A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 
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• Marjory Harris

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HARRIS: Your firm specializes in obtaining benefits
under income protection plans that some workers
have as an employment benefit. It seems that while
this is offered as a free perk, or sometimes
purchased by my clients from their paychecks,
they have a lot of trouble collecting the benefits.
Why is it so hard to get money from the insurance
company?

FRICKER: There are two reasons: First, no one wants
to part with their money. Insurance companies are
no different, in fact, probably worse than other people
or entities in this respect. Secondly, many claims
adjusters are cynical and operate with a belief
system that most claims are bogus. This is
especially true when the claim is based on a medical
condition that is hard to diagnose or where the
symptoms are predominately subjective. However,
this cynical and skeptical attitude can often be quite
extreme when dealing with claims for benefits under
short or long term disability insurance plans,
because the benefit “Plan” is usually a type of trust
or quasi trust for all potential beneficiaries. So the
claims adjusters feel they must “protect” the
remaining potential beneficiaries by doing their
utmost to deny bogus claims. Now, I don't agree or
like this because I believe it’s unfair. But our
experience has shown that you must understand
their position to be an effective advocate. I guess
this leads to a third reason it’s hard to get the
money -- bad advocacy!

“Our experience as disability insurance attorneys has shown that when someone becomes disabled and cannot work and then makes a claim for benefits under their insurance plan, the insurance company does everything it can to deny the claim.”

“Short or long Term Disability Insurance Plans (Income Protection Plans) are insurance policies designed to protect individuals from the devastating consequences of total disability. These plans usually pay the claimant between 50% and 80% of the claimant's earnings if and when he or she cannot work. These plans are purchased individually or, more typically, are discounted or subsidized as part of an employee benefits package.”

From the Fricker & Mellen
website


HARRIS: 31+ years of practice and reading John
Grisham's The Rainmaker have convinced me that
STD/LTD insurers don't send a check until they get
a demand letter from a lawyer. Am I being too
cynical? And should the workers' compensation
attorney send the demand letter or refer the injured
worker to someone like you who actually brings
ERISA cases in Federal District Court?

FRICKER: No, you're not just being cynical --- you're
being realistic. Insurers often don't take claims
seriously unless they get a demand letter from an
attorney. But I don't think attorneys should write the
demand letter in these types of cases unless they
know what they are doing. These claims are nuanced
and often difficult. As you know, they are usually
(but not always) governed by ERISA, and determining
whether or not the claim is governed by ERISA or
State law can itself be quite complex. Personally,
I would never take a workers’ compensation case
because I don't want the stress of dealing with an
area of law that I know nothing about.

 

“The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.”

From the U.S. Department of Labor’s website.

 

HARRIS: If we refer the client to an outside firm
such as yours, what information and documents
do we need to send? Or should we stay out of the
process and just give our clients a name and number?

FRICKER: You should just give them our information --
our web site would be a good start -- and stay out of
the picture. Unfortunately, we cannot give referral
fees. It’s not because we are cheap – it’s because
there just isn't enough money involved. For example,
almost all LTD Plans have provisions for offsetting
from the gross benefit payment any workers’
compensation indemnity, SDI and Social Security
payments. There is an added difficulty that attorney
fees are only recoverable in ERISA cases for work
done after the filing of the complaint in District Court.
Fees for the work done on the administrative appeal
are not recoverable.
 

Tim Fricker and Jim Mellen are experienced trial
lawyers with over thirty years’ experience with
insurance-based disability claims, ERISA, denial
of benefits under medical plans, and other
insurance law.

Fricker Mellen & Associates
Tribune Tower
409 13th Street, 17th Floor
Oakland, CA 94612

Tel: (510) 663-8484
Fax: (510) 663-0639
www.disabilityinsuranceerisa.com
 


How to Get Short or Long Term
Disability Benefits

Tim Fricker, Esq. of Fricker & Mellen & Associates specializes in helping claimants obtain benefits under short or long term insurance plans. In this interview with Marjory Harris, he explains why claimants need lawyers who know ERISA.
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