Legal Issues: Finding an Attorney
Due to fatigue, memory and concentration problems, pain, and other symptoms of chronic fatigue syndrome (CFS), many persons with CFS (PWCs) find it helpful to hire an attorney to assist them with their disability claims.
There are two types of disability insurance: Social Security and long-term disability (LTD). Each has different rules governing attorney representation.
In most cases, finding a Social Security attorney is fairly simple. It is important, however, to make sure the attorney you choose is knowledgeable about and sympathetic to CFS.
Local CFS support groups are good sources of information about attorneys who have worked with local PWCs. The National Organization of Social Security Claimants Representatives has a national referral service for people seeking attorneys to help with their Social Security claims.
The Social Security Administration (SSA) has established guidelines governing payments to attorneys in Social Security disability cases. If you win your case, the attorney can receive 25% of past-due benefits (and nothing from future benefits); if you lose, there is no fee. In most cases, SSA pays the attorney directly once your benefits are approved. While attorneys are not required to follow these guidelines, most do (a claimant must sign a special waiver if he or she agrees to pay an attorney more than the standard rate).
There are two types of LTD policies: employer-paid and privately paid. The type of policy you have affects your legal rights.
If you think you will be hiring an attorney, it is usually best to arrange a consultation prior to submitting a claim, as an attorney can help preserve your legal rights. For example, in an employer-paid plan, claimants are usually prohibited from presenting new evidence in court, and a skilled attorney may be able to help you develop your initial claim to give you the best chance for a positive outcome. If you feel that your LTD carrier is treating you unfairly, an attorney may be able to answer your questions about the advisability of initiating a lawsuit.
If your employer paid for your LTD policy, the federal Employee Retirement Income Security Act (ERISA) governs it. This law states that claimants can sue an insurance company, but in most cases the company's liability is limited only to the amount they owe you in unpaid benefits. Compensation for bad faith, emotional distress or punitive damages is rarely permitted and even successful claimants infrequently recover court costs. If it can be proven that the insurer acted in an "arbitrary and capricious manner" additional damages may be awarded.
If you purchased your LTD policy privately from an insurance company, you are not subject to ERISA and can sue to recover benefits, as well as for bad faith, emotional distress and punitive damages. For this reason, it may be easier to find an attorney in a private disability case. However, private LTD policies are less regulated and the rules that apply to these policies are more arbitrary and less predictable.
ERISA cases are very complex; it's crucial to your success that your attorney has demonstrated experience in litigating these cases.The ideal LTD attorney will be experienced in both disability and contract law. Potential sources to locate such a person are friends and colleagues, local support groups, other attorneys or professional groups like the American Bar Association or the American Trial Lawyers Association.
Legal Representation in Other Situations
PWCs may find that they need other types of legal assistance, such as securing workplace accommodations under the Americans with Disabilities Act (ADA), declaring bankruptcy or participating in divorce or child custody cases.
Ask friends and colleagues, local support groups, other attorneys or the American Bar Association or your local Bar Association for suggestions for attorneys. Then interview several attorneys and ask them about any past experience with the subject matter of your case, as well as with CFS or related illnesses. If they are not familiar with CFS, but seem otherwise qualified, make certain they are sympathetic to CFS and willing to learn about it.
The CFIDS Association of America, Inc. serves as a clearinghouse for information about chronic fatigue syndrome (CFS). Information provided is intended to assist patients as they make informed decisions about issues affecting their health. The Association assumes no liability for any medical treatment or other activity undertaken by patients and endorsement of any group or individual is not given or implied.