Posts

On March 5, 2015, an en banc panel of the United States Court of Appeals for the Sixth Circuit issued its decision in Rochow v. Life Insurance Company of North America, Inc., 780 F.3rd 364 (2015).  (A copy of the decision is available here, Rochow v. LINA En Banc.) Previously, the Sixth Circuit affirmed a district court decision which ordered a disability insurer to disgorge profits totaling $3.8 million dollars for wrongfully withholding disability insurance payments for more than seven years. A United States District Court found that the insurance company had wrongfully denied ERISA disability benefits and permitted disgorgement relief in addition to the payment of past due benefits for breaching its fiduciary duties to the insured.

Originally, on December 6, 2013, in a 2-1 decision, the Sixth Circuit affirmed the disgorgement award.  On February 19, 2014, the Court vacated its decision and granted the insurer’s en banc petition.  On rehearing, after dispensing with a number of procedural arguments, the Court reversed the district court.  In its decision, the Court held that an award of disgorging the profits earned on the withheld funds was not allowed where payment of full benefits had been ordered under another provision of ERISA. The Court determined that an award of benefits along with a potential award of prejudgement interest provided the insured complete relief under ERISA.

Notably, and over a sharp dissent, the Rochow Court emphasized that ERISA §502(a)(3), 29 U.S.C. § 1132(a)(3) provides for a number of distinct causes of action which may be deployed when an ERISA participant is left without a remedy under ERISA §502(a)(1)(B), 29 U.S.C. §1132(a)(1)(B). That provision of the ERISA statute is used most often to enforce a participant’s right to benefits. The Court found that since the plaintiff  could be afforded full relief under ERISA Section 502(a)(1)(B), claims for additional relief under other provisions of the statute would not be allowed.  The Court held the two causes are distinct and do not overlap to provide relief beyond the payment of benefits if such relief is available to a participant.

about_pic1@1xInsurance companies can make the processing of a long-term disability claim unimaginably difficult. When a disability insurance company issues a written denial, its reasoning can seem insulting, insensitive, even callous. Litigation is always available as a means of holding difficult disability insurance companies accountable.  However, it is often more effective to take active measures in order to preserve a disability claim that has already been approved.  Here are a few suggestions for keeping your ERISA disability insurance claim in ‘approved’ status:

1. ‘Name’ Your Disability. A disability claimant, particularly someone who has struggled with several medical conditions, may want to claim all medical conditions as the cause of an inability to work. Sometimes, this is true. Still, listing multiple medical conditions provides an insurer with a unique opportunity to deny or terminate a disability claim. An insurer may question whether the medical evidence on each individual medical condition is, itself, disabling. When an insurance company employs such an approach, its denial letter will be lengthy and cite multiple reasons why each specific condition is not disabling. The insurance company may view each medical condition separately, rather than as contributing to the overall medical condition.

In the ERISA disability claims process, a claimant’s medical condition is properly viewed in terms of primary and secondary causes of medical disability. Such an approach focuses a disability claim. This approach allows an employee to explain the precise cause of an inability to work. If a claimant lists ten (10) different medical conditions as the primary cause of  disability, the claim becomes unfocused. This does not mean that medical conditions should be omitted from claims forms and requests for medical records. Not at all. All medical conditions are relevant and should be listed.  It does mean, however, that the claimant should be able to succinctly articulate the  medical condition or conditions which primarily cause an inability to work on either a full or part-time basis.

2. Know and Understand the Definition of ‘Disability’ or ‘Disabled.’  ERISA group disability insurance contracts tend to be form documents with similar definitions and coverage structures. A typical group disability contract promises to provide income replacement benefits to an insured participant who is unable to work because if illness or injury.  Additionally, whenever a claim is reviewed, a claimant should know the applicable standard for the continued receipt of disability benefits.  A disability contract may provide insurance for a claimant’s inability to perform his or her “own occupation” or “regular occupation.” A contract may also provide  insurance coverage for the inability to perform “any occupation.” A contract may provide some combination of both coverage standards.

For example, a contract may insure a participant for up to 24 months for the inability to perform his or her own occupation, after which the participant may be required to provide proof that a sickness or injury precludes that participant from performing any occupation for which he or she has the necessary skill set.  When responding to a review, it is important to know which definition or standard the insurance company will be using to evaluate the claim. Usually, the insurer will advise a claimant of the standard they will be applying when the claim is placed into review.  A claimant should be familiar with the applicable definition of disability and be evaluated by treating medical providers in light of what is required by that definition.

3.  Correctly Complete the Attending Physician Statement. Long-term disability claims are based in large measure on the submission of record evidence and the preparation of claims forms. The typical forms used in ERISA claims include (1) an employee statement of disability, (2) an employer work history statement, (3) an authorization for the release of medical records, and (4) an attending physician statement.

Sometimes referred to as an “APS,” the attending physician statement is a key document in a disability claim. In it, a physician (or sometimes multiple physicians or healthcare providers) identifies the claimant, the claimant’s medical condition, dates of treatment, and dates of claimed disability.  The “APS” inquires about restrictions or limitations and asks the medical provider to evaluate the physical abilities of the claimant to perform functions such as sitting, standing, walking, and the like on an hourly basis.

Standardized “APS” forms are notoriously ambiguous.  For example, a standardized “APS” form may inquire whether the claimant is mentally able to work. A treating physician in the area of internal medicine may not be familiar with a claimant’s mental status, and may fail to complete the section or, worse, inadvertently state that the claimant is not disabled.  Another common mistake is failing to read the forms correctly. All physical tasks should be viewed in the context of full workweek abilities, unless otherwise stated.  Sometimes, the forms inquire about the ability to perform certain functions over a 24-hour period.  “APS” forms should be read and completed with great care and attention to detail.

4. Treat Regularly With Doctors Who Regularly Treat Disabled Patients. A strong corollary of submitting a properly completed “APS” form is to treat regularly with physicians and providers who understand occupational disabilities. “APS” forms take time to complete.  Some busy physicians refuse to properly complete them. Since a disability claim may span years, or even decades, it is important to treat regularly with a physician or health provider that is experienced in treating patients with chronic conditions and who understand that paperwork might be required.  A claimant should recognize that medical insurers will typically not cover the cost of preparing any administrative forms and should inquire about and be willing to pay for the administrative cost of completing these crucial forms. Physicians should not be expected to work for free when using their expertise to assess disability.

Regular and continuous medical treatment is equally important.  When a disability claimant is notified that a claim is being placed in internal review, the claimant will often immediately schedule a doctor’s appointment.  Although innocent enough, if there is a lengthy treatment gap, the insurer may take the position that the medical appointment was merely to secure a supportive statement, instead of actual medical care. A claimant does not need to over-treat, but regular appointments, follow-up appointments, and documented medical care are critical to establish long-term, chronic conditions.

5. Document All Limitations and Restrictions.  The medical basis for disability claims is based on proof of functional limitations and medically necessary physical and mental work restrictions.  Over time, a chronic condition may result in the discovery of new and different physical limitations.  A claimant should bring these to the attention of a physician as soon as they are discovered.  This is important for three reasons.  One, the medical care may need to be changed based on a newly discovered physical limitation.  Two, the reporting and verifying of new limitations may indicate the worsening, rather than the improvement of one’s overall health.  Third, a medical record reported in “real time” is less likely to be challenged as opposed to a claimant disclosing new limitations after the claim in placed into administrative review.

6. Seek Objective Testing Where Possible.  Insurance companies are increasingly demanding “objective” proof or evidence of limitations or disability, even in cases involving mental health. Some ERISA disability plans now require “objective proof” of disability as a precursor for being approved.  Objective proof is ordinarily considered MRI, CT-Scans, EEG, EKG, blood chemistry panels, and other methods of objectively verifiable diagnostic testing.  In cases involving physical disabilities, a functional capacities evaluation (“FCE”) should be considered. In cases involving cognitive disabilities, a comprehensive neuropsychological examination should be considered.  Even if the particular tests are not covered by insurance, a claimant may want to schedule them anyway and pay for them directly as they will greatly assist proving continued disability during a claim review.

7. Document Activities of Daily Living and How Those Activities Have Changed.  A disability claim usually follows a similar path.  There is a “before and after” quality to the claimant’s lifestyle.  A busy lifestyle and robust social life can be replaced with a quieter and less active life coping with the loss of functionality and pain.  Sports activities, community activities and travel can all be reduced dramatically.  This does not mean it will always be so.  Individuals coping with chronic illness do find ways to be productive, seeing relatives and friends, and participate in some outside activities. Initially, and usually for some prolonged period of time, a claimant’s former lifestyle is altered considerably as a result of medical disability.  It is important to document all such non-occupational changes.

8. Do Not Believe That Once Approved, Always Approved.  When an insurance company approves a claim, it typically does so only for a fixed period of time, 90 days, six months, or one year at a time.  An insurance company conducting a review will almost always request updated medical records.  A claimant should keep a running  folder or binder of all medical records for all treatments even after a claim is approved and should review them for accuracy.  The records, themselves, will provide a useful medical history when a claim is reviewed. Up-to-date, accurate, and complete medical records will increase the odds of a claim remaining approved. Additionally, if an insurer requests in-person visit or interview or requires that a claimant undergo an in-person examination, it may be time to consider hiring an attorney experienced in disability claims.  These actions signify that an ERISA disability claim may be on a litigation footing.

9. Be Cautious About Online Postings and Public Appearances.  A disability claimant’s most frequent contact with the larger world is, like most others, through use of the computer.  Online accounts and social media have become ubiquitous and inexpensive.  Anything a person does can be publicized to the world right as it happens from a phone, tablet, or portable computer.  The risk inherent with social media postings for a disability claimant should be apparent.  A posting, even an innocent posting, which is at odds with claims of total disability can and will be used against a claimant.  Therefore, the public broadcasting of one’s activities through social media, particularly the posting of attendance at personal outings and events is discouraged. (For more on this subject, please see An Online ‘Friend’ You May Not ‘Like’).

10. Watch Out for Surveillance.  Few things in an ERISA long-term disability claim are as unsettling as a claimant realizing that the insurance company has ordered surveillance.  Worse, in ERISA disability cases, the films tend to be heavily and selectively edited since the surveillance videographers cannot be subpoenaed.  Disability claimants cannot prevent intrusive surveillance, but can protect themselves with a few pointers.   First, determine whether your insurance company relies on surveillance filming.  Liberty Mutual and Sedgwick CMS are currently disability companies which rely heavily on the use of surveillance in disability claims.  Second, note that surveillance is not (typically) conducted as 365-days-a-year program.   It is expensive.  Insurance companies tend to use surveillance around the time they request updated medical claims forms and new medical record authorizations.  Third, be vigilant.  Take notice if a strange vehicle begins appearing on the street, or a vehicle is occupied.   Surveillance companies tend to conduct full day observations.   Most start as early as 7 a.m. or watch a person over multiple days or over a weekend.  The good news is that there is usually an end date.

(c) 2015 by JJ Conway. All rights reserved.

 

Disability insurance claimants are attracting online ‘friends’ they could do without. There has been an increase in the number of cases involving the premature termination or denial of long-term disability insurance benefits owing to a claimant’s imprudent use of social media. Now, the administrative service contracts of many disability insurance plans include, as a performance of these services, the actual monitoring of the Facebook, Twitter, and other online accounts of disabled claimants. In other words, plans are now paying investigators to watch everything a claimant posts online.

 

Cases involving ERISA disability insurance claims reflect this reality. For example, in Wicks v. Sun Life Assurance Co. of Canada, U.S.D.C. Case No. 2011-cv-01086 (W.D. Mich. 2013), the insurer hired a paid private investigator to closely monitor postings on the plaintiff’s Facebook page. The private investigator, while monitoring the plaintiff’s online Facebook postings, apparently captured images where she had boasted about building a loft in her child’s college dormitory and taking extended vacations. Because the plaintiff’s disability claim was based largely on subjective complaints of her physical limitations, the complaints were deemed inconsistent with her Facebook postings. The Court upheld the denial of the disability claim.

 

This is a tough situation. Losing the ability to work is, itself, a hardship, particularly in our society where so much of our identity is derived from our employment. For a person receiving disability insurance payments to replace lost income, the question ‘what do you do for a living?’ may cause feelings of pain, embarrassment, and even anxiety. Disability claimants do not want to be ‘disabled.’ Most work well beyond a time when they should, out of the social stigma attached to no longer working. The idea that a mother of a college age child, who is occupationally disabled, would boast on Facebook that she somehow contributed to building a loft for her child makes a certain sense when you understand the world of disability. For her network of social contacts, she may have been simply announcing, ‘I still count,’ or ‘I matter.’

 

Still, the post cost her dearly. The plaintiff in Wicks lost her benefits, and from the facts, it appears she had several years until retirement. Despite the fact there might be different motivations as to why a claimant posts certain comments online, the minimal or discontinued use of social media during a claim of disability is highly recommended.

 

On October 28, 2014, Mary Williams Walsh, a New York Times journalist who has been chronicling the nation’s public pension crisis, reported on a case in which JJ Conway Law is one of the law firms representing the plaintiffs.  Appearing on the front page of the New York Times Business Section, the paper published an in-depth account of two cases pending in Detroit, Michigan against the plans’ actuaries.  (http://dealbook.nytimes.com/2014/10/28/lawsuit-contends-consultant-misled-detroit-pension-plan/?_r=0).

The article entitled, Lawsuit Contends Consultant Misled Detroit Pension Plan, states:

The lawsuit seeks to have the pension plan made whole, in an amount to be determined at trial, and to have Gabriel Roeder enjoined “from perpetrating similar wrongs on others.”  Lawsuits like the one [the Plaintiff] has filed have also been brought against Gabriel Roeder by members of Detroit’s pension fund for police and firefighters, and the fund for the employees of surrounding Wayne County. The plaintiffs cite damage growing out of Detroit’s financial collapse, but the litigation may have implications far beyond southeastern Michigan because of Gabriel Roeder’s status and influence in the world of public pensions. Its method for scheduling pension contributions is exceptionally popular and widely used by governments, although federal law does not permit companies to use it.

Serving together with the law firm of Mantese Honigman, JJ Conway Law is representing municipal retirees in litigation involving the City of Detroit General Retirement Systems, the City of Detroit Police & Fire Retirement System, and the Wayne County Employees Retirement System.  The claims assert that funds’ actuaries did not adequately account for changing economic conditions facing the municipalities and did not account for the massive losses incurred in the administration of funds when making actuarial assumptions and making funding recommendations. The firms successfully resolved claims against the Trustees of the two City of Detroit pension systems for losses associated with the widespread use of alternative and unregulated investments.