Recently in ERISA Category

Insurer Must Take Into Account Award of Social Security Disability

October 1, 2014

Most long term disability benefit plans or policies require claimants to apply for Social Security Disability benefits in addition to applying for long term disability benefits. The reason being that the insurance is able to offset any SSDI award against any monthly long term disability amount that is owed to the claimant under the policy. The SSDI monthly benefit is a dollar-for-dollar offset against what your insurance company pays you in terms of a monthly long term disability benefit payment. For example, if you are receiving $2,000 a month in long term disability and you are subsequently awarded an SSDI benefit of $1,000 then your long term disability benefit payment is reduced to $1,000 according to the terms of the disability policy. Because this offset is so valuable to the insurance companies, they will be persistent in their demands that you pursue your claim for SSDI benefits.

Unfortunately, we see many individuals who are receiving long term disability benefits, are then awarded SSDI and subsequently their insurance company terminates the long term disability benefit claim. This happens despite the fact that the insurer may have hired a company, such as Allsup or the Advocator Group, to represent the claimant in the SSDI process. It seems unfair that the insurance company can represent to the Social Security Administration that you are totally disabled but then terminate your benefits claiming you are no longer disabled for purposes of the disability policy.

When we have clients in this position, we first of all point out to the insurance company that the definition of disabled for purposes of SSDI is more stringent than the definition of Disabled under the terms of the policy. The SSA defines "disability" as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §423(d)(1)(A).

Oftentimes, the insurance company will ignore the SSDI findings of total disability or fail to analyze or distinguish the SSA's fully favorable decision in any of its denial letters. The courts have held that it is improper for the insurer to ignore the SSA's decision of total disability given the fact that it is important proof that the claimant meets the definition of Disabled under the policy. "This definition is a stringent one, and an administrator's failure to address a claimant's SSA disability finding is thus especially questionable when the ERISA plan's disability definition is less exacting." Holzmeyer v. Walgreen Income Protection Plan for Pharmacists and Registered Nurses, 2014 WL 4388625, *18 (S.D. Ind. Sept. 4, 2014).

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Disability Claims Denied by Sedgwick CMS

August 16, 2014

Sedgwick Claims Management Services ("CMS") is a third party claims administrator hired by insurance companies and employee benefit plans to manage disability claims. If your employee benefit plan uses Sedgwick CMS as a claims administrator, then Sedgwick CMS is responsible for deciding whether your disability claim is approved or denied. As well as processing and adjudicating disability claims, Sedgwick holds itself out as providing the following services:

The company specializes in workers' compensation; disability, FMLA, and other employee absence; managed care; general, automobile, and professional liability; warranty and credit card claims services; fraud and investigation; structured settlements; and Medicare compliance solutions (website last visited August 16, 2014).

Sedgwick CMS is headquartered in Memphis, Tennessee and is one of the largest third party administrators in the nation. Many Indiana employers hire Sedgwick CMS to serve as their claims administrator for employee benefits. Employee benefit plans that currently use or previously used Sedgwick CMS include Eli Lilly & Company, AT&T, Comcast, Walgreens, Franciscan Alliance Inc., SPX Corporation, Ascension Health, Hewlett-Packard, PepsiCo Inc., International Paper, UnitedHealth Group, and many others. If employees of these companies apply for short term or long term disability benefits, Sedgwick CMS is responsible for processing the claims and deciding whether benefits should be paid. As a third party administrator, Sedgwick CMS does not actually pay the disability benefits. Rather, the employee benefit plan or insurance company pays disability benefits if Sedgwick CMS approves the claim. Often, the employee benefit plan has little involvement in the disability claims process, if any.

Like disability insurance companies, Sedgwick initially reviews a disability claim by obtaining medical records, requiring the claimant's treating physician to complete questionnaires, and having in-house staff (nurses, doctors, vocational analysts, claims analysts) review the claimant's file. If the claim is denied and the claimant appeals, then Sedgwick's review of the appeal will likely include the use of contracted record reviewing physicians. If the claim is approved, Sedgwick may call or write to the claimant frequently in efforts to obtain more information. Sedgwick may also require the claimant to undergo an "Independent Medical Examination" or "Functional Capacity Evaluation."

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Proper Contents of a Denial Letter

August 7, 2014

The Employee Retirement and Income Security Act ("ERISA") mandates that insurance companies and claims administrators provide claimants with the specific reasons for the denial or termination of employee benefits and the reasons for the denial must be in writing. See Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 688 (7th Cir. 2004), cert. denied, 543 U.S. 869 (2004). The Department of Labor has promulgated regulations under ERISA which require certain information to be contained in a denial or termination of benefits letter. Specifically, 29 C.F.R. §2560.503(g) states:

Manner and content of notification of benefit determination.

(1)....The notification shall set forth, in a manner of calculated to be understood by the claimant -

(I) Reference to the specific plan provisions on which the determination is based;

(II) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

These requirements ensure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present his case. Halpin v. W.W. Granger, 962 F.2d 685 (7th Cir. 1992). Describing the additional information needed, as required by this section, enables a claimant to gain a better understanding of the inadequacy of his claim and to gain a meaningful review by knowing with what to supplement the record. Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir. 1983).

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Recent Developments in Denied Medical Claim Cases

July 8, 2014

In Kenseth v. Dean Health Plan, Inc., 722 F.3d 869 (7th Cir. 2013), Ms. Kenseth had gastric band surgery in 1987. Eighteen years later, Kenseth's physician recommended a second operation to address the severe acid reflux and other serious health problems that had arisen since the gastric band surgery. The medical policy specifically excluded treatment for morbid obesity; however, when Ms. Kenseth called to get approval for the second surgery, a customer service representative told Kenseth over the phone that the medical plan would cover the procedure subject to a $300 co-payment. Subsequently, all of the medical claims related to the second surgery, totaling approximately $78,0000, were denied by the health plan as being related to morbid obesity.

The Court was troubled by the health plan leading Kenseth to believe that the second procedure would be covered when Kenseth called for certification and then denying the claims after the surgery. The Court explained that fiduciaries have a duty to disclose material information to plan participants, which includes a duty not to mislead and an affirmative duty to communicate material facts affecting the interests of plan participants. Although negligence of the individual in supplying advice is not actionable as a breach of fiduciary duty, a fiduciary may be liable for failing to take reasonable steps in furtherance of an insured's right to accurate and complete information.

The court in Kenseth reversed the district court opinion noting that where the defendant, by encouraging plan participants to call for coverage information before undergoing procedures, by telling plaintiff that defendant would pay for the procedure, and by not alerting plaintiff that she could not rely on the advice she received, lulled plaintiff into believing that defendant would cover the costs of the procedure...and where plaintiff did not obtain alternate coverage because she believe she was covered, plaintiff could seek make-whole money damages as an equitable remedy under § 502(a)(3) if the administrator's breach of fiduciary duty caused her damages. The Court seemed most bothered by the fact that there was no warning in the medical plan to plan participants that they could not rely upon the advice given to them by the customer service representatives nor was there any clear explanation given as to how a plan participant could obtain a definitive answer on whether a particular procedure would be covered. The Seventh Circuit ended up remanding the case to the district court to determine whether there was a breach of fiduciary duty, whether the breach was the cause of any harm to plaintiff, and what form of equitable relief was appropriate in light of circumstances of case.

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Functional Capacity Evaluations in Disability Claims

May 14, 2014

Functional Capacity Evaluations ("FCEs") are a type of test used to determine the severity of someone's physical impairments. FCEs are common in disability insurance claims, workers compensation claims, and other contexts where the level of a claimant's injury or sickness needs to be evaluated.

FCEs are usually administered by a physical therapist or physician who specializes in occupational medicine. Common measurements during an FCE include how much the claimant can lift, how much they can push and pull, how long they can walk and stand, how long they can sit, the ability to reach in all directions, the ability to grasp and manipulate with each hand, the degree to which a claimant can move all joints, the ability to squat and bend, and the ability to stoop and balance. FCEs can vary in duration: some FCEs are very brief - only a couple of hours - and some FCEs are actually performed over the course of two days.

In long term disability insurance cases, many insurance policies allow the insurance company to request that a claimant undergo an FCE at a facility of their choosing. A claimant's refusal to undergo such testing may give the insurance company grounds to deny disability benefits. Therefore, it is likely that the claimant will have to comply with the insurance company's request for an FCE. However, a claimant may want to consider the following tips before attending an FCE:

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Medical Claims Excluded as Experimental

April 22, 2014

Exclusionary clauses for experimental or investigational treatment may either be included under the "medically necessary" provision of a medical policy or as a separate exclusionary clause in the plan. Either way, exclusions for experimental treatments provide yet another obstacle in getting certain medical claims paid under ERISA plans. In cases where benefits are denied as experimental or investigational in nature, courts are often called upon to interpret whether the language governing the experimental exclusion is ambiguous or whether the insurance company's denial under the provision was arbitrary and capricious.

The standard for what is "experimental" must be defined in the plan and cannot be "a floating standard which could rise or fall in any fact situation." Bucci v. Blue Cross-Blue Shield of Connecticut, Inc., 764 F.Supp. 728, 733 (D.Conn. 1991). Courts may also look to the body of the medical community's acceptance in determining whether a treatment is experimental. An insurer's failure to consider whether a relevant segment of the medical community accepts a procedure as being within a range of appropriate medical treatment may suggest an arbitrary and capricious review of a claim. The Bucci court analogized this review to the malpractice setting, stating, "If the contemporary standards of the medical community would deem the treatment applied or used in the circumstances of the particular case, as consistent with the exercise of medical judgment, in the view of a reasonable number of practitioners qualified to treat the malady in question, then the treatment must be found to be accepted medical practice. If such were the case, then a finding that the treatment was not so accepted could only be arbitrary and capricious." Because the standard for experimental treatment relied upon by the plan administrator was not clearly defined in the plan, the court determined that the denial was arbitrary and capricious.

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The Impact of Surveillance on Disability Claims

March 19, 2014

Disability insurance companies may look to more than just medical records and reports when determining whether a claimant qualifies for disability insurance benefits. Insurers have long used private investigators to perform surveillance of claimants in order to obtain additional information regarding the claimant's restrictions and limitations. Oftentimes, the private investigators are asked to document their observations with video to provide tangible evidence of the claimant's daily activities and abilities. Depending on the information gathered, reports from the investigators' surveillance and the associated video evidence can lead to a denial of disability benefits. Generally, when courts review video evidence they look at whether the observations in the surveillance video are consistent with the claimant's reported restrictions and limitations.

A common strategy for disability insurers is to schedule surveillance at a time when the claimant has a scheduled appointment with their doctor or a previously scheduled medical examination. This provides the private investigators with a known opportunity to observe the claimant outside of their home. Inevitably, this allows the surveillance team to observe the claimant driving or riding in a vehicle. In Mote v. Aetna Life Insurance Co., 502 F.3d 601 (7th Cir.2007), Aetna's decision to deny the plaintiff's disability benefits was upheld by the court. Aetna based their decision in part on video surveillance showing the plaintiff running errands, driving to medical appointments, and loading groceries into her car. This evidence was used to establish that the plaintiff could work in "any occupation." However, video surveillance in Gessling v. Grp. Long Term Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F. Supp. 2d 856, 864 (S.D. Ind. 2010) only showed that the claimant was capable of driving a little longer than the fifteen minutes he reported to a Hartford Life representative. The court in Gessling found that this video evidence "says nothing useful about (the claimant's) ability to work in his own occupation."

Similarly, the Northern District of California found that surveillance evidence depicting a plaintiff "walking, driving and doing errands ... for a couple of hours ... does not mean that [that p]laintiff is able to work an eight-hour a day job." Thivierge v. Hartford Life & Accident Ins. Co., 2006 WL 823751, at *11 (N.D.Cal. March 28, 2006). The Eastern District of California reached the same conclusion in a case where Hartford procured surveillance video of the plaintiff driving to the store, visiting a friend, carrying a small bag, and sitting through an interview while taking numerous breaks. Leick v. Hartford Life & Acc. Ins. Co., 2008 WL 1882850 (E.D. Cal. Apr. 24, 2008). The court determined that the plaintiff's documented activity on a "good day" did not contradict that the plaintiff was unable to perform a full-time sedentary job. Id. See also Hunter v. Life Ins. Co. of N. Am., 437 F. App'x 372, 378-79 (6th Cir. 2011) (surveillance of a plaintiff driving to her functional capacity evaluation, as well as other activities of daily living, did not indicate that Hunter can perform all the physical duties of her former occupation).

Key considerations when reviewing surveillance evidence of driving include how long the claimant is operating the vehicle and where they are driving to during the surveillance. Courts seem to understand that driving only 15 or 20 minutes does not reveal much about a person's ability to work in a full-time job. Moreover, if the claimant is driving to a place where they are required to attend, like a doctor's appointment or a trip to the grocery store, then courts have often found this type of activity to be reasonable unless the claimant has reported that they are unable to drive at all.

There have been occasions where a court reviews surveillance evidence of a claimant engaging in activity that is physical in nature. One such case is Holoubek v. Unum Life Ins. Co. of Am., 2006 WL 2434991 (W.D. Wis. Aug. 22, 2006). In Holoubek, Unum obtained surveillance showing the plaintiff engaging in activity including (1) driving an automobile, (2) operating a forklift at a construction site, (3) lifting various objects, (4) walking and bending forward at the waist; and (5) leaving his apartment on four continuous days. In this case, Unum was determining whether the plaintiff could return to his job as a materials manager. Unum terminated the plaintiff's benefits and in the district court's decision, the judge found that Unum's four days of surveillance "is of little value because it fails to demonstrate that plaintiff could sustain such a level of activity on a continuous basis." While relying on the case of Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir.2003), the Holoubek court found that the plaintiff was in a desperate situation and forced "himself to work despite an illness that everyone agree[s] [is] totally disabling." While the court in Holoubek admitted that the surveillance video showed activity inconsistent with the plaintiff's claimed restrictions and limitations, the court ruled that Unum's termination was arbitrary and capricious because Unum failed to explain how plaintiff's observed surveillance activities established that he could perform the material and substantial duties of a materials manager.

Another case examining surveillance footage showing physical activity is Cross v. Metro. Life Ins. Co., 292 F. App'x 888 (11th Cir. 2008). The surveillance footage showed the plaintiff occasionally bending at the waist, squatting, carrying equipment of an unknown weight, and coaching baseball. MetLife characterized the plaintiff's observed activity as "pitch[ing] baseballs to a player in the batting net", although the court's review found that the plaintiff was merely "sitting on a bucket next to a batter and tossing baseballs a few feet up in the air for the batter to hit." MetLife also attempted to bolster its argument by pointing out what the plaintiff was not doing in the video, namely not using braces or supports, not limping, and not exhibiting signs of impairments or pain. Id. The court decided that the surveillance footage is only a "snapshot of Cross's activities throughout the day" and "these snapshots do nothing to disprove Cross's reports of pain." The court noted that the plaintiff increased his dosages of pain medication during his coaching activities since these activities caused him more pain. Even considering MetLife's surveillance video, the Eleventh Circuit held that MetLife's determination that plaintiff is capable of performing his prior occupation is not supported by reasonable grounds.

One case involving Liberty Mutual included three occasions of surveillance video over a four year period. Minix v. Liberty Life Assur. Co., 2005 U.S. Dist. LEXIS 15309 (N.D.Ind.. July 22, 2005). In 1999, the plaintiff, who suffered from ulcerative colitis, was observed performing activity at a horse farm. The surveillance showed Minix enjoyed riding and showing horses on good days. In 1999, Liberty Life did not change its determination that Minix was totally disabled. Id. Again in 2000, the Liberty Life performed surveillance of the plaintiff and he "was observed driving his truck, moving hay, unloading his truck, and sitting in a parking lot for two hours and forty minutes." Id. Still, Liberty Life did not change its opinion that Minix was totally disabled. Yet again in 2002, Liberty performed surveillance and observed Minix riding a "horse for approximately one hour and twenty minutes, walking around, bending at a 90 degree angle to pick up sticks, and sitting on the porch for approximately forty minutes." Id. After the third surveillance period, Liberty terminated Minix's disability benefits claiming that he could return to work in an occupation other than his regular occupation. The court found that the surveillance video did not prove that Minix can return to work and reasoned:

Minix's ability to bend over and pick up sticks, however, is not determinative of whether he is able to perform any occupation. Simply put, ulcerative colitis does not affect these capabilities. Rather, it is Minix's sudden pain and urgent need to use the bathroom which cause interruptions of his work.

In another case involving Hartford Insurance Company, the court reviewed video surveillance of the claimant, among other things, walking for about a mile on five occasions for approximately half an hour. Hanusik v. Hartford Life Ins. Co., 2008 WL 283714 (E.D. Mich. Jan. 31, 2008). Hartford terminated the plaintiff's disability benefits based on this level of activity. The court pointed out that the activities performed by the plaintiff were not ones the Plaintiff alleged she was disabled from performing. The court in Hanusik recognized that the surveillance did not reveal that the plaintiff could perform any single or combination of activities for an eight or four hour period, or strenuously exert herself in consecutive days. The court also did not find the surveillance video reasonably reliable to determine the extent of the plaintiff's fatigue symptoms. Further, the court did not find the surveillance video as credible factual support for Hartford's decision to terminate benefits and therefore the court ruled that the Hartford's determination was wrong.

If your disability claim has been denied in whole or part due to surveillance captured by the insurance company, contact the O'Ryan Law Firm toll free at (855) 778-5055.

Disability Coverage through Liberty Mutual

March 6, 2014

Based in Boston, Massachusetts, Liberty Mutual employs over 50,000 people in more than 900 locations throughout the world. As of December 31, 2012, Liberty Mutual Insurance had $120.1 billion in consolidated assets, $101.5 billion in consolidated liabilities, and $36.9 billion in annual consolidated revenue. The company, founded in 1912, offers a wide range of insurance products and services, including personal automobile, homeowners, workers compensation, commercial multiple peril, commercial automobile, general liability, global specialty, group disability, fire and surety.

Liberty Mutual Group Benefits department provides mid-sized and large businesses with short- and long-term disability insurance products and group life insurance. Many Indiana employers, such as Dow Chemical and Subaru, have purchased short term disability group coverage and long term disability group coverage through Liberty Mutual. Although, oftentimes Liberty Mutual is only the claims administrator for the short term disability coverage and does not insure the short term disability benefits. By issuing the short term and long term disability policies, Liberty Mutual agrees to pay income replacement benefits to employees who become disabled due to injury or illness.

On their website Liberty Mutual notes that as far as Long-Term Disability:

• Between ages 35 and 65 seven in ten employees will be disabled for five weeks or longer.
• Only 15% of LTD claims last longer than five years.
• 98% of Liberty Mutual Insurance's eligible claimants were approved for Social Security Disability Insurance benefits in 2010.

The O'Ryan Law firm has represented numerous clients in short term and long term disability claims which are insured by Liberty Mutual. If you have submitted a claim to Liberty Mutual for disability benefits, it is important to collect all of your medical records and submit them to Liberty Mutual to insure that Liberty Mutual has all of the critical documentation of your disability. Also, it is extremely helpful to have your physician, therapist, or nurse practitioner write a detailed letter to Liberty Mutual explaining how your medical conditions prevent you from returning to work. Letters from friends, co-workers and supervisors can also be helpful in establishing the extent of your restrictions and limitations due to your impairing medical conditions. If Liberty Mutual insists on denying your disability claim, please contact the O'Ryan Law Firm toll free at (855) 778-5055 to further discuss your disability claim with Liberty Mutual. We represent individuals throughout the State of Indiana in Liberty Mutual disability claims including all of the major cities such as Indianapolis, Bloomington, South Bend, Fort Wayne, and West Lafayette.

Understanding the Requirements of your Long Term Disability Policy

December 16, 2013

When a person with a disability is completing his or her application for long term disability benefits, they may not realize the terms they must meet in order to receive disability benefits. While long term disability policies can vary greatly, there are some common provisions found within the policies. The below provisions are commonly found in long term disability policies, but please carefully review your policy to learn the specific requirements of receiving long term disability benefits.

Definition of Disability
Every long term disability policy will include a definition of Disability or Total Disability. It is common for this definition to be broken into two parts. Often, the first part defines disability as an injury or illness that prevents the claimant from performing the duties of his or her own occupation. The second part pertains to the disability after a set time period, such as 24 months. This second part defines disability as the same injury or illness that prevents the claimant from performing the duties of any occupation.

It is also worth noting that there can be important terms within the definition of disability. For example, some definitions define "own occupation" as one that is performed in the national economy and can be found in the Dictionary of Occupational Titles. Another example is the definition of "injury" or "illness", which may exclude conditions such as alcoholism or injuries from self-harm. The term "any occupation" may be defined as an occupation that the claimant's experience and training reasonably allows. Because of the important terms within the definition of disability, you will want to carefully review the policy's definition of each term, so that you fully understand the requirements within the definition of disability.

Elimination Period and Other Requirements
Many definitions of disability include more requirements than those mentioned above. One of the most common additional requirements is that a claimant meets an elimination period. An elimination period is usually defined as a set amount of time (such as 180 days) that a claimant must prove to be disabled before becoming eligible for long term disability benefits. An elimination period is important in two ways: 1) a claimant must provide medical documentation showing that they were disabled during this time frame and 2) a claimant will not receive long term disability benefits until the elimination period is exhausted.

Because so many variations in the requirements of disability exist, it is crucial to examine the entire long term disability policy carefully. One common requirement in disability policies is that the insured's disability prevents him from earning 60% or more of his previous earnings (this provision may also allow a person to work part-time, but still qualify for long term disability benefits). An insurance policy could require that a claimant maintains regular treatment with his physician. Other policies may even require that a disability be supported by objective evidence, such as blood tests, x-rays, or MRIs. Some policies may require that a person be approved for disability benefits by the Social Security Administration.

Continue reading "Understanding the Requirements of your Long Term Disability Policy" »

Lack of Examination In Denying a Disability Claim

November 6, 2013

If your short term or long term disability benefits have been denied or terminated chances are high that the insurance company has utilized a record reviewing physician to review your medical records and conclude that you are not disabled, without having ever examined you in person. The utilization of record reviewing physicians has become the favorite tactic to deny claims by many of the disability insurance companies such as Cigna, Prudential, Hartford, Sedgwick, Liberty Mutual, Unum and Lincoln Financial. For many of our clients, there are significant medical records and reports from their treating physicians supporting their disability claim yet the insurance company denies the claim because a doctor, who never spoke to or examined the client, says that the client is not disabled and can return to work.

Over the past few several years, the courts have become less tolerant of claims administrators utilizing a bunch of record reviews to deny legitimate claims. Two recent cases from the Southern District of Indiana followed this trend and rejected the opinions of several record reviewing physicians while reversing the denial of benefits. In Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856 (S.D. Ind. 2010), Judge Hamilton held that three paper reviews were insufficient to overcome the medical records and reports from the plaintiff's treating physician. Specifically, Judge Hamilton found:

At the very least, a mere record review is not sufficient to provide a reasonable basis for discounting Dr. Walker's and Gessling's accounts of his pain and resulting limitations. The court does not mean to suggest that it is reviving any requirement of special deference to a treating physician. Far from it. See Nord, 538 U.S. at 825, 123 S.Ct. 1965 (holding that ERISA does not require plans to provide such deference). But to disagree with an apparently sound opinion of a treating physician, a plan administrator needs something much more solid than the consulting physicians provided in this case. See id. at 834, 123 S.Ct. 1965 (reminding courts that plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including opinions of a treating physicians). The medical records did not show that Dr. Walker and Gessling must have been correct--the problems of subjective pain and resulting limitations are difficult to evaluate based on records alone. But after reviewing the records, the reviewing physicians failed to come to grips with the real problem, the whole person, and the history that corroborated his complaints of pain. For these reasons, the records reviews in this case did not provide a reasonable basis for denying the disability insurance benefits for which Gessling and his employer paid substantial premiums to
Hartford Life.

Similarly in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7 (S.D. Ind. Sept. 10, 2010), Judge Lawrence rejected the opinions of three record reviewers to reverse Hartford's denial of disability benefits and held:

Furthermore, Hartford's reviewing physicians never examined Anderson. All three physicians relied on treatment records supplied by Hartford. The Court is not suggesting that it is recognizing a treating physician rule in the ERISA context. However, for Hartford to disagree with the apparently sound opinions of Anderson's treating physicians, it needed to rely on something more solid than the opinions of the consulting physicians. See Nord, 538 U.S. at 834 (2003) (cautioning plan administrators that they may not arbitrarily discount a treating physician's opinion). In short, the reviewing physicians "failed to come to grips with the real problem, the whole person, and the history that corroborate [her] complaints of pain." Gessling v. Group Long Term Disability Plan for Emps. of Sprint/United Mgmt. Co., 693 F.Supp.2d 856, 866 (S.D.Ind.2010) (Hamilton, J.). Accordingly, the reviewing physicians' opinions and their record review did not provide a reasonable basis for denying Anderson's application for disability benefits.

Likewise, an Indiana jury has rejected an insurer's attempt to terminate a legitimate disability claim based on a bunch of record reviews. In Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 698-701 (Ind. Ct. App. 2007), the plaintiff filed an action against her long term disability insurer, in Marion County under state law, alleging that the insurer wrongfully terminated her disability benefits. In terminating the claim, Lumbermens relied upon the opinions of six record reviewing physicians to reach the conclusion that the plaintiff was no longer disabled. The jury rejected the opinions of all six of Lumbermens' record reviewing physicians to conclude that Lumbermens wrongfully terminated the plaintiff's disability benefits and breached the insurance contract as well as Indiana's covenant of good faith and fair dealing. As damages, the jury awarded the plaintiff $22,583 on the breach of contract claim and $1,500,000 for the defendant's breach of the covenant of good faith and fair dealing.

Indiana courts, and an Indiana jury, have found that record reviews are not sufficient to overcome the medical records and reports from treating physicians who have the opportunity to observe, examine and treat the claimant. If your disability benefits have been denied or terminated without a medical examination, contact the O'Ryan Law Firm for further assistance and advice.

Disability Claims with Lincoln Financial

September 25, 2013

We have represented numerous clients in short term disability and long term disability claims after Lincoln Financial, also known as Lincoln National, has denied or prematurely terminated the client's disability benefits claim. Lincoln traces its origin to June 12, 1905, in Fort Wayne, Indiana, as the Lincoln National Life Insurance Company. Perry Randall, a Fort Wayne attorney and entrepreneur, suggested the name "Lincoln," arguing that the name of Abraham Lincoln would powerfully convey a spirit of integrity. In August, 1905 Robert Todd Lincoln provided a photograph of his father, along with a letter authorizing the use of his father's likeness and name for company stationery and advertising.Lincoln 3.jpg

Lincoln National Corporation is a Fortune 250 American holding company, which operates multiple insurance and investment management businesses through subsidiary companies. Lincoln Financial Group is the marketing name for LNC and its subsidiary companies. LNC was organized under the laws of the state of Indiana in 1968, and maintains its principal executive offices in Radnor, Pennsylvania
In 1928, LNC president Arthur Hall hired Dr. Louis A. Warren, a Lincoln scholar, and in 1929, LNC acquired one of the largest collections of books about Abraham Lincoln in the United States. The Lincoln Museum in Fort Wayne was the second largest Lincoln museum in the country. The Abraham Lincoln Presidential Library and Museum in Springfield, Illinois is now the world's largest museum dedicated to the life and times of Abraham Lincoln, after the closing of the Fort Wayne Lincoln Museum June 30, 2008.

Lincoln National issues group disability policies, and individual disability policies, to provide income replacement benefits to residents of the State of Indiana who are forced to stop working due to injury or illness. At O'Ryan Law Firm, we have received numerous calls from individuals who were promised disability benefits under a Lincoln National policy yet those benefits were denied by Lincoln despite medical proof establishing that the definition of "Disabled" had been met under the terms of the policy. Several of our clients who are insured by Lincoln National were teachers who had taught for many years until reaching the point where they were no longer able to keep teaching because of medical conditions.

We have successfully resolved disability claims with Lincoln Financial, either during the appeal stage, or if we are forced to file a lawsuit, after the lawsuit is filed with the court. We have developed a good working relationship with the legal staff at Lincoln Financial and have settled several cases with them after a lawsuit was filed. If you have a disability claim against Lincoln Financial, or their subsidiary Lincoln National, and they are refusing to pay your monthly disability benefits, contact the O'Ryan Law Firm at (855) 778-5055 or visit our website at oryanlawfirm.com to find out more information about our services.
Lincoln 4.jpg

The Importance of Objective Evidence in Your Disability Claim

September 12, 2013

Most disability insurance policies do not explicitly require that a claimant provide objective evidence to support their disability. Yet, it is all too common when a claimant receives a denial letter in the mail from their insurance company claiming that disability benefits have been denied due to a lack of objective evidence. Unfortunately, many courts have determined that insurance companies are permitted to rely upon objective evidence when making a determination of disability.

Objective medical evidence is documentation from tests including but not limited to: medical resonance imaging (MRIs), x-rays, blood tests and other chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), and psychological tests. Unfortunately, not all medical conditions are detected in these various types of objective testing, which can put some disability claimants in a challenging condition. For example, someone with fibromyalgia may not be able to produce traditional objective medical evidence of their condition. For more information about fibromyalgia, see this entry: Fibromyalgia Disability Claims.

In order to improve the chances of being approved for disability insurance benefits, a claimant should make sure that their treating providers have ordered all of the necessary tests to properly diagnose their condition. Without objective documentation, the insurance company is much more likely to deny benefits. For example, a claimant with Multiple Sclerosis should undergo any applicable testing, like an MRI of the brain, a spinal tap, and tests measuring electrical activity in the brain. For more information about Multiple Sclerosis, see this entry: Multiple Sclerosis Disability Claims.

Continue reading "The Importance of Objective Evidence in Your Disability Claim" »

Doing Housework Does Not Equate with the Ability to Work

August 14, 2013

For several of our clients, their insurance company has denied or terminated their short term or long term disability benefits for a strange reason: housework. Just recently we represented a client in a Unum case where Unum terminated our client's monthly disability benefit payment, in part because they claimed "[y]ou have reported a significant level of housework at home." Oftentimes, you will receive a call from your disability benefits claim specialist asking you several questions about your activities of daily living or you may be required to complete forms regarding your daily activities. On occasion, the insurance company may send a field investigator to your home to interview you about your daily activities and to observe what you are able to do over the course of the interview.

Some of the insurers will take reports about housework and utilize this information to deny benefits claiming that vacuuming, doing laundry and preparing meals indicates that an individual is able to work. Several courts have rejected this as a reason for denying disability benefits. For instance in Hawkins v. First Union, 326 F.3d at 918, the Seventh Circuit specifically rejected this type of reasoning finding that as a matter of common experience an individual's ability to do some activities at home did not establish that he could do a full-time job. The court noted, for example, that "when one is working at home it is easier to interrupt one's work every few minutes if need be than to do so at the office." The court concluded that engaging in a certain amount of activity at home simply "does not prove" that a person is not disabled.

Similarly, in the case of Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) the court reasoned that "[D]isability claimants should not be penalized for attempting to lead normal lives ... Many home activities are not easily transferable to . . . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.' . . . Only if the level of activity were inconsistent with the Claimant's stated limitations would these activities have any bearing on Claimant's credibility." Further, as stated by the court in Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), participation in everyday activities of short duration, such as housework or fishing" does not disqualify a claimant from disability and does not establish that a claimant can perform sedentary work. Lastly in Gentle v. Barnhart, 430 F.3d 865, 867 (7th 2005), the judge found that equating household work to work in the labor market is not appropriate.

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If your monthly disability benefits have been denied or terminated because you reported doing housework, chores or lawn care, please contact the O'Ryan Law Firm for a free consultation. Some level of activity at home is appropriate even if you are disabled. Don't let the insurance company defeat you just because you are able to vacuum or fix dinner. You can reach us at www.oryanlawfirm.com or toll free at (855) 778-5055.

Can I obtain Punitive Damages for My Denied Disability Claim?

May 29, 2013

When disabled clients first call the O'Ryan Law Firm, one of the first questions they ask is whether they can obtain punitive damages for the wrongful denial of their disability claim. No doubt, many of our clients have suffered incredible financial and emotional damages as a result of the insurance company either denying their claim outright or terminating the claim before the client can actually return to work. We have had clients suffer terrible financial losses, such as the loss of a vehicle, loss of their credit rating or even the loss of their home through foreclosure, due to the insurance company wrongfully denying their disability claim. Unfortunately, if the client's disability claim falls under the Employee Retirement Income Security Act, commonly known as ERISA, the courts have found that punitive damages are not awardable when the disability claim is subject to ERISA.

ERISA is a federal statute that was passed in 1974 by Congress in order to protect participants of employee benefit plans. Most individuals receive medical coverage, life insurance coverage and disability coverage through their employer. Most employer sponsored benefit plans are governed by ERISA. There are two exceptions: governmental entities and church plans. If your employer is a governmental entity, such as a public university or school corporation, or a church plan, then you would not be covered by ERISA; instead, your claim is subject to state law. Under state law, you may be able to recover damages in excess of what the disability policy provides in the way of monthly disability benefits.

However, most disability claims are governed by ERISA. Unfortunately, the courts have found that ERISA preempts any state laws that allow for compensatory or punitive damages in excess of the policy benefits. For example, in the case of Midwest Security Life Ins. Co. v. Stroup, 730 N.E.2d 163 (Ind. 2000) the Indiana Supreme Court denied the Stroups' request for punitive damages finding that their health insurance claims were preempted by ERISA. In this case, Patrick and Theresa Stroup received a group health insurance policy from Midwest Security Life Insurance Company as a result of Patrick's employment and the policy was governed by ERISA because it was an employer sponsored health insurance plan. In January, 1993, Theresa sought predetermination of benefits for surgery to correct congenital problems with her jaw and Midwest approved the surgery. About four months after Theresa's surgeries, in August 1994, Midwest amended its plan to exclude coverage for orthognathic surgery. In October 1995, she awoke in considerable pain to discover that her jaw had broken. One week later, Theresa underwent bone graft surgery to repair her jaw. In January 1996, Theresa was forced to undergo another surgery because of continued pain and muscle spasms in her jaw.

The Stroups filed suit against Midwest after the later surgery claims were denied and alleged that Midwest Security had breached Indiana's covenant of good faith and fair dealing entitling them to compensatory and punitive damages. Midwest argued that the Stroups' claims were preempted by ERISA which does not allow punitive damages. The trial court held that the Stroups' state law claims were not preempted by ERISA, their request for punitive damages was not preempted by ERISA, and the claims were triable to a jury. On interlocutory appeal, the Court of Appeals reversed holding that the Stroups' state law claims were preempted by ERISA. The Indiana Supreme Court agreed. The Supreme Court found that ERISA provides for broad preemption of state law claims in 29 U.S.C. § 1144(a) which reads: "[e]xcept as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." The Indiana Supreme Court concluded that "[t]he United States Supreme Court has examined the legislative history surrounding § 1144(a) to determine that "the words 'relate to' in [114]4(a) [were used by Congress] in their broad sense."Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (quoting Representative Dent that "the crowning achievement of this legislation [is] the reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans"). Based on this broad reading of ERISA, the Court found that the Stroups' claims were preempted by ERISA which does not allow for compensatory or punitive damages.

Consequently, if you have a health insurance, life insurance or disability insurance claim that is governed by ERISA, the law unfortunately does not allow you to seek compensatory or punitive damages in excess of the policy. However, ERISA does allow for the recovery of your attorneys fees. If you are employed by a governmental entity or church then your claims are exempt from ERISA thus allowing you to seek damages for the emotional and financial distress caused by the wrongful denial of your health, life or disability claim.

Northern District of Illinois Finds that Liberty Life's Termination of Disability Benefits was Arbitrary and Capricious

April 15, 2013

The Northern District of Illinois recently ruled in favor of the Plaintiff's summary judgment motion in a long term disability lawsuit. In Krupp v. Liberty Life Assurance Company of Boston, the court found that Liberty Life's termination of Ms. Krupp's long term disability benefits was arbitrary and capricious. Krupp's long term disability benefits were provided through her employee benefit plan and accordingly, the case was examined under the rules and regulations of the Employee Retirement Income Security Act ("ERISA"). To read the full opinion, see the link here.

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