Articles Tagged with ERISA appeals

Elizabeth Hopkins and Michelle Roberts, Kantor & Kantor Partners, recently obtained a favorable decision from the Fourth Circuit Court of Appeals in Richmond, Virginia, concluding that a widow could hold her deceased husband’s employer accountable for its actions in preventing her from obtaining the life insurance under her husband’s ERISA-covered benefit plan.

Specifically, although the employer, National Counseling Group (NCG), collected premiums for the life insurance coverage from the husband until the time of his death, it never told him that when he began to work part-time, he became ineligible under the plan but could convert his coverage to an individual policy.  After he died, NCG told his widow not to pursue her claim against the insurance company because it was going to pay her the full benefits, even though it later refused to do so.  Despite these misdeeds, the trial judge dismissed the case after concluding that NCG owed no fiduciary duty to either the decedent or his widow.

Kantor & Kantor attorneys, who are ERISA litigation specialists, took over the case for the appeal.  They argued that the trial judge’s ruling was wrong because NCG was named as a fiduciary and plan administrator in the governing documents and, as such, NCG was required to give accurate and complete information to both the decedent and to his widow.

Many people submit short term disability and long term disability claims on their own, without consulting or engaging an attorney to assist them. We think you should consider hiring an attorney to assist you in this endeavor. Ensuring that you have all of the necessary information to get your claim approved with the first submission can be a daunting task. You are already not feeling well because you are disabled. Moreover, you do not know the ins and outs of the disability insurance world and we attorneys do.

There are several nuances to this process.  Disability attorneys know what documents to help you gather including not only your medical records but additional evidence in support of your claim such as independent medical evaluations, functional capacity evaluations and other medical exams. We also know how to help you get the necessary vocational evidence to support your claim that you can no longer perform the duties of your own occupation.

If you submit your claim on your own and it is denied, you will have to submit an administrative appeal in order to preserve your right to benefits. You will likely come to us at this point and we will advise you on what was missing from your initial claim that resulted in the denial. If you hire an attorney at the initial claim stage, while it is not a guarantee that benefits will be approved, if they are approved, it is certainly a time saver for you.

When you become ill with what may turn out to be a disabling condition, you are not likely thinking about whether the things you say to your physician might impact a short or long term disability claim, but you should be. Unfortunately, insurance companies use comments by claimants and their physicians found in the claimant’s medical records to discredit their claims. They can also be used to apply provisions in the policy that limit the duration of benefits. In some cases, depending on the medical facility where you treat, even your email and telephonic communications are recorded and placed in your medical records. These can be extremely detrimental to your disability claim.

Here are some examples from real claims: A man went to his physician and was diagnosed with Parkinson’s Disease. His symptoms were already pretty advanced and his doctor determined he should stop working. We helped him make a claim for disability benefits. One of the symptoms of PD is depression. Our client had mentioned to his neurologist on many occasions that he was suddenly feeling very depressed. Even though his physician attributed his depression to his PD and even though he had never before had depression, his LTD carrier tried to apply the policy’s mental/nervous limitation which would have limited his benefits to only 24 months, claiming he was disabled by depression, not PD.

In another case, a client who was already receiving long term disability benefits whose claim had been terminated came to our firm for assistance. We told him he would need assistance from his physician for his appeal of the denial. We explained the points the doctor’s letter would need to address and the client listed those points in an email to his physician. Because the client treats at Kaiser Permanente, that email was included in his medical records. When his insurer requested copied of his medical records, his insurer was able to obtain communications between the client and his attorney all because he sent an email to his doctor asking for help.

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?

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.

Missing a deadline in your ERISA claim is deadly to your claim.

Accordingly, it is extremely important that any and all deadlines are met. One deadline of particular importance is the 180-day deadline by which to submit an appeal of a denial of benefits covered by ERISA. The federal regulations that govern ERISA require insurance companies to allow claimants 180 days to submit an appeal of a denial of benefits. While the regulations state that the claimant is to be allowed 180 days from the date of receipt of the denial, the safest course of action is to calculate the deadline from the date of the letter denying the benefits. This is one of many good reasons to come to Kantor & Kantor with your claim.

Six Months Will Fly By

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.

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.

April is Parkinson’s Disease Awareness Month, so we thought we would write a blog entry talking about the illness and the organization that provides information, support and education for those who suffer from Parkinson’s.

The Parkinson’s Foundation (PF) 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.

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

Contact Information