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.

Our clients ask us whether they need to suspend all of their social interactions, and give up gym memberships, etc. because they have a pending claim. The answer is a qualified “no”. However, your activities post-disability must match your declared limitations. For example, if you claim that you cannot sit for long durations, traveling by air to Hawaii would create a question related to your ability to sustain siting.

In a case currently under review in our office, an individual suffering from Long COVID attended a family wedding, as noted by her doctor in her record. The company denied the claim for several reasons, including its allegation that our client could not be that disabled since she went out and socialized. What they intentionally left out is the doctor’s note that indicated that our client was terribly fatigued for days after the wedding. We represent another individual whose insurance company incredibly asserted that his disability could not be that bad because he was able to attend doctor and therapeutic visits.

A recent Court example involves a physician who could no longer able to perform the specialty duties of her occupation, but could participate in social and recreational activities. Kieserman v. Unum Life Ins. Co. of Am., 2021 U.S. Dist. LEXIS 233200 (W.D. Wash. Dec. 6, 2021). As this case demonstrates, if the policy provides coverage for the claimant’s “own occupation”, then her activities outside of the demands of her profession should not matter.

Dr. Kieserman was an emergency physician disabled by the symptoms and treatment side-effects of Stage IV metastatic breast cancer. Unum alleged that since she was “able to vacation in Europe skiing in the Alps with [her] family”, and had been “exercising and doing sweaty Yoga[.]” her claims of fatigue interfering with her work were not supported. The District Court for the Western District of Washington disagreed, finding Unum’s focus on Dr. Kieserman’s activities to be “misplaced.” The Court noted that Dr. Kieserman had been instructed to exercise by her treating physician “in order to achieve optimal treatment outcomes” and found that her activities did not contradict her claim that she could not return to work full time.

If you are currently receiving disability benefits, or are thinking about filing a claim, stay mindful of your policy and adhere to the restrictions and limitations set by your treating physician(s). Refrain from posting your activities on the internet.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking 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 typically think of an “injury” as occurring during an event such as a fall-down or motor vehicle accident. However, that is not necessarily the case. It is common, for example, that professionals such as dentists, physicians, and chiropractors can develop debilitating injuries over time from the repeated physical maneuvers required of their work. We represent many clients who have obtained lifetime disability benefits for such injuries, which can include carpal tunnel syndrome, ulnar nerve entrapment, and serious cervical spinal issues.

An example of this type of case can be seen in Chapman v. Unum Life Ins. Co. of America, 2021 U.S. Dist. LEXIS 155798 (D. Minn. August 18, 2021). Dr. Chapman, a practicing endodontist, had become disabled due to degenerative arthritis in her hands. Her condition was caused by the repetitive stress injuries she sustained in her decades-long dental career. The claim forms completed by Dr. Chapman, and the certifications of her treating providers, all indicated that her disability was the result of an injury. Nevertheless, Unum approved her claim as a “sickness” (thus limiting her benefits) because it had not been caused by one specific traumatic event.

The Court disagreed, finding that Dr. Chapman’s disabling arthritic condition was an injury notwithstanding the fact that it had developed gradually. It explained that “in the course of one’s ordinary duties injuries may occur daily which cause minimal damage, the cumulative effect of which in the course of time may be as injurious as a single traumatic event.” In the Court’s view, there was no substantial difference between an injury sustained instantly or over time. Accordingly, there was “no good reason for [injury-based] benefits to be paid in one instance and not in the other.”

The Court placed great weight on the fact that Dr. Chapman and her physicians had documented her claim as an injury from the very beginning. If you are considering submitting a claim for disability benefits, or are currently in the process of doing so, it is imperative that you thoroughly understand the nature of your condition and coordinate with your treating providers to ensure your claim is prepared and presented in the best possible way. While this can be an overwhelming and arduous process, an experienced attorney can help you.

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a 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

If the claim was made under an ERISA plan, the denied claimant is entitled to request a complete copy of their claim file, which will contain “all documents, records, and other information” relevant to his or her claim. 29 CFR 2560.503-1(h)(2)(iii). It should include any and all internal notes, memos, correspondence, and reviews/reports by third parties, allowing the claimant to thoroughly understand the insurer’s decision-making. The insurer has a continuing obligation to provide an updated claim file on request throughout the appeal process.

Although ERISA regulations define “relevant” broadly, insurers frequently take it upon themselves to decide which documents do, and do not, need to be shared. Most of the time, the documents they withhold are helpful to the claimant. The recently-decided case of Jette v. United of Omaha Life Insurance Company, 18 F.4th 18 (U.S. 1st Cir. 2021) provides one example.

During the appeal of Jette’s long-term disability claim, United required her to undergo an in-person examination with a doctor of their choosing. United’s doctor agreed with Jette’s treating physician, and issued a report that supported her ongoing disability. United ignored his report and upheld the denial of Jette’s claim. She did not receive a copy of the report until after the final denial, when she no longer had the right to respond to it.

Jette filed a lawsuit. United defended its decision to withhold the report, claiming that it was not “relevant” because they had not relied upon it in deciding to deny her benefits. The First Circuit Court of Appeals disagreed.

The Court noted that the statutory definition of “relevant” includes anything that was “submitted, considered, or generated in the course of making the benefit determination”, regardless of whether the insurer relied on it. 29 CFR 2560.503-1(m)(8)(i)-(ii). Because the report was generated in the course of United’s determination, Jette was entitled to review and respond to it as part of her “meaningful dialogue” with her insurer.

Disability insurers have a legal obligation to perform their duties “solely in the interest of the [plan] participants and beneficiaries” and for the “exclusive purpose of providing benefits [to them.]” 29 U.S.C. §§ 1104(a)(1)(A) & (B). When an insurer withholds documents which would tend to support the disability claim, they act wrongfully to their own benefit. The Jette decision makes clear that insurers cannot unilaterally decide what information and/or documents are relevant for inclusion in the claim file. If it exists, it must be disclosed.

If your claim is denied, you should be sure to obtain your entire claim file and review it carefully to confirm that it contains every document relevant to your claim.

Handing a disability claim can be very difficult. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a 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

Medical reviewers often work as independent contractors for many different insurance companies, and frequently earn more reviewing cases than they would treating patients. As their livelihood depends on providing reports that will please the companies that retain them, they simply cannot afford to be impartial. Insurance companies rely on reviewers’ opinions over the treating physicians who confirm that the claimant is disabled.

We know that treating physicians have far more information about their patient’s condition and functional abilities than insurance doctors. Their experience personally examining the patient, making their own clinical assessments, and engaging in discussions with the patient all provide information that is not available just by reading the records. Most treating doctors take the time to develop a formidable basis to decide what restrictions and limitations are appropriate.

If your insurance company has involved a reviewing physician in your claim, it may seem like the deck is stacked against you. However, as a claimant, you are far from powerless. When you understand the issues that are common to reviewing physician opinions, you can take proactive steps to avoid them. Based on our decades of experience with these issues, we recommend strategies below that you can use to ensure that a reviewing physician does not deprive you of benefits you are entitled to.

Maintain Your Own Records

Insurance companies (and their reviewers) are legally required to consider all of the medical evidence when making their decision. If they deny the claim, they must explain their reasoning and support it with references to the records. If your denial is based on an insufficient medical review, there are steps you can take to refute it including, in some cases, filing an ERISA appeal.

It is important for you to keep your own copies of all the records, forms, and physician certifications submitted in support of your claim, particularly if you’re not represented by counsel. This will enable you to fact-check the insurance company, point out important information that was overlooked, and persuasively establish your entitlement to disability benefits.

Manage Your Insurer’s Contact with Your Doctors

Insurance companies often insist that claimants sign a form giving them unrestricted authorization to communicate directly with their treating physicians. If a reviewer disagrees with the claimant’s treating physicians, they are generally required by the insurance company to contact the physician to address their difference of opinion. It is important that your doctor be able to interact with the insurance company to clarify records and/or restrictions and limitations as needed. However, we frequently see deceitful and confusing tactics by the reviewing physicians when such follow-up takes place.

We advise our clients to instruct that their doctors not communicate with the insurance company or its reviewers by phone. The discussion usually turns into a battle of words in which the reviewing physician attempts to induce statements from the treator that can be used against the claimant. Instead, treating physicians should request that the insurance company submit their questions in writing. Insisting on written communication allows the treating physician to take time to carefully consider the questions and review their clinical notes before answering.

It is important to keep in mind that even written communication can be misleading, as the questions asked will be designed to undercut the treating physician’s opinion. If you are represented by counsel, your attorney can review the questions with your physician and help facilitate their responses to ensure nothing is said to jeopardize your claim.

It is ultimately the insurance company’s responsibility to thoroughly investigate both the integrity of their reviewers and the validity of their reports. Your insurer has a fiduciary duty to ensure that claims are fully and fairly decided based on consideration of all of the available evidence. As our Courts have held, insurance companies breach this duty when they adopt and rely on the uninformed or skewed analysis of a reviewing physician.

If your claim is denied based on a reviewing physician’s report, it is imperative to thoroughly review and assess the adequacy of their review, the basis of their opinions, and the legitimacy (or lack) thereof. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a 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

Even with the safety equipment provided by employers, must all employees return to the workplace? Would disability cover the class of workers who are at high risk of contracting the COVID? Individuals with conditions that place them in a risk of severe medical illness from COVID may qualify for disability insurance since they need to remain sequestered until the risk of the virus passes. The Centers for Disease Control and Prevention have identified certain conditions that warrant such restrictions, such as severe asthma, lung conditions, heart disease, people who are immuno-compromised, and several others. These claims have not been litigated yet, and you can be sure that the disability insurance companies are deep in discussions on how to limit these claims. There is some precedential decisions in this area of the law, mostly related to individuals with a high risk of severe medical complications such as a person with severe cardiac disease who risks heart damage including a heart attack, if exposed to high work stress.

Medical practitioners will be facing new challenges as their patients seek their support for seeking disability benefits. What patients will be eligible to continued disability benefits because their medical health does not warrant them returning to the workforce? We have helped many offices address this issue, and come up with a viable strategy when facing their dual roles as treating physician supporting and as a specialist advocate for their patient remaining out of the workforce.

Medical personnel who are treating the sick, have significantly increased risks of exposure to someone who has COVID-19 and if their underlying condition warrants extra precautions, they deserve protection and may be able to make a viable claim for disability benefits.

There is a large category of doctors who are paid partial disability benefits due to their inability to work full time or to perform some of the material duties of their occupation. These claims are paid on a monthly basis depending on the amount of income earned by the doctor each month. A doctor whose monthly income has been reduced because his/her office is closed, or opens on a reduced basis, will suffer a much higher income loss. Will the insurer pay this claim or counter a defense alleging the closure of the office or reduction in hours is due to a “legal” cause, not a medical cause?

Our firm specializes in handling disability claims continues to represent individuals seeking coverage for their illnesses and fighting for the rights of those denied their legitimate claims. See www.disabilitycounsel.com

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019). The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.” Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference. Hankins v. Std. Ins. Co. 677 F.3d 830 (8^th Cir. 2012).

Another example concerns the occupation of an attorney. The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018). The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.” The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

Unfortunately, the Fifth Circuit departs from the reasonable analysis set forth by the Third Circuit and Tenth Circuit, using a framework that does not account for actual job duties. In Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802 (5th Cir. 2019) the Appellate Court reversed an LTD benefits award to a 62-year-old disabled woman who inspected chicken in sub-forty degree temperature poultry coolers for a living. She could not continue working due to her illness, Reynauds Syndrome. Reliance identified her occupation as ‘sanitarian’, which generally does not include a designation of any particular work environment. The court relied on the national generic definition of this occupation, thus removing the necessity to work in freezing temperature as material to her performance. Her claim was denied on appeal.

We investigate our client’s actual job duties from our initial representation and stress the materiality of each duty that illness or sickness impairs. It is vital to integrate this analysis from the onset of each case, so the disability insurance companies, always looking for reasons to deny valid claims, must fairly and fully evaluate each case. We rely on vocational consultants regularly to independently assess the job duties and integrate our client’s specific symptoms that interfere with physical and cognitive functionality. Bonny G. Rafel. www.disabilitycounsel.com.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days. In our experience, insurance companies regularly ignore these deadlines. They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination. The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands. Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline. Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors. We object to our clients having such an exam during the appeal. It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned. Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier. We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline. Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

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.

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors: (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.” Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012). The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.” Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)

A recent case highlights this issue. In Pogue v. Northwestern Mutual Life Insurance Company, 2018 WL 1189415 (D.C. Ky March 7, 2018), Dr. Pogue alleged that he surrendered his medical license when he believed he had become mentally unable to continue working due to a total nervous breakdown. Yet as he was making his disability claim, the Board of Medical Examiners suspended his medical license due to improperly prescribing controlled substances. Northwestern defended the claim, asserting that his disability was caused or contributed to by the suspension of his medical license. Since the court agreed that his disability was brought about in whole or in part by the suspension of his professional license, he could not recover under the policies. It is apparent that this case was all about the timing. Had Dr. Pogue initiated his disability claim when he was suffering from the psychiatric condition, but well before his license was suspended, the outcome may have been different.

Where a professional becomes unable to work due to psychiatric impairment prior to revocation or suspension of his or her license, the professional has a legitimate disability claim. For example, where a physician suffering from early onset dementia is suspended from practice due the risk that he may harm a patient, one could argue that the true cause of the disability is the psychiatric impairment (factual disability) which preceded the legal disability. In that setting it is unlawful for an insurer to deny such a claim. Professionals must be aware of this fine line- because they risk becoming ineligible for disability coverage under their policy if they become legally unable to work simultaneous with a physically/mentally disabling condition. We at Bonny G. Rafel LLC (www.disabilitycounsel.com) help protect our clients who face both medical impairment and legal difficulties in overcoming the insurance companies’ attempts to categorize factual disabilities as legal disabilities and deny legitimate disability claims.

We have handled many long term disability cases involving “failed back syndrome” where our clients have neuro-stimulators permanently installed in their backs to help them manage pain. Despite that evidence of the severity of their despairing condition, the absence of an “objective” test showing the precise cause of the spinal dysfunction was used to deny their claim.

Fortunately, the 7th Circuit Court of Appeals recognized the significance of various elements of proof establishing the existence of a neuromuscular disorder which qualifies under the exceptions to the MetLife limited coverage. While MetLife emphasized that there were some equivocal test results showing ongoing radiculopathy (an exception to the limit), the Court of Appeals considered the clinical examination results of the claimant’s own specialists, ongoing consistent testing which aligned with the disorder and past positive EMGs as the objective evidence MetLife arbitrarily disregarded. They reversed the District Court in Hennen v. Metro. Life Ins. Co., 2018 U.S. App. LEXIS 26114 (7th Cir. 2018). This decision fortifies that the insurers must not require only a certain “objective evidence” to establish the necessary proofs.

The Court went further to point out the consistency in the evidence supporting the impairment, particularly troubled by MetLife’s failure to consider that “every physician who examined Hennen after her 2012 spine operation concluded that she had radiculopathy.” Id. at *16 and criticized MetLife’s self-serving gamesmanship by selecting only their physician who favored their position.

We are pleased that the Seventh Circuit saw through the veil of MetLife’s allegations that Hennen no longer qualified for disability. We see all too often that insurers latch onto one piece of evidence, ignoring all else, as they rush to deny bonafide claims of the disabled. We are constantly in the trenches with the insurers, advocating for their fair consideration of all of the evidence that we present on our clients’ behalf. They must be held accountable to their fiduciary obligation to each of our clients.

Thank you for reading our post! We report on interesting developments in the law of disability. See www.disabilitycounsel.com for information on our New Jersey disability law firm.

The case involved 62 year old Ms. Nichols who spent her entire life working as a Hazard Analysis and Critical Control Points Coordinator at a chicken processing plant in Mississippi. Her duties included training employees on quality assurance procedures and inspecting, packaging, and exporting meat products in processing areas, which were maintained at near-freezing temperatures. Ms. Nichols suffers from circulatory disorders, including Reynaud’s Syndrome rendering her unable to tolerate cold temperatures because doing so would cause her arteries to spasm and could lead to serious medical complications, such as gangrene.

Ms. Nichols’ medical conditions clearly prevented her from performing the duties of her occupation, which required exposure to cold. Reliance sought a way to deny Ms. Nichols’ claim turning to the policy’s definition of “regular occupation”—which defines a claimant’s occupational duties as they are “normally performed in the national economy,” rather than “the unique duties performed for a specific employer or specific locale.” Reliance excluded Ms. Nichol’s duties associated with exposure to the cold by generally classifying her job to ignore the meat inspection, packaging, and exporting duties of Ms. Nichols’ occupation and denied her disability claim. Ms. Nichols brought suit in federal court, and she won a resounding victory.

Judge Reeves concluded that Reliance’s determination Ms. Nichols could perform the duties of her regular occupation “ignored both common sense and the record evidence.” The Judge criticized Reliance for selecting an occupation from the DOT which best suited the insurance company denying the claim and ignored material job duties. In fact, Judge Reeves observed, the DOT contains an occupational title that requires meat inspection and packaging, which “has cold temperatures built into its name: Cooler Room Worker (Meat Products).” Judge Reeves determined that it was arbitrary and capricious to deny a claim based on a vocational review that considered only a portion of a claimant’s occupational duties. He further noted that Reliance has acted similarly in the past, citing over one hundred cases that “describe the behavior underlying Reliance’s claims administration as ‘arbitrary,’ ‘blind,’ ‘conclusory,’ ‘extreme,’ ‘flawed,’ ‘fraught,’ ‘illogical,’ ‘inadequate,’ ‘inappropriate,’ ‘incomplete,’ ‘indifferent,’ ‘lax,’ ‘misguided,’ ‘opportunisti[c],’ ‘precursory,’ ‘questionable,’ ‘remarkable,’ ‘selective,’ ‘self-serving,’ ‘skewed,’ ‘tainted,’ ‘troubling,’ ‘unfair,’ ‘unreasonable,’ and ‘unreliable.’”

The court awarded Ms. Nichols past due benefits, court costs, and attorney fees, and ordered payment of all future benefits under the policy. Additionally, the court noted that, given the pervasiveness of Reliance’s unfair claim practices and its failure to respond to courts’ admonishments, punitive damages might be appropriate in the future. The court noted that Reliance has long attempted such claim handling acrobatics in unfairly defining a claimant’s regular occupation. In an earlier case, Reliance relied on multiple accounting sub-specialties in the DOT to define a forensic accountant’s occupational duties, intentionally failing to include travel requirements because Reliance agreed the claimant was medically unable to travel. Shahpazian v. Reliance Std. Life Ins. Co., 388 F.Supp.2d 1368, 1378 (N.D. Ga. 2005).

Unfortunately, Reliance is not alone in manipulating policy language to deny claims contrary to the law. Insurers commonly select occupational titles from the DOT which ignore material and substantial duties of a claimant’s occupation. Not every occupation fits cleanly within a prescribed title, and under such circumstances, disability insurance companies must blend two or more occupational titles to fairly include all of a claimant’s duties.

Bonny G. Rafel LLC represents the disabled to ensure that insurance companies fairly review our client’s claims and to remind insurance companies that the law forbids ignoring evidence that supports a legitimate disability claim.

An issue arises when the employee indicates an interest in continuing the coverage but the employer fails to submit the necessary paperwork to them. A recent example of this problem occurred in Erwood v. Life Ins. Co. of N. Am._ 2017 U.S. Dist. LEXIS 56348. Erwood left work on disability, but the employer did not inform him or his family of his need to convert life insurance coverage to own it himself in order to remain covered and did not provide him with the conversion forms. When Erwood died and his family sought life insurance, the carrier, CIGNA denied the claim because no conversion forms were on file. The employer defended its position by claiming that there was a packet of materials sent to Erwood, but the Court held the packet was inadequate because it did not include the materials necessary to convert life insurance coverage or inform where to access such materials or even where to send them. The employer’s excuse that Dr. Erwood did have access to the life insurance program on its benefits internet portal was not enough. The Court held that “merely making an SPD on its portal does not satisfy its disclosure obligations of the plan administrator, the employer, especially in light of the fact that once Dr. Erwood’s FMLA leave expired, his access to the portal was terminated.” The Court entered judgment for the full life insurance benefit from the employer.

The Court explained that once Erwood, an ERISA beneficiary, requested information from the employer who was aware of his status and situation, the employer has a fiduciary obligation to convey complete and accurate information material to the beneficiary’s coverage and rights even if he has not specifically inquired about it. The fiduciary, in this case the employer, has a duty to inform when he knows that silence might be harmful. So if an employer makes an affirmative misrepresentation or fails to adequately inform a plan participant, that misrepresentation or inadequate disclosure can be material and when the employee detrimentally relies upon it and loses coverage, the employer can be liable.

We advise our clients to inquire about all benefits, in addition to long term disability they may be entitled to while on claim. It is also our experience that some claimants who lose these other benefits when their disability claim is denied, has a right to reinstatement of this coverage when the disability claim is reversed on appeal. Thus, this area of inquiry is essential to protect the rights of the disabled. Bonny G. Rafel LLC

People that are disabled do not have to stay indoors, they can continue to perform their daily activities and readjust to live a full life with their impairment. However, if they demonstrate through their non-work activities that they can perform physical or mental requirements which are similar to those of the workplace, or if they are more social than they claim to be, this creates potentially legitimate concerns by the disability insurance company of the veracity of the claim and the depth and breadth of the impairment.

It is notable that many states, including New Jersey have passed laws regulating an employer’s access to the personal account social media website of an employee.

Effective December 1, 2013, New Jersey joined an expanding list of states that prohibit employers from requesting employees and job applicants to provide access to their private social media accounts.

C.34:6B-6 Prohibited actions by employers.

2. No employer shall require or request a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.

C.34:6B-7 Waiver, limitation of protection prohibited.

3. No employer shall require an individual to waive or limit any protection granted under this act as a condition of applying for or receiving an offer of employment. An agreement to waive any right or protection under this act is against the public policy of this State and is void and unenforceable.

Keep in mind that the law further provides that employers may access any information available in the public domain about current or prospective employees. Thus, it prohibits the online equivalent of an employer eavesdropping on private social media communications, while still allowing companies to use information the employee chooses to make public

Regarding our clients seeking disability benefits or on claim, we recommend they do not sign broadly worded authorizations sent to them by the insurers. Although it is reasonable to expect that insurers will need to obtain medical records and employment data, many authorizations presented to our disabled clients seek permission to obtain access to their IRS file, bank and financial records and to share this information with others. Once the information is released, it is no longer protected under law from re-disclosure. This type of unfettered access by the insurance industry to information irrelevant to the disability claim an unreasonable invasion of privacy. This type of broad authorization may also be used to gain access to a personal social media account.

Our final word of caution; Courts have granted Defendants access to claimants’ private website addresses in litigation. Therefore, just by making your Facebook “private,” doesn’t mean you should continue to post because there is a chance that down the road, a court may order that you provide an insurance company complete and unfettered access to your social media.

Our firm continues its services to the disabled, representing them from the inception of their claim as their voice to the insurance industry and remaining by their side as their advocate. Contact us at Bonny G. Rafel LLC for more information as to how we can assist you with your claim.

Every federal circuit court to consider the meaning of the phrase “caused or contributed to by” has read it to exclude coverage only when the claimant’s physical disability was insufficient alone to render him totally disabled. See George v. Reliance Standard Life Ins. Co, 776 F.3d 349 (5th Cir. 2015). The insurer bears the burden to show that the exclusion applies to the case. “The effect of an applicant’s physical ailments must be considered separately to satisfy the requirement that the review be reasoned and deliberate.” See Okuno . In order to overcome the insurers’ application of this mental health limitation to continued benefits, the claimant must claim total disability as the result of a purely physical condition.

What if a physical condition is covered, but the symptoms include depression, which is a mental illness? Courts caution that policy terms and precise medical facts of the claim must be examined. See, for example, Leight v. Union Sec. Ins. Co. 2016 U.S. Dist. LEXIS 68412 (D.Or. May 24, 2016). Leight’s Aspergers’ Disorder is expressly exempt from the definition of “mental illness” in the policy but Union Security attempted to apply the mental illness limitation, since the disorder produces disabling symptoms of anxiety and depression. The court determined that the mental illness limitation did not apply since Aspergers was a ‘covered condition.”

In conclusion, the mental illness limitation have been applied to long term disability claims which arise from a confirmed physical disorder, such as multiple sclerosis, parkinson’s disease and cancer. Anyone suffering from these illnesses and taking stock of their lives and the financial stresses that come with disability are prone to become anxious and depressed. It is wrong for an insurance company to take advantage of the disabled’s psychological struggles to limit coverage, but claimants must be aware of these hidden traps for the unwary.

Contact us at Bonny G. Rafel, LLC, because we handle involve claimants with disabling conditions of both the body and mind.

Just as important is whether the individual has marketable skills to perform a “desk job”, since virtually every “sedentary” job requires strong computer skills. In our experience, the qualifications related to real time computer and technology use are under investigated in the insurers’ rush to deny.

We have seen some changes in the collateral information the insurers collect regarding our clients. For instance. on the “activities of daily living” forms they must complete, our disabled clients are asked whether they own a computer, whether it is a desktop or laptop, what they use the computer for (pay bills, read news, facebook). Be prepared for these are not innocent questions. It’s direct purpose is to establish that the claimant has full use of a computer and a skill that is “transferable” to the workforce. In short, claimants should not overstate their computer use at home.

We find out if our client used the computer in the past for their work. We understand that often our clients feel out of touch with the outside world once they have to stop working. Frankly, being disabled is a lonely place to be. With that understanding, we find out if our clients use the computer at home, not only as a “TV” to observe the world and stay connected, but rather, to prepare documents, charts, review written material; whether they have skills that are transferable. We make sure they do not overstate their computer use.

Courts have been tuning in to the real difference between using a computer on a sustained basis at a workplace versus having minor computer skills. For instance, see Mackey v. Liberty Life Assur. Co., 2016 U.S. Dist. LEXIS 28623 (W.D. Ark. Mar. 7, 2016). Mackey was a nurse who was disabled from her own occupation based on problems with her lower extremity. Liberty Life analyzed her claim by performing a transferrable skills analysis and found various jobs for her to perform. Liberty failed to consider her limited computer knowledge. The records show that Mackey did not own a computer and had limited experience using electronic medical records which she reported as being “ridiculously difficult” for her to master. The court reviewed the occupations which may be classified as sedentary in today’s economy, which “many and likely most of these jobs involve sitting at a desk and operating a computer for much of the workday”. Liberty did not consider this issue at all which rendered their reliance on a vocational report an abuse of discretion. Liberty also failed to consider her age which was 63 years old and the court found “her age is accordingly a central factor in determining whether she is capable of performing an occupation-particularly one that she had never performed in her career before”. Where a plan benefit does not require an administrator to consider age, and where the participant is relatively young, age may be an innocuous factor hardly necessary for reference. However, Mackey was 63 years old at the time of her appeal, only a couple years away from retirement age. Her age is accordingly a central factor in determining whether she is capable of performing an occupation particularly one she has never performed in her career before.

Another example is Gully v. Aetna Life Ins. Co. 2014 U.S. Dist. LEXIS 12278 (W.D. Ark. Jan. 31, 2014). The court held that Gully could not obtain a sedentary job at the salary required in light of his lack of important technology related skills/his inability to use a computer. The court explained that the report of the vocational consultant contained several “relevant material omissions regarding Gully’s qualifications for the jobs she identified as reasonable occupations”. It did not consider whether Gully’s lack of computer skills could be acquired through training or education within a reasonable period of time or whether the lack of skills could impact his ability to secure a particular wage. The court commented, “a problem with Aetna’s position is that it improperly assumes any necessary training will be minimal” even though the vocational consultant report fails to specifically acknowledge Gully’s lack of computer skills or access a level of training that would be required.

We at Bonny G. Rafel LLC handle dozens of appeals each year and aggressively mine through the evidence to best determine how to convince the insurers that our clients remain disabled. For our appeals, we rely on vocational experts who actually interview our clients and find out why their mental or physical conditions limit them and determines whether they retain real transferable skills to work at a sustained, reliable basis. If the insurers refuse to fairly review our evidence, we expect the Courts will.

We are Bonny G. Rafel LLC pursue disability claims for our clients and seek discovery which reveals whether the decision-makers are relying on partial medical reviewers. Contact us to learn more about our firm and how we can provide assistance for your denied disability LTD claim.

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.

We at Bonny G. Rafel LLC handle disability cases against Cigna and all insurers, focused on restoring disability benefits and all other ancillary benefits that ended with a claim denial. This case demonstrates a new direction the courts may take under Amara to disgorge profits the insurers earn by wrongly denying claims.

The Supreme Court will resolve a split in the law amongst Circuit Courts nationwide. For example, recent cases in the Third Circuit have held that in the case of an insurance company denying disability benefits upon a finding that the insured is not medically disabled under the terms of the policy, the statute of limitations does not accrue until the plaintiff receives a final denial of benefits on administrative appeal. In Whittaker v. Hartford Life Ins. Co., 2012 U.S. Dist. LEXIS 166983 (E.D. Pa Nov. 26, 2012), the court found Whittaker’s claim timely by holding that the statute of limitations began to run at the time of Hartford’s final denial. Among other considerations, the court explained, “Although Whittaker’s benefits were first terminated on August 7, 2008, her case would have been dismissed for failure to exhaust her administrative remedies had she filed this lawsuit before her administrative appeal was denied on June 2, 2009. To start the running of the limitations period before the conclusion of the administrative appeals process would encourage plan administrators to drag their feet in deciding administrative appeals so as to minimize the amount of time a plaintiff has to prepare her case.” In Rumpf v. Metropolitan Life Ins. Co., 2010 U.S. Dist. LEXIS 74388 (E.D. Pa. Jul. 23, 2010), the initial denial of Rumpf’s benefits stated that she had the right to appeal the denial and to file an ERISA suit in the event the appeal was denied. The letter upholding the denial on appeal stated that Rumpf had the right to file an ERISA suit at that time. When Rumpf filed suit four years after the final denial, the defendants claimed that the statute of limitations had lapsed by calculating from the time of the initial denial. The court disagreed, finding that Rumpf’s claim did not accrue until the final denial and was therefore timely. The court explained, “In this case…the Court concludes it would be unfair and inequitable to hold Plaintiff to any disadvantage because she followed the instructions in the letter she received…denying her benefits. Consistent with the Plan, this letter specifically noted that Plaintiff could appeal, and stated that…she would…have the right to bring a civil action [if her appeal was denied]; in turn, Plaintiff justifiably filed the internal appeal on January 13, 2004, which was denied on February 16, 2005. Plaintiff, meanwhile, received no document mentioning any limitations period or any specific timetable within which she must file her lawsuit.”

As is evident from Heimeshoff and other similar decisions, ERISA is full of traps for the unwary, such as time limitations and various other contractual provisions that a typical consumer would be unaware of. Do not handle your claim on your own and simply trust the insurance company to “do the right thing.” Contact us at Bonny G. Rafel for a consultation to ensure that your ERISA rights are protected.

– By Sara E. Kaplan, Esq.