In relationships, it is important to tend to them each day. When we get busy with other things and think we can invest time in that relationship later, too much time may pass, and we may lose the relationship. Scrambling to “catch up” when we finally realize our shortcomings may come too late. In a way that is what happened in Bayer v. Unum Life Insurance Company of America, et al., No. CV 18-9702, 2020 WL 616128 (E.D. La. Feb. 10, 2020).

Unum denied Ms. Bayer's claim for short term and long term disability benefits because, it contended, she had a pre-existing condition. She had received treatment for peripheral neuropathy before she was covered with the short and long-term disability plan. Unum contended however that that treatment was for multiple sclerosis. That was the condition that Ms. Bayer claimed disabled her from performing work. She contended that treatment for that condition only occurred after she was covered by short and long-term disability. Unum would not budge and refused to pay the claim.

Ms. Bayer filed a lawsuit, and then Unum responded to the lawsuit and filed with the court what it contended was the claim record. Ms. Bayer agreed with the composition of the claim record. Unum then filed a motion for the court to rule in its favor and dismiss Ms. Bayer's case. Ms. Bayer responded to the motion and filed a physician affidavit explaining that the treatment for peripheral neuropathy was not related to multiple sclerosis and that defendant's understanding of it was faulty and contrary to basic medical science. Unum contended that the affidavit was not in the claim record it filed, and the plaintiff did not challenge that previously. It was too late to add the affidavit now. Unum moved to strike that declaration and the court did strike the relevant parts.

The court agreed with Unum that the time for providing such evidence was during the claim process and not in litigation. The plaintiff argued that the assertion of the treatment in question as being related to MS, was a new reason to deny the claim and was not previously asserted. However, the record supported the assertion of this new reason and apparently the court thought that was good enough. More importantly the plaintiff did not challenge Unum's composition of the claim record in litigation. The court was required to review Unum's decision according to the record before it in litigation, and it found Unum's reason to be supported and the plaintiff's explanation to be absent from the record. Case over.

The time to hire an ERISA attorney is during the claim process. It is critical to obtain counsel on your side to make the claim record strong during the claim process, and so that counsel has complete familiarity with the claim record before litigation.

Experienced ERISA counsel can submit evidence countering all asserted reasons for denying the claim and even unasserted reasons for denying the claim. Hiring ERISA counsel before an appeal is due, is always the safest and best course of action.

Periodically, we hear potential clients say that they don't want to hire an attorney during the claim process because they want to save the money. In my book it is always better to have something as opposed to nothing. If you wait to hire an ERISA disability attorney until it is time to file an ERISA lawsuit, you may be too late and end up with nothing. You cannot trust insurance companies to make conflict free decisions. They are profit driven and they make money denying claims not paying them. Too much time may pass, too little is done, and now it is too late … to save your claim.