Quiat on Claims : New York Disability Insurance Lawyer & Attorney : Michael Quiat : Uscher Quiat Uscher & Russo Law Firm : ERISA, Denied Claims

Isn’t it time for the naysayers on health care reform to face the reality of what is going on? For too long we have buried our collective heads in the sand and refused to look reality in the eye.

What we mean is that the health care system in the United States in going to hell in a hurry and very few seem to want to do anything about it. This seems most true for older people who will be the hardest hit victims of the coming health system train wreck. (Most people don’t recall that when Social Security was passed in the 1930s, life expectancy for men was about 65, the age of retirement. Today the life expectancy for men is about 78, a gain of 13 years).

The health care system is more than the convenience of your next visit to the doctor. We all want to get right in to see the doctor, get the best medical advice and treatment and not pay for it. GREAT! However…

• Medical science is making more and more breakthroughs, prolonging life, which means more costly doctor and hospital visits for more and more people.
• Medicare premiums are not nearly enough to sustain the system for its
ever-expanding population. (Remember the baby boomers).
• Health insurers continually raise premiums to provide more and more profits for their shareholders (and larger and larger bonuses for their execs).
• A “free enterprise” system in which there is no free enterprise. U.S. law prevents Medicare from exercising its vast buying power to lower drug prices in the U.S. Is this free enterprise? U.S. law prohibits Americans from freely buying medications overseas where prices are substantially lower. Is this free enterprise? Exorbitant drug prices eat up health dollars at an alarming rate and deplete the ability of the health system to take care of all of us at less cost.

We could go on and on about the cost of “defensive medicine”, doctors owning an interest in testing and service providers thereby having a great incentive to order unnecessary tests and services which provide them profits, wasteful and harmful recordkeeping, and, worst of all, 45 to 50 million Americans without health insurance, leaving them to fend for themselves by going to hospital emergency rooms or not going to the doctor at all.

We all know the old saw – “You get what you pay for”. If you can’t pay, you don’t get. With fewer people paying into Social Security will there be any security, social or otherwise in our near future or will the system as we now fund it have to change? With Medicare expenses skyrocketing because more and more people are living longer and requiring more and more medical and hospital care and with new and expensive treatments being discovered every year, how can we pay for it with the old Medicare and the “profits at all costs” private insurance system?

There is momentum for change now. It took almost 20 years from the Harry and Louise Days for the country to get up the nerve to face the issue again. We can’t afford to just make cosmetic changes which don’t get to the basic needs of health care in this country. There aren’t another 20 years left to get it right for all of us.

THINK!!!!

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We have just read an appellate court analysis of a technical legal point which carries with it a pressing human consideration under ERISA disability claims..

The legal issue is whether some appeals of ERISA rulings are actually ripe for appeal. Or, should they be dismissed because the remand order of the Federal District Court below was not a “final order”.

The foundation for refusing to rule on such disputes is that an appeals court will generally not hear an appeal unless it is an appeal of a final order or judgment, in which all issues of the dispute below have been adjudicated. Appellate courts generally do not want to make decisions on only portions of a case, leaving other issues unresolved so that the court may have to deal with a later appeal in the same case.

This approach may be OK for cases which do not involve ERISA disability income claims. In ERISA disability cases, an insurance company administrator usually controls the decision in the matter. Knowing the appellate court aversion to ruling on a less than final order, the administrator may find it advantageous to “pingpong” his decision by failing to set forth completely the reasoning for the administrative decision. This would likely cause the hearing court to send the matter back to the administrator to complete the record.

This can lead, as it did in Gerhardt v. Liberty Life Assur. Co. of Boston, U.S.App.LEXIS 16170 (8th Cir, 2009) , to rejecting the appeal of a remand by the District Court because the administrator failed to consider all of the issues in deciding to reject the disability claim.

But, as another court has said, if the process of granting remands becomes routine when an administrator fails to present a complete case, it would allow “Mulligans” to sloppy administrators at the expense of both courts and disabled claimants.

In fact, we are certain, if insurance companies realize that this ploy would add substantial time and expense to a claimant’s burden, we know they will use it to the fullest extent.

We agree with Chicago attorney Mark D. Debofsky who brought this case to our attention in the August issue of his DISABILITY E-NEWS ALERT – “If a claim decision is defective, the claimant deserves an award of benefits.”

Let’s not allow insurers use a racket to play ping pong while claimants in physical and economic pain are forced to follow the bouncing ball.

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There’s nothing a disability insurance carrier likes better than a claimant who is “Mr. Nice Guy”. These are people who keep trying to do work even though they can no longer continue the occupation for which they have an “own occupation” policy and have a
clear cut claim for disability benefits.

What’s wrong with trying to keep working, one may be tempted to say? It’s the pioneer spirit. “Don’t give up the ship” and all that.

What’s wrong is that Mr. Nice Guy may scuttle his claim for benefits by trying to work at another job before making a claim under his policy. The carrier may have the right to say the claimant can perform duties similar to the ones he is performing at the time the claim is made, so he is not disabled as defined in the policy and, therefore, is not entitled to any benefits, let alone benefits for the occupation and income intended to be protected when the policy was purchased.
The problem is that “own occupation” is interpreted to mean the actual occupation at the time of claim – not the original occupation for which the insured originally purchased coverage.

So, if you modify your occupation to accommodate a disability, by giving up the duties you can no longer perform, then those duties are no longer considered part of your occupation when you subsequently file a disability claim.

Also, even if the carrier has to pay, the carrier may be required only to pay benefits based upon the salary or income of Mr. Nice Guy’s employment at the time of making the claim. These benefits would likely be much less than the benefits originally contemplated by the policyholder at the time of purchase. And the hefty premiums paid for the anticipated coverage would be gone with the wind.

So, if you have been astute enough to cover yourself and your family with an “own occupation” disability policy and you become disabled under its terms, don’t be a Mr. Nice Guy. To be safe, make your claim with your insurer under the terms of your “own occupation” policy when you become disabled under its terms and before you start doing any other work.

Certainly be Mr. Nice Guy to your family, your friends and even to people you may meet in the street. But, not to your disability insurance carrier.
 

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If you are one of those who still believes the private health insurance industry is there to protect your interests you probably still believe in fairy godmothers, because you are really going to need a fairy godmother when you are sick or injured and the insurance company has to cough up cash.

For a thorough and detailed exposition on the motivations and tactics of disability income insurance carriers such as UnumProvident and Paul Revere, you should read the opinion of U.S. District Court Judge James C. Mahan in Merrick v. Paul Revere Life Insurance Company, et als, 594 F. Supp 2nd 1168 (D. Nerv. 2008).  It is a clear and convincing scorecard of the ways in which the insurance companies hit their policyholders, especially when they are down.

In the carefully worded, detailed opinion, by Judge Mahan, he finds that the reprehensible conduct of these insurance companies has garnered them “…hundreds of millions if not more…” in benefit dollars at the expense of physically, mentally, emotionally and economically vulnerable individuals (their policyholders).

The judge, after hearing all of the evidence presented by both sides, obviously concluded that the reprehensible conduct toward the clearly disabled plaintiff in the case was “…not the result of accident or inadvertence, but was part of a widespread corporate plan or scheme to augment profits through wrongful conduct targeted at disabled policyholders…”.

He went on to declare that the only conclusion he could draw after hearing all of the evidence and weighing the credibility of witnesses for both sides is that the defendants, Unum and Paul Revere, “…engaged in a widespread corporate plan, and conscious course of conduct firmly grounded in established company policy, to disregard the policyholder-plaintiff’s rights and the rights of tens of thousands, if not hundreds of thousands of other policyholders…”

The detailed and thoughtful decision by Judge Mahan puts the lie to opponents of health care reform. The system isn’t functioning for those most in need for it to function fairly, those whose health requires a claim to be made. When you are sick or injured, you are not at your fighting best – and that’s when the insurance sharks start their “delay and deny” act.

If our health system is ever to work properly, insurance companies will have to take seriously their obligations to policyholders and go beyond corporate profits only, “first, last and always”. Insurers will have to give fairness and “peace of mind” to policyholders who will then actually get what they paid for without the unconscionable “scorched earth” policy in regard to claims.

Only those who still believe in fairy godmothers can really believe that anything but government health reform is big enough to force such a change for the better.

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Now that we are coming down the home stretch on the Congressional vote on health care reform, the hucksters are getting their baloney machines into high gear. Us guys who are just ordinary folks have to watch out to see that we don’t get slapped between two slices of white bread, doused in mustard and swallowed whole in the barrage of half truths and slanted statements by the people who don’t want change – our friends the health insurance industry. They just have it too good.

An article we posted just a few days ago (What You Can Do For Your Country) becomes more and more important as the battle heats up. Television and newspapers will be filled with pro and con position papers espousing the propaganda of whichever side is footing the bill. The best advertising and public relations minds are hired to press the public’s buttons so as to build support for their side.

We thought of a way to level the playing field in the struggle to come up with a fair law that would do the trick for most Americans:

Prior to Congress undertaking the job of writing a health bill, all of their governmental health coverage should have been canceled with a proviso that when they passed legislation, they would be covered by the new plan which they enact, and would have to pay health premiums for their respective policies out of their own pocket.

Only then, when they were in the same position as the rest of us, could they really act in the interest of all and come up with a fair program for the American people. But, it just ain’t gonna happen.

Many people seem to fall for the “Socialism” and “big government” labels fostered by the insurance company funded ads. But, what is Medicare, if not a “big government” run health care system? Yet, not one of those ads will say a negative word about Medicare because the American people have seen it in action and they know it works.

So, as we said a few days ago, first, it is vital to check who is behind any statement made by any individual or organization in this fight. A group may have a name that sounds strictly neutral – but are they? Know the real people and organizations behind the statement and you’ll be able to evaluate it properly.

Second, is to listen carefully to what is being said. If a statement says nothing more than “big government”, “Socialism” and “health czar”, it offers no help to you in evaluating the merits of the proposal. These are catch phrases which seemed to work before to defeat what the insurance companies don’t want and they are hoping it works again. Don’t allow it.

Evaluate arguments based on more than slogans because the health care issue is of vital importance to you and your fellow Americans. Health care costs are breaking the economy and threaten to become a full-blown economic disaster in just a few years if we don’t try to do something about it now. If each of us is not willing to consider sacrificing a little bit now, we could very well lose it all in the near future.

The false ogre of government-run health care is a false god. Look at Medicare, Armed Forces medical care and the Veterans Administration programs. They are clearly government-run and are operating just fine for many millions of Americans. Why can’t a government program fashioned on these examples operate just as well as an alternative to private insurance? Where is the proof that it wouldn’t?

With the vote in Congress on health care reform not due until some time in September, the health insurance companies have more than a full month to bombard Americans with propaganda that talks about everything but the real issues:
 

* Refusal to cover those with preexisting conditions
* Escalating health insurance premiums which fewer and fewer can afford
* 45 million Americans without any coverage at all
* A serious illness can bankrupt the average uninsured family
 

Any new law must deal with the real issues in the interest of all of us. Your input to your representatives in Congress will have a lot to do with the outcome. Don’t follow the insurance company party line – do what’s really good for you and the rest of us.

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