Beware Of The Insurer's Attempt to Pigeon-Hole Your Claim Into The 24 Month Mental Nervous Coverage If It Doesn't Apply

Most disability policies (whether ERISA plans or private policies) do not exclude coverage for what are termed "Mental/Nervous" conditions. However, they do place an important limitation on such coverage -- typically 24 months of benefits instead of coverage through age 65 or for life. If you're a 45 year old person, that can mean a difference of hundreds of thousands or even millions of dollars in coverage. 

Sometimes the issue is clear. You have a disability that is caused solely by a Mental/Nervous condition -- depression, anxiety, etc. In that case, the only coverage available may be the limited 24 months of benefits. In many other cases, there is a physical cause of the disability that is not accompanied by anything that could be termed "Mental/Nervous." Again, coverage in that situation is clear -- you have coverage for the physical cause that should run until you are 65 or for your lifetime if that is the coverage provided. 

The difficult cases -- where insurers try to take advantage of you and pigeon hole your case into "Mental/Nervous" -- are those where you have a disability caused by physical issues, but you also have accompanying "Mental/Nervous" symptoms that may contribute to your disability. After all, most people who suffer from a physical disability lose their job and lose a major part of their identity. It is not at all unusual for such a person to become depressed, anxious, sad, etc. The bottom line, however, is that under the laws of most states, the insurer cannot classify your disability as "Mental/Nervous" unless those issues are the primary cause of your disability, i.e., those issues are what prevent you from performing your job. Of course, policies and plans vary quite a bit and each person's situation is unique, so make sure you consult a knowledgeable ERISA/Long Term Disability attorney about your individual situation. 

For more information, or if your long term disability ERISA claim has been denied, speak to an experienced disability insurance attorney at Delfino Green & Green.

When To Hire An ERISA Lawyer?

There isn’t any clear-cut answer as to when you should hire an ERISA lawyer.  Each claim is different, and each person’s situation is unique.   Generally speaking, if you start to feel that you don’t understand the process, or that the insurer does not appear to be dealing with you in good faith, then it is definitely time to speak with a knowledgeable ERISA attorney.

In addition, there are some additional basic guidelines that are centered around the various stages of a disability claim to keep in mind:

The First Stage – Presenting the Claim To The Insurer

The first thing that happens when you become disabled – unable to perform the material duties of your own (or sometimes any) occupation – is that you need to present the claim to the carrier for payment.  The question then becomes – do you hire an attorney at this early stage.  My advice is usually “yes,” hire the attorney.  After all, you “are disabled” and even if you are (or were) quite good at communicating, organizing and presenting, that ability is very often compromised by your disability.  “Yes,” it will cost you some money, but the cost of retaining an experienced ERISA attorney early-on will very often be much less than if you wait until the claim and/or appeal is denied. 

And what should you expect at this early stage? An experienced ERISA lawyer will know how to: (1) complete the cryptic paperwork the carrier throws at you, (2) work with your physicians, and (3) deal with claims adjusters.  The experienced ERISA attorney will also prevent you from making common mistakes that often result in improper claim denial.  For example, disability insurers often provide your physicians with confusing, one-sided, and very limited forms (Attending Physician Statements).  These forms are usually given to the physician without any explanation or guidance.  An experienced ERISA attorney will be able to work with your physicians to avoid common pitfalls and allow your physician to explain, in detail, why you are disabled.  Also, claimants typically do nothing (or very little) to explain the material (important) duties of their occupation, leaving the insurer to fill in those duties themselves. Needless to say, the insurers very often fail to include some very important duties of your occupation.  An experienced ERISA lawyer will make sure that your material and substantial duties are documented at the claim stage.

In general, most claimants should hire an experienced ERISA lawyer even at this early phase.  By doing so, you ensure timely and proper completion of the required documents and information.  This allows you the best chance possible of getting your claim approved at the outset.

The Second Stage – The Appeal of a Denied Claim

If your claim has been denied, it is extremely important that you hire an ERISA lawyer to help with your appeal of the denial.   This is a very critical stage as it is the only time you will have to make sure that everything you need to refer to in Court (if the appeal is denied) is in the insurer’s file (often called “the administrative record”). 

As part of the appeal, you will want to submit as much persuasive evidence of disability as possible, as this will become the only record if you need to take the case to Court.   In many instances, you will not be able to submit additional information (i.e., anything that is not in the administrative record) after the appeal is decided, even if the case goes to Court.   Again, an experienced ERISA lawyer will be able to proactively assist you in making the appeal, whether this includes getting you to the right specialist, submitting the appropriate documentation for the administrative record, and/or communicating with the claims adjusters.

The Third Stage – Going to Court

At this stage, when all else has failed and you have to sue in Court to get your benefits, there is no question that you will want a qualified and competent ERISA lawyer on your side.   ERISA litigation is a complicated process, and an experienced, well-qualified ERISA lawyer will know how to properly handle your case through the litigation process. Do not go to court without a lawyer specialized in ERISA on your team.

At Delfino Green & Green you will find lawyers specialized in ERISA law who are ready to help you at the claims stage and through litigation.

DO's and DONT'S of Hiring an ERISA Attorney

#1.            DO Your Homework (Pre-Screening)

The first thing to do is to check out your proposed attorney’s website.  This is the place you can find out the most information about the proposed attorney prior to meeting with the attorney.  You will often find information on that attorney’s experience and knowledge.

For example, you can see if that attorney has dealt with the specific insurance company in your case.  Typically, you would want someone who has knowledge of the ins and outs of dealing with the specific insurance company you are up against.  Hiring an experienced attorney to help you navigate in this environment is an important decision.

On the website, you may also see if that attorney has any published court opinions.  This is a good sign if they do.  It means that the attorney has experience taking a case all the way to Court, if necessary.  You want someone who is willing to take your case all the way.

#2.            DO Ask Questions (Making Contact)

Once you have done your homework, you are ready to meet with your proposed attorney.  This is your chance to ask about the specifics of the attorney’s track record,  i.e. What kind of results have they had with the insurance company you are dealing with?  Have they represented clients with your same disabling condition?

Next, you will probably want to get an understanding of how available your attorney will be for you, and what services they provide.  How many cases do they have?  What is their policy for returning phone calls?  Is your attorney available by other means like Skype and Google Chat?  Do they provide their cell phone number?  Does the attorney assist you with identifying other sources of benefits and support, including helping you obtain disability benefits through the Federal or State Government (programs like SKI or SSDI).

Last but not least, it is also very important to discuss how your attorney will get paid.  Does your attorney work on a contingency basis?  i.e. will not recover unless you recover.

#3.            DO Talk to Current and/or Previous Clients (Follow up)

No one can give you a better review of the attorney than someone who has worked with him or her.  Ask your attorney for a list of referrals.  Then talk to a few and ask them if the attorney was accessible, responsive, and professional. 

#4.            DON’T Forget to Bring Your Paperwork (Be Prepared)

           

            It is important to show your attorney all paperwork, including the Plan/Policy, any correspondence, Attending Physicians Statements, all Medical Records, claims forms, etc.  An experienced ERISA lawyer will be able to review your papers and pick out dates that you must be aware of, and other important policy information that affects your claim and/or appeal rights.

#5.            DON’T Withhold Any Information (Be Honest)

            Along with providing all of your paperwork, give your attorney a full medical history.  Do not withhold any information, even if you think it is irrelevant, or you believe that it is embarrassing.  Even if you believe some information to be “bad”, it may not be bad at all or as bad as you think.  Even if it is not that favorable, it is important for your attorney to know all of the facts.  You only put your lawyer and yourself at a disadvantage by withholding information. 

#6.            DON’T Hire a Lawyer Who is Not an ERISA Disability Expert (Be Certain)

            Selecting a lawyer who is knowledgeable and an expert in handling ERISA disability claims is crucial.  Do not hire a lawyer who does not have experience and expertise in this field.  The legal process that is involved in ERISA disability claims and litigation is quite complex and requires someone with skill and knowledge.  You need someone who has successfully represented clients in ERISA disability claims and appeals working on your behalf.

Call our office to speak with an experienced and knowledgeable

 Bay Area ERISA Lawyer today!

DO's and DONT's of the Insurance Investigator Interview

DO’s and DON’T’s of the Insurance Investigator Interview

As an investigative tactic, your Disability insurer will sometimes require an in-person interview with a claimant early on in the process.  Here are some tips on dealing with that interview.

#1.  DO Schedule the Interview

            Often they will send someone out to your home without notice and try to catch you by surprise.   You should politely tell them that it is not a good time and schedule the interview for a day and time that is convenient for you.  Do not be bullied into letting the investigator into your home unprepared.

#2.            DO have someone present

            Many times we have seen the investigator’s report and it comes back with inconsistencies and facts never discussed.  It is therefore very important to have someone present, preferably your attorney, so as to corroborate what you have said or not said, or what you were or were not able to do (physically).

#3.  DO tape record the interview

            Along with having a witness, we also recommend that you tape record the interview.  This way, there can be no question as to what you said, did or otherwise.

#4.            DO NOT be Inconsistent

            While you could be having a particularly good day, it is very important not to do or say anything inconsistent with what you or your physicians have described as your restrictions and limitations.  For example, if you cannot sit for more than 20 minutes without pain, do not feel that you have to endure pain to finish the interview. When you experience the pain that sitting for a prolonged period causes, take a break, stretch, move around, lay down, or whatever else you need to do to relax and alleviate some of the pain.  The investigator is already looking for inconsistencies; do not give him or her any ammunition.

#5.            DO NOT Volunteer Extraneous Information

            Answer only the questions that are asked of you, and do not fill the “void of silence” between questions with chatter.  You run the risk of giving out information that the investigator can misconstrue and use against you.

#6.              DO NOT be Fooled into Thinking the Investigator is Your Friend or On Your Side

            The investigator is not your friend.  Although this is not true of every claim or every insurance company, very often the investigator has been given marching orders to find information that will permit the insurer to deny your claim.  They may appear friendly, but they are not looking out for your interests in any way. For example, the investigator may comment about your lovely home and ask to tour it.  You should say “no” as this is not required. More often than not, if you do allow the investigator a tour, he or she will find something about your home that will have a negative effect on your claim, like that your house is particularly clean (meaning that you have the ability to do the hard work required to keep it that way), or that you have stairs (which you are obviously able to climb repeatedly throughout the day), and other such matters.  In short, no good will come from sharing too much information!

Clawback Provisions and the Value of Money

When a person becomes disabled and becomes eligible for benefits under their long term disability plan, that person may also at the same time qualify for benefits from other insurers or public benefits plans, like Social Security Disability. Some long term disability plans include “clawback” provisions, meaning that the plan is entitled to recover the additional money granted from outside sources to the applicant

However, calculations in clawback provision are not always cut and dry, and can amount to differences in the thousands of dollars, as exemplified in Elliot v. ELS Long Term Disability Plan.

Mr. Elliot became permanently disabled and became eligible to receive the maximum $10,000 per month under the plan, exclusive of cost of living adjustments (“COLA”). Mr. Elliot then applied for Social Security Disability (“SSD”) benefits on Marhc 12, 2004. In June 2006, he received an award retroactive to February of 2003, $72,954.50.

As a result, the long term disability plan permanently reduced Mr. Elliot’s benefits and recalculated his amount to $8,775 a month, down from $10,716. The plan also claimed a clawback of $79,384.15, an amount larger than his retroactive SSD award.

The standard of how courts review a plan – with little or significant deference – depends on whether a plan unambiguously gives discretionary authority to the plan administrator to determine plan benefits. Where it does, as here, the courts review the decision under an “abuse of discretion” standard, meaning the plan’s decision is overturned only where it can be shown that the plan administrator abused its discretion.

Here, the plaintiff was able to do just that. Court reversed the plan’s decision, as it found it arbitrary and capricious. Specifically, the plan incorrectly mixed past and present dollar amounts, by decreasing Mr. Elliots original $10,000 award, awarded in 1999 dollars, by his SSD award, awarded in 2003 dollars.

 ERISA long term disability is a complicated area of law. For attorney who can help, contact Delfino Green & Green.

A Victory for Plaintiff in the 9th Circuit

The 9^th Circuit recently decided the ERISA claim of Kathy Dine in Dine v. MetLife Insurance. The 9^th Circuit reversed the district court's decision and agreed with Dine, stating that MetLife abused its discretion when denying her long term disability benefits.

The Court found it indisputable that MetLife, as the administrator of the plan, had a structural conflict of interest, because it "both evaluates claims for benefits and pays benefits claims." Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008). While the existence of a conflict of interest is only one of the factors to consider, the Court found that “[a] higher degree of skepticism is appropriate where the administrator has a conflict of interest." Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011). The administrator has the burden of proving that the conflict of interest did not improperly influence its decision. See Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295 (9th Cir. 2010).

Finding that an administrator abused its discretion depends on the specific facts of the case. In this case, the Court found that MetLife abused its discretion for three reasons. First, the record indicated that MetLife notified Dine by letter that it was "presently reviewing [the] claim" and stated that if "additional information is needed to complete our review, we will notify you accordingly." However, MetLife then denied Dine's appeal, stating that she had submitted insufficient evidence. Second, MetLife's determination that Dine was not disabled contradicted the opinion of her treating physician. Third, MetLife ignored its own reviewing physician's advice to order an independent medical examination.

If your long term disability ERISA claim has been denied, speak to an experienced disability insurance attorney at Delfino Green and Green.

Ninth Circuit Allows Additional Defendants in ERISA cases

The Ninth Circuit recently heard a case of Laura Cyr v Reliance Standard Life Insurance Company, where it reconsidered its precedent on which parties may be sued as defendants in ERISA litigation.

Previously, the Ninth Circuit held that under the ERISA statute, only the benefit plan itself or the plan administrator was considered a proper defendant. In this recent court ruling, the Ninth Circuit overruled its prior decisions, stating that there is no such limitation in the statute, and that other entities may be sued.

In this case, Laura Cyr was the vice president of Channel Technologies, where she was terminated in October 2000. She filed a claim for long term disability benefits based on a back condition. The Reliance Standard Life Insurance Company approved the payment of benefits based on Cyr’s salary of $85,000 a year.

The following year, Cyr filed and settled a gender discrimination lawsuit against her employer, and as a result her salary was retroactively adjusted to $155,000 a year. Cyr then contacted Reliance to adjust the benefits package based on this new salary, which Reliance never did.

Ms. Cyr filed a lawsuit against 1) the Reliance insurance company, 2) the CTI Benefit Program (the “Plan”), and 3) her employer, CTI, as the plan administrator. Following precedent, the district court initially ruled in favor of Reliance, which claimed that since it was not the plan administrator, it was not a proper defendant.

However, after supplemental briefings, district court reversed itself, finding that Reliance was functioning as the plan administrator. The court granted Cyr’s summary motion judgment, with attorneys fees in the amount of $384,052, costs, and prejudgment interest.

Hearing the case en banc, the Ninth Circuit reviewed the controlling language in this action, 29 U.S.C. Section 1132(a)(1)(B):

A civil action may be brought by a participant or beneficiary … to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of this plan.

The court found that Cyr was authorized to bring a civil action under this provision, and that the statute does not limit which parties may be proper defendants in that action.

Due to this ruling, disabled workers may have more opportunities to recover everything they are entitled to under the law. Plaintiff’s attorneys will have the opportunity to go after defendants previously insulated from liability by the old precedent. As in this case, plans and plan administrators may have no actual authority to authorize benefits to the worker, and this ruling will allow attorneys to go after the logically responsible parties to enforce worker rights.

Learn more about how our San Francisco ERISA attorneys can help, contact Delfino Green & Green at 415-442-4646 or 866-545-7298 Toll Free.