insurance denials

October 9, 2019

Why ERISA Class Actions and Not Big Jury Trial Awards May Induce Payer Change on Proton Therapy

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.

September 23, 2019

Logs – How They Help

by Beth A. Davis

If you have a condition such as migraine headaches, vertigo, or chronic pain, a condition that cannot be captured by “objective diagnostic measures” such as X-rays, MRIs, PET scans, etc., you still need evidence to prove to the insurer that you are disabled.

While letters from your physician describing your symptoms, their impact on your ability to function at work, and the underlying case are helpful as are the office notes from your doctor, we find that daily logs are very helpful. Logs, kept over a period of weeks or months, paint an ongoing picture of the number of times you are suffering from your disabling condition.

In the log, you must be sure to mark down the date, the type of symptom you are experiencing, e,g, – a migraine headache – the quality of the pain, the strength of the pain, and the duration of the pain. Over the course of several months, these logs can really help support a disability claim when they show a person is suffering from 3 or 4 migraines per week and the headaches are lasting for hours or days at a time. These logs are quite compelling when they complement the medical records.

August 27, 2019

I’ve Been Told it is “Too Late” For Me to Make a Claim For Health, Life, or Disability Benefits. Is That Right?

by Glenn R. Kantor

The correct response is, “maybe, or maybe not, depending on the facts, and the state in which you reside.”

Insurance policies very often have time limits on the submission of a claim for benefits. In some states, those deadlines are VERY strictly construed, and once the deadline has passed, it does become “too late” to make a claim.

However, more than half of the states apply some form of an insurance rule called the “notice prejudice” doctrine. Simply put, even if an insurance policy imposes a time limit for the submission of the claim, if certain rules are met, a claim can be submitted after the time limit if the late notice does not “prejudice” the insurance company’s ability to investigate the claim. However, that is just a basic summary of the rule. In the states that apply some form of the notice prejudice doctrine, its application differs from state to state. In some states, the insured making the late claim must demonstrate a “good reason” for making a late claim. In others, the burden falls on the insured to prove that no prejudice would be suffered by the insurance company because of the late claim submission.

July 18, 2019

Kantor & Kantor Wins Long Term Disability Benefits for Claimant Disabled by Trigeminal Neuralgia

by Monica Lienke

Kantor & Kantor won a notable victory against the Life Insurance Company of North America (also known as “LINA” or “Cigna”) in Elliott v. Life Insurance Company of North America, Inc., No. 16-CV-01348-MMC, 2019 WL 2970843 (N.D. Cal. July 9, 2019), a case in the San Francisco Bay Area involving a denial of long-term disability benefits to the plaintiff who is disabled by trigeminal neuralgia.

The plaintiff, Elliott had to stop working in his position as Vice President of a brokerage firm due to symptoms from trigeminal neuralgia, a chronic pain condition affecting the trigeminal nerve, which is a cranial nerve responsible for sensation and certain motor functions in the face. Elliott was experiencing symptoms including shooting facial and head pain on a daily basis, migraines, difficulty talking, as well as medication side effects including sedation and cognitive slowing.

LINA had approved Elliott’s initial claim for short-term-disability, but denied his claim for long-term disability benefits and upheld its denial on appeal, stating that there was a lack of objective evidence to support his diagnosis. After the Social Security Administration approved Elliott’s social security benefits claim, finding him disabled, LINA had another opportunity to reconsider its decision deny Elliott’s claim but declined to do so.

July 11, 2019

Do You Have a Supportive Doctor?

by Beth A. Davis

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.

July 9, 2019

Mastering Long Term Disability Benefits

by Brent Dorian Brehm

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?

June 28, 2019

Super Lawyers Recognizes Kantor & Kantor Attorneys for 2019

by Kantor & Kantor LLP

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.

June 18, 2019

Coverage for Breast Explant Surgery Was Denied – Kantor & Kantor Stepped In and Got the Denial Overturned

by Cari M. Schwartz

It’s a common story shared by an increasing number of women. They received breast implants and after a period of time they started getting sick. While we do not know the exact number, we know that the largest Facebook Group has grown to nearly 83,400 members, with an increase of more than 5,200 in the last 30 days.

A client, whose name is being kept anonymous to protect her privacy, contacted Kantor & Kantor recently for help with an insurance denial. The woman was in failing health and had been experiencing severe medical complications dating back to 2012 after receiving breast implants. The woman referred to her condition as “breast implant illness.”

After consulting with her primary care physician, the woman underwent a bilateral breast MRI which revealed findings consistent with intracapsular rupture in the left breast. Shortly after, she was referred to a plastic surgeon who recommended bilateral breast capsulectomy and implant removal. The procedure, referred to as explant surgery, involves the removal of the implants and the surrounding capsules (or scar tissue).

May 17, 2019

Dramatic Progress Made in Testing for Chronic Fatigue Syndrome

by Kantor & Kantor LLP

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.

March 29, 2019

Cancer Survivor Kate Weissman Files Spearheading Class Action Lawsuit to Expose UnitedHealthcare’s Pursuit of Profits over Patient Protection and Care

by Kantor & Kantor LLP

Kate Weissman is willing to brave litigation with a $150 billion health insurance company to bring about change in our healthcare system. On March 26, 2019, Ms. Weissman filed a class action lawsuit to challenge what she alleges to be UnitedHealthcare’s unfair and deceptive policies and procedures for determining whether a prescribed treatment or medication is medically necessary (utilization review). Ms. Weissman alleges that UnitedHealthcare’s utilization review process is skewed toward the denial of coverage based upon inadequate internal medical policies placed in the hands of unqualified medical directors. This alleged institutional pattern and practice of wrongful conduct results in the systematic denial of coverage for medically necessary proton beam radiation therapy (“PBT “) for UnitedHealthcare’s insured members suffering with cancer, while offering coverage for far less expensive, though far more harmful, conventional radiation treatment.

In October 2015, 30-year-old Ms. Weissman was diagnosed with stage IIB cervical cancer. After various treatments and a relentless battle for her life, her doctors from Massachusetts General Hospital recommended PBT to avoid grave damage to surrounding tissue and organs. On April 6, 2016, UnitedHealthcare denied coverage, contending that PBT is experimental or investigational or unproven. Ms. Weissman alleges that PBT is an established form of treatment that is widely accepted by physicians, government agencies and many insurers and other payers, including Medicare and Medicaid. UnitedHealthcare relied on its own internal policies, as interpreted and applied to Ms. Weissman’s case by UnitedHealthcare’s medical directors, in denying coverage for PBT. UnitedHealthcare would only agree to cover the more conventional intensity-modulated radiation therapy, which is about half the cost of PBT.

Ms. Weissman, who volunteers with Cervivor to advocate for the cervical cancer community, recognizes that she was fortunate enough to have the $95,000.00 to pay for the proton beam treatment ordered by her doctors so that she would not have to settle for the more dangerous and damaging conventional treatment. She is now fighting for those who cannot afford that choice.