ERISA Is Not A "Gentleman's Game"

It’s funny how things created decades ago jump to the forefront when something comes up to trigger the memory.

Recently the “chutzpah” of LINA in opposing subpoenas issued to four of its “independent” doctors brought back with a rush the memory of W.C. Fields in “My Little Chickadee” a comedy he starred in with Mae West in 1940. No, we are not that old, we enjoyed a rerun not too long ago.

In the film, Fields, a complete scoundrel, plays high card draw with an opponent who draws a king from the deck and shows it to Fields before placing the card back in the deck. Fields draws a deuce, slides it up his shirtfront so he’s the only one who sees it, then places it back in the deck while proclaiming “Ace”.

When the opponent protests that he wasn’t shown the card, Fields says: “Gentleman’s game, gentleman’s game”. In other words, “trust me”.

LINA tried to pull the same type of trick in defending an ERISA disability claim in Illinois, when it tried to block claimant’s effort to obtain the testimony of the four physicians who had rejected the claimant’s disability claim. See, Gavin v. Life Ins. Co. of North America, Slip Copy, 2013 WL 2242230 (N.D. Ill).

LINA tried to play a “gentleman’s game” when it opposed subpoenas for doctors partly on the grounds that the doctors had signed sworn “certifications” which denied any financial relationship with the LINA or the health benefits plan.

LINA must think that ERISA claims lawyers are ignorant of the fairly recent bad history compiled by insurance companies. Did they think the Court was going to allow LINA to slide that “certification” card up its shirt front and declare “Ace”? ERISA attorneys and courts are aware of the stables of supposedly “independent” doctors who live off insurance company referrals for so-called “independent” medical exams.

In rejecting LINA’s position and enforcing the subpoenas against the doctors, the Court pointed out that LINA had failed to provide any exhibits or evidence to support its allegation that there was no financial relationship between the doctors and the insurer.

The Court found the “certifications” self-serving and ruled that claimant was entitled to independently confirm that the medical opinions were not unduly influenced by the doctors’ financial relationship with the insurer or the agency that provided them to LINA.

Nice try, LINA. But, you’re not going to “gentleman’s game” your way out of this one.


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