Top Ten Ways to Protect Your Disability Claim

You trusted the safety net that you paid into and believed the guarantees and promises that were made. Now something happened and you can’t work, but your insurance company says you have no claim, or that you’re not disabled. This is a frustrating and scary situation that you have never been in before; but we have. Below, we explain ten ways that we can help you fight to get you what you are owed and protect what’s yours:

  1. Examine whether your claim is subject to ERISA.

“ERISA” stands for the Employee Retirement Income Security Act and is a federal law that regulates most employee benefits received through an employer. Many, if not most, disability benefits are subject to ERISA. With ERISA, there are rules involved in appealing your case and taking it to court that are different from ordinary insurance and contract disputes. Marcellino & Tyson is one of a handful of firms that have a proven record of success helping individuals secure ERISA benefits.

  1. Know the importance of the administrative record.

If your disability plan is subject to ERISA, then your ability to “try your case in court” is substantially limited. ERISA requires you to complete an appeal process through the insurance company before proceeding to court. This process forms the “administrative record” which includes the information the insurer reviewed while determining your claim for benefits.

When an ERISA case eventually goes to court, the only evidence that the judge will consider is the administrative record. Most people think that when they go to court they can testify before a jury, have witnesses and provide supportive documents. However, with ERISA you must get all the information in to support your case before the insurance company makes a final decision, and if the insurer denies the appeal, a judge, not a jury, will review the decision. Otherwise, that information will not be considered by the judge later if the claim is denied.

  1. Get a copy of the administrative record ASAP.

Since the administrative record is the most important part of your case, you want to be able to see it, especially before you submit your appeal. How do you get a copy? Ask. You are absolutely entitled to a copy of the administrative record from the insurance company, for free. But, you must write to ask for it.

  1. Review your Plan Documents.

You need to know what your Plan requires for you to prove that you qualify for benefits. This information can be found in the plan documents. Your employer’s human resources department should be able to provide you with a document called the “Summary Plan Description” also known as the SPD.  The SPD should tell you who the “plan administrator” is—usually this is your employer or someone who works at your company, not the insurance company. After you figure out who the Plan Administrator is, you need to request the rest of the plan documents from them, in writing.

  1. Do not believe that the insurance company is your friend.

The insurance company not your friend. Often, the insurance company is determining whether or not they have to pay you benefits, which would cost them money.  Given the potential conflict of interest on the part of the insurance company, you cannot rely on the insurance company to gather all information that will support your claim. You should gather such information yourself, preferably with an attorney, to ensure that it is presented to the insurance company in the manner most supportive of your case.

  1. Find out what insurance company is up to while your claim is ongoing.

While your claim is being considered, it is likely the insurance company is doing several things. They may be contacting your current physicians, sending your medical records to an outside physician, hiring vocational personnel to provide an opinion about your job prospects, or asking a private investigator to observe you.

  1. Don’t stop collecting helpful information after you file your appeal.

The takeaway: the best course of action is to ensure that all favorable evidence is presented to the insurance company before or with your appeal. But, if you find new information that was not provided earlier in the process, or just recently became available, you want to try to incorporate it into the record as soon as possible so the insurance company can consider it and hopefully rule in your favor.

  1. Pay close attention to your medical records.

It is critical to ensure that the insurance company has all your medical records. But, it’s also critical to review the records before you send them.  Do you know what your medical records for your disability claim say? You can bet the insurance company does. Do the records accurately reflect what you and your doctors have discussed? Do they provide a clear diagnosis of the reason that you’re claiming disability? Is there incorrect or incomplete information? Are there gaps? Is there surprising information?

In one of our recent cases, our client was surprised to find that her doctor’s notes said that her medical condition was “now” well controlled. When the client inquired, the doctor immediately noticed the error – “now” was supposed to be “not.” By reviewing the medical records ahead of time, you can fix problems before they arise.

  1. Think outside your medical records.

When you are compiling your appeal, don’t just stop with collecting medical records. Because ERISA doesn’t give you an opportunity to testify in court, you need to find other ways to tell your story and explain what you are dealing with every day.  Certainly, your medical records are very important to your claim, but they are only part of the picture. At Marcellino & Tyson, we help collect other evidence of your disability like witness statements, video recordings, and sometimes work with vocational experts to help illuminate the details of your reality.

  1. Seek an attorney’s help BEFORE your claim has been denied.

Disability claims oftentimes require a great deal of up-front “legwork” that you must do to ensure the best presentation of your case. Seeking help from an attorney is the best way to do so. Unfortunately, clients oftentimes seek legal counsel only after they have been fully and finally denied.

Navigating the administrative process can be a time consuming and difficult process, but we can guide you through it. We work as your counselor and advocate and have your best future in mind. It’s very hard to concentrate on healing and learning to cope with a disability when you’re also battling an insurance company and worried about whether and when you might begin to receive benefits. Having experienced counsel take some of those burdens away and serving as a point for dealing with the insurance company and others during the administrative process can often provide a significant measure of comfort.

Many clients are worried about approaching an attorney for help with their disability claims because they believe they will have to spend a lot of money upfront. We understand that you may not be able to afford to pay an attorney while you’re fighting for your benefits. At Marcellino & Tyson, PLLC, our attorneys regularly handle disability claims on a “contingency” basis, which means that unless we recover for you, there is no attorney fee. This arrangement allows our clients to have the legal representation they need without having to worry about paying a lawyer while their case is ongoing.

Fortunately, Bryan Tyson is a highly knowledgeable and experienced Charlotte long-term disability lawyer who understands the legal process from all sides. After obtaining both his JD degree and his LL.M. (Masters of Law) in Taxation with a concentration in Employee Benefits, he represented corporate clients in ERISA matters. Today, attorney Tyson uses his more than 17 years of experience in ERISA matters to represent individuals in their claims for disability benefits.

Call Marcellino & Tyson to set up a consultation today. We are ready to advocate for you and protect what’s yours!


The information provided in this document is intended as general information about general legal topics and should not be construed as legal advice on any specific facts and circumstances, nor an advertisement for legal services.  If you have questions about your specific situation, we encourage you to contact Marcellino & Tyson to set up a free consultation.