Disability Insurance Lawyer Blog

JUDGES WHO FRIEND YOU ON FACEBOOK AND FOLLOW YOU ON TWITTER

We have long advised clients that participating in social media like FaceBook, LinkedIn or Twitter while on claim or in litigation for a long term disability insurance claim can have serious repercussions.

A decision before a federal judge in a case concerning Social Security disability benefits turned on the plaintiff's profile photo on her FaceBook page. The judge became skeptical about her claim that she could not work because of asthma after seeing her FaceBook photo, where she appears to be smoking. A scathing footnote in the opinion Purvis v. Commissioner of Social Sec., 2011 WL 741234 (D.N.J., Feb. 23, 2011), tells the entire story:

Although the Court remands the ALJ's decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile picture on what is believed to be Plaintiff's Facebook page where she appears to be smoking. Profile Pictures by Theresa Purvis, Facebook, [link omitted because it's broken] (last visited Feb. 16, 2011). If accurately depicted, Plaintiff's credibility is justifiably suspect.

Add judges to the list of people, including insurance adjusters, private investigators, and lawyers who are using FaceBook, Twitter, and other social media to find out anything and everything they can about plaintiffs. If you live even a small portion of your life online, then consider all of your activities, habits and lifestyle choices fair game. Our advice: don't hand your adversaries evidence that can and will be used against you.

Court Finds Met Life Abused its Discretion

Met Life, one of the largest insurers of ERISA long term disability insurance claims, has been found to have abused its discretion in terminating benefits to a Verizon employee, once her claim was reviewed under the any occupation definition of disability.

Plaintiff was employed as a Customer Account Manager for Verizon, from 2000 until August 2005, when she became unable to work due to an injury to her head, causing a concussion and traumatic brain injury. Her ERISA disability claim was paid for 24 months (first 12 months of short term disability benefits, then another 12 months of long term disability benefits). Thereafter, Met Life reviewed whether she remained disabled under a standard of disability which evaluates whether one can perform the duties of some other occupation taking account of one's education, training, experience and prior earnings.

In determining that plaintiff was not disabled, Met Life relied upon a review performed by doctors who never treated, evaluated or examined the plaintiff; instead, they simply reviewed medical records, and determined that there was "no objective evidence" to support continued impairment. This objective evidence term did not exist in the policy, and was effectively added to the plaintiff's claim requirements without notice. The Court held that in taking the position that plaintiff failed to submit objective medical evidence to support her claimed functional limitations, Met Life ignored the definition of disability in the plan, and violated ERISA.

Further compelling the Court's determination was Met Life's failure to consider the finding of disability made by the Social Security Administration, despite Met Life requiring the plaintiff to pursue Social Security disability benefits.

Unfortunately, rather than grant her benefits, the Court remanded the claim back to Met Life for further consideration of the claim.

UNUM Abused Discretion in Terminating Claim

A Federal District Court judge has found UNUM to have abused its discretion in terminating long term disability insurance benefits to a claimant, who was on a disability claim for orthopedic difficulties following a motor vehicle accident. The Court determined that UNUM failed to adequately consider the nature of the claimant's occupational duties, instead simply focusing upon the physical demand requirements of a generalized occupational class. This is a common technique employed by long term disability insurance companies, who focus only upon a physical functional capacity to perform work generally, rather than appreciating the actual work requirements, or considering the non-physical, cognitive requirements of a particular occupation.

The Court noted that UNUM rested its decision solely upon the results of a Functional Capacity Evaluation, a test that only is able to provide general overall functionality, and not any type of occupation specific abilities. Another troubling aspect of UNUM's claim handling was its selective embrace of portions of the report, while ignoring other aspects that were favorable to the claimant. UNUM also sought to impugn the claimant's credibility, another commonly seen approach by long term disability insurance companies. The Court rejected these efforts, noting that the subjective complaints of a claimant must be considered in connection with a long term disability claim.

Soucy v. First UNUM Life Ins. Co.

Another Horror Story of Abuse of Discretion Standard of Review

One of the most challenging aspects of disability insurance claim litigation is that the case can literally turn based upon what legal standard a court chooses to apply. These cases often would be claimant victories if a Judge was decided the case on a de novo standard of review (meaning a full review of the evidence), as opposed to the abuse of discretion or arbitrary and capricious standard (which adjudicates whether the decision is supported by substantial evidence or was erroneous as a matter of law).

Numerous judges have made this point clear in their decisions, and the most recent one highlights this issue. In Curtis v. Kan. City. Life Ins. Co., a decision from the Federal Court in Kentucky, the Court ruled for the insurer, holding that the decision to terminate the claim was not an abuse of discretion. The Court commented however, that If the standard of review was de novo, the Court would be inclined to find for Plaintiff. The Court even stated that it did not like the result, but it was mandated to rule as it did.

The application of this insurer favorable standard of review has lowered the bar of acceptable claim handling, or better stated, has further incentivized insurers to terminate legitimate claims with flimsy claim handling, as there will often be sufficient information for the insurers' lawyers to cite to in litigation to justify the claim handling under this standard of review.

Because of this, claimants must aggressively pursue their appeals with strong evidence of impairment and be able to counter each and every aspect of the claim termination. Our firm has developed a formula for success on appeals that helps us secure good results for clients without having to resort to litigation, where the landscape has become very insurer favorable.

Why Do Courts Reward Insurers who Fail to Comply with ERISA?

One of the more frustrating aspects of ERISA disability insurance practice is where insurers are not taken to task more forcefully where they fail to comply with ERISA and the regulations governing ERISA disability claim. As one example, an insurer is obligated to issue a benefit determination on an appeal of a claimant's adverse benefit determination (a claim denial or claim termination) within a proscribed period of time. This time frame is usually within 45 days, with the potential for a second 45 days if the insurer identifies special circumstances.

However, quite often, an insurer will fail to issue a decision timely. What can be done in such circumstances? Can a claimant file a lawsuit and claim to the Court that the appeal has been "deemed denied"? What will be the effect of this?

Courts throughout the country have wrestled with this concept. Many courts have adopted the "deemed denied" approach, which in essence strips the insurer of whatever level of discretionary authority it may have held, and proceeds to conduct a de novo claim determination. This alteration of the standard of review can result in a markedly different litigation posture, as many cases are lost where the standard of review is considered abuse of discretion or arbitrary and capricious.

However, numerous courts continue to reward insurers who have failed to comply with ERISA and the regulations. Some refuse to alter the standard of review, claiming that the insurer has "substantially" complied, while others have directed that the claim to be remanded to the insurer for further consideration. This has the effect of rewarding an insurer's recalcitrant behavior, and results in further delays to a claimant's ability to secure adjudication of his or her claim (perhaps something the insurer is hoping for, in an effort to forestall).

Thus, depending upon what jurisdiction your claim can be heard, it is important to consider strategy in commencing litigation where an insurer has failed to comply with its obligations under ERISA. If you are faced with such a situation, please do not hesitate to contact us, we can help.

Court Finds Numerous Claim Handling Flaws

A local Judge in the Eastern District of New York has found that CIGNA's claim handling was flawed, with numerous indicia of biased administration of plaintiff's long term disability insurance claim.

The Court was troubled by CIGNA's improper selective review of what medical information to consider, as well as CIGNA's failure to consider the Social Security decision favorable to the plaintiff. The Court addressed this problem, stating that Social Security's determination regarding the capacity (or lack thereof) to engage in gainful employment was probative evidence supporting the claim.

The Court denied CIGNA's motion for summary judgment, and the case is now proceeding to determine whether the plaintiff has met his burden of demonstrating entitlement to ongoing long term disability insurance benefits.

Science, politics and insurance companies make terrible bedfellows: Chronic Fatigue Syndrome and Long Term Disability Insurance

Two years ago, a study found a link between XMRV, a retrovirus, and Chronic Fatigue Syndrome. A recent article in the Wall Street Journal examines the conflict that exists when patients become advocates, pressing government officials and campaigning to press scientists and governments to get busy on researching a cure. Scientists are warning that in some instances, patient advocates rushing research can backfire. In the case of CFS, conflicting studies, labs that have not found a single case of XMRV in CFS patients or healthy patients have led to a storm of controversy.

But scientists do not have the same sense of urgency as do patients and their families. Patient pressure brings attention to diseases that might otherwise languish, without the fierce spotlight of internet and media attention. For more than 25 years, the patient community has tried to push forward more research, in an effort to locate a cause to this insidious condition that has cost scores of patients their livelihoods, their homes, their families and anything else significant to them. Studies have estimated the cost of CFS to be approximately $ 7 Billion annually.

While this particular article closes with the tale of a patient advocate and a scientist coming to realize that they are indeed on the same side, the controversy over CFS continues. And as long as there is even a hint that CFS is not a disease caused by a physical ailment, our battle to represent CFS patients against long term disability insurance companies that seek to deny or delay benefits will continue.

Court Reinstates Hartford Life Claimant

An Ohio Federal Court recently ordered a claimant to be reinstated to active benefits, where she suffered from dumping syndrome, and chronic fatigue, following treatment for cancer. Hartford had terminated her claim at the transition of disability from own occupation to any occupation benefits.

Hartford, as is very typical of its claim handling, relied upon the opinion of a paid, paper reviewing physician, who noted that fatigue could be a typical limiting factor following cancer treatment, but failed to find any impairments in this claimant. Hartford also performed an internal vocational review, based upon the findings of its paid, paper reviewing physician, failing to consider the limitations set forth by the claimant's treating doctors.

The Court was troubled by several aspects of Hartford's claim handling, including that it appeared to make credibility determinations of the claimant without the benefit of actually examining her, and found that the decision was not the product of a deliberate principled reasoning process.

Thus, the Court ordered that benefits be reinstated to prior to the claim termination.

Sedgwick - A Dangerous Third Party Administrator

A recent case reveals that it is often worse to have a third party administrator reviewing and considering eligibility for long term disability insurance benefits than it is to have an insurance company considering the claim.

Sedgwick Claims Management Services is such an entity, and their conduct has been criticized by one recent court. However, the existence of these third party entities is making it dangerous for the claimant community, as all too often, judges are formulating the opinion that these entities do not suffer from any conflict of interest that exists where an insurance company both decides claims and pays benefits. Notwithstanding some guidance from the United States Supreme Court that such relationships might also suffer from a conflict of interest, where a third party administrator has been involved, the challenges facing claimants have intensified.

In this recently decided case, one court has taken Sedgwick to task for its failing to provide a claimant with a full and fair review of his claim. The court found that Sedgwick failed to provide the claimant with relevant documents, and therefore impacted the claimant securing a full and fair review.

If your claim has been delayed or denied, or you are dealing with a third party administrator on your claim for disability insurance benefits, remember that you are not alone, we can help.