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What Do I Have To Do Before I File Suit?

Ordinarily, a long-term disability claimant must exhaust his or her internal review before bringing a claim for judicial review under § 502(a)(1)(B). In other words, a claimant typically has to complete the appeal process as described by the long term disability policy and/or plan. However, the Sixth Circuit has “repeatedly held that exhaustion may be excused if the claimant establishes futility.” Welsh v. Wachovia Corp., 191 F. App'x 345, 356 (6th Cir. 2006) (citing, e.g., Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 718–19 (6th Cir. 2005); Weiner v. Klais & Co., 108 F.3d 86, 90–91 (6th Cir. 1997)). A district court is “obliged to exercise its discretion to excuse non-exhaustion where resorting to the plan's administrative procedure would simply be futile or the remedy inadequate.” Id. (quoting Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 419 (6th Cir. 1998)). In assessing futility, the court must decide “whether a clear and positive indication of futility can be made.” Fallick, 162 F.3d at 419. To meet this standard, a plaintiff “must show that it is certain that his claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.” Id. (quoting Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)). “The futility doctrine is more easily applied in situations when the claimant has properly filed an application for benefits and initially been denied, but then fails to pursue an administrative appeal for whatever reason.” Welsh, 191 F. App'x at 358. Additionally, there is jurisprudence indicating exhaustion is not required if administrative remedies are not efficacious, where irreparable injury will result unless immediate judicial review is permitted, or the administrative proceeding would be void. Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1092-1093 (6 th Cir. 1981); Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1081 (D.C.Cir.1978); Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359, 363 (7th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978); Rhodes v. United States, 574 F.2d 1179, 1181 (5th Cir. 1978); Winterberger v. Teamsters, Local Union, 162, 558 F.2d 923, 925 (9 th Cir. 1977)).” There are many situations where this can happen, but a typical scenario occurs when the receipt of benefits under a short-term disability (STD) plan is a requisite qualification for any benefits under the long-term disability (LTD) plan. In that situation, a wrongful denial of benefits under the STD plan automatically precludes a determination of eligibility under the LTD Plan such that any submission of the LTD would be futile.” See, e.g., Williams v. Liberty Life Assurance Company of Boston, et al., Case No. 2:11-cv- 01914-MMD- CWH (D. Nev. 2012), No. 23, p.4.


Seth has always been compelled to excel, whether it meant earning his Eagle Scout as a teenager, participating in theater, debate and varsity football in high school, his Rhodes Scholar candidacy in college, or opening his own law firm. He also perseveres in situations others might shy away from, whether it involves sky-diving, rappelling down a mountain, white-water rafting, participating in marathons and triathlons, writing a novel, or lecturing nationally to large audiences about the vagaries of ERISA.


Seth is committed to serving disabled individuals. He is proud of his work in prominent organizations such as the American Association for Justice (AAJ), the Tennessee Bar Association (TBA) and Hospice. Seth is past-Chair of both AAJ's & TBA's Disability Law Sections, past-President of the Chattanooga Trial Lawyers Association, a 2-time recipient of the Pro Bono Excellence Award, and a 7 year member of the Board of Directors for Hospice of Chattanooga.