There may come a time in your life when you will need to consult with a lawyer – whether it be good news or bad news. We routinely speak with individuals who have had life, health, and disability claims denied by their insurance companies. Understandably, this is a very difficult time for the individuals who call us. We understand that, and try to make the process simple…but we need your help.

As lawyers, we are well-versed in the practice of law, but we rely on the information from our clients to steer us in the right direction and guide each case. It takes TEAMWORK to get a successful outcome for our clients.

Here are a few tips for talking to your lawyer and sharing with them what they need to know.

On May 11, 2017, the US Court of Appeals for the Ninth Circuit issued a decision in Orzechowski v. Boeing Co. Non-Union LTD Plan, et al., Case No. 14-55919 (9th Circ. May 11, 2017) upholding the application of the California law which invalidates “discretionary clauses” in Long Term Disability (LTD) plans and other life and disability contracts of insurance.

Prior to 2012, insurers in California (and many other states) were allowed to place “discretionary clauses” into their insurance policies. These clauses, while seemingly innocuous, actually made it significantly harder for insureds to challenge wrongful denials of insurance benefits in court. These clauses forced Federal Courts to review denials of insurance benefits under an “abuse of discretion” standard. In order to prevail under this standard, an insured not only had to show that they were entitled to the benefits under the contract, but they also had to show that the insurer’s decision was “arbitrary and capricious.”  The effect of this was that Court’s were routinely deferring to the “discretion” of the insurer thereby upholding their denial. This created is a much more difficult standard of proof for insureds to meet than in an ordinary civil lawsuit, where one need only prove their case by a “preponderance” of the evidence, and where Courts do not give any special weight to the evidence presented by the other side.  The result of the so-called discretionary clauses was that many insureds lost their lawsuits for wrongfully denied benefits even when, technically, they were entitled to benefits under the term of the contract.  Court’s would simply hold they could not find evidence the insurer “abused its discretion” or acted unreasonably enough so as to justify overturning the insurer’s denial of benefits.

In 2012, the California legislature passed California Insurance Code §10110.6, which provides that all discretionary clauses in California insurance contracts are null and void, if the insurance policy or plan “renewed” as of January 1, 2012. As a result, Courts will now look at the evidence anew, or “de novo” to make a determination of whether the insured is entitled to benefits, instead of simply deferring to the insurance company’s conclusions.  This is a much easier burden for insureds to meet than the older “abuse of discretion” standard.

“There used to be considerable skepticism that Fibromyalgia was a real disease. No more.”

Kennedy v. The Lilly Extended Disability Plan, –F.3d–, 2017 WL 2178091 (7th Cir., 2017)

It has been said that disability insurance carriers view a Fibromyalgia diagnosis with skepticism. The disease is an “invisible disease” which cannot be measured on x-ray and its diagnosis is often dependent on an insured’s report of pain, fatigue and cognitive dysfunction. For this reason, insurance carriers often try to discount the disabling nature of the disease.   We see carriers do this by: (1) hiring physicians who do not believe in the disabling nature of the disease or (2) demanding the insured submit “objective proof” of the disability, which cannot exist. There are no x-ray’s or MRI’s used for diagnosing Fibromyalgia.

For over 25 years, I have been representing individuals who have had life, health, and disability claims denied by their insurance companies.   I have represented over 3,000 people.   What is so disheartening to me is that I hear from clients again and again that they “almost gave up before calling” me. They tell me they were beaten down by the process, convinced their insurance company must be right, or that they didn’t know there were lawyers who specialized in handling their kind of case on a contingent basis.   While sometimes the client HAS waited too long for us to help them, usually my law firm, Kantor & Kantor, is able to step in and successfully resolve their claim.

However, I wonder just how many DO give up unnecessarily.   While my view of the insurance industry may appear very cynical, I am 100% convinced that the industry employs a strategy of denying as many claims as possible in the hope that claimants will just give up and go away.   I could write pages upon pages of stories about clients who had almost given up, but for whom we were able to obtain benefits with nothing more than a well written letter.   It sometimes seems like the insurance company is daring their insured to challenge the denial, or to get a lawyer.   If they do, the insurance company will reconsider its denial. If not, the denial will stand and the insurance company will keep the benefits which are rightfully yours.

In the last month, I have obtained over a $1,000,000 in total benefits for several clients who separately told me that they had seriously considered giving up before calling my firm.   This led to me to come back to a familiar thought, which was to wonder about all the people who did simply give up.   I decided to write this blog in the hope that maybe ONE insured might read it, and decide not to give up.   I am not writing this to get business. I have more than I need.   I practice in California, but this blog might be read by someone in Florida, or Illinois, or New Jersey, for example. If it is, and you were considering giving up trying to get your benefits, I am not suggesting you call me.   Go on the internet, or call your State Bar, and find an experienced attorney in your State.   The worst thing that happens, is that no one will take your case  —  but what if they will?

In addition to dealing with short term disability benefits, long term disability benefits, and health insurance denials, many of our clients are also tasked with applying for Social Security Disability benefits. On January 17, 2017, the Social Security Administration adopted new rules for evaluating mental disorders.  These rules reflect the most comprehensive revision in over 30 years to the criteria used to evaluate disability claims involving mental disorders. Changes to the rules reflect up-to-date standards and practices used in the mental health community. Most notably, the new rules reflect information from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM -5”), which is the mental health profession’s standard for classifying mental disorders. The new rules also reflect comments from members of the public and the expertise of disability policy experts, adjudicators, psychiatric professionals, and vocational experts.

Among the many changes are three new listings: 12.11 Neurodevelopmental disorders, 12.13 Eating Disorders, and 12.15 Trauma- and Stressor-Related Disorders.  Additionally, the titles of the listings have been updated to reflect the terms the American Psychological Association uses to describe the categories of mental disorders in the DSM-5.

This table shows the old and new listing numbers and titles:

OLD NEW
12.02 Organic mental disorders 12.02 Neurocognitive disorders
12.03 Schizophrenic, paranoid and other psychotic disorders 12.03 Schizophrenia spectrum and other psychotic disorders
12.04 Affective disorders 12.04 Depressive, bipolar and related disorders
12.05 Intellectual disability 12.05 Intellectual disorder
12.06 Anxiety-related disorders 12.06 Anxiety and obsessive-compulsive disorders
12.07 Somatoform disorders 12.07 Somatic symptom and related disorders
12.08 Personality disorders 12.08 Personality and impulse-control disorders
12.09 Substance addiction disorders 12.09 Reserved
12.10 Autistic disorder and other pervasive developmental disorders 12.10 Autism spectrum disorder
12.11 Neurodevelopmental disorders
12.12 Reserved
12.13 Eating disorders
12.15 Trauma- and stressor-related disorders

Under the new rules, these new mental health listings will remain in effect for five years. To read the full text of Social Security’s Mental Disorder Listings, click here https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_04 .

 

[042017sc]

April is Parkinson’s Disease Awareness Month, which makes it a fine time to talk about the organization that provides information, support and education for those who suffer from Parkinson’s Disease (PD) as it provides a wealth of information useful in a disability claim.

The Parkinson’s Disease Foundation (PDF) works to find a cure, to advance research, to increase knowledge, to empower the community and to ensure that those living with the disease enjoy the best quality of life possible. http://www.pdf.org/en/mission

This organization can provide valuable information for our clients and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing PD and support for care partners and family. These are just a few examples of the many resources available on the PDF’s website. The website also offers helpful suggestions on living with PD and coping with the trials and difficulties that result from suffering from this progressive condition.

One of the first questions we ask clients calling about the denial of medical benefits is whether the provider (i.e. hospital, treatment center, doctor) was an in-network or ­out-of-network provider. Some insurers use different terms such as participating provider or contracted provider. These terms all mean that the insurance company, or its claims administrator, has negotiated with the provider for a certain rate of reimbursement. Insurance companies negotiate these rates of reimbursement with certain providers so that there is an expectation – from both the insurance company and the provider – of the amount that will be paid for medical services.

For patients who are seeking benefits for medical services, a provider’s network status is important because it affects how much the patient will pay out of pocket for treatment. When patients use an out-of-network provider, there is an additional coinsurance, or charge, that patients must pay out of pocket. This coinsurance can range from 20% to 50% of the eligible charges. Eligible charges are a lesser amount determined by any number of factors in the insurance policy, such as Medicare rates. So when patients receive bills from the provider, or statements from the insurance company, which show that only a fraction of the out-of-network provider’s charges were paid, the reason is that the eligible charge was determined to be less than the billed charges and a coinsurance applied. This can dramatically reduce what the insurance company will pay for an out-of-network claim.

Here are some tips for reducing out-of-pocket medical expenses:

A 2014 study of Canadian workers revealed that most individuals vastly underestimate the likelihood that they will become disabled. While nearly half of workers surveyed believe that disability occurs rarely, in reality over 14% of Canadians are currently on disability, while roughly 33% of individuals will experience a period of disability lasting longer than 90 days during their working lives.

While this study only involved Canadian workers, there is no reason to believe the same statistics, and the same lessons, can’t be applied to American workers.

Mark Hardy, senior manager of Life and living Benefits at RBC insurance stated that “research indicates that Canadians are overly optimistic about avoiding a disability and lack of understanding reinforces the need for more education around this critical issue.”

Disability benefit plans are often structured to provide two different types of benefits. The first is for short term disability or often just refered to as STD, which typically provides benefits for the first 3-12 months of disability.  After the conclusion of short term disability benefits, the claim is then transitioned for approval of long term disability benefits, also referred to as simply LTD. Often, the same insurer administers both the short and long term plan and the definition for eligibility of benefits is identical. However, many of our clients find that after the expiration of short term benefits, they do not continue to receive benefits and have to go through the approval process all over again to receive approval for their long term disability claim!

Unfortunately, this is a normal course of events. We find that even though a client has been approved as disabled under a short term disability plan, insurance carriers treat the long term claim as a new claim and require a new submission of new proof. One of the reasons we suspect that this transition is not “seamless,” (as may be promised) is that the employer funds short term benefits out of its own account, and for the benefit of its employees, whereas long term disability is funded with an insurance policy where the insurer is on the hook to pay benefits.   Ordinarily, insurers have no allegiance to employees.  Therefore, even though the definitions of disability are the same under the short and long term plan, it is more difficult to be approved for long term disability benefits.

As a result, when the claim is transferred to the long term disability unit, the insurance company may require new and additional attending physician and employer statements, updated medical records and claimant completed statements before it will evaluate the claim. This can cause a delay in long term disability benefits and even a denial of the claim, despite the fact that the same insurance company approved the disability claim just weeks before!

Trumpcare, the Republicans’ proposed plan to replace the Affordable Care Act (ACA) — also known as “Obamacare” — will cut mental health and addiction treatment for 1.3 million people, just as the country is struggling to cope with an epidemic of opiate addiction. The Washington Post reported on March 9, 2017, that House Republicans admitted under questioning by Rep. Joe Kennedy III (D-MA) that their ACA repeal-and-replace plan would remove a requirement to offer substance abuse and mental-health coverage that’s now used by at least 1.3 million Americans.

Substance abuse and mental-health services are among the “essential benefits” states are required to provide under the ACA’s expansion of Medicaid, a program that provides health-care coverage to those who cannot afford it. As the article explained, if states opt out of providing those benefits, Medicaid recipients would not only lose coverage for mental-health care, but also coverage for care aimed at addressing substance abuse treatment, a critical area of care given the current drug overdose epidemic many states are dealing with. According to estimates by health-care economists, about 1.3 million Americans’ sole access to these services is through the ACA.

 

[o3odj]
Contact Information