Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 5, 2019

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The key to prevailing in an ERISA (Employee Retirement Income Security Act) claims appeal is preparation – and nobody knows that more than Ron Dean, a California attorney who has been practicing ERISA law for over 35 years. In a recent interview, Dean explained why it is so important.

The need for an expert eye

When we asked Dean how long it takes to prepare for an ERISA claims appeal, he told us that it could take several months of preparation because an expert eye is needed to go through the record. He explained:

It’s amazing. When you get the record from the insurance company, it’s going to be hundreds and hundreds of pages long and you’ll say, ‘What’s all this? Where did all this come from?’ The attorney has to go through that with an expert eye and contact doctors, which can take a while.

Doctors are notoriously busy people, so it can take weeks to contact them and try and get a report that addresses the issues. Some doctors are unwilling to provide that. Some doctors just don’t want to get involved, so the attorney then has to look for other doctors. You also may need a vocational expert and it can take weeks to consult with one. So we’re talking several months of time for the attorney to do an adequate job in preparing an appeal.

Hiring an attorney: A risk-reward situation

 

Hiring an attorney is a risk-reward situation, according to Dean. Having practiced ERISA law for over 35 years, he understands that not everyone wants to hire, and pay for, an attorney to represent them. He explained:

Obviously an experienced attorney can do it better than the individual because an attorney is trained in these things and does it all the time. At the same time, you’re going to have to pay an attorney to do it. But this is your last chance. If you go to court, the court isn’t going to look at any new evidence. It’s only going to allow evidence you submit during the appeals and claims processes. An experienced lawyer knows how to read that record you got, talk to your doctors and get the kind of information into the record that needs to be in the record.

So having an attorney look at it and say, ‘If I were going to court, this is what I would want in the record. We’ve got to produce this now.’ You’re paying the attorney to do a better job on the appeal than you could do yourself. Is that worth the money? Usually it is, because if you’re denied and you haven’t introduced the right evidence, not many lawyers will take your case to court. At that point, it can’t be won because the right evidence wasn’t introduced. So unless you feel highly qualified to do this, I would recommend getting an attorney at the final appeal stage.

When you have more than one chance to appeal

Insurance companies may give you more than one chance to appeal. They’ll say you have the right to appeal and if that appeal is denied, you have a voluntary second appeal. Dean says, “If that’s the case, then take your shot at the first appeal. As long as there’s at least one appeal left remaining for an attorney to do, then it’s okay to do the rest yourself. But don’t bring in the lawyer with only three days left to appeal. Please don’t do that.”

If you’ve been denied valid benefits under ERISA, consult with an experienced ERISA attorney to discuss your situation and evaluate your options. Consultations are free, without obligation and strictly confidential.