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The Litigation Section of State Bar of Michigan has published an article authored by J.J. Conway, Esq. discussing the importance of developing a theory of the case early in the litigation process.  The article, published in the The Litigation Journal, discusses ways that litigators should formulate a theory of the case early in the pretrial process in order to litigate more effectively. The article is entitled, “A Strong Theory of the Case: The Faster It Is Developed, The Better The Results” (Fall 2017). The article is available here, The Litigation Journal (Fall 2017) – A Strong Theory of the Case

On December 6, 2017, U.S. News & World Report published “What to Wear to Work,” a discussion of workplace rules and dress codes.  The article explored the legal permissibility of dress codes and instances where neutral dress code and appearance policies can run afoul of state and federal law.  The article featured J.J. Conway, Esq.  as a legal analyst for the national publication. The online version article may be found here,  https://money.usnews.com/money/careers/company-culture/articles/what-to-wear-to-work.

No one should ever be subject to sexual harassment in the workplace. That is both state and federal law.  It is also a matter of basic morality.

With the explosion of sexual harassment revelations that have occurred during the past year – what some are now calling “Hurricane Harvey” – employers and employees are, again, confronting one of the most challenging problems in the workplace.

Sexual harassment usually stems from a bizarre psychology.  The complaints that have become public are not only offensive, but many of the allegations are strange.  The allegations against Harvey Weinstein, for example, make one wonder if, had he not been a powerful executive at a major production company, would he have been a playground flasher or peeping tom?  These are the actions of disordered persons.  The only difference is one seeks out victims in public places.  Weinstein, by contrast, apparently performed his stunts in a $5,000 a night hotel room at the Peninsula Hotel in Beverly Hills.

Similarly, Bill O’Reilly must have confronted real, hard evidence (not mere allegations) that would have proven he did something unspeakable or so damaging to his brand that it was better to pay $32 million to secure a confidentiality agreement than to have the evidence made public.  Previously, O’Reilly had been tape recorded using graphic and vulgar language during phone calls. No one pays $32 million to settle a “frivolous” lawsuit.  Plenty of lawyers would be willing to “vigorously” contest the allegations for fees of 1/100th that amount.

In the sexual harassment cases our firm has handled, it has been remarkable how many times the case was resolved when we moved to have the harasser examined by a forensic psychologist. Sexual harassment is not always what it seems. Clearly, there are cases where persons in management or coworkers use the workplace to try to secure dates or romantic adventures, but in many cases there is no actual sexual attraction to the victim. It is often about bullying a person whose vulnerability is somehow revealed in the workplace. The victims tend to have certain identifiable vulnerabilities that bring out the inner bully in certain management types or coworkers.

For example, the workplace harassment is visited upon a single mother who is trying to date again, or an employee is struggling with weight and body image issues, or, perhaps most unsettlingly, a person who has been subject to bullying and putdowns all their life.

The cruelty of bullies doesn’t disappear when a person gets a promotion or makes a lot of money.

It is one of the reasons that the number of complaints against a harasser is important.  Again, to be clear, all sexual harassment, even a single situation, is unlawful. The reason that the number of complaints matter is that it is evidence of a pattern and practice.  It is also suggestive of evidence proving the occurrence of the conduct is more likely than not to have occurred.

The women who have come forward against Weinstein, O’Reilly, and recently Matt Lauer have rightly been called “courageous” and “brave” because most employees understand that human resources departments are totally useless in sexual harassment cases.  Generally, H.R. doesn’t like problems, and a complaint of sexual harassment certainly qualifies as one. Given H.R.’s ineffectiveness, this also highlights why the large number of complaints is revealing.   First, if H.R. were on the ball, this likely would not have happened (think of the now dead Roger Ailes at Fox, where he was the H.R. department).

The large number of complaints is also reflective of basic human nature. Human nature suggests that repeat patterns of behavior are associated with desired results. For all the complainants who have come forward there are likely many, many more who fell victim, submitted to the advances, and carry with them feelings of guilt and shame.  This fact has remained largely unspoken during these public cases, but it is safe to assume that if ten complaints are made public, there are likely many more which no one will ever know about.

Charlie Rose likely didn’t invite women to his house in the evening and put a robe on in one solitary occasion. Based on the allegations, we know that Harvey Weinstein didn’t conduct a meeting in a hotel room with a robe on and a shower running just one time.  Bill O’Reilly didn’t book hotel rooms where company events were being held on just one occasion.  Matt Lauer went so far as to have a button installed on his desk to lock his office door remotely when women were present.  It is unlikely that Lauer pushed that button only one time.  Likely, these acts were part of a pattern that had worked before, and these men thought it would work again.

What is truly troubling, beyond all the numbers of victims, is just how premediated it all seems.  Perhaps, this has been the greatest revelation of all.  Harassers think through the harassment.  It also seems that many employers knew about the premediated harassment and did little to stop it. This is now the new challenge in the workplace.  Employers must not simply work to make the workplace free of sexual harassment, but seek to identify and break down the patterns which enable it in the first place.

One of the more notable observations of the responsibility of plan administrators to provide full and fair reviews consistent with 29 U.S.C. § 1133 appeared two decades ago in Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 848 n. 7 (6th Cir. 2000).  There, Judge Gerald Rosen, former chief U.S. district judge for the Eastern District of Michigan, sitting by designation, resolved a provider-plan dispute under ERISA, holding:

[I]t strikes us as problematic to, on one hand, recognize an administrator’s discretion to interpret a plan by applying a deferential “arbitrary and capricious” standard of review, yet, on the other hand, allow the administrator to “shore up” a decision after-the-fact by testifying as to the “true” basis for the decision after the matter is in litigation, possible deficiencies in the decision are identified, and an attorney is consulted to defend the decision by developing creative post hoc arguments that can survive deferential review. The concerns inherent in this scenario are even more pronounced where, as here, the administrator has a financial incentive to deny benefits.  Id.

Seventeen years later, the Sixth Circuit reaffirmed this notion in Corey v. Sedgwick Claims Mgt. Services, Inc., 858 F.3d 1024, 1028 (6th Cir. 2017).  The Court held:

The Administrator’s response leans heavily on the plan’s grant of interpretive discretion. But the record leaves us guessing as to how the Administrator interpreted the plan’s objective-findings definition. The Administrator’s denial letters simply quote the plan language and then conclude Corey’s evidence fails to suffice. Although the Administrator enjoys interpretive latitude, we defer only to its actual interpretations—it can’t issue a conclusory denial and then rely on an attorney to craft a post-hoc explanation. Id. (citing Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 848 n.7 (6th Cir. 2000)).

These cases advance the notion that although ERISA cases still function as adversarial proceedings, claims under the statute are required to be evaluated differently than most other disputes.  The plan’s administrators are fiduciaries, tasked with fiduciary standards of conduct, not partisan advocates.  These rulings do not mean that a claimant seeking benefits must win, far from it.  They do require, however, that ERISA participants must, by law, be given a fair shot at presenting their claims.  Evaluation of their claims must not be outcome-determinative or results-oriented. Courts continue to frown upon denials which are the product of lawyerly arguments rather than the type of independent decision-making ERISA requires.

J.J. Conway was a featured speaker at the State Bar of Michigan’s Annual Meeting and NEXT lawyer development conference held in the Cobo Convention Center in Detroit, Michigan on Friday, September 29, 2017. Conway made presentation to new attorneys and those interested in self-employment in a presentation entitled, Hanging Out Your Shingle in 2017.  Conway has presented similar lectures to the State Bar Annual Meeting’s attendees in Grand Rapids, Lansing, and Detroit at prior annual meetings. He has also written on the topic for various legal publications.

The Michigan Court of Appeals has held that, for the purposes of a claim under the Court of Claims Act, the statute of limitations may begin to run prior to any actual deprivation of financial benefit.

In Bauserman v. Unemployment Insurance Agency, No. 333181 (Mich. Ct. App. Jul. 18, 2017), the Michigan Unemployment Insurance Agency (defendant) appealed a trial court’s decision denying the defendant’s motion for summary disposition.  The Court of Appeals held that a violation of the Court of Claims Act did exist, reversing the trial court’s decision.

The dispute centered on the defendant’s use of an automated decision-making system to both “detect and adjudicate suspected instances of employment benefit fraud.”  Id. at 1.  Once the system ‘detected’ an instance of benefit fraud, it would issue a notice and questionnaire in regards, either to the employee’s home address or an online unemployment portal which was rarely, if ever, accessed by employees.  Following the notice, defendant would routinely “intercept” tax refunds, garnish wages and initiate collection activity through a court of law.  Id. at 2.

Plaintiffs alleged that the Unemployment Insurance Agency’s use of “an automated decision-making system for the detection and determination of fraud cases, whereby the computer code in the automated decision-making process contains the rules that are used to determine a claimant’s guilt, and those rules change the substantive standard for guilt or are otherwise inconsistent with the requirements of due process.”  Id. at 8.

The Court of Claims Act, MCL 600.6431(1), provides, in relevant part, that “[n]o claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments….”  In actions for property damage or personal injuries, the claimant only has “6 months following the happening of the event giving rise to the cause of action” to file a written claim.  MCL 600.6431(3).

The court identified the determinative question as “what event gave rise to [the plaintiffs’] cause of action.”  Bauserman at 5.  The triggering event was either when the defendant issued notices informing the plaintiffs they were disqualified from receiving unemployment benefits or when the defendant actually seized the plaintiffs’ property.  Id.

In McCahan v. Brennan, the court held that MCL 600.6431 is to be “understood as a cohesive whole.  Subsection (1) sets forth the general rule, for which subsection (2) sets forth additional requirements and which subsection (3) modifies for particular classes of cases that would otherwise fall under the provisions of subsection (1).”  492 Mich. 730, 742 (2012).  Thus, while subsection (1) of MCL 600.6431 may provide a longer time frame to file a notice with the Court of Claims, subsection (3) shortens the time period for applicable claims to six months after the plaintiff’s cause of action accrues, or “when the wrong on which they base their claims was done.”  Bauserman at 7.

The Bauserman plaintiffs alleged a violation of the Michigan Constitution, Article 1, § 17, which provides that “[n]o person shall be… deprived of life, liberty or property, without due process of law….”  Specifically, the plaintiffs alleged that the defendant failed to “follow the minimum due process standards required under federal law with respect to the collection of unemployment debts, including overpayment and penalties.”  Id. at 8.

The court held that while the plaintiffs claimed “the wrong on which their claims are based took place when defendant intercepted federal and state tax refunds, garnished their wages and forced repayment of unemployment benefits[,]” the alleged wrong actually took place “when defendant issued notices informing plaintiffs of its determination that plaintiffs had engaged in fraudulent conduct, and they were not given the requisite notice and opportunity to be heard.”  Id. at 9.  Therefore, the “economic deprivation” encountered by the plaintiffs was a secondary result of the original deprivation of due process, and not the proper point to adjudge the applicable statute of limitations.  Id.  Therefore, it was the notification of the deprivation of unemployment benefits, not the actual seizure of said benefits, which constituted the statutory point of claim accrual.

The Bauserman court cited Frank v. Linkner, a 2017 Sixth Circuit decision, which held in part that a plaintiff’s claims could accrue prior to a plaintiff incurring “calculable financial injury….”  894 NW2d 574 (2017) (Docket No. 151888), slip op at 14.

Following this decision, it is clear that a plaintiff’s pre-suit inquiry into the possible statute of limitations for claims arising against the State of Michigan must not be limited simply to the date the actual harm accrued, but should also account for any conduct preceding the harm which may have actually triggered the statutory cause of action.

In twenty years of handling employee benefit disputes, I have made a few observations of the ways to keep a long-term disability insurance claim in “approved status” or “open” as insurance companies say. A disability claimant’s medical file should include accurate and documented history of disability and should always be up to date. A disability claimant should avoid common pitfalls that can doom an otherwise valid claim.

Employees who file for disability insurance benefits have legitimate and provable claims. Many wait until their medical situations become unbearable before beginning the disability claims process. So why are so many claims denied by disability insurance companies? The reason is simple.

The filing of a long-term disability claim is an adversary process, and given this reality, appearances matter.

The claims departments of long-term disability insurers are populated with adjusters who believe that people seeking disability benefits do not want to work. In some of the most serious medical cases our firm has handled, the insurers have denied the claims for patently absurd reasons, bred of a kind of cynicism rather than objective factual consideration. A claimant seeking disability benefits cannot make the insurance company’s job easier. The interests are adverse. It is best to accept this, not fight it, and to adjust to avoid common claims filing mistakes.

What can a claimant do to make the process smoother?

1.Stop Using Social Media Now. Searching social media sites is the new weapon of choice in disability claims departments. Online searches are replacing surveillance as the preferred form of “gotcha” by the nation’s insurer. Claims files now regularly contain public images downloaded from Facebook or Instagram that are cited as evidence that a disabled claimant is essentially leading a normal life and should be able to work. We have written before about this before in the Summit. (See Long-Term Disability Insurance Update: An Online ‘Friend You May Not ‘Like’.)  Often, claimants do not heed the warning. Social media in this context is misleading. Unless a post is time-tagged, it is difficult to determine whether a posted picture of the claimant was taken recently (i.e., while claiming disability benefits) or years earlier. Sometimes insurers do not produce these materials until after a long-term disability appeal is filed, to deny the claimant the opportunity to explain the images or provide some context such as, ‘this photo was actually taken before I became sick.’ We can longer recommend a middle ground, sign off social media until the claim is over.

2. Reasonable Requests for Information Are Reasonable. Many claimants have experienced long delays in payment after they initiated a claim. Once the claim is approved, they are surprised when the insurer then asks for subsequent medical updates. Providing updates every year is likely to be found to be reasonable by a court unless there are some unique circumstances. By contrast, requesting monthly or bimonthly is likely to be found to be excessive.

3. Keep All Doctor Appointments.  A doctor’s appointment has a primary and secondary function.  The primary function is obviously to address and care for your medical condition. The secondary function is  to document (medically) the history of restrictions and limitations.  A claimant must be candid and forthcoming with treating doctors about how a condition is affecting one’s life.  Having a contemporaneous record of one’s health struggles will greatly assist in both the approval and continuation of a claim.

4. If You Can Work, Work. Many policies provide for partial or rehabilitative disability benefits. This means that if a claimant returns to work on a part-time basis, the insurer will make up the financial difference between the amount of the monthly disability benefit and the pay received from part-time employment.

5. Two Wrongs Don’t Make a Right: Just Because Disability Insurers Lie, Never Stop Telling the Truth. Honesty is at the heart of any successful disability claim.  Honesty requires the truthful explanation of what limits a claimant’s ability to work. A claimant need not exaggerate any symptoms, but simply explain why a condition prevents performing the duties of a certain job.  For example, a cashier with a serious wrist injury can easily explain how that condition (loss of movement) prevents the regular performance of an essential job duty (counting back change).

These are but a few suggestions for taking a practical approach a disability claims and minimizing the adversity that exists between claimant and insurance company during the process.

The State Bar of Michigan has published an article authored by J.J. Conway, Esq. discussing the judicially mandated administrative claims process required by ERISA Section 503, 29 U.S.C. 1133.  The article, published in the Michigan Bar Journal, discusses ways that claimants may use the pretrial process more effectively. The article is entitled,”The Private Resolution of Employee Benefit Disputes: Section 503 and the Meaning of Evidentiary Materials in ERISA Cases”  (Sept. 2016). The article is available here.

J.J. Conway has been named a 2017 SuperLawyer by Thomson Reuters.  J.J. has been listed as SuperLawyer or SuperLawyer Rising Star on ten occasions. SuperLawyers is a “rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer-recognition and professional achievement.” The selection process “includes independent research, peer nominations, and peer evaluations.” www.superlawyers.com.

For more information and to view J.J.’s Superlawyer profile, please visit:
J.J. Conway’s SuperLawyer Profile.

J.J. Conway Law is an employee benefits law firm representing clients in the matters involving ERISA, pension, long-term disability insurance, healthcare, life insurance, as well as other benefit matters. Based on Royal Oak, Michigan, the firm represents clients throughout the United States in ERISA and employee benefits matters, including complex benefit class action cases.

J.J. Conway was a featured speaker before the practice management class of the University of Detroit Mercy School of Law on Friday, February 17, 2017.  Conway is a 1996 UDM law graduate and was invited along with other self-employed attorneys to discuss the advantages of representing clients by owning one’s own law firm.  Conway has previously presented lectures to the State Bar of Michigan’s Practice Management Section and the Institute of Continuing Legal Education (ICLE) and has written on the topic for various legal publications.