ERISA

July 11, 2019

Do You Have a Supportive Doctor?

There is almost nothing more important to a successful disability claim than a supportive physician. At every point of your claim, you will need the help of your doctor. At the initial claim, your doctor will be asked to complete a form certifying that you are disabled and providing detailed information about the symptoms you have that prevent you from performing the duties of your occupation. She will also be asked to provide your restrictions and limitations that prevent you from working.

If you have been awarded disability benefits and you are “on claim,” your insurance company will ask your doctor for information on your condition as it periodically investigates whether you remain disabled under the terms of your policy.

You will need a doctor who is willing to fill out forms sent by the insurance company. More importantly, you will need a doctor who understands that if she is too quick with these forms and does not pay attention, noting that you “can sit frequently” when she means you are fine to sit at home on your sofa and does not intend to say you are fine to go back to work can be enough to get your claim denied.

July 10, 2019

Kantor & Kantor, Co-Counsel File Class Action on Behalf of DuPont Retirees

by Kantor & Kantor LLP

DowDuPont merger attempts to thwart DuPont’s promised pensions to employees that helped build the company.

Kantor & Kantor lawyers are representing U.S. retirees of E. I. du Pont de Nemours and Company in a class action lawsuit after a series of corporate maneuvers taken by the company over the last four years left workers’ retirement benefits in jeopardy of failing. Elizabeth Hopkins and Susan Meter are representing the proposed class action along with co-counsel.

W. Daniel “Dee” Miles, III, head of Beasley Allen’s Consumer Fraud Section, is one of the co-counsel working with our firm on the case. “Workers for DuPont have given decades of their working lives to the company to secure a pension for retirement that they were promised. These companies are now attempting to find ways to not only avoid funding the plan, but also are placing it in jeopardy of failing, leaving the workers with little or no pension after a lifetime of savings,” Miles said.

July 9, 2019

Mastering Long Term Disability Benefits

by Brent Dorian Brehm

Due to their depth and breadth of knowledge, the attorneys at Kantor & Kantor are frequently asked to speak at seminars, conferences, or give presentations. In June of 2019, partner Brent Dorian Brehm was asked by a national continuing legal education (CLE) provider to speak about long term disability benefits. The seminar was titled “Mastering Social Security, Long-term Disability & Government Benefits.” Mr. Brehm took the attendees on a journey from the start to the end of a long term disability claim – and everything in between. He also covered relevant differences between disability claims governed by state law and those governed by ERISA.

While we cannot provide you with the actual presentation or the question and answer segment that followed, we can provide Mr. Brehm’s outline. This information is valuable to anyone at any stage in the long term disability claim process. It starts from the beginning – explaining what LTD benefits are. It then goes through tips on making a successful LTD claim. It addresses what needs to be done during the claim stage to avoid litigation – but be ready for it if that must happen. And finally reviews the nuts and bolts of litigating both an ERISA and bad faith disability claim.

What are long term disability benefits?

June 28, 2019

Super Lawyers Recognizes Kantor & Kantor Attorneys for 2019

by Kantor & Kantor LLP

Kantor & Kantor, LLP is pleased to announce that for the fifth consecutive year (after three years as a Rising Star), Michelle L. Roberts has been selected to the 2019 Northern California Super Lawyers list. No more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. To top that off, Ms. Roberts was once again named as one of the Top 50 Women and Top 100 Attorneys.

And in the first of what we are confident will be many accolades, Andrew M. Kantor has been selected to the 2019 Southern California Rising Stars list in the Employee Benefits practice area. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

June 10, 2019

The Supreme Court to Decide the Nature of Knowledge

by Elizabeth Hopkins and Susan L. Meter

The Supreme Court agreed Monday, June 10, 2019, to resolve a conflict between the Ninth Circuit and the Sixth Circuit on when ERISA’s three-year statute of limitations begins to run. The statute provides that a fiduciary breach claim may be brought within six years of a breach unless the plaintiff had “actual knowledge” of the breach, in which case a three-year statute of limitations applies. The Ninth Circuit found in Sulyma v. Intel Corporation Investment Policy Committee, 909 F.3d 1069 (9^th Cir., 2018), that the actual knowledge requirement that triggers the running of the three-year statute of limitations does not begin until the participant actually knew about the breach, rather than when the participant can be charged with implied knowledge based on distribution of plan documents or other notices. The Ninth Circuit recognized that its ruling about the actual acknowledgement requirement conflicts with the Sixth Circuit’s decision in Brown v. Owens Corning Investment Review Committee, 622 F.3d 564 (6^th Cir. 2010). The Brown case sets a much lower bar, holding that the statute begins to run once the participants are given instructions on how to access plan documents. The Brown court stated Congress did not intend “the actual knowledge requirement to excuse willful blindness.” The Ninth Circuit said that the Sixth Circuit standard is not good enough.

The Sulyma case stems from allegations the investment committee selected investments for participant accounts that were unduly risky and that Intel acted imprudently by either disregarding the risks or failing to investigate the risks. Specifically, it was alleged the funds were invested heavily in hedge funds and private equity. The Ninth Circuit determines when the three-year statute of limitations begins to run is performed using a two-prong approach. The Court first isolates and defines the alleged breach and then determines when the plaintiff had actual knowledge of the alleged breach. In a lengthy decision the Court analyzed what it means to have actual knowledge.

The Court reasoned that actual knowledge must be something more than simply knowledge of the underlying transaction, at least in cases where such knowledge does not obviously disclose the breach. Furthermore, the Court concluded that the exact nature and quantum of knowledge required to trigger the limitations period will vary depending on the nature or the claim. Thus, although the Ninth Circuit acknowledged that participants had been given investment information in several different formats, because Sulyma testified and argued he did not know his retirement was so heavily invested in hedge funds or private equity the Court determined that whether plaintiff had actual knowledge was a question of fact and should not have been decided on summary judgment.

June 7, 2019

Insurance Companies Certainly Do Not Make It Easy: Be On the Lookout for Some of Their Tactics

by Andrew M. Kantor

Yahoo Finance published an article about how insurers try to prevent individuals from obtaining disability benefits. While the article discusses Canadian insurers, our experience is that the tactics described in that article also happen in the United States.

This blog elaborates on some of the points raised in the article, especially as they relate to ERISA insureds. The Yahoo article observed:

“Surveillance is a common tactic. Insurers will hire private investigators to try to catch you in the act of doing something a disabled or injured person couldn’t, like moving a ladder or other heavy objects.

June 6, 2019

The Importance of Being Timely

by Beth A. Davis

Missing a deadline in your ERISA claim is deadly to your claim.

Accordingly, it is extremely important that any and all deadlines are met. One deadline of particular importance is the 180-day deadline by which to submit an appeal of a denial of benefits covered by ERISA. The federal regulations that govern ERISA require insurance companies to allow claimants 180 days to submit an appeal of a denial of benefits. While the regulations state that the claimant is to be allowed 180 days from the date of receipt of the denial, the safest course of action is to calculate the deadline from the date of the letter denying the benefits. This is one of many good reasons to come to Kantor & Kantor with your claim.

Six Months Will Fly By

June 6, 2019

UnitedHealth Group Asks the Supreme Court to Allow Cross-Plan Offsetting

by Elizabeth Hopkins

In recent years, UnitedHealth Group has ramped up its practice of recovering supposed overpayments to medical providers on claims of plan participants in one healthcare plan by offsetting these “overpayments” against (and therefore often totally disallowing) payments on the claims of participants in an unrelated plan. Keep in mind that the participants in the plans normally are still on the hook for any medical bills that the United refuses to pay. I like to refer to this practice of cross-plan offsetting as robbing Peter to pay Paul’s plan. Or perhaps given the petition for certiorari filed last week by United in a case brought as a class action by Dr. Louis Peterson seeking to end this practice, I should say robbing Peterson (and his patients) to pay Paul.

In the Peterson case, the Eighth Circuit Court of Appeals issued a decision earlier this year agreeing with a trial court that this practice was not allowed under the terms of the governing plans, which expressly allowed such offsetting for provider claims based on patients within the same plan, but said nothing about cross-plan offsets. Without deciding whether the practice necessarily violates ERISA, as the Department of Labor argued it does in a brief it filed as amicus curiae in the case, the Eighth Circuit noted that, at a minimum, the practice was “in some tension with the requirements of ERISA,” and “pushed the boundaries of what ERISA permits.” Accordingly, the court concluded that, despite the broad grant of interpretive authority granted to United in the plans, its interpretation of the plan as allowing cross-plan offsets was unreasonable.

United has asked the Supreme Court to review (and reverse) the decision. In its cert. petition, United asks the Court to resolve two issues (1) whether the Eighth Circuit incorrectly held that its interpretation was “necessarily unreasonable merely because the plan is silent on the matter”; and (2) whether a court is required by established ERISA case law to defer to “an otherwise reasonable plan construction that is lawful under ERISA but, in the court’s view, pushes ERISA’s boundaries.”

June 5, 2019

Why It’s Important To Seek Assistance Early During Your Long Term Disability Claim Process with a Condition Like Rheumatoid Arthritis

by Beth A. Davis

We represent a number of clients who suffer from Rheumatoid Arthritis. This often misunderstood and “invisible” disease causes extreme pain for its sufferers. On top of the pain, many also deal with the disbelief of friends, family and employers as to the disabling nature of their illness.

Rheumatoid Arthritis (“RA”) is a chronic disorder in which the body’s immune system attacks joint tissue and causes inflammation that can spread throughout the body. It can also cause excruciating pain. Because there are very few visible symptoms during most stages of this disease, its sufferers appear to be fine when in reality, they are in extreme pain.

Another difficult aspect of RA, from a disability standpoint, is that there is no single test for diagnosing the condition. Rather, it is diagnosed by clinical evaluation, lab tests and imaging. This makes meeting your long term disability plan’s definition of disabled more difficult as insurers are often looking for “objective evidence” of disability.

June 5, 2019

DOL Set to Release Association Retirement Plan Rule

by Elizabeth Hopkins

Undeterred by a federal court’s recent ruling striking down most of a Department of Labor regulation that allowed small employers and sole proprietors to band together to form association healthcare plans (AHP), DOL is giving top priority to finalizing a rule that will do much the same thing on the pension side. The proposed pension rule, which was published last October, is aimed at increasing the abysmally low retirement savings by employees of small businesses, whose employers more often than not do not offer pension plans, a laudable goal. As proposed, the rule expands the definition of “employer” in ERISA to allow unrelated employers and sole proprietors that are in the same general line of business, or in the same State or geographic area, to participate in a pension plan sponsored by an employer group, association or professional employer organization. DOL has said that it is aiming to release the final rule in June.

If the final rule looks mostly like the proposal, it is hard to say whether it would be a good thing or a bad thing for employees overall. Unlike the AHP regulation, which was seen by many as a fairly blatant attempt to undermine key consumer protections of the ACA, the pension proposal seems genuinely aimed at increasing the availability of such plans for more small businesses and not at undermining any of the protections of federal law. In fact, in its proposed form, the rule does not go as far as some industry professionals had wanted in expanding who may sponsor such plans, and it expressly prohibits financial services professionals – banks, insurance companies, broker-dealers, third-party administrators and the like – from sponsoring these plans. And it remains to be seen if, in issuing the final rule, DOL tightens the requirements for the sponsoring organizations by, for instance, mandating a minimum number of years of experience, staffing qualifications and capital reserves, as some commenters have urged. But, however well-intentioned the approach, by allowing unrelated employers and business owners with no employees to join association retirement plans, the rule cannot be easily squared with the employment-based context of ERISA. It takes precisely the approach that DOL took in its AHP regulation, and it is likely to be challenged in the same court and to suffer the same fate. Stay tuned for updates.

The attorneys at Kantor & Kantor keep up to date on issues such as these so we can better protect our clients. For more information, please contact an attorney at at 800-446-7529 or use our online contact form.