California Insurance Lawyer Blog

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.

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

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.

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, 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 February 28, 2011, we received a trial victory for one of our clients, overturning a claim denial by Cigna, who had terminated her long term disability benefits. Our client, who suffers from Multiple Sclerosis, was approved for long term disability benefits due to her symptoms of fatigue, pain and cognitive dysfunction. After paying benefits for 23 months, Cigna terminated our client's benefits based upon surveillance, which showed minimal activity and a report from a physician who had spent 1 hour reviewing the file.

Kantor & Kantor aggressively litigated the case, and during the course of the action obtained information regarding the compensation Cigna pays to its allegedly neutral medical reviewers. We also obtained copies of Cigna's internal guidelines governing claims investigation and the file it maintained on our client when conducting surveillance of her activities.

Attorney Corinne Chandler tried the case on January 11, 2011. After the trial, Cigna sought to place some of the evidence under "seal" so that other claimants and their attorneys could not obtain our evidence. The Court denied Cigna's Motion and ordered that the documents be available for public viewing on the Court's Pacer website.

More importantly, the Court ruled for our client, holding that Cigna acted in an arbitrary manner in terminating our client's benefits. The Trial Court's Opinion emphasized that Cigna's medical reviewers did not adequately review the medical records and that Cigna wrongfully refused to consider plaintiff's Social Security Award as evidence of her disability. In short, the Court found that Cigna's financial interest in the claim infected the claim process.

Although we have won benefits for our client, Cigna continues to fight the public's right to access to the evidence we obtained regarding its internal claims process and its medical reviewers. Cigna has appealed the Court's ruling holding that the evidence in the case is not confidential and has even suggested that it will file an emergency motion to remove the documents from the public record. We intend to oppose Cigna's efforts to conceal this evidence as we believe that it can be useful for our other clients.

You can read the Court's opinion right here:
104_Kreeger - Memorandum & Order regarding bench trial 11-02-28

We continue to see evidence in insurance company claim files that insurers are not only conducting traditional surveillance, following their insureds/our clients around, but the insurers are using the internet to snoop around and learn as much as they can about claimants, their activities, their family members, etc.

We know the insurance companies do this to protect against fraud, and there is nothing wrong with that. But, all too often, the insurers get a bit overzealous, and even intrusive in their conduct, and they start to treat everyone like a criminal of some sort.

Perhaps the most shocking example of this activity we’re aware of, is a case of one major insurer accessing private files off of a claimant’s computer. It appears that the insurer may have actually hacked into its insured’s private computer to obtain information related to internet activities, e-bay purchases, YouTube viewing history and private files.

Such activity is, of course, illegal, and may give rise to, among other things, an invasion of privacy cause of action. We continue to remind our clients and anyone with insurance who may or may not ever make an insurance claim: do not take internet privacy for granted. While it is one thing for an insurance company or any other entity or individual to illegally access your private information, it IS legal for anyone to track your internet activities you put in the public sphere of cyberspace. Be mindful that what you post, blog about, advertise, or share on social networking sites, message boards, in online fora, etc. is fair game. Moreover, the reality is often that the picture one portrays of him or her self in cyberspace, may not be a complete picture of that person's life. Unfortunately, when it comes to insurance claims, and particularly ERISA claims, such a picture may be the only one a court sees. Be mindful.

Insurance companies will always assert that you must have "objective evidence" to support your disability claim. Of course, Policies do not always require objective evidence, and even worse, what you or your doctors may consider objective, your insurance company may not. Insurance companies will often try to characterize your evidence as "subjective" or self-reported (and thus, according to them, unreliable.) So, what to do? While it can sometimes be very difficult to muster evidence with certain disabling conditions, there are a range of options to explore that may be available to you.

You can work with your doctor (or her/his staff) to obtain evidence - from the more obvious testing, such as stress tests for the heart; blood tests for a range of other conditions; functional capacity evaluations (FCE) (to assess your capacity to work or function for a given amount of time in a work-simulated environment), or independent medical evaluations (IME) by a doctor separate or 'independent' of your primary doctor or specialist(s). FCEs and IMEs may require referrals or separate payment, depending on your insurance.

Insurers generally deem a doctor's report of your medical history and treatment, or your doctor's clear, articulated notes from clinical observations during your appointments, as the most relevant or compelling evidence of disability. Insurers will often contact your doctor, by phone or in writing, and while we always encourage our clients' doctors to conduct correspondence with insurers in writing, so that nothing is misconstrued or taken out of context, it can be critical for your doctor(s) to participate in the process of accurately and comprehensively documenting your disability, symptoms, side effect of pain medications, etc.

Letters from co-workers, supervisors, or even friends and family describing you and your condition and their personal observations of your troubles are also helpful. Evidence of activities you formerly were engaged in but have now let lapse due to your condition is also worthy of submission.

The point is that you should not overlook anything which is in anyway relevant to your disability claim. Put your best foot forward. If you don't understand something your doctor said or wrote, get clarification. If you do not think your doctor has adequately diagnosed or treated your condition, get a second opinion. DO NOT assume that the insurance company will take what you say at face value. They won't. They are much more likely to discount everything you say, and everything you provide.

If you need help, call us. 800-446-7529.

One of California’s largest health insurers -Blue Shield- has announced plans to hike its premiums by as much as 59%. These increased premiums are set to take effect on March 1, 2011. This move impacts 193,000 individual Blue Shield policy holders.

This steep double digit rate hike has raised the attention of Health and Human Services Secretary Kathleen Sebelius who has reached out to newly elected California Insurance Commissioner Dave Jones. “We stand ready to assist him and the people of California in any way that we can”, she stated. She went on to state, “The people of California have a right to be concerned when they see this kind of rate increase month after month.”

Commissioner Jones recently won a hard fought race for his position and on January 3, 2011 announced that rejecting excessive health insurance premiums and continuing his fight for the authority to reject these premiums are among his main priorities for his time in office. However, as he stated in his inaugural address, “Many Californians will no doubt be surprised to learn that the Insurance Commissioner does not have the legal authority to reject excessive health insurance premium increases.” Unfortunately, despite health reform, even the federal government does not have the authority to review and strike down unreasonable rate increase requests.

Instead, Commissioner Jones has requested that Blue Shield delay implementation of the rate hike so that he and state regulators have the opportunity to fully review the increase. In a statement on January 6, 2011, Jones said, “I find it stunning that Blue Shield would seek to impose such massive premium increases on policyholders during these troubling economic times....[T]hese premium increases will impose significant financial burdens on struggling families and, in some cases, will lead to the loss of health care coverage all together.”

This is just the first fight of many that Commissioner Jones will face with the insurance industry. In his inaugural address, he identified his main objective as “making the California Department of Insurance the strongest consumer protection agency in the nation” and to “set the standard for other consumer protection agencies.” His three main priorities are:

1. To implement federal health care reform and build on that reform by granting the insurance commissioner the authority to reject excessive premium increases;
2. To level the playing field for consumers and business as they deal with insurance companies...to make sure that consumer complaints are being addressed and that insurance companies are not taking advantage of consumers; and
3. Ensuring that California has a viable and competitive insurance market.

To implement his first priority, Commissioner Jones has created a new senior leadership position titled, “Deputy Commissioner for Health Care Policy and Reform.” He will continue the efforts to provide the commissioner and the Department of Managed Care the legal authority reject excessive health care premiums and he will see to it that he has the legal authority to enforce the new federal health care reform. Jones has already signed an emergency regulation giving him the authority to enforce in California, the new federal 80% medical loss ratio for the individual health insurance market. Existing California law requires insurers to spend at least 70% of premiums from the individual market on medical care. Jones’ proposal aligns California’s regulations with the national Medical Loss Ratio rules established under the federal health reform law that took effect on January 1, 2011.

The next four years under Insurance Commissioner Jones promise to be one of the most consumer oriented terms ever in California. It will be a challenge to deal with the special interests of the insurance carriers while working to protect the rights of California’s insureds. But so far, Dave Jones has demonstrated that he is ready to stand up to the insurers and protect consumers.

When Dave Jones was sworn in as California’s seventh Insurance Commissioner this month, he promised to promote consumers’ interests by pushing for health insurance reform. His first act of office was to sign an order forcing insurers doing business in California to spend 80 percent of their revenues on the health care costs of policyholders, rather than on administration or overhead. That would be 10 percent more than they had to spend on policyholders last year. For a $125 billion industry, that’s $12.5 billion more in medical benefits insureds can expect this year. Not a bad first day in office!
See “New Insurance Commissioner Jones Promises to Look Out for Consumers,” http://www.sacbee.com/2011/01/04/3297097/new-insurance-commissioner-jones.html.

Jones developed his reputation as a consumer watchdog while serving in the California Assembly, proposing a number of consumer-friendly bills. Most notable was AB1868, an attempt to ban insurance companies from enforcing clauses in disability policies that allow insurers “discretion” about whether or not to pay claims. When people sue, courts have little authority to second-guess the insurer’s so-called judgment. Needless to say, a profit-minded company’s discretion is almost always influenced by the bottom line. While Jones’ bill passed BOTH HOUSES of the Legislature, Gov. Schwarzenegger inexplicably refused to sign it into law. See “Governor Schwarzenegger Vetoes AB1868 – Insurance Companies Benefit, the Public Suffers,” http://www.californiainsurancelawyerblog.com/2010/09/governor_schwarzenegger_vetos.html.

With the backing of Jones, we will be urging the California Legislature to revive AB1868 to present to the new administration. We believe it’s time for everyone with rulemaking authority to vote in the interests of people with disabilities.

If you make a claim for short-term disability (STD) benefits, and your STD claim is denied, and your policy says that the receipt of STD benefits is a pre-requisite to receiving long-term disability (LTD) benefits, you may still have to make a separate LTD claim. If the Policy isn't clear, or if you can't figure it out, go ahead and make the LTD claim anyway. The downside is that it may cause some additional delay. The upside is that the insurance company may fail to properly consider your LTD claim or may make some other mistakes that will help you, should you need to initiate a lawsuit to recover benefits.

In all events, it is critical that you read your policy to understand the procedures involved in making STD and LTD claims, and appealing any and all denials before you can file a lawsuit. Under ERISA, which is the federal law governing group insurance (provided by your employer), you must exhaust your administrative remedies (meaning you must make/submit all claims and appeals spelled out in the policy) before you can file a lawsuit. If you fail to make a claim on time, or fail to appeal a denial, you may lose all rights to pursue legal action. Make sure you READ the policy and make every effort to submit your claim(s) and appeal(s) IN WRITING on time, to protect your rights.

If all this is confusing, or if you are in the midst of an insurance company battle, call us, we might be able to help. We don't charge for basic consultations, and we like to help people.

800-446-7529

If you work for a company, no matter how small, you MAY have disability insurance that will pay a portion of your salary should you become unable to work.

If you don't already know, you should ask your employer whether you have such coverage as it may come in handy in a time of need. If covered, you should request a copy of your short-term disability (STD) and/or long-term disability (LTD) Policy. You never know when you’ll need it.

Once you get a copy of the policy, review it and note some of these important provisions:

* Is there a pre-existing condition limitation?

If your disability policy contains a pre-existing limitation, and you leave work on disability prior to satisfying the required period, you likely will not be eligible for disability coverage. For example, if you saw a doctor in the months prior to being covered through your employment, you may not satisfy the pre-ex limitation. Sometimes, even if you did not see a doctor for months prior to being covered, if you took medication of any kind, you may be precluded from disability coverage.

Often, if you do have a pre-existing condition, you have to be insured for a year and a day before the policy goes into effect. Even if you leave work on disability on day 364 of your employment, with a proven serious and disabling condition, an insurer can deny you on the basis of your not having satisfied the pre-ex condition.

* What are the deadlines spelled out in the policy for making a claim, submitting an appeal, filing a lawsuit?

Thousands of people, dealing with their disabilities, may not realize that they are required to follow certain deadlines spelled out in their policies. Failure to follow these deadlines can mean your claim will not be considered, or will be summarily denied for failure to timely submit it, regardless of the reality and proof of your disability. Deadlines are often spelled out in terms of 45, 60, 90, or 180 days. PAY ATTENTION to these deadlines, as they are critical, and if you fail to meet them, you may lose all rights you otherwise would have had under the policy.

Too often people miss these deadlines by days or weeks. Even with life insurance policies, just because you may be a listed beneficiary, doesn’t mean you can’t lose your right to benefits if enough time passes. For example, if 1, 5 or 10 years go by before you make a claim for life insurance proceeds, it may be too late. These benefits aren’t necessarily guaranteed, so stay on top of claim deadlines in all insurance policies.

* How do private disability benefits work with state benefits, social security benefits and worker’s compensation benefits?

Remember, STD and LTD benefits, whether provided through your employer, or through a private policy, are independent of California state (EDD) benefits, social security benefits and worker’s compensation benefits. Just because you may have made a claim for California state disability benefits, and you receive the full year of these benefits (these benefits are limited to one year only), this does not prevent you from filing for private STD/LTD benefits. In fact, it is easy to reason that once the state benefits run out, and you’ll need a source of income, then you can make a claim for private STD/LTD benefits. It does not work this way, however, and you will miss the deadline for applying for private benefits, and lose all benefits you may have been entitled to, if you wait too long. The same is true with social security disability insurance benefits–just because you may have applied for them, or are receiving them, is no guarantee that your private insurance benefits will be paid. As for worker’s compensation benefits, these come into play if you became sick or injured on the job, and we urge you to seek the assistance of a worker’s compensation attorney who will work with you and your employer to resolve this.

The only way that all of these benefits interface, is when your private disability insurance carrier approves your STD/LTD disability claim, it can (and will) offset your private disability benefits with income you receive from other sources, including California state disability benefits, social security disability insurance benefits, and worker’s compensation benefits. Disability insurance policies contain different offset provisions, so it is important that you read this portion of your policy as well. (For example, an insurance company may reserve the right to offset with estimated benefits you’ll receive from the Social Security Administration, even if you do not in fact receive these).

Do explore all options: look into applying for STD, LTD, California state disability, social security disability insurance, and - if applicable - worker’s compensation benefits.

If you have any questions, or would like a free consultation, contact Kantor & Kantor, we can help.