Court Orders Long Term Disability Insurance Benefits to be Reinstated for Lupus Sufferer

Partner, Glenn Kantor recently won a case against Metropolitan Life Insurance and the Colgate-Palmolive Welfare Benefit Plan.

Our client, Ms. Bledsoe is a 39 year old woman who was employed by Colgate-Palmolive Company. In August 2009, she was forced to stop working because she was unable to perform her duties due to systemic lupus erythematosus which caused severe fatigue, headaches, arthritis, arthralgia, inflammatory rash and chest pain. She initiated a Short Term Disability ("STD") claim for benefits Metropolitan Life Insurance ("MetLife"), lasting 6 months. At the conclusion of those 6 months, MetLife approved Ms. Bledsoe’s Long Term Disability ("LTD") claim after a MetLife Nurse stated that Ms. Lupus was disabled.

In December 2011, Ms. Bledsoe’s treating physician submitted a physician statement which outlined that Ms. Bledsoe was expecting improvement by the end of 2011 or early 2012.

On February 2012, MetLife terminated Ms. Bledsoe’s benefits. She appealed the termination and her doctor submitted evidence showing that she had headaches, severe fatigue and joint pain that lasted all day. MetLife reinstated benefits after their own doctors found that Ms. Bledsoe was disabled.

On August 2012, Ms. Bledsoe returned to work. After less than three months however, she was admitted to the emergency room and ordered by her physician to stop full time work due to recurrent symptoms of Lupus. Her doctor submitted a letter to MetLife requesting that she be placed on long term disability for at least one year. He reported in his statement that work had proved to exacerbate her symptoms.

MetLife advised Ms. Bledsoe that she had not established a basis for a recurrent disability, on the basis that the medical file did not support that she was unable to work due to a flare up of her lupus condition. Ms. Bledsoe appealed this decision and her treating physicians submitted 506 supporting documents to MetLife including a list of her side effects from taking the medications for her lupus. These side effects included dizziness, insomnia, headaches, weakness, swelling of hands and feet, nausea and vomiting. She was also ordered to rest every hour for 15-30 minute, making her unable to perform the duties of any occupation given her age, education and training.

MetLife denied Ms. Bledsoe’s appeal again.

Ms. Bledsoe filed suit in the United States District Court in the Central District of California.

After trial, the Court ruled in favor of our client, and discussed three significant issues.

First, the court held that MetLife’s prior finding of Ms. Bledsoe as disabled, was significant. The court found that the medical record clearly demonstrated Ms. Bledsoe’s disability and as a result, MetLife provided STD and LTD for nearly three years. The court therefore stated that it would expect MetLife to provide some evidence of Ms. Bledsoe’s medical progression at the time of MetLife’s termination of LTD benefits. It further added that while MetlLife did not need to prove a material improvement in Ms. Bledsoe’s condition to defeat her entitlement, her lack of consistent, marked progress was probative of her continuing disability.

Second, the court held that Ms. Bledsoe was disabled under the terms of the plan at the time of the denial of benefits. MetLife made several arguments including citing a professional baseball player and former President as examples of individuals able to function with a medical condition. The court stated that it did not view the mere diagnosis of lupus as a disability that requires LTD benefits. Rather it was the extent of the symptoms associated with lupus that rendered one disabled. The court held that MetLife could not ignore the fact that Ms. Bledsoe had both the condition and the associated symptoms because MetLife determined she was disabled in 2009 due to this very medical condition.

The court also questioned whether due consideration was given to Ms. Bledsoe’s overall medical history. It found that MetLife’s Physician, Dr. Marwah reviewed Ms. Bledsoe’s medical records but he did not examine her in-person. Instead his conclusion was based on a 10 minute conversation with Ms. Bledsoe’s treating physician.

Finally, the court held that Ms. Bledsoe could not work in an occupation for which she qualified. MetLife argued that no evidence indicated Ms. Bledsoe could not perform another occupation, specifically a sedentary occupation. The court however, held that Ms. Bledsoe could not perform either the essential duties of her own occupation or the essential duties of any occupation for which she was reasonably qualified, taking into account her training, education, and experience.

This was a welcome result for Ms. Bledsoe, and an important victory for all people struggling to get their Long Term Disability insurance claims paid!

Good News: House Votes to Extend CHIP Funding

 In an overwhelming 392-37 bipartisan votethe U.S. House of Representatives has voted to ensure children in Illinois and across the nation continue to get the quality health care coverage they need to succeed. Today’s bipartisan House vote to renew funding for the highly successful Children’s Health Insurance Program (CHIP) will help ensure that kids from low- and moderate-income working families continue to receive the care they need to reach their full potential.

CHIP has a long history of bipartisan support, providing coverage for children in families that earn too much to qualify for Medicaid but don’t have access to affordable health care. As a result of CHIP’s implementation, coverage rates for kids across the country are at a historic high of close to 93 percent.

We thank the members of the Illinois delegation that voted to stand up for Illinois’s kids and support this vital program. Their actions will help make sure more than 174,000 Illinois kids keep the coverage and quality care families depend on.

As the Senate takes up legislation to renew CHIP, we strongly urge them to build on the House bill by quickly passing a four-year extension of this critical program. By ensuring funding stays intact, Congress can provide the stability families and state officials need to plan without worrying that the promises Congress made for the future of CHIP won’t be kept.

Forty-two governors of both parties called on Congress to move quickly to fully fund CHIP. Most states are planning on finalizing their budgets now, and many have already factored the amount of promised federal CHIP funding into their plans. In Illinois, this means Congress must take action to pass this legislation orIllinois will have to cut at least $454 million from its 2016 budget

The message is loud and clear – CHIP is an important lifeline for Illinois children. Congress has taken an important step today and we urge members to finalize legislation quickly to provide families and states the stability they need to plan for the next four years.

The Standard Denies LTD Benefits to California Woman with Addison’s Disease

This recent California Federal ERISA long term disability case is another example of an unreasonable denial by the Standard Insurance Company. While this lawsuit was not handled by our disability insurance lawyers, we felt that disability insurance claimants could learn a lot from the findings of this disability lawsuit.

The Standard Denies Benefits After Paying for 24 Months

After winning an administrative appeal, Annina Puccio collected 24 months of long term disability (LTD) payments from Standard Insurance Company based on a mental disorder, osteoarthritis and fibromyalgia. At the end of the 24 months, she applied for additional LTD, as allowed by Standard, based on a new and independent claim of disability due to Addison’s disease and other gastrointestinal disorders. Unfortunately, this case is only a partial victory as the court has given The Standard another opportunity to review the claim and possibly deny benefits. If disability benefits are denied again, then the claimant will need to file another Appeal and a new lawsuit. We hope that Standard will do the right thing the second time around. In our opinion, the court should have awarded benefits and then made The Standard re-evaluate the claim on an ongoing basis.

Standard initially denied this claim based only on a review of Puccio’s medical records, concluding her Addison’s disease “is treated with hydrocortisone dosage and as the medical documentation indicated is well controlled.” Pursuant to an administrative review requested by Puccio, the claim was again denied. Standard concluded “Puccio’s records failed to provide sufficient detail as to why her Addison’s disease or gastrointestinal issues are independently disabling.” Meanwhile, the Social Security Administration awarded Puccio disability benefits.

Standard is Required to Reevaluate the Disability Claim

After the administrative review denial of her claim, Puccio filed a lawsuit as allowed by the Employee Retirement Income Security Act (ERISA). In response, Standard filed a Motion for Summary Judgment which the U.S. District Court for the Northern District of California denied in Puccio v. Standard Insurance Company.

The district court found that Standard abused its discretion in denying the claim when it did not conduct its own medical evaluation, never contacted any of Puccio’s many treating physicians and did not ask for additional medical records. Although Standard was well aware of the SSA award, it never asked for any records from the SSA as to its findings of disability or to distinguish why the SSA awarded disability at the same time Standard denied it.

The California Court Instructs The Standard as to the Proper Way to Review A Long Term Disability Claim

The court sent Puccio’s claim back to the Plan Administrator for further review. In its opinion, the district court detailed the procedure Standard must follow in its reevaluation process:

1. Although an in-person medical evaluation is not always required before denying a claim, in a complicated case such as this one, Standard must conduct an in-person medical examination. Puccio has multiple medical conditions and volumes of unclear medical records. A purely paper review by Standard’s consulting physician was not a sufficient basis for denying the claim.

2. Standard has an obligation to provide its consulting expert all the relevant evidence. In its letter after the administrative review affirming the denial of the claim, Standard stated that Puccio had not provided a sufficient explanation of how her Addison’s disease prevented her from working. The district court concluded that the comment was not good enough. Puccio is “entitled” to receive a detailed description of additional information that will be helpful to Standard in evaluating her claim. The request for more information must be made in terms she can understand along with an explanation of why the documents that were previously submitted are insufficient, and “what specific documentation would be sufficient.”

3. Although Standard is not bound by the decision of the SSA to award disability, its “complete disregard” of it is evidence that the Plan Administrator’s denial of Puccio’s claim was arbitrary and an abuse of discretion.” The Administrator needs to “compare and contrast” the medical evidence considered and provide reasons for its contrary decision.

If you have any questions about your disability claim, or have been denied disability insurance benefits, contact our disability insurance lawyers for a free consultation.

Court Dismisses Case For No Diversity Jurisdiction 2 Days After Filing

In an unusual display of speedy discretion, federal District Judge Sheri Polster Chappell wasted no time in dismissing the complaint on a public works payment bond filed by Advance Industrial Coating, LLC in Advance Indus. Coating, LLC v. Westfield Ins. Co., No. 2:15-cv-141-FtM-38DNF (D. for M.D. Fla., Mar. 6, 2015). Advance filed its complaint in the Middle District of Florida - Ft. Myers Division - on March 4, 2015. Just two (2) days later, on March 6, 2015, Judge Chappell dismissed the action without prejudice for Advance's failure to properly plead the citizenship of the parties! The Court's order was sua sponte!

Specifically, Advance properly identified itself as a limited liability company but improperly alleged its citizenship as though it was a corporation: "Plaintiff, Advance Industrial Coatings, LLC ("AIC"), is a Florida limited liability company with its principal place of business in Jacksonville, Florida." See DE 1, para. 2. The Court reminded Advance that "[a] limited liability company is a citizen of every state in which one of its members is located" and noted that "the members of the LLC and their respective locations are not disclosed in the complaint." Additionally, Advance properly identified Westfield's state of incorporation as Ohio but improperly alleged that Westfield was also a "foreign insurance company authorized to issue surety bonds in the State of Florida." See DE 1, para. 3. In other words, Advance failed to allege Westfield's principal place of business. As such, the Court dismissed the action because it was "not satisfied that it has federal jurisdiction to facilitate this case." 

It should be noted that the undersigned just learned that Advance filed an amended complaint that included corrected jurisdictional allegations.

For more information on this matter, or any other litigation-related questions, please contact Edward Sylvester directly.

Edward Sylvester is a partner in the Miami office and is licensed to practice in all state and federal courts in both Florida and Ohio.

 

California Insurance Code section 10110.6 – Applies to Employer Group Plan Documents

Back in December 2013, we announced an early victory we won on behalf of a client under California Insurance Code section 10110.6. Well, we did it again!

First, some background. Section 10110.6 was enacted effective January 1, 2012. Its purpose is to preclude the application of “discretionary clauses” commonly found in health and disability insurance policies. What’s a discretionary clause you ask? It is language in an insurance policy that gives absolute discretion to an insurance company to make a claim determination under a group policy, such that a Court may be obligated to uphold the claim determination – even if the Court disagrees with the outcome. Discretionary clauses require Courts to look not at the facts surrounding the legitimacy of the health or disability claim, but instead to focus almost exclusively on the insurance company’s claims administration process. If it appears the insurance company communicated timely with the insured, and sought input from appropriate consultants, it might well be held not to have abused its “discretion.” Without an abuse of discretion, the Courts are bound to uphold the claims decisions, even in the face of compelling evidence of a health condition or disability.

Recently, in another one of our disability cases, MetLife argued it had absolute discretion to interpret a disability policy and deny a claim. In that case, MetLife insured benefits under a Kaiser Permanente group long term disability plan offered to Kaiser employees. The twist in this case was that the discretionary clause was not contained in the MetLife disability policy, but instead was found in the Kaiser documents which otherwise described the disability plan. MetLife argued, as have other insurance companies, that Cal. Ins. Code section 10110.6 is a law only relating to insurance, and since the discretionary clause in our case was not in the insurance policy, 10110.6 could not apply. Well, on March 3, 2015, the Honorable Judge Fernando M. Olguin in the United States District Court in the Central District of California, ruled otherwise. In Jahn-Derian v. Metropolitan Life Ins. Co. (C.D. Cal., Mar. 3, 2015, CV 13-7221 FMO SHX) 2015 WL 900717, handled by Kantor & Kantor Partner Alan E. Kassan, Esq., the Court stated: “Limiting § 10110.6 to insurance policies could effectively nullify [the right to hear cases on their merits], as its scope could be circumvented by inserting discretionary language in plan documents… Accordingly, the court adopts plaintiff's interpretation.”

This significant victory is sure to further the interests of not just our clients, but of many others who have suffered from unfair health and long term disability insurance denials.

If you have any questions, call us for a free consultation - 800-446-7529

Independent Insurance Broker / Agent advantages on Bainbridge Island

Sleep better knowing an Independent Insurance Broker/ Agent is on your side! An Independent Broker/ Agent: 1. Is a value hunter - our brokers look for the best combination of price, coverage, and service. The broker works for YOU, not the insurance carrier. They know the local Bainbridge Island demographic well. All of our brokers and agents are longtime residents of Bainbridge Island. 2. Offers one-stop shopping. With one call or visit, you have access to multiple lines of coverage for all your needs. Independent agents vary, but most offer a full range of auto, home, rental, business, life, health and flood products. 3. Is committed to customer satisfaction - their livelihood depends on it. Without our local Bainbridge community support, we would not exist. 4. Treats you as a person - not a number. We reference all of our clients by name, not a policy number. When you call, simply state who you are and we are off and running! 5. Becomes your consultant/advisor for the present and future - helping you to protect your valuable assets. This relates to not only tangible wealth , but also to family and as they grow. 6. Provides personalized claims service. No need to navigate a phone chain - Your independent agent can contact your insurance carrier directly to help smooth out the claims process. We have a 24hr a day, LOCAL line you can call to speak to one of us directly. 7. Listens. How better to help determine your needs? We want to get to know you and your family. 8. Has strong community ties. Look around you - PTA, Rotary, Chamber of Commerce, Soccer club, etc. Chances are your local insurance broker/ agent is right beside you building a stronger community!

Independent Insurance Broker / Agent advantages on Bainbridge Island

Sleep better knowing an Independent Insurance Broker/ Agent is on your side! An Independent Broker/ Agent: 1. Is a value hunter - our brokers look for the best combination of price, coverage, and service. The broker works for YOU, not the insurance carrier. They know the local Bainbridge Island demographic well. All of our brokers and agents are longtime residents of Bainbridge Island. 2. Offers one-stop shopping. With one call or visit, you have access to multiple lines of coverage for all your needs. Independent agents vary, but most offer a full range of auto, home, rental, business, life, health and flood products. 3. Is committed to customer satisfaction - their livelihood depends on it. Without our local Bainbridge community support, we would not exist. 4. Treats you as a person - not a number. We reference all of our clients by name, not a policy number. When you call, simply state who you are and we are off and running! 5. Becomes your consultant/advisor for the present and future - helping you to protect your valuable assets. This relates to not only tangible wealth , but also to family and as they grow. 6. Provides personalized claims service. No need to navigate a phone chain - Your independent agent can contact your insurance carrier directly to help smooth out the claims process. We have a 24hr a day, LOCAL line you can call to speak to one of us directly. 7. Listens. How better to help determine your needs? We want to get to know you and your family. 8. Has strong community ties. Look around you - PTA, Rotary, Chamber of Commerce, Soccer club, etc. Chances are your local insurance broker/ agent is right beside you building a stronger community!

TEST

In a significant decision the Wisconsin Supreme Court has held that claims-made-and-reported requirements in claims made policies should be enforced as written. An insured's failure to report a claim during the time required by the policy will operate as a bar to coverage. See Anderson v. Aul, 2015 WI 19. The Court reversed the Court of Appeals decision holding that Wisconsin's notice-prejudice statute superseded the claims-made-and-reported requirement of the professional liability policy. The Court also observed that even if the notice-prejudice statutes applied, requiring an insurer to provide coverage for a claim reported after the end of a claims-made-and-reported policy period was per se prejudicial to the insurance company. The decision places Wisconsin in the majority of jurisdictions that have enforced claims-made-and-reported policies as written.

The facts in the case were undisputed. On December 23, 2009 the Andersons notified Attorney Aul by letter that they were dissatisfied with the legal representation he had provided and demanded that Attorney Aul pay them $117,000.00. Aul received the letter while he was insured under a claims-made-and-reported professional liability policy. It was undisputed that the letter was a claim first made during the policy period and that the policy required Aul to report the claim during the same period. However, Aul did not report the claim until nearly a year after the policy expired.

 

A year later suit ensued and the professional liability insurer moved to intervene and sought a declaration that the insurance policy it had issued to Aul did not provide coverage because the claim was not reported as required during the policy period. The circuit court agreed with the insurer and granted its motion for summary judgment.

The Court of Appeals reversed the trial court's decision, finding that Wisconsin's notice-prejudice statutes, Wis. Stat. 631.81(1) and § 632.26, applied to the reporting requirement of the claims-made-and reported policy. These two statutes have been interpreted in tandem to hold that an insurer whose insured provides late notice within one year of the time required by the policy must show that it was prejudiced by the late notice in order to decline coverage. When notice is given more than one year after the time required by the policy, there is a rebuttable presumption of prejudice and the burden of proof shifts to the claimant to prove that the insurer was not prejudiced by the untimely notice. See Neff v. Pierzina, 2001 WI 95 ¶ 43, 245 Wis. 2d 285, 629 N.W.2d 177. The court stated that both the applicable statutes and Wisconsin's case law made it clear that in order to decline coverage based on the late notice, the insurer must show it was prejudiced by the late notice. The court then applied the definition of "prejudice" adopted in prior cases and concluded that because Aul's untimely reporting of the claim did not hinder the insurer's ability to investigate, evaluate or settle the claim; determine coverage or present an effective defense, the insurer had not been prejudiced and therefore the policy provided coverage.

The Supreme Court reversed and enforced the claims-made-and-reported requirement of the policy as written, holding that the notice-prejudice statutes did not supersede the plain language of a claims-made-and reported policy. Wisconsin therefore joined the vast majority of jurisdictions which have strictly enforced the requirement that notice be provided during the described period without regard to whether or not the insurer was prejudiced by the delay. 

Long-term Care Insurer Fined Over Failure to Pay Timely Claims

Recently, the Commerce Department of Minnesota fined Bankers Life and Casualty Company $20,000, as a result of complaints about the long term care insurer's failure to pay timely claims and pay interest.

"Consumers invest in long-term care insurance so that when the time comes, they will have coverage for care expenses. The department is here to make sure that consumers receive all the benefits that their insurance company should be covering," Mike Rothman, the Minnesotan Commerce Commissioner, said in a statement.

Furthermore, according to a consent order issued on March 11, a Commerce Department approved independent reviewer must review more than 100 past long-term insurance claims to determine if they were handled adequately.

According to a statement issued b the Commerce Department, "if any claims were improperly decided, the company is required to pay claimants any additional money owed, along with interest. All payments are required to be made within 30 days of the determination that an additional payment is due."

We at Kantor & Kantor know only too well the difficulties members face when they try to get their long-term care benefits and are payments are delayed, or worse, denied. If you or someone you know is having trouble getting benefits paid, please contact us for a free consultation on 888-569-6013.

Congress Has a Key Role to Play in Fighting Poverty But Has Done Too Little

Poverty Scorecard 2014It’s been five years since the official end of the Great Recession and we are seeing some signs of economic recovery. The U.S. gross domestic product grew 2.6% in 2014, the best full year increase since 2010, while gains in the stock market and corporate profits have surpassed their pre-recession levels.

Unfortunately, this growth hasn’t benefitted the vast majority of Americans. Forty-five million Americans continue to live in poverty, and millions more are only one paycheck away from joining them. Real hourly wages fell or stagnated for workers at almost all wage levels, with women and people of color continuing to receive much lower pay than men and whites. Insufficient job growth and growing reliance on low-wage work, in combination with increased costs of living for everything from health care to housing, keep low-income Americans trapped without opportunities for upward mobility.

The good news? We can do something about this if our government adopts the right policies. Poverty is a problem with multiple dimensions and solutions, and we can attack it on many fronts. We know what policy decisions are needed to sustain the economic recovery and help low-income people achieve a better life for themselves and their families.

And we know that they work. Laws passed by Congress, and even bills that are proposed but do not become law, have a profound impact on people living in poverty, for better or for worse. Last year Congress took action on three of the nation’s most important anti-poverty initiatives—the SupplementalNutrition Assistance Program (formerly Food Stamps), which helped 46 million Americans put healthy food on their tables; the Section 8 housing program, which provided housing subsidies for 5 million Americans; and the Affordable Care Act, which reduced the number of uninsured Americans by 12 million people. We know from experience that these programs can greatly alleviate the effects of poverty, just as they have done in decades past.  

Every year, the Shriver Center documents and ranks the votes of every U.S. Senator and Representative on the most important poverty-related bills from that legislative session. This year, in consultation with a group of 20 experts on poverty-related topics, we chose the 7 votes in the Senate and the 18 votes in the House that had a significant effect on poor people. While the votes in 2014 covered a wide range of subject areas important to low-income people, the most significant poverty-related votes were in the areas of employment, health care, and housing.

In their biggest strides to reduce poverty, members of the House and Senate worked together across party lines to reauthorize two important programs, workforce development and child care, making them significantly more responsive to the needs of millions of low-income people. In the same year, however, Congress, especially the House, attempted to advance legislation attacking anti-discrimination laws, key provisions of the Affordable Care Act, immigrant youth, and consumer protections. Legislators also obstructed bills to improve equal pay for women, raise the minimum wage, extend unemployment benefits, protect workers from wage theft, and improve college accessibility.

The Poverty Scorecard grades each member of Congress based on his or her votes on these bills. As in past years, 2014’s Poverty Scorecard shows that many states with the highest poverty rates have Congressional delegations with the worst voting records on poverty-related issues.  We can—and must—do more to ensure that Congress acts to advance justice and opportunity for low-income Americans.

When it comes to fighting poverty, we know what to do. And so does Congress. Read the Poverty Scorecard, learn about the relevant bills that were proposed last year, and see how your Senators and Representative voted. If they are not living up to what you know they can do, hold them accountable.