LongTerm Disability (LTD) Insurance

April 3, 2019

The Likes of Sedgwick, Reed Group, Cigna, or Aetna Can Have a Conflict of Interest When Acting as a Third-Party ERISA Claims Administrator

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.”).

March 29, 2019

What is “Reasonable Continuity” and Why is it Important to My Disability Claim?

by Kantor & Kantor LLP

Disability is not measured only by one’s ability to lift, walk, stand, sit, etc. Rather, the California definition of total disability in a policy insuring one’s ability to perform their own occupation is:

“A disability that renders one unable to perform with reasonable continuity the substantial and material acts necessary to pursue his usual occupation in the usual or customary way.”

In policies insuring one’s ability to perform “any occupation” or “any reasonable occupation,” the definition has been stated as:

March 19, 2019

March is Multiple Sclerosis Awareness Month

by Kantor & Kantor LLP

Multiple sclerosis (MS) is an unpredictable, often disabling disease of the central nervous system that disrupts the flow of information within the brain, and between the brain and body. The cause of MS is still unknown – scientists believe the disease is triggered by an as-yet-unidentified environmental factor in a person who is genetically predisposed to respond.

According to the National MS Society, MS is thought to affect more than 2.3 million people worldwide. The progress, severity and specific symptoms of MS in any one person cannot be predicted. Most people with MS are diagnosed between the ages of 20 and 50.

According to the Mayo Clinic, the following risk factors may increase a person’s risk of developing MS:

March 12, 2019

Meet iCPET, the Newest Tool in the Fight to Treat and Recognize ME/CFS

by Kantor & Kantor LLP

In honor of ME/CFS week, we are happy to highlight the newest tool in the fight to not only treat but also recognize chronic fatigue and related conditions: The Invasive Cardiopulmonary Exercise Test, also known as iCPET.

As those familiar with ME/CFS and other related conditions may be aware, “traditional” CPET is the gold standard for objectively measuring the limitations caused by chronic fatigue and the impact those limitations have on an individual’s ability to work. Dr. Christopher Snell and the incredible people at the Workwell Foundation have been administering (and improving) this test for years. Despite the plethora of peer-reviewed data confirming CPET’s objective effectiveness in measuring such limitations, insurers still do their best to disregard and minimize CPET.

In contrast to the CPET, which only requires being hooked up to “external” sensors, the iCPET involves the additional insertion of pulmonary artery and radial artery catheters before administering the test. This allows for “complete cardiopulmonary hemodynamic and peripheral tissue O2 extraction analyses, without which only the degree of impairment (maximum Vo2) and the identification of a pulmonary mechanical limitation to exercise are possible.

March 11, 2019

Four Key Steps to Proving an MS Disability Claim

by Kantor & Kantor LLP

In honor of MS Awareness Week, we would like to devote this blog to successfully proving and establishing a disability claim based on Multiple Sclerosis. We find that most of our clients who have MS have struggled to remain at work, but then reach a point where they can no longer continue. In such circumstances, the carrier may ask “what changed?” It is helpful to show that the condition deteriorated even though the client struggled to remain at work. There are steps you can take to help document the progression of the disease:

Make sure that your doctor’s records accurately describe your symptoms. Many feel that they do not have to describe their fatigue, migraines, muscle weakness, etc. on each visit to their physician(s) because the symptoms are just naturally a part of the disease. This is true, but your medical records must contain a description of the symptoms you are experiencing. If the medical records do not contain an accurate description, a subsequent letter from your physician may be perceived as inconsistent with the medical records.
If you are experiencing “adverse” side effects from your medication, this should also be reported to your physician. Again, many do not report unpleasant side effects because they are to be expected. However, the side effects and their disabling potential should be accurately described in the medical records.

March 11, 2019

Dealing with Insurance Companies: Managing a Disability Claim on Your Own

by Kantor & Kantor LLP

While we certainly do not recommend it, you may choose to handle your own short term disability or long term disability claim. A side note: we strongly recommend you do not handle an STD or an LTD appeal without legal representation.

If you decide to make a disability claim on your own, there are a few things you should keep in mind when dealing with an insurance company: (1) insurance companies are for-profit businesses with an eye on profits; (2) everything you provide to them during your claim goes into your claim file; and (3) you cannot rely on an insurance company to obtain documentation to support your claim.

Why are these things so important?

March 8, 2019

I Always Feel Like Somebody’s Watching Me…

by Kantor & Kantor LLP

Surveillance is a common tool insurance companies use to gather information about long-term disability claimants. It can feel creepy to know the insurer may scan through your Facebook posts, run a background check on you, or even hire an investigator to follow you. Here are some common types of surveillance used, and advice about surveillance for anyone on disability.

Three Common Types of Surveillance

An insurance company may use different kinds of surveillance depending on how much money it is willing to spend to investigate a claim, what kind of activity it expects to uncover, and the type of disability.

February 28, 2019

There Are Many Reasons to Read Your Long Term Disability Insurance Policy

by Kantor & Kantor LLP

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

February 27, 2019

Nothing Ever Happens “Always”, aka The Dangers of Speaking in Absolutes About Your Medical Conditions and Symptoms

by Kantor & Kantor LLP

Long before I became a lawyer, all the way back in childhood, I hated when people spoke in absolutes. For those who don’t know, speaking in absolutes is using all or nothing terms like: always/never; best/worst; everybody/nobody; can’t; nothing/everything; all the time; all/nothing; constantly; definitely; etc. I dislike absolutes because while on the surface they appear to make a message stronger (“this always happens to me” or “my mom’s cooking is the best”), they actually do the opposite by weakening your credibility.

Does anything happen “always”?

Think about it. Does anything happen “always”? Can you definitively say there’s no one on the planet who cooks better than your mom? Of course not! But in addition to saying something that you can’t prove, you have also opened yourself up to allow people to be able to prove – very easily I might add – that you are a liar. And once they can prove you lied about that one thing, they can then turn around and use that lie to cast doubt on everything else you say.

February 21, 2019

Read the Fine Print!

by Kantor & Kantor LLP

As you probably know, insurance companies are masters of fine print. You may think you have coverage for a condition or injury under your insurance, but when the worst happens, you may find out that you weren’t actually covered after all. Or, you may be covered, but you didn’t have as much coverage as you thought you did.

You can’t always protect yourselves from these gotchas. Many of us have insurance through our employers, and we don’t have power to negotiate the terms of those policies.

However, you can still avoid nasty surprises by reading the fine print in advance. Medical insurance is the type of insurance most people are familiar with, and while you don’t need to know your entire insurance policy by heart, you should know the basics of calculating your benefits – i.e., what your deductible, coinsurance, copay, and out-of-pocket maximums are.