We're hearing some bad news about the trust fund that funds Social Security Disability Insurance (SSDI), and that translates to extremely bad news for individual and ERISA Long Term Disability Insurance companies and their claimants. Two reports were issued in late July - one from the Board of Trustees from Medicare and a second from the Social Security trustees. They make for dense reading, but the information contained in these reports is critical if you are on claim for disability, or expecting to go on claim for disability. The economy may be recovering, but these two funds are not.

The problem is an unanticipated result of Congress temporarily cutting payroll taxes in 2011 and 2012 in an effort to help a national economy that was barely breathing. Those cuts led to a massive amount of loss of income for SSDI trust funds. The end of the payroll tax holiday has not brought much relief, as payroll tax revenues continue to be low. Interest rates also continue to be low. The report expects the SSDI fund to run dry in 2016 - which is just around the corner. The SSDI program is expected to have enough income from payroll tax revenues to meet about 80 percent of its benefits obligations. That's fine if you are in the 80 percent - but it's likely that Congress will need to either increase payroll taxes, or SSDI will have to cut current and future benefits.

Why do you care, if your disability benefit comes from a big insurance company?

If you read the fine print in any disability contract, you'll see that the insurance company has the right to deduct any amount of benefits a claimant receives from SSDI. Most contracts require you to file for Social Security Disability Insurance benefits also. If you have a policy that pays a $2,000 monthly benefit, and win a $660 SSDI award, the insurance company cuts your monthly claim by $660. This is called a Social Security Offset, and it's totally legal, even though we have always found it pretty suspect.

But if SSDI goes bust, the offset does too, and the disability insurance company will be on the hook for the entire monthly benefit. The offsets will add up fast, and we know that the first place the insurance companies will look for funds to protect their assets will be their own portfolio of current disability claims. It's the easiest place to deny or delay payments. The cost of stalling a claim, or denying it, is very low to the insurance company. The cost to claimants - enormous. We would expect to see a tremendous uptick in denied or terminated disability insurance claims if SSDI goes bust.

Now that the reports have been released, it's up to Congress.

August 1, 2014

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Newfield Published in Dynamic Chiropractic Practice Insights

The July issue of Dynamic Chiropractic Practice Insights contains an article co-authored by Jason Newfield, Esq., and H. William Wolfson, DC, FICC, MS, entitled "A Practical Approach to Individual Disability Insurance." The article is a comprehensive look at all aspects of individual disability insurance policies, starting with a review of the statistics surrounding the likelihood of becoming disabled to the proper financial planning that should include purchasing a long term disability insurance policy.

While the individual disability insurance (IDI) policy is not subject to the same restraints as the ERISA policy when it is part of an employee benefits package, there are many, many different variables in the policies that must be understood before signing a contract. There are differences in the definition of the chiropractor's occupation (any, modified, own), the elimination period (the time that must pass before a long term disability claim may be made) and how long payments will be made (finite years, age 65 or lifetime), to name but a few.

In a perfect world, the chiropractor treats the purchase of disability insurance as they would the purchase of any large financial investment - and disability insurance is an investment. Should the chiropractor become disabled, the IDI is meant to protect the chiropractor and family's lifestyle and prevent a financial disaster from occurring.

The article provides detailed insight into the pitfalls surrounding the claims process. Our office works with many chiropractors who do not understand the difference between the claims process for health insurance and for disability insurance. Their offices manage health insurance claims on a daily basis, so they are often surprised when an IDI claim is delayed or denied because their treating physician has not described the tasks and physical requirements of a chiropractor.

Chiropractors often face the challenge of the "dual" occupation charge by the disability insurance company. They often take the position that the chiropractor is a healthcare provider as well as a manager of the practice, and therefore can still complete the tasks necessary to be a manager.

Having a disability insurance policy in place should be as much a part of the chiropractor's financial picture as having homeowners insurance or auto insurance. It is a necessary part of a risk management strategy. However, an IDI claim presents far more challenges and requires far more preparation than any other insurance matter. "A Practical Approach" provides an excellent look at the overall picture of the IDI and how it is best approached by the chiropractor.

Click here to read the article.
If you would like to speak with Jason Newfield about your IDI and any related issues, he can be reached at 877-LTD-CLAIM (877-583-2524). More information is available at the firm's website

June 23, 2014

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Disability Claim Payments Reached $9.8 Billion in 2013

Every year we take a look at the annual review of the state of LTD claims among the working population of the US, presented by the Council for Disability Awareness Long Term Disability Claims Review. This organization, made up of behemoth LTD insurance companies, always includes a little self-congratulatory chest thumping, but there's also good information in between the self-promotional language. Like the following:

The total amount of LTD claim payments are up by 1.6% from 2012.

More employers are offering LTD benefit plans, with fewer employers getting coverage. More plans are offered on a voluntary basis, and many employees are declining participation. They may be too cash-strapped to add the LTD benefits to their payroll plans.

The number of claims has declined, and the trend since the peak in 2011 is heading downward.

Approved claims are on the decline. Just fewer than 150,000 new individuals were approved for LTD benefits. This grabs our attention.

There are a lot of moving parts in the LTD insurance space, and they all work in different directions. Consider this:

As the population ages and the poor job climate continues, many workers in their 50s and 60s are simply giving up and are no longer actively seeking employment. That means a smaller pool of people to file claims.

If there are fewer employees opting to have LTD insurance policies as part of their benefits package, actuarially, this decreases the number of people filing claims.

LTD claims payments are up, while the number of individuals receiving payments are down. Is it possible that the claims that are being paid are larger than ever before, being paid to a smaller number of claimants?

Here are the numbers we would like to see:

• How many claimants had their claims denied?

• How many claimants are on claim but are their files are under review?

• How many claimants are about to learn that they have been terminated, even though there has been no change to their ability to work?

• What are the numbers used by management that claims adjusters are using as guidelines to determine how many claims should be approved, denied, and delayed?

We don't expect to see any of these numbers in an industry report anytime soon, but if we do, we'll certainly report on them.

In the meantime, if you are on claim and think the insurance company is looking for a reason to deny your claim, or if you are about to file a disability claim and are concerned about having all your information prepared correctly, call our office at 877-LTD-CLAIM (877-583-2524) to learn how an experienced team of LTD attorneys can help you.

June 18, 2014

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Football players have disability insurance too - here's one with a twist

The San Francisco 49ers signed a typically enormous contract with Colin Kaepernick last week, allegedly worth some $61 million. Nice deal - but there's an element in there that grabbed our attention.

As part of the agreement, Colin was required to buy a disability insurance policy. Not the same kind of policy that your employer offers as part of your benefits package, but a disability insurance policy all the same. The benefits are as big as his salary package - but there's a twist. In the event of a career-ending injury occurring at any point after the 2014 season until the end of the six year contract, the 49ers - not Kaepernick - will receive $20 million.

There are a lot of permutations and conditions, as one would expect when the numbers are this big. But scale this back to a normal level - you pay for your disability insurance, but your employer gets the benefits if you get hurt. According to a recent blog post on Niners Nation, Kaepernick may pay a contract long grand total of $2,775,000 for the disability policy - and the payout goes to his employer.

The athlete or performer who makes poor financial decisions and ends up on the front page of the Enquirer, selling used cars or hundreds of autographed posters to pay the mortgage is a cliché, but there are plenty of high profile celebrities who turn up in bankruptcy court. Kaepernick, like any other player, is only as good as his last season - or his last game. Will he end up disabled and destitute? Not likely.

But the fact that a disability insurance policy is in play for a contract of this size sends a clear message - anyone can get hurt, and the cost of a career-ending injury for a multi-million dollar professional sports team can have as much as an impact as an injury or illness on a breadwinner's family.

With Father's Day around the corner and summer close by, we hear more about weekend athletes who recapture their glory days, heading to local basketball courts or biking for the first time in years. By all means get out there, but if you haven't participated in a sport for years, be mindful of your body's limits. If it's been ten years since you swung a bat or spiked a volleyball, whatever your sport of choice, remember even professionals know to pace themselves when they return after a hiatus.

If your enthusiasm is greater than your condition and you are significantly injured, remember that short and long term disability insurance claims can be tricky to navigate. If your disability insurance carrier won't pay on a claim for a weekend-athlete injury and you cannot work, give our office a call - we can help.

June 9, 2014

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UNUM Focus on Interest Rates Impacts Claimants

The longer the current low interest rate environment continues, the harder the pinch that long term disability insurance companies are feeling. It's all relative, but our concern is the impact that it has on claimants. Unum Group executives recently held a conference call with securities analysts to review first quarter earnings for 2014. The massive insurance company's group disability unit produced $69 million in operating income, on $675 million in premium revenue, compared with $78 million in operating income on $693 in premium revenue for the first quarter in 2013.

Despite increases in LTD sales from $11 million to $12 million, the pressure from investment income in this low interest rate environment is eating away at the company's operations budget. As commented earlier, it's all relative.

Unum has a particularly nasty history with dealing with claimants, including a series of national television segments about a class action lawsuit that uncovered a corporate culture which rewarded claim denials and punished generous benefits. Sadly, online forums concerning the company continue to report heartless handling of claims, baseless denials, inordinate delays for claim approvals and a general failure to live up to the fundamental practice of insurance companies - you pay the premiums, they provide coverage as per the contract that you sign with them.

Long term disability claimants are usually taken by surprise when the convoluted process of delay and denial begins. Having dealt with auto insurance, homeowners insurance and health insurance, they know that there will be some obstacles in place once a claim is filed, but as the process winds along - and the disability insurance claims adjusters are pros at extending the process - they expect some resolution at some point.

What claimants don't expect is to find that their medical records are insufficient documents, when they are so ill that they are unable to get out of bed to go to work. They never expect that their social media and even emails will be examined and that any minute item will be twisted to prove that they are not really disabled. And finally, they don't understand why a company that they paid premiums to for years, in many cases, for decades, suddenly turns a deaf ear to a deeply personal and debilitating experience that threatens their lifestyle, marriage and home ownership.

Frankel & Newfield advises Unum policy owners to consult with our office at any stage of a claim. We also represent policy owners with Unum subsidiaries and related companies, including Unum Provident, Paul Revere, Provident Life, and others. If you are about to file a long term disability insurance claim with Unum or any of its related companies and are concerned about whether your claim will be fairly treated, we strongly suggest contacting our office to learn how we can help. If you are on claim and are having a problem - checks are not being sent out on a timely manner, or you are being asked to provide additional information - it is possible that Unum is considering terminating your claim. You will want to work with a skilled and experienced disability attorney to protect yourself.

Call our office today at 877-LTD-CLAIM (877-583-2524) to protect yourself and your family. There are strict time limits to protect your claim, so don't delay making the call.

May 13, 2014

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Our client is a 52-year old woman who worked as an Assistant Branch Manager for a bank of a major financial institution. She stopped working in 2011 after suffering injuries in a car accident that exacerbated an already bad spinal condition and fibromyalgia.

Our client spent thirty years building her career, and would have easily spent another twenty years working if she had not become disabled. She trusted the promises of her HR department that purchasing LTD insurance would ensure that she was protected if she was unable to work. However, Aetna representatives made it clear from the very beginning of the claim that the company wanted to accept liability for as short of a time period as possible. There was no interest in being fair and evaluating whether or not our client could work in any occupation that she was reasonably qualified for based on her training, education, and experience.

An in-house nurse reviewed her claim to determine if she continued to be disabled. This is a commonly seen protocol, where nurses, and not doctors, render medical opinions on impairment for insurance companies. The usual procedure includes the nurse rejecting the opinions of claimants' own treating physicians based on a review of the medical file alone.

This review was selective at best and the nurse kept insisting that the medical records did "not include comprehensive physical examination findings" indicative of total disability. This nurse omitted reviewing all of our client's physical therapy records, which (along with the medical records from all of her treating providers) provided a plethora of comprehensive physical examination findings supportive of disability. Rather than have our client examined in person, Aetna had an in-house medical directors review her medical records only.

In its denial letter, Aetna indicated that "a peer review was completed by an independent peer review doctor who is a Board Certified Physician in Orthopedic Surgery, Occupational Medicine, and Family Practice." Aetna also claimed that a Board Certified Physician in Neurology had completed a peer review as well. Neurology peer review was never conducted, and the peer reviewer was not board certified in orthopedic surgery. Aetna's peer reviewer was an occupational medicine doctor.

We discovered that Aetna's peer reviewer had been chastised by the Court for his lack of knowledge about fibromyalgia and yet continued to be hired to evaluate fibromyalgia cases. In Burkhead v. Life Ins. Co. of N. America 2012 U.S. Dist. LEXIS 52040 (Dist. of CO, 2012), the court noted that "the plaintiff rightly criticizes LINA's reliance on Dr. Snyder's opinion. His emphasis on his reported conversation with Dr. Richman is not a proper basis for developing his opinion. He failed to recognize that Dr. Richman had not seen this patient since May, 2008, and there is nothing to show that Dr. Snyder understands fibromyalgia." (Emphasis added)

A Transferable Skills Analysis (TSA) and Labor Market Survey (LMS) was completed in August 2013 through Coventry Health Care. There was even an invoice for the analysis in the claim file to show that Aetna paid Coventry Health Care $678.30 for the TSA and LMS. What Aetna failed to note was that Aetna had acquired Coventry Health Care in May 2013. Aetna wrote itself a check for $678.30 to get the desired results.

When the LMS was conducted, the vocational specialist used a 100-mile radius from our client's home on Long Island when looking for jobs he felt she would be capable of performing. He used the "New York City-Long Island-White Plains-Wayne, NJ Metropolitan Statistical Area," which was completely unrealistic. Aetna's expectation that our client could spend two hours driving in a car, (which requires her to sit, without being able to get up and change positions - something her treating providers have advised her to refrain from), and then work a full 8-hour day, followed by the evening commute home, was simply absurd.

The TSA resulted in four occupations that our client was allegedly capable of performing. Two of these occupations had an SVP of 7, indicating the length of time required for training and to become proficient is more than two years and up to four years. These two jobs were not even a realistic match. Of the two remaining occupations that the vocational specialist came up with, one did not meet the wage requirement. The other job met the wage requirement but there were only 730 jobs in the entire Metropolitan Statistical Area. Upon further investigation, we found that any available jobs within the Metropolitan Statistical Area for this occupation required far more education than our client had.

We appealed with an aggressive response, citing the inadequate and incomplete paper medical reviews and the outlandish career evaluation and job recommendation. Aetna reversed its claim decision and is continuing to pay on the claim. Our client is thrilled, and can now focus on recovering from her accident and managing her fibromyalgia.

May 7, 2014

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Court Reverses Met Life Denial of Long Term Disability Claim

A Federal Judge in Washington has decided that Met Life's claim determination, to deny a claim for long term disability insurance benefits, must be reversed, where it determined that the claim decision was an abuse of discretion.

The claimant, a former flight attendant for American Airlines, suffered from pulmonary dysfunction and headaches. Her claim was denied by Met Life, and her administrative appeal, which provided extensive medical records, and other claim support, failed to alter Met Life's claim determination.

On appeal, Met Life sought to have a peer review conducted, by Dr. Daniel Gerstenblitt, a regular reviewer in the disability insurance community. Dr. Gernstenblitt determined that there was no objective evidence to support disability, despite her doctor strongly advocating that her near daily debilitating headaches were impairing her ability to work.

The Court noted that Dr. Gerstenblitt's medical review was "narrowly focused", as he stated that he could "only look at objective medical evidence" and cannot substantiate the need for limitations or restrictions based upon self reported symptoms. The Court was troubled that Dr. Gerstenblitt was not clear about what objective evidence could be offered to substantiate the severity of her headaches.

The claimant was also awarded Social Security disability benefits. On a further appeal to the appeals committee, her claim was reviewed by other insurance friendly providers, including Dr. Sonne and Dr. Varpetian. Both doctors issues reports supporting the insurers' desired outcome.

The Court criticized the claim review process, noting that the administrator may not pick and choose between portions of medical records, or ignore portions of records favorable to a claim in favor of other records to the contrary. The Court also found that credibility determinations are best handled by treating doctors rather than file reviewing doctors. As a result, the Court determined that the claim determination was not the product of a reasoned deliberate process, but, rather, was an abuse of discretion. Supporting its conclusion was the rejection and disregard of all supportive medical records, the failure to consider the award of Social Security, the failure to consider any subjective evidence, and the cherry picking of the records.

The Court thus ordered the claim back for a remand for further consideration.

Williams v. Met Life

May 7, 2014

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If you have a disability insurance policy with Standard Insurance, don't expect too much from your claims representative in the way of kindness or understanding. Simply put, times are tough at this massive insurance company. At a recent shareholder's meeting, a chief official said that requests for proposals for disability benefits are down because companies that would normally be shopping around for disability insurance policies are still distracted by trying to comply with the Patient Protection and Affordable Care Act (PPACA). If you believe that, we have a bridge in Brooklyn that you might want to buy.

Seriously, these large insurance companies may be crying about poor sales, but that's not why they are tightening the fiscal vise on disabled workers trying to file claims for benefits to support their families. Disability insurance companies don't rely on sales profits for the funds that to pay benefits. That money comes from investments that are highly sensitive to interest rates. We've said it before - the entire insurance field should really be known as a financial sector.

The real crunch that Standard and all of the other disability insurance companies are feeling is that of a low-interest environment. Those low interest rates are expected to be around for at least another year. So, if you have a Standard Insurance Disability Insurance policy and you are considering whether or not to file a disability claim, what can you do?

Consider working with an experienced long term disability insurance law firm before filing a claim. In a low interest rate environment, the pressure to minimize payments to policyholders is just business as usual for the insurance company. For policyholders, it can be the difference between being able to pay a mortgage and falling into foreclosure.

If your claim is in process, but seems to be taking an overly long time to resolve, make sure that you are documenting every contact with the insurance claims adjuster. Keep careful notes about your conversations, and if you are not able to keep notes, ask a trusted friend or family member to do so.

Recent court decisions have tightened the time frame that you have to appeal a claim once it is denied - the clock starts ticking long before the denial is even issued, which means that your time to respond is extremely limited. Missed deadlines may mean losing the option to appeal - ever. Open any letters, packages or emails that are sent to you - no matter how distasteful their presence may be - so that you don't miss any deadlines.

Keep your doctor's appointments, and keep a notebook of your coming and goings in and out of the house. Expect that the insurance company has hired an investigator to conduct video surveillance. This is such an inexpensive means of tracking your whereabouts that it's easy for them to put into place.

Do not post your life on any social media sites. We don't care how much you know about the security settings on Facebook - there is nothing that you can put online that someone who really wants to can't find. Consider emails a potential future piece of evidence, and be mindful of that correspondence with regard to your claim as well.

If you have questions about your Standard Insurance disability insurance claim, give our office a call at 877-LTD-CLAIM (877-583-2524). Learn how we can help you, even when the insurance company claims that you have no claim.

April 28, 2014

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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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