The Malpractice NONdeterrent

 Some doctors who examine for insurance companies feel free to play fast and loose with the truth when making reports on the condition of out of work employees because they do not have to fear malpractice claims.  Although fear of malpractice claims has been heavily overplayed by doctors and insurers in recent years, the plain fact is that insurance company doctors don’t have to fear malpractice claims since the person being examined is not the doctor’s patient.  There is no duty owing from the physician to the ERISA claimant being examined.  

An ordinary patient’s doctor has a duty to treat a patient in accord with the standards of the medical profession as practiced in the doctor’s geographic area.  Insurance company doctors do not treat the patient and so have no duty to him or her.

Owing no duty to the party being examined, the insurance doctor faces no malpractice threat if doctor’s report omits or misinterprets the patient’s condition.  What an incentive for insurers to hire and remunerate examining physicians who don’t mind playing fast and loose with the medical facts because doing so poses no danger to the doctor.

This major difference in the consequences of overlooking or misinterpreting the patient’s diagnosis or disability has led to insurers playing games with how they obtain medical information with which they contest ERISA claimant’s claims to being unable to perform the duties of their occupation. 

ERISA gives all of the advantage to the employer who in most cases hires an insurer to operate its ERISA plan. Although the employer is a highly interested party, ERISA gives the employer the right to make the “yes or no” decision on a claim.  And once that decision is made it stands as the law in the matter until it is overturned.

Fortunately, courts have just begun to take closer look at the insurers’ system for providing medical evidence in ERISA cases.  Many insurance companies have tried to appear to obtain independent medical opinions by retaining so-called independent medical services to examine and render medical evidence in ERISA matters.

The problem with this system is that it turns out that these so-called “independents” make most if not all of their fees from the same insurers.  How can they be considered “independent”?

Putting a fake third party entity in the mix is just an attempt to obscure the fact that the examining physician is actually working for the insurer.

This system may be good for insurance companies and those doctors who want to make easy money in examining claimants.

But, it’s bad for fairness and truth.

An ERISA Lien Is Not A Joke

One of the things that some attorneys overlook when settling a third party claim in an ERISA matter is the effect of the insurance company subrogation lien on the proceeds of the settlement. ERISA gives a plan administrator the power to have a lien on the proceeds of any such settlement. Courts have a history of zealously protecting that lien for plan administrators.

The idea is to reimburse the plan for funds already paid to or for the benefit of a claimant by the plan from funds a claimant may receive from a third party tortfeasor whose action caused the illness or injury which prevented the claimant from working in the first place. It is a basic concept of ERISA law and subrogation is authorized by insurance policies where benefits are triggered by the actions of a third party.

When the facts of a case support avoidance of a subrogation lien (a very rare event) the reasons for the avoidance claim must be carefully and completely substantiated to prevail. The issues in a lien avoidance argument usually involve highly technical and sometimes arcane legal arguments encompassing old equity jurisprudence.

A Georgia lawyer tried to skirt the subrogation lien on the proceeds of an ERISA settlement by baldly claiming the settlement was solely to compensate the client for “post-accident tortious conduct” and therefore was not covered by the subrogation lien, even though the settlement language indicated otherwise.

In Central States, et al v. Lewis, et al, 2014 WL (7th Cir.), Circuit Judge Posner takes the claimant’s lawyer to task for trying to “game” the system and do the insurance company out of $180,000 in lien benefits with a statement unsupported by the facts of the case.

There are Supreme Court cases which decree that if the claimant did not actually receive the tortfeasor settlement monies, then there is no settlement asset for the insurance subrogation lien to attach to. See Great West Life v. Knudson, 122 S. Ct. 708 (2002). In those rare cases, claimant is not required to turn over settlement funds to the insurer.

In some cases, the lien is not applied because no funds remain from the settlement when the ERISA case finally concludes.

In the Central States case, the settlement seemed clearly for the tort which the settlement funds covered. Because of the circumstances in this case, Judge Posner concluded that the refusal to pay over the $180,000 pursuant to an order of the District Court was just that – a refusal without foundation.

In sending this case back to the District Court, Judge Posner suggested strongly that the District Judge should send copies of the judge’s opinion and a transcript to the Georgia Bar Association and the U.S. Department of Justice for action by them.

He also asked the Judge to consider ordering the lawyer and the client to jail until they paid the $180,000 into a trust fund. This is something appellate judges don’t do unless you really twist their knickers.






ERISA Is An Acquired Taste

When you write a blog, you write into a void. You think you have something to say that people want to read. But, do they really? 

This is our 200th blog post. We should mark it in some way. How?
Maybe by trying to express why we blog?

Why do we write?

Because most people and many lawyers are not familiar with ERISA and disability insurance law. These people and these lawyers’ clients are usually in deep trouble when they come up against ERISA. They and their family’s future depend on the outcome.

What is our goal in blogging?

To make attorneys and clients aware that ERISA is a serious business which requires total attention to detail in prosecuting a claim. A single overlooked item is enough to sink an ERISA claim for good.

Why is ERISA such a bear?

Who likes to go into a fight to the finish in which the referee holds your opponent’s coat?
ERISA puts the right to determine the validity of a claim in the hands of the plan administrator, which is often the insurance company which will have to pay the claim if approved. Not only that, but Firestone v. Bruch, 489 U.S. 101(1989) demands that courts give deference to a plan administrator’s ruling. To overturn such a ruling a claimant must show the ruling was “arbitrary and capricious”, a very tough legal hill to climb.


We want to do what we can to give ordinary people and attorneys who have never handled an ERISA case a fighting chance to overcome the odds and establish their right to benefits when a disability strikes. Insurance companies and their lawyers fight disability claims a thousand times a day. Employees and their attorneys get only one chance to receive benefits in a difficult and convoluted legal environment.

What We Have Learned

We started practicing disability law almost 35 years ago. We learned early on that the employee, whom ERISA was supposedly designed to help, starts each case as the underdog. We learned that meticulous and accurate attention to detail is a prime requirement of the practice. We learned that alertly digging through policy language is a must. We learned that knowledge of the effects of injury and disease are required. We learned that establishing the link between a disability and consequent work restrictions and limitations are absolutely essential.
Insurance companies have the funds and the personnel required to fight ERISA claims. Employees, disabled and unable to earn, have little to fight with. What they need most is knowledgeable help with ERISA claims. We have always represented the insured, never the insurance company. We like it that way.

Fighting insurance companies is an acquired taste. We’ll never tire of it.










Don't Be A Disability "Hero"

When is it time to give up the ghost when you are suffering severe pain or serious restrictions on your ability to do your job? The time is when you are suffering severe pain or those restrictions.

A recent opinion in an SSDI case reinforced this conclusion, Garcia v. Colvin, 2103 U.S.App.LEXIS 25452 (7th Cir., 12/20/13)

Although Garcia’s claim was covered by Social Security, it was denied because he had worked despite his disability until he could do it no more. This is an unusual result in SSDI because SSDI judges have no pecuniary interest in the outcome of a claim.  For more on this.

Disability insurance companies which pay benefits out of their own pockets have an ingrained reluctance to believe anyone who is entitled to benefits is actually entitled to them. Playing the “hero” and fighting day by day through pain to do your job may get you kudos in the everyday world. It will only get you denial in the disability insurance world.

Although courts recognize that ordinary people fight their way through adversity, when disabled, for a variety of reasons, disability insurance companies do not, especially when such recognition would mean they would have to pay benefits to an insured. There is no upside with disability insurers for a claimant working when totally disabled. Actually, the exact opposite is true.

We have written about this before.

Disability insurance companies will use the fact that you worked against you. They take the position that you can’t be disabled if you work. They refuse to consider the human factor, i.e., that many people will undergo the most severe pain and stress on their health to provide for their loved ones, no matter the risk.

Such people will face the most serious consequences to keep the wolf from the family’s door. Do insurance companies think they are entitled to the same devotion from claimants? And, if they do, do they think this devotion should go on forever?

Although the claimant who can take it no more and applies for benefits has saved the insurer a good deal of money by continuing to work in the past, he or she gets no Brownie points for it. The opposite is true. The insurance company will continually throw up the fact that the claimant continued to work through the disability, no matter the reason, in an effort to deny benefits under a policy.

Being a “hero” may very well scuttle your and your family’s right to desperately needed disability benefits.


Do Insurers Really Want To Know?

Courts should require any doctor finding or denying a psychological or psychiatric disability to actually examine the claimant in person. This really should be the rule for any medical disability claim, but such a personal hands-on examination should be absolutely required when the disability claim has a psychological or psychiatric basis.

In ERISA cases, to save money and to make it easier for their doctors to file biased medical reports, insurance companies have increasingly taken to offering reports in which their doctor has never even seen the claimant, let alone personally examined him or her. The insurance company physicians merely review the reports of the insured’s treating doctors and try to punch as many holes as possible in the doctors’ claims of disability.

We suspect that M.D.s are similar to lawyers when it comes to evaluating a client, a patient or a case. Face-to-face impressions are important to determining whether a client or patient is telling the truth.

Facial expressions, gestures, vocal volume and cadence, eye blinks, tics, face blushes, hesitations in responding and general demeanor are all evaluated subconsciously by a doctor or lawyer, as a package, in coming to decision about the veracity of the person they are talking with. Years of experience in making such face-to-face evaluations and then checking them against what actually happens, makes these evaluations most valuable in diagnosis.

Reading a report of someone else’s impressions gives no clue as to how trustworthy the patient’s description of his or her condition was. This is a problem even when the disability is based on physical abilities:

• Can you raise your arm higher than here?
• Can you climb a ladder?
• Can you sit for more than 10 minutes?

Only the examiner, personally seeing the effort to try to accomplish the objective, can have a valid opinion. Reviewing a report on paper gives no valid insight.

When a disability is psychiatric, clues are even more nuanced. An examiner has to see the response as well as hear it. The examiner has to observe body language as well as other subconscious conduct, to arrive at a valid evaluation. Only then can the expert form a reliable opinion (still not a certainty) as to whether the claimant is telling the truth.

Interpreting body language is a must in psychiatric diagnosis. Using “paper reviews” instead of actual clinical examinations, leads to only one conclusion:

Insurance companies don’t really want to know!




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Insurers - Don't Kill The Gift Horse

Why do insurance companies shoot themselves in the foot by trying to penalize claimants who try to work through their medical problems before applying for disability benefits.

If insurers really succeed in broadcasting the message that if you continue working when you have a disabling condition, that fact will be used against you if you ultimately have to give in to the disability and apply for LTD benefits. Afflicted employees will be forced to make claims much earlier and will never try to “tough” it out.

We know that insurance companies use whatever they can find to oppose disability claims, giving little thought to the consequences for their insureds. But withholding benefits because a claimant tried to work through a disability is just plain shortsighted.

Insurers must realize that every day employees stick to their jobs and continue working while suffering the early stages of disabilities which may plague them the rest of their lives. In doing so, these employees are saving insurance companies millions of dollars in benefits which they would otherwise have had to pay out.

Rather than encouraging those who try to work despite trying medical or psychiatric conditions, insurers instead try to penalize them by throwing this work effort in their faces when they finally have to succumb and apply for LTD benefits. In effect, insurance companies penalize people for trying to avoid applying for benefits.

This attitude on the part of insurers is not only unfair to the claimant (who ever thinks of the word “fair” when discussing an LTD claim), but it actually does harm to the insurer’s position.

If word gets around that insurance companies will use your working through an illness or injury to defeat a legitimate disability claim, no employee in his or her right mind will try to do it. Employees will be more likely to apply for STD as soon as they have a condition which may have long term implications.

Why should someone force themselves to work in pain or severe discomfort, when their efforts will be used against them if they are forced, in the end, to stop working because of their disability?

The problem with insurers is that they consider all disability claimants the same – they think they are all looking for an excuse to stop working and collect benefits.

But, people are different. Some have a great work ethic. Some don’t. Some can bear pain much better than others can. There is no “one size fits all” when individuals become disabled. Some will be able to work on – some won’t.

If insurance companies continue to raise as a defense that you worked when you claimed a disability, no matter how difficult it was for you to do so, they will soon find all claimants claiming benefits much earlier that they do now to avoid the defense.

Claimants aren’t stupid. If insurance companies persist, many more claimants will seek benefits earlier to avert this knee-jerk defense raised by insurers.
If they do, companies will be paying out a lot more than they do now.
So, insurers, drop this automatic defense. Use it only where it is warranted.

If you do, you will save a lot of money.


"Pingponging" An ERISA Claim

One of the new tricks of the trade in denying disability benefits was exhibited by AT&T playing ping pong with an employee’s short term disability (STD) claim and thereby not only denying the STD claim, but also ruling her out of time on making a later LTD claim. Guthery v. AT&T Umbrella Benefit Plan No. 1, 2013 WL 4510584 (W.D., Ark.).

This denial trick was accomplished by having no communication between the two separate departments which handled disability claims and workman’s comp claims for AT&T. This problem was compounded by the plan administrator relying on medical reports which threw little light on the medical issues in the case.

The claimant’s problems began when she fell off a ladder at work and was injured. Ms. Guthery went for medical treatment at a medical facility to which she had been referred by the AT&T department handling her claim. At the same time she was making her disability claim Ms. Guthery also filed for workman’s comp.

As each of the claims was handled by a separate department of AT&T, it made it easy to start a game of ping pong, with the claimant being caught in the middle.

When the AT&T disability claims department needed info or an exhibit from the workman’s comp claims department, it was requested, but the WC people didn’t send it. Requests between the departments were ignored until time limits set by the requesting department had long passed. And, who got the blame? Why, Ms. Guthery, of course.

All through claims process, Ms. Guthery kept in close contact with the claims department to follow up on whether information, totally in control of the plan, had been provided. It didn’t help. When time limits arbitrarily set by AT&T passed, her STD benefits were terminated even though the information was totally in the hands of AT&T people.

While this game of intercompany ping pong was going on, time was passing. Ms. Guthery did not file her claim for long term benefits because of the STD benefits brouhaha. When she did try to press her LTD claim, AT&T defended by claiming she had not exhausted her administrative remedies by first completing her claim for short term benefits.

Even though this was a “deference” case, the Court found the denial arbitrary and capricious and restored Ms. Guthery’s STD benefits along with her right to make an LTD claim.

In its opinion, the Court in Guthery specifically pointed out the trap that medical “generalizations” lay for claimants. Insurance companies take advantage of this trap and send claimant’s doctors forms which are designed to get the doctors to “speculate” on the length of time it might take for a disability to end. As the Court pointed out, this makes an assumption that a claimant is no longer disabled because “generally” a disability ends after such a period.

The actuality may be far from the truth, as each case is different. Some patients recover slower than others with the same illness of injury.

We have warned physicians about being constrained in reporting on patient on the forms insurance companies send them, boxed.

In the interest of their disabled patients, we do so again.




Let's Do Away With Captive Doctors

There are basically two categories of doctors involved in the world of ERISA disability claims – the treating doctor who has examined and tried to cure the claimant, and the expert witness doctor who may or may not have even seen the claimant and whose job it is to give evidence for one side or the other in the matter. 

Which category of physician would one expect to have a better handle on a person’s medical condition? 

This issue has been brought to the fore by a recent article in the NY Times describing the activities of Dr. William B. Barr who is often called upon by the Manhattan District Attorney’s office to testify in criminal cases where a defendant’s mental state at the time of a criminal incident is at issue.

Dr. Barr has testified in more than 100 criminal cases concerning the mental health of defendants, according to the Times, and in just about every one of them on the side of the prosecution.  Obviously, his testimony rarely helps the defendant. 

We have pointed out before that this “gamesmanship” played  by both prosecution and defense in criminal law and in injury cases is many times just a sham which injures litigants and lowers public faith in the courts.

It is time to try a new system, one which attempts to take physician self-interest in civil and criminal litigation out of the equation.  One way of doing this was suggested here just a few weeks ago.   Another suggestion is to establish a phalanx of medical experts, half chosen by plaintiff’s bar and half by defense.  The physicians selected should be categorized by specialty and listed with court clerks.

When an expert physician’s opinion is needed by either party, the next doctor on that specialty list should be named.  The claimant should be examined and reported on by that doctor. 

Expenses of the exam should be paid by the party calling for it.  With such a system, there is no way for any physician to receive so much business from an insurance company or plaintiff’s lawyer that the doctor’s judgment might be clouded.

There would be no prohibition against either party obtaining additional expert testimony if desired, but such testimony would be at that party’ expense.  And, a court or a jury would always be aware of the court-named medical expert’s unbiased opinion in the matter when it came time to make the decision.

The additional opinion bought and paid for by one side or the other would be evaluated as just that – an opinion bought and paid for by an interested party.

There are many categories of law in which expert medical testimony is required: personal injury, criminal, medical malpractice, workman’s comp and ERISA disability, to name a few.  In most of these areas of law, the claim is defended by an insurance company.  As one would expect, insurance companies build stables of doctors whose opinions lean in their favor. 

Plaintiff’s attorneys who do a lot of work in any of these areas are also known to favor doctor experts who would favor plaintiff’s side.  Many of these plaintiff and defendant physicians earn a good part of their incomes from these sources. 

So, it obvious that these doctors have good reason to find evidence that will please their employer and keep that income rolling in.

So, let’s get real.  Litigation involves trying to solve basic human problems.  It is not a “game” where the party with the biggest wallet should necessarily win.



A New "Poster Girl" For Insurers

Meet Terri Truitt, a Texas lawyer who is the new poster girl for the insurance defense bar.
Ms. Truitt was on long term disability with Unum for years while at the same time apparently performing tasks she allegedly wasn’t physically able to perform and acting like a world traveler while she said her disability prevented her from traveling on her job.

She received substantial benefit payments from Unum from 2002 till 2009 when Unum denied her claim based upon new insights into her actual life. These insights were provided by 600 emails and travel itineraries covering several years.

Ms. Truitt’s demise was caused by a former boyfriend who blew the whistle and brought her LTD benefits run to close. Apparently, there is truth in the saying, “Hell hath no fury like a ‘man’ scorned”.

The saga begins in 2003 when she began receiving benefits for leg pain which prevented her from lifting, walking or sitting. The disability made carrying bags and sitting on a plane for long periods impossible, she said, and these tasks were an integral part of her occupation as an attorney required to travel and carry bags and exhibits.

Although surveillance videos and medical evaluations obtained by Unum indicated otherwise, Ms. Truitt was able to defend her receipt of benefits until the “ex-friend” provided emails, photos and travel itineraries showing her doing everything she said she couldn’t do. Her benefits were halted but she managed to get Unum, one of the toughest on claims in the insurance business, to reinstate them

Ultimately, Unum prevailed in court. The Truitt opinion details a high-flying life which would have been impossible with the disability she claimed. The opinion is worth reading, Truitt v. Unum Life, 2013 WL 4777322 C.A. 5 (Tex.) (No. 12-50142), to show the details of how flagrantly Ms. Truitt appears to have flouted the rules of disability.

Even though Unum is suing for the return of $1 million it claims was wrongfully paid to her as benefits, the damage to others caused by Ms. Truitt’s apparent conduct is much worse.

Hurt more are the thousands upon thousands of ERISA and DI claimants who are suffering from disabilities that really prevent them from working and now will have to overcome the Truitt case which is bound to be raised by insurance companies whose first instinct is to believe that all claimants are looking for a free handout.

That’s why we called Ms. Truitt a “poster girl” for the defense bar. Those of us who practice disability claims law for plaintiffs will no doubt have her case thrown up to us time and again in future. Our own experience, however, is that very few people seek disability benefits without legitimately needing them. We find that the vast majority of people want to be productive, accomplish something and earn their own way in life.

Of course, defense counsel will at the same time ignore the Court’s awareness in the Truitt opinion of Unum’s history of misconduct in ERISA matters. We, like Unum, do not in any way condone Miss Truitt’s apparent conduct in this matter. We also point out to Unum that history counts.

Insurance companies try to paint claimants as dishonest malingerers who are looking to avoid work and receive insurance benefits. They tend to paint all claimants with a broad brush. Truitt shows that sometimes they may be right.

In the vast majority of cases, they are wrong!

A Careless Phone Chat May Be A Claim Killer

We cannot stress too forcefully the dangers of treating doctors talking with disability insurance company physicians about disability claimant patients. It is amazing how many times the discourse of these “peer to peer” communication sgets garbled and ends up being bad for the policyholder, the doctor’s patient,

A treating doctor may think it is collegial courtesy to speak with a disability insurance company doctor. But, the treating doctor should keep in mind that the colleague is actually an employee or, at least hired by an insurance company which is intent on finding a reason to avoid paying a patient’s long term disability benefits.

Attorneys who represent claimants should do their best to advise their client’s doctors of the dangers of dealing with the insurer and the care which must be taken when doing so. We have spoken before about the perils of completing Attending Physician Statements (APS).  But completing these APS forms, with awareness of the pitfalls, is preferable to chatting with a physician, employed by the insurer, about your patient.

Doctors should be warned that the “friendly” chat with a colleague may be manipulated by the colleague into words that spell death for the patient’s claim. There is frequently no written record of the dialogue and the doctor on the insurance company end may very well hear and interpret the conversation in a way the treating doctor never intended.

When such a conversation is reported to the insurer and incorporated into the insurer’s record, it can be devastating to the claimant even though the conversation was misreported, intentionally or not.

It is common knowledge among attorneys who practice mostly in ERISA and private disability claims that disability carriers have stables of doctors who earn a substantial amount of their income by reviewing claims from those carriers. Insurance companies would not be likely to keep feeding these doctors if their opinions didn’t tend toward favoring the insurance company.

The upshot is that all information should be provided in writing. Questions should be asked in writing and answered in writing. When the conversation is written, it speaks for itself. If the insurance doctor needs clarification of a patient’s status, the question should be put in writing to the treating doctor with a copy to the patient’s lawyer. The response from the treating doctor should also be written. Nothing should be left to chance, bad hearing, misunderstanding, misinterpretation or any other possible reason for miscommunication.

A treating doctor’s support is essential to obtaining much needed benefits which will help the disabled patient and the family live while a patient is unable to work. Attorneys should warn doctors at the start of a case not to talk or communicate casually or carelessly with the insurance company or its doctors. Any questions or requests must be in writing. The same for any response.

Disaster for a disability patient may be only a phone call away.






Don't Get Boxed In On A Medical Form

If you ever needed some proof that disability insurance companies are fully invested in the idea of not paying benefits, no matter what, read Miles v. Principal Life, 2013 WL 3197996, a decision handed down by the 2nd Circuit Court of Appeals in late June.

Among other “missteps”, Principal totally ignored the expertise of its own examining physicians and demanded objective proof of the claimant’s tinnitus, which even their own doctors said was not possible. Principal denied the claim because Mr. Miles couldn’t provide proof of a condition which Principal’s own doctors said was not objectively provable.

The opinion contained additional important points on matters which we have commented in other posts. One was the common sense adoption by the Court that a claimant’s long work history enhances credibility. Statements of this nature are beginning to find their way into opinions as a telling point when proof of the claim is subjective and credibility is a major issue.

Another important point is that claims cannot be rejected just because they are based on subjective complaints of pain. The Court reaffirmed its holding in Connors v. Conn. Gen. Life Ins. Co, 272 F. 3rd 127, 136 (2nd Cir. 2001), that it is arbitrary and capricious to disregard evidence of pain because it is subjective. In such cases, the Court implied, credibility is an issue and the insurer must enunciate why a claimant is not to be believed.

We also cannot stress too forcefully the dangers of treating doctors limiting themselves to reports of their patient’s condition to a form provided by an insurance company. Insurance companies are not in the business of paying claims. Physicians must understand that the forms insurers provide to a claimant’s doctor are designed to limit the report to the barest details so as to make the patient’s claim appear skimpy and suspect.

Many busy physicians conform their answers to the information specifically asked for in the form and do not add information not specifically asked for. This can play right into the disability insurer’s hands. Disability claims not only have to prove their illness or injury, but also why that illness or injury prevents them from doing the work they were insured for.

Even if the doctor is careful and adds notes to amplify the limited space available on the form so as to be more accurate and forthcoming, the insurance company may just ignore this additional information, as it did in the Miles case. Insurers will stick to the form box answers in coming to a decision if it is in their best interest to do so.

Medical answer boxes on disability insurance forms are convenient for physicians but can devastate a patient’s claim if the doctor fails to elucidate when a limiting form box answer is incomplete.


Insurance Companies Play Mind Games

If there is one thing you can rely on, it is that insurance companies will move heaven and earth to turn a physical disability claim into a mental or psychiatric one. The reason is obvious – most group disability policies and many individual policies limit benefits in psychiatric case to 24 months. In disability claims not caused by mental or psychiatric illnesses, disability payments usually run to age 65.

Clearly illustrating this insurance company partiality to mental problems as a disability cause is a recent case in Oregon involving an accountant who had worked for a large national accounting firm for 30 years before he was stricken with fainting spells and slowness of speech and thought. It is a prime example of the lengths insurers will go to convert a disability arising from closed head trauma to a disability based upon mental depression.

In Henarie v. Prudential, 2013 WL 2359009, D. Or. (2013) the Federal District judge wasn’t baffled by the tangled history of the case. Claimant’s doctors had at first blamed his disabling condition on depression. It was only after further symptoms became apparent that the doctors changed their opinion, citing head trauma as the cause of Mr. Henarie’s disability.

To our mind, the most interesting part of the decision was the Court’s observation that Mr. Henarie had been a high achiever who had worked at double the pace required of him by his accounting firm throughout his career. The Court also noted that he had continued at work during a period when he was suffering from a bout of mental depression. Yet, Prudential’s doctors indicated he was malingering rather than making a legitimate claim.

Inconvenient facts rarely discourage insurance companies from arguing what is in their own best financial interests. Insurance companies regularly try to get judges and the public to believe that an otherwise honorable, hard-working person who has an exemplary work history over many, many years, would nevertheless wake up one day and decide to bilk his or her employer and the long term disability insurer because they decide they don’t want to work anymore.

In Henairie, the Court looked closely at the strenuous effort the plaintiff’s doctors made to come up with the truth even though it required them to change their original diagnoses. The Court questioned whether the insurance company doctors had even reviewed the appeal and exhibits. The Court agreed with Prudential that their doctors need not disclose the material they reviewed, but, he continued, “…their opinion ought to reflect that they read and digested Henarie’s arguments.”

This was a complex case with the claimant’s doctors changing their diagnoses after obtaining and reviewing more facts, but it was also very basic with the court considering things like the long work history of the claimant and the very simple tenet that if an insurance company doctor is going to render a medical opinion, the doctor should at least give the reviewing judge the feeling that the doctor has read and considered the medical evidence of the other side.

Common sense never hurt a court decision.




Hope For Disabling Pain Sufferers

Wouldn’t it be great for disability claimants to have a reliable test to show the level of pain they are suffering? If you have an ERISA claim based on pain and are dealing with an insurance carrier with the usual insurer attitude toward disability claims, it would be the greatest of boons. Such a test would go a long way towards overcoming the dread “no objective evidence” mantra typically used by carriers to deny chronic pain claims.

Most insurance companies treat all but the most obvious disability claims with a heavy dose of “salt”. Denying a claim is almost a “knee-jerk” reaction, especially a claim which is based upon “pain” which has no objectively established physical component to support it.

There are a multitude of conditions which generate pain, some of which may not be readily apparent on an X-ray, MRI or EMG. That doesn’t make the pain any less disabling. But, you can bet that a claim based on pain, the cause of which is not clearly apparent on an X-ray or MRI, will likely draw a rejection from an insurance carrier.

Now there is hope. A recent study done at the University of Colorado Boulder found unique neurological signatures for pain in brain scans caused by heat. The brain “signatures” seemed similar in a variety of study participants. A great deal more work is to be done before any scientifically premised conclusions can be drawn. But the study seemed to confirm, with 90 to 100% accuracy, the degree of pain a participant was feeling in response to a measured level of heat being applied.

Should this research lead to an accurate, objective pain measurement, it will be an earth shaker for disability insurance companies. No longer will they be able automatically to turn down legitimate claims because they are based solely on the claimant’s “subjective” report of pain. With a scientific and reliable measure of pain, insurers will have to deal with the reality of such a disability.

Such a measuring tool will also help insurance companies detect true malingerers with a degree of certainty which will write “finis” to their spurious claims. We also welcome this improvement in claims administration.

While we wait for science to catch up on this issue, thousands more legitimate claims will be denied because there is no “objective” way to prove pain.

Hopefully, the end to the uncertainty of subjective pain complaints is in sight.


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Erase Online History At Your Peril

If you have decided not to worry about how your social media antics might affect a disability claim litigation because you believe you could always delete your online history,  you’d better think again.

The ever-developing law on the meaning and use of social media in disability insurance litigation became more defined in a Federal District Court case which found that if and when the case goes to a jury, the jury would be given a “spoliation” charge by the court.  See Gatto v. United Air Lines, Inc., et als, 10-cv-1090-ES-SCM (U.S.D.C., NJ).

A spoliation charge tells the jury that a document that was destroyed by a party, even online, was evidence.  It further instructs the jury that it can infer that the party who destroys or prevents production of a document does so out of a fear that the contents of the document would harm that party’s case.

We warned readers about the dangers of going overboard on social media to impress friends or to express joy at a momentary easing of a medical condition. To Tweet Or Not To Tweet.  Being seen on the Internet doing something you say you can’t do for work, even if you do it for just a moment, can cause loads of heartache if you are pursuing a claim.

Insurance companies will jump on that moment’s indiscretion and try to build it into a mountain.  They will try to take that moment and build it into a 40-hour week, saying that the moment proves you can work at a job just like everybody else

In this case, plaintiff denied trying to intentionally destroy evidence, saying he deactivated his Facebook account because he had received notice that an unknown IP address had accessed it.  He failed to reactivate the account and after 14 days, Facebook, as was its policy, automatically deleted the contents of the account.  Plaintiff tried to reactivate the account after 14 days, but it was too late to save the data.

What’s to be learned from this is what we expressed in our earlier blog - Don’t create a problem in the first place by kidding around or trying to be macho on a social media page.  If you don’t do something silly that your adversary can use as evidence to hurt you, you won’t have to worry about it.

It is obvious that if you are in a litigation to be decided by a jury, the last thing you would want is an instruction to your jury that the jury may infer that if a document (or a video) was not produced by you at trial that you kept it back because of fear that the contents would harm your case, if produced.

With all the heartache a litigant usually has to go through to make good a claim against a disability carrier, the last thing on the list should be to try to redeem a moment’s fun on the internet which winds up being a trial disaster.





Perils Of Technology

Speed and efficiency are great goals in medical practice, but they can’t be at the expense of accuracy, especially when it comes to documenting ERISA disability claims.

We had an experience recently which brought this problem to the fore in a way that was disheartening for disability claimants.   Streamlining medical procedures and reporting is OK, but not when that streamlining leads to pertinent and relevant medical data being omitted from a medical record or to inaccurate and misleading information being included. 

The case involved a leukemia patient who required a heavy drug regimen for treatment.  Such drug use invariably leads to severe fatigue and listlessness.  Yet, when the doctor produced his medical chart for our client’s insurance company, the record reflected an affirmative finding of “no complaint” of fatigue although the patient had complained of fatigue at every visit.

The doctor agreed that fatigue had been an ongoing complaint but that he had not noted it because “it was listed in a pre-established laundry list of possible symptoms which he was required to check off in his computer program for each patient visit.   He didn’t consider this “laundry list” important enough to spend the required time on for each patient.  So, he ignored it.

What the physician didn’t realize is that when the computer program produced a report for his patient’s ERISA insurance company, it reviewed all of the input boxes for the patient and then produced a summary report in which, because no “fatigue” boxes had been checked, stated there had been “no complaints of fatigue” from the client.

Of course this was red meat for the insurer since the claimant was claiming a long term inability to work because of fatigue, among other things. 

We’ve all heard the phrase, much used since computers came into vogue:  “Garbage in, garbage out.”  A computer can only evaluate the data it gets.  Data can be turned into “garbage” several ways:

* The original data can be in error
* A mistake can be made in entering the data.
* A failure to enter complete data.

If the “garbage” record errs in favors  of the insurance company, you can bet the insurer will rely on it.  And that leaves the doctor’s patient with a tough row to hoe, indeed.

In our case, the doctor, when advised of his erroneous report would not change it.  When asked how this report was released, he said his computer program produced the report  “by default” and he was unaware that if the fatigue box was not checked by him the report would automatically print “No complaint of fatigue”.

So, we have a situation in which doctors use technology without being fully trained or understanding it, creating medical records which say things they never intended to say.  A physician who knew his patient constantly complained of fatigue would never write a report saying the patient never had complained of fatigue.  A computer, being a machine, might very well do so.  In this case, it did.

The importance of this occurrence is to teach doctors they should not rely on computers unless they carefully review what the computer reports.  A physician with a computer system must know the system thoroughly.

The doctor must know what the equipment does, how it handles data omissions and what conclusions it draws by default from those omissions.  He or she must also make sure the system works properly and in no way misrepresents the patient’s condition.

Whether a doctor has a computer system to record exam data or still relies on the pen and pencil method, the doctor must remember the Hippocratic oath: “Do no harm”.

Using a computer system to try to speed up delivery of medical services in no way relieves the physician of that obligation.


De-Conflicting Medical Reports

A new Federal rule which would require prescription drug and medical device manufacturers to report what they pay doctors for consultations and speeches is just what the doctor ordered for ERISA insurance claims.

The Centers for Medicare and Medicaid Services proposed the rule which will require the gathering of such data on August1, 2013, with the CMS scheduled to release the data on a public web site at the end of September, 2014.

What has this to do with ERISA claims?  Lots!

The purpose of the new rule is so that the public should know what financial relationship the doctor who recommends a drug or treatment has with companies which supply the pharmaceuticals or medical treatment a patient may need.  This transparency allows the patient to have a meaningful discussion with the doctor about what the doctor is prescribing

The whole point, according to CMS, is to reduce the potential for conflict of interest in the doctor- patient relationship. 

Why don’t courts require the same openness in ERISA litigation?  Federal judges are becoming more and more aware of the potential conflict of interest when a physician makes a substantial portion of his or her income from insurance company exams to determine the validity and extent of claimed injuries or illnesses for which his or her insurer would have to pay benefits.

Why not make insurance companies provide a breakdown of all of the monies paid to a doctor to perform so-called “independent medical exams” along with the doctor’s report?  That would give the court, considering whether benefits should be paid to a disabled employee an insight into the credibility of the physician’s report.

Attorneys representing ERISA claimants have been complaining for years that many of the doctors called upon by insurance companies to examine claimants are more interested in continuing to be paid for reports, than they are in giving honest opinions.  If a doctor’s opinions are not heavily in favor of insurers, how long do you think that doctor would continue to get paid for opinions by insurance companies?

The beginning of the end for secrecy about physician track records began with the U. S. Supreme Court decision in Metropolitan Insurance v Glenn, 128 S.Ct.2342 (2008),when the court seemed to wake up to the fact that there is an innate conflict of interest when medical experts are paid by insurance companies to “independently”  evaluate disability claimants.

Why it took so long for the Court to reach this obvious conclusion is anybody’s guess.  Arguably, Glenn opened the door to allow discovery in this area.  But, to be fair to claimants who are suffering not only from their illness or injury, but also from total loss of income when unable to work, much more light should be shone on the insurance company-“independent” medical examiner relationship so Federal District  Courts can properly value the worth of medical reports in ERISA cases.

What better way than to follow the CMS rule and have each doctor whose report is being considered by the court present the details of the financial relationship that doctor has with the insurance company the doctor examined for?

The details should include:

* How many medical exams the doctor performed for insurance companies during the last two years.
* How much money insurance companies paid the doctor for these examinations during the last two years.
* The percentage of these exams in which the doctor found the insured too disabled to work.
* Any other financial arrangement in which the doctor receives any remuneration from the insurance company.

We can’t see the difference between the conflict of interest which may be generated by a physician being paid for “consulting” or “speeches” and being paid for examining claimants.

Both activities affect the insurance company’s bottom line and are therefore suspect.

When You Need An ERISA Lawyer, Get One

You may not always need a lawyer when making a legal claim, but when you do, you really, really do need one. This is particularly true in ERISA and disability claims against insurance companies. Why?

Because they employ armies of experienced and knowledgeable lawyers and claims adjusters who all have one purpose in mind – to destroy your claim ASAP so they can keep the money your claim represents. It is in the very nature of insurance claims because insurance is a business and all businesses are after profits.

Insurance companies fight claims like yours a thousand times a day.
                      You get only one shot to get it right.

Because fighting claims such as yours is all they do day in and day out, these insurance company minions know ERISA and disability insurance law and how to use this knowledge to try to sink your claim.

That’s why you need an attorney who handles ERISA and insurance law day in and day out. Why should you, as a claimant, use an attorney who is unfamiliar with the law and the procedures necessary to successfully file and prosecute a claim, while your enemy, the insurer, has knowledgeable experts defending it?

Insurance claims, by their nature, are usually hotly contested because insurance companies make money by not paying. Being profit oriented, they have many ways to get around a claim. They study these methods and use them without compunction whenever the opportunity arises.

Some of their common methods are:

  • Getting you to “wimp” out.
  • Subjecting you to a “no see’em” IME.
  • Losing your paperwork.
  • Asking for more and more paperwork.

This is only part of the arsenal insurers use to fight claims like yours each and every day. And, you can be sure that if you make a claim, the insurance company’s natural instinct it to deny it by using any or all of the methods listed above.

Know this for sure: When you make claim, be prepared for a battle to the bitter end.

That way you’ll be neither surprised nor disappointed.





Disability Attorneys Must Be Prepared

As if people with mental problems didn’t have enough headaches, America’s psychiatrists are changing their mental disorder guidebook, according to a recent article by the Associated Press.

This would be the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), published by the American Psychiatric Association. The revision has been in the works for several years.

Many people might not consider this announcement earth-shaking. But the DSM’s definitions define the clinical characterization and treatment of mental problems. Disability insurance companies and school systems usually base their decisions on benefits on how the DSM defines mental conditions and the treatments recommended.

Scheduled for publication next May, the new DSM seeks to capture the current state of knowledge of psychiatric disorders, according to the Association.

Just what effect the new DSM will have on the care and treatment of people with mental disorders will have to await publication of the manual and digestion of its contents by the lay, medical and insurance communities.

One thing we are sure of, insurance people will be all over the manual with a fine tooth comb, looking for new excuses not to pay mental disability claimants, or how to stop payments to some already being paid benefits. How do we know this? Because we fight with these companies every day over claims that are as plain as the nose on your face to everybody, except insurers.

Any attorney involved in a mental disability claim must be familiar with the new DSM and study it. Disability and ERISA lawyers must follow comments on the Guide which are bound to be published shortly after it is published so as to be up on the latest thinking in this field of claims law.

Knowing as much or more about the DSM changes than insurance company’s minions is an absolute must. Disability income insurance attorneys are bound to be bombarded with calls from beneficiaries who are being threatened by insurers with a loss of benefits because of how insurance companies interpret the new DSM.

Like the Boy Scouts, these attorneys must “Be Prepared”.




Doctor "Do No Harm" In An APS Report

The Hippocratic Oath of doctors to “do no harm” takes on new meaning when a physician has a patient with an ERISA or disability income insurance claim.

Unfortunately, medical schools are not known for giving courses in how to complete an Attending Physician Statement (APS) which will satisfy disability insurance companies, particularly as those companies are notorious for not wanting to be “satisfied”.

The APS is a form generally used by disability insurance companies when asking for medical reports on claimants.

In the real world, doctors get many patients who suffer an injury or illness to their body which then leads to an injury to their ability to earn a living. No matter the actual injury to the body, the loss of ability to earn may have a profound effect on a patient’s ability to recover.

Doctors are by definition busy people. They have always worked hard but find their time for patient care even more limited with the trend in recent years toward more government rules and insurance paperwork. It’s likely this trend will continue.

When a disability income client comes to us, one of the first things we try to learn is if the treating doctors understand the importance of complete, accurate records regarding the client’s condition. An APS must not only accurately describe the medical condition, but must also set forth why, in the doctor’s medical opinion, the condition makes it impossible for the patient to perform job duties.

This part of the APS is known as “restrictions and limitations”. Response to this portion of the APS is crucial to any patient’s disability claim even though it does not involve diagnosis and treatment, the usual subjects of medical reports.

Without the doctor’s clear opinion of what the patient can and cannot do vocationally, the patient’s disability claim is almost certain to be denied.

Doctors have to know that insurance companies are not in the business of paying benefits if they can avoid doing so. Insurers and their stable of captive physicians try mightily to find any excuse for not paying benefits. They are experts at it.

One of their favorite ploys is to use a shoddy, ill-considered doctor’s record to shoot holes in a claimant’s case. If a patient loses benefits because of a sloppy report, the doctor is actually “doing harm” to the patient, contrary to the oath.

One example: Physicians should not lightly predict when an illness or injury will be alleviated to the point that the patient will be able to go back to work. People heal at varying rates and an average time for healing includes the fastest and the slowest healers.

If a medical report projects an average healing time, but the patient is a slow healer, you can bet the insurance company will not recognize the difference and the patient will suffer.

Just because an APS asks the physician to provide a “return to work” date doesn’t mean the doctor has to provide one unless he or she is certain of the date. It’s OK for the doctor to say, “I don’t know”, because being some time in the future, the “return to work” date is something they really can’t be sure of.

Insurance companies love to lead doctors to believe they should answer the “return to work” question. Then, if it turns out the doctor was mistaken, the company has an excuse to deny benefits to the doctor’s patient. “Do no harm”. If a doctor is not certain, the doctor should say so.

Physicians are trained to “do no harm” in giving patients the best care and treatment. Doctors should also try their best to “do no harm” when writing an APS about a patient with a disability insurance claim.

If called upon to render a report or APS in a disability case, a doctor must do it carefully after fully considering all of the facts involved. For the patient’s sake, it’s important to take the extra time required to be complete and accurate.

A mistake can cost a patient years of benefits needed to feed the family.




Insurance Noses And Faces


Insurance companies, with their inflexible “no pay, no way” attitude towards disability income benefits, are cutting off their own nose to spite their face. Insurers have long ago adopted the basic philosophy that claimants are malingerers and cheaters and not really people who are hurting

Support for this view was recently revived by a guy named Rabbat who finally gave up his heroics and applied for long term disability benefits. Naturally, his disability insurance carrier turned him down despite strong evidence that he was telling the truth about his disability. See Rabbat v. Standard Insurance Company, 2012 WL 4504557 (D. Or.).

Mr. Rabbat had been afflicted with Familial Mediterranean Fever since his early teens. This rare affliction attacks the joints making them very, very painful. It is also a condition which worsens over time.

He went to work for the plan employer in 2005 and worked through his pain until October, 2008, when he went on short term disability. In November, 2008, he applied for long term benefits.

Despite Rabbat’s doctors, who had treated him for years, reporting on his battle with his disease, Standard turned him down because its flunky doctors, who had never laid eyes on Mr. Rabbat, said he could work. The court, which had no conflict of interest, found for Mr. Rabbat.

Why we say insurance companies, in fighting cases similar to Mr. Rabbat’s, are cutting off their nose to spite their face is that there are probably tens of thousands of people at work right now who could rightfully claim disability benefits but who choose to work through the day.

Standard’s attitude in the Rabbat case clearly discourages this exemplary type of behavior. Using their commendable behavior against them to deny benefits to employees when they are finally forced to give in, discourages others from trying to work through their disability.
We have written about this before
Stiff Upper Lip.

What insurance companies overlook is that every day a person works, even though disabled, is another day the insurer did not have to pay benefits. When you multiply these days by tens of thousands, it comes to a tidy sum, even for an insurance company.

The 7th Circuit Court of Appeals said it best in another case in which an employee claimed to have fought through a disability for a long time before giving in, Hawkins v. First Union Corp., 326 F.3d 914,(7th Cir,2003):

“…A desperate person might force himself to work despite an illness that everyone agreed was totally disabling... Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working…”

Insurance companies should give such hardy souls a medal rather than a hard time!





Disability Insurance Discouragement

Some short term disability insurance carriers seem to have become enamored of a new excuse for stopping disability benefits:

                                       “You were fired so you lose your benefits.”

We had just completed the task of convincing a carrier that their policy gave it no authority to stop benefits because a covered employee was terminated, when we took on another case on behalf of another policyholder against another carrier on the same issue.

Is this the new ploy companies are adopting to discourage disability income claims?

This tactic is patently ridiculous. If this insurance company interpretation of policy language is accepted, what protection would a policy offer?

* You become employed and as part of your employment, you are made a beneficiary of your employer’s ERISA benefits plan.
* You become disabled and can’t work.
* You start receiving short term disability benefits.
* You are terminated by your employer.
* The insurance company stops paying benefits because your employment was terminated.

It would be almost comical if it were not so serious for the disabled employee and his or her family. Most likely they are without income and have few resources to meet their daily living expenses except for the benefits they are receiving. On top of that the breadwinner is injured or ill, making the future uncertain. It is at that point the insurance company piles on by making the ludicrous claim that because the employee was fired while receiving benefits, the employee is no longer covered and benefits are halted.

What a Catch-22 for an employee!

* An employer pays a premium based upon the insurer’s benefits experience with the employer.
* An employee gets sick and can’t work.
* Insurer starts to pay disability benefits.
* Employer, worried about premiums going up, fires employee.
* Insurer says employee no longer works at employer and is no longer eligible for benefits.
This tactic would surprise someone who doesn’t deal with disability insurance carriers all of the time. But, we who deal with them daily, hardly react because we see insurers weaseling on claims all of the time. If there is a chance the company might discourage the claimant, it tries to do so.

Misinterpreting the language of policies is a major weapon in the disability income benefits denial arsenal. Others are:

* Losing claim paperwork.
* Dubious medical reports from highly paid doctors who don’t even examine the claimant they are reporting on.
* Following the claimant with video cameras.
* Overlooking facts supporting the claim.

The list could go on and on. Suffice it to say that a person with an ERISA claim should protect against these disability insurance ploys by talking with an attorney who knows them and deals with them all of the time.
Don’t give up because the insurance company makes it tough for you.
Making it tough is their first line of defense. They will try it every time.












Feed The Canary To The Cat?

 It is amazing to us how blithely some Washington politicians suggest that turning the health care market over to “for profit” insurance companies is the best answer to the nation’s health care problems. If they spent a few days in the “denied claims trenches” with us, they might develop a different viewpoint.

“For profit” insurance companies are in the business of making profits for their shareholders. Policyholder “protection” is just the way they make those profits.

We see it every day when disability income insurance companies deny perfectly valid claims with perfectly unsustainable excuses. Insurance companies’ first line of defense is to deny, deny, deny. Many times this tactic is enough to discourage a policyholder with a perfectly valid claim. (See “wimp”). Result: The insurance company bottom line gets the benefit of not paying the claim.

After that first line of defense, we see, delay and obfuscation with paperwork, requiring proofs that are impossible to get and are not required by the policy, interpreting language to suit the insurer’s needs and, finally, the so-called Independent Medical Examination (IME).

While the reported cases in ERISA and disability income insurance have favored the insurer because of the fear that a claimant’s doctor may have a slanted view, insurance companies actually have developed stables of servile doctors with slanted views who never seem to find a disability that they can’t find a way to overlook.

While the law as it stands still gives no more weight to a treating doctor’s diagnosis, Federal judges are realizing more and more that an IME should be scrutinized carefully.  Courts have come to realize that an Independent Medical Exam may be “independent” in name only.

Add to this the recent $40 million state settlement with MetLife where the company scrupulously searched for info to stop making benefit payments it was already making but didn’t review the same records to discover when it should start making payments to beneficiaries who were unaware of their entitlement. Not only that, MetLife didn’t make the required escheat payments to the states on these unclaimed benefits.

Also, hark back not too many years and you come up to the Unum settlement with the states in 2004 in which Unum’s totally unsavory system of dealing with disability claims was revealed for all to see.

Why, oh why would anyone, even a Washington politician, have any desire to turn the welfare of sick and elderly Medicare beneficiaries over to private insurers?

Medicare is designed to make older people’s lives a little easier when they become sick or disabled. Private insurance companies are designed to make profits for shareholders.

And, never the twain shall meet.



We're Not Supposed To, But...

We know we are not supposed to blow our own horn in a blog, but we are so proud that we must tell you what recently happened to us:

We have been listed on a lawyer ranking web site for some time now, AVVO, and never paid much attention to it. We just posted our picture and minimal info on our background. 

At the urging of one of our partners, we were prevailed upon to try to get some idea of what past and present clients thought of our legal services.

On 6/29/12, we wrote a simple email to 15 former and /or present clients, asking for their

view of the services they had received:

Hi (Name of Client) —
I hope you are well.
I have a favor to ask.
I wonder if I could ask you to contribute a client evaluation of me to AVVO at the link below:
(Link Omitted)
In the internet age, these things are very important to lawyers, so your input is greatly appreciated.
Thanks!  Mike.

   To our surprise, as of today (7/19/12), AVVO had received 14 responses out of the 15  we had requested.

All we did was send out the above email to some clients and former clients and ask for their evaluation of us and our law firm.  There were no other instructions, follow-up calls or communications of any kind.  The client-respondents were strictly on their own.

In fact, we didn’t know there were any responses until AVVO notified us that 9 client responses had been received within 3 days of our request.  We looked at them on the AVVO web site and saw them for the first time.  We really were overwhelmed by them.

What these responses showed us is that clients do appreciate and understand the time and effort we put into a case on their behalf.  People, even if they are clients, are still people and they appreciate being treated with respect by lawyers and office staff.  Prompt response to questions and concerns helps relieve client stress and makes the lawyer-client relationship a more positive experience for both.

This is particularly true for disabled clients who are typically unable to work and whose lives are dependent on the success or failure of their disability claims. 

Although most lawyers always strive to do their best for clients professionally and in the day-to-day business of legal representation, it does wonders for the morale of the attorney and the staff for clients to show their appreciation as they did for us and our staff when we asked for their feelings about us in an email. 

Thank you, thank you, thank you!

Insurers Like Psych

The question of why mental illness is treated differently from physical illness was raised in a recent California case, Harlick v. Blue Shield , 656 3d 832 (9th Cir. 2011).   The case turned on the wording of a California statute which is not relevant to the purpose of this post.

What is most relevant is the reasoning behind the insurance industry’s effort to save itself money by classifying mental illness as less than physical illness.  Those who have had first-hand acquaintance with mental illness know that there is very little, if any,  difference in the disabling factor between the two.  If your mind can’t cope with the duties of your occupation, it is as if you have a physical disability which prevents you from performing.

Psychiatric disabilities can sometimes be cured in weeks or months and sometimes not for years.  The same is true of physical disabilities.

Yet, insurance companies frequently limit their obligation to pay LTD benefits to two years while physical disabilities will be paid for the term set forth in the policy. 

This has led to insurance companies developing a new tactic – all employment disabilities are caused by psychiatric problems rather than psychiatric problems being triggered by physical disabilities.  Now that the 2-year limit on paying for disabilities in disability income policies has become more or less standard, it has become the preferred denial “go to” for insurers when nothing else jumps right out at them.

If there is any psychiatric involvement at all in a disability income claim, you can bet your bottom dollar that the insurance company will be doing its darndest to say it was based upon a psychiatric disorder.  These days, it has become almost a knee jerk reaction.

So, if you are hit with this defense, whether as a claimant or a lawyer, don’t accept it without scrutiny.  The stakes are too high to take the carrier at its word. 

Insurance companies are not all the same and don’t act the same, except in one regard:

They hate to pay claims!

Looking Honestly At Opioids

A recent article in the New York Times pointed out a serious problem for disabled people seeking to alleviate pain – Opioids!

Narcotics, such as Percocet, Vicodin and Oxycontin, are strong and may be addictive.  Yet, they are being prescribed more and more for injuries for which they are not appropriate. In effect, they are “overkill” and pose a danger to the patient.

The NY Times article tackled the difficult challenge of health care these days – cost.  One insurer, Accident Fund Holdings, claims that when medical care and disability payments are combined with the use of a narcotic like Oxycontin, the cost is nine times higher than when the injury is treated with a non-narcotic.

Accident Fund put the average insurance cost of a disability claim at $13,000, but when  Percocet-like drug was prescribed, the average cost of the claim tripled to $39,000.  When a drug, such as Oxycontin, was prescribed, the average cost of the claim shot up to $117,000!

This increase in costs is attributed not only to the higher cost of the drugs, but also to the common side effects, such as drowsiness, lethargy and addiction.  Such side effects do not facilitate a person trying to overcome a disabling illness or injury.

Some of these consequences can be attributed to the drug companies which aggressively market their products while keeping the downsides of taking them under wraps.   Others can be attributed to the public which believes the ads and wants relief NOW and damn the consequences.

Perhaps the most important factor, often overlooked, is that health insurers are much more willing to pay for cheap, generic pain medications than for the costly therapy which is likely to be more effective in helping the patient to recover.

The problem is that such an approach is short sighted and leads to claimants whose symptoms have increased in severity and in length of disability because of opioids.

Some insurers are finally seeing the light and trying to limit the use of these drugs to only cases in which they are appropriate.

 States, such as New York, California and Washington, are proposing rules to curb unrestricted use of these drugs, to cut down on the possibility of addiction or other unwanted effects.

Use of opioids can have serious, unwanted consequences.  It’s time doctors, insurance companies, government and people with disabilities took a good, long serious look at them.

Note:  In response to this problem, Blue Cross Blue Shield of Massachusetts just announced that as of July 1, it will no longer permit physicians to write opioid prescriptions for more than 30 days without a mandatory review by the insurer, except  in cases of chronic conditions, cancer or for the terminally ill.



This Proof Is Not In The Pudding

The Social Security Administration has paved the way for the courts on the issue of “malingering” and we can only hope the courts follow its lead – and quickly. SSA evaluated so-called “symptom validity tests”, used by many insurance companies against disability income claimants and found the tests not worth the money they cost.

A “symptom validity test” consists of a series of written questions, the answers to which are supposed to indicate how well a patient is expressing his or her symptoms to the test giver. The answers to one particular section of the test is supposed to indicate whether the patient is “malingering”, according to the test publisher. (According to a Wikipedia entry, the author of this test worked mainly for insurance companies in personal injury cases).

Insurers deny on the basis of these tests alone. See, for example, Smith v Pension Committee of Johnson & Johnson, 2012 WL 1918822. Should the test indicate that an insured is out of the test’s “normal” range, the insurance company claimsthe insured is not cooperating and labels him or her a “malingerer”. We represented a client in just such a situation about a year ago.

Although the tests may be useful as one part of a battery of diagnostic tools when evaluating disability claimants, insurers are quick to jump on the “symptom validity test” results alone when it gives them ammunition to deny a claim.

For too many years, disability income insurance companies have used for-hire doctors who give “symptom validity tests” to knock out perfectly valid disability income claims on the ground that the claimant is “malingering”. What is overlooked many times by a court is that the for-hire doctors have more reason to fudge their reports than do the people being tested. Many of these doctors make hundreds of thousands of dollars a years working for insurance companies. How long do you think they would work for insurers if they found many claimants were entitled to benefits?

The SSA is heavily involved in determining the same issues disability income insurance companies have to determine – whether an illness or injury disables a person enough so that the person is unable to perform his or her occupation. The SSA doesn’t baby claimants. Only a third of original applications are approved.

So, when SSA says the “symptom validity test” is not helpful in determining malingering, why don’t insurance companies “own up” and do the same?

And, if the insurance companies won’t do it, why don’t the courts?



Is This Our Last Fat Chance?

The most insidious threat to the entire U.S health system is as plain as the nose on America’s face. Obesity. We are getting fatter and fatter and along with that fat comes heart disease and diabetes and a whole slew of “baddies” too numerous to mention.

Skyrocketing medical costs to treat the results of the overeating epidemic endanger Medicare, Medicaid and Social Security, so obesity statistics of this sort are most unwelcome. But, these statistics do sound an alarm which calls for immediate action.

One of the main reasons why obesity is getting a lot of attention now, according to a recent report by Reuters, is the recent finding that medical spending on obesity is actually double previous estimates and obesity costs exceed the medical costs of smoking.

The outlook for obesity is not promising. Overeating has become an important profit center for fast food chains, beverage producers and large farming corporations. In this “profits today and forget tomorrow” world we live in, little will be done voluntarily to cut off this devastating “caloric” avalanche. Will America’s health and insurance systems drown in a sea of fat?

When the nation decided to send a man to walk on the moon, we did it in 10 years. We have improved our medical knowledge to the point that people are living years more today than they did in 1960. Even “killer” smoking has been curtailed. These advances came because of a concerted effort by researchers, medical practitioners and government to conquer these medical scourges.

Why is obesity not being tackled with the same fervor? We know that habits are easy to form but hard to break. We know that food commerce puts constant pressure on people to eat the wrong foods that lead to obesity. Where is the leadership on this modern disease which stands a good chance of wrecking our health system?

It is easy to make jokes about “fat people”. It seems easy enough for some of us to cut down on food to make a dent in the waistline. Obviously this is not the case with many, many people as obesity becomes more of a problem each year. Most people do not want to be obese. If they could choose to be otherwise, they would.

If we are going to tackle this problem before we get crushed under its medical and financial weight, the time to do it is NOW! Medicine, the drug industry, the food industry (yes, you McDonalds) have to stop doing business as usual and opt for business that promises to curb low nutrition, high calorie food consumption, rather than sneak more and more calories into what we eat.

It will be an uphill fight. In a free country, it is hard to put limits on what a person eats. It is also hard to pay for the medical disaster that person eats his or her way into. Maybe the answer is a national motto which will magically turn a person off when faced with a “double” anything meal.

We are eating ourselves into the grave, but only after we squeeze the juice out of the health system. Allied medical industries have cured smallpox, polio, and diphtheria; have made and installed new knees, hips and are working on spinal parts, all through strenuous and united efforts.

This is the kind of effort obesity requires now before America sits down to dinner and can’t get up again.

(Your thoughts on how to attack this problem would be welcome. It is a tough nut.)

Being Human In The Doctor's Office

A recent post about an upcoming book got us thinking again about the relationship between doctors and patients, especially when a disability income claim is involved. DI claims require doctors to do more than just treat the patient. They must also be aware of the requirements of the patient’s occupation and have an opinion about how the patient’s illness or injury affects the ability of the patient to perform the duties of that occupation.

The post in Kevin Pho’s medical blog discussed how patients should conduct themselves in doctor’s offices with both the doctor and the doctor’s staff.

To sum it all up in two words: Be Nice. After all, it’s obvious to most of us that one of the last places we want to be disliked is a place where our health and well-being someday may be on the line.

One of the most potent paragraphs in the post was “Remember That Doctors Are Human Beings”. The paragraph went on to point out that doctors have personalities, families, feelings, good days, bad days, and social lives. Because of their duties, they often miss their kids’ soccer game, parent-teacher meetings, their own medical appointments and many social events that the rest of us take for granted.

So, Be Nice!

But, being nice is a 2-way street. The doctor and his staff should also be nice to patients, especially a disability income insurance patient who is probably battling a monster insurance company with no income and an uncertain working future.

Doctors are used to making reports about a patient’s medical condition and sometimes offer a prognosis which they and their patients believe to be reasonable, both of them understanding that prognoses are just educated guesses.

But, when reporting to an insurance company on a disability insurance claim, more care is required. A physician’s informed guess will become the law of the claim, if it suits the insurance company’s interests and that guess will be used against the patient’s interests no matter what the doctor says about the patient’s actual condition thereafter.

What we mean to say here is that doctors have to be careful about what they say to insurance companies when reporting on a patient’s condition or prognosis. Physicians have to understand that an insurance company is looking to find a way NOT to pay on its policy. With that thought in mind, doctors can see how important their reports are in a claim based on physical or mental disability.

Insurance companies have a natural tendency to think that all disability income claimants are “dogging” it. It is part of the insurance industry culture. So, we can see that if a disability end date is predicted by a physician and it doesn’t work out that way, the patient is stuck with the prediction because the insurer will be sure throw it up at every stage of the proceedings.

One trick insurers have is putting a small date box for the answer to the question of when a patient will be able to go back to work. Most physicians assume the company wants their best estimate if things go normally, so they answer with just a date in the form the box allows. Truth is, though, the insurer just wants a date so that if things don’t go normally and the patient still can’t work when the date passes, the insurance company can turn the screws on the patient by throwing the date up to the patient time and time again in the claims battle.

Patients should treat doctors and their staffs as human beings because they are and have the same needs as we do.

Likewise, doctors should know that insurance claimant patients are usually in the fight of their lives with insurance companies. They need to take the extra time and care to provide complete and accurate medical information, indicating clearly that they don’t know the answer to a question if they don’t.

Loose lips sink ships. They can also sink a patient’s legitimate disability claim.




To Tweet Or Not To Tweet?

  “That’s a great picture of you on Facebook, dancing on the table. We really got a kick out of it. Oh, and by the way, your disability insurance benefits are terminated as of last Friday.”

This is the reality of social media in today’s disability insurance claim wars. Photographs and information that you post online can be seen not only by your friends and family, but by everyone, including insurance claim defense attorneys and adjusters.

Anyone with an adversary out in the great beyond has to be aware that when they go online their life becomes an open book, particularly when they post on social media, because this is when they put on a “happy face” for friends and family.

Beware, insurance companies and their minions are on the prowl for anything posted by or about a claimant which may in any way throw a disability claim into question. Once an insurance company sees such a post, you may be sure it will try to use it to torpedo a claim.

Insurance companies are not behind the times. They turn to social-networking sites and social-media data to find out all they can about their policyholders’ behavior and activities. They are looking for any excuse to deny claims.

Fun is fun and everyone enjoys a good laugh. But, it’s not a hoot when an insurer takes a 30-second video clip and tries to turn it into a lifetime of no benefits for you. A truly disabled person may be able to perform certain functions normally for a minute or even longer, but can they perform that function 8 hours a day, 5 days a week? Insurance companies just need a 30-second video clip to ignore that question and go for the jugular of your claim.

Getting benefits from insurers is difficult enough without adding that 30-second video to the mix. Be aware that what you or your friends make public, is public forever and insurance companies are constantly on the prowl for anything that will make a claim look bad.

If you wouldn’t want to tell or show an insurance claims adjuster something, don’t post it on Facebook, Twitter or any of the other social networks.

There is a very good chance that it will wind up in your insurance claim file.

So, think before you post. The claim you save may be your own.





Last October we warned disability claimants about a favorite ploy of insurance companies – taking surveillance videos of claimants on the day they are scheduled for an IME. Insurers love videos because they find that if they can catch a claimant doing anything he or she says they are unable to do, some courts are impressed enough by such evidence as to uphold an otherwise shaky benefit denial.

This is especially true if the court feels constrained to give discretion to the plan administrator which is very often the same insurance company which would have to pay the claim if it is upheld. For more on this see.

We like to call this the “Gotcha!” ploy. If insurance companies see you make what they think is a wrong move on video tape, your benefits come to a screeching halt.

Don’t misunderstand us. We don’t have any argument with insurance companies gathering evidence against a faker who tries to collect disability claim benefits fraudulently. Insurers should fight these claims tooth and nail.

On the other hand, insurance companies should not, as they seem to, consider everyone who makes a claim a faker.

A recent case illustrates how far insurance companies will go to use a video in an attempt to put the lie to a claim of disability, In Maher v. Massachusetts General Hospital Long Term Disability Plan, 2011 WL 6061347 (C.A.1 (Mass.))) , a registered nurse claimed she had to stop working because of chronic, disabling stomach pain and the side effects caused by the strong amounts of narcotics she had to use to control the pain. Although her doctors were unable to pin down the exact cause of her pain, they all were certain that she actually was suffering the pain.

Nurse Maher said she could perform some activity from time to time, but said she spent most of her time in bed. After paying benefits for 5 years during which the company videotaped her for 6 days in 2002, 3 days in 2005 and 10 days in 2006, the plan administrator, Liberty Life Assurance of Boston, yelled “Gotcha” and stopped her benefits.

On 10 of the 19 days during which she was photographed, she engaged in no activity. On the other 9 days, she was photographed sitting or standing outside of her home. Out of the entire 90 hours she was before the camera, there were about 15 minutes when she was seen carrying a bucket or pot and 30 minutes when she was seen playing with her children.

Surprise, surprise! The insurer’s doctors (who had never examined Nurse Maher although she offered to submit to an exam) all jumped on the video as proof that the claimant wasn’t disabled and that she could reliably perform a full-time sedentary job.

After careful analysis the 3-judge court found for the claimant, but split on the remedy. Two judges ordered the matter sent back to the District Court, which had found for the insurance company, for further consideration of the claim, while the dissenting judge felt the denial of benefits was so wrong that the court should immediately reinstate them.

In supporting the claim, the court approved language in a case involving a Social Security appeal, Carradine v. Barnhart, 360 F. 3d 751(7th Cir. 2004), where the court found there is a sharp difference between a person being able to perform sporadic household and family duties and being able to work 8 hours a day for 5 consecutive days of the week).

Although insurance companies benefit big time when they can cut off a disability income claim midstream, they should realize it is not a game of “Gotcha”. Real people are hurting and their families are suffering.

It is not any kind of game at all.






Hope Springs Eternal...

We come to the end of another year and nothing much has changed for disability income insurance claimants.

* Insurance companies are just as focused on denying claims as they ever were.
* Disabled policyholders are still put through a “meat grinder” when it comes to trying to establish a claim.
* Insurers maintain their “gotcha” attitude, nit picking at every little item they can lay their fingers on to try to build a case for denial.
* None of the big boys – UNUM, Prudential, MetLife, Cigna seem to be improving their claim “approval” scores.
* “Independent” Medical Exam (IME) doctors still mainly feed at the insurance company table, making it extremely unlikely that they are “independent”.
* People who earn a living by working or in the professions still are getting short shrift from insurers at the worst time in their lives – when they become disabled and have no income.

With all of the advances in technology over the past dozen years, one would hope for even a smidgen of an advance in the social outlook of insurance companies vis-a-vis their insureds.
No such luck. The ages old insurance battle is still a battle.

What we can do about it is what we have always done about it – give our clients what we see as the best legal advice and help and as much moral support as we possibly can.

What we can hope for is a realization by the insurance industry that unreasonable reluctance to pay disabled policyholders, who are down and out, what their policies call for, is immoral and not in their long term best interests.

A New Year brings new hope, forlorn as it may be.


The Personal Touch

The personal touch.  We hear about it all of the time, but what exactly is it?  The question is particularly pertinent when one practices disability income insurance law.

A recent post by Dr. Len Schwartz on  the Pro2Pro Network, cite, reminded us of the little things we can do as lawyers to make our clients feel better about us and for them to have more confidence in how we handle their matters.

Dr. Schwartz, who has  a wealth of ideas for how small businesses and professional practices can raise their “notice” factor, suggested to his followers that they make a first visit nighttime call to a new patient or client, asking if he could enlarge on or clarify any material they had discussed earlier that day.

He pointed out such calls would have two primary effects:

One effect would be to stimulate word of mouth about you.  (After all, who ever heard of a lawyer taking the time to be certain a new client understands what is going on?)

The second effect would be an opportunity to get the relationship off to a great start.  It would pump up the relationship and give the lawyer an opportunity to greatly improve the connection with this client.

The suggestion by Dr. Schwartz reminded us of the rare experiences we have had with doctors and dentists who had the interest and courtesy to call us the evening after
a painful or long procedure to ask us how we were doing.

Just the thought that this professional, who is very busy, took the time after a long and busy day to inquire about how we were feeling, put that professional head and shoulders above the others.  The doctor took the time to call, ergo, he or she really cares!

This resonated with us on two levels.  The first was that lawyers don’t do this with long-time clients, let alone new ones, even when they have discussed a complicated legal question during the day’s visit.  From our own experience, it struck us, on reflection, that no matter how well we thought we understood the topic of discussion, when given time to think about it, further questions came to mind.

We all have had unpleasant medical or dental experiences.  Sometimes, though rarely, a dentist or doctor will call in the evening of such an experience to ask how we are doing.  When that happens, the rough edges of the day’s experience start to smooth and we have a warmer feeling toward the doctor or dentist who calls. We think- he or she cares and wants to help.

Why shouldn’t the same apply to lawyers?  Our work doesn’t usually deal in physical pain.  But, most of the time there is a load of mental pain and anguish for our clients.  Why wouldn’t our call to a new client or an older one after a conference, with an offer to clarify any questions they might have, have the same value to that client?

Attorneys should develop this personal touch.  When they hear the gratitude of clients for taking the extra time to try to help, it will make them feel better about what they do and how they do it.

 If an attorney needs more reason to make that call, the lawyer can be sure the client will talk to others about the call.  And, that can’t hurt.

However, there is one caveat:  Make certain the client knows you are NOT billing them for your time on the call!


                                                       See  More on Who Mike Is and What He Does


Don't Fish For Disability Trouble

Life is really strange sometimes. We were reading the paper last Sunday when we came across an insurance company advertisement which struck us as relevant to the insured as well.

The full page ad for Chubb Insurance pictured a lone fisherman in a rowboat placidly fishing on a quiet lake. His back was to a nearby waterfall towards which he was drifting. The caption was “Who insures you doesn’t matter. Until it does”. The unwritten message was “Buy your insurance from Chubb or you may face consequences when a claim made against you.”

It really caught our eye because it applies as much to what we try to tell claimants as it does to what the insurance company tries to sell, i.e., “Disability income insurance claimants don’t need experienced legal help, until they do”. Unfortunately, by then it may be too late.

We sound this warning time after time, not just because we are in the business, but because having done disability income claims work for 30 years, we know most all of the pitfalls and traps set before a claimant by insurance companies. (They always come up with new ones which even we haven’t seen yet).

The worst part for claimants is that the biggest trap is laid right at the start of the claims process. While most people, including attorneys not experienced in ERISA and disability income claims, believe an initial claim form is just a notice that a claim is to be made, in reality, the first disability claim form must be accurate and contain complete information necessary to support such a claim.

Failure to properly notify the carrier of a claim will certainly lead to a denial of the claim and be used by the insurer to attack the claim throughout the appeal proceedings. Any misstatement or omission will be thrown up again and again by the company in an attempt to impugn the claim. Full details and accuracy are a must, starting with the first claim form.

A checklist of data which should be included, is:

* Complete details of the injury or illness upon which ther claim is based.
* Complete description of the claimant’s job duties.
* The claimed medical reasons why claimant can no longer perform those duties.
* Full hospital and physician reports to support the claim.
* Occupational testing which supports the claim.

Leaving out or making a mistake on any of the above will be cited over and over throughout the proceedings as proof that the claim is unfounded and should be denied.
It is difficult enough to try to establish a disability income claim. Why make it even harder by giving the insurance company a home run on your first pitch?

Just as the insurance company advises (although unwittingly):
You don’t need an experienced disability claims lawyer…until you do!






An IME Means Camera Time

You might be very happy when an insurance company asks you to undergo an IME. An IME (so-called “Independent” Medical Exam) means that, a live doctor will look at you, examine you and talk to you, before writing a report to the company which usually says you are not disabled.

 However, you should know that on the day you are to present yourself for the examination, Big Brother (your insurance company), will likely be watching you on camera, waiting for you to make a false move they can use to try to scuttle your claim.

How do we know that IME day is likely to bring out the video camera? Because video surveillance of claimants is expensive and insurance companies don’t want to waste money sending a surveillance unit out when they are uncertain about whether you are home and, if you are, whether you emerge or do anything they can photograph during the time they are there.

But, when an IME is scheduled, the insurer knows that you will have to come out of the house to go to their doctor, so if they have a unit at your home, they know they are going to get some video of you in action. And, they hope their camera will catch you doing something they can use to argue that you are fit to work so they can stop paying benefits.
It doesn’t take much for an insurer to claim you can do some kind of work. For example, if they see you lifting anything, they will claim that you are fit to work on a loading dock.

Most courts are smart enough to realize that if a person is caught on film for a minute, doing something he or she was not ordinarily able to do, it doesn’t mean that person can do the task over and over for an hour, a day or a week. This is especially so if the person has presented solid medical evidence of an illness or injury which clearly would prevent him or her from doing so.

Given that an IME may be anything but “independent”, a client should be prepared to meet whatever obstacles are put in the way on examination day. The claimant should assume that the examining doctor, hired by the insurer, is not out to do the claimant any favors. The doctor is out to shoot down the claim if at all possible. And to some doctors “possible” stretches all the way to the stratosphere.

But, it is also true that sometimes a picture can appear to be compelling evidence even it does not truly reflect the reality of an impairment. The point is: Be aware that you are fair game for surveillance, especially when the carrier knows where you will be and when you will be there.

IMEs present the insurer with an ideal opportunity to spy on you and you can assume that they won’t pass up the opportunity.

What claimants can do to level the examination playing field is:

* Bring a witness to the exam and have the witness take notes of the entire procedure.
* Bring a good watch and write an exact time line of the visit, from the time you arrive at the examination site to the time you leave.
* The notes should contain the exact length of time each phase takes, i.e., waiting time, interview time, examination time, discussion, exit time.
* Write out a complete description of the IME as soon after it concludes as possible, when your memory is still fresh.
* Make a note of the name and occupation (medical doctor, physician’s assistant, registered nurse, nurse’s aide, technician) of each person who conducts each part of the examination visit (welcome, history, interview and review of your medical records, testing, and actual examination, detailing what is actually done by the examiner).

Your witness’s and your notes can be used by your attorney to keep the examining doctor’s testimony accurate, if there is a trial. If you don’t keep accurate and timely notes, much of the detail of the visit and the examination will be lost to memory. That situation would leave the courtroom playing field to the IME doctor and you have to know that that person is not inclined to do you any favors.










The Client-Patient Comes First!

Although doctors and lawyers handling an injury claim for a client-patient should always cooperate, disability income insurance claimants have a most pressing need for ongoing and speedy communication among their medical experts and attorneys. Disability income claims require medical reports that meet special standards and must be filed within strict time limits.

In view of these constraints, it is amazing how many doctors and lawyers can’t seem to get along.

It’s common knowledge that lawyers and doctors, as a class, generally don’t like each other. Each profession has had some bad experiences in dealing with the other, particularly in the area of medical malpractice lawsuits, but that’s no reason to shortchange a claimant-patient, locked in battle with an insurance company. By not helping each other to understand the important parts of a claimant’s case, shortchanging is exactly what the professionals may be doing to their client-patient’s disability income case

Does anyone doubt that the lawyers and doctors, working on the defense for the insurance company, coordinate their efforts to try to put their best foot forward for their client? Why shouldn’t a claimant’s doctors and lawyers be able to work together to present the best case for their client?

The basic problem seems to be that the claimant’s doctor and lawyer are not employed and paid by a single entity, as are the professionals hired by the insurer to defend against the claim. Without this unitary control exercised by the insurer, who is paying them, professionals are subject to their past experiences and prejudices and, sometimes, one profession finds it difficult to cooperate with the other.

It can reasonably argued that an attorney who has spent the best part of his or her professional life reading and interpreting insurance policy language and dealing with insurance companies, is best qualified to know what is important and necessary to include in a disability income claim submission to the insurer.

On the other hand, doctors are clearly best qualified to make medical and psychiatric findings and to produce the necessary medical reports required by insurance companies.

With the expertise of each profession clearly established, and both having the same client-patient, why shouldn’t they be able to work together to present their client-patient’s claim in the best light?

Both professionals should want to do the best for their client-patients. In actuality, they don’t many times, because they view the needs of the case from their own medical or legal standpoint only and do not understand the other profession’s view.

Doctors and lawyers seem to have no patience or inclination to take the time to understand or to trust the judgment of the other profession. Because of this, client-patients do not, in some cases, get the full benefit of the professional knowledge and experience they need

Both professions should understand that the other is busy and overwhelmed with paperwork. Extra time is not usually available to either. Any unnecessary request, one to the other, should be avoided.

But, in the interests of the client-patient, they must communicate. Mistakes or ambiguities in a medical record or report can be fatal to a disability income claim and leave a patient to face a handicapped future without income for the patient or the family.

The attorney must take the time to explain clearly to the doctor what questions the medical or psychiatric reports must answer to meet the requirements of the patient’s insurance policy.

If the lawyer and the doctor retained by the claimant to press his case before the insurer don’t do their jobs properly, who will do it?

If the doctor and the lawyer approach each other in a considerate, respectful manner, there should be no problem in doing their jobs for the client-patient in a professional way. If the doctor and lawyer approach each other with a chip on their shoulder, there is a big problem.

The disability insurance client-patient has enough problems dealing with the insurance company. That’s why the professionals were retained. It is incumbent upon them to drop the “attitude”, if any, and get on with the work they were hired for.










Give a Little TLC

In our work, we read a lot of case reports, articles, blogs and treatises on insurance. Most concern the latest legal decisions and what they mean to insurance litigation; many concern settlement procedures, buyouts and other practical aspects of pursuing claims against insurance companies.

But, very few, if any, are written from the point of view of the plight of the actual policyholder – the person whose righteous claim has been denied. What goes on in the mind of the person who truly believes he or she has met the requirements to obtain benefits, but is blindsided when the insurer turns down the claim?

And, when we say “met the requirements”, it means that some kind of personal disaster has befallen the policyholders, usually affecting the very basic elements of their lives. After all, people usually don’t buy personal insurance except for life, health, disability income and similar life-altering happenings.

How do these people cope?

First and foremost, if they have a disability which prevents them from working and bringing home a paycheck, they need financial support for food, medication, ordinary living expenses for their families. This should be understood by everybody. All of an insured’s time and energy go into keeping body and soul together for the family.

The stress created by such a situation can be overwhelming even for a healthy person. For people suffering from a physical or mental disability severe enough to prevent them from earning a living, the stress is devastating. Pile a questionable insurance company claim denial on top of this package of woes and the outlook is even grimmer for the claimant.

The point we are driving at is that everyone involved on the claimant’s behalf must be very aware that the claimant needs some TLC from the people in their corner, even if those people are not in the habit of offering TLC.

Doctors and lawyers are accustomed to being deferred to in their everyday practices and are, maybe, due some acknowledgement for their importance in many people’s lives. But, when it comes to denied insureds whose very financial future and wellbeing are threatened, they must find some extra TLC to help carry the people they serve through the crisis.

As busy as professionals are, we have to find that little extra bit of time to take a call personally and talk to a client or patient when the world seems at an end to them. Such a sign of their doctor’s or lawyer’s particular interest in their case may do much to help give them the strength to go on.

From the denied claimant’s point of view, the situation is extreme. No job, no money and only one hope – that the lawyer and the doctor will be able to get the insurance company denial turned around. This is a large responsibility calling for skill on the part of the professionals to get the job done.

The extra effort we are calling for here is not in a professional sense. Doctors and lawyers, as a class, go all out professionally for their clients and patients in all matters. The extra effort required for denied insurance claimants is for the professional to be understanding and supportive through the claimant’s tough time. Find the time and energy to give a little TLC.

Being aware of the stress your client or patient is suffering is half the battle. Doing what you can to alleviate the stress is the other half.


Addiction Is A Disability

  Many people are not aware of it, but addiction to drugs, food or alcohol is a recognized disability under the terms of many disability income policies. If there is a true addiction and it prevents the insured from performing his or her occupational duties, it may be covered by an ERISA or a private policy.

The stigma and guilt usually associated with addiction may lead victims to believe that the addiction is their “fault” and that there is no coverage for this disability. Not so.
Addiction means just what it says – “I can’t help myself”.

Many times the addiction is the result of prescription pain medication given as treatment for injuries or illnesses. They may also be the result of nervous or psychological conditions which are very real to the afflicted person. When these conditions are added to the treatment protocol for the illness or injury the result may be an addiction which will not cure itself.

If the addiction is so bad that the person cannot perform the duties of the job, medical or psychiatric treatment is required, and, if there is coverage, the benefits of a disability income policy may very well be available.

However, it would be a mistake to think that the insurance company will accept an addiction claim without putting up a battle royal. After all, the courts are full of cases where the illness or injury would be clear to any neutral observer, but the insurance company puts up a no-holds-barred fight with its stable of IME doctors to try to discourage the claimant.

We have spoken before about the strategy insurers use to discourage claimants from pressing claims. They know that claimants are usually at a low point, without work and without income. See Docility. So, they turn up the screws to add more pressure by demanding more and more information and turning their pack of doctors loose on the claim.

Insurers make the claimant jump through hoops in an effort to get the claimant to back off. How do insurance companies react to claimants who say they can’t work because of an addiction? They play the stigma and “fault” cards for all they are worth.

If a person is in a position where they can’t stop eating, drinking or drugging to a point where they can’t do their job, they have to seek professional help and they may be entitled to disability benefits under the terms of their disability income policy.

However, when they do decide to make a claim, they should know that the road to income recovery will be a rough one, with the insurance company pulling out all of the stops to avoid paying. They should be certain they get the help they need, both legal and spiritual from an attorney who has successfully handled addiction cases before.

Insurance companies smell blood in the water when they see a case brought by someone whose affliction indicates a lower threshold for pain and suffering. Knowing this, if you decide to go ahead, be prepared to take some punches and travel around some roadblocks.

But, also know this – with an attorney who believes in your case in your corner, you can prevail.






Get Your Scorecard Here

What a lovely gift for insurance companies!

There’s going to be a Congressional investigation of SSDI brought on by charges that an SSDI judge ruled in favor of applicants 99.7% of the time. The fact that the judge is only one of 1500 judges in the SSDI system will be of little significance to the investigators.

The majority of House Republicans, seem to be salivating at the opportunity to ravage the Social Security system as we know it, and to turn it over to private insurance companies. With Republicans holding a large majority in the House, they will have a field day with hearings on this issue.

Insurance companies are certain to jump on the bandwagon because of the ongoing question of what weight courts should give an SSDI finding of disability on ERISA and private disability income insurance claims they are considering. Successful SSDI claimants want the SSDI judgment to weigh heavily in an ERISA disability case, while insurance companies generally ignore SSDI findings (even though they usually have forced claimants to apply for the SSDI disability benefits).

Group LTD insurers get the best of both worlds when a claimant wins in SSDI:

* Insurance companies get the first money from the claimant’s SSDI benefits and repay themselves the money they have already paid the claimant under the terms of their policy.
* Insurance companies then completely ignore the SSDI finding of disability while defending the claimant’s case under their disability policy.

A 99.7% success rate in an adversarial litigation system should raise the strongest suspicions. It certainly requires severe “looking into” and remediation. But, it shouldn’t negate the value of an SSDI decision as part of the evidentiary fabric in an ERISA disability case.

We have a suggestion to help a Federal judge decide. Have the SSDI judge’s scorecard of disability decisions supplied to the court with the SSDI judgment. This will give the trial court a good handle on any predispositions the SSDI judge may have and make it easier for the trial judge to value of the SSDI judgment in ruling on the case before it.

But, at the same time, the court should be supplied with a scorecard on each doctor in the insurer’s stable of “physicians” who has rendered an opinion about the claim before it. In what percentage of cases in which the particular insurance company doctor ruled did the physician find the claimant had a disability? Such scorecard information would also afford the court a better picture of the value of the insurance doctor’s opinion.

After all, what’s sauce for the goose is sauce for the gander.

A court having the benefit of knowing if either or both an SSDI judge and/or an insurance doctor had a predisposition, would certainly help a judge weighing the factors in coming to a decision, as required by the Supreme Court in MetLife v. Glenn, 128 S. Ct.2343 (2008).





A Stiff Upper Lip Can Hurt You

As anyone who practices in the area of disability law can attest, employees who become disabled are reluctant to admit they are disabled, and instead try to “suck it up” and carry on, even when their condition gives them very little hope of ever being able to permanently keep working. We’ve written about the “working disabled” before, but not in the context of O’Hara v. National Union Fire Insurance, 2011 WL 405448 (C. A.2 (N.Y.))).

O’Hara clearly illustrates that because a disabled employee continues to try to work, does not mean that employee will automatically be denied disability insurance benefits. This court clearly states that an employee’s continued presence at their place of employment does not preclude a finding of disability, if there is evidence he or she was actually incapable of performing the job.

This important principle needed to be reaffirmed. Disability carriers latch on to the fact that an employee tried to carry on despite the disability, to justify the denial of benefits.

In O’Hara, a company administrative assistant suffered a head injury in a fall. She was treated by several neurologists following the fall on March 15, 2001, but she continued to work.

As with all policies, Ms. O’Hara’s LTD policy had limiting language which defined whether she was eligible for long term disability. As with all policies, the language was not simple. She could recover if as a result of an accidental injury she was totally and permanently disabled and prevented from in engaging in each and every occupation or employment for which she was reasonable qualified by reason of education, training or experience. In addition, the policy required the disability to manifest itself within one year of the accident and to continue for a year.

Ms. O’Hara, while working, told her treating doctors it was necessary for her to make notes at work and at home so she could be able to remember the things she had to do. Also during this period, several of her coworkers complained to her superiors that she was behaving unprofessionally. However, her employer did not terminate her until June 6, 2002.

All during this period, Ms. O’Hara reported continuing headaches and severe memory lapses to her doctors, and was found by her own treating neurologist to be “completely disabled”.

Although the Federal District Court granted summary judgment to the insurer on a motion for summary judgment, the appeals court sent the case back for trial saying that the fact that Ms. O’Hara worked after the injury does not automatically mean that she was not permanently disabled by the accident. The appeals court found much in the record to support her contention that she was actually disabled even though she went to work. The appeals court found that the District Court had erred in granting summary judgment while there were major facts in dispute and that a trial and findings of fact by the trial court were necessary.

Insurance companies and courts should realize, as the 2nd Circuit did in this case, that disabilities are not necessarily fully developed when they first strike. Many illnesses and injuries take time to develop the full extent of their impairments.

Further, many employees are not anxious to go on disability and resist it for as long as they can. As a matter of public policy, employees should not be penalized for doing so – they should be praised.

If insurers jump on every employee who tries to work through their injury and deny benefits because the employee tried to work, insurers will be hurting themselves because they will discourage claimants from trying to work.

The decision in O’Hara sends a clear message to carriers that such conduct will no longer be accepted unless the evidence in the case justifies it.






The First 100 Is The Hardest

When we first started blogging on April 15, 2009, to try to help disability income insurance claimants, we had plenty of butterflies in our stomach because we had never blogged before and knew that a blog requires a long term commitment and exposes one’s thoughts to public view.

The first blog was written without having any idea of what the subject of the second would be. We just knew, somehow, that we had the “hands-on” experience and savvy in the law of insurance to help people with disability income and other complicated insurance problems.

So, here we are writing our 100th blog on April 21, 2011, just a tad over two years later.
Looking over our first hundred blogs, we found that some stand out in our mind either for informative content, originality or a nice turn of phrase. We thought, why not list them here for anyone to see what we are proud of.  So, here goes:

Pull In The Welcome Mat – A warning that insurance companies just love to cuddle up to claimants so they can evaluate a claimant’s strength and weaknesses. Hear this - the insurance company IS NOT your friend, no matter how friendly they try to seem. The adjuster’s job is to destroy or diminish your claim. A friendly adjuster is just a viper waiting to strike. The rule: Be as cooperative as the policy and law require; not one whit more.

Hippa, Hippa Hooray – People with psychiatric disabilities have special needs because they usually are mentally fragile and need understanding and protection. Insurance companies love to get inside this type of claimant’s head. Shock them and move their world around and the psychiatrically disabled may be unable or unwilling to pursue the claim. That’s why providing medical info to insurers should be and can be strictly constrained by mental health professionals and attorneys. However, many are unaware of this and are unwittingly providing psychiatric notes and other reports that are strictly forbidden by Federal law. Case notes and similar material must not be provided to insurance companies. Both the attorney and the mental health professional have a duty to protect a client’s personal, psychiatric information.

No “Do-overs” in Disability Claims – Don’t start learning the ropes when you file a disability income insurance claim. This very first step in this process may be the one that sinks you. If you or your doctor omit a necessary fact required by the insurance policy or the law, the insurer will hang onto that omission throughout the claims procedure so as to cast doubt on your claim. Get it right from the get-go.  Starting “fresh” is not an option in an income disability claim.

No Good Deed Goes Unpunished – Old habits are hard to break, but an old habit can break a claimant. If you have an “own occupation” policy, you can’t be Mr. Nice Guy with your employer. Most people want to try to keep working if they can, despite a disabling event. They might try to work doing something else, if they can’t do their usual occupation. If they do that with an “own occupation” policy, the insurer will pay you what you were earning at the time you were forced to give in and stop working, rather than at the rate you were earning at the time you first were disabled. If you have such a policy, stop working when you are unable to perform the job listed in the policy. Trying to be a “hero” can cut the legs from under you.

Insurers Love “Docility” – Disability insurers just love people who don’t make waves. If an insurer first denies a claim (an almost automatic insurer reaction), many of these “waveless wonders” will just go away, giving up valid claims and dropping those claim dollars to the insurer’s bottom line. Disability income insurance claimants need backbone to stand up to the insurance company and get what was paid for in premiums.  In other words, for your own benefit, Don’t Be A Wimp.

So, there it is – 100 blogs and counting. We hope to keep blogging until every DI claimant gets a square shake from the insurance company.

Unfortunately, even Methusaleh didn’t live long enough for that to happen.


Easing The Psychiatric Burden

Anyone who has ever handled a psychiatric disability claim knows they are tough enough to prove. Establishing the existence of a mental condition, which is not easily shown by objective medical evidence (X-ray or MRI), makes experienced and knowledgeable advocacy a must.

Add the burden of showing the disability prevents the claimant from performing employment obligations, as required in any disability income claim, and the matter really gets complicated.

Unless an advocate has had a great deal of experience in proving psychiatric disability claims, insurance carriers are sure to lead them on a merry chase while the client is unable to work or earn money for themselves and their family.

A psychiatric disability claim, is a Perfect Storm favoring the insurance company:

* The claimant is ill.
* The claimant is earning no income to live on.
* The insurance company has the experience, the money and the lawyers to fight on and on and on.
* The claimant has a psychiatric impediment which may affect his or her mental acuity, concentration, or ability to stand up to the pressures of a long-term litigation.

Can you think of a worst case scenario? What better potpourri of negative circumstances could an insurance company ask for in fighting a claim?

Psychiatrists and psychologists treating patients with disability claims should be sensitive to the added problems such claims can cause their patients. No one has to tell these professionals that such basic threats to the patient’s wellbeing have to be dealt with successfully to treat the patient.

The problem is that psychiatrists and psychologists don’t have the training and experience to handle the legal aspects of a successful psychiatric disability claim. They know the client’s medical condition, but have no experience in presenting the claim in the way the insurance company or the law requires, nor can they anticipate the legal impediments which may affect the success or failure of such a claim.

Moreover, the psychologist or psychiatrist faces special ethical constraints when donning the mantle of “advocate” while also trying to heal an ailing patient, given the prohibition against “multiple relationships”. The two roles can easily lead to a conflict, causing failure in both. See, e.g., “Ethical Principles of Psychologists and Code of Conduct”, American Psychological Association, at Sec. 3.05.

As part of the treatment in such a case, the treating professional should try to see to it that the patient obtains independent, competent legal help to properly pursue the claim. Neither uncertainty in a patient nor diffusion in a professional’s treatment goal is helpful in a patient’s treatment.

Ideally, the claimant’s disability lawyer should have extensive experience succeeding with psychiatric claims. Through this experience, they will have learned that psychiatric claimants and their treating professionals require the utmost in patience, cooperation and understanding.

On the other hand, insurance companies require just the opposite type of treatment. Attorneys who know the ropes of psychiatric disability insurance claims and aggressively pursue such claims must fight hard, including keeping the insurance company’s hands off patient records they have no right to see.  Hands Off My Info.

The point is that a good, competent, understanding disability lawyer can be an important part of the treatment of a patient with a psychiatric income claim.

Easing claimant anxiety levels is a good thing, especially when the claim involves a psychiatric disability. Having a competent disability advocate with long experience “in the trenches” should help lower a patient’s anxiety level, and makes it easier for the treatment provider to focus on treating the patient’s ailment.

Don't Let Them Snow You

While looking out of the window at another snowstorm today, it occurred to us that the weather we are having in the New York Metro Area this Winter is much like pursuing a disability income insurance claim – never-ending, frustrating and requiring a BIG shovel to get through all of the bull___ thrown at you, even though all you want to do is get on with your everyday life.

If you are unfortunate enough to get caught up in the world of disability income insurance claims, you had better know what you are doing. Most people would think that the insurance company on the other side of your claim will play fair and give you an even break – WRONG!!!

The ordinary claimant is just “plain folks”, a person who has worked all through life and is now stricken with a crippling illness or injury which makes it impossible to continue working. On the other hand, insurance company claims-deniers do little else but deny, deny, deny and receive applause from their superiors for doing so. The more they save the company, rightfully or wrongfully, the more they are held in esteem for the work they do.

And, ERISA cases can be particularly galling to claimants because the Supreme Court added brass knuckles to the fists of insurers by handing them the doctrine of deference in Firestone v. Bruch, 489 U.S. 101 (1989). Not only do the companies get to dip into their unsavory bag of tricks, the Supreme Court says that Federal Courts have to give deference to their denials.

Trying to establish a disability income insurance claim gives you the same feeling you get when you look out of the window and see the snow tumbling down week after week. More shoveling, more slipping and sliding, more cold and less sunlight. It puts you in a depressed winter mood. You feel as if you want to give up.

That is exactly the mood an insurance company wants you to be in when you are pressing a claim. They want more and more information and regard it with less and less attention. They deny and delay, knowing that you are not working and therefore not able to properly support yourself and your dependents. Why shouldn’t they take their time?

Not only do you have to know what, when and where the insurance company is taking advantage of you, but you also have to know that they are counting on you to fold your tent and slink away because of the legitimate pressure they can put on you. Denying claims is second nature to most insurers and they seem to wield this power without remorse. Insurers hold all of the cards (and the money) while you struggle to get them to fairly evaluate your claim.

Disability income claimants need someone in their corner to point out the objective of insurer tactics and to help counter them while standing by to encourage claimants to obtain what is due under the terms of their policy. Claimants not only need knowledgeable help to properly press their claim, they need someone who has the experience to encourage them to stick to their guns and not be discouraged by insurance company tactics.

Part of the insurance company claims strategy is to keep you and your family “barefoot” for as long as possible so that you get disgusted with the whole system and walk away from your claim or settle for much less than it is worth, just to be out of the grinding process of pursuing an income disability claim.

Either way, they win and you lose. From the insurer’s view, this is the Perfect Storm.



The Chicken Or...

The chicken or the egg question is a tough one to answer, but not for disability insurance carriers. Whichever answer permits them to stop disability income payments to a claimant is the right one for them.

Recently, a Federal District Court in Pennsylvania ruled against Prudential even after giving the company the benefit of the deference rule in making its decision. Ironically, the claimant was a former Prudential life insurance salesman. See Morgan v. Prudential Ins. Co., 2010 WL 5097811 (E.D., Pa.).

The issue is a common one. The claimant suffered from fibromyalgia, but also was afflicted with anxiety and depression, mental conditions which under the terms of the policy would limit his disability benefits to 2 years.

As a matter of course, Prudential jumped on the fact that its former employee suffered from anxiety and depression and limited disability benefits to only two years. (If Pru had done anything else, it probably would have been cashiered from the disability income insurance company “union”).

Although the insurer was quick to jump on the psychiatric ailment as a foundation for halting disability payments, the court said: “Not so fast". The court analyzed the situation as one in which the fibromyalgia was the cause of the disability while the psychiatric problems resulted from the disability caused by the fibromyalgia.

The Federal District Court set forth in easy to understand terms the rationale for deciding which impairment is the cause of a disability:

“…A mental illness secondary to a physical condition is not the cause of the physical condition and the resulting disability. If but for the physical condition there would be no mental illness, the latter cannot be considered a cause of an impairment. Even if the mental illness contributes to the impairment causing the disability, it is the physical condition, not the mental condition, that is the cause of the disability. Otherwise, whenever a claimant’s physical disease or condition causes anxiety and depression, the mental illness limitation would always apply…”

In the world of disability income insurance, insurers seem almost automatically to find that any psychiatric problems came first and therefore disability benefits, if any, are limited pursuant to the policy language.

However, as the Morgan Court so wisely pointed out, a physical disability which afflicts a healthy person and prevents that person from earning a living, thereby severely upsetting that person’s way of life, ordinarily causes that person to suffer from anxiety and depression. To suffer a mental collapse from such overwhelming circumstances is certainly not surprising.

But, to insurance companies which have to pay disability benefits for which they have already received premiums, it can be a windfall. If they take the position that the mental illness caused the disability, benefits may be limited by the policy terms (usually 2 years for mental illness).

When there is a question of mental stress as there is in many disabilities where a person’s livelihood is cut off, insurers are certain to decide that the mental illness came first.

But, when judges evaluate the evidence, as the Court did in Morgan, even giving Prudential deference, the Court found that the fibromyalgia came first and the mental problems later. When that is the case, the mental illness limitation doesn’t apply.

This ruling doesn’t answer the chicken or the egg question, but it makes perfect sense to us.




A Simple "Thank You"

Because of a relatively few bad apples, the vast majority of lawyers have a mostly undeserved rep with the public.

Lawyer jokes abound and lawyers’ friends are only too happy to share the latest one with their pals who are members of the bar. Such conduct on the part of our friends doesn’t bother us one whit. We know that with all of this laughing and “hoo-hawing”, the first person these seemingly disdainful friends call when there is a serious problem of any kind is the butt of their lawyer jokes – us.

It makes it kind of easy for us to bear the jokes when we know that when the chips are down, the “laugher” is going to run “crying” to us for help and advice.

The reason we are on this subject at this “up” time of the year is an email we just received from a client, which makes all of the hard work, stress and lawyer jokes worthwhile.

Down through the years, we have come to understand that most clients consider the rule of thumb for lawyers is:

If the lawyer gets a good result, the client considers it is because the client had a peachy case; if there is a poor result it is because the lawyer handled the matter badly.

With this mantra stacked against us, it is really tough to get even a left-handed compliment from a client, no matter what the result.

That’s why we were so pleasantly surprised and delighted when one of our clients, whose matter was resolved in early 2010, thought it appropriate to write us to say “Thank You” in a heartfelt and sincere way. In our experience, it is unusual for a client to see and understand the value of what lawyers do beyond the fees we get paid. It is even more extraordinary when the client feels the need to communicate that feeling to us, especially long after the matter is concluded.

The email was just a few words, but it goes up in our Hall of Fame:

“December 28, 2010

“Dear Mr. Quiat:

“It is the end of the year a time for reflection and giving thanks. I wanted to let you how thankful I am for the services you provided us. I have kept your voice mail on my cell phone, it cheers me up everytime I listen to it. Thanks once again. “Best wishes for a happy, healthy, and prosperous new year. Good luck digging out from the snow!
                                                                    “a very grateful and appreciative client,…”

This matter involved a medical doctor who had an unusual medical problem on top of a particular clause in his policy which would, at first blush, seem to preclude any disability income benefits for him. The solution, which led to full benefits for him, took a close reading of the policy, intense medical research and a clear, well-reasoned appeal to the insurance company.

The fact that the work on his case followed the normal pattern of what we do in matters of this kind did not hide the value to him of what we do. And this doctor felt that what we do requires a THANK YOU even long after the matter was concluded.

Such thoughtfulness touched us deeply and brightens our recollection of the work we did in 2010. For that I thank the doctor from the bottom of my heart. It’s good to know that someone out there really understands what we do.

                                                  A Happy and Healthy New Year To All!!!












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Ups And Downs

One wonders when in a happy mood writing a blog around a major holiday whether others, not so fortunate, have the same feelings of joy and expectation. Should one write for those who are up or those who are down?

While facing this dilemma this holiday season, we decided to compromise – try to say something that will apply to both sides of the holiday equation – the happy ones, the sad ones and the ones in between.

In fighting with insurance companies for the benefits policies purportedly promise their beneficiaries, we have discovered the secret of being – NEVER GIVE UP! And, this goes for living in general.

Down through the years, we have noticed that we can be on the balls of our bottoms one day and on top of the world the next. Life has a habit of changing one’s status without warning of any kind.
We deal with people who are frequently on the lowest rung of life’s ladder because they are seriously disabled and cannot work and earn a living for themselves and their family.
What could be worse than being ill or disabled (for how long, you are not certain) and not being able to bring in money for food or rent?

On top of that, your salvation is in the hands of a disability insurance company which, in effect, makes its money by not paying people in your circumstances.
We have been in those situations many times with our clients. The present looks bleak and the future looks even bleaker.

And then, without warning, things change. The insurance company, for reasons known only to itself, decides to give your case some priority or launches a new review of your claim and comes up with a positive result for you.

After years of fighting and deep disappointment, your world gets brighter in a split second. How does it happen? No one knows. But, if you aren’t in the game when the change hits, you are out of luck.

The reverse is also true. You may be sitting on top of the world in regards to family, occupation and life in general. Without warning, illness or injury strikes and your world is turned upside down in an instant.

The world is constantly changing and your lot changes with it. There are people who are at the top of the world today who will be in the dumps tomorrow. There are people who seem without hope today who will be at the zenith of their lives tomorrow.

Why and how does this happen? We can’t say. Is there a Supreme Force or is it the luck of the draw? No one knows for sure.

But, what we do know for sure is that in disability insurance claims, the same as in life, if you are not in it, you can’t win it.

So, ring the bells, light the candles, sing the songs, but hang in. Your moment in the sun may be the very next one.

Enjoy the holidays and always look forward to better times.





The Phone Is A Client's Lifeline

The practice of law involves many things – knowledge of the law, writing ability, speaking ability, ability to present a logical argument in an interesting way, but, most of all, compassionate understanding of the “human condition” of clients.

It has always amazed us to hear from clients that the “human condition” aspect of practicing law can be so low on the totem pole of legal services to some practitioners. Helping a client through tough times should be priority Number One for all lawyers.

This is especially true of those pursuing disability income (ERISA and private) claims against insurance carriers who reflexively don’t pay. Claimants in these types of claims usually are laid low, both physically and mentally, by a devastating illness or injury which prevents them from performing their daily occupation, thereby cutting off income to themselves and their families.

Add to this condition, that in most cases the “nest egg” claimants may have set aside to try to secure their future, is eaten up quickly with ordinary housing and food costs which they need to keep themselves and the family going through the “no-pay” period. What a “human condition”:  Being seriously incapacitated and having no income!

It’s at that low point in their lives that disability income claimants comes to lawyers for help. They recognize that they stand very little chance of getting disability income payments from insurance companies unless they have knowledgeable legal representation to stand up to the well-staffed, specialized attorney corps insurers use to try to duck policy obligations.

It’s at that low point in their lives that most attorneys practicing disability income law recognize that their clients need more than just good “lawyering”. They also need good “peopling”. They need to project to the client that the client’s case is important to the lawyer and is getting the attention it needs to give it the best chance of resolution in the claimant’s favor. The most important thing, while a disability claim is pending, is for the client to really feel the lawyer understands the client’s economic situation and is doing everything in the lawyers’ power to get the job done quickly and correctly.

One of the smaller, but most important aspects of this caring lawyer-client attitude is one that some lawyers seem to ignore – returning phone calls promptly. If you are a client, what could give you a better feeling about how your case is being handled than to have your lawyer respond reasonably promptly to a phone call from you? It demonstrates that you are important enough to have your attorney take time out of a busy schedule to talk with you.

On the other hand, what could give a client a worse feeling than having the lawyer fail to return n calls for several days after they are made, or even fail to return them at all? Imagine what this phone call “non-etiquette” does to the psyche of a client who had already been laid low physically, mentally and financially. It is an inexcusable way to treat any client, let alone one who is incapacitated and pressing a disability income claim against an insurance company.

These types of client generally need liberal doses of TLC. They need encouragement and assurance that everything is being done to get their lives back on track. What they don’t need, most of all, is short shrift or even silence from the attorney they are banking on to help them.

Our law firm was started by a lawyer who was licensed in New Jersey in 1958 and 52 years later is still practicing law every day. One thing he insisted on when I joined the firm was that I and everyone else return client phone calls as soon as possible. Clients don’t hire you for your good looks, he said, they hire you to look after their interests. The best way to do that is to respond to them in a timely, efficient way. The best way to do that is to talk to them promptly when they let you know they want to talk.

By following this advice through the years, we have found that sometimes these older geezers know what they are talking about.




Hippa, Hippa Hooray`

Many times people get in the habit of taking the simpler road without giving much thought to the action. This is true even of lawyers who are trained to think things through.

One habit that really galls us is that of complying with insurance company requests for medical and even psychological reports to which they know they are clearly not entitled. Insurance companies are always looking for an edge and they have no compunctions about trying to get information which will help them fight a claim, even if the law says that the information is off-limits.

The area of the law in which this information tactic is most abused is that of discovery in disability claims involving psychiatric matters.

Although it arises with any disability claimant who happens to see a psychologist regularly,
what insurers like about these types of psychiatric claims is that claimants are usually somewhat fragile and may be easy to discourage because they fear that their psychiatric disabilities may become known to business associates, relatives, friends or even the general public.

The barest threat of disclosure may be enough to get a claimant to back off and drop a psychiatric disability insurance claim. What an easy way to drop a nice chunk of money to an insurance company’s bottom line. So, insurers will almost invariably demand the claimant’s psychotherapy notes when defending a psychiatric claim.

Most lawyers who litigate with insurance companies probably instinctively get a queasy feeling when asked to disclose the type of information contained in their client’s psychiatric case notes, but they may do it in the spirit of disclosure which has been the hallmark of litigation philosophy during the last several decades. However, their queasy feeling is the correct one and they should not disclose the psychotherapy notes no matter how loudly the insurer demands them.

In fact, the attorney would arguably be violating the Health Insurance and Patient Protection Act (HIPPA) if they did provide the notes. The Act, recognizing the intimate and personal nature of psychotherapy notes, requires a health care provider to receive a very specific authorization from the patient to release any such notes even to another health plan provider.
Busy lawyers, especially, those who do not practice extensively in the health care field, may not be aware that psychotherapy notes should not be made available unless the client clearly authorizes it or a court orders it.

HIPPA proscribes the furnishing of such information by a health provider unless clearly authorized by the patient, 45 C.F.R. Sec. 164.502(b), Sec. 164.508(a)(2)(4).

The patients’ actual medical record, i.e., results of clinical tests, the length of time of counseling sessions, the type and frequency of treatment sessions, and prescribed medications, along with the diagnosis, course of future treatment and prognosis, will most times provide sufficient information for the insurance company to make a proper decision on whether or not to honor a disability claim. The psychotherapy notes are the “gossip” in the case and just serve to open the door to information which is superfluous to the essence of the claim, but can be most damaging to a claimant if it reaches the wrong ears.

HIPPA makes this very clear in 45 C.F.R. 164.501, when it prescribes that the psychotherapy notes be kept separate from the patient’s medical record.

So, the next time a disability insurance carrier demands the psychotherapy notes in a disability claim, tell the insurer to take a hike.

The walk will do it good.


Are Courts Finally Getting It?

A ”hot-off-the-presses” decision from the Illinois Federal District Court finally lays out, without all of the obfuscating folderol, the true basis for getting to the truth of the ERISA-SSDI tug of war:   See Raybourne v. Cigna, No. 07C3205, (N.D. Ill., September 23. 2010).

Did an LTD insurance administrator, in denying a policy claim, meet the burden of establishing a credible basis for rejecting an SSDI finding of disability?


Long-standing LTD insurance company strategy has been to insist that claimants must pursue SSDI claims to be eligible for their LTD disability benefits. There is nothing wrong with this, as LTD insurance policies usually provide that third party payments to a claimant (including SSDI) have to be used to offset payment of benefits by the insurer.

The problem is that after forcing the claimant to make a disability claim to SSDI so as to receive benefits which go straight into the pocket of the LTD insurance carrier, the carrier then completely ignores the SSDI decision in its own determination of its own liability under its disability policy.

LTD insurance companies were getting away with this ploy for years, until MetLife v. Glenn, 554 U.S. 105 (2008), when the U.S. Supreme Court woke up to the fact that there is an inherent conflict of interest in a situation where an insurance company which has to pay the claim is the entity which makes the initial decision as to whether the claim is actually covered. Add to this already conflicted siutation the added insult that in ERISA cases, the LTD insurance company’s decision must be given deference, Firestone v. Bruch, 489 U.S. 101 (1989) , and you have a stew which smells bad right from the start.

Why the courts seemed to be blind for so long to the unfairness of putting such extreme power in the hands of one party to a controversy, is hard to fathom, particularly when that party is an insurance company, a class of entities not known for being overgenerous. Firestone was decided in 1989 and Glenn in 2008.

Those who represent disability claimants have been afflicted by the free ride the Firestone decision has given insurance companies for almost 25 years. No court so clearly took them to task on the SSDI issue as did the District Court in the Raybourne decision. Hopefully, now the shoe is on the other foot, where it actually belongs.

Why should an LTD insurer be able to force a claimant to obtain an SSDI ruling that finds the claimant disabled so that the SSDI benefits go into the insurer’s pocket, and then ignore the SSDI decision in the claimant’s claim against the insurer?

Hopefully, the inherent conflict so clearly defined in Raybourne, as a result of Glenn, will give otherFederal courts the gumption to reexamine the unfair body of ERISA law which has grown in the wake of Firestone. They should examine closely evidence of the LTD insurance company system of hiring and maintaining stables of supposedly “independent” medical examiners and financially rewarding employees on the basis of their record of denial of claims.

LTD insurance companies should, as do all other litigants, have to meet the burden of proof once it has shifted to them. If a party shows a court that an expert witness might have a prejudice for or against a party, the court must scrutinize that evidence closely. It should not give that evidence “deference” as otherwise suggested by Firestone.

Glenn gives attorneys the tools to show the conflict of interest and how it might affect the insurer’s decision. We only hope that having this tool, judges are as straightforward and skeptical as Judge Gettleman was in deciding Raybourne.

Claimants have the duty of proving they are disabled. Once they do, LTD insurance companies should have the duty of proving that they are not.



Who's The Real Malingerer?

In disability income insurance circles the word “malingering” is always used to paint the claimant black, but the word “malingerer” should be applied to insurance companies far more often than to claimants, for many insurance companies are open and blatant “malingerers” when it comes to paying benefits.

This was made very clear in a recent opinion in the 7th Circuit when the court raked MetLife over the coals for using an arsenal of shady denial tactics to thwart an ERISA claim based on subjective complaints, (Holmstrom v. Metropolitan Life, 2010 WL 3024870, 7th Cir., 2010).

In this case, the appellate court found a litany of reasons why the denial of benefits to Holmstrom was “arbitrary and capricious”, even though the Federal District Court from which the appeal was taken had found that MetLife’s denial of benefits was sound.

Why do courts (and, generally, the public) have no difficulty in believing a claimant is “malingering” when seeking benefits, but never seem to seriously consider whether an insurer is “malingering” when it comes to paying benefits?

One might reasonably ask if a corporation which stays alive on profits is any less likely to shave morality to obtain a larger income than is an individual who stays alive on work income and might shave morality to stop working and use benefits to keep the family going?

Some claimants do try to malinger by not working and collecting benefits when they are not actually disabled. Insurance companies are right to contest these claims vigorously. But, there also compelling evidence that some disability insurance carriers make it a policy to actively “malinger’ on paying benefits. One only has to go back to 2004 to the Unum settlement with 49 states to see the pattern of no-pay strategies employed by these insurers. Yet, insurance companies are still not labeled “malingerers”. Why not?

When individuals are suspected of malingering, there is a battery of tests used by insurers to try to detect the falsity of the claim for benefits. Insurers have used them for years and years and have had many a success in beating down a claimant, some deservedly so, some not.

Since it is abundantly clear that insurance companies malinger when it comes time to pay disability benefits, why isn’t there a test for insurance company “malingerers”? Why should claimants be any less entitled to challenge benefit denials in court in a manner supposedly as objective as the one they face when making a claim? More importantly, why shouldn’t there be a real consequence when insurance companies ?

As the Holmstrom court pointed out, such a test might include the following questions:

* Did the insurer require the claimant to make application for Social Security benefits? If so, did the insurer give appropriate weight to the result of the SSDI application?
* Did the insurer’s doctors actually physically examine the claimant? If not, what appropriate weight should the opinion of these doctors be given in view of the type of disability claimed?
* Did the insurer appropriately evaluate treating doctors’ reports?
* Did the insurer giver appropriate weight to objective test results?
* Was the claimant’s actual medical history appropriately considered by the insurance company?
* Did the insurer appropriately take into account the cognitive impairments which are likely to result from medication required by the claimant’s condition?
* Did the insurer inappropriately ignore overwhelming evidence of disability by treating doctors in favor of the opinions of its doctors who never examined the patient?
* Did the insurer continue to move the goal posts so the claimant could never kick a field goal, i.e., provide the proof necessary to convince the insurer?

“Appropriate” is a key word, because it should not be enough for an insurer to say “we deny” without giving reasons appropriate to the level of the claimant’s proof, to support “we deny”. If Congress, in writing ERISA, thought plan administrators, especially insurance companies, would be paragons of virtue when it came to protecting employees, (29 U.S.C. 1001, et seq.) they were horribly mistaken.

To even the playing field in light of Firestone v. Bruch, 489 U.S. 101 (1989), reviewing courts should require insurers to provide rebuttals to claimant’s proofs which are on a level with the quality of those proofs.

Case law is full of instances where the desire not to pay benefits was so outrageous, that courts, usually restrained in their language, take the defendant insurance companies to task severely.

Yet, when it comes to the word “malingering”, courts and the public seem to reserve the term for claimants only.

If it looks like a duck, acts like a duck and quacks like a duck, why not call it a duck?

Insurance company disability plan administrators are many times “malingerers” of the worst kind when it comes to paying benefits.







Fairness, Anyone?

Ever since Firestone v. Bruch, 109 S. Ct. 948 (1989),many disability insurance carriers have been getting a free ride on SSDI. 

LTD insurance companies force claimants to pursue Social Security for disability benefits so they can recoup monies they have laid out in paying the  private insurance claim.  And then insurers totally ignore the SSDI disability finding when evaluating the claim they have to pay under their ERISA policy. 

 However, as courts come to realize the obvious conflict of interest these claims generate, they are beginning to look at this free ride more and more closely.  Why should insurers be permitted to force claimants to go after SSDI benefits and then totally ignore them when deciding its own case with the same claimant?

The U. S. Supreme Court itself has recognized the problem.  It succinctly stated in MetLife v. Glenn, 128 S. Ct. 2343 (2008)  at Page 2352:

“…MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (being entitled to receive an offset from her retroactive Social Security award), and then ignored the agency’s finding in concluding she could do sedentary work…”

Wouldn’t it be more evenhanded to have a successful SSDI claim raise a rebuttable presumption in the private LTD case that the claim is legitimate medically and is totally disabling?  Such a presumption would not be anywhere near a  lock on the issue, but would require the insurance company to come forth with reasonable proof that the SSDI finding was mistaken or that the SSDI decision did not apply to the current LTD claim. 

Proving SSDI claims is not a walk in the park.  SSDI judges have no more inclination to award benefits than do employers and insurance companies.  Only about one-third of SSDI claims result in benefits being initially awarded to claimants.  There is no conflict of interest nagging at an SSDI judge as there is at an insurance administrator, so the SSDI decision would appear more reliable.

While the SSDI judgment should not bind the insurer, it is a considered judicial decision that warrants more than a snub in defense of a claim.

If Federal District Courts were to hold that SSDI judgments raise a rebuttable presumption that a claimant is totally disabled, the insurer would be required to rebut on the merits a judgment by an unconflicted court, instead of paying the judgment lip service, and then ignoring it, to justify denial of a private LTD claim for its own benefit.

There are many reasons why such a presumption could be overcome by an insurance company:

* The terms of the insurance policy does not cover the illness or injury
* Evidence of an error in the SSDI proceeding or findings
* New evidence after the SSDI hearing (the claimant should also then be able to meet this evidence).
* Fraud on the SSDI court which impugns the decision (i.e., evidence that the claimant is working)..

With a rebuttable presumption approach, more weight would be given to an SSDI judgment, but the judgment still would not be binding on the Federal District Court when the insurer could show, with real evidence, that it should not be binding.

Such a judgment should not be ignored by an insurer which has benefited from it, unless there is a legitimate evidentiary reason for not following it.

A rebuttable presumption approach by Federal Courts to SSDI judgments would seem to be a fair way to deal with this crucial issue in ERISA LTD cases.



Figure In The Tax, Too

A recent 3rd Circuit Court of Appeals ruling got us to thinking about the effect of lengthy litigation on an award in disability income cases.

In Eshelman v. Agere Systems, Inc., 554 F. 3rd 426, the appellate court upheld a District Court decision awarding additional damages to the plaintiff’s jury award of $200,000, to cover the added taxes she would have to pay because she received a lump sum award rather than having been paid her salary over a period of years as she would have if she had not been discriminated against.

Well, we reasoned, shouldn’t the same thinking be applied to disability income insurance cases which many insurers cause to be dragged on for years and years when it is apparent to any disinterested observer that the claim should have been paid early on. The insurance company’s reluctance (almost a reflex action when it comes to paying claims) should not cause the disabled policyholder more grief by adding to his or her tax burden.

The circumstances are very similar. When a person loses a position because of the wrongful action of the employer, the person loses the benefit of being paid weekly or monthly and paying income taxes periodically through withholding and annual tax returns.

When an insurer wrongfully drags out the award of benefits to a disabled person, the claimant loses the benefit of being paid these insurance monies weekly or monthly and paying income taxes (if the benefits are taxable) annually. (Generally, disability income benefits are taxable if an employer pays the policy premium and non-taxable if the insured pays the policy premium).

If a disability income case drags on for awhile (some are known to have gone 10 years or more), and results in a lump sum award to make up for the years during which no monies were paid, that lump sum is taxed in the year it is received by the claimant. Many times this puts the recipient in a much higher tax bracket, meaning that a much larger percentage of the award will have to be paid than the claimant would have paid if benefits were received and taxes paid each year.

As a result, the claimant is not made whole, receiving less money in his or her pocket than he or she would have received if paid monthly for the period

We believe it fair that a District Court judge have the discretion to make an additional financial award to make up for the tax difference so as to make the plaintiff whole when appropriate evidence has been elicited to support such a tax award.












A box of candy, a pound of cookies, a smiling “Please” or “Thank you”, may be of more help in pursuing a disability income insurance claim than you might think. But, not to the insurance company (though it never hurts to be polite and civil despite the way your claim is treated).

Kathleen, our gal Friday on disability claims, remarked to us the other day that she sometimes notices that our clients who bring a box of candy or some cookies for their doctor’s office staff once in a while, seem to get quicker attention paid to their forms and other insurance claim requests, than those claimants who go empty-handed.

When you think about it, it makes sense. People tend to reciprocate for kindness. Doctors and hospitals and their office staffs are people (even though sometimes their attitude makes one start to doubt it). And, many times these people are inundated by requests from patients and their insurance companies to complete an endless stream of repetitive forms on treatments, diagnosis and costs.

And, as is usually the case, these unglamorous office jobs get little attention from patients because they think they are relatively unimportant. And, they are when it comes to diagnosis and treatment, which is the reason you go to a doctor or hospital in the first place.

But, when your illness or injury becomes a claim for disability, the picture changes. The people who do the billing and the transcribing of reports and the filling out of the endless flow of forms, become the primary focus of your needs because you can bet the insurance company will demand reams of reams of papers from your doctors, before giving your claim serious consideration.

Couple this fact with the usually overworked doctor or hospital business staff, being
hard-pressed with overwhelming demand for information, and it’s easy to see how things can get jammed up.

So, just as in the everyday business world, a kind word or a small gift of appreciation goes a long way toward name recognition and a desire to reciprocate for kindness. In an overwhelmed office, if you are not one of the crowd and you have been pleasant to deal with, your file may just be moved to the head of the list of things to be done.

As in everything else, it never hurts to show appreciation.


C'mon, NY, Just Do It Already

 We finally have the behemoth of the New York State Department of Insurance moving and, in the right direction.

But, don’t start the celebration too early. Once before, we had the New York Department ‘gung ho’ to “level the playing field” only to have it fall asleep while trying to come up with an actual regulation to protect disabled claimants against the hated ‘discretionary clause’ which unfairly sinks so many disability claimants.

The New York Department has proposed a new regulation No. 184 to try to level the playing field between ERISA disability income claimants and their insurance companies. Presently insurance companies decide whether ERISA disability income claims are compensable, then have to pay the claims if they are. So, take a guess at which way the insurers lean in deciding a claim.

In 2005, the New Jersey Law Journal published an op-ed piece by this writer that called on the State of New Jersey to do something about the discretionary clause in policies written in that state. That piece ultimately resulted in regulations NJAC 11:4-58-1-4 that were approved and became the law of New Jersey on January 1, 2008. From that point on, New Jersey citizens received the evenhanded ERISA claim protection they deserved.

About 20 of the 50 states have already banned the use of the discretionary clause as of this date.

In 2006, the New York Department of Insurance also decried the unfairness of the discretionary clause in ERISA disability income insurance policies (Circular Letter 8) and vowed to do something about it. The New York Department, although requesting comments and proposing a regulation (Circular Letter 14), unexpectedly withdrew the proposal without comment in 2006. From that time on, there hasn’t been a peep from the Department about such a regulation until this latest proposal.

Not that there were not calls during this period for a discretionary ban to be enacted. We take great pride in being somewhat of a catalyst in this discretionary clause regulation battle in both states. See my 2009 op-ed in the New York Law Journal.

There was no satisfactory response from the Insurance Department until the proposed latest regulation which, if approved, will become law in the state. Should it become law, no longer will New York residents be at the mercy of insurance company’s holding all of the cards when deciding whether or not to pay a disability income claim.

Without an approved regulation, we had always felt no court could legally recognize the state’s declared antipathy to the discretionary clause, no matter how vehemently the clause was denounced.

And, wouldn’t you know, it happened in one of our cases, Barnes v. American International, 681 F. Supp. 2d (S.D.N.Y. 2010). See excerpt. Fortunately, there were other factors in the case which overcame the disadvantages of the discretionary clause and our client prevailed and received her benefits.

However, if the facts weren’t overwhelmingly in our client’s favor in that case, another New Yorker would have been deprived of equal rights because of the discretionary clause..

We applaud the New York State Department of Insurance for finally getting around to proposing a pertinent regulation which will protect its citizens and do away with the advantage ERISA law gives disability income insurers.

But, based upon recent history, we are going to hold our breath until New York actually formally approves the regulation for its citizens and makes it law.

For too long New York State has been just “talking the talk” on banning the discretionary clause.  It’s high time for New York State to “walk the walk”.




Sanding Down Claim Unfairness

The noose is slowly tightening around the neck of rough and tumble, insurer-weighted, adversarial tactics in ERISA disability income insurance cases. Courts are, inch by painful inch, insisting that claimants be treated more fairly by insurers and that the tremendous advantages insurers have, be sanded down so that policyholders have a fighting chance when forced to make a claim.

Insurance companies are bound to yell “Foul”, claiming that they and claimants are already on a level playing field. The actualities show that this is not so. Just run through the following short list of advantages for insurers and you can see why:

* Insurance companies have cadres of lawyers who study and
practice in the specialized field of ERISA law. Claimants usually
have no knowledge of law, let alone the complicated ins and outs of ERISA law, and have to find a knowledgeable ERISA lawyer to help them if they think they have a claim.

* Insurance companies rarely hurt for money. Disability income
claimants are almost always under financial overload.

* In many states, insurance companies have the advantage of the
discretionary clause which, when a claim is denied, puts an almost impossible burden of proof on a claimant

* Courts are constrained to give as much weight to the opinion of insurance doctors who never see the claimant as they give to the opinions of treating doctors who diagnose and treat the actual claimant on a continuing basis.

Over the years many courts seemed not to see the inequality favoring insurers when considering ERISA disability income claims.

But, starting in the last decade, after having had a lot of experience with the one-sidedness of some ERISA law decisions, courts began to have a conscience about what they were doing and began to call upon insurance companies to act more fairly toward employees with disability claims.

Even the U.S. Supreme Court opened its eye a little wider in Metropolitan Life Insurance Company, et al v. Glenn, 128 S. Ct. 2343 (2008), when it recognized that there is an inherent conflict of interest when an insurance company decides a claim which it will then have to pay.

Courts are looking more and more closely at opinions by insurance doctors who never see the disabled patient, but are happy, for a hefty fee, to offer opinions that the patient is able to work. Courts are wondering more and more why insurers order and assist their policyholders in seeking SSDI benefits which, when obtained, the insurers take to reimburse themselves for benefits they may have already paid, following which they completely ignore the SSDI judge’s decision when deciding the validity of the same disability claim under their own policy

As anyone who has had to file and pursue an SSDI claim knows, it is far from a piece of cake Uncle Sam, despite what a lot of people seem to think, is not a soft touch and only about one-third of those who believe they are permanently disabled and unable to work, have their claims approved. So, why shouldn’t the insurer at least give some weight to the SSDI outcome and explain to a court why the SSDI decision doesn’t apply to the court case on the insurer’s policy?

The sanding away of insurer unfairness in ERISA litigation continued with two recent decisions – Galutza v. Hartford, 2010 WL 1329985 (N.D.Okla.) and Beaver v. Bank of the West, 2010 WL 1030464 (N.D.Cal.) In both of these very recent cases, the courts took the insurers to task for failing to properly communicate the particulars in which the insurer felt the claim documents were lacking so that the claimant could fill in the blanks.

In Galutza, the court agreed that a fiduciary has the duty to protect a plan’s assets against spurious claims.. But it also said that the same fiduciary has a duty to see those entitled to benefits get them.

In Beaver, the court found that the administrator had not engaged in a meaningful dialogue with claimant when advising her of additional records and materials the administrator thought it needed to adjudicate the claim.

It is our opinion that after years of dealing with disability insurance company “no-pay-at-any-cost” tactics, courts are coming to recognize that insurers will go and have gone to extraordinary lengths to avoid paying on disability income policies. Courts have found that the parties to such disputes are not nearly on an equal footing, so they slowly but surely require the decision-making party to justify its decisions by taking a much closer look at the evidence.

If this trend continues, disabled employees may finally get a fair shake from their bosses’ insurance carriers.





Legal Fee Law Reins In Insurers

The scales of Justice weigh heavily in favor of insurance companies generally, but even more so in disability income claims. After all, insurers are well funded, have their health, and employ plenty of lawyers who are familiar with the “ins” and “outs of the business.

A typical disabled employee, on the other hand, frequently has little or no funding (being unable to work), has little experience in law, and hasn’t a single friend, relative or neighbor who even knows where a law school is located, let alone having attended one.

The issue of whether a mental or physical impairment truly prevents a claimant from performing the duties of employment can be a complex question, even if it is conscientiously considered by people who have no financial interest in the outcome. When you add the financial interest insurance companies have in the outcome of these questions, the issue becomes more vexing because if they agree that the employee is disabled, they pay – and insurance companies hate that.

This leads to a situation in which insurers make claimants run through hoops in an effort to discourage them because there is very little downside to such conduct. Most states make each litigant pay for his or her own legal fees and costs. So, if an insurer makes a claimant sue and loses, what’s the downside?

In the 2nd Circuit Court of Appeals, which includes New York, Connecticut and Vermont, ERISA claimants get a leg up from a line of cases starting with Birmingham v. SoGen-Swiss International Corporation Retirement Plan, 718 F. 2d 515 (2nd Cir. 1983), which hold that although the award of counsel fees and costs is discretionary with the court, the 2d Circuit favors awarding counsel fees in ERISA cases unless there is a particular justification for not doing so. This judicial attitude in the Circuit makes insurance companies think twice in ERISA matters before saying “No” just because they can with impunity.

A road map for evaluating the merits of the right to attorney’s fees, was set forth in Chambless v. Masters, Mates & Pilots Pension Plan, 815 F. 2d 869 (2nd Cir. 1987) and has generally been followed in the Circuit. The major points of the scorecard are:

Culpable conduct (i.e., arbitrary and capricious) by the insurer.

The defendant has the financial resources to satisfy an award.

The merits of the case favor such an award.

The award of attorney fees would tend to deter defendant insurer and others from violating ERISA regulations in the future.

The results in the case confer a common benefit in that the defendant and other insurers will think twice before violating ERISA’s requirements in future.

Nobody wants an illness or injury which eliminates their income or employment. But for those unfortunate enough to face this condition in the 2d Circuit, there is some comfort in knowing that if they are covered by ERISA, arbitrary denials can cause insurers to bleed.






You Have To Know How

Don’t expect a disability insurance company to spend a lot of time analyzing a claim which appears to be clearly deniable on its face. We all know insurance companies are not in the business of paying, especially if they find what appears to be a clear exclusion to hang their denial on.

We recently took on an appeal from a Unum denial for an emergency room doctor who had suffered from glaucoma for years.

Having made full disclosure to the insurance carrier of his glaucoma condition when he bought the policy in 1993, Unum issued the policy, but inserted an exclusion to cover the possibility of his glaucoma condition causing him to become disabled. Our client had accepted this reasonable restriction, believing he could rely on treatment and medication to keep his glaucoma in check.
His policy exclusion read:

“The insured is not covered for any loss resulting from either or both eyes, except by the following table of benefits on form 809 attached.”

In 2006, the doctor suffered some optic nerve damage from Sarcoidosis, resulting in some minor visual loss, but was able to continue working as an emergency room physician.
In 2008, our client underwent coronary bypass surgery after which he noticed a marked loss of vision. This loss of vision was attributed to postoperative hypotension which diminished the flow of blood to his optic nerve and resulted in ischemic optic nerve damage.

Being no longer able to work because of his vision problem, the doctor filed a long term disability claim. Unum took the position that his loss of vision was caused by his eyes and was therefore clearly excluded under the policy. Unum paid for the 12-month exclusion period and then refused to pay for further long term disability benefits. Unsurprisingly, Unum took the position that the loss “…resulted from either or both eyes…”

Why should Unum or any other insurance company look further under these conditions? Usually when talking about the eyes, we are talking about “seeing” or vision. If the doctor’s claim was based upon loss of vision, end of story as far as an insurer is concerned. Why look further if the exclusion seems to mean the insurer doesn’t have to pay?

When the case came to us, we reviewed carefully the language of the exclusion. Then we carefully examined the doctor’s medical history and found that his loss of vision was not caused by his “eye or eyes”, but was caused by damage to his optic nerve which is not part of the eye. So, if the doctor’s loss of vision was not caused by his “eye or eyes”, it is not excluded and the disability policy should pay in full according to its terms.

So, what at first blush would seem to be a slam dunk for the insurer turns out to be a slam dunk for our client if he can get the insurance company to see it his way. Although the claim had been denied, we appealed to Unum on behalf of the claimant, offering proof that his occupational disability was not caused “by his eyes” but was caused by his optic nerve ischemia, the optic nerve not being part of his eye.
This condition was no different from a vision impairment caused by a blow to the head which damaged the optic nerve and caused a loss of vision.

Before filing the appeal we gathered the appropriate medical reports and set forth our arguments in what we thought was a clear and cogent manner, particularly pointing out that the exclusion had been written into the policy by the insurance company so that under the law, any question about its meaning would be interpreted against the insurer.

After reviewing this appeal, (copy of which is available on request), Unum reversed its earlier rejection of the claim and now has agreed to pay benefits.
It’s tough to lead an insurer to water, let alone make it drink, following denial of a claim which an insurer believes is clearly excluded by its policy language.

Luckily for our client, experience, research and a narrowly focused analysis made it happen.

Sometimes, we love what we do!




Pinching Pennies

Disability income insurance claimants never expect an easy time with their insurers, but the recession we are going through has toughened insurer attitudes to the point of “Scrooginess”. If you hear money screaming it’s because insurance companies are pinching it so hard it hurts!

Cash and liquid funds are ordinarily “king” in any business, but the recent economic crunch has magnified by many times insurance company resolve to hold on to every dollar for as long as possible, no matter their obligations under the terms of policies with their policyholders.

Lawyers experienced in this field have found in the last year that claims which have been established to a point where they would have been settled in the past are now still being denied by companies who want to hold on to their dollars for as long as possible.

What this means to the disability claimant, at a bad time in his or her life because of being unable to earn income due to illness or injury, is that they now face a steeper hill to climb in dealing with their disability insurers because companies are doing everything they can to delay paying their policyholders for as long as they can.

For policies covered by ERISA, insurers have a built-in delaying mechanism with the discretionary clause which gives the administrator of the ERISA plan the authority to determine whether the claim is covered by the ERISA policy when the claim is first submitted.

It doesn’t take much imagination to conclude that the ERISA administrator, which many times is the insurance company which will have to pay the claim, will tend to protect its cash by denying the claim in the first instance and then to keep denying the claim to protect the insurance company’s cash reserves.

This right to determine a claim’s validity at its inception not only gives the insurer a leg up in the first instance but sets an impediment which the claimant has to overcome throughout the prosecution of the claim. The claimant is always playing second fiddle because the denial sets the tone for the case and must be overcome if the claimant is to prevail.

So, if you are being forced by circumstances to file a disability income claim, be prepared for more flak than insurers usually give such claims (and, believe us, it is usually plenty). But, you can’t wimp out and abandon the claim. That’s exactly what the insurer wants you to do.

If you have a valid claim, pursue it diligently and get the help you need from some one experienced in disability income insurance law and all of its pitfalls. (You can be certain that your insurance company and its cadre of attorneys know all of the pitfalls).

If you have a valid disability claim, be prepared for a longer, harder fight for benefits these days because of the recession. But, also know that you can win this fight!


"No-See-Um" Docs

It’s time litigants and the courts deal with the biased world of insurance company doctors who make diagnoses and reports about claimant disability conditions without ever seeing a live body.

This is today’s world of insurance company “examinations” with doctors who make their living from an insurance company or from a medical agency which makes its living from the insurer.

The U.S. Supreme Court recognized the problem in Metropolitan Life Insurance Company, et al      v. Glenn, 128 S. Ct. 2343 (2008), but there is a long way to go before there is any fairness in the procedure in disability income claims.

We are happy that the Supreme Court finally found that the way insurers get their medical information requires further scrutiny because of the rampant biases inherent in the process.

But, the system, having recognized the problem, should go to the heart of the matter much more quickly and with fewer road blocks. What the court in Glenn recognized is that there is a world of medicine which plays by self-interest rules rather than by the rules of the Hippocratic Oath, i.e.

Since insurance company MDs do not see the claimant in person, they feel they do not owe the ordinary patient-doctor duty to the claimant. These “no-see-um” physicians believe they can range far and wide with their “opinions”, buttering their bread on the side of the one who pays them – the insurance company.

Feeling thus relieved of the professional duty clearly owed a patient in making an examination and diagnosis which the patient will rely on in seeking treatment, insurance company “Independent Medical Examiners” give their imaginations free rein so as to arrive at a diagnosis of “no disability”, which is exactly what their employers, the insurance companies or the insurance companies’ puppet agencies, want.

There is no mystery about this. For many years, courts have allowed Insurers to rely on the reports and diagnoses of doctors who have never seen the patient. And as this trend became more entrenched, insurance companies went out and found MDs who did not practice medicine but who enjoyed reading other doctor’s work so they could naysay it and make loads of money doing so.

Although some courts have found that Glenn opens the door, via discovery, to claimants’ ability to find out the history of each doctor to determine a leaning or bias which might affect his or her opinion, it does not go far enough. It requires court permission to examine the physician’s expertise and inclination to lean in favor of the insurer.

Why not save the court (and the parties) a load of time by having the doctors who are being relied on in a matter provide a curriculum vitae and answers to a standardized questionnaire which will immediately apprise the court and the litigants of details to consider in arriving at a decision on the expert’s impartiality.

Such a system, with appropriate penalties for certifying falsely, would immediately give the court and the litigants a bird’s-eye view of the innate fairness with which the physician undertook the medical duties in the matter. Insight into the relationship of the MD to the claimant, the basis upon which the physician made the report or diagnosis, the ongoing business relationship of the physician with the insurance industry and company, the fee paid and the amount of fees paid in last few years, etc.

The questions seem fairly obvious and would not be a burden for a doctor to answer, especially if the doctor worked often in the disability field. It would not be difficult to propound such a questionnaire with 6 to 8 questions which would do the trick.

But, what a savings for the court and litigants to have the information up front and not have to go through the hearings on motions for interrogatories and all that that pretrial motion practice entails. Every one would have the important information at the start and could evaluate the balance of the evidence with that information in mind.

And, you know what? It wouldn’t surprise us if this sensible procedure led to a lot of insurers dealing much more reasonably with claims if they know that the “no-see-um” doctor defense was now out in the open for all to see.




For The New Year

What better way for us to start the New Year than with resolutions that are apropos for disability income insurance claimants, both ERISA and private.
So, here goes:

For a potential claimant: I will read my policy carefully and ask some one who knows to clarify what stumps me. And, I will do it now, before I become disabled.

For an actual claimant: I will do my best to get myself back on track so that I may go back to work (if I can get a JOB!).

For an insurance company: I will do my best to:

Train my claims employees to consider all of the evidence fairly when assessing claims.

 Halt the practice of getting a stable of shill doctors to “examine” claimants and call these exams “independent”.

Spend more money paying claims and less on fighting people who I know are entitled to benefits.

For an Independent Medical Examiner: I will call them as I see them, reread my Hippocratic Oath and conduct disability physicals so as to “do no harm” to those I examine.

For a treating physician: I will pay strict attention to my medical reports, knowing that insurance companies are just waiting for me to make a mistake or an omission which will prejudice my patient’s claim.

For myself, as a disability income attorney: I will continue to work hard to get all disability claimants the benefits they have paid for with their premiums.

For all of us: A wish for good health and that you never have to make a claim to any insurer for anything!

                   What a Happy New Year that would be!



Continue Reading...

Less Than 30%

 A recent article on reported that Social Security disability claims are increasing rapidly. The article says that the nation’s economic downturn and arrival of the baby boomer generation at the peak years of disability are the causes of this stark upturn.

To get this benefit (commonly known as SSDI), claimants must prove they are unable to work because of a medical condition that is expected to sideline them for at least one year or is expected to result in death. Almost two-thirds of first SSDI applications are rejected by the Social Security Administration, benefits being provided only in the most obvious cases, such as terminal cancer, etc.

The next step after rejection of a first application is a request for reconsideration which is a review of the initial decision. These requests are dealt with, usually within a few months, and approximately 14% of those requests to overturn the adverse decision on the first application, are granted.

The next step for those who pursue SSDI benefits is to file for an in-person hearing before an administrative law judge. At this hearing new evidence may be introduced and the judge, who will make the decision, actually sees and evaluates the claimant. About 55% of these hearings result in a turnaround with SSDI benefits being granted.

The big problem with these hearings by a judge is that it can take up to 2 years from filing for such a hearing to the date of hearing. And, during that wait, the claimant may not have any income on which to live.

What it all boils down to is that fewer than 35% of claimants ever win entitlement to SSDI payments. Not only is the number cut by the findings in the proceedings, but the number is whittled down further by the “wimp”  factor, a pervasive tendency among claimants to give up because of their personality or their attitude that “you can’t fight City Hall”.

Which leads us to wonder – the number of SSDI applications has soared. Will the number of those who get benefits do likewise?




Human, Or...?

Almost 40% of health insurance consumers don’t understand they can appeal an insurance company denial of a claim, according to a recent survey by the National Association of Insurance Commissioners, an organization of State insurance commissioners.

This statistic means a large percentage of policyholders accept insurer denials at face value even though history clearly shows that most of these companies do their best to deny, deny, and deny claims. Add to this group many claimants reluctant to push their claims in the face of what they see as the impenetrable wall of insurance company resistance and one can begin to fathom the rich returns to insurers and their shareholders of insurance company intransigence.

How this works to the benefit of insurance companies may seem to require monumental mathematical machinations. But it is really quite a simple formula. The insurer calculates its underwriting risk by taking a mathematical “worst case” scenario and calculating its premiums based on this scenario. This affords the insurer the highest amount of premium to cover its risk in the event the worst happens. This is good business practice because there is no guarantee that the worst won’t happen.

But, having collected the highest premiums, the insurance company then wages all out war on claimants, denying many perfectly valid claims. These insurers rely on the fact that many claimants don’t know a claim denial can be appealed and also on the natural reluctance of many claimants to undertake an appeal. (See Don’t Be A Wimp).

What a windfall for the insurance companies! They charge the highest prices for their product because they base the premium on the high end of the underwriting spectrum and then they cut their outlay on claims so as to push them to the lowest end of the spectrum. All of the cash saved in between goes to insurance company profits. And, when you are talking health insurance, the cash saved amounts to billions of dollars.

Can anything be done about this system which hits many sick and injured people at the worst time in their lives? Yes, it takes an all out effort by lots of people to get the word out – insurance company denials are not the Gospel. If a claimant has a valid claim, then they must appeal the denial and right the wrong.

Those who can help:

* Friends and family who know that the insurance company turndown is not the last word. They have to let their uninformed relatives and friends also know.
* Doctors who treat claimants and lawyers who pursue claims have to preach to the uninitiated that they have the right to appeal for benefits for which they may have paid premiums for years.
* In the interests of compassion, fairness and morale, Human Resources Departments should inform employees that they have the right to appeal an adverse ruling by an insurance company even though the employer may think its interest lies in paying the fewest claims.
* Web sites and bloggers have to continually get the word out to those seeking information on claims at their sites that there is life after an insurance company claim denial.
* State Insurance Commissioners should mandate that a denial of a claim must be accompanied by a “plain English” and unequivocal outline of the claimant’s right to appeal the decision and the method for filing such an appeal. To be certain of the simplicity and clarity of the information, the State may require the notice to be in a certain form approved by it.

Insurance companies are entitled to deny claims in proper cases. They have to protect the financial stability of their businesses and have a duty to their shareholders.

But, this duty should not include taking advantage of almost 40% of consumers or a policy of denying claims knowing that a substantial percentage of the turned down claimants either don’t know they don’t have to accept the turndown or don’t have the gumption to fight the denial.

This is especially true when many of these claimants are making health claims at a time when they are seriously sick or injured. Denial may be a good way to jack up profits but it’s an awful way for one human being to act toward another.

And, all insurance companies act through the agency of human beings. Or do they?




Chronic Fatigue Is Real

Chronic fatigue syndrome is not hoax. As long-time disability income insurance attorneys, we have seen too many people devastated by this disease to believe that it is not really a severe illness.

People in our line of work generally develop a knack for spotting falsity in claimants trying to wheedle their way into a long term benefits bonanza while still having plenty of capacity to work. We have always found that people truly suffering from CFS are really ill, although medicine has failed to find a viral or bacterial culprit.

Now, it appears that the causes of this devastating affliction are starting to see the light of day.

In an Op-Ed piece in the New York Times, author Hillary Johnson reports that a researcher has found a human gammaretrovirus, XMRV, was present in tissue samples of a significant number of chronic fatigue syndrome patients, going back as far as 1984. Recently discovered, XMRV is the third human gammaretrovirus, the other two being H.I.V. and human lymphotropic viruses, which cause leukemia and lymphoma.

For the full text of the article, see &st=cse.

Hopefully, this discovery is the key to unlocking the mystery of CFS, which has plagued an expanding number of people down through the years. Finding a cause for this affliction would be the first step in finding a cure.

Having seen firsthand the devastation this malady causes in a person’s quality of life, a cure can’t come too soon.




Give Your Doctor Advice


Obviously, the most important person in the cast of characters involved when you have a disabling injury or illness is your treating doctor. You don’t have to be an Einstein to know that. Your doctor’s skill, or lack of it, can make or break your personal future.


But, if you have disability income insurance and are thinking of making a claim, the physician’s importance doesn’t end with the completion of treatments. In fact, the doctor continues as the star of your claim efforts and one unthinking or careless word from your doctor can send your claim to oblivion.

The importance of the claimant’s ability to get the treating doctor to realize the role he or she plays in your claim cannot be overemphasized. Physicians are busy people and are sometimes not too tolerant of demands on their time other than for treating patients. Yet, their word on your condition and your ability to function in a work setting can torpedo a claim faster than a claimant can “take two aspirin and call me in the morning”.

Your doctor’s value is multiplied by the fact that the first notice of claim you send the disability insurance carrier may carry the seeds of self destruction, thereby sinking your claim before it ever leaves the dock. This warning goes for rock solid claims as well as those which may be debatable.

ASAP Is Not A Priority

Many disability claimants are lulled into a false sense of security by having had previous experience reporting an auto accident claim or a stolen piece of property. In those types of claims the first priority is to get the notice to the insurer ASAP. The details can follow later. In a disability claim you have to get the details determined and in order before filing the claim, because an incomplete and/or inaccurate notice of claim can and will be used against you throughout the claims process.

Disability insurance carriers are fully aware of inexperienced claimants being fooled into thinking that a disability claim is similar to filing an accident claim. They have a full complement of analysts and attorneys waiting to dispute and cast doubt on a claim because of an error or carelessness in the initial notice of claim.

The notice becomes an indelible part of the claims record. It follows wherever the claim goes. If poorly done, it will be a bone in the claimant’s throat forever.

That’s why your doctors’ treatment is not completed until a full and fair assessment of your physical and mental problems in relation to your occupation have been presented with your notice of claim. The physician’s report should contain not only the full details of the illness or injury, but also an analysis of what effect the illness or injury will have on the performance of your occupational duties, and a corresponding assessment of the restrictions and limitations which your illness or injury forces upon you. Only then will the doctor have performed the duties required.

Don't Accept The Short End Of The Stick

Getting a physician to report in a disability claim may be difficult because the physician doesn’t understand what is required or because the doctor believes he or she is not getting paid enough to spend the time necessary to do the reporting job correctly. In either case your claim may be severely disadvantaged.

You should have a “straight talk” with your physician as soon as possible if you are considering filing a disability claim. If the doctor doesn’t get it, you must impress upon him or her that, being unable to work, disability benefits are vital to the well-being of the patient – YOU!

The doctor must be made aware that any medical report must not only describe your condition, but also what effect that condition has on your ability to perform the various job duties you have. Only such a report should be submitted to the carrier for consideration. If you or your doctor need help covering all of the bases in the proposed report, get your disability claims attorney into the picture fast so there will be no delay in getting the notice of claim to your carrier.

There is an old saying about the importance of starting off on the right foot. There is no more important place for following the sense of that saying than in making a disability income insurance claim.



Hope This Is Helpful

Do 27 years of legal battle give a foot soldier the right to offer his opinion to the world on how to run a war? I obviously think so, because here I am going out front of the world with my thoughts and ideas on ERISA, other health insurance claims and whatever else occurs to me. 

My hope is that at least one person who reads here will benefit.