Illinois ERISA Lawyer Blog

State employees in Chicago and the rest of Illinois should closely monitor developments in Illinois pension law reform. Recently, Govern Pat Quinn released a proposal to manage the State's pension woes. The five state pension systems impacted would be the State Employees Retirement System of Illinois, , State Universities Retirement System, Judges Retirement System, the Teachers Retirement System, and the Public School Retirement System (for cities over 500,000 inhabitants).

Currently, Illinois faces $83 billion in unfunded pension liability, largely created by failure to make contributions in the past and declining asset values in recent years. Governor Quinn has cited the increased annual cost of maintaining the pensions, becoming 15% of state expenditures as opposed to 6% several years ago. This increase comes as a result of a few factors, though: retiring baby boomers, and previous failures to adequately fund the plan.

The current proposal aims to achieve full funding within 30 years. In addition to modifying entitlements, it does so by mandating contributions sufficient to achieve full funding status by 2042. One of the reasons the plans are so underfunded is because of the lack of required funding as is present in federal ERISA governed plans. The proposal modifies entitlements in the following ways. Employees must increase their own contribution by 3% of salary. Retirement age is increased to 67. Cost of living adjustments would be capped at the lesser of 3% or half the consumer price index. Also, the adjustments would not kick in until the later of age 67, or five years after retirement. Also, the funding obligation for local schools, colleges, and universities will be shifted to the employer, rather than the state. This last measure will eliminate abuses that have been present whereby the schools would negotiate early retirement for an employee by artificially raising the employee's final earnings, thereby boosting the pension, in exchange for the employee voluntarily leaving the employer early. It was a loophole whereby many schools reduced their own budget by increasing the state's pension obligation.

This proposal has already been criticized by unions as unconstitutional, though it appears to have governmental support. The criticizers, however, have not come forward with an alternative proposal, and have not yet proceeded with a court challenge, as it is not law yet. The state believes it can overcome any unconstitutional challenge because the reform will be "opt in" for any employees. They would have to elect to have the entitlements modified in return for continued retiree health care subsidies from the state. If this proposal becomes enacted, it surely will make its way to the Illinois Supreme Court. In this author's view, with so many employers terminating defined benefit plans in favor of 401(k) style plans, a measure that preserves lifetime income for employees through a sustainable and funded system is a better measure than the plan terminations, freezing, and conversions present in the private sector. If you are a state employee and have questions about how the pension modifications could affect you, contact a pension lawyer.

Employees who are participants in disability plans sponsored by Chicago area employers frequently call my office after receiving a letter denying a claim for benefits. Often times, the reason for the denial may have been a procedural error by the administrator, preventing it from giving you a "full and fair review", as required by ERISA. The denial letter must explain the reason for the denial, it must reference the specific plan provision upon which the denial is based, and it must describe any additional material or information you would need to submit in order to get the benefits. 29 C.F.R. § 2560.503-1(g)(1).

ERISA imposes a high standard of care upon fiduciaries that make decision on claims. Merely telling claimants they need to submit additional medical records will not typically meet this standard. But even where the administrator fails to meet this standard, the question may arise whether the claim was denied for lack of supporting evidence or not. Such was the case recently in Tortora v. SBC Communications, Inc., 2011 U.S. App. LEXIS 22407 (2d Cir. Nov. 3, 2011). Sedgwick, as claims administrator for SBC's disability plan, denied a claim and stated "You may also submit additional medical or vocational information, and any facts, data, questions or comments you deem appropriate for us to give your appeal proper consideration." The court held that language did not meet the standard imposed by ERISA because it did not provide proper notice of how to perfect the claim. However, according to the denial letter, the medical records submitted were not indicative of disability, so the error was harmless.

If you have received a letter denying your claim for benefits and have questions about whether the denial was proper, call an ERISA lawyer.

Employees in Chicago and the Midwest often find themselves making difficult decisions with regard to compensation and pension benefits in jobs. Sometimes you must sacrifice lucrative benefits for either better job security, more money, or to even have a job at all. Employers are constantly looking for ways to save money, and sometimes even customers of your employer may look for ways to save money. Recently, a local Teamsters union challenged actions taken by BNSF Railway Company as unlawfully interfering with union members' protected benefits under ERISA. Teamsters Local Union 705 v. BNSF Ry. Co., 2011 U.S. Dist. LEXIS 12750 (N.D. Ill. Nov. 3, 2011).

BNSF cancelled a service contract with Rail Terminal Services, and shortly after Rail Terminal Services discontinued its operations. BNSF then hired many of the former employees of Rail Terminal Services to perform essentially the same work they had done before. The difference was that Rail Terminal Services was subject to a collective bargaining agreement, and the employees were receiving pension, health, and other benefits through the union plan. But when BNSF hired them, it did not provide the same level of benefits, thereby reducing its cost.

The Court held this was not an unlawful interference with the employees' benefits. BNSF's cancellation of the service contract was lawful. Not to say that the action taken by BNSF could never be an unlawful interference with benefits, but in this case the Teamsters did not offer any evidence that BNSF intended to interfere with the benefits.

If you have questions about your employee benefits rights, speak with a lawyer concentrating in ERISA.

Employees of Chicago area employers that participate in an employer sponsored group health insurance plan often assume if and when their claim is denied, they must sue the insurance company. But that is not always the case in litigation under the Employee Retirement Income Security Act of 1974 ("ERISA"). The insurance company is undoubtedly the party with whom the employee or other covered participant has had communications, and received a denial letter from. But the inquiry does not stop there.

In the case of a health insurance plan that is fully insured, meaning the insurance company bears the financial risk, then the insurer will undoubtedly be a fiduciary under the plan. But in the case of large employers, the plan is often self-funded, and the insurance company merely acts as a claims administrator. The question then is whether the insurance company exercised any discretionary authority or control over approving or denying the claim. See ERISA § 3(21)(A).

In Wesson v. Jane Phillips Medical Center & Affiliates Employee Group Healthcare Plan, No. 09-561 (N.D. Okla. Sept. 30, 2011), this issue arose. The plaintiff named BMI-Healthplans, the insurance company acting as a claims administrator, as a defendant. According to the plan document, BMI was merely a "plan supervisor" and would process claims and apply the rules of the plan to claims, but would not have any discretion. If this were true, BMI would be a non-fiduciary third party administrator not subject to liability in a claim for benefits due under the terms of the plan. However, the plaintiff alleged that BMI, despite not being contractually obligated to do so, actually did exercise discretionary authority or control, thereby making BMI a "functional" or "de facto" fiduciary. This just means that if a party does the acts the ERISA statute says makes one a fiduciary, that party is a fiduciary regardless of what any contract says to the contrary.

Despite the allegation, nothing in the administrative record revealed that BMI in fact did anything to make it a functional fiduciary, so the court dismissed all claims against BMI (but not the plan). If you have questions about an ERISA lawsuit, speak to an ERISA lawyer today.

Employees and executives in Chicago frequently want to know when a participant in an ERISA covered plan can recover attorney fees. ERISA does provide for fee shifting in litigation. ERISA § 502(g). However, these fees are only recoverable once they are incurred in litigation upon achieving "some degree of success on the merits." Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2152 (2010). This case changed the standard, where previously a claimant had to be a prevailing party. This gave long term disability insurers and plan administrators every incentive to withhold benefits, wait until a complaint was filed, and then just pay the claim--preventing the claimant from becoming a prevailing party. This precise strategy was demonstrated recently in Pakovich v. Verizon LTD Plan, No. 10-1889, Slip Op. (7th Cir. July 22, 2011).

In Pakovich, the claimant achieved a remand in court back to the administrator to make a determination on her benefits claim. Rather than make the determination on remand, the plan just did nothing. After several months, Pakovich filed another complaint in court seeking benefits due, arguing he claim was "deemed denied" because the plan did not render a decision on her claim within the time allowed by ERISA. Soon after filing the complaint, the plan paid all benefits due. The plan then moved to dismiss the case, arguing it was moot. The district court granted the motion, and denied any attorneys fees to Pakovich because she was not a prevailing party. Both parties appealed.

The Seventh Circuit Court of Appeals held the claim for benefits was moot, because the plan paid Pakovich all the benefits to which she was entitled. But the court also held the plan had to pay Pakovich's attorney fees. A contrary holding would permit "opportunistic plans [to] routinely delay deciding whether to pay benefit claims until participants and beneficiaries file suit, effectively requiring them to incur legal costs unrecoverable under ERISA § 502(g) in order to receive benefits to which they are legally entitled . . . . Such a barrier would contradict one of ERISA's primary policies, to protect 'the interests of participants in employee benefit plans and their beneficiaries . . . ." Id. at 9.

If you are a participant in an employer-sponsored employee benefit plan and the administrator or insurer is not responding to your claim for benefits, contact an experienced ERISA lawyer.

A recent ruling from the Seventh Circuit Court of Appeals in Chicago protected employees with conditions such as fibromyalgia or chronic fatigue syndrome who have an insurer deny benefits based on an exclusion that was not properly disclosed to the employee. Weitzenkamp v. UNUM Life Ins. Co., No. 10-3898, 2011 U.S. App. LEXIS 14180 (7th Cir. July 11, 2011). In this case, Weitzenkamp was diagnosed with fibromyalgia, chronic pain, anxiety, and depression. UNUM awarded her long term disability benefits. After two years of paying the benefits, however, UNUM cut off her payments, citing a clause in the policy that limits benefits paid because of a disability dependent on "self-reported symptoms." The problem was that UNUM also prepared a summary plan description of the plan, and referenced a two-year limitation on benefits in three separate locations (all referencing mental health), but the SPD never mentioned the self-reported symptoms limitation.

The Seventh Circuit Court of Appeals held that the failure to include this important limitation in the SPD was a violation of the part of ERISA that requires the SPD to disclose the material terms of the plan. ERISA § 102. Because UNUM did not disclose this critical limitation in the SPD it distributed to participants, the court held UNUM could not then rely on the limitation in order to terminate benefits. The court did grant a rehearing on this case, and we will track its progress.

If you are a participant in an employee benefit plan and the administrator or insurer denied or terminated your benefits based on a limitation or exclusion not previously disclosed to you, call an ERISA lawyer.

Employees in Chicago and the Midwest often call my office and inquire about the "conflict of interest" in ERISA long-term disability cases. Few cases will be determined based on whether there is a conflict of interest, as insurers have become more clever at creating an appearance of there being no conflict of interest. But the best way to understand how the conflict applies in cases is to witness it changing the outcome of a case.

In 2008, the United States Supreme Court held that where an ERISA plan administrator (such as an insurance company) both evaluates and makes benefit determinations, and is the source of funding to pay the benefits, the administrator is under a structural conflict of interest that should be weighed in judicial review of whether the administrator abused its discretion. Metropolitan Life v. Glenn, 554 U.S. 105 (2008). That does not necessarily mean the abuse of discretion standard will not apply; it just means a reviewing court will consider that conflict of interest. But something more than just the existence of the structural conflict usually needs to be shown. A claimant needs to show what else the insurance company did that shows that conflict of interest altered the administrator's benefit determination. A perfect example of this was in a recent (unpublished) decision from the United States Court of Appeals for the Ninth Circuit.

In Letvinuck v. Aetna Life Insurance Co., Aetna was the administrator of the Boeing Company Employee Health and Welfare Benefit Plan, and also funded the long-term disability benefits. No. 10-55018 (9th Cir. June 22, 2011). Aetna gave no weight to the fact that the claimant had been awarded disability benefits by the Social Security Administration, and did not try to address why the ERISA benefits were not payable despite Social Security benefits being awarded. Next, Aetna failed to tell the claimant what else she would need to show in order to be approved for the benefits. The court called this failure to "engage in meaningful dialogue" with the claimant and failure to let her know what evidence the insurer required. Because the claimant could point to these facts, the court then gave weight to the conflict of interest, viewed the denial with skepticism, and ordered the insurer to pay the benefits.

If you still have questions about how a conflict of interest can affect your right to disability benefits, speak with an ERISA lawyer.

Employees that participate in group health insurance or group disability insurance plans through their employers obtained another victory today. The United States Court of Appeals for the Ninth Circuit held that participants who bring claims under ERISA § 502(a)(1)(B) for benefits due under the terms of the employee benefit plan may sue the third party insurer--the insurance company from whom your employer buys insurance for the particular benefit plan--for those benefits.

In Cyr v. Reliance Standard Life Insurance Company, Ms. Cyr received disability benefits under the employer's disability insurance plan insured by Reliance Standard. She sued her employer, alleging it discriminated against her by paying her approximately half of what it paid male employees with similar qualifications. Cyr prevailed, and won a retroactive salary increase. She then demanded Reliance Standard increase her disability benefit payments to reflect the retroactive higher salary, but it refused. Cyr sued Reliance Standard for the increased benefits, but the insurance company was neither the plan, nor the plan administrator.

The District Court initially dismissed Cyr's case, following the precedent of previous Ninth Circuit caselaw which held only the employee benefit plan or the plan administrator could be proper defendants in an ERISA 502(a)(1)(B) lawsuit. The Court of Appeals initially affirmed that decision, but after rehearing the case en banc (i.e., before all the judges), it vacated its prior order and reversed the District Court's ruling.

The prior law limiting benefits claims to being brought against only the plan or the plan administrator is not supported by a reading of the statute. ERISA specifies who can bring a claim in § 502, but does not limit against whom a claim may be brought. Previously, the Supreme Court in Harris Trust and Savings Bank v. Salomon Smith Barney, Inc. held a participant may sue a non-fiduciary for "other appropriate equitable relief" under ERISA § 502(a)(3).

If you have any questions about who is supposed to pay your health insurance or disability insurance benefits, call an ERISA lawyer.

Employees in Chicago that are participants in any employee benefit plans should pay attention to the growing divide among Courts of Appeals over whether "satisfactory to us" is language in a plan sufficient to vest the plan administrator with discretion to interpret plan terms and make benefit determinations. When the administrator has such discretion, a court reviewing the administrator's decision will do so under an abuse of discretion standard--whether the decision was reasonable, not whether it was right.

The United States Court of Appeals for the Third Circuit joined the ranks of courts in holding such language requiring a participant to provide proof of a loss "satisfactory to us" does not confer discretion on the administrator of the plan. Viera v. Life Insurance Company of North America, No. 10-22810, Slip Op. at 19 (3d Cir. June 10, 2011). The Third Circuit joined the ranks of the Second, Seventh, and Ninth Circuits in holding that this sort of language does not clearly communicate to a participant that the plan administrator has discretion in administering the plan.

The Court of Appeals for the Seventh Circuit--located in Chicago--held this sort of language cannot vest the administrator with discretion back in 2005. Diaz v. Prudential Life Insurance Company of America, 424 F.3d 635, 637 (7th Cir. 2005). However, employees cannot take these holdings for granted. When there is a divide in courts of appeals such as the one present here, it is more likely the Supreme Court will allow an appeal in order to resolve the conflict.

If you have any questions about how a standard of review or a discretionary clause could impact your claim for benefits, consult a lawyer knowledgeable in ERISA.

Employees in Chicago now have even more reason to know about employer-provided health plans and their rights to reimbursement and subrogation. Should you experience any type of accident or injury caused by another party, you may need to use your own health insurance to cover the medical expenses incurred from the accident until obtaining a settlement from or judgment against the party causing the injury. Invariably, the health insurance company or fund will demand reimbursement for any expenses it covered that were caused by the other party. Following Great-West Life & Annuity Insurance Co. v. Knudson and Sereboff v. Mid Atlantic Medical Services, Inc., plans have become particularly aggressive in seeking such reimbursement. Nobody previously considered your own health plan making a claim against your own automobile insurance policy, though. But that might change after a recent decision from the Sixth Circuit Court of Appeals in Shaffer v. Rawlings Co.

The Shaffer court rejected an employee's claim that ERISA prevented her health insurance provider from enforcing its reimbursement and subrogation rights by demanding funds from the employee's own auto insurer before she had even recovered from any third party for her injuries. The court also rejected the argument that ERISA 502(a) would prohibit the enforcement of a subrogation provision, noting that section 502(a) applied specifically to judicial remedies, not substantive or contractual remedies like a plan's subrogation provision. Ultimately, the fact that an employee does not have possession of the funds does not impede the collection process.

Plans nationwide will likely start to take the sort of action that Ms. Shaffer's employer just did. If other jurisdictions follow the Shaffer decision, this could mean that the unfortunate repercussions related to a car accident may only be further aggravated in the event that an employee has had to have his or her health plan advance money to cover the resulting medical expenses. If you are unsure whether or not your plan provides for an enforceable subrogation agreement in the event of an accident or if you are simply interested in better understanding the rights of both you and your insurer in the event of a non-work related accident, speaking with an ERISA attorney (link to you site) is always a good idea.

Employees covered by employer sponsored health insurance plans often encounter the situation where a doctor or medical staff recommends a procedure, and advises the employee the procedure is covered by insurance, only for you--the employee--to get a denial of claim for benefits letter from the insurer afterwards. Countless of these individuals feel that the denial is the hospital's problem; after all, the hospital staff told you the procedure was covered. And if the hospital wants to be paid, it can fight the insurer. Many individuals wait to contact a lawyer until they are faced with lawsuits by the hospital for unpaid bills. If you wait until then, often there is little any lawyer can do to help.

Several recent cases display just how ERISA governs this three-way battle between the participant, the insurer, and the medical service provider. In IHC Health Services, Inc. v. Fiesta Palms, LLC, No. 2:10-cv-1156 (D. Utah May 24, 2011), the medical service provider tried suing the employer sponsoring a health insurance plan for unpaid bills in state court. The employer transferred the case to federal court arguing the dispute was preempted by ERISA, because it relates to an employee benefit plan. Not surprisingly, the medical service provider will be unable to recover anything in federal court under ERISA because ERISA provides no remedy for medical service providers. Instead, the enforcement statute of ERISA, § 502, details exactly who can bring a lawsuit, and a medical service provider did not make the list.

Also, in Lightfoot v. Principal Life Insurance Co., No. CIV-11-130-M (W.D. Okla. May 24, 2011), a father paid the medical expenses of his son after the employer-sponsored health insurer refused to pay for a procedure. Afterwards, the father sued the insurer under ERISA claiming benefits due, apparently under a theory of subrogation. The court there held only a participant or beneficiary can bring a lawsuit under ERISA § 502(a)(1)(B) for benefits due, and that what the father sought was not within the scope of "other appropriate equitable relief" authorized in a lawsuit brought under § 502(a)(3).

To sum up, if you accept medical services and your plan will not pay for the treatment, it is not the hospital's problem. IT'S YOUR PROBLEM! And you need to do something about it right away. Hospitals will often wait years to sue you for a breach of contract for nonpayment because they want to ensure the statute of limitations on any medical malpractice claim has already run (breach of contract generally has a much longer statute of limitations). And by the time the hospital sues you, you have waited too long to appeal the insurer's claim denial. As soon as you get a notice of claim denial from the insurer, call an ERISA lawyer. Otherwise, you could be stuck with the bill for years to come.

My office receives calls daily from employees, executives and managers in Chicago who claim their health insurance will not pay for a procedure. Some of the time, the plan does not even dispute that the claimed treatment or procedure is covered by the plan. So why won't the plan pay? The answer is two words: reimbursement and subrogation. The plan claims that it once paid benefits due to an injury caused by a third party and you recovered for that injury. I have seen plans withhold benefits years after the purported overpayment.

After Great-West Life & Annuity Insurance Co. v. Knudson and Sereboff v. Mid Atlantic Medical Services, Inc., many plans have gotten particularly aggressive in enforcing subrogation and reimbursement rights. Nearly all plans include language to the effect that if the plan pays benefits for an injury caused by a third party, and you recover anything from the third party, by judgment or settlement, then the plan must be reimbursed. They also often state that in enforcing the reimbursement, the plan can withhold future benefits. Personal injury lawyers are familiar with plans asserting liens on judgments in personal injury cases where the plan expended money for health care caused by the third party. But just because there is no lien in your personal injury or workers compensation case does not mean you won't have to pay the plan back someday, especially if the plan is self funded or a collectively bargained multi-employer health plan.

If you have a personal injury or workers compensation case pending in Illinois or the Midwest, the best course of action is to be proactive and learn whether your ERISA covered health plan paid any benefits that can be recovered from the third party. Even if you settle the case for less than your actual damages, the plan could enforce full repayment. Consult an ERISA lawyer sooner, rather than later, and avoid the later hassles of your plan withholding benefits.

Employees covered by a group health or life insurance plan in Chicago have all heard the stories of the insurer that accepted premium payments for years, and suddenly upon receiving a large claim, asserts the employee did not qualify for coverage. Insurance companies consistently got away with this. But after Cigna v. Amara, employees may finally have a remedy against this sort of sneaky conduct.

According to the Supreme Court in Amara, a participant in an ERISA employee benefit plan can "surcharge" a fiduciary for a breach of fiduciary duty. In Amara, the fiduciary failed to disclose a reduction in benefits to the participants in the summary plan description. This of course begs the question: what about the insurer that tells a participant she is covered or pre-authorizes a claim, but then refuses to pay?

The same day the Supreme Court issued its opinion in Amara, a Court of Appeals rendered a decision rejecting an argument made by the Department of Labor as amicus that a participant could "surcharge" the fiduciary for a breach of fiduciary duty under ERISA § 502(a)(3). See McCravy v. Metropolitan Life Ins. Co., No. 10-1131, Slip Op. at8-9 (4th Cir. May 16, 2011). The McCravy court even referenced another cases that did not permit life or other insurance beneficiaries to recover benefits due because the insurer breached its fiduciary duty. But this opinion is now seriously called into question, and the historical unavailability of a remedy to participants suffering from this sort of abuse from insurers has hopefully com to an end!

We expect to see a wave of new cases hit the courts whereby the insurance companies are finally held accountable for misleading participants into believing they have coverage only to be stuck with bills or no benefits later, like previously discussed in the Kenseth v. Dean Health case. If you have been told by an insurance company that a claim is covered, or that you have coverage, and later the insurer refused to pay benefits, speak with an attorney knowledgeable in ERISA.

Employees, executives and partners in Chicago may wonder how a clause in a health insurance plan or disability insurance plan may still contain a clause granting the insurance company discretion to construe the terms of the plan and make benefit determinations. As covered in a prior post, Illinois bans the use of such discretionary clauses in health insurance and disability plans. The catch, however, is that courts have held the insurance regulation banning such clauses--50 Ill. Admin. Code § 2001.3--only applies prospectively, that is to plans issued or renewed after July 1, 2005. Garvey v. Piper Rudnick LLP Long Term Disability Insurance Plan, 2011 U.S. Dist. LEXIS 31592, at *4 (March 25, 2011).

Determining whether an insurance plan was issued after the applicable date is easy. More difficult is determining when the plan has been renewed. One may be tempted to assume that the insurance policy renews every year. After all, employees must submit their elections for open enrollment every fall for the following calendar year. In practice, most health, accident, disability or term life insurance policies do renew every year. Whole life insurance policies, on the other hand, do not renew annually because they are longer duration contracts. But according to at least one federal judge in Chicago, the plan only renews if there is an amendment to the plan. Id. at *6-7. The court did not explicitly explain what would need to occur for such an amendment to take place, but apparently the disability policy in the Garvey case did not renew annually. The disability insurance plan was issued on January 1, 2001, and the court held it had not been renewed prior to the final denial of disability benefits on January 5, 2006. In at least what appeared to be a counter-intuitive holding, readers of the opinion can only be left wondering what the court would require to hold a policy renewal occurred.

If you have been denied disability or health insurance benefits and need assistance in determining whether the plan has an enforceable discretionary clause, consult a lawyer versed in ERISA.

Often, disabled employees and executives in Chicago and the Midwest call on a lawyer for help with a claim for disability benefits under a disability insurance policy provided by the employer. Nearly every claimant initially submits the claim himself. Only after being denied benefits does the claimant call a lawyer. Understandably, claimants are averse to paying an attorney fees to obtain benefits the claimant has a chance at obtaining on his own without engaging an attorney. Claimants commonly make one of two mistakes in the process, though.

The first mistake a claimant makes is waiting until after the final internal appeal has been denied to call a lawyer. Often claimants figure they will only need a lawyer if they have to file a claim in court. True, a claimant will be better served in court by engaging a lawyer than filing a complaint pro se, the odds of ultimately obtaining the benefits are dramatically higher when a lawyer is engaged earlier, during the administrative review process. After the final internal administrative appeal, no further documentation may be added to the claim file, dubbed the administrative record. 29 C.F.R. 2550.503-1(j)(3)-(5). Moreover, the time afforded for internal appeal will generally be 60 days. 29 C.F.R. 2550.503-1(h)(4). After a final denial, the plan will generally proscribe how much time a claimant has to file a complaint in court. Therefore, by the time the claimant calls the lawyer after the final appeal has been denied, the lawyer can add no additional supporting evidence, and will first need to investigate how much time he or she has to initiate a lawsuit (if the deadline has not already lapsed).

The other most common mistake made is calling a non-ERISA lawyer, such as one practicing primarily in personal injury or other labor and employment matters. ERISA cases are unique, and based upon highly technical statutes, regulations and court opinions. Successful navigation of a disability claim or claim for health benefits requires a lawyer intimately familiar with ERISA law, knowledgeable about what information to obtain and submit to the administrator and how to do so, and knowledgeable about the likelihood of success in court in light of the internal claims file and the claims administrator's denial letter (so the insurer knows you are on a level playing field with it).

The best course of action for a participant in a disability plan or health insurance plan making a claim for benefits due is to call an experienced ERISA lawyer before making the claim. Some offices will enter into a contingent arrangement, whereby you agree in advance to only engage the person upon a denial of benefits by the administrator. This saves you the attorney fees if you are successful in your initial claim, and prevents the loss of any time during that valuable 60-day window to obtain all other necessary documentation and appeal the denial. If you need to submit a claim for health benefits or disability benefits, call such an ERISA lawyer first and inquire about an engagement contingent upon being denied benefits.