Articles Posted in ERISA

Earlier this month, Judge Richard Posner abruptly announced his retirement from the United States Court of Appeals for the Seventh Circuit after more than 35 years on the bench, effective the following day. Judge Posner, a prolific writer and author of more than 3300 judicial opinions and nearly 40 books, was one of the most prominent appellate judges in the United States and the most-cited legal scholar of the 20th century, according to a survey by the Journal of Legal Studies. He carefully drafted his legal opinions to be easy to read and understand, and his signature concise, frank, and often humorous writing style helped to modernize the discipline of legal writing, presenting a stark contrast from the overly formal, long-winded “legalese” that had long dominated the legal field.

Just over three months prior to his retirement, Judge Posner authored an opinionKennedy v. The Lilly Extended Disability Plan, 856 F.3d 1136 (7th Cir. 2017), awarding substantial long term disability benefits to Cathleen Kennedy, an O’Ryan Law Firm client who had been forced to stop working in her position as an HR executive for Eli Lilly & Company as a result of severe fibromyalgia, a nightmarish condition characterized by chronic widespread musculoskeletal pain and fatigue that often presents with psychosomatic symptoms such as sleep and memory issues, anxiety, and depression. Unfortunately, because many of the primary symptoms of fibromyalgia – especially pain and fatigue – are difficult to objectively measure, the condition has historically been misunderstood and often goes undiagnosed due to the lack of a reliable means of testing for it. As a result, those who suffer from fibromyalgia also frequently must deal with the frustration caused by doubts about the validity of their condition and symptoms by friends, family, and sometimes even their healthcare providers.

Fortunately, recent scientific advances in the understanding of fibromyalgia have led to increasing acceptance of the validity of the condition and its profound impact on the lives of those who suffer from it. Judge Posner recognized this in his opinion, noting that Lilly itself markets a treatment for fibromyalgia and has been advised by one of its own physicians that fibromyalgia “is not only very common but is typically also very disabling” and that many victims of fibromyalgia “end up needing to stop working because of this condition.” Nonetheless, Lilly had terminated Ms. Kennedy’s long term disability benefits after she had been disabled for nearly four years due to fibromyalgia, despite the fact that her primary treating physicians had declared her to be permanently disabled, largely because there was no objective laboratory data proving the validity of her symptoms. Lilly claimed that although Ms. Kennedy was unable to work full time in her previous executive-level position, she could still work part time in one of “various non-executive positions” in her field.

O’Ryan Law Firm, on behalf of Plaintiff, Denise D., recently filed a lawsuit against The Prudential Insurance Company of America (“Prudential”).   Plaintiff was employed by Advance/Newhouse Partnership, which made her eligible for the Advance/Newhouse Partnership Short Term and Long Term Disability Plans, which were administered and insured by Prudential.

Facts of the Case Against Prudential

Plaintiff was employed by Advance/Newhouse Partnership from 2012 until she became disabled in February 2016 and was unable to work due to lupus, fibromyalgia, migraines, spondylosis and radiculopathy. Plaintiff’s treating physicians provided objective medical proof that the Plaintiff was unable to continue working due to these serious illnesses.  Her physicians also confirmed that she was unable to perform the material duties of her job thus meeting the definition of “Disabled” under the Prudential policy.

O’Ryan Law Firm recently settled a lawsuit against American United Life Insurance Company (“AUL”) on behalf of a client whose long term disability benefits were prematurely terminated by AUL.   AUL is headquartered in Indianapolis and has their main office in downtown Indianapolis in the AUL building.  The client, Candace, is actually a New Jersey resident so naturally it would make sense to file the claim in New Jersey.  However, the O’Ryan Law Firm was able to represent Candace in Indiana because of the fact that AUL is incorporated under Indiana law.  As a result, AUL may be sued in Indiana and the lawsuit was therefore filed in the federal district court for the Southern District of Indiana.

Case Against AUL

Candace was employed as an accounts manager for an insurance brokerage company from 2008 until she became disabled in December 2012.  She became unable to work due to lumbar radiculopathy and moderately severe cervical stenosis, both of which resulted in chronic pain and fecal incontinence. Her treating physicians provided objective medical proof that the she was unable to continue working due to these medical impairments.

O’Ryan Law Firm, on behalf of Plaintiff Shane C., recently filed a federal lawsuit against The Prudential Insurance Company of America (“Prudential”). The Plaintiff was employed as Senior Vice President Regional Manager with Custard Insurance Adjusters, Inc. which made him eligible for disability benefits under the Custard Insurance Adjusters, Inc. Long Term Disability Plan (the “Plan”).  As a Regional Manager, Shane was required to travel to 9 different offices throughout the Midwest to oversee and supervise these 9 offices.

In Shane C. v. The Prudential Insurance Company of America and Custard Insurance Adjuster, Inc. Long Term Disability Plan, the Plaintiff filed a lawsuit under ERISA to gain the long-term disability benefits he was entitled to under the terms of the Prudential policy.

Facts of the Case Against Prudential

At the O’Ryan Law Firm, we represent numerous clients who have become disabled and their disability claim was denied by their insurance company. We then represent the clients in the appeal process to appeal the denial of their disability benefits.  Lately, many of the insurance companies have be issuing late determination decisions on the appeals that we submit to those companies.  By law, an insurance company is required to issue a decision within 45 days of the date of receipt of the appeal unless an extension is warranted due to “special circumstances” but even then, a decision on the appeal must be rendered within 90 days at the latest.

The Supreme Court in Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115 (1989) held that de novo adjudication of employee benefit claims is the norm. Because the de novo standard of review is the default standard in an ERISA employee benefits case, the plan administrator or insurance company bears the burden of showing that the more deferential standard should apply. Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002)Marguez-Massas v. Squibb Mfg., Inc., 344 F.Supp.2d 315, 320 (D.P.R. 2004); McDonald v. Timberland Co. Group LTD Coverage Program, 2002 WL 122382, at *3 (D.N.H. Jan.23, 2002). Accordingly, once in litigation, a disability insurance company bears the burden of proving that their decision is entitled to deferential review by the Court.

The regulations governing ERISA disability claims require insurance companies to issue a decision on a claimant’s appeal within 45 days of the date that the insurance company received the appeal unless “special circumstances” warrant an extension of time for an additional 45 days; however, in “no event” shall the extension of time exceed 45 days. 29 C.F.R. §2560.503-1(i)(1), (i)(3), (i)(4).

O’Ryan Law Firm, on behalf of Plaintiff Laura McKenzie, recently filed a federal lawsuit against Life Insurance Company of North America (“LINA”), which is a subsidiary of Cigna Corporation. The Plaintiff was employed as a Registered Nurse with Allied Physicians, which made her eligible for disability benefits under the Allied Physicians, Inc. Long Term Disability Plan (the “Plan”).

In Laura McKenzie v. Life Insurance Company of North America and Allied Physicians, Inc. Long Term Disability Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the Plan.

Facts of the Case Against LINA

Plaintiff was employed by Allied Physicians, Inc. as a Registered Nurse until she became disabled in 2009 due to the disabling effects of cervical and lumbar spondylosis and other serious medical conditions. Plaintiff filed an application for long term disability benefits and was paid disability benefits by the Allied Physicians, Inc. Long Term Disability Plan from October 2014 to October 2016. LINA issued the disability policy that provided disability coverage to the employees of Allied Physicians.
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O’Ryan Law Firm, on behalf of Plaintiff, Jilian F., recently filed a federal lawsuit against Metropolitan Life Insurance Company (“MetLife”) in an attempt to reinstate the Plaintiff’s disability benefits claim. The Plaintiff was employed as a Marketing Communication Specialist with Landis + Gyr, which made her eligible for disability benefits under the Cellnet + Hunt Employee’s Welfare Benefit Plan (the “Plan”). In Jilian F. v. Metropolitan Life Insurance Company and Cellnet + Hunt Employee’s Welfare Benefit Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the MetLife policy.

Facts of the Case Against MetLife

Plaintiff was employed by Landis + Gyr until she became disabled in 2011 due to the disabling effects of Thoracic Outlet Syndrome, cervical degenerative disc disease and cervical radiculopathy, severe neck pain, fibromyalgia, carpal tunnel syndrome, and paresthesia.

Plaintiff filed an application for long term disability benefits and was paid disability benefits by MetLife from August 2013 to September 17, 2014.

MetLife Terminates Long-Term Disability Benefits

On September 17, 2014, MetLife wrongfully terminated the Plaintiff’s long-term disability benefits. Plaintiff, represented by the O’Ryan Law Firm, then filed an administrative appeal with MetLife challenging the termination of her disability benefits. With this appeal, the Plaintiff included significant medical evidence to prove that she continued to meet the definition of Disabled under the MetLife policy. However, MetLife refused to overturn their decision to terminate the benefits. As a result, the Plaintiff was forced to file a lawsuit under ERISA in federal court against MetLife to obtain the benefits due her under the MetLife policy.
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Many of our clients suffer from depression as a result of their disabling physical conditions or they may have other disabling psychiatric conditions such as bipolar disorder. It is important to be aware that most disability policies cut-off disability benefits after 24 months of benefits if the disabling medical condition is considered a psychiatric condition otherwise known as a “mental impairment.” Each policy contains different language on this issue. For instance, the Prudential policy provides

What Disabilities Have a Limited Pay period Under Your Plan?

Disabilities which, as determined by Prudential, are due in whole or part to Mental illness also have a limited pay period during your lifetime.

The limited pay period for self-reported symptoms and mental illness combined is 24 months during your lifetime.

Mental illness means a psychiatric or psychological condition regardless of cause. Mental illness includes but is not limited to schizophrenia, depression, manic depressive or bipolar illness, anxiety, somatization, substance related disorders and/or adjustment disorders or other conditions. These conditions are usually treated by a mental health provider…using psychotherapy or psychotropic drugs.

In the case of Deal v. Prudential:

 Deal saw a host of medical professionals for both physical and psychological conditions out of a knee injury and associated pain.
 Diagnosed with Moderate Major Depressive Order  Two psychologists reports indicating Deal’s disability caused, at least in part, by mental disorders  The Court concluded–“Prudential has not shown that the mental disorder benefit limitation applies.”
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Many Indiana employees receive group disability insurance coverage through Aetna. Headquartered in Hartford, Connecticut, Aetna is a large disability insurance company that is currently in the Fortune 100. O’Ryan Law Firm has successfully represented many clients whose disability insurance benefits have been unfairly denied or terminated by Aetna.

Short Term Disability Benefits

Aetna’s short term disability coverage pays benefits after a short elimination period (often a week long). Short term disability benefits usually last three to six months. During Aetna’s investigation of the short term disability claim, it is common for Aetna to gather medical records, gather information about the claimant’s job, require statements from treating providers about the claimant’s ability to work and expected duration of disability, and have internal medical consultants review all medical evidence. If the individual is approved for short term disability benefits through the maximum duration of the policy, then they may apply for long term disability benefits.

Long Term Disability Benefits

After an elimination period that is typically the length of the short term disability period, the claimant may apply to Aetna for long term disability benefits. When a claimant receives long term disability insurance through a private employer, their claim is usually governed by the Employee Retirement Income Security Act (“ERISA”).

In addition to information already gathered during the short term disability claim, Aetna will request updated medical records and statements from treating providers, may perform a vocational analysis, and may have internal medical consultants or external medical consultants review the medical evidence. It is very common for long term disability policies to require that the claimant prove disability from their own occupation for the first 24 months of long term disability benefits and then require that the claimant prove disability from any occupation after 24 months of long term disability benefits.

During the long term disability claim, it is more common for Aetna to utilize claim review tactics such as referring the claimant for an Independent Medical Examination (“IME”), contracting private investigators to perform surveillance of the claimant, contracting peer reviewing physicians to review evidence and call the claimant’s doctors, and perform a Transferable Skills Analysis to see if the claimant can return to work in a different job. If a claimant is approved for long term disability benefits, it is likely that Aetna will urge the claimant to apply for Social Security disability benefits. Aetna may even refer the claimant to one of its vendors to represent them in their Social Security disability claim.
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The Prudential Friendly Society was founded by insurance agent John Fairfield Dryden in a basement office in downtown Newark, N.J., in 1875. It was the first company in the U.S. to make life insurance available to the working class. In business for 137 years, it boast 48,000 employees worldwide.

At the O’Ryan Law Firm, we receive numerous calls a year from individuals who have become disabled, have disability coverage through Prudential, their doctor has reported to Prudential that they cannot work and Prudential denies the claim. One of Prudential’s favorite reasons for denying claims is what they call a lack of “objective medical evidence.” Many conditions, such as fibromyalgia or migraine headaches, result in symptoms, such as pain and fatigue, which are hard to prove objectively. There are no lab tests or diagnostic testing that are able to establish the severity of chronic pain or fatigue. Yet Prudential in these types of claims will insist on objective medical evidence to prove the disability thus making it nearly impossible to get the claim approved.

The courts have made clear in numerous cases that an insurer’s refusal to honor a claim for lack of scientific data such as lab tests and x-rays is an abuse of discretion where no such data exists in medicine for the conditions at issue and where licensed physicians have provided professional opinions that the conditions are genuine and credibly disabling the claimant. See Holmstrom v. Metropolitan Life Insurance Company, 615 F.3d 758, 769-772 (7th Cir. 2010); Leger v. Tribune Company Long Term Disability Benefit Plan, 557, F.3d 823, 834-835 (7th Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).

In Holmstrom, the claimant suffered from Complex Regional Pain Syndrome (“CPRS”), a condition recognized by the medical community but for which there is no specific diagnostic test. 615 F.3d 758, 768. In that case, the plan acknowledged “Holmstrom’s claims of intractable pain, significant physical limitations, and cognitive deficiency as identified by [claimant and her treating physician],” but found “that the lack of objective findings to support ongoing total disability prevented [the plan] from determining whether [claimant’s] disability was genuine.” Id. at 764. In finding the Holmstrom plan’s denial arbitrary and capricious, the court stated that the plan “gave undue weight to the absence of objective measurements for [claimant’s] impairments,” reasoning that:

Subjectively painful conditions like CPRS and fibromyalgia pose difficult problems for private disability insurance plan administrators and the Social Security Administration, who understandably seek to make decisions based on the most objective evidence available. But we have rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective tests exist for the condition or its severity.
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