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Disability Benefit Types and Qualifications

An unwitting claimant who is worried about receiving much needed disability benefits is faced with the challenging decision of choosing a representative to assist in this crucial matter. Once a person has been cut off from receiving a consistent salary, the bills faced become immediately daunting and, in too many cases, the prospect of running out of available money to pay debts starts to become a new and unpleasant reality. This situation makes people feel powerless and will seek assistance of an attorney if they have any sense at all.

As you know, the worst thing a potential disability benefits claimant can do is serve as their own counsel and appeal his or her claim own ERISA-based disability claim without an experienced attorney. In most ERISA cases, only a single appeal will be allowed and the materials presented will be the only new documents admitted to the claim file prior to litigation of the case. If everything possible to support the case is not presented to the insurer, then the claimant loses forever since new evidence will not be admissible during the litigation and there is no testimony presented. An ERISA trial will be based on the claim file only in nearly all cases. So, serving as your own counsel during the appeal may doom your case for good.

The risk of initial appeal is not as great in Social Security disability claims, but the risk grows greater as the process goes along. When it comes time to appeal the case to an Administrative Law Judge, you have hit a very important step with following events which could become decisive in your case.

When consulting an attorney for assistance with a disability benefits case, you should ask a few very pointed questions and expect honest and complete answers:

1. Do you have experience in handling this type of case?
The chosen attorney should have ample experience. Our firm as handled thousands of disability benefits claim successfully and has the necessary experience to handle nearly any case. No person should take the risk of an attorney learning on the job with their case. If it were a surgeon, you would not permit the person to operate on you without supervision. This is no different and the outcomes could be life-changing if a positive result is not achieved.

To this end, feel free to check out the biographical description for Scott Elkind who has a B.S. in Biology (Pre-med) and a Masters in Forensic Sciences prior to attending law school. Such qualifications are very unusual in any legal field and are very difficult to match (nearly impossible to exceed when experience is factored into the equation). Similarly, Stephen Shea has been successful in many hundreds of Social Security federal appeals. Again, he has few peers in this regard.

2. Are you familiar with my medical condition(s)?
Ask the attorney to describe some of the symptoms you are experiencing or define the condition. If the attorney cannot do so accurately, it is very telling since the attorney may not have the necessary medical background to render effective representation in your case. Since we have done thousands of cases, we are familiar with nearly all medical conditions. If you suffer from an unusual condition, we undertake all the necessary medical research to become familiar with your condition as part of our comprehensive representation. We provided representation in hundreds of cases turned down by other attorneys who cannot or will not take the time to research and understand the disabling nature of unusual medical conditions.

3. What other types of law do you practice?
If the lawyer is engaged in a general practice or provides representation in several areas of law, be aware of the old adage: “A jack of all trades and a master of none.” You should not hire an attorney who has not devoted several years to the exclusive area of representing disability benefits cases as the law is complex and cannot be learned sufficiently in short time. It takes years of learning and practice to become an effective advocate in this field.

There is another concern to be aware when making this inquiry: Does the attorney or his firm engage in medical malpractice litigation. This should be a major concern to you as physicians take an active dislike to lawyers or their firms which undertake this type of work. Do not be surprised to see physicians refuse to provide the same level of assistance as they would for attorneys who do not engage in medical malpractice work. Similarly, if the attorney states that he/she only “co-counsels” on cases, this is similarly violative the eyes of physicians. They do not care who is the primary attorney, but only knowing that an attorney is participating in work in which puts their careers in jeopardy.

Our firm has never participated in medical malpractice litigation and is proud to have represented many physicians in their own disability claims. In fact, we are proud to say that many physicians directly refer their clients to our firm so we can provide effective representation.

4. Do you appeal cases you lose to federal court?
Our firm handles most of the federal appeals to federal court in our jurisdictions as most attorneys will not handle a federal appeal. If your attorney is not sufficiently skilled or will not make the effort to appeal a case to federal court (or on to the United States Circuit Court of Appeals thereafter), you should consider this fact carefully. Most disability benefits attorneys will not take a case on for the long haul. They want to get paid without doing the real work on disability benefits cases. This is very common in Social Security cases with attorneys who handle claims at hearings (usually in a very unskilled manner) only to lose and instruct you to file a new claim (hoping for better luck the next time). In following such inept instruction, you will sacrifice your back benefits to which you may be entitled. Worse yet, if you have a date of last insured which does not permit such an appeal in the limited time left, you will have lost your right to Social Security Disability (SSD) benefits forever.

There are many attorneys who say the litigate ERISA claims, but never do more than file a lawsuit and settle for pennies or dimes on the dollar. This type of practitioner is well know to the insurers who prey upon those represented by such unscrupulous lawyers. The insurer is fully aware that the lawyer will not be able to undertake full scale briefing of the case and has the advantage of having its own retained counsel ready to do so. This allows the insurer to bargain down your claim and offer you far less money than if you had proper representation.

One of our cases was represented by such an attorney. Luckily the claimant sensed the attorney’s unwillingness to go forward with litigation. We were able to receive a settlement in an amount greater the original attorney demanded for settlement pre-litigation. This settlement came early on in the litigation process as the opposing counsel was well aware of previous litigation efforts which had impressed both counsel and deciding judges.

If you are uncertain if an attorney is not truthful, just call another local counsel to verify any representations. Attorneys know who does the real work as opposed to other attorneys who are, for lack of a better term, “hacks” in their profession.

5. Are you willing to invest your time into my case and work on contingency?
Social Security disability cases are only done on a contingency basis based on the federal payment guidelines for attorneys. Whereas, private or ERISA-based claims are subject to individual fee negotiation. When discussing fees with your clients, make sure to inquire if the attorney is willing to invest his/her time to win your case. If the attorney demands up front money, it is obvious that this practitioner has limited or no confidence in your case and is seeking to make money by working on the matter whether is its ultimately successful or not. So, you can only imagine the effort you may receive. If an attorney is willing to take the case on full contingency, the only way for the attorney to be paid is to win………no exceptions. Under this type of arrangement you can be certain that the attorney is on your side completely. Most of our firm’s cases are handled on a contingent basis although we offer flat fees or mixed fee contracts in our efforts to keep our services affordable to a wide spectrum of potential clients.

In discussing attorney fees, make sure to ask what the lawyer charges for internal costs such as copying, postage, long distance phone calls, overnight mailing, faxing, etc. Our firm has always made a practice of not charging for our internal costs, saving our clients many thousands of dollars in unnecessary expenses. As a educated consumer, you should be unwilling to pay lawyer for such”nonsense” costs inherent to operating their office as you would for any other person providing a service to you.

If the attorney charges you a “consultation fee,” think twice about even speaking to such a person. This type of attorney makes a great portion of his/her income from “consulting” rather than actually practicing law. Our firm does not charge for initial consultations for any case. Never has. Never will. There is no reason for attorneys to value their time to this extreme. We believe attorneys should be paid for their ability to win, not their ability to talk a good game.

When all is said and done, you need to ask yourself the following question: “Has this person given me the confidence I need to entrust him/her with my case.” You should have absolute confidence in your hired attorney. If this is not the case, you should invest some more time to interview other attorneys, making sure to ask the questions previously ennumerated.

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We collect only the personal information you provide to us and we do not distribute it to any third parites. Any legal information offered by Elkind & Shea, The Disability Benefits Law Firm, regarding social security disability benefits, long term disability benefits, short term disability benefits, ERISA, long term care denial and life insurance denial or other legal information offered herein is not formal legal advice nor the formation of an attorney client relationship. All communications with counsel are confidential in accordance with the applicable Rules of Professional Responsibility which require that even consultations without retention are held confidential.