Many attorneys and courts assume that an independent medical exam (IME) is a fair and even-handed way to evaluate whether a long-term disability claimant truly meets the definition of disability. In many cases, it appears that the long-term disability carrier need only obtain an IME and that is enough to terminate benefits and have a court approve that decision. But many have misunderstood the role of the court. Article III courts must do more than rubberstamp a decision by
We have handled many different long term disability claims over the last 27 years. One challenging medical condition is post-traumatic stress disorder (PTSD). A person with this disorder has suffered a traumatic event which precludes full function in work environments. Many combat veterans experience PTSD. PTSD is not limited to combat veterans. Many who have not served have also experienced traumatic events and suffer PTSD as a result. People with PTSD may function normal
Priscilla worked her entire adult life as a nursing assistant. She bathed, fed, moved and assisted struggling patients. It was a physically demanding job. She began having problems with her neck but continued to work because she had to. It grew worse. She was placed on modified and restricted light duty. Her condition worsened. She had fusion surgery. But, she had constant pain from her neck to her hands. She ultimately filed a claim through her employer’s benefits departmen
Change #5: Restrictions on Retroactive Cancellation One weapon utilized by insurance companies is rescission. That means cancellation of a contract and the return of the parties to the position they would have been in had the contract never been made. The following example illustrates the harshness of a retroactive cancellation of long term disability insurance: You thought you had long term disability insurance, and your employer had properly paid the premiums on your behalf
In basketball, certain physical contact with a player on the other team is deemed by the rules unfair and considered a foul. The penalty is free throw(s), or the ball is put in play again. Intentional fouls are used to prevent the other team from scoring or to preserve time. Sometimes the last minute of a game actually lasts substantially longer because the team that is behind fouls the other team to stop the clock. The check on unlimited fouls is that players who commit f
Many employees are in the dark when it comes to what rights and benefits they have. But just because a benefit may have expired does not mean that they do not have a claim. Check out a recent decision which confirms that there is light in the darkness. Many employees believe they have a benefit in place, such as life insurance, but in fact they have no benefit and are being kept in the dark. The life insurance may have been in place for many years and then, due to sickness,
Ask any team who just lost a close football game, and they will likely tell you that but for the penalties that should have been called on the other team, they would have won. The video review of plays has slowly crept into football, first professional and then college. But, there is a limit to what can be reviewed, and there are only certain calls that can result in a penalty being imposed when one wasn’t called on the field. ERISA is no different.
The 11th Circuit recent
People often discover too late that their case is governed by ERISA. And, that can make or break a claim. At a minimum, it can dramatically alter a client’s expectations. Jury trials, punitive damages, and mental anguish damages are generally not allowed under ERISA. Therefore, that case that looks like a promising bad faith case, with the potential for a large recovery, may well be an ERISA case where damages are limited. The good news is that it is still a worthwhile case!
Have you ever had a close call with a case deadline? This is one of those stories. After 26 years of handling ERISA cases, even we occasionally experience new wrinkles. But, that experience enables us to deal with them. Regardless, we will always have our clients’ backs as well as our referring attorneys'. Mr. T’s long-term disability claim terminated in June. The letter denying the claim gave him until December 30 to appeal. In August, he hired an attorney. He did not realiz
For claims filed after April 1, 2018, there have been some changes that will be helpful to claimants and hopefully make the claim process fairer: Change #2: The Explanation For ERISA long-term disability claims and pension disability claims, the insurance company or plan administrator must now explain why it disagrees with your treating doctor, Social Security Administration decision, or vocational expert. This change to the new claim procedure regulation seems like a no-brai
Mr. Williams, who suffers from numerous physical illnesses and can no longer work, found out the hard way how confusing and unfair it can be to calculate the deadline for filing an ERISA lawsuit. His lawsuit “blew up” before it was filed! Williams v. Hartford, 2018 WL 1885783, (S.D. Miss 2018).
Many long-term disability plans governed by ERISA provide that suit must be filed within three (3) years of the date proof of loss is required to be provided. Many also provide that
Over the next few weeks, we will be discussing the five ways that the new claim procedure regulations will impact your long-term disability claim. For claims filed after April 1, 2018, some changes have been made that could be helpful to claimants and will hopefully make the claim process fairer. Change #1: Courts Can Use de novo Review The new regulations permit the court to use the de novo review in cases where an insurer failed to strictly adhere to the regulations. This L
Employee benefit claims usually arise under a federal law called the Employee Retirement Income Security Act (ERISA). As we explain on our website, ERISA has very specific, hard and fast deadlines, and many unique statutory provisions.
Since ERISA is a federal law, this means that employee benefit claims can be filed in federal court and do not need to meet a monetary threshold to be heard. However, these cases can also be filed in state court. Plaintiffs may often prefer t
In ERISA litigation, one of the first things the plaintiff’s counsel will hear when discussing discovery with defense counsel is that there doesn’t need to be any discovery at all. This is suggested because the case must be decided on the administrative record, which the defendant contends it has a right to compose before the lawsuit was filed. Well…not exactly.
In a case involving an accidental death benefit, Duncan v. Minnesota Life, 2018 WL 306609 (S.D. Ohio 2018), a tr
Some people honestly believe that if they are transparent and honest, their long-term disability adjustor will pay their claim. Unfortunately, that is usually not the case. Following are actual examples of things we have heard clients say to their adjustors, few ended up actually derailing their claim. It is good to be transparent and honest with your ERISA attorney but not necessarily with your long-term disability adjustor. Here are 10 things NOT to tell your long-term disa
Many long term disability claimants have severe, disabling medical conditions from which they will obviously never recover. Despite this sad reality, we have to remind such clients that in litigation, a court cannot award future benefits. Many clients are surprised to learn that despite winning their case and receiving all back benefits, their claim goes back before the claims administrator. Clients protest that the claims administrator might deny the claim again, even when t
They all provide timely advice to prevent clients from being negatively impacted by accepting severance payments. One of the harder choices an employee makes when terminating employment is whether to accept a severance payment which usually requires the signing of a release of all claims. That includes a release of all ERISA claims. (Warning: This can arise in the worker’s compensation context, and not just labor law claims.) If the individual has a pension or 401(k), is disa
Often the first two questions we hear from our clients are: Why did they deny my claim? What does this letter mean? Our clients have usually received a letter full of confusing ERISA jargon and terms from an insurance company or a pension plan refusing to pay their claim. So, we’ve decided to tackle the top 10 most confusing ERISA terms to provide a little bit of explanation. “Exhaustion of administrative remedies.” Administrative remedies refer to the claim process procedure
Alice in Wonderland – “I give myself very good advice, but I very seldom follow it.”
In a recent ERISA case, Magistrate Judge David Baker explained that if an insurer uses a doctor to deny a claim, it has to also follow the doctor’s advice. (See Schultz v. Aetna life Ins. Co. et al, 2017 WL 4803806 (M.D. Ala. 2017). Should be common sense, right? Except this is ERISA, also known as Wonderland where things can sometimes get “curiouser and curiouser.”
Overview of Case Sch