Here are the resources that were mentioned during our July 22, 2020 BenefitsChat.
The presentation can be accessed here:
The short answer: Yes, depending on how much time has passed since you first submitted your claim.
Consider the following scenario. You work for a company that has an insured long-term disability (“LTD”) plan that is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Let us say the insurance company is Prudential Insurance Company of America. You go out on disability due to chronic pain and file a claim with Prudential on July 25, 2019. On August 19, 2019, Prudential acknowledges that it received your medical records, activities of daily living questionnaire, and work capacity questionnaire. But inexplicitly, it says it needs more time to decide your claim and takes a 30-day extension. In the meantime, Prudential reaches out to your doctor to request feedback on its medical evaluation conducted by one of its nurse reviewers. Prudential also seeks clarification from you regarding your medical history. On November 13, 2019, Prudential confirms that the file is complete, but it states it needs more time to decide your claim. It does not explain why it needs more time. Finally, on November 27, 2019, Prudential decides against you. Can you file a lawsuit?
According to Judge Jeffrey White in the Northern District of California, the answer is yes. See Hasten v. Prudential Ins. Co. of Am., No. 19-CV-07943-JSW, 2020 WL 3786229 (N.D. Cal. July 6, 2020).
If you have a pending ERISA disability claim, the plan administrator or insurance company may schedule an Independent Medical Examination (“IME”) for you. Your first question may be, “do I have to attend?” While every person’s situation is different, and you should consult with your attorney about the specifics of your case, it is recommended that you comply with reasonable requests by the administrator to have you evaluated in person.
Why, you ask? For starters, most disability policies contain a provision that gives the administrator the right to have you examined. Failure to comply may result in the denial of your claim. For example, in Burke v. Pitney Bowes Inc., 392 F. App’x 570, 572 (9th Cir. 2010), the Ninth Circuit Court of Appeals held that it was reasonable for the plan administrator to request a second IME of the plaintiff and that the plaintiff’s refusal to attend prejudiced the administrator’s ability to decide the claim. The Court found that the termination of disability benefits based on the plaintiff’s failure to attend the IME was not an abuse of discretion.
Second, if your matter ends up in litigation, it is important that you appear reasonable and cooperative to the judge. The focus should be on the merits of your disability claim, not on whether you should have attended an exam.
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.
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.
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?