California Insurance Lawyer Blog

A recent Wall Street Journal article tells the story of our client Celina Whinery, who is suing Life Insurance Company of North America (LINA), a unit of Cigna, after the insurer refused to pay benefits the policy promised upon her husband’s death because he died in a one-car accident while legally intoxicated.

LINA argues that an insured who is legally intoxicated at the time of death is not entitled to benefits -- even though the policy does not exclude intoxication. Even though the policy language does not support LINA's argument, the insurer is forcing beneficiaries around the country to sue for benefits, and then appealing the cases it loses, which is most of them.

LINA knows how to exclude drunk driving from a claim for accidental death. It has a policy form that does exactly that. Those policies are less expensive however, since benefits are further limited. Instead, LINA sold a policy to CitiGroup (Mr. Whinery’s employer) in which it charged CitiGroup more money for a policy that did not exclude drunk driving. When Ms. Whinery made a claim on the policy (asking LINA to make good on their promise to pay), LINA denied the claim saying death due to drunk driving is not an accident and thus not covered. So, LINA makes more money by charging CitiGroup for the more expensive policy, but administers and denies claims as though they are dealing with the less expensive policies that expressly contain the exclusion.

LINA told Ms. Whinery that the policy defined accident. It didn’t. Moreover, the definition of accident LINA says was in the policy is not the definition of accident that the Appellate Court ruled applies in this type of case.

To make matters worse, LINA has an internal “authoritative” claims manual instructing that in cases of drunk driving, if there is no “intoxication exclusion” that claim must be paid.

So why is LINA forcing Ms. Whinery to sue for benefits? Mainly because federal law gives carriers of employer-based insurance the “discretion” to decide which claims they will – or will not – pay, as long as the decision is not "arbitrary or capricious."

Thankfully, California, enacted a law this year that now bans the enforcement of so-called "discretionary clauses" in insurance contracts (Insurance Code section 10110.6). Going forward, insurers will have to persuade the courts that their denials are supported by credible evidence. The law might not help Ms. Whinery, who told the Wall Street Journal, “Emotionally, you are going through a lot of things, and then to add this [unfair denial] on top, it makes it even worse.”

We are about to bring a case to trial for a client who is disabled by AIDS-related symptoms, and has been since 1994. For more than 15 years, our client had proven his inability to work in any occupation, and Fort Dearborn Life Insurance Company paid benefits according to his disability policy. Without any warning, however, Fort Dearborn terminated our client’s long term disability benefits -- even though the medical evidence regarding his symptoms and the Social Security Administration’s disability determination remained unchanged.

What Fort Dearborn claimed had changed, according to its surveillance of our client, was his ability to perform limited activities of day-to-day living. Notably, for over a decade, our client had informed Fort Dearborn that he was capable of exactly that level of limited activity. So why the termination?

In its argument to the Court, and without a scintilla of evidence to support the claim, Fort Dearborn wrote:

“[Plaintiff] completely ignores the fact that there have been advances in medicine and numerous examples of HIV patients who have gone on to lead meaningful and industrious lives.”
…
“The former National Basketball Association player, Ervin [sic] 'Magic’ Johnson is one such example.”

Essentially, if Magic is fine, the argument goes, our client is fine.

Twenty years ago Earvin “Magic” Johnson made an announcement that altered the public’s perception of himself and HIV/AIDS. Clearly Magic’s courage in publicly confronting this disease had a significant positive impact on the public’s awareness of the actual facts regarding HIV/AIDS.

In 1991, it was widely believed that Magic’s announcement was tantamount to a death sentence. People had a real impression of the hardship faced by those suffering from HIV/AIDS. Fortunately, the medical landscape did change. Treatments improved, as did the quality of life for some, but not for all.

Magic started taking a cocktail of up to 15 pills per day, and he lived. The symbol of HIV/AIDS in America, Magic’s life changed the public’s perception of those suffering from HIV/AIDS. As Associated Press Sports Writer Greg Beacham put it, “with two subsequent decades of vibrant living, [Magic] forever altered attitudes about the virus and its effects.” See, “Magic Johnson Still Beating HIV 20 Years Later.”

Sadly, the current perception of those suffering from HIV/AIDS is one of a vibrant, vigorous, and successful businessman. For all too many, this perception is also dead wrong.

Our client continues to suffer from disabling fatigue, painful neuropathy caused by his AIDS medications, and ever present, embarrassing diarrhea. This is the reality of many suffering from symptoms due to HIV/AIDS. It is also a reality that is obscured by his prominence in the public’s eye, as Magic himself reminded Beacham:

“‘I often say I’m good for the virus, and bad for it,’ Johnson said. ‘Good because I’m doing well, and that I can go out and try and raise the awareness level, get people to go get tested…but on the flip side of that, people see that I’m doing well, so they’ve kind of relaxed on HIV and AIDS. People think that now if they get the virus, they’ll do well…’”

It is not a new message that Magic is trying to spread. Five years ago Magic was quoted in USA Today: “‘You can’t take that attitude that you’re going to be like Magic,’ says Johnson…. ‘The virus acts different in all of us. There’s no certainty that if you get the virus, you’re going to be OK.’” See, “Magic Johnson Combats AIDS Misperceptions.”

But public perception is powerful, even if it has little relation to reality, and insurers are not reluctant to use misperceptions to bolster their arguments. As a result, those not as fortunate as Magic will face increased prejudice and, like our client, the all too real consequence of those misperceptions.

We believe we can get the Court to understand this, and to force Fort Dearborn to pay our client the benefits he deserves.

If you have encountered misperceptions leading to Long Term Disability benefits terminations for AIDS-related or any other disability, contact us at (800) 446-7529. We can help.

Life Insurance Company of North America (LINA) insured the life of Timothy Whinery. Mr. Whinery died in a tragic automobile accident. His wife eventually made a claim for life insurance benefits under the LINA policy. Incredibly, even though the LINA policy promised to pay benefits for a loss "caused by an accident," the policy did not define the term "accident." Worse, in this case LINA determined that Mr. Whinery's death was not caused by an accident, and so refused to pay. The facts are a bit complicated, but in essence, LINA said that because Mr. Whinery was legally intoxicated at the time of the accident, his death was "foreseeable," and foreseeable consequences cannot be deemed accidental.

What's worse, LINA actually sells life insurance policies that contain specific provisions precluding benefits when death is caused by driving while intoxicated, but the Whinery policy DID NOT contain any such exclusion. This claim should have been paid! Our view is that LINA is acting unreasonably and in bad faith in continuing to deprive the Whinery family of the life insurance benefits they paid for. You can read more details in a Lawyers.com blog item by clicking on this link: DWI Death an Accident, Insurer's Claim Rejection Not

The case is filed in the Central District of the United States District Court and is assigned to the Honorable Percy Anderson, Judge Presiding. Trial is currently set for December 20, 2011.

Kantor & Kantor is pleased to announce that Governor Jerry Brown has signed into law S.B. 621. California State Senator Ron Calderon first proposed the legislation, which regulates life and disability insurance policies, and bans discretionary clauses in such. Previously, insurers included such clauses in group insurance policies and certificate, granting themselves the power to interpret terms of the policies, and to make eligibility determinations based on their own interpretations. This law provides that if a policy, contract, certificate, or agreement offered, issued, delivered, or renewed, whether or not in California, that provides or funds life or disability insurance coverage for any California resident contains a provision that reserves discretionary authority to the insurer, or an agent of the insurer, to determine eligibility for benefits or coverage, to interpret the terms of the policy, contract, certificate, or agreement, or to provide standards of interpretation or review that are inconsistent with the laws of California, that provision would be void and unenforceable.

The law authorizes the Insurance Commissioner to adopt regulations reasonably necessary to implement these provisions.

This law will change how federal Judges consider insurance cases going forward. Previously, in the event a disabled person filed a lawsuit against an insurance company that had included a discretionary clause in its policy, the federal Judge reviewing the case would be required to defer to the insurer’s decision, rather than look at the evidence for and against disability, and weigh it accordingly. In essence, the Judge would have to assume the insurer was correct in denying a claim, unless the plaintiff could prove that the insurer’s decision was arbitrary, unreasonable, capricious or clearly wrong. The scales were tilted, in favor of the insurers, who had self-granted discretion. Now, the scales will be level again.

ERISA (which stands for the Employee Retirement and Income Security Act) was a federal law passed in 1974 which governs, among other things, employee benefits. This law governs cases brought by, for example, disabled employees who are seeking their employer-provided disability insurance benefits, which have been denied. Because these employer-provided benefits fall under the governance of the federal ERISA law, any lawsuits for such benefits must be filed in federal court. The ERISA statute only applies to life and disability insurance policies, NOT health insurance policies. Hopefully, the law will soon be expanded to encompass health coverage.

Glenn Kantor was instrumental in assisting in the passage of this bill. He provided expert testimony in California state legislative hearings in Sacramento, and continues to fight for his clients whose policies may or may not contain such discretionary provisions.

For more details you can visit Senator Calderon's site: http://dist30.casen.govoffice.com

The International Association of Eating Disorder Professionals will stream an encore of Kantor & Kantor partner Lisa Kantor’s 2011 symposium presentation How to Document Evidence Based Treatment to Maximize Insurance Reimbursement, followed by a live teleconference call with Ms. Kantor Tuesday, Sept 27, 200, at 7 pm ET/6 pm CT/5 pm MT/4 pm PT. The presentation reviews insurance carrier criteria for treatment of eating disorders and explains how evidence-based treatment records can be documented to best maximize the client's available insurance benefits.

“A provider's treatment records are the foundation for establishing medically necessity for admission and continued treatment,” says Ms. Kantor, who has been recognized as one of the top lawyers in the country representing policyholders denied benefits for treatment of eating disorders. “Evidence-based treatment records must show plans of care, symptoms, and objective evidence that satisfy an insurance company's criteria for admission and continued care.”

Although only IAEDP members may participate in the live session, nonmembers and others unable to attend may submit questions about insurance benefits for eating disorder treatment to Rachel Teicher at rteicher@kantorlaw.net before, during and after the live session.

IAEDP members may register for the call by following this link: http://myaccount.maestroconference.com/conference/register/XVQ38AL38L6GVOVQ.

The 90-minute presentation is available for preview through this link: http://player.netromedia.com/?ID=5a57395a-560a-4073-9562-13acf1b7f32c&path=/IAEDPKantor%20in%20wmv.wmv.

Additional materials may be downloaded here: http://www.kantorlaw.net/Areas_of_Practice/Eating_Disorders/2011_IAEDP_Materials.aspx.

If you have group disability insurance (through your employment), it is probably governed by the Employee Retirement Income Security Act (ERISA). If your disability claim is denied, under ERISA, you must appeal the denial prior to filing a lawsuit in federal court. We often handle appeals for clients. These appeals offer an opportunity to submit all evidence of disability, including medical records, results of evaluations designed to measure a person’s ability to work, doctor’s clinical notes, physical therapy notes, and even personnel files showing that a person performed well on the job, prior to stopping work due to disability. Generally, the appeal is the last chance a person has to submit evidence of disability, as a court may not hear witnesses or consider other evidence outside of what was generated during the claim and appeal period. GETTING ALL YOUR EVIDENCE TO THE INSURANCE COMPANY DURING THE APPEAL PERIOD IS THUS CRITICAL.

Interestingly, we have been noticing that when we submit appeals, claims representatives for insurance companies are attempting to return portions of the evidence we are submitting. This includes such things as information about medications and their side effects, relevant case law, and even video footage we sometimes produce to prove to the insurance company how physically-disabled and limited our clients are. The insurance companies have not produced any legal authority for returning information submitted on appeal, and we promptly send it back. In fact, this type of claims handling by an insurer is prohibited by the ERISA regulations, as among other things, it denies a claimant of her right to a full and fair review of her disability claim. Such a fair review is certainly informed by the claimant’s submission of all evidence which she feels may support her claim for disability.

This tactic by the insurers is a bold attempt to deny claimants full and fair reviews of their claims, as required by law. Worse, to the unsuspecting applicant, the insurance companies might get away with this practice, and thus deny the claimant the right to have all evidence before a court should the matter make its way to litigation. If this has happened to you, push back. If an insurance company is mistreating you or not playing fair in some other way, question them...and always do do in writing, with proof of mailing (or emailing).

If you have questions, or need help with an appeal, visit our website, or call us. We fight these battles every single day. Initial consultations are free. 818-446-7529.

Kantor & Kantor, LLP overcame a significant challenge in the 9th U.S. Circuit Court of Appeals on behalf of client Debbie U., who suffers from Multiple Sclerosis. The 9th Circuit ruled that Aetna Life Insurance Co. abused its discretion and wrongfully denied Debbie’s short-term and long-term disability benefits. A decision of this type, ruling on the record rather than remanding to the district court to correct its errors, is extremely rare in ERISA litigation.

This ruling ends Debbie’s six-year struggle with her employer’s disability plan which was administered and insured by Aetna. Debbie’s ultimate victory required two trials and two appeals to the 9th Circuit. After the first trial, the appellate court remanded the case to the district court to reconsider evidence of Aetna’s conflict of interest. After the second trial in which the district court ruled that Aetna had not abused its discretion, the 9th Circuit again accepted the appeal and reversed the trial court decision outright.

“The history of this case reads like a textbook example of insurer tactics to delay and discourage policyholders from pursuing the benefits they rightfully deserve,” said Corinne Chandler, the Kantor & Kantor lawyer who argued the case. “The 9th Circuit’s examination and specific findings demonstrate the importance of challenging denials that don’t make sense or rely on faulty medical evaluations.”

The appellate court found two major reasons to be skeptical of the trial court’s analysis that Aetna did not abuse its discretion, a legal term of art that applies to discretionary clauses in many disability insurance policies. Without finding that the insurer “abused its discretion,” courts cannot modify an insurer’s denial of benefits, even if the decision was wrong on the merits of the claim.

First, even though the policy required Debbie to apply for Social Security Disability Benefits, which she obtained, Aetna refused to consider the Award of those benefits (which was based on a more stringent disability standard), as evidence of Debbie’s disability. Second, although Aetna claimed Debbie did not supply the objective medical evidence it required, the 9th Circuit found Aetna’s request too vague and that the insurer did not engage in the “meaningful dialogue” the law requires in order for a policyholder to fully understand and supply the necessary information upon which the insurer would base its benefits award.

“This decision is an encouragement to policyholders who comply with insurers’ exhaustive demands and are left wondering why benefits are denied,” said Glenn Kantor, founding partner of Kantor & Kantor. “Courts have the ability to force insurers to follow up on the dictates of their own policies and make sure policyholders understand what documentation is necessary for a fair and honest benefits evaluation.”

The Court's Opinion can be read here: http://www.ca9.uscourts.gov/datastore/memoranda/2011/06/22/10-55018.pdf

About Kantor & Kantor, LLP
Kantor & Kantor is one of the largest law firms in the country exclusively representing plaintiffs who have been denied insurance benefits from life, health, disability and long-term care policies. The firm has extensive experience with the complex appeals process and federal court litigation of ERISA matters. For more information, log on to www.kantorlaw.net, call (800) 446-7529.

After years of uncertainty, an important legal question was finally resolved by the United States Court of Appeals for the Ninth Circuit in an opinion, Cyr v. Reliance Standard Life, issued today, June 22, 2011.

Sitting en banc, the Court considered whether or not an insurance company, acting as the administrator for an ERISA group disability plan, could be sued in its own name as a defendant in a lawsuit for benefits. For years, insurance companies have been arguing that they are not proper party defendants. The companies have successfully been forcing plan beneficiaries to try and track down plan administrators -- who are sometimes difficult to find, or expensive to serve -- in order to timely and properly file a lawsuit. Suing a plan administrator of an insured plan is nothing more than a charade, as it is the insurance companies who usually have final say about whether benefits will be paid. Because of a loophole in the law, insurers were able to frustrate plan participants who wanted to sue for benefits but who were not able to identify and/or properly serve the plan administrator. That game is now over.

Writing for the Court, Chief Judge Alex Kozinski said "[w]e conclude, therefore, that potential liability under 29 U.S.C. § 1132(a)(1)(B) is not limited to a benefits plan or the plan administrator." The Court went further and overruled previous authority which has been used for years by insurance companies to thwart plaintiffs: "Any statements or suggestions to the contrary in our prior decisions, including Ford v. MCI Communications Corp. Health & Welfare Plan, 399 F.3d 1076, 1081 (9th Cir. 2005); Everhart v. Allmerica Financial Life Insurance Co., 275 F.3d 751, 756 (9th Cir. 2001); Spain v. Aetna Life Insurance Co., 13 F.3d 310, 312 (9th Cir. 1993); and Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir. 1985), are overruled."

The Court's full decision can be read by clicking this link: http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/07-56869.pdf

Our client is a 38 year old Project Manager diagnosed with Dercum’s Disease. On August 22, 2006 she underwent surgery, with complications, to remove a Lipoma (benign tumor) from her left lateral posterior hip. After surgery she suffered from severe left sided low back pain radiating down her leg. She was diagnosed with Lipomas Disease (aka Dercum’s Disease), Peripheral Nerve Entrapment and Cluneal Nerve Neuralgia due to Superior Cluneal Nerve injury. The National Organization for Rare Disorders has recognized Decum’s Disease as a chronic long lasting condition with limited treatment options.

At the time of her diagnosis our client had been working as Project Coordinator and Manager for the Cisco Network for 10 years. As a Project Coordinator and Manager, she had been responsible for managing moderately complex, larger-scale business projects, was responsible for establishing project plans and timelines and delegated work to other project team members.

On appeal, we submitted evidence that demonstrated that Unum had simply been searching for evidence to justify a termination of the claim. We pointed out that Unum had ignored our client’s own treating physicians’ opinions, the Functional Capacity Evaluations and the effects of the powerful drugs that our client had to take for her symptoms and conditions.

Our appeal was successful and our client was reinstated to her Plan, with payment of full back and future benefits

In 2004, a series of automobile accidents left our Client unable to work due to severe pain in her lower back (which radiated into her leg) caused by degenerative changes in her spine with nerve impingement. As a result, our Client was awarded disability benefits from the Social Security Administration as well as from Reliance Standard. After four years of disability, without any improvement in her spine, and a Functional Capacity Evaluation (“FCE”) which objectively verified our Client’s disability, Reliance Standard terminated her benefits based on the paper review of a single nurse.

On appeal, Reliance Standard sent our Client to an Independent Medical Examination (“IME”), and based on that exam, upheld the termination. It appears, Reliance Standard did not provide the IME doctor with the medical evidence which objectively showed our Client’s spinal degeneration and impaired functional capacity. Without the necessary records, the IME was defective, and worse, unfair. The IME doctor found “no objective findings that corroborate functional impairment physically.” Reliance Standard fully adopted this defective opinion in upholding the termination of benefits.

Kantor & Kantor sued First Reliance Standard on behalf of our Client. We then set out to depose the nurse, the IME doctor, and the two claims representatives who had wrongfully terminated her disability benefits. Reliance Standard tried to prevent the depositions from taking place. Kantor & Kantor convinced the Judge that the depositions were proper. Reliance Standard refused to accept the Judge’s determination, and filed a Motion for Protective Order, asking to prevent the depositions from taking place. Following oral argument, the Court sided with our Client in a decision that was published electronically on a national basis by Westlaw (2011 WL 2003228) and LexisNexis (2011 U.S. Dist LEXIS 54866). The Court’s decision can be found here. The Court found it important to get sworn testimony regarding Reliance Standard’s alleged “neutral review process,” what Reliance Standard’s doctors actually reviewed in making their disability determinations, and Reliance Standard’s “rate of claims denials.” Kantor & Kantor will now take the depositions Reliance Standard worked so hard to prevent from happening.

Our client is a 43 year old Court Reporter who was diagnosed with MS in August 2009. She had been experiencing progressing tingling and numbness through her lower extremities and up to her pelvic area. She was hospitalized in August 2009 where she underwent a battery of tests including an MRI which revealed scattered white matter signal alteration, with differential considerations. Although the third party administrator, Sedgwick acknowledged that the MRI confirmed the diagnosis of MS, it ignored the restrictions and limitations set forth by our client’s treating physicians based on objective evidence. In its denial letter, Sedgwick focused only on the very brief period in which the MS was quiescent and conveniently ignored the periods of paralysis, fatigue, numbness, weakness, confusion, and inability to perform the duties of the job. Sedgwick refused to pay our client the Long Term Disability benefits to which she was entitled.

We arranged for our client to undergo a comprehensive neuro-psychological examination. On appeal, we submitted evidence from the neuropsych examiner who concluded that it was unlikely our client would ever return to her usual and customary occupation. He opined that her motor slowing, psychomotor slowing, and fine motor coordination deficits alone would preclude her from performing the duties of a Court Reporter. He also found that our client’s cognitive deficits were due to central nervous system demyelinating disorder.

Our appeal was successful and our client was reinstated to her Plan, with payment of full back and future benefits.

We help people with health related insurance claim problems, and initial consultation are free. Call us. 800-446-7529.

Our client was a Manager of the Creative Services Department at an international marketing company. Her job required her to travel extensively, direct employees and perform a range of management tasks. In 2001, she was rendered totally disabled from her job, due to failed back syndrome, extreme pain, and the need for heavy narcotic medication. Her doctors found her totally disabled from her job, and CIGNA paid her disability benefits for 8 years, until they abruptly terminated her benefits, on the basis of limited surveillance. Although the surveillance did not depict our client performing any tasks inconsistent with her disability, CIGNA relied upon the surveillance to terminate benefits.

We appealed this decision on behalf of our client and after prosecuting this appeal for over two years, CIGNA finally overturned its benefit termination. Fortunately for our client, she has an “own occupation” policy, such that CIGNA is obligated to pay her disability benefits unless she is capable of returning to her “own occupation” of a Creative Services Department Manager, an impossibility, according to her doctors.

Most insureds are not aware of the fact that most group Long Term Disability Policies have different definitions of disability at different time periods. Often during the first 24 months of a disability, one need only show the inability to perform the material duties of his or her "own occupation." After that initial 24 months, the standard of proof becomes more difficult and the burden then becomes proving that you cannot perform the material duties of "any occupation." This is just one of the quagmires to deal with when making a disability claim.

Call us, we can help!

Our client, Mrs. Kay, was a customer service representative for a large payroll company and enjoyed excellent performance reviews for several years. Unfortunately, she developed carcinoid cancer and the disease and strong medications she was prescribed prevented her from performing her occupation. Her disease and pain rendered her totally disabled form her job. Mrs. Kay submitted a disability claim to Prudential, which was initially approved, but later terminated.
We prepared an appeal and submitted evidence to Prudential in the form of MRIs, x-rays, and medical records from her doctors, regarding her complex physical condition. We also provided information on the effects of the heavy narcotic medication and how that medication interfered with our client’s ability to perform her occupation.

Prudential engaged in lengthy requests for evidence. We gathered and provided that evidence, and argued Prudential must reverse their denial of benefits. Ultimately, Prudential determined that while her doctors may not have described in detail the effects of her medication, Mrs. Kay was in fact disabled and entitled to disability benefits, as well as a waiver of premium payments on her life insurance during her period of disability.

On May 11, Lisa Kantor argued before the 9th U.S. Circuit Court of Appeals in San Francisco, on behalf of client Jeanene Harlick, who has suffered from anorexia for more than 20 years. Ms. Harlick entered a residential treatment facility on the advice of her doctor. After initially approving coverage for the treatment, Ms. Harlick’s insurer Blue Shield denied coverage after only 10 days, even though the insurer agreed that such treatment was medically necessary.
Ms. Kantor contends that Blue Shield abused its discretion in denying coverage and that its actions violate California’s Mental Health Parity Act, which mandates that health plans provide the same coverage for severe mental illness as they provide for physical disease. In Harlick’s case, Blue Shield covers sub-acute treatment for physical conditions at skilled nursing facilities. At the same time, Blue Shield denies responsibility for the cost of sub-acute treatment for severe mental illness at residential treatment facilities.

“For the act to have any real meaning,” argues Ms. Kantor, “Blue Shield must provide the same levels of health services for severe mental illness as it does for physical illness. Otherwise the purpose and plain language of the statute is violated, and the discrimination against those with severe mental illness, which the statute was designed to correct, will be allowed to continue.”
Ms. Kantor is among only a few lawyers in the country who include as part of their practices representation of people with eating disorders who have been denied benefits for residential treatment. The fight has occupied two fronts: while regularly scoffing at both state and federal mental health laws to deny coverage, some insurers – including Blue Shield – rewrote policies effective Jan. 1, 2011, to specifically deny benefits for the 24-hour supervised care many people with eating disorders require for recovery. Instead, these insurers only pay for 9-hour day treatment outside of residential facilities. This new policy has already begun to erode the gains made by many people who have fought to have residential treatment care paid for by their insurance companies.

The International Association of Eating Disorder Professionals filed an amicus brief in support of Ms. Harlick and the contention that California Mental Health Parity Law applies to her case, Harlick v. Blue Shield of California, 10-15595. You can listen to the oral argument before the court by clicking here: http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000007519

For more information about Lisa Kantor and legal assistance for eating disorders, follow this link: http://www.kantorlaw.net/Areas_of_Practice/Eating_Disorders.aspx.

The New York Times reported this week on a new study that confirms that “Chemo brain” is s a lingering cognitive side effect of cancer chemotherapy treatment. What is often brushed off by physicians as symptoms of normal aging or attributed to fatigue from illness, is now recognized as a pronounced and long lasting cognitive impairment. This foggy thinking, forgetfulness, difficulty finding words, and changes in memory, motor skills, and dexterity can be attributed not only to the compromises that the body’s cells have experienced from cancer, but also the body’s reaction from treatment.

The study found that recovery from cancer is not a simple fix. It takes time and patience, and the effects of treatment can linger for the duration of five years or more, depending on the individual. Cancer survivors must be mindful of these circumstances when attempting to return to their regular activities or work responsibilities. With memory, information processing, multi-tasking, and executive function skills impaired, recovering cancer patients may not be able to perform job responsibilities at the same functional level as before treatment.

Kantor & Kantor has been successful in obtaining disability benefits for clients suffering from “chemo brain” who were not cognitively capable of returning to work.

You can read the NY Times article here: http://well.blogs.nytimes.com/2011/05/04/chemo-brain-may-last-5-years-or-more/?ref=health

From 2009, to 2010, United Healthcare cut in half the compensation of its Chief Operating Officer, Stephen J. Hemsley. At first blush, it would appear United Healthcare is recognizing the ballooning costs to consumers of healthcare, and it acting responsibly. First looks can be deceiving. See http://blogs.courant.com/connecticut_insurance/2011/04/unitedhealth-ceos-pay-dropped.html

In 2009, Hemsley received $102 million in total compensation from United Healthcare. In 2010, his pay was cut in half, but even after a 50% reduction, he still received an exorbitant $48.8 million dollars in compensation. The majority of this pay was in the form of stocks and stock options ($ 44 million), in addition to the $4.8 million in he was paid in salary, incentive pay, and other compensation. Putting his compensation into perspective, his 2010 compensation is equal to the sum total of the average annual household income of 2,000 American households. It would also be enough to pay a $500 monthly health insurance premium for 8,500 families. See http://www.moneytalksnews.com/2010/04/17/insurance-outrage-hike-prices-pay-ceo-100000000/

How can United Healthcare justify its continued premium increases, based on rising healthcare costs, while at the same time paying its Chief Executive $48,800,000? Shouldn’t the Board of Directors of United Healthcare be more concerned with its policyholders’ ability to access and receive quality care rather than compensating its officers in such an outrageous manner?
Andrew Goldstein of corporate compensation adviser Towers Watson says, “We all kind of scratch our heads when executives are making millions, and (corporate) directors feel obligated to give them $10,000 for financial planning, It’s not like directors haven’t thought about getting rid of perks. They’re still a sticking point for a lot of executives. They feel it’s part of their compensation package. And it’s a stature thing.” So it seems that despite these tremendous salaries, CEO’s continue to cling to these perks at the health expense and financial burden of those less fortunate. Simply because directors feel obligated, and executives feel entitled. See http://www.usatoday.com/money/companies/management/2011-04-11-CEO-perks.htm

While families struggle to afford the soaring increases in insurance rates and battle the stresses of paying for prescriptions, doctor visits, and various health issues, United Healthcare remains “America’s largest commercial health insurer based upon revenue”, seemingly profiting from our medical woes. If it wasn’t so sad, and if so many Americans were not suffering from the consequences of being uninsured, classifying compensation of $49 million dollars as “pay cut,” would be comical. Perhaps the various departments of insurance, and our legislature, should look a lot more closely at insurance executive compensation when considering how to regulate insurance costs and fix our insurance crises.

Our client, Mr. D, was a technician for a large energy company, wherein his job duties involved heavy maintenance duties. He suffered a stroke in March 2007, was hospitalized, and underwent extensive rehabilitation and physical therapy to learn to walk and function again. CIGNA paid disability benefits for just over 2 years, until it wrongfully terminated benefits, claiming that Mr. D was again capable of working. In support of its decision, CIGNA relied upon a two and a half hour Functional Capacity Evaluation (FCE), which reported that Mr. D could return to full time work. Despite the fact that FCE confirmed his dizziness, vertigo and continuing symptoms, CIGNA determined that he could return to work as a customer service clerk or a telephone clerk.
Mr. D advised Cigna that he was unable to perform these occupations because, among other things, the stroke had impaired his vocal cords. However, Cigna ignored this impairment. Finally, we filmed a video of our client attempting to perform some of the tasks which Cigna claimed he could do. Based upon this film and the medical evidence we submitted in support of the claim, Cigna reversed its claim decision and approved Mr. D’s continuing benefits.

The New York Times reported this morning on a very disturbing trend. It seems various states are relaxing their laws which require insurance companies to maintain adequate reserves to pay claims, and to keep their finances transparent to the public. Why in the world would state governments do such a thing? Well, it seems there is money to be made in the form of taxing these insurance entitles...a lot of money. So, "shady" business that was mainly being conducted offshore in countries like Bermuda or the Cayman Islands, is now permissible in states like Vermont, Utah, South Carolina, Delaware and Hawaii. Those states are "aggressively remaking themselves as destinations of choice for the kind of complex private insurance transactions once done almost exclusively offshore. Roughly 30 states have passed some type of law to allow companies to set up special insurance subsidiaries called captives, which can conduct Bermuda-style financial wizardry right in a policyholder’s own backyard."

Aetna, MetLife, the Hartford Financial Services Group, Swiss Reinsurance, Genworth Financial and the American International Group (A.I.G.), among others, taken advantage of these laws and the concept of "captives" in order to refinance life, disability and long-term-care insurance policies.

One of the major concerns of these financial maneuverings is that is that some states are offering a more lenient, and less protective scheme of laws than other states and thus lure companies away from the protective states. This game may allow insurance companies to escape some of the consumer protective rules that have been put in place over the course of many years, all to the detriment of insurance consumers.

Fortunately, our California Insurance Commissioner, Dave Jones, is taking a cautious and sensible approach to all of this as can be seen from his comments. Mr. Jones remarks “we need to ensure that innovative transactions are not a strategy to drain value away from policyholders only to provide short-term enrichment to shareholders and investment bankers.”

Read the original article. It's a bit scary. http://www.nytimes.com/2011/05/09/business/economy/09insure.html?pagewanted=1&_r=1&nl=todaysheadlines&emc=tha2

Our client, let's call him Mr. P, was an electrical engineer. His job required not only that he sit at a desk most of the day, but also that he spend a substantial amount of his time examining circuits through a microscope. As a result of a serious car accident Mr. P suffered a debilitating back injury which was never fully resolved even after spinal surgery. Moreover, Mr. P had a serious case of diabetes which was causing or exacerbating glaucoma and vitreous hemorrhaging. Chronic back pain and impaired vision rendered Mr. P unable to function at his job. UNUM paid Mr. P long term disability benefits for a short while but then, after having him examined by an eye doctor, decided he was capable of performing the duties of his occupation. UNUM then cut off his LTD benefits.

We decided to have an "Independent Medical Exam (IME) conducted by an ophthalmologist for his diabetic retinopathy. The ophthalmologist conducted a thorough examination and analyzed the nature of Mr. P's daily work activities, and ultimately agreed that there was no way Mr. P could perform the duties of his occupation. Moreover, she even questioned his ability to perform any reasonably similar occupation on a full time, consistent basis given his training, education and experience. We sent the IME Report to UNUM with a comprehensive summary of all of the medical evidence and argument about why UNUM had made an improper decision in denying benefits. Approximately 60 days later, UNUM reversed its denial and agreed to commence paying benefits to Mr. P.

We see cases like this every day. Sometimes insurance companies will reverse themselves and start to pay benefits once they are challenged. More often, however, they don't change their decisions, and we have to file a lawsuit. The point is, we will do whatever we have to to fight for the rights of our clients to try and force their insurance companies to do the right thing, or to have a court of law force them to do the right thing.

Whether you do it yourself or hire a lawyer, the important message here is to not let your insurance company take advantage of you. They frequently deny claims which are absolutely legitimate and justified, and they do so because too many people fail to push back. Challenge them any reasonable way you are able.

On April 12, 2011, Kantor & Kantor partner, Lisa Kantor was one of five speakers in a Congressional Briefing in Washington D.C., entitled “Addressing Eating Disorders Through the Federal Response to Eliminate Eating Disorders Act.” This Briefing was sponsored by The Eating Disorders Coalition in cooperation with Senator Tom Harkin (D-IA).

The "FREED" Act is the first comprehensive eating disorders bill in the history of Congress that provides needed action for research, treatment, education and prevention of eating disorders. The Act recognizes that eating disorders are serious and life threatening, but that with adequate and appropriate treatment people do and can recover. That Act also requires research, education and prevention so that we can better understand, treat, prevent, diagnosis and intervene early with eating disorders patients.

Click here to read Ms. Kantor’s speech.