Articles Posted in Insurance claims and lawsuits

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?

Kantor & Kantor, LLP, one of the most experienced law firms in the nation dealing with litigating insurance claims against insurance companies, is proud that once again five Partners have been selected to the 2020 Southern California Super Lawyers list.  Co-Founders Lisa Kantor and Glenn Kantor are joined by Senior Partners Alan Kassan and Corinne Chandler, and Partner Brent Dorian Brehm makes his fourth consecutive appearance.

No more than five percent of the lawyers in Southern California are selected by Super Lawyers. Super Lawyers, part of Thomson Reuters, 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 their practice of law. For more information about Super Lawyers, go to SuperLawyers.com.

A functional capacity evaluation (FCE) is a series of tests that is used to measure a person’s functional physical ability to perform certain work-related tasks. A good, reliable FCE has validity measures embedded within the tests to show that the person taking the tests is putting forth the most effort he can, given his physical limitations. FCEs have many purposes, but in long term disability, we use them to provide objective support of a client’s physical restrictions and limitations with respect to his own occupation or any occupation, if that is the stage of his claim.

Often, in LTD cases, your physician will be asked to complete physical capacity forms. Having an FCE report will assist your doctor in this endeavor by providing her with the exact measurements she needs to provide her opinion.

If you have a condition such as degenerative disc disease, back pain with radiculopathy, fibromyalgia, or many other conditions that result in physical limitations, an FCE can be a very good tool to precisely measure exactly how limited you are by your disabling conditions. We can then use the FCE results to gather further support for your claim by giving it to your physician for her to review and use when she writes a letter of support.

Most ERISA-governed long term disability policies include a limitation on the amount of time they will pay benefits when the disabling condition is one that the policy defines as a “mental/nervous” condition.  Policies vary as to what they include in their definition of “mental/nervous” conditions and the wording of the limitation varies, too.  A note about the wording of the limitation – it is extremely important how the policy words the limitation in terms of how evidence of a condition such as depression or anxiety is presented in a claim.

Generally, the limitation is 24 months of benefits will be paid if the claimant is disabled by a mental/nervous condition such as depression or anxiety. There are conditions, such as Multiple Sclerosis, Parkinson’s Disease, migraines, and disability after heart attack to name a few, that either have depression as a symptom of the disease itself, and/or result in depression from dealing with the disease.  In such cases, you may not be disabled at all by depression but if it is mentioned in your medical records – and it very likely will be – very often an insurance company will seize upon the depression and attempt to apply the policy’s 24-month benefit limitation to your claim.

If your only disabling condition is a mental/nervous condition, and your policy contains a 24-month limitation, it may also contain a 12-month extension of benefits should you be hospitalized for your mental health condition at the end of the 24-month period.  These are highly technical exceptions that often require the assistance of attorneys who understand how these exceptions are applied.

As we continue to learn about efforts to challenge proton therapy denials by groups such as the Proton Therapy Law Coalition, the fundamental question becomes: Will the insurers actually get the message and change their ways? A recent article suggests that even when a jury awards a large punitive damages figure against a health insurer, the carrier is likely not truly getting the message.

In November 2018, an Oklahoma jury returned a $25.5 million verdict against Aetna for improperly denying coverage for proton beam therapy, a treatment the company considered experimental. In the largest verdict for bad faith in U.S. history, the jury found that Aetna “recklessly disregarded its duty to deal fairly and act in good faith” and awarded punitive damages. During the course of deliberations, the jury specifically discussed “sending a message” to Aetna and “making a statement” so Aetna would reevaluate how it handles appeals and requests for coverage.

However, many large insurance companies, if state allows them to, carry their own liability insurance for just this occasion. It appears that about 20 states do not allow insurers to carry such liability coverage. But insurers are now turning to products sold by offshore insurers beyond the reach of state regulators. In other words, a lot of insurers are not directly paying for the punitive damages awarded against them. This undermines the importance and impact of large jury verdicts on effectuating changed insurer practices.

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