Articles Posted in Insurance claims and lawsuits

The short answer: Yes, depending on how much time has passed since you first submitted your claim.

Consider the following scenario. You work for a company that has an insured long-term disability (“LTD”) plan that is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Let us say the insurance company is Prudential Insurance Company of America. You go out on disability due to chronic pain and file a claim with Prudential on July 25, 2019. On August 19, 2019, Prudential acknowledges that it received your medical records, activities of daily living questionnaire, and work capacity questionnaire. But inexplicitly, it says it needs more time to decide your claim and takes a 30-day extension. In the meantime, Prudential reaches out to your doctor to request feedback on its medical evaluation conducted by one of its nurse reviewers. Prudential also seeks clarification from you regarding your medical history. On November 13, 2019, Prudential confirms that the file is complete, but it states it needs more time to decide your claim. It does not explain why it needs more time. Finally, on November 27, 2019, Prudential decides against you. Can you file a lawsuit?

According to Judge Jeffrey White in the Northern District of California, the answer is yes. See Hasten v. Prudential Ins. Co. of Am., No. 19-CV-07943-JSW, 2020 WL 3786229 (N.D. Cal. July 6, 2020).

Here at Kantor & Kantor we constantly find ourselves working closely with SSDI attorneys on behalf of our clients. Even more often, the evidence we secure on behalf of our clients during their LTD disputes can be utilized by your clients to support their SSDI claim as well. Here are some thoughts on our clients’ intersection between LTD and SSDI.

If we have a mutual client, use us as a resource to fight the substantive disability claim.

We can promptly provide copies of critical case documents, including testing or expert reports we have acquired in support of our client’s LTD fight. Our evidence saying a claimant is completely unable to work in any occupation on even a part time basis should be similarly useful for your SSDI case.

The riots throughout the United States have been heartbreaking on a number of levels. While the social and political implications will be something our country grapples with for years into the future, the economic effects will be felt immediately.

Small businesses, already devastated by the pandemic and government-mandated shutdowns, are now having to deal with damage from riots and looting.  How are businesses going to recover from this double assault on their bottom line?

Ideally, most businesses have insurance to provide security in the event of riots or looting.  However, many insurance policies have exclusions of or limits on activities that could be viewed as “terrorism.”  We do not yet know how insurers will categorize the riots.

Even though most of us are still sheltering in place in an attempt to lessen the immediate spread and most severe health consequences of COVID-19, it is not too soon to start considering possible long-term health impacts that may arise in the wake of the coronavirus pandemic.

Because the virus affects many organs and systems within the body – from the lungs and cardiovascular system to the liver, kidneys and likely the brain – it now appears likely that at least some patients will suffer long-term physical symptoms.  These long-term and even permanent problems may result from the virus itself, the body’s own immune response or even medical interventions, especially respirators, or a combination of all these factors.  But whatever the cause, doctors are already seeing heart damage, kidney and liver damage and, unsurprisingly, lung scarring and damage in a number of COVID-19 patients who are no longer actively infected.

And these are still early days. Some patients present during the illness with serious neurologic problems such as strokes and encephalitis, as well as other more mild neurologic symptoms such as dizziness, headache and loss of smell.  There have been reports of some patients suffering from Guillain-Barré Syndrome, an auto-immune disease where the immune system responds to an infection by mistakenly attacking the body’s own nerve cells.  It seems possible that at least some of these patients may continue to suffer neurologic and autoimmune issues, and related pain, fatigue and cognitive difficulties for at least some time.

On April 28, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued deadline relief and other guidance under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) to help, among other groups, disability plan participants who are impacted by the COVID-19 pandemic, also referred to as the coronavirus outbreak.

The Department of Labor, Department of the Treasury, and the Internal Revenue Service issued a joint notice explaining the extension of time frames for healthcare coverage, portability, and continuation of group health plan coverage under COBRA, and time frames to file a benefit claim or appeal of denied claims.  They also issued COVID-19 FAQs for Participants and Beneficiaries that address a number of common questions concerning health and retirement benefits.

The final rule published by EBSA and submitted to the Office of the Federal Register (OFR) for publication contains information of the extension of certain timeframes under ERISA and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID-19 National Emergency.

Obviously, the coronavirus pandemic has affected everyone to some degree, and that includes the insurance industry and the people who rely on insurance to protect themselves from disaster.

Fortunately, the California Department of Insurance has been active in an effort to protect policyholders who are affected by the pandemic. As we already reported, on March 30 the DOI directed health insurance companies to increase access to services delivered via telehealth during the current state of emergency.

On April 3, the DOI took even more significant action. It issued another notice, this time directed at all insurers doing business in California, regarding claim deadlines. The DOI instructed all insurance companies to stop enforcing policy or statutory deadlines on policyholders for claims or coverage until 90 days after the COVID-19 state of emergency has ended.

On March 30, 2020, California Insurance Commissioner Ricardo Lara and the California Department of Insurance (“CDI”) directed health insurance companies to increase access to services delivered via telehealth during the COVID-19 state of emergency.

The agency said that increasing the availability of telehealth will “lessen the strain on the supply chain, reduce the need to use scarce stocks of provider personal protective equipment and protect the ability of the healthcare workforce to provide care by limiting physical exposure to potential sources of infectious disease,” the notice states.

To support expanded telehealth, CDI said insurers should allow all network providers to use all available modes of virtual care delivery, including video and telephone-based communication. Insurers are also required to reimburse telehealth services costs at the same rate as in-person office visits, effective March 30, 2020.

If you have a pending ERISA disability claim, the plan administrator or insurance company may schedule an Independent Medical Examination (“IME”) for you.  Your first question may be, “do I have to attend?”  While every person’s situation is different, and you should consult with your attorney about the specifics of your case, it is recommended that you comply with reasonable requests by the administrator to have you evaluated in person.

Why, you ask?  For starters, most disability policies contain a provision that gives the administrator the right to have you examined.  Failure to comply may result in the denial of your claim.  For example, in Burke v. Pitney Bowes Inc., 392 F. App’x 570, 572 (9th Cir. 2010), the Ninth Circuit Court of Appeals held that it was reasonable for the plan administrator to request a second IME of the plaintiff and that the plaintiff’s refusal to attend prejudiced the administrator’s ability to decide the claim.  The Court found that the termination of disability benefits based on the plaintiff’s failure to attend the IME was not an abuse of discretion.

Second, if your matter ends up in litigation, it is important that you appear reasonable and cooperative to the judge.  The focus should be on the merits of your disability claim, not on whether you should have attended an exam.

You have a business, and you were a responsible business owner.  You insured it against a variety of possible calamities, and included business income interruption insurance so you could continue meeting your financial obligations even if there is a disaster.

But then COVID-19 hit, and the government put everyone in your area on lockdown. Maybe your business can’t operate at all remotely, or maybe it “just” has taken a huge hit as people stay home.  Regardless, now is the time you need your insurance.

You May Hear Disturbing News

Over the past 15 years, I have represented hundreds of claimants in their claims for disability benefits governed by the Employee Retirement Income Security Act of 1974, also known as ERISA.  If an ERISA disability claim is denied, a claimant must appeal that denial to the plan administrator or insurance company before he or she is able to file a lawsuit.  The appeals process is referred to as exhausting administrative remedies (though there is no administrative agency involved). The ERISA Regulations provide rules that an administrator must follow in order to give a claimant a “full and fair review.”  See ERISA § 503; 29 CFR § 2560.503-1 (Claims procedure).

Effective April 1, 2018, the ERISA Regulations were changed to require that an insurance company or administrator provide to the claimant copies of new evidence it obtains after a claimant submits an appeal so that the claimant has an opportunity to respond to the new evidence before the insurance company issues a final claim decision.  Some insurance companies, however, refuse to provide this evidence to claimants who filed their disability claims before April 1, 2018.

What if you fall into this pre-April 1, 2018 category?  Do you have any rights to know what the insurance company is relying on before it issues a final decision on your appeal?

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