Articles Posted in LongTerm Disability (LTD) Insurance

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.

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?

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.

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.

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.

Researchers at Stanford University recently made exciting and significant progress toward developing a possible diagnostic test for chronic fatigue syndrome, or ME/CFS. In a pilot study of 40 people, half healthy and half with ME/CFS, all of the patients with ME/CFS showed a potential biomarker, where the healthy individuals did not.  More details can be seen HERE

As sufferers of ME/CFS know, the struggle to obtain not only treatment, but mere confirmation of the existence of a real disease, can be overwhelming. While the new test itself is still viewed with significant skepticism due to the study’s small sample size, it could be the first step in finding a reliable, objective test to confirm the presence of this debilitating disease.

Disability insurance companies deny claims based on ME/CFS at an extraordinary rate; not because these claims are not righteous. Rather, without a medically accepted diagnostic test, insurers can dismiss your devastating limitations as mere “subjective reports.” Fortunately for consumers, insurers’ attempts to dismiss such claims can be fought, and won, with the right expertise.

Long term disability policies frequently have two different definitions for disability. The first provides benefits if one is unable to perform their “own occupation.” To determine benefits under these criteria, the carrier often looks at the “material and substantial duties” of the insured’s occupation and whether the insured can perform those duties with his or her restrictions and limitations.

After 24 months, the criteria often change to whether the insured can perform “any occupation” for which he or she is suited by education, training and experience.  Most, but not all policies, also expressly include “station in life” criteria.  This means the carrier must also consider the insured’s prior earnings and any alternate occupation identified by the carrier must pay earnings commensurate to the insured’s prior occupation.

We frequently see carriers terminate benefits at the “any occupation” phase of the Plan based on mythical occupations. For example, Hartford has terminated benefits for our clients, stating that the insured can be a “Lens Inserter” or a “Jacket Preparer.”  The carriers take the position that it does not matter if the job actually exists in the national economy. Since the occupations are identified by the outdated Dictionary of Occupational Titles, the carriers believe that they are suitable alternative occupations.

It seems we are handling an increasing number of Lupus cases, so we thought we would write about the illness and the organization that provides information, support and education for those who suffer from Lupus.

The Lupus Foundation 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.lupus.org/about

This organization can provide valuable information for our clients with Lupus and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing Lupus and support for care partners and family. These are just a few examples of the many resources available on the Lupus Foundations’ website.

First reported in 2011, Breast Implant-Associated Anaplastic Large Cell Lymphoma, referred to as BIA-ALCL, is a rare and highly treatable type of lymphoma that can develop around breast implants. This is a cancer of the immune system, not a type of breast cancer. However, when caught early, BIA-ALCL is usually curable.

BIA-ALCL occurs most frequently in patients who have breast implants with textured surfaces. BIA-ALCL has been found with both silicone and saline implants and both breast cancer reconstruction and cosmetic patients. To date, there are no confirmed BIA-ALCL cases that involve only a smooth implant.

Common symptoms of BIA-ALCL include breast enlargement, pain, asymmetry, lump in the breast or armpit, overlying skin rash, hardening of the breast, or a large fluid collection typically developing at least more than one year after receiving an implant, and on average 8 to 10 years after receiving an implant.

Many large companies offer employees “self-insured” or “self-funded” ERISA plans to provide disability insurance or health insurance benefits. However, these companies are not in the business of administering health or disability claims. This makes sense. Boeing doesn’t know how to evaluate a short term disability claim. Intel isn’t in the long term disability business. AT&T doesn’t know how to read medical billing codes. So, instead of trying to do this itself, most companies hire other companies to administer the disability or health insurance claims.

These “third-party” companies are either in the business of administering ERISA benefit plans (e.g. Sedgwick and Reed Group) or are already administering these types of claims because they offer medical or disability insurance themselves (e.g. Cigna and Aetna). In theory, a benefit of this structure is that the entity making the claims decision is not the same entity that has to pay the claim. There is no structural conflict of interest.

How do courts view this type of structure if a lawsuit is filed? In such a situation there was a denial of disability benefits or a medical claim was denied. If the ERISA Plan conferred discretionary authority to the claim administrator – and almost all do this – the court reviews the denial of benefits under the plan for an abuse of discretion. Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101, 115 (1989). Once the court determines that the insurance policy unambiguously grants discretion to the entity that denied the claim – here the third party administrator – the court must determine whether the administrator or fiduciary was operating under a conflict of interest. Metropolitan Life Ins. Co. (MetLife) v. Glenn, 554 U.S. 105 (2008) (“Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.”); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (“Abuse of discretion review applies to a discretion-granting plan even if the administrator has a conflict of interest. But Firestone also makes clear that the existence of a conflict of interest is relevant to how a court conducts abuse of discretion review.”).

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