Merck's Laundry List

 A recent case caused Merck & Co. to go down swinging on every pitch served up by the Third Circuit when it comes to being arbitrary and capricious. 

Kosiba v.Merck & Company, 2011 WL 843927, set forth a procedural laundry list of errors by a plan administrator which would lead a court to find an administrator’s decision terminating LTD benefits to be arbitrary and capricious. 

In any other “world” but ERISA any procedural error from the following list would almost automatically call for an “arbitrary and capricious” reversal of a decision favoring an administrator, but in ERISA law, where the administrator is highly favored, such a reversal is news.

Here’s the Third Circuit list.  See if you don’t agree.

  • A reversal of benefits determination without additional evidence.
  • A disregard of opinions previously relied upon .
  • A self-serving selectivity in the use of evidence or reliance on self-serving paper reviews of medical files.
  • A reliance on the opinions of non-treating doctors over treating doctors without explanation.
  • A reliance on inadequate of incomplete investigation.
  • A failure to comply with notice requirements of Section 504 of ERISA.
  • Failure to analyze all relevant diagnoses.
  • Failure to consider claimant’s ability to perform actual job requirements.

With all of these strikes against it, one would think that the Court would automatically reinstate the claimant’s benefits without question.  Not so in ERISA.

Although the Court did restore claimant’s benefits, it took pains to declare that if the administrator had denied claimant’s “any occupation” LTD benefits from the start, it would have remanded the claim rather than reinstate her right to benefits.

How come?  Defendant had multiple swings at the ball. 

On this sorry record, why give it more?

Note-Picking Not Nitpicking

We have all heard of nitpicking arguments to try to deny a proposition, but have you ever heard of note-picking arguments used to try to do the same?

In Chambers v. Reliance Standard, 2013 WL 3712415 (S.D.Ohio) the insurance company did just that in an attempt to cut a claimant off from LTD benefits. While the claimant’s doctors found him to be unable to work because of HIV, peripheral neuropathy and the effects of the medication he was required to take, Reliance found themselves a doctor who read the medical reports and based his opinion on side notes the claimant’s doctors wrote, while ignoring the important main notes they wrote about his condition.

Mr. Chambers’s treating doctor had written in his notes that he was “…doing OK with methadone…still has some trouble feeling sleepy.” And another, “pain control is good, but tired and some constipation. Has painful area on right foot. Otherwise no complaints.”

In coming to a decision in favor of Mr. Chambers, the Court agreed with him that Reliance and its doctor “cherry-picked” the medical records to come up with the few notes that seemed to back denial while completely ignoring the meat of his doctor’s reports which substantially supported Mr. Chambers’s claim for benefits.

Reliance also totally ignored the finding by SSA that claimant was totally disabled in coming to its decision to halt claimant’s benefits.

On appeal to the insurance company, claimant submitted a letter from his treating doctor, a specialist in HIV/AIDS, stating that his patient might be able to do a sedentary job for 10-20 hours a week, but that he was not able to work full time in any occupation because chronic fatigue prevented him from performing adequately in any physical capacity for more than 4 hours a day. The doctor further noted that persistent pain would impair his ability to concentrate and that the medications he was taking caused fatigue and lethargy.

Although giving deference to the denial decision of the plan administrator, the Court found that the decision to terminate benefits was arbitrary and capricious and reinstated the plaintiff’s benefits.

In this case, Reliance proved something we have said many times before. Insurance companies have no shame in their quest to keep as much money in their pockets as they can. We were flabbergasted by Reliance accusing claimant’s treating doctor as acting “more as an advocate then a doctor rendering objective opinions”, indicating the physician changed positions to help the patient obtain benefits.

This in the face of insurance company conduct in case after case where they make it a practice to hire only doctors who make their living by being blind to claimant disabilities.

Talk about the pot...


Deference Ploy Is Defeated

As readers of this column are well aware, insurance companies are “stodgy” and “old-fashioned” only when it comes to paying claims. When it comes to defending against claims, insurers are swift, inventive and show very little, if any, conscience.

Even experienced disability income lawyers, are amazed at the lengths insurers will go to try to circumvent laws designed to level the playing field for claimants and policyholders.

A case in point is Curtis v. Hartford Life, 2012 WL 138608 (N.D.Ill.) which illustrates the latest tactic of some insurance companies in trying to undo the protection afforded by state legislatures to protect their citizens against the discretionary language rule in ERISA litigation.  For more on discretionary language.

A U.S. Supreme Court case, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) holds that employers, by adding a few words in their ERISA plan, can give a plan administrator, which is usually the insurance company which would have to pay the claim, discretion to decide whether or not a claim is valid. More importantly, Firestone requires reviewing courts to give deference to that decision. For more on deference.

Unless the claimant can show the denial by the insurer was “arbitrary and capricious”, a very tough burden, courts are forced by Firestone to go along with the denial of benefits, even if the court feels the denial is wrong.

To make the cheese even more binding, ERISA preempts state action in ERISA matters, one of the few exceptions being the wording of policies.

For too long, Firestone gave insurance companies the best of the bargain. Then, several years ago, the National Association of Insurance Commissioners (insurance officials from the 50 states) drafted a model rule for prohibiting the use of discretionary language in policies. In states which have adopted that rule, discretionary language is no longer permitted in policies issued in that state. Gone is this free ride for insurers.

At first, insurance companies attacked the policy language prohibitions as actually being covered by ERISA and, therefore preempted. This attack was foiled by Standard Ins. Co. v. Morrison, 584F.3d 837(9th Cir. 2009), in which the court upheld the state’s right to determine the language of insurance policies issued in its state and held such power exempt from ERISA preemption.

Since the preemption argument didn’t work, Hartford tried something else:
It used an insurance trust that was set up in Maryland, a state which doesn’t have a rule prohibiting discretionary language in policies (citizens of Maryland, why do you permit this?).

Hartford then had the trust issue the policy to the Curtis’s employer in Illinois, taking the position that the discretionary language prohibition does not apply because the policy is issued in Maryland, not Illinois. For good measure, Hartford added policy language that the policy was to be interpreted according to Maryland law which does not prohibit discretionary language.

However, the court did not buy this “misdirection” ploy, clever as Hartford thought it might be. The court found the tactic a subterfuge, and found that the actual terms of the insurance contract was the relationship between the insured’s employer and the insurance company. Therefore, the policy language was subject to the Illinois discretionary language prohibition.

As to Hartford’s claim that the policy called for Maryland law to prevail, the court said no, citing the Illinois State Supreme Court’s decision in Hofeld v. Nationwide Life, 332 N.E. 2d 454 (1975) , which held that such a choice of law provision would be upheld so long as no provision of the insurance policy was in conflict with the public policy of the state. In this case there was a clear conflict with the public policy of Illinois which prohibits discretionary language.

But, never fear. In their never-ending battle to pay as few claims as possible, insurers are bound to come up with new ways to try to resuscitate the deference “hammer” that Firestone v. Bruch provides for them.






The "Sole" Of Discretion

Lawyers sometimes have a habit of using more words than necessary. Many times this just bores the audience. Sometimes, it really, really hurts.

A case in point is the rule banning the use of the discretionary clause in health insurance policies in New Jersey. Discretionary clauses have been used by courts since the 1980s to require ERISA claimants to show that disability income claim denials by employers and insurance companies are “arbitrary and capricious” before the merits of the claim can be considered. This sea change in ERISA jurisprudence was based upon the Supreme Court decision in Firestone v. Bruch, 489 U.S. 101 (1989).

In 2006, the New Jersey Department of Banking and Insurance responded to our request to do something about this unfair burden on plaintiffs in a relatively prompt manner for a state agency. (As an aside, it has taken the State of New York years longer to respond).

But, in drafting the regulation, the New Jersey Department of Banking and Insurance felt it necessary to insert the unnecessary word “sole” before the word “discretion”, and to add language about review which accomplishes nothing as the law now stands. So, now the regulation (N.J.A.C. 11:4-58.3) reads as follows:

“ No individual or group health insurance policy or contract, individual or group life insurance policy or contract, individual or group long-term care insurance policy or contract, or annuity contract, delivered or issued for delivery in this State may contain a provision purporting to reserve sole discretion to the carrier to interpret the terms of the policy or contract, or to provide standards of interpretation or review that are inconsistent with the laws of this State. A carrier may include a provision stating that the carrier has the discretion to make an initial interpretation as to the terms of the policy or contract, but that such interpretation can be reversed by an internal utilization review organization, a court of law, arbitrator or administrative agency having jurisdiction.”

Why is it worded this way? Who knows? The word “sole” adds nothing and opens wide the door to confusion.

When we first saw the proposed regulation, we thought that the word “sole” was unnecessary and was very likely to cause a problem in the courts. We wrote to the Department of Banking and Insurance and objected to this language – to no avail. So, the word “sole” remained in the regulation, lying in wait for some poor claimant to fall prey to its tendency to confuse.

Lo and behold – it happened.

In the case of Evans v. Employee Benefit Plan, et als, 2009 WL 418628 (3rd Cir. 2009), which was decided on other grounds, the Court posited that the New Jersey ban on giving deference in insurance policy language only applied to policies which gave “sole” discretion to the administrator. Since the policy language used only the word “discretion” and did not use the word “sole”, the Court reasoned that the regulation would not apply, even though the policy gave no discretion to make decisions to any other person or entity!

What is “discretion” but the authority to decide an issue? If you are the only one with authority to decide an issue, what can the word “sole” add to your power of discretion? If more than one person has discretion to decide an issue, then none of them, alone, has discretion without the other(s).

As we had previously pointed out to the NJ Banking and Insurance Commission when N.J.A.C. 11:4-58.3 was proposed, amendment to N.J.A.C. 11:4-58.3 is required forthwith. The NJ Department made it clear in 2006 that giving deference to the administrator is against public policy. N.J.A.C. 11:4-58.3 was undoubtedly intended to ban the discretionary language from disability income insurance policies in the State. Why let the unnecessary word “sole” cause any confusion so as to threaten the policy rights of New Jersey citizens when they become disabled?

We intend to pursue the issue of amendment with the State until it goes into effect. Otherwise, there will be cases in which New Jersey disability income claimants are deprived of what is due them, because of an unnecessary extra word in the regulation.




More States Dump "Deference"

Texas has now joined New York in trying to level the playing field for their ERISA disability income insurance claimants. Both states have proposed new regulations designed to negate the deference courts give to insurance companies in deciding disability income cases under ERISA.

If the regulations are finalized and become law, New York and Texas will join more than 20 other states in giving their citizens an even chance to prove their right to disability benefits.

These problems started with the case of Firestone v Bruch, 489 U.S, 101, when the U.S. Supreme Court found that, under the court’s interpretation of trust law, ERISA plans could be written so that discretion is given to claims administrator’s in deciding claims, and courts would then be obliged to give deference to the administrator’s findings.

This led to the concept of “arbitrary and capricious” review in ERISA disability cases. Under Bruch, the administrator’s denial of a claim would be upheld unless the claimant could show that the denial was “arbitrary and capricious”, a term of art in the law. This rule raised a mountain in the path of the claimant. If there was any reasonable basis for the denial, it would be upheld, no matter how compelling the claimant’s contrary evidence might be.

The major problem with giving deference is that the administrator is many times the insurer who pays the claim. So, if the administrator approves the claim, it also has to pay the claim out of its own funds. This deference power in a conflict of interest situation would try the moral fiber of an angel. So, you can imagine what it does to insurance companies which are far from angels!

There have been many examples of how this conflict works against disabled employees, including the most infamous one – the Unum 49-state investigation of its claims handling practices, which led to a large settlement with Unum and the reopening for review of more than 220,000 Unum case disability income denials.

What makes this deference requirement of Bruch even more problematic for claimants is the principle of preemption which makes federal law completely controlling over state law in ERISA matters. Courts have held that states have very little to say in these cases, with one big exception – states have the right to determine the language of insurance policies in their jurisdiction. In policy language, state word is law.

As a result, many states which object to insurance companies getting the upper hand over their citizens because of Bruch, have banned the use of discretionary language which favors insurers, in approving the policy forms used in their state.

One would think that every state would look out for its people in this way, especially when it takes so little effort.

What is surprising is that about half of the states haven’t done it yet, leaving the insurers with the upper hand against their own people.


Stand Up For Your Rights

Sometimes it’s a claim for millions of disability dollars and sometimes it’s a claim for $20,000. But, it’s all part of our ongoing, never-ending battle with disability insurance carriers to get people what they paid for and are entitled to – contractual policy benefits, especially when the coverage is governed by ERISA.

A while back, our firm was asked to assist Vermont counsel, Anderson & Eaton, P.C., Rutland, VT, appeal a Federal District Court’s summary judgment decision upholding Vermont Blue Cross & Blue Shield’s (BCBS) refusal to pay for a “standing component” for their client’s motorized wheelchair. The burden we had to overcome was the tough “arbitrary and capricious” standard because the plan, under ERISA, gave BCBS of Vermont discretionary power to determine eligibility for benefits.

There was no argument about the claimant’s disability – he was paralyzed and needed the wheelchair. However, when he asked for a “standing component” which would lift him up and hold him in a standing position, BCBS refused, purportedly on two grounds:

* There was no proof that the “standing component” was medically necessary because no peer reviewed clinically controlled studies showed improved net health outcomes, and
* There was no evidence that such a feature would help or restore the claimant’s health. Instead, BCBS argued, the standup component would be simply a “convenience” for the claimant without any real therapeutic value.

On appeal, the United States Court of Appeals for the 2nd Circuit rejected the first argument because it found no requirement in the ERISA plan contract supporting the lack of peer reviewed clinically controlled studies. Rather it found that the actual plan documents outlined a lower standard as a requirement.

As to the second ground, the court found it to be factually inaccurate. Claimant offered 10 medical journal articles which supported the use of a “standing component”, citing various medical benefits of the component for patients with claimant’s condition.

In overturning the summary judgment, the 2nd Circuit remanded the case to the Vermont Federal District Court for further proceedings.

But, we are happy to report, BCBS of Vermont saw the handwriting on the wall and has agreed to settle the matter equitably thereby ending the need for further litigation.

To read the opinion, click here.