely an attorney can take your case. And an attorney who does not practice in this area, let alone a non-lawyer claimant, is not likely to know what evidence to timely prepare and submit.

The “Do It Yourself” spirit is usually well-intended, and with legal matters the goal is of course to save money on attorney’s fees, and that sort of thing. But such a decision in a Short Term Disability or a Long Term Disability claim appeal could cost you your entire disability benefit, which depending upon your age, your condition and job salary, can be a considerable sum of money, maybe even your only means of financial survival.

We cannot over-emphasize how important it is to hire an attorney as soon as you get denied. You will in most cases be given 180 days to tell the insurance company that you intend to appeal a denial. The temptation is often to quickly give notice of your appeal to the disability carrier, and only then start looking for an attorney. But be aware that the minute you submit the notice of your appeal, the disability insurance company may be legally allowed to issue their final claim denial, in which case the attorneys you have been busy consulting all of a sudden are far less likely to do be able to do anything more to help you.We understand that a person who has been denied disability benefits is usually also suffering financially and often has also just lost their health insurance coverage because the employer has terminated them from the job. For that reason we work on a “contingency” basis, which means we are not paid fees until and if we win your case! This means that you as a claimant do not have to come up with an “up-front” attorney retainer fee.

We offer a fair fee structure and will endeavor to take the steps necessary to increase your chances of a successful outcome. While of course no specific outcome can be guaranteed in any case, we have achieved many successful results both in and out of litigation as many of our former clients have written; please see the testimonials in our website at disabilityarizona.com. We are also on Facebook and Twitter!

If you would like to discuss your case and meet with us in person, please call The Law Office of Paul J. Dombeck PLLC, at 602-648-2035. If you claim has been denied, we offer a free consultation.

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The Law Office of Paul J. Dombeck, PLLC is located in Phoenix, Arizona and serves clients statewide, including Flagstaff, Prescott, Sierra Vista, Bullhead City, Tempe, Mesa, Queen Creek, Lake Havasu City, Show Low and Maricopa County.

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