By: David P. Martin

Many times clients and attorneys don’t look at the timeframes set forth in the letter denying a claim as being “etched in stone”.  However, failing to timely appeal a claim may be viewed by some Judges as fatal to your case.  In fact some find that it is as fatal as failing to file a lawsuit before the applicable statute of limitations.

In a recent case known as Brashear v. Aetna Life Insurance Company, 2013 W.L.1405352 (W.D. Louisiana April 5, 2013) the court dismissed Mr. Brashear’s case by noting that he failed to follow the appeal process time limits with Aetna as set forth in the plan documents.  While it is best to have an attorney before appealing a denied benefit claim, it is also a problem if you fail to appeal that denial of benefits with relevant information.  Attorneys who do not regularly practice in the area of ERISA are often caught off guard by this matter since attorneys usually just pay attention to when the applicable statute of limitations runs.  That can be a problem in an ERISA case, since the applicable statute of limitation may actually be enforcement of a contractual term in the plan document.

In Brashear’s case his claim was denied May 2, 2010 and he had 180 days or by the court’s calculations until October 30, 2010 to appeal the case.  The appeal was not forthcoming however until November 7, 2011.  No reason was offered as to why the appeal was submitted late and so the case was dismissed for failure to exhaust plan remedies in the plan documents.  Such a failure makes it easy for Aetna to win in Court.  Many unsuspecting claimants and attorneys can be caught by this.

Individuals with ERISA claims need an experienced ERISA attorney early on in the claim process.  You need someone who knows the ropes and knows how to counter the tactics utilized by insurance companies.  My firm opinion is that you do not want to hire an attorney who dabbles in a little bit of everything, but rather someone who regularly practices in the area of ERISA and depends upon their living for such cases.