Articles Tagged with ERISA appeals

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.

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.

An Independent Medical Examination (IME) is an examination by a medical doctor hired to examine you and opine on your disease state and whether it is disabling. If so, the IME can help determine the degree to which is it disabling and its impact on your ability to perform the duties of your own or any occupation, depending upon the stage of your LTD claim.

IMEs are typically quite expensive so we are judicious in when we recommend them to our clients. We recommend them in a variety of situations and this blog does not cover every situation. Of course, we make these determinations on a case-by-case basis for each of our clients but we can offer some general information here.

If your attending physician does not wish to participate in the appeal process by writing letters, responding to medical record reviews from the insurer, or completing questionnaires necessary to a successful appeal, then an IME may be appropriate for your case.  Another situation in which we might recommend an IME is if you suffer from a particular medical condition and there is an IME provider who is a well-known expert in the diagnosis and treatment of that condition.

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.

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