Finally, the court rejected Guardian’s contention that there was inadequate evidence that Dr. Weisman was disabled before he quit his job because he was self-evaluated (and treated) up to that point and only went to the specialist after he stopped working. This ERISA claim turned on whether he was covered under the policy even though he sold his business as of the date of his disability. .

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

Accepting that you are disabled can be very difficult and uncomfortable. This is especially true for our skilled and/or high-level professional clients such as doctors, lawyers, and corporate executives. It often feels easier to tell patients, clients, and employees that you are “retiring”, rather than admit you can no longer perform the job and need to step away. Many of our clients wonder, does it really matter what word is used? As recently seen in Cameron v. Sun Life Assur. Co. of Can., the answer is a resounding yes. 2022 U.S. Dist. LEXIS 200078 (C.D. Cal. Nov. 2, 2022).

In Cameron, the plaintiff was a radiology administrator who became disabled by a cardiac condition. He returned to work for a short period time, then determined that he would need to stop permanently due to the stressful nature of his job, which was impacting his health. Instead of returning to his doctor to address his ongoing symptoms, he “retired” from work. Months later, his condition continued to progress and manifest symptoms supporting his decision to stop working.

His employer’s long term disability insurer SunLife was solely interested in whether there was a medical record indicating that his disability continued as of the date that he stopped working. (resigned from work) Unfortunately, there was no such record because his doctor had simply noted that he was retiring due to the impact of work stress on his heart condition. The Court determined that his doctors’ notation of “retired” instead of “could not continue working due to the exacerbation of his cardiac condition due to work stress” “establish[ed] the end date of [his] entitlement to benefits.” Once he retired from work for his employer, he was no longer insured under his employer’s policy. In reality, he stopped working because of his medical condition!

We also face an uphill battle with insurers when we step in to represent individuals who already filed their claims, and noted that they “retired”, rather than to admit they were unable to continue working due to a disability. Once that message is conveyed to the insurer, it takes a lot of effort to convince them that this was not a choice to stop working, but a necessity due to functional physical or mental impairment.

If you are disabled, we suggest that you do not ever use the term “retired” to explain your absence from work, not just with your doctors but also in your statements and documentation to your insurance company. Do not indicate, either verbally or in any forms that you complete, that you have retired. Instead, be sure to note that you stopped working due to a medical condition. An experienced attorney can help guide you through this process.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com.

Secondly, Unum claimed that even if the condition was caused by injuries, it was not an accident, imputing knowledge to Dr. Chapman that she was highly likely to suffer this injury by her work. The court disagreed, explaining, that it “strains credulity to conclude that any endodontist views the possibility of disabling arthritis simply by practicing endodontia as highly likely. If this were the case, the dental field would be suffering a severe shortage of endodontists.”

The court considered the reasonable expectation of the insured:

“Finally, as a matter of logic and common sense, disabilities caused by repetitive trauma, are often termed repetitive stress injuries not repetitive stress sicknesses. An ordinary plan participant would likely expect that an insurer would cover a repetitive stress injury under Provident’s definition of an accidental bodily injury.”

This important analysis applies to many professions commonly exposed to repetitive stress to the body in the workplace. If you are disabled due to a condition that originates or is worsened by repetitive exposure to the causative agent (constant use of hands, heavy lifting objects) read your policy carefully and determine if your claim is based on sickness or accidental injury because this may impact the maximum duration of your claim.

We have handled appeals for clients who suffer from chronic pain but are able to mow their lawn, or clean their own home, or care for children. Hartford, Cigna, Unum and Prudential often deny claims of individuals whose lives outside of work appear to be too busy or too “normal” to justify a disability claim. However when rushing to deny a claim, the insurer does not ask how often the person is able to perform these activities, or under what conditions. We have successfully appealed cases where the insurers have challenged our client’s claim because they admit to using a computer or smart phone. The insurer simply concludes that the person surely can perform the duties and demands of their sedentary job which requires sitting at a computer during the normal work day. We have established the key difference between using a mobile device and computer periodically to check emails, or the news, and functioning in an executive capacity, performing cognitive demanding, time sensitive work duties on a daily basis. We advise our clients to be careful when completing insurer forms and to place their acitvities into the proper context.

A recent case by a Software engineer, disabled by cognitive and depression symptoms outlines the courts analysis on this issue. In Chapin v. Prudential Ins. Co. of Am., Prudential alleged that Mr. Chapin was not disabled due in part to his doctor’s noting that he continued to exercise, ski and hike. The court noted “Being able to ski, hike and work out in no way transfers into or supports performance as a software engineer.” Evidence supported that he was disabled from his cognitively demanding occupation despite his continued attempts to remain physically active.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking income replacement long term disability benefits and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com

The lesson of this case is, to stay on top of your medical proofs, be sure that you keep up with periodic medical evaluations and provide your doctor with all of your symptoms and continuing medical problems so their records are complete. Do not assume that since you have been on claim for a long time, the insurer will just put your file away and not question your disability in the future.

We at Bonny G. Rafel LLC monitor our clients’ cases to be sure that their medical proofs remain supportive of their disability. We are prepared to update the disability insurers periodically to advocate for our clients, as the Voice of The Disabled.

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A, all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notice (the “Outbreak Period”)⁸ for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503-1(h),

This important Federal Regulation protects claimants under ERISA disability plans who have received denials of their claims. The deadlines for filing an appeal of a long term disability claim under ERISA is 180 days, but due to this statute, the period from March 1 until 60 days after the end of the “Outbreak Period” does not count. We have encountered many individuals facing denials of their claims, but cannot interface with their doctors to obtain the medical support necessary to contest the disability insurance company’s denial. Fortunately, with this extension, ERISA claimants will have more time to seek counsel, and collect evidence to prove their entitlement to LTD benefits. If you are facing a deadline to file your appeal, I suggest that you send a letter to the disability insurer, reciting this Federal Regulation, and confirming that the deadline has been tolled. We at Bonny G. Rafel LLC handle short and long term disability claims. We will gladly speak with you regarding your disability claim. Call us. (973)845-2600.

The incompatibility of these two situations clash when the insurer to your disability claim requires “appropriate treatment” for the disabling condition in order to continue the claim. The recent court decision in Griffin v. Hartford Life & Accident Ins. Co., 898 F.3d 371 (4th Cir. 2018) makes clear that continuing medical visits are necessary. Griffin stopped working due to pain from a herniated disc and saw his medical provider from September 2011 to June 2013. Since there was o feasible medical treatment to improve his condition, he stopped active treatment. Griffin explained to Hartford that he was unable to afford continuing visits to his medical provider, yet Hartford still required that a physician remark on functionality in order to continue paying Griffen long-term disability benefits. Since no treating physician could speak confidently on Griffin’s current disability the court upheld Hartford’s denial of Griffin’s long-term disability claim despite his contention that he remained disabled.

I advise all clients experiencing a chronic medical condition to remain under the care of a physician with at least quarterly visits, even if the physician maintains that the condition remains unchanged. Clients should have disability claim forms completed by their treating provider and keep up to date with any necessary claim materials, so that disability is continuously supported. While it may seem unnecessary to spend resources on visiting a provider when no tangible benefit comes from doing so, previous cases such as Griffin v. Hartford Life show that courts are likely to view, as insurance companies do, a lack of continuing medical history as congruent with improvement in one’s condition or absence of disability altogether.

We will issue several blogs on the important changes to the regulations to demonstrate how significant the changes are to repair fundamental flaws in ERISA. The Department of Labor explained that the regulations were enacted

“to promote fairness and accuracy in the claims review process and protect participants and beneficiaries in ERISA-covered disability plans by ensuring they receive benefits that otherwise might be denied by plan administrators in the absence of the fuller protections provided by this final regulation.”

Impartiality of the decision-makers

Nearly ten years ago, the U.S. Supreme Court held that a plan administrator’s dual role of both evaluating and paying benefits claims creates a conflict of interest. That conflict is to “be weighed as a facto[r] in determining whether there is an abuse of discretion.” MetLife v. Glenn 554 U.S. 105 (2008). This consideration of the existence of a conflict has unleashed hundreds of discovery battles in disability litigation because the insurer wants there to be no discovery beyond the administrative record they have created, and the claimant seeks to establish motivation and bias that influenced the decision makers,-evidence rarely found in the claim file itself. It remained unclear how a claimant can establish the insurer’s conflict existed and influenced the outcome if the record is closed.

For example, during ERISA litigation, insurers do not want their medical or vocational experts deposed. As a District Judge in Chicago held, “A physician’s potential biases and conflicts of opinion could directly affect the Court’s decision whether Plaintiff is or was actually disabled because they bear on the credibility and reliability of her medical opinions.” In Harding v. Hartford Ins. Co. , 2017 U.S. Dist. LEXIS 54241 (N.D.Ill. Apr. 10, 2017), The Court was skeptical of Hartford’s assertion that the administrative record contains any evidence of the hired medical reviewers’ biases and granted plaintiff’s request for his deposition.

The ERISA amendment requires that disability benefit claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision. Insurers must not employ individuals including medical consultant reviewers who have reputations for producing reports that lead to claim denials, or bonus them based on outcomes. Similarly, the selection of vocational experts must be insulated from economic bias that may influence their opinions and create a conflict of interest. Insurers must actively take steps to confirm their selected reviewers are not beholden to opinions that lack objectivity or are based on retaining their stream of income from the insurance industry.

Other examples of the court’s interest in the integrity of the reviewers include Mendez v. FedEx Express, 2016 U.S. Dist. LEXIS 111329 (E.D. Mich. Aug. 22, 2016). The court held:

“Aetnas reviewing physicians were “repeat players that have a material, if not necessarily disabling, conflict of interest”. This does not automatically render Aetna’s decision arbitrary and capricious, but it is a factor that weighs against Aetna.”

In another recent case, a Court recognized the impropriety of relying on experts who are a reliable resource for denial support, holding,

“The court also notes that the financial relationship between Aetna and Dr. Sharma, through MES, does suggest the possibility of a conflict of interest.” Plaintiff points out that Dr. Sharma’s payments for reviewing Defendant’s claims nearly doubled over two years, and although this fact standing alone would not render defendants or Dr. Sharmas opinion unreasonable, but does suggest a possible (unsatisfying) explanation for why Defendant would rely on Dr. Sharma’s report despite some of its flaws discussed above.”

See Alvarado v. Aetna Life Ins. Co., 2016 U.S. Dist. LEXIS 120275 (N.D. Ill. Sep. 6, 2016)

We expect that this regulation will loosen the tight constraints many courts have enforced to limit discovery about the decision-maker’s financial remuneration, their bias, and hold the insurers responsible for obtaining assessments that are more independent of insurers’ financial ties. As Bonny G. Rafel LLC, the Voice for the Disabled, we will continue to advocate for fair, objective oversight of claims by the insurance companies who market and advertise that their policies will protect their insureds when disaster strikes, but often terminate or deny valid claims instead.

There is no known cure for MS. The National Multiple Sclerosis Society recommends that people with MS begin treatment with Avonex, Betaseron, Copaxone, or Rebif as these “drugs help to lessen the frequency and severity of MS attacks, reduce the accumulation of lesions in the brain, and slow progression of disability.” Many therapies are also available to treat MS symptoms.

Many individuals can continue to work for a long time before the symptoms associated with this disease, often fatigue, cognitive deficits, pain, spasticity, bladder problems, and muscle weakness impair their ability to continue working. People with MS may request work accommodations, such as: moving a workstation closer to the bathroom, allowing for longer breaks, allowing to work from home, allowing a flexible work schedule, parking closer to the work-site, adjusting desk height if a wheelchair or scooter is used. Once symptoms progress, many people with MS are unable to continue working and file for disability benefits.

Many of our clients have MS and insurance companies deny their benefits by asserting that they are capable of performing their regular occupation on a continuing basis despite mental impairment or are able to perform sedentary work despite physical limitations. However, courts have found MS to be a totally disabling disease. For example, in Kibel v. Aetna Life Ins. Co., 2015 U.S. Dist. LEXIS 24308 (C.D. Cal. Feb. 25, 2015) Aetna conceded to Ms. Kibel’s MS diagnosis, but denied her claim for long term disability benefits because she was “[not] functionally impaired”. However, the court held that Ms. Kibel was entitled to disability benefits. The court recognized that MS is a progressive disease and with Ms. Kibel’s symptoms of gait disturbance, weakness, and numbness, she could not perform her physical job duties. Courts also recognize the disabling effect of “pathological fatigue and cognitive decline” caused by MS. Kreeger v. Life Ins. Co. of N. Am., 766 F. Supp. 2d 991 (C.D. Cal. 2011).

The National Multiple Sclerosis Society is a great source for people living with MS and has chapters all over the country. We often get referrals from their New Jersey chapter. We recently received a wonderful testament from the National Multiple Sclerosis Society for our work. We at Bonny G. Rafel, LLC take a special interest in MS; we understand its progressive nature and truly disabling effect.

Debra’s claim was brought under state law but the claim administrator tried to dismiss it as preempted by ERISA. Debra alleged that the claim management company received private health information while performing case management duties under the health plan and improperly disclosed them to her employer. She alleges that by providing personal health information to her employer the claim administrator did not act solely in the interest of the employees and the beneficiaries but rather in the “competing interest of the employer, to provide the employer with notice that the employee would likely be incurring high medical costs”. The court agreed that Debra’s privacy and unfair business practice cause of action could be brought as a breach of fiduciary duty under ERISA but decided that California’s Constitution providing a right of privacy was violated and this violation is not preempted by ERISA because it arises independent of ERISA or the plan. This case is reminiscent of another right of privacy case for a disabled employee, brought in California, Dishman v. Unum Life Insurance Company of America, 269 F. 3d 974 (9th Cir. 2011). In that case, while on claim, Dishman’s privacy was invaded by an investigative firm who conducted surveillance, elicited private information about Dishman’s employment status by falsely claiming to be a Bank Loan Officer, solicited information from neighbors and friends, obtained credit information by impersonating him and committed other false acts. The 9th Circuit Court of Appeals in Dishman decided that this conduct was an independent tort committed by this company and thus Dishman could continue her lawsuit against them in state court. The court’s turning point was use of the “but for” test, which means that if the cause of action would remain independent of a claim for benefits under ERISA then the state law cause of action was proper. In this case, the state law cause of action for disclosure of plaintiff’s medical information would exist regardless of the case management undertaken in administering the health plan.

The takeaway from these cases is that ERISA does not provide a cloak of protection against a third party’s tortious actions. If the surveillance company, investigator, or even third party claim administrator violates your rights, an action separate from the ERISA claim may be viable. We at Bonny G. Rafel, LLC as the Voice of the Disabled, often uncover actions by third parties performing investigations of our disabled clients that shocks us. It is wonderful that the courts are recognizing this private cause of action is not preempted (or prevented) by ERISA. While we keep a close watch on authorizations signed by our clients, and cross out items such as “bank statements”, “driving records”, which is completely irrelevant to a disability claim and invasive! We inform our clients to keep social networking to a minimum as investigators can be relentless in their pursuit of some evidence to malign the credibility of our clients.

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A group disability claim must be filed with the Plan and if denied, the claimant must first appeal the decision back to the insurer or claim administrator! Once this “administrative appeal” is exhausted, then and only then can the claimant have his/her day in court. A problem has arisen over when is the deadline for filing a lawsuit in these cases?

Most insurance contracts or plan documents contain a deadline for filing a lawsuit, known as a statute of limitations. Once this deadline has passed, a claimant cannot file the lawsuit. While most plans contain a three-year deadline for filing a lawsuit, we have come across several instances where the deadline is much shorter, in one case only providing the claimant six months after the decision to file a suit! This is a pothole into which many claimants unwillingly fall. They fail to recognize the deadline and thus do not hire legal counsel in time to protect their rights in federal court! To add further roadblocks to justice, the insurers rarely would notify the claimant, in the final denial letter of the deadline. Refer to our previous blogs which address when the clock starts to run for this strict deadline.

Fortunately our Third Circuit Court of Appeals recently issued a case to clarify the disabled’s rights to be informed of the deadline. The court recognized ERISA 29 U.S.C. §1132(a)(1)(B) does not provide a deadline for filing the action and decided that hiding such an important deadline in plan documents, which the claimant rarely has easy access to is wrong.

In Mirza, since the insurer failed to notify Mr. Mirza of the one year deadline to file litigation in the final denial letter, the Court reformed the claim and relied upon New Jersey’s six-year deadline for a breach of contract claim. The law is now clear that the plan is obligated to provide the deadline for filing suit in the participant’s denial letter. Mirza v. Ins. Admin. of America, No. 13-3535 (3d Cir. Aug. 26, 2015).

As counsel to the disabled, we at Bonny G. Rafel, LLC are very pleased with this result. It gives the disabled notice of how quickly they must obtain counsel following a denial of their claim to review the matter in time to file a lawsuit. We urge you to review your denial letter carefully and contact us at Bonny G, Rafel, LLC to ensure that your rights are protected.

Cognitive disabilities resulting from mental health issues, cardiac illness, Multiple Sclerosis, Parkinson’s disease, chronic pain, present unique challenges to overcome to obtain disability benefits. Cognitive decline for an individual may include difficulty concentrating, inability to process, retain or integrate information, impairments in memory, reduction of attention and processing speed. Such deficits are difficult to tease out when the attorney enjoyed a high baseline of functioning to begin with. We have represented many attorneys over the years, and know that insurance companies typically require objective evidence of cognitive decline to support a claim. Neuropsychological testing can be a valid and reliable tool to prove cognitive decline and is recommended where a claimant experiences an impairment that affects their brain functioning. Courts recognize how cognitive skills are vital to the practice of law.

In Teicher v. Regence Health & Life Ins. Co., 562 F. Supp. 2d 1128, 1140 (D. Or. 2008) the claimant attorney filed a claim based on cognitive decline following a traumatic closed head injury, post concussion syndrome and TBI. He scored within the average percentile on neuropsychological tests and benefits were denied. Yet, Mr. Teicher’s neuropsychologist opined that “the critical measure of impairment of an intelligent person such as Plaintiff is the relative change from his pre-injury abilities . . . a drop from the 99th percentile to the 50th percentile reflects a drastic change indicative of an impairment.” The court agreed, as “the record reflects Plaintiff’s high-level executive functions, including his ability to process and to learn new and complex information are, fundamentally impaired” and are so detrimental to his ability to practice law that he is totally disabled. The court further concluded that Mr. Teicher’s ability to read and write does not satisfy the requirements of his profession because “an attorney is not permitted to satisfy only some of the standards required by the profession.”

Similarly, in Cheney v. Std. Ins. Co., 2014 U.S. Dist. LEXIS 120043 (N.D. Ill. Aug. 28, 2014), the Court determined that Cheney’s ability to sit for long durations was irrelevant to the claim. Here, “the non-examining doctors relied on by Standard . . . failed to opine on [P]laintiffs non-exertional limitations and how those would affect her ability to perform the high stress work of a litigation partner.” Cheney, a litigation partner at a large law firm was required to prove an inability to perform only a single material duty of her occupation. The court concluded that Standard “‘glossed over’ the issue of [P]laintiff’s need to concentrate and perform the ‘mental demands of the active practice of law.'” Standard did not consider the “qualitative and quantitative aspects of plaintiffs work as a litigation partner”, which the court found to be the crux of the case. The court found that Plaintiff’s inability to perform enough tasks or perform them for a long enough period placed her within the definition of disability in the policy.

A practice pointer for attorneys is not to handle their own claims, especially when claiming a cognitive deficit, because their brief interaction with the insurer will likely influence an outcome that since they can handle their own case, they are not disabled! We at Bonny G. Rafel, LLC understand that even minimal cognitive decline can detrimentally impact your ability to professionally and ethically practice law. Contact us for a consultation if cognitive impairment or any other problem has inhibited your ability to work as an attorney. We may be able to assist you in getting the benefits you deserve.

First, insurance companies will ignore the claimant’s cognitive complaints and proclaim work capacity in a sedentary occupation. This claim mishandling was seen in Mossler v. Aetna Life Ins. Co., 2014 U.S. Dist. LEXIS 89046 (C.D. Cal. June 30, 2014), where the court reviewed the denial of Long Term Disability benefits to a Senior Vice President, who had become disabled due to symptoms including widespread pain, fatigue, side-effects of medications, and cognitive deficits. Aetna denied Mossler’s benefits based on the opinion that he could perform a “sedentary” occupation. However, the court rejected Aetna’s basis as incorrect, pointing out that “even assuming Plaintiff could perform sedentary work, [Mossler] has many other intellectual responsibilities that require both financial expertise as well as a high level of interpersonal skills.”

Second, insurance companies are quick to disregard cognitive complaints when attributed to necessary narcotic pain medication. Many of our clients suffer from chronic pain and treat with pain management specialists. Prescribed narcotic pain medication is problematic because it can impact cognition. Courts recognize that effects of narcotic medication cause disability. For example, a court in determining that Unum unreasonably denied a claim based on its assumption that Bencivenga’s medical condition had improved with his reduction in the number and strength of prescribed pain medication does not automatically mean that his chronic pain has improved. A change in a claimant’s “medication regimen is [not] evidence of any vast improvement to his underlying medical condition” given his prolonged use of narcotic medication. Bencivenga v. Unum Life Ins. Co. of Am., 2015 U.S. Dist. LEXIS 39117 (E.D. Mich. Mar. 27, 2015).

The Ninth Circuit recently held that disability exists for those experiencing minimal loss of cognition who are required to maintain highly executive functioning skills to satisfy their occupational duties, such as attorneys. In Hertan v. Unum Life ins. Co. of Am., 2015 U.S. Dist. LEXIS 75261(C.D. Cal. June 9, 2015), the court acknowledged that “[e]ven minimal loss of cognitive abilities could . . . prevent [Hertan] from working full-time as an attorney while under the influence of Percocet.” Hertan struggled with side effects of drowsiness, dizziness, and an inability to concentrate from taking Percocet, and the court found her disabled.

When struggling with chronic pain, we at Bonny G. Rafel, LLC understand that you are faced with the harsh reality that the career you have worked so hard to achieve may become impossible to perform due to treatment with necessary narcotic pain medication. We recognize that cognitive impairment caused by treating with this medication can hinder your ability to perform highly executive function skills and prove your disability.

This Court had never considered the meaning of this phrase, but other courts concluded that this language excludes “coverage only when the claimant’s physical disability was insufficient to render him totally disabled”. The Fifth Circuit agreed with this “but-for cause” interpretation, especially since Reliance had advocated for this interpretation in the past. For example, in Gunn v. Reliance Std. Life Ins. Co., 2010 U.S. App. LEXIS 17436 (9th Cir. Cal. 2010), Gunn was required to show that he was totally disabled “solely due to his physical conditions stemming from his multiple sclerosis, without taking into account the disabling effects of any mental or nervous disorders”.

In light of this interpretation, the Court had to consider whether George’s physical disabilities were independently sufficient to render him Totally Disabled. George, as a United States Army helicopter pilot, had his leg amputated following a helicopter crash. Although George’s depression and post-traumatic stress disorder contributed to his employment status, the Court determined that he was disabled due to his physical impairments irrespective of his psychiatric condition, taking him outside of the mental illness limitation.

The story of Robert George piqued my interest because it is so similar to the experience of our clients struggling to have their disability claims paid beyond the mental illness limitation. Contact us at Bonny G. Rafel, LLC, a significant percentage of the cases we handle involve claimants with disabling conditions of both the body and mind. We understand that instead of insurance companies being sympathetic to your condition, they would rather take full advantage of your emotional turmoil and use it against you in limiting the disability benefits you deserve.

It is important to understand how the court gauges whether the claimant is the successful party. What happens if the case settles soon after the Complaint is filed, and before the court is substantially involved in the case? What if, as a result of the lawsuit, the defendant voluntarily pays the benefits due? What should the court use as its barometer? Our third circuit court of appeals recently had an opportunity to clarify the law on this subject.

The usual standard for fee awards is the achievement of “some degree of success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010). Just recently in Templin v. Independence Blue Cross, No. 13-4493 (3d Cir. May 8, 2015), the Third Circuit decided that the standard, “success on the merits” can be met without any judicial action. In Templin, plaintiffs brought claims under ERISA based on the refusal of the defendants/insurance companies to honor claims for payment of blood-clotting-factor products. After settling the case, the claimants sought $349,385.15 in attorney’s fees. The lower court ruled that the claimants had failed to achieve “some degree of success on the merits”. The claimants argued that they were entitled to attorney’s fees under a catalyst theory.

The Third Circuit agreed that the claimants were entitled to fees because the filing of the lawsuit was the catalyst to recover interest and represented a success on the merits. Essentially, the court concluded that the claimants were eligible for an award of attorney’s fees because the settlement of $68,000 in interest was a “substantive victory”. The catalyst theory establishes the standard to recover attorney’s fees in early settlements of ERISA actions- there is no requirement of some judicial activity to succeed; “[a]ll that is necessary is that litigation activity pressure[s] a defendant to settle or render to a plaintiff the requested relief”.

We have recovered counsel fees several times from the Court. In 2010, we filed litigation on behalf of Ms. Hewel, and soon afterwards, Defendant Johnson & Johnson reversed its denial and placed our client back on claim. We sought counsel fees for all of the work involved with preparing for and filing the Complaint and litigation activity. The court determined that our advocacy on behalf of our client in litigation was the catalyst, and granted our attorney’s fees. Hewel v. Long Term Disability Income Plan for Choices Eligible Emples. Of Johnson & Johnson, 2010 U.S. Dist. LEXIS 67340 (D.N.J. July 7, 2010). Keep in mind that counsel fees cannot be recovered from the insurer for any pre-litigation administrative proceedings. Howley v. Mellon Fin. Corp., 2011 U.S. Dist. LEXIS 695284 (D.N.J. June 27, 2011).

Contact us at Bonny G. Rafel, LLC to discuss your disability matter and how we can help!

Additionally, if you have a dispute with your employer which culminates in termination after the disability claim begins, an agreement to resolve that dispute may impair your rights to pursue a disability claim. That is what occurred in Gonda v. Permanente Med. Group, Inc., 2015 U.S. Dist. LEXIS 18892 (N.D. Cal. Feb. 17, 2015).

Gonda signed a settlement agreement with his employer following his termination. That agreement did not include any language referring to the disability plan other than to state in general terms that all ERISA claims are released. The agreement stated in part: “Dr. Gonda and his agents, successors and assigns agree to release and forever discharge TPMG, KFH, Kaiser Foundation Health Plan, Inc., . . . of and from any and all claims, charges, demands, actions, obligations, liabilities, and causes of action of whatever kind or nature, whether known or unknown . . . concerning or related to his employment by TPMG and Kaiser Foundation Health Plan credentials or his staff privileges at KFH whether based on . . . the Employee Retirement Income Security Act.”

Later, when Gonda’s long term disability benefits were denied, he sued the plan and the insurer, LINA. LINA asserted that Gonda had waived his right to litigation against it or the Plan by signing the agreement. The Court agreed, noting his execution of the settlement agreement was both knowing and voluntary, relying on Upadhyay v. Aetna Life Ins. Co., 2014 U.S. Dist. LEXIS 5982 (N.D. Cal. Jan. 16, 2014). The court noted, “[u]nder the terms of the settlement agreement, plaintiff not only waived [his] right to benefits under the Plan, [he] also waived [his] right to bring an ERISA action in federal court.” The settlement agreement unambiguously released “TMPG and related parties”, which acted to release Lina from Gonda’s ERISA action even though it was not a party to the lawsuit or ever mentioned in the settlement agreement itself. The Court held that with the execution of the settlement agreement, Gonda released his ERISA claims. While Gonda emphasized that he was permitted to pursue internal appeals, which bolstered his assertion that the severance agreement did not forestall litigation, the Court explained that the “[w]illingness to continue internal administrative appeals does not equate to a waiver of Defendants’ contractual right to be released from Dr. Gonda’s claims against them.”

As disability attorneys, we understand how to analyze and interpret the tricky intricacies of settlement agreements. Contact us at Bonny G. Rafel, LLC, we understand the importance of settlement and how they can impact the benefits you deserve.

Oral argument before the Court of Appeals on May 20, 2015 will center on whether the Court of Appeals has jurisdiction to hear Liberty’s appeal since the case is not concluded and the district court retains jurisdiction over the case.

Joseph Stevens suffers from ankylosing spondylitis, joint swelling, pain, fatigue, and cognitive issues. His case continues and will not be completed until we have a determination on the long term disability claim. Our success before the district court is available. Stevens v. Liberty. We will update the blog once the Third Circuit decides our case. Hopefully the result of tomorrow’s argument will change the law in the State of New Jersey. Contact us at Bonny G. Rafel, LLC, and let us fight for your disability.

Courts have consistently rejected the argument that the specific tasks listed by a claimant’s own employer are irrelevant to an occupational analysis, noting that “while the correct standard is the occupation in the general economy and not the specific job for a specific employer, the specific duties of the employee’s job, as described by the employer, are relevant.” See Burtch v. Hartford Life & Accident Ins. Co., 314 Fed. Appx. 750, at 4 (5th Cir. 2009). The law is clear, that the disability assessment must be based on the occupation that the insured was actually performing: the actual job duties and not a reference to how the position might be performed in the local economy. Polnicky v. Liberty Life Assur. Co. of Boston, 2014 U.S. Dist. LEXIS 164890 (N.D. CA Nov. 25, 2014).In the ERISA context, an administrator must consider a claimant’s inability to perform his specific job requirements of a position in light of the relevant symptoms and medical conditions. Miller v. Am. Airlines, Inc., 632 F.3d at 854-55 (3d Cir. 2011).

The 1st Circuit Court of Appeals recently addressed this situation in McDonough v. Aetna Life Ins. Co., 2015 U.S. App. LEXIS 6153 (1st Cir. Mass. Apr. 15, 2015). In deciding that McDonough was no longer disabled, none of Aetna’s medical consultants or vocational reviewers considered the demands of his high-pressured position in the national economy or how “his symptoms would affect his ability to meet those demands.”

The court held that Aetna failed to consider whether McDonough, who had suffered a stroke and sustained chronic cognitive deficits could perform the high-pressured demands of his occupation and was grounds for reversal of the denial. Aetna’s decision was unreasonable, and the court remanded the claim.

As disability attorneys, we understand how to analyze and interpret these complex disability plans. Contact us at Bonny G. Rafel, LLC for more information and to see how we can help you with your claim.

ERISA requires all employee benefits plans to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2). The Secretary of Labor has established regulations implementing the minimum requirements under ERISA for employee benefit plan procedures pertaining to beneficiary claims. These regulations include time limits by which an appeal of a denial of benefits must be decided. ERISA provides: “the plan administrator shall notify a claimant . . . of the plan’s benefit determination on review within a reasonable period of time, but not later than [45] days after receipt of the claimant’s request for review by the plan, unless the plan administrator determines that special circumstances (such as the need to hold a hearing, if the plan’s procedures provide for a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial [45]-day period. In no event shall such extension exceed a period of [45] days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review.” 29 C.F.R. § 2560.503-1(i)(1)(i) & (i)(3)(i). (emphasis added).

There is a regulation that provides a plan the right to “toll” the deadline if they request certain documentation missing from the submission. But that is not at all what happened here to our client.

Our client, Ms. Lewis-Burroughs, had suffered from Sjogren’s Syndrome, systemic lupus, fibromyalgia, polyarthopathy, and Raynaud’s Syndrome. Her claim was denied after several years of payment.

We submitted Ms. Lewis-Burroughs’s appeal by the 180 day deadline, with many exhibits, including information about an examination that Prudential had conducted of her. The appeal decision, under the above statute, was due by March 12, 2014. We supplemented the appeal several times with more information that we received after we had filed the appeal. Prudential unilaterally attempted to “toll” their appeal decision deadline, and essentially reset the clock and the 90 day period to determine her appeal for a period after we had supplemented the record. The court disagreed.

In Lewis-Burroughs v. Prudential Ins. Co. of Am., 2015 U.S. Dist. LEXIS 57584 (D.N.J. Apr. 30, 2015), the court ruled that the plaintiff, a former nurse at Newark Beth-Israel Medical Center, was entitled to sue Prudential for their failure to decide the appeal by the 90 day deadline.

The court relied on Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 612 (2013) which contends that parties are bound by the appeal process set forth in the Plan. The Plan provides that Prudential was required to decide Ms. Lewis-Burroughs’s appeal within 90 days after receipt of her appeal request. There is no dispute that Ms. Lewis-Burroughs appealed Prudential’s denial on December 12, 2013 and that the 90 day clock began to run from that date.

This seminal opinion highlights the fact that tolling cannot be used as a post hoc justification for delay; and it follows Tomassi v. Prudential Inc. Co. of America, 2007 U.S. Dist. LEXIS 44223 (N.D. Ill. June 19, 2007), which stated that “[r]estarting Prudential’s clock every time a claimant submits records would in many situations give Prudential an endless amount of time to consider appeals and might discourage claimants from submitting relevant new medical information”. See also Gay v. Nat’l Rural Elec. Coop. Ass’n Group Benefits Program, 2014 U.S. Dist. LEXIS 153585 (S.D. Ohio Oct. 29, 2014) (carrier cannot unilaterally toll the deadline for making a benefits determination on appeal and there is no such thing as indefinite tolling).

Contact us at Bonny G. Rafel, LLC to ensure that your insurer is not abusing the process by tolling your benefits determination.