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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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Good News for the Insurance Business from Moody's

Financial ratings service Moody's has upgraded its negative outlook on the US insurance sector from negative to stable - good news that points to expectations that the national economy is finally moving forward in a positive direction. The projected rise in interest rates will especially benefit annuity products with long-term guarantees (e.g., payout annuities, structured settlements); old blocks of individual fixed annuities with high guaranteed rates; life insurance products with embedded interest rate guarantees (e.g., universal life insurance policies); and certain specialized long-tailed health products, including long term disability and long-term care policies.

The tidy equation of rising interest rates and reports of dropping unemployment reports combine to bring higher yields to the investments owned by the insurance companies, increased demand for products by more working Americans and a willingness to protect future earnings. What does that mean for claimants?

A few points to bear in mind: no matter how healthy the insurance sector, don't expect insurance claims adjusters to become beacons of generosity. Their job has always been, and will continue to be, to protect their employer's bottom line by reducing or limiting benefit payments.

Unemployment figures have always been deceptive, and today's numbers are far too complex to reduce to a simple equation. A recent New York Times analysis reports that the numbers of Americans counted as unemployed have fallen, but this is only because more people have given up on looking for a job and, more pointedly, of those who have given up looking for a job, many are turning back to other sources of income, including disability benefits.

Adding to the complexity - if it can be assumed that many of those who have given up on finding employment were near retirement age - Baby Boomers - and they have chosen to take early retirement rather than continue to struggle to find a paid job, then the number of workers in the economy will have permanently decreased - not a good sign for the economy or the nation in the short and long run.

One thing we can be sure of - the insurance sector will do what needs to be done to protect itself and its assets. And that means that minimizing exposure by reducing or limiting disability insurance benefits will continue to be a corporate strategy by all long term disability insurance companies.

If you have an LTD claim and are concerned about receiving benefits, or if your LTD benefits have been denied or delayed, call our office today to find out how we can help. There are strict time limits in claims appeals, so don't delay.

December 6, 2013

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Federal Court Permits Discovery in ERISA Disability Litigation

A Federal Judge in Pennsylvania was recently asked to determine the nature and scope of discovery in an ERISA disability insurance matter, where the claimant was pursuing the deposition of Aetna's Senior Appeal Specialist, the person who decided his claim on appeal.

Aetna sought to limit the scope of discovery and had pursued a motion to quash the deposition, in effect, seeking to have the Court stop the claimant in its pursuit of discovery in the ERISA disability litigation. Aetna was the insurance company who was financially responsible for the payment of any benefits, and who had terminated the claim. In seeking to limit the scope of discovery, Aetna had argued that even thought it had an undeniable conflict of interest, as the entity deciding the claim and the one financially responsible for the payment of any owed benefits, discovery was not appropriate.

The claimant had pursued discovery, and specifically the deposition from Aetna as to several important topics. These included inquiries relating to the medical and vocational consideration of the claim, and various requirements imposed by Aetna upon the claimant.

The Court, in reaching its determination, recognized that permitting discovery was not in conflict with the Supreme Court's decision in Met Life v. Glenn, and that conflict was an area of inquiry that is not foreclosed to discovery in ERISA actions. The Court noted that evidence of the conflict of interest and how significantly to weigh that factor in the Court's determination was not necessarily apparent on the face of the administrative record.

Despite noting that evidence regarding potential procedural irregularities might be outside of the administrative record, such information could be relevant to the Court's consideration of the case, in determining what weight, if any, to be attributed to the conflict of interest. Thus, the Court stated that "discovery rules should be construed liberally."

The Court thus denied Aetna's application for a protective order and permitted the deposition to proceed.

Our firm has been a leader in securing discovery in ERISA litigation, and has secured the most widespread discovery in these types of cases. Our relentless efforts to protect our clients and develop a sound record in litigation has supported our results.

Charles v. UPS National LTD Plan

November 21, 2013

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ACIs 16th Litigating Disability Insurance Claims Conference

We are pleased to be the media sponsor of the American Conference Institute's16th Litigating Disability Insurance Claims Conference, taking place January 23-24, 2014 at The Carlton Hotel on Madison Avenue in NYC

Some highlights from this year's program:

• U.S. Airways v. McCutchen
• New remedies and equitable relief
• Scope and limitations of discovery
• Judicial review of claims decisions and the battle over discretion
• State prohibitions on discretionary clauses
• Implications and challenges of a court's decision to remand
• Subrogation and recovery of overpayments
• Proper use of surveillance, modern technology and online resources
• Vocational issues in disability claims
• Procedure: venue & removal
• Subjective disorders
• Contractual limitations periods and accrual provisions
• IME's evaluation, treating & consulting physicians' opinions, the FCE, neuropsych evaluations, medical records and more


Regular readers of this blog know we are big believers in keeping friends close and adversaries closer. We attend the Litigating Disability Claims conference to meet our colleagues and adversaries, including attorneys who focus on Disability Insurance litigation and ERISA matters.

We also get to rub elbows with Insurance Industry Professionals at all levels, including In house Counsel, Claims Specialists, Adjusters, Risk Managers, Litigation Specialists and Disability Claim Consultants.

As media sponsor we are able to offer our readers a discount on registration - just use the code DIL200 when you register.

Visit www.AmericanConference.com/DisabilityInsurance for details.

November 11, 2013

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Court Rejects Met Life's Effort to Deny Benefits Based Upon Release of Collateral Claim with Employer

A Federal Judge said no to Met Life, rejecting its effort to not only sustain its termination of a long term disability insurance claim, but its effort to recover over 500K that it had paid to a claimant, before it learned that the claimant had released his employer from various claims arising out of an employment discrimination case.

After Met Life had accepted the claim and released substantial benefits to the long term disability insurance claimant, it learned that the claimant had signed a release related to an age discrimination lawsuit against his employer. The release purported to release the employer and its agents, purportedly releasing any and all claims, which Met Life interpreted to mean the claimants Short Term Disability and Long Term Disability insurance claims.

The Court, in reviewing the release and the potential impact of the agreement, determined that the release did not extend to Met Life regarding the Short Term Disability or Long Term Disability benefits.

The Court thus remanded the claim for purposes of allowing Met Life to review the continued eligibility of the claimant for further benefits.

Kirby v. Siemens (Met LIfe)

March 1, 2013

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The politics of CFS and the Center for Disease Control (CDC) - a long and bumpy road

If you suffer from Chronic Fatigue Syndrome (CFS), we encourage you to read a substantive article written by David Tuller that examines the history of CFS and the Center for Disease Control (CDC).

Tuller, a journalist who is also coordinator of a new concurrent master's degree in public health and journalism at UC Berkeley, provides a close examination of the intrigue and politics that have dogged CFS since its first appearance in the 1980s. It is a long article, but well worth the read.

Tuller explains the arguments of critics who claim that that the CDC, which is charged with investigating threats to the health and safety of the population, has failed miserably when it comes to CFS. Worse, he explores the claim that the CDC's failure to take CFS seriously and treat it as a real disease is a large reason why even today CFS sufferers are treated as maligerers, not people suffering from a real illness. The dismissive attitude to CFS as an organic disease or cluster of diseases has been "a font of misinformation and has been routinely used by insurance companies to deny legitimate claims for tests ordered by doctors."

If you have CFS and your disability insurance company is delaying or denying your claim, call us today to find out how we can help. We have worked with many CFS patients over the years and are well-versed in the politics as well as the pragmatic facets of disability claims for CFS.

January 5, 2012

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Court Finds CIGNA Arbitrary, Applied Wrong Standard of Disability

A recent decision from the Federal Court in Pennsylvania has chastised CIGNA's claim handling conduct and awarded back benefits to an insured whose claim was terminated by CIGNA based upon its effort to apply the wrong standard of disability. CIGNA terminated the claim on the purported basis that the claimant was able to work in some occupation, despite the fact that her claim was in the own occupation stage. In litigation, CIGNA sought to argue that this was a typographical error, and that it actually applied the own occupation standard.

The Court methodically picked apart the arguments, and demonstrated how CIGNA wrongfully applied the any occupation definition. The Court also rejected CIGNA's argument that evidence supported its claim decision under whatever standard was applied, factually demonstrating why CIGNA's argument lacked merit. The Court held that "any action taken by a plan administrator inconsistent with the terms of unambiguous policy language is arbitrary."

This strong decision serves to highlight how insurers often will apply erroneous standards, and will attempt in litigation to craft arguments to fix the holes in the logic of the underlying claim handling. Fortunately, this Judge appreciated the issues, and did not permit CIGNA to "mend the hole".

Loomis v. Life Ins Co. of N. Amer. (CIGNA)

June 27, 2011

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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.

March 22, 2011

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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.

March 17, 2011

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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.

March 15, 2011

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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.

March 9, 2011

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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.

March 4, 2011

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Disability Awareness Survey Results

The Council for Disability Awareness has reported on its 2010 Consumer Disability Awareness Survey. The results are interested, in that there is a disconnect between perceptions of the public and reality. As one example, most surveyed believed that disability was most likely to be caused by an accident, while in reality, less than one in ten claims are the result of injuries, while sicknesses cause the overwhelming majority of disability claims.

The report also indicated that more than one out of four disabilities are caused by muscle or bone disorders, such as back problems, joint pain and muscle pain. Cancer is the second leading cause of disabilities, with 15% of all claims. Cardiovascular claims have increased and are now the third leading cause of impairment.

An alarming statistic is that the odds of a healthy 35-45 year old male during his working career of becoming disabled is about 1 in 6.

If you have an impairment, or if your ability to work has become compromised, you should consult with the attorneys at Frankel & Newfield, P.C., who can guide you through the difficult process of filing a claim and securing benefits.

January 21, 2011

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Decline in Claims Due to Recession?

A report published by the National Business Group on Health has found that both Short Term Disability and Long Term Disability claims dropped by a substantial amount, a result which is being largely attributed to the recession. However, the costs associated with the Long Term Disability claims actually rose on a per person basis.

The report actually served to counter a belief that employees would seek to take disability in the face of the economic downturn, but employees delayed or avoided altogether taking leaves that might otherwise have occurred.

Another factor which may have influenced the data is reduction in the workforce which would lower the pool of potentially eligible claimants to file either Short Term Disability or Long Term Disability claims. With substantial reductions in force occurring during this time frame, less people would be available to file such claims.

In our practice, we did not notice any substantial change in the volume of claims, although that is not any indication that can be compared or contrasted with the data from this report.

January 20, 2011

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2010 Group Disability Market Survey Results

The 2010 mid-year summary of Group Disability Market results offers some interesting insight into the marketplace for LTD benefits. This survey is published by JHA - a division of Gen Re, a Berkshire Hathaway company. This report is largely published for the insurance industry, but the information is significant to those on the front lines of battle, representing claimants on a daily basis.

Thus, the results have some valuable insight for the claimant community.

It was reported that premiums were down over 17% from mid-year 2009, a cause of some concern, as with lower premiums, insurance companies have left money available to pay benefits, and/or invest. Thus, some level of concern exists as insurers are likely to focus on claim management as a means of preservation of assets. It was noted in the report that while the number of companies offering group disability insurance remained level, there was a decrease in the number of covered employees, a trend likely attributable to the increased unemployment seen across the U.S.

The companies with the highest percentage of LTD Sales Premiums were CIGNA, Hartford, Met Life, Prudential and UNUM. These are the companies where we see the highest volume of claim denials and terminations as well. With premiums down, we can only expect to see a higher volume of claim denials and terminations, whether justified or due to business concerns.

If you have a delayed, denied or terminated claim, please call us. We can help.

December 27, 2010

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