Nearly all law firms offer a “free consultation.” An initial consultation without cost is like a free estimate to fix a household problem. While legal issues are considerably more complex than common household fixes, treating a “free consultation” like a “free estimate” may be useful. Just as with a common household problem, when it comes to legal issue, there must be some understanding of the nature of problem and the scope of the work desired.

For example, if you wanted to have a new driveway installed, you would contact a cement contractor.  When the contractor arrived, you wouldn’t digress into discussing irrelevant matters, like your dissatisfaction with a paint job performed on your house.  No. You would know exactly what you want (a new driveway or a repair); what you wish to pay for the service (your budget); and how your life may be impacted (i.e., how long will the existing driveway be torn up).  These are what we might call “the basics.”

Yet, somehow, when it comes to legal consultations, these basics can get lost.  There are a number of reasons for this – nervousness, immediate upset over something that has just happened, fear, anger.  It is usually coming from a place of emotion.  That said, time can go by quickly without ever nailing down the precise issue or issues.  Sometimes a potential client may feel like he or she has not been understood, and an attorney may get off the phone and not really understand the nature of the legal problem. Here are a few (hopefully) helpful tips to make the most of an initial consultation with J.J. Conway Law or any other law firm:

A fifteen to twenty minute initial consultation is the norm.

An initial consultation is usually conducted by phone and typically lasts about 15 to 20 minutes to determine the next steps – including a longer appointment.  It is somewhat standard practice to have the very first call handled by a non-lawyer.  This is to ensure that the law practice you’ve contacted is capable of handling the legal issue for which you require assistance.  For example, a long-term disability insurance case involves income replacement benefits as does workers compensation. Yet, these two areas of law are completely different, and most law firms do not handle both types of cases.  J.J. Conway Law would be able to assist with a long-term disability claim but has no expertise in the area of workers compensation – a client would need a recommendation for another firm for such a case.

Think about your legal issue before making the call.

You don’t need to know anything about the legal system or the legal process when you have an initial consultation, but you should have some idea of the nature of your legal claim.  Some matters are simple.  For example, it is pretty easy to understand when you have a homeowner’s insurance claim, or you have been ticketed for speeding.  Other matters, such as those handled by our practice, are more complicated.  For example, you may have experienced an unexplained shortfall in your 401(k) account.  Or, you may have stopped working because you had back surgery and really want to know what legal entitlement you may have to income replacement benefits – like a long-term disability claim.  By being able to name your legal issue quickly, you will facilitate a good initial call.

Think about writing out three to four main questions.

Writing out a few questions before having a consultation can also be helpful. Using the long-term disability benefits claim as an example, you may want to write out a few questions before the call and place a check mark or short note next to each one as you have them answered. You may wish to know, generally, how does a long-term disability case work? What are the legal fee charges for a disability case?  Are there any other costs besides the legal fee charges? What is the timeframe for resolving a disability case?  These are just a few common inquiries.

Yield the floor.

Given the time constraints for an initial call, if a lawyer interjects, and asks you specific questions, that should be a sign that there are relevant facts yet to be discussed. Since we often tell our stories in chronological order, there is an impulse to say, “I’m getting to that” or “I explain that in a minute.”  This is natural, but they may result in an important aspect of the case being missed.  Assuming the lawyer is politely interjecting, you should consider answering the precise question.

You may not receive an answer that you like, but it might be the likely answer.

Sometimes, even a powerful story can have an unpleasant legal reality – like a statute of limitations.  A Michigan Whistleblower Employer Claim has a notoriously short statute of limitations – 90 days.  If during the call, you indicate that you were fired six months before the call, an attorney may explain that the case is unable to be filed because of a time-limit. That may be an answer that is unsatisfying, but the lawyer may also be saving you considerable time and expense being up front.

You are not a client until you sign a representation agreement.

Most consultations are like the earlier example of getting an estimate.  You don’t hire the contractor until you agree to the work.  The same is true for legal services.  A law firm’s representation will typically not begin until there is a signed agreement.

Call around.

You may wish to call two or three different law practices to get a feel for the legal issue and to evaluate whether lawyers are seeing the same issue the same way.

With such intense focus on a single communicable illness, it is easy to forget that we, as human beings, suffer from other illnesses.  Some medical journals are concerned that rates of serious medical conditions may rise as many would-be patients did not seek preventative care during much of 2020. And the trend continues.(https://healthcostinstitute.org/hcci-research/the-impact-of-covid-19-on-the-use-of-preventive-health-care.)

“Work from Home” will not affect occupational disability situations.  Obviously, people will still have to confront illness or injury even if they are working from home.  The risk for injury may be reduced somewhat since there is less travel, driving, and going in and out of public places, but illness still shows up.  Just think of how many people you may know who have passed away or become sick from something other than Covid-19 over these past months.

“Work from Home” may affect the manner in which insurers evaluate “Essential Duties” or “Main Duties” but not right now. Group disability plans and insurance contracts are often provided without comprehensive underwriting as in the case of individual disability insurance policies.  When an individual applies for disability insurance coverage, the insuring company typically requires blood tests, electrocardiograms, and body-mass index (BMI) measurements. The company reviews medical records, tax returns, and then issues the contract for a premium.  Group disability contracts, by contrast, typically insure occupational titles, not specific people.

The question arises now that people can work from home, will insurers claim that ill or injured workers are able to perform their jobs more easily with at-home accommodations. For the immediate future, insurers may be on the wrong end of this one. Since group insurance contracts often insist that a job must be evaluated on how it is performed – nationally as opposed to specifically – the impact of WFH may not be available as a defense to denying or terminating a disability claim.

The “Essential Duties” or “Substantial Duties” clauses of those contracts have not yet been updated to look at those jobs as they are being performed at home versus a standard work environment.  Furthermore, the guides for those jobs – like the Dictionary of Occupational Titles or ONET – have not yet been updated to account for this WFH period in our work history.  For a while, the insured stands to benefit.

Bottom Line: Work from Home (WFH) should not aid insurers in the short-term.  Group contracts may be re-thought if WFH is a trend that continues and as the work requirements for occupational titles is updated.

The year 2020 will be remembered as a time when working from home became the norm for many in the United States. Some employers have notified the workforce they will not return to their offices until the summer of 2021.  Well, unsurprisingly, disability claims examiners are working from home, too.

Many long-term disability claimants may suddenly find themselves receiving increased communications from their long-term disability insurance plans.  There is no clear evidence of a correlation between an uptake in claim reviews and this new work from home status. There are certainly claims personnel who are now working from home and moving through their claimant dockets with greater efficiency, and thus, conducting more periodic reviews.

This coincides with a current working world that would give the appearance that many more jobs can now be successfully and productively performed at home.  We expect that the next battle in LTD claims will be finding ‘sedentary’ work jobs that can be performed with restrictions from one’s home.

This is another part of this new reality in which we live, and claimants must learn to deal with it.  Given this new reality, a few suggestions of what you can do to keep an LTD claim in approved status:

  1. Keep regular treatment appointments using telemedicine. More claimants and physicians are meeting in a telemedicine setting.  A patient sets up an appointment to have a videoconference consultation.  If diagnostic tests are required, they are scheduled in advance.  Then, the doctor and patient go over the results. Anecdotally, both doctors and patients have enjoyed this process.  It is more conversational and, perhaps, lead to better treatment insights for doctors and their patients.
  1. Keep regular logs or journal entries of especially challenging days. Keep a journal.  Document everything.  Believe it or not, this will help during the claims review process. It will also help to have those records available when it comes time to update your health providers concerning the physical or mental limitations that you have experienced in between appointments.
  1. Try to visit (or see) your treating physicians at least twice during the year. Many insurance policies require that a disability claimant be ‘under the regular care of a physician.’   With that requirement built into the contract, a claimant knows in advance that there should be evidence of regular treatment.  Even though other contracts may not make this an express requirement, it might be worthwhile to treat it as an implied contractual requirement.
  1. Establish a working relationship with the attending physician’s office administrative staff. Keeping a disability claim approved means keeping LTD forms up to date and accurately filled out.  No one likes to complete forms – especially those who have already battled with an insurer in an appeal or lawsuit – but they are contractual requirements. The most effective way to facilitate the processing of forms is by getting to know the staff member who handles such matters and working closely with that individual to get the forms to the treater and back.
  2. Do not seek to save on the administrative charges of health providers. Please remember that physicians are professionals and completing forms is not among their usual job duties.  Offer to pay. A charge of $100 to $300 to pay for the physician’s time to complete the paperwork is always money well spent.

In Thole v. U.S. Bank N.A., No. 17-1712, 2020 U.S. LEXIS 3030 (June 1, 2020), the U.S. Supreme Court ruled, 5-4, that defined pension plan participants lacked constitutional standing to sue over a $750 million loss to their plan because they had not yet missed a benefit payment. Justice Kavanaugh, writing for the majority, brought a new approach.  He analyzed the dispute as if it were a simple contractual matter involving an un-breached contract– i.e., no damages at present, no case at present. This might strike some ERISA practitioners as unusual since the last three decades of ERISA jurisprudence has focused on analyzing fiduciary actions under the law of equity. Under an equitable analysis, a fiduciary would, arguably, have a duty to protect a trust fund, like a pension fund, from preventable erosion.

Justice Clarence Thomas’ Concurrence was, perhaps, the most honest assessment of the Court’s ruling where he wrote, effectively, ‘did we really want to spend so much time in the law of equity?’ Thomas has been on the Court for 30 years – about two-thirds of ERISA’s statutory existence.

Now the Court’s newest members, Justices Kavanaugh and Gorsuch, are giving ERISA a look through new legal eyes. Justice Kavanaugh wrote that a pension shortfall, alleged to be the result of fiduciary mismanagement, was not an actual case because:

“Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive.”

Given the Court’s broad ruling, it may be that pension funds have to be squandered and lost before there is a “case or controversy” under Article III of the U.S. Constitution.  The opinion details several of ERISA’s regulatory protections and discusses the backup insurance provided by the Pension Benefit Guaranty Company as a potential safety net to retirees.  (Although it should be noted that the PBGC has announced it will be insolvent by 2025).

In the dissent, Justice Sonia Sotomayor said:

“The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.”

One fact that was obscured from the Court’s majority opinion, that figured prominently in the lower court decisions, was the important and operative fact that U.S. Bank transferred money into the plan to effectively overfund it during the litigation.  U.S. Bank’s self-corrective measure seemed persuasive to the judges below.  The move, which a healthy plan sponsor can pull off, may be more challenging for struggling plans. For those plans, the pensions may erode, and there is seemingly little that can be done under ERISA to remedy this after Thole.  The Court’s holding of the case is considerably broader than what was happening factually in Thole.

As the Court’s majority continues to emphasize texts, not the history behind the texts, it was not thinking about the Studebaker Automobile Company bankruptcy or other abuses that led to ERISA’s passage.  (ERISA took nearly ten years to pass after Studebaker went bankrupt and its workers lost everything in their retirement).  The Court, at least for the moment, seems content to let the federal government mop up any pension plan problems through its taxpayer supported pension insurance program.

On February 26, 2020, the U.S. Supreme Court issued its unanimous decision in Intel Corporation Investment Policy Committee v. Sulyma, Case No. 18-1116. https://www.supremecourt.gov/opinions/19pdf/18-1116_h3cj.pdf.  The decision resolves a split in the Circuits concerning the appropriate date by which to measure the shortened statute of limitations for breach of fiduciary duty claims.  The triggering event for the three-year statute is based on the ERISA participant’s “actual knowledge.” The Court held that there is a proof requirement when a plan or fiduciary seeks to invoke a claim of “actual knowledge” under 29 U.S.C. §1113(2).  Previously, courts around the United States (including the Sixth Circuit) had applied a quasi-constructive notice standard.  Under that low threshold, if there was proof of sufficient disclosure, the ERISA participant could be held to the shortened period of limitations.  No longer.

In Sulyma, the Court held:

This is the reason for ERISA’s requirements that disclosures be written for a lay audience. See, e.g., 29 U. S. C. §1022(a). Once plan administrators satisfy their obligations to impart knowledge, petitioners say, §1113(2)’s knowledge requirement is satisfied too. But that is simply not what §1113(2) says. Unlike other ERISA limitations periods—which also form §1113(2)’s context—§1113(2) begins only when a plaintiff actually is aware of the relevant facts, not when he should be. And a given plaintiff will not necessarily be aware of all facts disclosed to him; even a reasonably diligent plaintiff would not know those facts immediately upon receiving the disclosure.

This is a significant development in ERISA litigation. The decision also signals that the Supreme Court is taking a strict construction approach to the statute.

©Public Domain.

Most are familiar with the famous sketch of the simultaneous-silhouette of the older and younger woman appearing within the same image. Both women can be seen within the same drawing. Depending on the viewer’s perspective, the image appears to be of one of two different people.  While viewing the image, the mind can move back and forth, alternating constantly between the two different people. The picture serves as an apt metaphor for claims involving the payment of long-term disability benefits.

Similarly, two reviews of the exact same set of facts in a typical long-term disability claim can yield two entirely different, if not opposite, perspectives.  The same person, with the same medical and work history, can appear entirely different depending on a reviewer’s perspective. Consider this factual scenario as an example:

A twenty-year employee who has coped with severe and chronic lower back pain for years files a claim for long-term disability benefits. He claims that he can no longer regularly and continuously perform his main job duties on a full or part-time basis.  His condition has been the same for at least two years before he stopped working.  Simple enough – but look at how this same set of facts can be viewed through different perspectives:

Perspective No. 1:  The employee worked through the pain until it became unbearable and very likely long after he should have     stopped working and filed a valid claim for benefits. This employee is occupationally disabled.

Perspective No. 2:  This employee was working full-time with the same condition before filing a claim for disability benefits. Obviously, he was able to cope with the same condition until he decided to file a claim for disability. This employee could continue working and is not occupationally disabled.

So, how is one supposed to get to the truth of this situation?  Medical and Non-Medical Evidence. For a disability claimant fighting his or her way to an approved LTD claim, there is only one way to assure there is but one perspective about the situation – the record as a whole must show there is only one logical perspective once all evidence is taken into consideration. That requires proving one’s own ‘perspective’ while disproving the other’s ‘perspective.’  Definitively.

The question naturally arises, how do you prove a case in the typical disability insurance claim?  Here are some basic steps that are required for any successful LTD claim or appeal:

  1. Secure the administrative claims file of the denied claim. This file, containing a compilation of notes and records, holds the key to understanding the other side’s perspective (be it an insurance company or even employer in certain cases).  The information is often invaluable.  For example, the administrative record can reveal internal notes of what the insurance company claims is missing from its files and is preventing it from approving a claim.  It can show bias, or it can simply show how things have gotten off-track.
  2. Securing the medical and non-medical documentation proving the validity of the claim.   This information is the basis for the claim.  It is the treatment notes, test results, and medical opinions of physicians and health providers which serves to medically substantiate the actual claim of disability.  Ideally, this information would appear in chronological format explaining the medical changes in one’s condition leading to an inability to work on a consistent and competitive basis.
  3. Coordinating with treating physicians. Securing the medical records is only part of the requirement of a successful claim.  Explaining to treating medical providers that a disability claim is being processed is critical – it may move any request to the front of queue and also communicates the seriousness of any unique response required from a physician.  After the initial request, you may discuss how best to coordinate with a treater’s office to timely secure records, test results, completed disability claims forms, and evidence that may be required by legal counsel. See, ERISA Long-term Disability Basics: The Role of the Treating Physician, regarding general communications with your treating physicians regarding disability claims.
  4. Consulting with or retaining legal counsel.  If a case is for total disability, consider retaining legal counsel for consultation or representation to address issues where medical/legal expertise might be needed.  Disability cases often present both complex medical and contractual issues.  They often require input from experts beyond a client’s treating physicians – even sometimes requiring experts in matters of vocational rehabilitation, physical medicine, or certain objective testing methods.  A good lawyer will know this and will incorporate this requirement into the claim or appeal process, if necessary.
  5. Meeting every deadline – preferably early.  Move early, quickly, and effectively toward completing the above steps.  Typical due date timeframes can be between 30, 60, 90, or 180 days, depending on the claim.

For more information, please contact our law firm at jj@jjconwaylaw.com.

For those who have successfully fought to have a disability claim approved, they want it to stay that way. When the letter arrives from an insurance company seeking an update in status, most claimants begin to worry – and rightly so. As the Western District of Michigan federal court wisely observed fifteen years ago:

The plan and insurance language did not say, but the world should take notice, that when you buy insurance like this you are purchasing an invitation to a legal ritual in which you will be perfunctorily examined by expert physicians whose objective it is to find you not disabled, you will be determined not disabled by the insurance company principally because of the opinions of the unfriendly experts, and you will be denied benefits.

Loucks v. Liberty Life Assurance Co. of Boston, 337 F. Supp. 2d 990, 991 (W.D. Mich. 2004) (vacated following settlement).

Under the terms of their contracts, disability insurers are entitled to request continuing proof of loss.  So, it is also reasonable to expect that that a disability claimant will be called upon to provide updated medical proof of their condition and disability. This does not mean that an insurer may act unreasonably in requesting continuing proof of disability, only that an insurer may reasonably request updates on a claimant’s medical status.  For a disability claimant receiving a monthly payment, it should be acknowledged that once the payments begin the claim is not over.  The only way to effectively deal with this climate is get out in front of it.

Here are our suggestions:

  1. Go to every doctor’s appointment with a list of continuing physical (or if applicable psychological) limitations. Don’t leave a single thing out.
  2. Document and report every single side effect of your treatment or medication.
  3. Document and report every unique episode (a fall, a forgetful spell, or a day spent in bed) and timely make your doctor aware.
  4. Do not miss doctor’s appointments. If you anticipate a problem, reschedule right away. Under no circumstances should it ever be listed that the claimant was a “no show.”
  5. Make sure the doctor has documented everything before you leave.
  6. Routinely request copies of your records and make sure they are complete and correct – before they are requested from an insurance company.  Best practice would be to request a report be sent to you after every visit.

Successfully securing a disability claim approval is a victory to be sure – yet take care to follow the steps set forth above, or it can be short lived.

It appears questions raised by the Ninth Circuit’s decision in Dorman v. Charles Schwab Corp., Case No. 18-15281 (9th Cir., Aug. 20, 2019), may move towards resolution sooner than anticipated, with the plaintiff filing an en banc petition last week.

Arguments within the statement and supporting memorandum center on the Dorman court’s application of the Supreme Court’s Epic Systems Corp. v. Lewis precedent, chiefly that its applicability is limited in relation to ERISA claims brought in a representative capacity:

Epic Systems “did not address whether ERISA, an entirely different statute, creates a right to bring a representative action.  Mass. Mutual, LaRue and Munro, by contrast, have all ruled that fiduciary breach claims under ERISA are inherently representative.”  En Banc Petition Brief, p. 12, n.5.

The petition also claims that

the panel’s decision crashes head-on with the Supreme Court’s concern about arbitration-related waivers eliminating the enforcement of federal rights; namely, when they purport to eliminate the right to pursue a remedy guaranteed by statute.

EP Brief, p. 13. The petition argues that if an ERISA plaintiff brings claims subject to a valid arbitration clause, under the Dorman court’s ruling, any relief sought would be limited to individual relief, and fiduciary defendants “would be relieved of virtually all of their liability under  § 1109, except to the extent that liability relates to an individual’s account.” EP Brief, pp. 12-13.

The Dorman court distinguished the case from those in Munro v. University of Southern California, No. 16-cv-06191, 2018 WL 3542996 (9th Cir., Jul. 24, 2018) on two separate fronts.

The first obvious factual difference is that the Dorman plans contained an arbitration agreement (as opposed to the clause appearing in an employment agreement in Munro).  The second difference was the scope of the agreements at issue.  In Dorman, the plaintiff’s relief could, conceptually at least, be resolved as an individual claim – ultimately the recovery of losses sustained on his individual retirement account(s) owing to alleged fiduciary breach.

The larger issue is, hypothetically, somewhere between both Dorman and Munro – a class of plaintiffs seeking to litigate claims clearly brought on behalf of their plan (removal of breaching fiduciaries and reformation) yet faced with an arbitration provision contained within the relevant plan itself and barring class-wide arbitration.  Consistent with the Munro holding, an ERISA plaintiff seeking judicial remedy which exists for the benefit of a plan may not alone settle a claim.  Munro, Slip Op. at 11.  If arbitration were compelled, would a plan-appointed representative step in or is that not the position already occupied by a plaintiff bringing a derivative action? Would a split of the individual claims and the ‘clear’ plan-relief claims be compelled, resulting in the possibility of two distinct resolutions on fact?

While these specific questions may not be directly answered even through an en banc rehearing, the hope is that clarity in some form regarding protection guaranteed to ERISA plans of a right to representational adjudication of plan-wide relief, in the context of an (arguably) otherwise valid arbitration clause, may emerge.[1]

[1] The Dorman plaintiff’s brief also argues that “§ 1110(a) renders void the arbitration provision’s prohibition on seeking plan-wide relief under § 1109 in a representative capacity.”  EB Brief, p. 15.  ERISA Section 410, 29 U.S.C. § 1110(a), bars any contractual provision which would relieve a fiduciary from liability.  In this sense, clarification of the general rights guaranteed to an ERISA plan, as a whole, for a “deputized” plan-appointed representative may hold the answers toward the validity of broad ERISA arbitration clauses, such as that at issue in Dorman.

“My doctor will support me.”

This is one of the most common expressions heard from clients dealing with an ERISA long-term disability insurance claim. Disability claimants know, perhaps without formal recognition, that their disability insurance claim requires a solid evidentiary foundation. Most claimants realize they carry the burden to prove their claim and recognize that a claim requires medical proof – not merely a statement of one’s inability to work. In fact, most of our clients recognize this immediately, even before meeting with us. A disability claimant’s treating physician will likely play the most important evidentiary role in a disability claim, as they are the one providing at least the baseline medical foundation to support a claimant’s contention that they are occupationally disabled.

While disability plan insurers are not bound to accept a treating physician’s opinions without scrutiny, “plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”  Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

What is important for not just disability claimants but also their physicians to understand is the integral role treating physicians play in a disability claim, and how to successfully navigate that interdependent relationship as it moves from providing treatment to providing evidence.  Below are a few suggestions for consideration toward understanding and enhancing these critical relationships.

1)            Establish a Trusted Relationship.   First, it is important to let your doctor know about your disability claim and keep them updated on its status. Most treating physicians are familiar with disability claims and are willing to help their patients through the process. It is best to tell your physician, up front, that you are filing a claim and are likely to need some help with the claim forms. You may also want to use this as an opportunity to thank your physician for his or her anticipated cooperation and to communicate that you will try not to impose too much.

Some physicians do refuse to be a part of the disability application or appeal process. If your physician is unwilling to assist, do not be upset – it is better to know, preferably as early as possible. Nothing is worse than sending Attending Physician forms to a doctor whose office says they refuse to deal with insurance companies. While unhelpful, this position is somewhat understandable since paperwork is time-consuming and often uncompensated. In our experience, physicians work extremely hard and their compensation, often dictated by insurance companies, is below their fair value. They simply may not be able to financially perform this extra work.  (Note: your disability insurer knows this).

2)            Consider A Referral to A Specialist.  Depending on your condition, you may need to consult a specialist.  Again, timing is critical.  Specialists can book appointments three to four months out.  You need to consult, begin treatment with, and then, once the relationship is established, enlist their assistance. When it comes to the requirement for submitting “proof of disability” or “proof of claim,” sometimes more is required than the findings of a family doctor or internist. Here, the medical examination is centered on establishing one’s functional abilities. A treating physician may be fully capable of assessing the patient’s condition. For others, a specialist such as a Physical Medicine and Rehabilitation (PM&R) doctor may be appropriate.

3)            Allow the Physician Plenty of Time to Respond.  All claims forms have a due date, so don’t delay.  These forms are sometimes ambiguous and confusing – if there is any confusion over what is being requested, you may want to consider hiring counsel since even a minor mistake on a form can exponentially complicate the claims process or even lead to a denial.  That said, the forms should be in the hands of the doctors as soon as reasonably possible. The forms should also be reviewed after completion by a physician but before return to the insurance company.  A mistake or misunderstanding can add as much as one year of delay in resolving a valid claim.

Given the importance of these forms, a claimant should be considerate of a physician’s time and understand that a physician is typically not compensated for efforts toward supporting a disability claim.  Most physicians will help with a claim as an act of professional courtesy.  We have written about this previously.  See, Do You Have An ERISA Disability Claim? Print This Article, And Take It To Your Doctor.

4)            Be Willing to Compensate the Physician for Administrative Time. This is self-explanatory.  Politely inquire whether the physician is typically compensated for filling out forms and be willing to pay all reasonable charges.

5)            Explain that the Physician’s Involvement Will Be Minimal – No Depositions or Trial.

This is perhaps the most important and often overlooked part of an ERISA disability claim.  Most physicians are familiar with accident cases and workers compensation cases, yet lack familiarity with ERISA disability case. This presents a slight problem when physicians mistakenly believe they may be “called to testify” if they provide a professional opinion on a claimant’s medical and/or functional status. In practice, however, ERISA does not provide for trials, depositions, or live testimony.  At most, the physician will be asked (usually by the claimant’s lawyer) to supply a sworn statement or medical narrative.  This is part of a written submission or appeal for the claimant.  A physician will not be called to testify in a deposition or trial in an ERISA case.

In the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee), there is a special “framework” for resolving disability cases, allowing federal courts to conduct a “review based solely upon the administrative record and render findings of fact and conclusions of law accordingly.”  Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998).  This means that cases are decided on written submissions such as motions. While Wilkins did recognize that there are times when discovery is appropriate against an insurer or plan administrator, this does not include depositions of the treating physician.[1]

Bottom Line:      Establish a strong and courteous relationship with all treating physicians.

Explain to your physicians your need for their assistance with your claim.

Be willing to pay all reasonable charges for any administrative work, including completion of forms and preparation of medical narratives.

Don’t Delay!

[1] For more information about the Wilkins review process, see, see, John J. Conway & Trever M. Sims, Refining Wilkins: A 20-Year Look at the Recurring Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA Section 502(a)(1)(B), Sec. II.B, WMU-Cooley Law (2018), available at: https://issuu.com/cooleylawschool/docs/wmu-cooleylawreview-34-2/94.

It is one of the most commonly asked questions by disability claimants who have successfully battled their disability insurance companies to overturn a denied or terminated disability claim. They have won, but there is one lingering question:

Can my insurance company cut me off again?

Technically, the answer is “yes.” Most disability law practitioners have tried to couch the answer to that question based on their experience with the nation’s major insurance companies.  For some insurers, once you have beaten them, they are reluctant to put you through it again.  For others, it is one successive battle after another until they skate dangerously close to violating ERISA Section 510 (the statute’s prohibition on the intentional interference with one’s benefits).

Now, some federal courts are providing claimants a little more optimism about the future.  There is an oft cited, little used provision, tucked away in ERISA Section 502(a)(1)(B) which empowers a participant “to clarify his rights to future benefits under the terms of the plan.” (Emphasis added).

That portion of the (a)(1)(B) provision is gaining new potency after a series of decisions where federal courts in the Pacific Northwest have weighed in on its meaning.

In Gorena v. Aetna Life Ins. Co., No. 17-532, 2018 WL 3008873 (W.D. Wash., Jun. 15, 2018), while reviewing that provision, the district court ordered the payment of past due disability benefits to the claimant and placed real, substantive limits on an insurer’s ability to terminate a claimant’s monthly payments.  The district court held that the defendant was

directed to pay [the plaintiff’s] LTD claim to the policy’s maximum benefit duration absent a showing of improvement in her medical condition such that a reasonable physician would conclude that she could work in “any gainful activity for which [she is], or may reasonably become, fitted by education, training, or experience and which results in, or can be expected to result in, an income of more than 60% of [her] adjusted predisability earnings.” Unless Defendant can establish that Plaintiff is capable of performing such work productively, full-time, and without undue disruptions and/or absences due to her MS and its related symptoms, she is to continue to receive LTD benefits to the Plan’s maximum duration.

(Internal citations omitted). A similar resolution was reached in Bethany Coleman-Fire v. Standard Ins. Co., No. 18-cv-00180, 2019 WL 2011039, at *13 (D. Or., May 7, 2019), where the district court cited to a previous version of the Gorena ruling and held:

Accordingly, and in accordance with 1132(a)(1)(B), the Court offers the following clarification regarding Plaintiff’s right to future benefits: Subject to the terms and conditions of the Plan, Defendant shall pay Plaintiff’s LTD claim to the Plan’s maximum benefit duration absent a showing of improvement in her TBI/PCS symptoms such that a reasonable physician would conclude that Plaintiff could work more than forty hours per week in her Own Occupation.

With federal courts now appearing more apt to tackle the meaning of ERISA’s clarification provision, hopefully practitioners will be able to provide more resolute answers when a client asks the question, “will my insurance company cut me off again?”