Articles Posted in LongTerm Disability (LTD) Insurance

Insurance denial, ERISA denial, claim denied
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid.  It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies also usually require that notice of a claim be given within a specified time period following the loss, for example, “30 days,” or “as soon as practicable,” or “as soon as reasonably possible,” etc.  Again, this is fair because evidence related to the claim is fresh, and most readily available nearer the time of the event.

But, what happens if you can’t, or don’t comply with the policy notice requirement?  What happens if don’t give notice until months, or even years after your claim accrued?

Good questions.

One of the most common mistakes we see with long term disability (“LTD”)  denials (ERISA and non-ERISA/bad faith) is claimants rushing to submit their appeal. The desire to move quickly is understandable:

  • You have no money coming in;
  • You are angry at the insurance company and want to give them a piece of your mind;

Many of the “rules” governing ERISA claims are not contained in the statute itself, but rather are the result of judicial decisions interpreting ERISA. In the landmark case of Firestone v. Bruch, 489 U.S. 101 (1989), the U.S. Supreme Court upheld the right of an ERISA fiduciary (including insurance companies!) to reserve “discretion” to decide eligibility for benefits under an ERISA plan. When “discretion” is granted to an insurance company or a claims administrator, a reviewing court does not decide whether or not the claimant is entitled to benefits under an insurance policy. Instead, a court is limited to deciding whether the insurance company abused its discretion or acted “unreasonably” when deciding the claim.   Under this standard of review, some courts have concluded they are compelled to uphold the insurer’s decision merely because there was some medical support for the decision. See, Carlo B v. Blue Cross Blue Shield, 2010 WL 1257755 (D. Utah, 2010 (It does not matter whether the Court agrees with the insurer or its physicians. The decision need not be the only logical decision or even the best one.)

After years of unfair decisions under this standard of review, some states, including California, have taken action. Effective January 1, 2012, the California legislature outlawed discretion in policies. California Insurance Code, Section 10110.6. The statute applies to any policy which “issued or renewed” after January 1, 2012 and which covered residents of California.  What this means is that courts can now actually look at the evidence and decide for themselves whether they think an insured person is entiteld to benefits.  This is called a “de novo” proceeding, meaning the court will look at the evidence “anew” instead of deferring to what the insurance company decided. (See one of our earlier blogs for more info: http://www.californiainsurancelawyerblog.com/2015/03/california_insurance_code_sect_1.html )

Insurance companies such as MetLife, Liberty Life, Prudential and others have tried making all kinds of arguments to avoid the impact of section 10110.6. Application of the statute can depend on the facts of the case, but, since January 1, 2012, Kantor & Kantor has been successful in persuading many Federal Judges, and even insurance company lawyers, to invalidate or ignore grants of discretion written into insurance plans. A number of other experienced ERISA practitioners have also been successful in this argument. To date, the statute has been applied in at least 15 court decisions in California.

Why pass on free personalized advice?

One of the people who contacted us this week was a woman who had her Long Term Disability benefits terminated by Standard Insurance Company after Standard had paid her those benefits for many years. Despite multiple surgeries, her symptoms had not improved. Each morning she takes powerful pain medications. Sometimes those medications offer enough relief to enable her to attend to daily functions, but often, they do not.

Either way, she was certainly not able to perform the duties of her job when Standard cut off her benefits. Nonetheless, Standard Insurance Company all of the sudden determined she had not provided sufficient proof of disability and terminated her Long Term Disability benefits. Thinking this was simply a misunderstanding, she appealed the denial on her own without speaking to an attorney first. After all she reasoned, Standard Insurance Company had told her all she needed to do was explain to them why she was still disabled.

On January 13, 2017, the Los Angeles Times published a column entitled Healthcare insurance hell: If at first your claim is denied, try, try again

The article describes on insured’s extreme difficulty in obtaining approval for treatments of her multiple autoimmune disorders that cause chronic pain, migraines, extreme dizziness and debilitating chronic fatigue. As the title shows, the main thrust of the argument is to never give up if your health insurance claim is denied – however, this advice is not only applicable to health insurance claims – the same holds true, believe it or not, for Long Term Disability, Long Term Care, and even Life Insurance claims!  

Some interesting additional information is also included in the column:

Today we revisit the case of LaVertu v. Unum Life Ins.Co. of Amer., 2014 U.S.Dist.LEXIS 40442 (C.D.Cal. March 25, 2014), a case which highlights some of the tactics insurers use to stop paying long term disability claims. Kantor & Kantor represented the plaintiff and was successful in getting her disability payments reinstated.

The Plaintiff worked as an administrative assistant for an insurance agency. She became disabled in 2007 due to back pain. Unum approved the claim, began paying benefits in 2008 after the expiration of the six-month elimination period, and continued paying benefits for more than two years. However, benefits were terminated as of March 21, 2012 based on Unum’s conclusion that LaVertu no longer met the contractual definition of disability. The plaintiff’s pre-litigation appeal was unsuccessful and she filed suit.

LaVertu introduced evidence that she had undergone three spinal surgeries. None of the treatment improved the plaintiff’s condition, however. The Social Security Administration concurred, and awarded LaVertu disability benefits under the Social Security Act. Unum obtained a copy of the entire Social Security disability insurance claim file. After reviewing the contents of the file, Unum’s in-house vocational consultant determined that the file supported sitting for no more than four hours per day; thus, the plaintiff could not meet the exertional demands of a sedentary occupation. Following that review, which took place in 2009, Unum internally noted,”Clmt is [totally disabled] any occ and R&Ls are permanent.” That information was communicated to the plaintiff in a follow-up letter stating, “we do not anticipate a change in your medical status and therefore, have made the decision to extend our approval of your benefits through February 20, 2030.”

As part of Kantor & Kantor’s”Throwback Thursday”, we take a look at Mondolo v. Unum Life Ins. Co. of Amer., CV-11-07435 CAS (MRWx) (C.D. Cal. 2013).

Kantor & Kantor LLP achieved a victory on behalf of client Tanya Mondolo, who sued Unum Life Insurance Co. in U.S. District Court for the Central District of California for wrongfully denying her disability insurance benefits. The court ruled that Unum, a Fortune 500 company and the largest group and individual disability carrier in the United States, abused its discretion in terminating Mondolo’s disability benefits. The court ordered Unum to reinstate benefits, with interest, and that Kantor & Kantor could make a motion for attorneys’ fees and costs.

Mondolo suffered from fibromyalgia and avascular necrosis, often called bone death. Her physicians believed the bone death was a late developing side effect from the chemotherapy regimen used years ago to treat her leukemia. She had difficulty walking, suffered from uncontrolled pain, and was too weak to tolerate prolonged sitting or typing.

Kantor and Kantor LLP was nominated and has now been awarded the 2015 Best of Business Award for the Small Business category.

The Small Business Community Association has been dedicated to empowering and recognizing small business owners who make a difference in their respective communities since 2006.

We are honored to accept this award and grateful that our firm is recognized in this way.

Kantor & Kantor is honored to announce the selection of four attorneys from the firm for the 2015 Southern California Super Lawyers list. Inclusion in this list is reserved for attorneys who exhibit distinct excellence in their practice.

Super Lawyers, a prominent attorney rating service, identifies exceptional lawyers from more than 70 practice areas. The selected attorneys have attained substantial peer recognition and widespread professional achievement. The extensive and multiphase process used to determine 2014 California Super Lawyers relies on peer nominations, evaluations, and independent research.

All four lawyers were selected for their successes in representing people denied disability – particularly those with disabling conditions such as eating disorders, autoimmune diseases, Alzheimer’s, Parkinson’s, Multiple Sclerosis, cancer and mental illness – as well as assisting people recover benefits under long-term care, health and life insurance policies. This recognition and honor demonstrates the talent, dedication, and diligence of these attorneys; all of which they utilize to obtain the insurance benefits to which their clients are entitled.

Many of our clients have disabling pain. However, the difficulty is proving that the pain is disabling. There is no test to quantify the severity of pain as it is an entirely subjective condition. This does not mean however, that an insurance carrier is free to disregards reports of disabling pain, merely because there isn’t “objective evidence” to quantify its severity.

An insurance carrier may not disregard a claimant’s reports of symptoms in the absence of a specific, clear and convincing reason. Subjective evidence of a claimant’s pain, based on his own testimony and the medical reports of examining physicians is more than ample to establish his disability, if believed. Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872-3, fn 3 (9th Cir. 2008). Rather, the severity of symptoms of pain, so long as they are consistent with the prevailing diagnosis and are supported by the other evidence, will, of necessity, be established by symptom complaints.

What types of “other evidence” will a court consider as persuasive of disabling pain? Courts are often impressed with the severity of a claimant’s pain when it appears that the claimant has pursued treatments in an effort to relieve the pain.

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