Disability Insurance Lawyer Blog

EMPLOYEES DON'T ALWAYS GET TO CHOOSE - BUT YOU CAN BE PREPARED

Unlike a privately owned Long Term Care Disability Insurance Policy, where you get to choose the policy, the selection of various additional riders or policy enhancements, and the company you purchase it from, most employees have to accept the disability insurance company that their employers have selected. Unless you are high up on the corporate ladder, or directly involved in the selection of the policy, there's little choice involved. What is purchased on your behalf is what you are left with.

However, that doesn't mean that you should not educate yourself about the insurance company and the policy. There are critically important terms that one should pay attention to which could impact a claim. Examples are where policies provide for a limited pay period for conditions related to depression or anxiety, while a growing number of policies have chosen to contain limited pay periods for self reported illnesses, chronic fatigue syndrome and other disorders. Claimants may be unaware of these limitations in benefit periods prior to filing a claim, and may only learn of this during the claim process - when the time for planning has already passed.

Online research will get you to any number of websites that report on insurance companies from the business side - their earnings reports, how they are rated by companies like Dun & Bradstreet, A.M. Best, or Moody's. It's a pretty safe bet that a company with slim earnings is going to be a bit more aggressive about protecting their reserves by delaying or denying claims than one that is sitting on a big pile of cash.

One of the first things we ask claimants when they engage Frankel & Newfield is if they have a copy of the original policy. It's a question that bears repeating because it could be critical to your situation. If you don't have the policy, contact your HR department or the agent to get a copy of the original policy. That policy is the contract between your employer and the insurance company, and the language in the contract changes from policy to policy. The policy that you received as an employee in the 1980s may not be the same as the one that you will receive today. Times change - and so do insurance policies.

You may not have any control about which insurance company your employer chooses to do business with. But you can prepare - by educating yourself about the company, making sure you have a policy, and reaching out for help with your claim. Frankel & Newfield works with claimants before, during and after the claims process - and we can help you too, at any stage of the claims process.

US SUPREME COURT DECISION ON ATTORNEY FEES UNDER ERISA A WIN FOR CLAIMANTS

If you have a long term disability insurance policy governed by ERISA, the United States Supreme Court has just handed down a decision in Hardt v. Reliance Standard that is very encouraging to policy owners and the attorneys who represent them.

The Supreme Court's decision is a major victory for ERISA disability insurance claimants and a warning to insurance companies that it may actually cost them money - more than just the cost of the policy benefits - if they wrongly deny or delay claims and a policyholder chooses to fight back.

There are a lot of moving parts in this decision. The key issues are:

A) whether or not ERISA provides a district court with the discretion to award reasonable attorney's fees only to the party who wins the decision and,

B) whether a party in a lawsuit governed by ERISA is entitled to attorneys fees if that party

1- persuades a district court that a violation of ERISA has taken place,
2 - wins a court-ordered decision that requires a benefit decision to be reviewed, and
3 - wins the benefits sought following the review.

The decision in Hardt v. Reliance Standard holds that a party that seeks to recover attorney's fees is not required to be victorious in all parts of a lawsuit for a court to decide to award attorney fees.

Ms. Hardt had to stop working as a result of medical problems and filed a claim for disability insurance benefits under her employer's long-term disability plan. When she exhausted the administrative remedies, Mrs. Hardt brought a lawsuit against Reliance, alleging that it had wrongfully denied her claim. The District Court found that the carrier had acted on incomplete medical information and that the denial was not based on substantial evidence. The Court also concluded that Reliance would get the chance to address the medical review, giving Reliance 30 days to consider the evidence and make a decision. Reliance reviewed the file and awarded Hardt benefits.

Hardt filed a motion to recover attorney's fees. The District Court agreed with Hardt, and Reliance filed an appeal. The Fourth Circuit Federal Court disagreed, vacating the award, arguing that Hardt had failed to establish that she was a "prevailing party," which is defined in a landmark case that a fee claimant is a "prevailing party" only if they have won an enforceable judgment or a court -ordered consent decree.

Common sense would dictate that someone who wins back their benefits from an insurance company has won the case, and that should be enough to be considered the "prevailing party," but the letter of the law is very specific. The Federal Court decision was appealed to the United States Supreme Court, the highest court in the nation.

The US Supreme Court agreed that a person seeking attorney's fees need not be a "prevailing party" in cases governed by ERISA. The term itself does not appear in one section of the legal statute that created ERISA, nor does anything else in the section indicate that only the "prevailing party" should be awarded legal fees. To the contrary, the statute expressly gives district courts the discretion to award either party attorneys fees. In direct contrast, another portion of the statute is very clear about awarding attorney fees in cases where there is an issue of employer contributions to multi-employer plans.

If you have any questions about Hardt v. Reliance Standard and what this decision may mean for your situation, call our office today. This is one battle you do not have to take on alone.

ANOTHER SURVEY - THIS TIME, THE BAD NEWS

At Frankel & Newfield, we keep an eye on the business side of the insurance business. We recently spotted a survey produced by JHA, by a division of General Re Life Corporation that featured participation by 27 disability insurance companies that reads like a list of our adversaries. It reveals the sad state of affairs for the disability insurance sector.

For the first time in ten years, both Long Term Disability and Short Term Disability premiums are down. The downward trend is clear - LTD sales are down from a 13% growth rate in 2000 to negative 2% in 2009. A few factors are in this mix: many companies have closed, or have let large numbers of employees go. Many employers have chosen to eliminate disability coverage altogether. The ten year combined annual growth rate has reached the lowest level seen by the sector in many years.

The report references a need for increased marketing efforts and adapting policies to meet the changing needs of the marketplace. The recent National Disability Insurance Month was certainly evidence of one way that this sector is trying to step up awareness of the product.

We would wholeheartedly endorse better treatment of claimants as a way to increase sales. With all of the bad news coverage surrounding disability insurance policies, who wants to have money taken out of their paycheck or purchase a private policy, when the expectation is that you won't be able to get the benefits if and when you need them?

Our primary concern is what the decline in sales means for the individuals who contact our firm because their claim has been delayed or denied. The business model is pretty straightforward - the fewer claims paid, the higher profits for the insurance company. If they are selling less policies, we believe that they will strategically deny more claims, and that it will become harder as time goes on to successfully secure the benefits from a disability policy.

SELF-SERVING SURVEY SAYS...... WOULD YOU BELIEVE A SURVEY FROM THE INSURANCE COMPANY THAT BROUGHT YOU MET LIFE v. GLENN?

The fact that a vice president of Group Disability Products is quoted in a press release stating that he "finds it disturbing that the vast majority of working Americans have not adequately protected one of their most important assets - the ability to earn an income" is exactly what anyone would expect from one of the largest marketers and underwriters of Long Term Disability Insurance.

Unfortunately, it comes from a company whose name appears as a lead case in no less a venue than the United States Supreme Court, for practices that seem geared more to denying claims than to paying them. Met Life v. Glenn is known in every disability insurance law firm as the case where the Court recognized that there is a real problem.

How ironic, then, that the same company publishes a report "Putting a Face on the Emotional and Financial Impact of Disability" is the same one that delays and denies claims to our clients. We see these faces and we hear about impact on lives when their MetLife claims are delayed and denied.

One final note about this study - MetLife hired a research company to survey 300 people. We have been contacted by at least that many who had real problems MetLife disability insurance and have been put through the wringer. Maybe MetLife should survey them!

If you have a MetLife disability policy and you are facing problems with a claim, call our office. This is one battle you don't have to fight alone.

Hartford's Conduct Found Arbitrary and Capricious

A Federal Court in Ohio has determined that Hartford's reliance upon the opinion of a non-examining, paper reviewing physician, was not sufficient to support a termination of disability benefits to an insured. Hartford relied upon the opinion of a physician provided by MES Solutions, an entity seen regularly as providing insurer favorable doctors to write reports justifying a termination of disability benefits.

Dr. Baum, hired by Hartford through MES, determined that the claimant had sedentary work capacity (able to work 8 hours a day, 5 days a week), despite clinical and objective findings in the record supporting impairment. When additional documentation was submitted, including the results of functional capacity testing supporting impairment, Dr. Baum refused to alter his opinion and Hartford maintained its claim position.

The Court opined that Hartford abused its discretion in terminating disability benefits, because of its conflict of interest, Dr. Baum's failure to document what evidence he rested his opinion on, his failure to consider all evidence, and Hartford's failure to consider the occupational requirements of the insured's occupation.

The Court was also troubled by the lack of any in person examination, and instead the reliance upon a paper review of medical records. This is an all too common issue seen, where insurers are relying upon opinions of non-examining doctors who do incredible volumes of work on behalf of insurance companies.

Bowers v. Hartford Life (S.D. Ohio, May 17, 2010)

FRANKEL & NEWFIELD EXCEEDING EXPECTATIONS FOR OUR CLIENTS - AND THEY WRITE TO TELL US

While most of our blog posts concern successful disability insurance matters on behalf of our clients, news about disability insurance, the law, or various items that we feel will be helpful to our readers, every now and then we receive an email from a client that makes us pause in our busy practice and remember just why we do what we do, day in and day out.

We recently received a note, completely unsolicited, from a client that we are proud to share with you. Our client, 57 years old, had a policy from Equitable. He suffers from Chronic Peripheral Neuropathy, and his illness made it impossible for him to perform in his position as an independent Project Funding and Due Diligence analyst. He recently sent us this note, which we share with you in its entirety. His name is left out for reasons of privacy and confidentiality.

Justin,

XXXX.

If you are having a problem with a disability insurance claim, or are about to file a claim, give our office a call. As our client said quite clearly, the DIY method doesn't work in this situation. We can help.

National Disability Insurance Awareness Month - Is there a Greeting Card for That?

We don't mean to be facetious, but as a law firm fighting with long term disability insurance companies on a daily basis, it's hard for us to take the designation of May as the National Disability Insurance Awareness Month seriously.

Yes, disability insurance is a necessary part of any financial plan. Protecting the paycheck that keeps you and your family in your home, pays the bills and keeps the wolf at bay is an important financial planning product, and we recognize that. But a national awareness month?

Here's what we think you should be aware of: if you become disabled and cannot work because of illness or injury, be prepared to put up an aggressive fight to protect your disability benefits. Chances are good that your first attempt at filing a disability benefit claim will be denied or delayed.

Insurance companies expect you to accept their decision - and remember, it costs the long term disability insurance company nothing to turn you down. If you fight back, they only have to call on their legal department. In most cases, there are no punitive damages or penalties for the insurance company other than to ultimately pay a claim, while they have had the use of YOUR money. Often, all they might have to do is pay you what they would have paid you in the first place. So the responsibility for defending your benefits, unfortunately, is on the individual least likely to be able to fight back - you.

If you are about to file a claim for disability insurance benefits and want to be prepared, call our office. If your claim has already been denied, and you don't know what to do, call our office. If it seems that your claim is moving at a snail's pace, and you suspect that the insurance company is stalling, call our office.

At Frankel & Newfield, we have focused our legal careers on fighting to defend policyholders against disability insurance companies. Give us a call. We can help.

FRANKEL & NEWFIELD EDUCATE DENTISTS ON DISABILITY INSURANCE ISSUES AT GREATER LONG ISLAND DENTAL MEETING

The law firm of Frankel & Newfield was pleased to show our support for the dental community by participating in this year's GLIDM. Dentists, orthodontists, periodontists, oral surgeons, dental hygienists, dental practice administrators and others in the dental professional gathered at the Huntington Hilton for a day developed to the arts and science of dentistry. During the evening session on April 21, Justin Frankel presented a program on disability insurance geared to the specific needs of dentists.

Many of Frankel & Newfield's disability insurance clients are dentists, and the firm is experienced with the special challenges faced by dentists. We have seen a multitude of issues during the claim process, and have observed some interesting trends with regard to insurance company claim practices.

Several members of the audience were in the process of considering whether or not to file a claim. They were particularly interested in the issues presented by primary care physicians who, while trying to be helpful, actually harm their patient's claim. In-house insurance company physicians call the primary care physician and attempt to elicit information on the claim during what appears to be a friendly, colleague-to-colleague telephone call. The phone call is anything but friendly. Their real goal is to find information that can be used to delay or eventually deny a claim.

Justin Frankel warned audience members that at no time should their primary care physician have direct contact with the insurance company physician. Any medical records that the physician sends to any representative of a disability insurance company should be carefully reviewed by a professional with experience with disability claims. Certain language describing not just the disability, but the impact that the disability has on the dentist's ability to practice, needs to be included in the medical records.

This is but one of the ways that disability claims can easily become ensnared in a tangle that benefits the insurance company and not the policyholder.

If you are a dentist and have questions about your disability insurance policy or your claim, call our office today. Let experienced disability insurance lawyers who understand the special challenges you face help you.

FRANKEL & NEWFIELD WINS ERSIA APPEAL AGAINST CIGNA FOR GEORGIA MAN WITH HIV/AIDS

Our client was a 44 year old man from Georgia, working as management consultant for a large financial management firm. He filed a claim for disability insurance when his illness, HIV/AIDs, became too debilitating and he could no longer work. His monthly benefit was sizable - and CIGNA denied his claim from the very start.

Our client suffered from side effects of medication, a borderline personality disorder, insomnia, cognitive dysfunction, fatigue, muscle and joint pain. He had been a very high-producing and successful consultant, but was no longer able to perform the tasks of his occupation.

CIGNA denied his claim based on two separate reviews that were conducted by two registered nurses. One evaluated his physical condition, and the other conducted a psychological evaluation. The same day that his claim was denied, a job description was requested.

Had an occupational analysis been properly done, it would have clearly showed the high cognitive levels that were needed to perform his occupation. Similarly, a proper medical review would have revealed the extent of his disability. Unfortunately, he had to fight for his benefits - but fortunately, he hired an experienced law firm that was able to win an ERISA appeal for him.

Long term disability insurance denials are often a product of poor medical reviews. The difference between those who eventually receive their benefits and those who do not are often the difference between those who fight back and those who accept the insurance company's decision.

Frankel & Newfield aggressively fight back for our clients. If you have been denied, call us. This is one battle you do not have to fight alone.

ERISA APPEAL AGAINST THE HARTFORD REINSTATES BENEFITS FOR COLORADO RESIDENT

Disability benefits were being paid to our client, a 51 year old man who was a high performing, high income insurance agent from Colorado. Working in the insurance business is no guarantee that a disability insurance policy claim will go smoothly - there's no 'professional courtesy' in this business.

Our client had a host of serious diseases: angina, coronary artery disease, myocardial infarction history, atherosclerosis, neutropenia hypertension, hypercholesterolemia, diverticulitis, thoracic outlet syndrome, cervical spine bulging discs, presyncope episodes, and thrombocytopenia. In layman's terms, heart disease was the leading cause of his being disabled, but in addition to heart disease, he also suffered from serious gastrointestinal and orthopedic problems.

The Hartford paid his benefits for a period of time, and then in June 2009 denied his claim following a medical records review and an employability assessment. But what Hartford considers a medical records review is not what you might expect. The medical review was not by a cardiologist, a gastroenterologist or even an orthopedist. It was a medical case manager, who only reviewed medical records from two of his eight physicians.

The employability assessment was less than a full paragraph - hardly enough to review a well-paid, high performing insurance professional.

We are certain that the real reason for the sudden cut off was the level of benefits: Hartford had been paying him $5375 a month. He was 51 when he could no longer work. That's an expensive claim.

Our ERSIA appeal made a very thorough and aggressive attack on their vocational analysis, which failed to review the specific tasks of his position and was poorly done. The same aggressive attack of the medical records made it clear that Hartford's denial of his benefits was outrageous.

We succeeded in having Hartford overturn their own termination, and our client's benefits have been reinstated.

The insurance company's decision to delay, deny or terminate claims should never be accepted as a final decision by anyone who has a disability and cannot work. Time and time again we see individuals like our client who are facing enormous health challenges and are cut off by the insurance company. If you have a similar situation, call us - we can help.

GOOD MORNING AMERICA REPORT ON DISABILITY INSURANCE COMPANY TACTICS SPARKS FLOOD OF CALLS

Good Morning America investigative reporters Chris Cuomo and Gerry Wagschal have reported on several cases on claimants whose benefits were cut off after disability insurance companies used undercover surveillance videos. The response to these reports has been dramatic, and a follow up broadcast aired this week in response to the flood of calls generated by the story.

The idea that a private investigator would videotape claimants walking into a doctor's office is unpleasant, but not surprising. We're also not surprised by the number of people who have had the same experience. Frankel & Newfield has represented clients where surveillance videos were used in an attempt to cut off benefit payments. When it comes to tactics, undercover surveillance is just the tip of the iceberg.

If you are being paid disability benefits, it's likely that you have been or will be observed by an investigator and videotaped, particularly if your benefit payments are high or if you have been on claim for an extended period of time. We're not paranoid - just realistic.

Call our office today to speak with an experienced disability insurance lawyer. You are not in this alone - we can help.

Benefits Awarded to Chronic Fatigue Claimant

A Federal Court has determined that a claimant suffering from Chronic Fatigue Syndrome satisfied her burden of demonstrating that she was unable to perform the material duties of any occupation, entitling her to reinstatement of her disability insurance benefits. The Court held that the claimant had medical evidence of her condition (CFS), had subjective complaints which served as evidence of her impairment, along with strong support from her treating providers. Further supporting the opinion from the Court was Social Security's determination of impairment.

The Court rejected the arguments from the insurer, who relied upon the results of a Functional Capacity Evaluation (FCE), in an effort to show that the claimant had residual functional capacity for work. As support for why the Court rejected the FCE, the Court noted that the conclusion of work capacity was not supported by the DOL classification of sedentary work, and that the FCE testing was not of enough duration to sustain an extrapolated finding of functional ability. The Court also rejected surveillance evidence, which the insurer sought to utilize to buttress its claim determination.

Finally, the Court rejected the insurer's effort to rely upon a mental and nervous disorder limitation in the policy, which could have significantly curtailed the claimant's benefits. Rather, the Court determined that the depression symptoms were secondary to her CFS.
The Court thus awarded benefits, interest and attorneys fees.

Perryman v. Provident Life & Acc. Ins. Co. Ariz. D. Ct. 2010.

Court Reinstates Claimant with Orthopedic Impairments

A Federal Court in Michigan has ordered Met Life to reinstate the claim of a Bearing Point employee, whose claim had been terminated on the basis of a paper review by a well known insurance company provider. The Court took issue with a number of aspects of the claim handling, in reaching the result that Met Life abused its discretion. The Court noted that even the arbitrary and capricious standard of review "has some teeth" and considered numerous aspects of the claim handling to be indicative of a financially conflicted fiduciary.

The Court was troubled by the failure to provide any consideration to the opinion of the claimant's treating physician, as well as failure to even mention Social Security's favorable findings. The Court also took issue with Met Life's paper reviewing physician's inconsistent report, and the fact that Met Life terminated the claim despite not demonstrating any improvement in the claimant's condition, after accepting liability of the claim for years and despite worsening of the condition as revealed by medical testing.

It is clear that some courts embrace the review proceeding with some meaningful scrutiny, and thus, are able to appreciate the significant level of conflict influencing the claim process. This case highlights a common theme seen in many orthopedic disability claims. Lanier v. Met Life Mich. D. Ct. 2010

JUSTIN FRANKEL TO ADDRESS DENTAL PROFESSIONALS AT GREATER LONG ISLAND DENTAL MEETING - DENTISTS FROM NASSAU, SUFFOLK, QUEENS, NEW YORK COUNTIES

As a result of years of repetitive movements and maintaining awkward positions, typically for long hours, dentists tend to have back, shoulder, arm, wrist, hand, head and neck problems. Many find themselves struggling to continue to practice, or completely unable to practice, and so dentists, orthodontists, periodondists and other dental professionals file disability insurance claims. Disability insurance companies love to sell policies to dentists - they can afford high premiums for these private policies - but they hate paying on claims.

Many of Frankel & Newfield's disability insurance clients are dentists, so we know the special challenges faced by members of this profession. We have seen a multitude of issues during the claim process, and have observed some interesting trends with regard to insurance company claim practices.

On Wednesday, April 21, 2010, Mr. Frankel will address the Greater Long Island Dental Meeting (GLIDM) with a program titled "What Your Insurance Company Doesn't Want you to Know About Long Term Disability Insurance." The program, from 6:00 PM - 9:00 PM will prepare attendees should they ever have to file a claim.

Hartford Insurance Terminates Fibromyalgia Claimant - We Win the Appeal

Our client was on claim with The Hartford for three years when they stopped paying her disability benefits, based on a paper review of her medical records and the results of an Employability Analysis. We represented her with an administrative appeal, and had her benefits reinstated.

Our client suffers from Fibromyalgia, degenerative disc disease, major depression, hyposomnia, hypothyroidism, and chronic headaches. She has been suffering from these conditions since 1998. She was employed with a major university as a top-level administrative assistant, responsible for maintaining a large portion of the University's website that is updated minute-by-minute, with news and information for events, activities, alerts, bulletins and news stories pertaining to students, parents, alumni, faculty, and staff. Her job required her to be available seven days a week, after hours and on weekends, to provide 24-hour monitoring and updating.

Approximately eight years ago, our client began having problems keeping up with deadlines because of the Fibromyalgia related severe fatigue and muscle pain, along with the symptoms of other conditions, and the side effects of the numerous medications she needed daily. When she was no longer able to perform the tasks required of the position, she applied for her long-term disability benefits and was approved.

Our client received long-term disability benefits until June 2009, when The Hartford determined that she was no longer disabled and could go back to work full time. The Hartford paid for an extremely selective review of her medical records by an outside vendor, who could not possibly be neutral, since The Hartford was signing his check! The vocational analysis reported that our client had recovered and was able to perform her own occupation as administrative assistant, even though there had been no change in her medical condition since the time that The Hartford itself had determined that she was disabled.

In the administrative appeal, we attacked the selective review of our client's medical records by the third-party vendor, the credentials of the reviewing doctor (or lack thereof), and highlighted all of the errors in the vocational analysis that The Hartford conducted.

By aggressively attacking each step in The Hartford's process of terminating our client's benefits and including more objective medical evidence and test findings that continue to support our client's disability, we were successful in having The Hartford overturn their termination on appeal, and our client's benefits have been reinstated.