Articles Posted in LongTerm Care Insurance

When you think of what lawyers do for a living, the first thing you probably think of is arguing over a case in front of a judge.

You may be surprised to learn, then, that in the federal courts this staple of practicing law seems to be on the way out. The federal district courts – the trial courts of the federal system – are increasingly holding fewer and fewer oral arguments. Some district courts even have a standing default rule that they won’t hear oral argument on a motion unless the presiding judge explicitly asks for it.

This trend is even more accentuated in the federal circuit courts – the appellate courts of the federal system. While the Supreme Court of the United States holds oral argument in almost all of its cases, the circuit courts of appeal do not.

As you know, churches occupy a special place in the law. For example, the First Amendment bars the government from prohibiting the free exercise of religion, and churches, indeed almost all religioous institutions, get special tax treatment from the IRS.

However, you may not know that this distinction can also affect your employee benefits. Almost all employee benefits are governed by a federal law called ERISA (the Employee Retirement Income Security Act of 1974). This law provides various protections, including imposing a fiduciary duty on your employer to act in your best interests in administering your benefits.

However, if you are a beneficiary of an employee benefit plan established by a church (or other religious organization), your benefits are not governed by ERISA, because ERISA has an exemption for “church plans.” (There is also an exemption for government plans.) As a result, you may lose protections under ERISA if you are a church employee.

The short answer is “Yes;” especially if they are carefully drafted to adress disability issues. To be effective, a personal statement should be directed to an insured’s inability to perform the material duties of his/her occupation, or any occupation that one may be suited for by education, training and experience. The more detail, the better.

For many years, insurers routinely disregarded claimants’ personal statement describing their illness or occupational difficulties because the personal statement was not “medical evidence.” Or, a statement may have been disregarded because it described “subjective” symptoms, which were not “verified” by MRI’s, x-rays or diagnostic studies. In the last few years, the Ninth Circuit has been critical of insurers who have insisted on “objective evidence” to prove disabilities caused by pain and fatigue. See, Salomaa v. Honda LTD Plan, 642 F.3d 666 (9th Cir., 2011) (“Many medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established until autopsy. In neither case can a disability insurer condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.”)

Recently we have seen courts accept personal statements of claimants, friends and co-workers as strong evidence of disability. See Demer v IBM Corporation LTD Plan, 835 F.3d 893 (9th Cir., 2016) (Statement by a friend attesting to side effects from medication) and Jahn –Derian v. Metropolitan Life Ins. Co., 2016 WL 1355625 (C.D. Cal., 2016) (Statement from co-worker attesting to the plaintiff’s failed attempts to work with her condition was persuasive evidence).

With increasing frequency, insurance companies like Cigna, Unum, MetLife and Prudential are denying long-term disability (“LTD”) claims due to discrepancies between what the claimant/treating physician is saying on the claim forms and what is stated in the medical records. Essentially, the insurance company will say that the symptoms being described for purposes of the LTD claim are not reflected in the treatment records, so there’s no proof that these were ongoing problems.

This often occurs because of one main reason:  people always want to put their best foot forward.  When the doctor starts the appointment with “how are you feeling?” it’s in our human nature to simply reply “I’m doing okay.” Generally, no matter how we’re actually feeling, we don’t want to be viewed as a complainer so we may tend to downplay our symptoms, even to the extent of telling our doctor that everything is fine…when it’s clearly not.  Usually, when we respond this way, we mean that everything is okay considering the circumstances we find ourselves in, or sometimes just that “things could be worse.”  But, that’s not how it later appears in medical records.  Instead, what this often leads to is medical records showing “no active complaints” or “patient is improving” or “symptoms have subsided,” which gives the insurance company all the ammunition they need to deny the LTD claim.

So, be clear with your doctors about everything you’re experiencing. Don’t hide your symptoms.  Be detailed, and offer real-life examples. Don’t just say “I’m having memory problems.”  Give examples of having lost something, or forgot something you’ve never before forgotten.  Instead of “I’ve been very fatigued lately” explain what you were doing (like shopping, or picking up a child, or gardening, etc.) and how your fatigue interupted or prevented you from finishing the activity.  Also, check with your doctor or the doctor’s staff, to make sure everything you’re telling him/her is making it into your records.

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.

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?

Insurance denial, ERISA denial, claim denied
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid.  It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies also usually require that notice of a claim be given within a specified time period following the loss, for example, “30 days,” or “as soon as practicable,” or “as soon as reasonably possible,” etc.  Again, this is fair because evidence related to the claim is fresh, and most readily available nearer the time of the event.

But, what happens if you can’t, or don’t comply with the policy notice requirement?  What happens if don’t give notice until months, or even years after your claim accrued?

Good questions.

On January 13, 2017, the Los Angeles Times published a column entitled Healthcare insurance hell: If at first your claim is denied, try, try again

The article describes on insured’s extreme difficulty in obtaining approval for treatments of her multiple autoimmune disorders that cause chronic pain, migraines, extreme dizziness and debilitating chronic fatigue. As the title shows, the main thrust of the argument is to never give up if your health insurance claim is denied – however, this advice is not only applicable to health insurance claims – the same holds true, believe it or not, for Long Term Disability, Long Term Care, and even Life Insurance claims!  

Some interesting additional information is also included in the column:

As part of Kantor & Kantor’s”Throwback Thursday”, we take a look at Mondolo v. Unum Life Ins. Co. of Amer., CV-11-07435 CAS (MRWx) (C.D. Cal. 2013).

Kantor & Kantor LLP achieved a victory on behalf of client Tanya Mondolo, who sued Unum Life Insurance Co. in U.S. District Court for the Central District of California for wrongfully denying her disability insurance benefits. The court ruled that Unum, a Fortune 500 company and the largest group and individual disability carrier in the United States, abused its discretion in terminating Mondolo’s disability benefits. The court ordered Unum to reinstate benefits, with interest, and that Kantor & Kantor could make a motion for attorneys’ fees and costs.

Mondolo suffered from fibromyalgia and avascular necrosis, often called bone death. Her physicians believed the bone death was a late developing side effect from the chemotherapy regimen used years ago to treat her leukemia. She had difficulty walking, suffered from uncontrolled pain, and was too weak to tolerate prolonged sitting or typing.

Kantor and Kantor LLP was nominated and has now been awarded the 2015 Best of Business Award for the Small Business category.

The Small Business Community Association has been dedicated to empowering and recognizing small business owners who make a difference in their respective communities since 2006.

We are honored to accept this award and grateful that our firm is recognized in this way.

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