Court Awards Judgment to Long Term Disability Claimant Against CIGNA

A Federal Judge in Nevada has granted judgment to a Long Term Disability insurance claimant in her claim against CIGNA/LINA, following a bench trial. The court ruled for the claimant, notwithstanding its finding of fact that CIGNA administered the determination of eligibility in an appropriate manner. Instead, the court determined that CIGNA did not properly terminate the claim for benefits under the any occupation definition of disability.

The claimant, who had worked as a reservations manager for VEBA, a sedentary position, stopped working in 2006, to undergo surgery to remove a tumor pressing against her brain stem. She returned to work, in February 2007, on a reduced basis, but was unable to continue after August 2007. She remained on claim throughout her own occupation period, and CIGNA commenced with an analysis of her ability to engage in any occupation.

CIGNA sought and obtained an examination of the claimant, having her undergo a neuropsychological evaluation in October 2011. CIGNA then conducted a Transferable Skills Analysis (TSA), which purported to identify occupations the claimant could perform. Her claim was then closed, and the claimant appealed, providing additional medical support. CIGNA on appeal relied upon one of its in house medical personnel, Dr. Hall, and the appeal was denied.

In its de novo review, the court determined that CIGNA's decision was improper, as CIGNA had determined that the claimant had the "ability to perform the duties of any occupation", but had not reached the important question of whether the claimant was disabled under the terms of the policy, meaning that she was able to earn 60% of her prior earnings.

We see flawed Transferable Skills Analysis from CIGNA and other insurers regularly in the context of long term disability insurance claims. The TSA's very often only reflect the limitations set forth by the insurers' hired doctors and fail to consider the limitations or restrictions of the claimant's treating doctors.

Brown v. CIGNA

April 10, 2014

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Liberty Life Found to Have Abused Its Discretion in ERISA Disability Claim

A Federal Judge in Pennsylvania has reversed a decision by Liberty Life to deny benefits to an ERISA disability insurance claimant, whose claim for benefits was not paid. The Court reached its determination that Liberty Life abused its discretion after evaluating a myriad of factors regarding its claim handling, and found that each of these factors when considered together, compelled a result supporting impairment and the payment of benefits for the claimants Own Occupation benefits.

The Court did remand the claim back to Liberty Life for the consideration of benefits under the Any Occupation standard, determining that the information under consideration during litigation did not support an award of benefits for that period.

The Court evaluated the following significant factors: (1) the selective review and consideration of the claimant's medical support; (2) Liberty Life's structural conflict of interest as claims payor and claim administrator; and (4) Liberty Life's occupational analysis. In this ERISA disability case, the Court was applying the abuse of discretion standard of review.

The Court was troubled that Liberty Life had provided a scant analysis of the claimant's medical support, while providing an in-depth discussion of the medical reviews conducted by its hired doctors, who only performed paper medical reviews. The Court noted that Liberty Life's incomplete and selective treatment of the medical evidence was a factor to consider in its evaluation, weighing in favor of the claimant.

Liberty Life had evaluated the claimant's occupational requirements on the basis of the Dictionary of Occupational Titles ("DOT"), and determined that her work was considered sedentary. Liberty Life failed to account for any consideration of her actual work requirements, which were much more significant and required that she frequently drive, walk up to 5 miles per day, and carry up to 25 pounds up to 6 hours a day. None of these physical demands were considered, where Liberty Life eschewed considering that material, in favor of an analysis which it could utilize to deny the claim, finding only sedentary capacity was required for her Own Occupation, as that term was defined to include the national economy. This was one factor leading the Court to conclude that Liberty Life "placed a heavy emphasis on the facts that most supported a finding that Plaintiff was not disabled while, at the same time, refusing to acknowledge or otherwise reconcile its assessment with information undermined its finding."

The Court determined that even applying the sedentary requirements, Liberty Life failed to properly evaluate the claim, where there was credible medical evidence supporting that the claimant's chronic low back pain with radicular symptoms was exacerbated by prolonged sitting. Thus, regardless of the ultimate occupational requirement conclusion, the glaring failure to properly credit any of the medical support for the claim led the Court to conclude Liberty Life's determination was an abuse of discretion.

The final factor tipping the scales in favor of the claimant was the award of Social Security, which Liberty Life failed to credit, despite the more narrow definition which Social Security applied in determining the claimant was eligible for Social Security. The Court was troubled that Liberty Life gave this determination short shrift and found this to be another factor for consideration.

Branca v. Liberty Life

April 8, 2014

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Greater Long Island Dental Meeting - See you there!

We are headed to this year's GLIDM, held at the Huntington Hilton - Long Island's biggest gathering of dentists, orthodontists, periodontists, oral surgeons, dental practice administrators and other members of the dental profession, who gather once a year for educational workshops, a well attended exhibit hall and a lot of networking.

Frankel & Newfield represents many dentists in our disability insurance law practice. That's because dentists and those in the oral health profession face special challenges in disability insurance claims. They fall into two major categories -

Physical challenges of the profession - Dentists stand for long hours, and must exert extremely controlled forces with the hands, often in awkward positions, working small muscle groups in the hands and larger muscle groups in the arms, shoulders, neck and back. Dentistry is a physically demanding profession and over time, this takes a toll.

Challenges posed by disability insurance companies - The dentist is likely to wear two hats at their practice - a practicing health care professional and an administrator/manager. The disability insurance company will attempt to use this as a means of denying a claim. If the dentist has an own occ (Own Occupation) disability policy, the strategy may be to have the dentist say that a large percentage of their occupation is that of a administrator, and the insurance company will make the case that even if the dentist cannot practice medicine, they can still be an administrator.

These are the two biggest categories, but there are many subtler challenges along the way. Residual claims, when the dentist can still practice, but cannot handle the same number of patients as in the past, is another common issue.

If you're heading to GLIDM, stop by our table to say hello. If you're there tonight, we're raffling off two tickets to a Mets vs. Yankees game - definitely worth a visit!

If you are a dentist with questions about your disability insurance policy, or are thinking about filing a claim, call our office at 877-LTD-CLAIM (877-583-2524) to learn how we can help.

April 8, 2014

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Federal Court Finds Aetna Abused Its Discretion in Terminating Long Term Disability Insurance Claim

A Federal judge in West Virginia has overturned Aetna's termination of a long term disability insurance claim for a claimant who had been paid his disability benefits for several years. The Court determined that the claim for disability benefits should be paid, with interest on the benefit arrears, and that Aetna must continue to pay the claim until such time as the claimant recovers or is no longer entitled to disability insurance benefits under the policy.

The claimant became disabled in 2008, when he stopped working due to chest pain, which led to a triple bypass, and subsequent artery graft. The claimant also suffered from back pain and was obese. He was under the care and treatment of numerous medical providers for his various co-morbid conditions. Aetna had a paper review conducted, which found no functional impairments. They then conducted a vocational assessment which relied upon their paper medical review. Aetna then had an examination performed, and the examiner opined that the claimant could work in a sedentary occupation.

Aetna terminated the claim on the basis of the claimant's functionality and employability. On appeal, Aetna had a paper medical review conducted, which found no functional limitations and the termination was upheld by Aetna.

The Court was troubled by Aetna's reliance upon the report from the examining doctor, who first stated that the claimant could only work part time, but that after a short period of weeks, would be capable of full time employment. Noting the heavy pain medications taken by the claimant, his co-morbid conditions and the length of time he had been out of work, the Court found Aetna's reliance upon the examiner's opinions to be unreasonable.

Thus, benefits were reinstated and interest awarded.

Bird v. Aetna Life Ins. Co.

April 2, 2014

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Disability Claimants Suffer When Non-Practicing Physicians Start Practicing Medicine

We were dismayed to read a news article about guidelines on pain medication use by a company that we have seen in many of our litigated cases. Equally disturbing was the fact that this particular group is now owned by an insurance company that we actually respect. Yes, there are insurance companies who stand by their contracts and do the right thing for their claimants - we don't write about them here because frankly, we don't see them in our practice often.

The company we are troubled by is The Reed Group, publisher of a tome known as the MDA - a resource book created and edited by a non-practicing doctor, whose core business is to conduct disability management for insurers and administrators. The book purports to be edited by a large group of medical specialists - but unlike most medical books we know, it does not include any medical references, citations or studies that are typically included in most, if not all, medical texts.

Just as candidates hire ghost writers and PR agencies to release their biographies around the time that political picks are being made, this organization publishes guidelines as a means of keeping the lid on disability claims. They pander to the employer/insurer marketplace, as a means to keeping costs low for "absence management". In fact, the book itself does nothing to hide its intentions. The text is a pretext for establishing limits on disability benefits payments which is clearly expressed in the foreword to the book which states:

"Increasingly, employers recognize the connection between healthy workers and company productivity...One manifestation of this new awareness is employer focus on minimizing disability...To have effective partnerships around disability management and return to work goals, there must be tools that assist employers, providers, and other participants in the disability process to be successful in their efforts to minimize disability impact on the workplace...The disability duration guidelines provided in The Medical Advisor are an excellent example of such tools. These guidelines help assure a consistent approach to determining disability duration for the purposes of benefits decisions.

The Medical Advisor has been used by...managed care companies, insurance carriers, physicians, disability determination companies, and third party administrators....This effort is an important contribution by providing a common basis for various stakeholders in the disability management process to discuss disability duration assessments as one component of a disability management program. (p. xv at 424) (emphasis added)


Thus, it's no surprise that their findings concerning limiting the use of opioids - strong medications that include morphine - to help manage pain. It's ironic that the analysts include in the report that 80 to 94 percent of the studies about opioid use involve funding from the opioid industry itself. We aren't surprised by that, most drug studies are conducted with the funds from Big Pharma, the pet name for one of the top three largest lobbying groups in Washington. Another massive lobbying group - the insurance industry.

This book and its readers have one unified focus - to control the cost of disability insurance providers and other participants in the disability process. The introduction of the book makes it very clear that this is its purpose, along with enough corporate speak to wear out any normal person suffering from a disability.

Call us crazy, but we think that the there is one person who is the best judge of what type of medicine an ill or injured person should be taking - their primary care physician or specialist providing care and treatment. If they are working with a pain management expert or a pharmacologist who has been brought into their case to ensure the proper use of pain medicine, then that makes two, or three. But we don't believe most people need the services of an insurance company owned purported medical publisher to get involved in their day to day health care. And we really, truly, don't think that most of us will be on the road to better health if our healthcare decisions are made by bean counters, and not real practicing medical doctors.

Has your disability insurance company denied or terminated your benefits, claiming that you have no claim? Call our office today at 1-877-LTD-CLAIM (877-583-2524) to learn how we can help.

March 21, 2014

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Federal Judge Remands Claim to Met Life for Full and Fair Review

A Federal Court in Louisiana has determined that Met Life failed to provide a long term disability insurance claimant with a full and fair review, where it denied the claimant's appeal for a different reason that the one articulated in the initial claim decision. The Court determined that the failure to provide a second level of administrative review under these circumstances amounted to a failure to provide a "full and fair" review under ERISA. The Court thus sent the claim back to Met Life to permit the claimant to pursue an administrative appeal of Met Life's new decision.

Long term disability insurance claimants are entitled to a full and fair review of their claims under ERISA. What that means will often be judge dependent and will vary greatly. However, one court, interpreting the ERISA regulations, has decided that where an administrator changes its reasoning for a claim decision, it must afford a claimant a right to appeal the new ground for claim denial.

Here, Met Life originally denied the claim on the purported basis that the treating physician had cleared the claimant to work eight hours per day - which was actually a mistaken reading of the report. On appeal, the claimant was able to overcome this issue, by showing that Met Life had mistakenly relied on a document in error. However, Met Life then chose to take the position that the claimant failed to provide objective evidence to support that he remained impaired and unable to work in any occupation.

Because of the changed reasoning, Met Life failed to afford the claimant an appropriate opportunity to challenge the basis of the termination, and Met Life failed to provide the claimant with the necessary protections under ERISA to secure a full and fair review.

The Court was not persuaded, however, to grant benefits to the claimant, or to award attorneys fees to the claimant for securing the remand.

Richardson v. Met Life Ins. Co.

March 18, 2014

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Court Refuses to Permit Filing In Disability Litigation Under Seal

A Federal judge in Kansas has refused a request by an insurer (UNUM) to permit the filing of what it classifies as "confidential" information under seal. The Judge correctly noted that the decision whether to seal judicial records is a matter left to the sound discretion of the district court. The Court noted that "the public has a common-law right to judicial records", a right the Court noted derived from the public's interest in the fairness and honesty of its court, and in understanding disputes that are resolved in a public forum. But, the Court also noted that "the parties' privacy interest in some information may overcome the public's right."

In deciding whether to seal or not, the Court is required to balance the public's right against the party's interest in sealing, but noted that documents should be sealed "only on the basis of articulable facts known to the Court, not on the basis of unsupported hypothesis or conjecture."

The documents at issue which UNUM wanted sealed related to the financial information of a hired medical reviewer physician. The Court was unpersuaded that such information was entitled to protection and should not be sealed, particularly given that his impartiality was at issue. A secondary basis, raised by UNUM, was that the amount paid by them to the doctor was a business secret, was readily dismissed by the Court.

Thus, the Court refused to permit the filing of documents reflecting the doctor's earnings under seal.

Meyer v. UNUM Life Ins. Co.

March 17, 2014

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Disability Linked to Sitting - Research Study Makes the Connection

Sit more, and you increase the likelihood of becoming disabled, according to a new study from Northwestern University's Feinberg School of Medicine.

The study, published in the Journal of Physical Activity and Health, examined a large group of adults over age 60 who had participated in the National Health and Nutrition Examination Survey. They wore an accelerometer - a device that measures physical activity that perhaps we should all be wearing - that would provide an objective and accurate data of their physical activity. The results were dramatic and the message is clear - movement is a daily necessity of good health.

Science has long recognized that an active lifestyle is an important part of maintaining overall health, but this particular study focused on sitting as part of a lifestyle. According to the research, for every extra hour per day that a person is sitting, their risk for disability increases by 50 percent.

Does this mean you are destined to become disabled because your occupation keeps you deskbound? Depends. According to study author Dr. Dorothy Dunlop, professor of medicine and preventive medicine at Northwestern, sitting does increase risk factors for disability. There are things that deskbound office workers can do to help their health:

Treadmill desks are growing in popularity, although more often seen in high-tech companies than professional service firms.

Use a telephone headset that allows standing and walking around during extended conversations.

Take frequent small breaks -a short walk to the other side of the office - two breaks per hour.

Desk Exercises - stretch your arms overhead, stretch your legs out, do abdominal crunches as you sit at your desk.

Sit on an exercise ball - large inflatable exercise balls, at the right height, can be comfortable but they do require balance and the use muscles in the legs and core to maintain correct posture.

Standing Desk or Work Area - bring your work to a counter in the office kitchen; use your cell phone to make calls while standing. Try different locations to see what works best for your situation.

Action Meetings - If your meetings involve small numbers of people, try to make them walking meetings, getting everyone outdoors and moving. The break with routine will foster fresh ideas and all will benefit from moving around a little in the middle of the day.

As experienced long term disability lawyers, we have worked with many clients who are surprised to find themselves in the position of being disabled. Those who pride themselves on taking good care of their health on a daily basis are often able to draw on the same self-discipline and productive behaviors when it comes to battling their disability.

Our job is to battle with the long term disability insurance company so that our clients can focus on adapting to the challenges presented by their disability. When the insurance company claims that you have no claim, call our office at 877-LTD-CLAIM (877-583-2524). Bear in mind that there are now severe time limits on disability insurance policy claims, so don't put off making this free phone call.

March 7, 2014

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NBA Referees Have Disability Issues too

In a decision from the United States Court of Appeals for the Second Circuit, the Court reversed a decision on a disability matter that is interesting for its fact pattern as well as result. An extreme simplification of the decision: because of specific tenants of law in Pennsylvania, if an insurance agent makes representation about a policy and says it provides certain types of coverage that is later found to be inconsistent with the policy, the insured is entitled to that coverage. It does not matter whether or not the insured's actually read the policies to ensure that the coverage was in place.

In the matter of Nunn v. Massachusetts Cas. Ins. Co., No. 12-3712-cv (2d Cir. Feb. 24, 2014), Ronald Nunn and Donald Vaden, both National Basketball Association referees, purchased disability insurance at a union meeting that took place at a refer training camp hosted by the National Basketball Referees Association. The Massachusetts Casualty Insurance representative gave a presentation on a supplemental disability policy offered by Mass Casualty, and described a supplemental disability policy that he had implemented for umpires with Major League Baseball.

Presented as a disability insurance expert with many years of experience, the agent made it very clear that the coverage included "own occupation" - if policy owners were unable to work as NBA officials, regardless of the extent of disability. The point was repeated several times before the group. The representative helped Nunn and Vaden complete their policies by telephone, and signed both.

Neither man read the policies to find out whether or not the coverage was as Lucas had stated. It's fair to say that most people do not read complex insurance policy contracts, particularly when a representative presented as an expert has explained what they contain.

The policies that were actually purchased contacted a completely different definition of what "total disability" was. The coverage provided for "own occupation" was only good for five years, not until age 65. At that time, it became an "any occupation" policy.

Both men subsequently suffered injuries and after five years, the payments stopped and litigation began. The Court's decision emphasized that Pennsylvania law has a strong reasonable expectations doctrine that protects policyholders when making determinations of insurance coverage. These doctrines are not limited to Pennsylvania - New York, New Jersey and Louisiana courts all recognize this doctrine and use it routinely to protect policy owners. In our experience, this is not an easy legal theory to defend, particularly in disability insurance matters, but it is an important one. Courts recognize that people often purchase insurance based on the representations of agents and companies, and when the terms of the policy are not accurate, the expectations doctrine may arise.

If you have purchased a disability insurance policy based on verbal assurances that turned out not to be included in the policy, call our office at 877-LTD-CLAIM (877-583-2524). Bear in mind that there are now severe time limits on disability insurance policy claims, so if you think you may have a problem, don't delay.

March 3, 2014

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Uh Oh Unum


We often wonder why insurance companies don't simply state outright that they are financial investment companies, with an ancillary business of insurance on the side. That's how they behave, that's how they do their quarterly reports.

Unum Group Inc. is the dominant force in disability claims in the United States and the United Kingdom, and recently released fourth quarter earnings reports that were just as much about the impact of low interest rates hurting their investment returns as about disability insurance claims.

Their business model is that the disability business is dependent on interest income for all those pesky disability claims that they don't really like to pay and to cover the cost of the legal fees incurred when policy owners are bold enough to file a claim and then hire attorneys who want Unum to comply with the terms of their disability policies.

During the fourth quarter of 2013, Unum's supplemental and voluntary individual disability sales increased 28%, to $16 million. But the group disability premium revenues fell from $514 to $55 million. And net investment income fell too.

What's on Unum's senior officials' minds? They are talking with financial analysts about the impact of the new healthcare law and the rise of private benefits exchanges and increasing competition in the voluntary benefits market. They are talking about the current low interest rate environment and what a challenge that is for the insurance business.

What's not on their minds? You.

Remember, Unum is the company that was the target of not just a 60 Minute expose and Dateline report on how their employees were rewarded by how many claims they denied or terminated. This was also the company at the center of a large class action lawsuit that embodied all of the uncaring and heartless ways that claimants were denied coverage. Courts have found that the company had a systematic program in place to deny and terminate claims. They called it a history of biased claim administration. That's harsh.

So if you have a disability policy with Unum and are wondering about filing for a claim, we strongly suggest you consider not going it alone and retaining an experienced disability insurance law firm. The disability insurance claims area is littered with complex and deliberately difficult pitfalls that are stacked against the claimant.

Before you file a disability insurance claim:

Locate your policy - the original one.

Read it carefully.

Look for time restrictions - from the time that you file a claim, the clock starts ticking on a number of deadlines that are very strict. If you miss a deadline, you may lose the ability to appeal your claim.

Alert your primary care physician that you are going to file a claim, and find out if he/she has worked with any other patients who have filed a claim. There are many subtle and not so subtle bits of information that must be in your medical files that can break or support your claim.

Stop posting on social media. Instagram, Pinterest, old-school media like Facebook... whatever you are doing in your private life needs to be private.

If you have questions about the claims process for Unum, or any other disability insurance company, call our office at 1-877-LTD-CLAIM (877-583-2524). You don't have to do this alone.

February 11, 2014

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HARTFORD DISABLITY SALES, PROFITS AND CLAIMS

Why do we share news about the business of disability insurance companies? We believe that getting a glimpse into the decisions made at the corporate level can yield insight into the decisions made at the claims level. Insurance companies are businesses first - and the bottom line is the first, last and only priority to these companies. That's why we tell our clients to try not to take their disability insurance claim delays, denials, or even terminations, personally. For our clients, these decisions are extremely personal, but for the insurance company, it's business as usual.

It was recently announced that disability insurance policy sales for Hartford Financial Services Group are up in the last quarter. The company also announced that it shed its largest account after not being able to agree on terms. The account was reportedly not a profit source, which makes analysts and shareholders happy.

Hartford sold $52 million in new insured group disability sales and disability plan administration contract sales in the last quarter, and while group disability premiums and premium equivalents fell to $454 million, the disability loss ratio improved, falling to 75.5 percent, from 85.5 percent. Hartford has announced that disability policy pricing is going up, from 15- 18%. That also makes financial analysts and shareholders happy.

We don't pretend to know precisely what the senior executives in the disability unit are thinking over at Hartford, but we do know the fallout from these decisions -- we receive an increased number of phone calls and emails from claimants who have had their claims delayed, denied or terminated by Hartford.

We've battled Hartford and its representatives for years, and we've learned a few things along the way:

Hartford was successful in a recent United States Supreme Court case that has made the restrictive time limits on appealing a denial even worse than before. The clock starts ticking from the date the proof of loss is due - even before a lawsuit is filed.

Hartford's denial of a claim by a woman with Multiple Sclerosis was particularly hard-hearted, even for a disability company. A Federal judge overruled Hartford's denial of claims by a woman with MS and found that the process we see on a daily basis - finding non-existent inconsistencies in the medical records, conducting surveillance, assigning a file to a Special Investigations Unit, neglecting to have an in-person medical exam and relying on a paper review of medical records to deny her claim. The woman had qualified for Social Security benefits - which sets a higher bar than insurance companies to obtaining benefits.

Harford cases are often reported on in our blog, and they almost always involve an abuse of discretion in denying claims for individuals who are disabled. Their tactics vary, from characterizing a job as sedentary and failing to correctly read the person's employer's job description to picking apart medical records in searching for any minute detail that might be used against the claimant.

When people call us, they are confused, as their medical records clearly indicate how ill or injured they are. There was never a doubt in their minds that the insurance company would protect them after years, in many cases, decades of paying their policy premiums. They don't understand why a company they placed their trust in would suddenly turn into their worst nightmare.

If you or someone you love is having trouble obtaining benefits for a disability claim with Hartford, call our office today at 877-LTD-CLAIM (877-583-2524) to learn how we can help you. There are strict time limitations, so don't delay making in this free call.

February 5, 2014

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Court Remands Case After Finding CIGNA Failed to Properly Review Claim

A Federal Court in Pennsylvania has determined that CIGNA failed to follow the recommendations of its hired doctor -- instead terminating a claimant who had been on claim and paid from 1997 until 2012. CIGNA failed to conduct an appropriate evaluation of the claimant, and failed to account for the recommended testing from a doctor it hired to review the records and who challenged the results of a Functional Capacity Evaluation, claiming that due to the nature of the claimant's condition, the appropriate testing would encompass 8 hours per day over three consecutive days.

Unfortunately, CIGNA ignored this well reasoned approach to evaluating a claimant's true level of functional capacity, eschewing such logic for a pre-determined path to terminate a long standing claimant.

The claimant, who originally went out on disability in 1997 due to Chronic Fatigue Syndrome and Lupus, had previously had her claim terminated in 2009, only to be reinstated again following an administrative appeal. The claimant had also been awarded Social Security disability benefits resulting from the same conditions upon which CIGNA had accepted liability of the claim. CIGNA had also obtained surveillance video of the claimant, which was largely benign and not indicative of much as it pertained to work capacity. While the Court noted that surveillance is an "aggressive tactic" it took no issue with it as being a prohibited claim investigative tool.

Due to its concern about the appropriate consideration of the medical issues, the Court determined that remanding the claim back to CIGNA, for the purpose of obtaining an appropriate Functional Capacity Evaluation, was the most logical course.

In our national practice, we often see claims denied and/or terminated on the basis of paper only medical reviews, rather than an actual in person examination of a claimant. We also see many cases where a flawed Functional Capacity Evaluation was conducted, and which typically fails to provide significant information to determine a claimant's true level of sustained functionality.

Moros v. CIGNA

January 30, 2014

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Jason Newfield Lectures at Disability Insurance Conference

Jason Newfield recently lectured for the American Conference Institute (ACI), on Disability Insurance Claims and Litigation. His presentation was entitled "Subjective Disorders: Objective Proof of Non-Visible Conditions." This marks the Fifth consecutive year Mr. Newfield has been an invited speaker at ACI.

Mr. Newfield collaborated with Dr. Mark Levy on this project, and offered their opinions and discussion regarding the medical and legal aspects of subjective claims, including claims for Depression, Anxiety, Fibromyalgia, Chronic Fatigue Syndrome, and Lyme Disease.

Some of the areas covered in Mr. Newfield's lecture included paper reviews by physicians hired by insurance companies and how courts have treated such action, particularly in mental health claims, a discussion about the propriety of requiring objective evidence to support claims that are largely subjective in nature, and cases addressing reviews by doctors who do not believe a particular condition could ever be impairing and how courts have viewed such situations.

A lively discussion followed, as the Conference is attended by colleagues on both sides including in house counsel, claim personnel, and outside counsel, along with plaintiff counsel from around the country.

Other topics of interest at the ACI conference included vocational reviews and strategies, a panel about mediation and settlement, attacking and interpreting IMEs, and FCEs, the nature and scope of discovery in ERISA cases, and a discussion about the use of surveillance. In addition, there was a lengthy panel involving a number of judges from around the country, to discuss some of the hot trends and issues involved in ERISA litigation of disability insurance claims.

As one of the leaders in litigating disability insurance claims around the country, Mr. Newfield is proud to be a regular part of the ACI program.

January 30, 2014

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Migraines - Far More Than a Bad Headache

More than 37 million Americans suffer from migraine headaches, also known as vascular headaches. Unlike a regular headache, migraine headaches are debilitating, with extreme levels of sharp pain in the head and often in the ears or eyes.

Some patients experience extreme changes in their vision, which are known as ocular migraines. Most migraine headaches involve nausea and light sensitivity. These headaches last anywhere from four to seventy two hours. For some, stress triggers an episode, while others find that certain foods or exposure to certain chemical compounds trigger the headaches.

There is a general lack of understanding by non-migraine sufferers about the severity and impact of these vascular headaches. People are often stigmatized by employers and family members who do not comprehend the level of pain that they experience during these events. Unlike other disorders, the person does not always look like they are sick while experiencing a migraine headache.

The intensity of the pain and other symptoms make it impossible for the person to concentrate or think clearly. Sufferers often seek a quiet and dark place where they can try to get some relief.

Migraine sufferers miss work and social activities, and often are drained and exhausted after the headache does finally pass. Treatments for the migraine can be almost as debilitating as the headaches themselves. Certain drugs make patients too tired to drive or work. Others don't feel confident taking the Triptan class of medications, which work by promoting constriction of blood vessels and blocking pain pathways in the brain. They are concerned about the possible side effects, particularly for patients at risk of strokes and heart attacks.

Anti-nausea drugs are frequently prescribed to treat the overwhelming nausea that often accompanies migraine headaches. These too can lead to side effects and need to be prescribed with care. Opiates and steroids are also used to treat migraines, but they are used only when all other options have been exhausted.

If you suffer from migraines and the episodes make it impossible for you to perform the material tasks of your occupation, you may have considered filing for a long-term disability insurance claim. These types of claims are particularly challenging because when an individual is not in the throes of a vascular headache, they are typically fine and can function very well. The problem is, it is impossible for the individual to anticipate when the migraine will strike or how severe it will be. For someone who can stop what they are doing and take a break or halt working altogether while the headache is in progress, it is possible to continue working. But an occupation that requires a high degree of concentration, focus and clarity will be extremely challenging for an individual while they are suffering from the intense pain of a vascular headache.

The unpredictable nature of migraine headaches makes it extremely challenging for individuals to maintain a full work-load. If you or someone you love suffers from migraine headaches, there may be a point in time when you are considering filing for disability benefits. This particularly challenging condition requires the skillful handling of an experienced disability claims attorney who can help navigate filing a claim from the start or fighting when a claim has been denied.

If you need help, don't wait. Call our office today at 877-LTD-CLAIM (877-583-2524).

December 31, 2013

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US Supreme Court Decision is Bad News for ERISA Claims


The United States Supreme Court has handed down a decision that is sending shock waves through the disability plaintiff's bar. In Heimeshoff v. Hartford Life & Accident Insurance Co., the U.S. Supreme Court has held unanimously that the time limit contained within the ERISA plan is enforceable - and the clock starts ticking from the date that the plaintiff's "proof of loss" is due - even before a lawsuit is filed, and possibly, even while a claimant is still receiving benefits, or has not yet "exhausted" their administrative remedies, a predicate to even being permitted to bring litigation.

This is extremely dangerous news to claimants, and adds yet another layer of difficulty to plaintiffs whose policies are part of their benefits package from their employers. As a result of this decision, plaintiffs may be faced with a dilemma as to how to proceed, as they may be subjected to a clock starting on their time to pursue relief, even while engaging in an administrative process with their insurer.

The administrative appeals process is not a fast one - and the insurance companies control the process. This is going to prove costly to claimant, in having to engage counsel earlier in the process, or potentially in seeing viable claims be time barred and unable to be heard in Federal Court.

The plaintiff in Heimeshoff v. Hartford Life was an employee of Wal-Mart Stores who owned a group long term disability insurance policy. She filed a claim for disability benefits in August 2005, and when it was denied, began the administrative appeals process, which did not conclude until November 2007. She did not file a federal suit until November 2010 - more than five years after she first filed a claim for benefits. The language of the plan said that all claims must be filed three years after proof of loss was required to be submitted. The District Court hearing the case dismissed the case, and when the case was brought to the Second Circuit Court of Appeals, that court agreed.

The plaintiff argued that a limitations period that starts before the administrative process has been exhausted is fundamentally wrong and should not be enforced. The Supreme Court disagreed, and now any plaintiff in a long term disability insurance matter needs to start gathering information on dates.

It must be acknowledged that by law ERISA claims are required to be administered within twelve to sixteen months, but we do not live in a perfect world, and not every matter is resolved in a timely manner. There are remedies available to plaintiffs, but they also add another layer of complexity to the cases.

The limitations period, often three years, means that claimant's clocks start ticking from the moment their claim is filed, in any matter that falls under ERISA - not just long term disability insurance, although that is our focus here.

Every step of the claims process must now be watched with the precision of a space launch. Plaintiffs and their attorneys must be extremely aware of the time limits - or risk losing the right to take their case to court.

To read the Supreme Court of the United States decision on Heimeshoff v. Hartford, click here.

December 17, 2013

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