No one wants to have their claim denied, but when it happens you have to be prepared to fight to get the benefits that you know you deserve. Part of being prepared is knowing what standard of review you are likely to face.
Recently, we talked about how you can know whether you’ll face the more favorable de novo review or a deferential review that gives the advantage to your insurer. But there’s a question that may be even more important: if it is determined that the court in your case will be using a deferential standard of review, you need to know if that standard will be abuse of discretion or arbitrary and capricious.
The Vast Gulf between Abuse of Discretion and Arbitrary and Capricious Reviews
Why is it so important to know which one you’re going to be up against?
The first reason is so that you and your legal counsel can be proactive in putting together evidence designed to prove one or the other. Any good lawyer will tell you that the more time they have to dig around and gather the information they need, the better chance there is of winning the case.
But there’s another reason as well: studies have shown that which deferential standard a claimant faces matters – a lot. Those who go up against an arbitrary and capricious standard only win their suit 28% of the time. In contrast, claimants with abuse of discretion as their standard of review win 68% of cases!
Unfortunately, you can’t choose which deferential standard will be used. It’s something decided at the state level. More than half of all states, including California and Texas, use abuse of discretion. 13 use the arbitrary and capricious standard. And the remaining nine go back and forth, sometimes using one and sometimes the other.
Discovering that your state uses the arbitrary and capricious standard isn’t necessarily a reason to give up hope, though. If you know that this is something you may face, you should contact an experienced disability attorney as soon as possible. Not only will this help them in building the best case possible for you, but they may be able to use their legal knowledge to show that the insurer should not be given a deferential standard of review at all.
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