• Do I Have To File An ERISA Appeal Of A Disability Insurance Denial Before I Can File A Lawsuit?

Do I Have to File an ERISA Appeal of a Disability Insurance Denial Before I Can File a Lawsuit?

A recent D.C. Court ruling in an ERISA long term disability denial lawsuit sparks the question: If a claim for disability insurance benefits has been denied, is the claimant required to file an ERISA appeal with the insurance company, or can the claimant bypass the appeal process and, upon denial, move forward and file a civil lawsuit under ERISA? The general answer is that in almost every case a claimant must file an ERISA appeal, but in this blog entry we will discuss some legal exceptions that could allow a lawsuit to be field with the filing of an administrative Appeal.

In the D.C. case, the Plaintiff argued that he was not required to exhaust his available administrative remedies because: 1) ERISA does not mandate exhaustion and that this requirement should be determined by the individual courts on a case-by-case basis; 2) the denial notice he received did not mention any claims procedure or appeal process, thereby excusing him from pursuing administrative remedy; and 3) pursuing administrative remedy would have been futile and that he had already attempted to resolve this matter in house before filing his lawsuit. The D.C. court found that none of the Plaintiff’s arguments were sufficient to waive the strict exhaustion requirement.

Exhaustion Requirement Under ERISA in Disability Insurance Denial Cases

The ERISA law itself does not specifically state whether a claimant is required to exhaust all available administrative remedies before filing a civil lawsuit. However, there is a long settled rule of judicial administration which mandates that no one is entitled to judicial relief for an alleged injury until such time as the prescribed administrative remedy has been exhausted. This means that because ERISA does not specifically address this issue, the exhaustion requirement will automatically be applied to all cases, except for instances where the district court, through its own sound judicial discretion, determines that the exhaustion requirement does not apply, or should be waived, for a particular case.

This leads us into the question: under what circumstances will a court determine that the ERISA exhaustion requirement does not apply, or should be waived?

Exception # 1: Lack of Meaningful Access to Higher Levels of Review

The first circumstance when the exhaustion requirement may be waived is if a claimant lacks, or is denied, meaningful access to higher levels of review. In the D.C. case, the Plaintiff tried to argue that the denial notice he received did not specifically mention the insurance company’s appeal process or claims procedure. Without being informed of the appeal process or the claims procedure, he was therefore denied access to higher levels of review of the denial of his claim for benefits. However, the Plaintiff’s argument failed because he did not claim that no claims procedure existed, but rather, the notice did not mention it. The courts have well-established that ignorance of a claim procedure does not waive the exhaustion requirement and that each individual/claimant has a duty to seek the necessary information, regardless of whether it has been made available.

Another example of this would be if a claimant tried to initiate higher levels of review procedure, but the insurance company denied or otherwise prevented the claimant from being able to proceed with the higher level review of the claim or denial.

Exception #2: The Futility Exception

The second circumstance whereby the exhaustion requirement may be waived is known as the futility exception. The D.C. Plaintiff argued that, prior to filing the lawsuit, he attempted to resolve his issue by contacting several members of his employer’s management to no avail. Therefore, to go through the administrative appeal process would have been futile because it was highly likely his appeal would be denied. However, the futility exception has very strict standards. It is not enough for an adverse decision to be “highly likely”. Instead, it is required for there to be a certainty of an adverse decision. An administrative process could be deemed futile if, for example, it would require such considerable time to complete that the Plaintiff’s rights would be lost by the inability to make a speedy decision. Or, if a claimant was notified unequivocally that appeal of a denial would not be considered or would not alter the decision to deny.

Because the D.C. Plaintiff was not able to present sufficient arguments to the court to support his contention that the exhaustion requirement should be waived in his case, as well as for several other reasons such as failing to move for leave to amend his complaint and failure to state a claim, the court dismissed the Plaintiff’s lawsuit with prejudice and, upon motion for reconsideration, the dismissal was upheld. As a result of this plaintiff and his disability attorney filing a premature lawsuit, the claimant will be forever barred from having his disability denial heard by any court. The claimant’s claim is over and he has not further rights.

How to Ensure that You Fulfil the Exhaustion Requirement

This case teaches us that there are several crucial steps that must be taken if your claim for disability benefits has been denied, and even before that point, prior to submitting your initial application for benefits. First and foremost, read your Plan and understand your insurance company’s process for reviewing claims and the administrative appeal process that is available if/when the decision is made to deny benefits. Second, if your claim is denied, the denial letter should include language explaining your right to file an appeal. Appeals are typically time-barred and you only have a certain amount of time once your claim has been denied to submit additional information to the insurance company and request they reconsider their decision to deny your benefits. If the denial letter does not include this information, it is your duty to either read your Plan and learn what the procedure is to appeal a denial, or contact your claim representative and ask them to explain what remedy is available to you since your claim was denied.

If you file an Appeal, the disability company has 45 days to make decision and then for exceptional cause they can request two additional 30 day extensions. Once the time period is elapsed, if a decision has not been made the case is still not clear in every court as to whether a lawsuit can be filed. In our cases, if a disability company does act in accordance with the time restraints provided by the ERISA statutes, then we will file a disability lawsuit before a final decision is returned.

The best solution, if your claim for disability benefits has been denied, is to make sure to contact an experienced ERISA disability attorney. If you have any questions regarding your rights under a short or long term disability policy please contact Attorneys Dell & Schaefer for a free consultation.

Comments (2)

  • Jim, if your administrative appeals are exhausted your only option would be to bring a lawsuit against them. The concern though would be the statute of limitations (the time with which you can bring a lawsuit). If your initial denial of benefits (and no payments after that) was in 2014, this could be a very real concern. Please feel free to contact our office to discuss your claim in greater detail to determine your rights under the policy and options available.

    Stephen Jessup Jun 30, 2018  #2

  • I have filed 2 Appeals with Cigna LTD since 2014 of being disabled. As of now they have terminated me yet again and said I’m only allowed to file 2 Appeals. Now what’s my options? I am waiting for their letter to Arrive. If it’s a law suit how long will I have to file one? I’m pretty sure I’m going to be seriouly needing you next week. Please advise.

    Jim Jun 29, 2018  #1

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Dell & Schaefer Client Reviews   *****

Dawn P.

I had to quit working after 8 years of dealing with chronic pain from 2 bulging and torn discs from an injury and failey back surgery. I was approved for Long term disability through my employer benefits, with Unum. They covered me with payments for one year, and suddenly sent a letter that their doctors disagreed with my surgeon and pain management doctors, and they felt I could go back to work full time. I hired a local attorney, trying to save some money, but I don’t think he had much experience dealing with big LTD companies such as Unum. He filed terrible appeals on my behalf with little to no effort on his part of building a good case for me. After a year of dealing with his condescending attitude and loosing my final appeal, I decided to call up Dell & Schaefer. I had contacted them a year prior when searching for an attorney. Cesar was willing to take my case and felt I had a good one. But I didn’t want to pay the percentage he was asking for if we won back then. The old saying, “you get what you pay for”, proved to be true in this case and I regretted not hiring him from the beginning!

Once I did hire him, and thank goodness he was still willing to take my case even though he was dealing with defending poor appeals by my previous lawyer, things got moving along for me. Because of his years of experience dealing with Unum, and his record of wins against them, within 6 months we had a settlement I could live with! The stress I suffered before Cesar and weight on my shoulders was gone! Cesar is a kind, caring, attorney who will fight for your rights! His assistant Michal always talked to me when I called in with questions or to check up on my case and never made me feel bad for calling. It was nothing like the previous relationship I had with my other attorney and his staff, who avoided me. Cesar explains the process well and keeps you updated on your options throughout the process. He was worth every penny!

I am grateful for their representation and would recommend anyone with an ERISA case to call him!

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