Lessons from the past, planning for the future

A Timeline of Legal ServicesFor over 100 years, visionary lawyers and other leaders have struggled to establish a comprehensive system to deliver some measure of equal justice to all Americans. Throughout this history, those leaders have argued that access to civil legal aid is essential to democracy. As Reginald Heber Smith put it in his seminal 1919 treatise, Justice and the Poor, without equal access to the law, “the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented." 

From humble beginnings in New York in the late 19th century, to a federal program in the 1960s initiated by Sargent Shriver under the auspices of the Office of Economic Opportunity, to establishment of the Legal Services Corporation in the 1970s, civil legal services gained a foothold as an important priority and grew. As evidence of the success of the strategy, civil legal services encountered retrenchment and battles for survival in the 1980s and 1990s.  Programs were forced to adapt their delivery models and develop new funding sources.

The history of the civil legal aid movement is outlined in a recently published Clearinghouse Article by Victor Geminiani, which reviews Earl Johnson Jr.’s three-volume treatise, To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States. Noting the debt we owe the leaders who came before us, Geminiani urges the importance of pursuing systemic advocacy as an important part of delivering equal justice for low-income clients. Although “systemic advocacy is usually the fault line for most political and public support” for legal services, Geminiani argues it is essential for us to use the law to attack basic barriers to fair and equal treatment from governmental institutions and people in power.

As the political environment has evolved, policy development at the state level has taken on more importance for low-income clients and communities. In implementing even the most aggressively “national” federal initiatives, states and localities make dozens of choices involving funding, program design, staffing, and evaluation. Moreover, many important issues affecting people living in poverty, like criminal justice, jobs and workplace issues, domestic or community violence, and most aspects of public education, involve little or no role for the national government.

In recognition of this, the Shriver Center has recently organized the Legal Impact Network, a group of state-based and state-focused law and policy organizations. These organizations are dedicated to working with and for people in poverty and community-based leaders to provide the professional services needed for them to have an effective voice in these state and local policy debates. The organizations have the subject matter and procedural expertise, policy knowledge, and legal skills to identify and evaluate the state policy choices, engage in litigation where necessary, educate allies and the general public, and otherwise drive important systems change. The Legal Impact Network is exploring ways for this work to be more effective and productive when co-strategized and coordinated across multiple states. The Legal Impact Network currently includes organizations from 29 states, which have 37 million of the 49 million Americans living in poverty.  

Geminiani effectively summarizes Earl Johnson’s important history of civil legal services, including the substantial accomplishments of legal services advocates and their clients in the past century. He makes a compelling argument for the continuing expansion and improvement of all aspects of this mission, but especially that advocates should continue to pursue systemic advocacy on behalf of low-income clients and build networks, like the Legal Impact Network, to support that work. 

View a full size version of the timeline here.


The Pennsylvania Supreme Court Issues Its Landmark Decision in Babcock

On July 21, 2015, the Pennsylvania Supreme Court issued its much-anticipated decision in Babcock & Wilcox Company et. al. v. American Nuclear Insurers et. al, No. 2 WAP 2014. Reed Smith filed an amicus brief in the case urging the court to adopt a “reasonable settlement” standard. Under that standard, an insured is permitted to enter into a reasonable settlement over an insurer’s objection without forfeiting coverage when an insurer is defending under a reservation of rights. The court adopted the reasonable settlement standard. Under Babcock, policyholders now may enter into a reasonable settlement over the insurer’s objection, rather than risk a substantial and adverse verdict at trial, without forfeiting coverage. At the same time, insurers may still contest coverage for a settlement that is unreasonable or one that is not covered under the terms of the policy. The court’s “reasonable settlement” standard balances the rights and interests of the parties and is a strong and fair statement of Pennsylvania law.

Four Kantor & Kantor Attorneys make the California Super Lawyers List for 2014

Kantor & Kantor is honored to announce the selection of four attorneys from the firm for the 2015 Southern California Super Lawyers list. Inclusion in this list is reserved for attorneys who exhibit distinct excellence in their practice.

Super Lawyers, a prominent attorney rating service, identifies exceptional lawyers from more than 70 practice areas. The selected attorneys have attained substantial peer recognition and widespread professional achievement. The extensive and multiphase process used to determine 2014 California Super Lawyers relies on peer nominations, evaluations, and independent research.

All four lawyers were selected for their successes in representing people denied disability - particularly those with disabling conditions such as eating disorders, autoimmune diseases, Alzheimer’s, Parkinson’s, Multiple Sclerosis, cancer and mental illness - as well as assisting people recover benefits under long-term care, health and life insurance policies. This recognition and honor demonstrates the talent, dedication, and diligence of these attorneys; all of which they utilize to obtain the insurance benefits to which their clients are entitled.

Glenn Kantor, a founding partner in Kantor & Kantor, LLP, has spent nearly his entire 25 year legal career representing Plaintiff’s in Health, Life, Disability & Long Term Care insurance disputes. His firm has become one of Southern California’s preeminent firms in this area of the law. Kantor was also at the forefront of litigation arising out of the Northridge earthquake. In 2001, Kantor successfully argued Vu v. Prudential before the California Supreme Court. The opinion in Vu v. Prudential has become a seminal case significantly expanding the protections offered insureds under California law.

Since 2007, Kantor has annually been named a “Southern California Super Lawyer” in the area of health, life, disability, and long term care insurance disputes. For the past seven years in a row, Kantor has supervised more litigation involving employer provided health, life, and disability benefits than has any other attorney in the State of California.

Lisa Kantor, a Los Angeles lawyer and partner in Kantor & Kantor LLP, represents people denied health benefits for treatment of both physical and mental illnesses. Most recently, Kantor has focused her efforts litigating insurance company denials of coverage for residential treatment of eating disorders. Kantor & Kantor is the only law firm in the country with a distinct eating disorder practice staffed with lawyers and other professionals experienced in the specific needs of people who have been denied benefits for eating disorder treatment.

Lisa Kantor sues health plans that refuse coverage, or agree to pay for treatment for a short period of time, forcing patients to be discharged before their health is restored. In 2007, she won the first published eating disorder decision in California in which the court applied the state’s mental health parity law to beneficiaries who sought treatment outside California. In August 2012, she won the first federal court ruling that determined health plans must pay for all medically necessary treatment for mental illnesses, including residential treatment.

For her achievements, Ms. Kantor was named a Top Woman Lawyer by the Los Angeles Daily Journal and an Attorney of the Year by the San Francisco Recorder. She received a “Special Recognition” award from the International Association of Eating Disorders Professionals Foundation and a California Women Lawyers’ Woman of Distinction Award. Kantor was recently named one of the Top Women Attorneys by Super Lawyers 2015 and has been recognized as a Southern California Super Lawyer since 2009.

Corinne Chandler has practiced law for over 30 years and has over 25 years of experience litigating life and disability disputes. Ms. Chandler’s current practice is devoted to representing insreds in actions involving life, disability and long term care insurance benefits. She has litigated close to 500 such disputes and has obtained dozens of trial and appellate decisions in favor of insureds, recovering insurance benefits.

Ms. Chandler has been named a Super Lawyer every year since 2010 in the field of ERISA litigation and was also named a “Top Women Attorney in Southern California” by Super Lawyers in 2012, 2013 and 2014. She has frequently lectured on insurance claims litigation to industry groups and attorneys. She received a B.A. Degree from St. Mary’s College, Notre Dame, Indiana and her J.D. Degree from De Paul University, College of Law. She has received licenses to practice law in Illinois and California and is admitted to all courts in the State of California.

Since 1984, Alan Kassan has focused his practice almost exclusively on representing plaintiffs in actions to recover damages against insurance companies and other defendants, and he has handled hundreds of these cases. His practice is now dedicated to helping people obtain benefits for Life, Disability, Long Term Care, and Health insurance, under both the Federal law of ERISA and under state insurance bad faith law. Mr. Kassan has lectured to various organizations on the subject of ERISA welfare plan benefit claims, and has recently recovered over $2 million in unpaid life insurance benefits for various clients. Mr. Kassan also serves on the Board of Trustees for the San Fernando Valley Bar Association, and has been named a Southern California Super Lawyer since 2013 in the field of ERISA litigation.

For more on Kantor & Kantor’s California Super Lawyers, see http://digital.superlawyers.com/superlawyers/socal2013?pg=81&search_term=kantor&doc_id=-1&search_term=kantor#pg81

For more about what we do, visit our website, insurance law blog, and Facebook pages here and here.

Proving Disabilities Based On Pain

Many of our clients have disabling pain. However, the difficulty is proving that the pain is disabling. There is no test to quantify the severity of pain as it is an entirely subjective condition. This does not mean however, that an insurance carrier is free to disregards reports of disabling pain, merely because there isn’t “objective evidence” to quantify its severity.

An insurance carrier may not disregard a claimant’s reports of symptoms in the absence of a specific, clear and convincing reason. Subjective evidence of a claimant’s pain, based on his own testimony and the medical reports of examining physicians is more than ample to establish his disability, if believed. Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872-3, fn 3 (9th Cir. 2008). Rather, the severity of symptoms of pain, so long as they are consistent with the prevailing diagnosis and are supported by the other evidence, will, of necessity, be established by symptom complaints.

What types of “other evidence” will a court consider as persuasive of disabling pain? Courts are often impressed with the severity of a claimant’s pain when it appears that the claimant has pursued treatments in an effort to relieve the pain.

As the Court recognized in Goble v. Astrue, 385 F. App’x 588, 591, 2010 WL 2776563 (7th Cir. 2010):

What is significant is the improbability that the claimant would have undergone the pain treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even morphine, but also the surgical implantation in her spine of a catheter and a spinal cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her changes of obtaining disability benefits. 499 F.3d at 646.

Referral to a pain management specialist and consistent use of pain relieving medication may also be considered as evidence of disabling pain. If the medication causes adverse side effects, this can also be considered disabling. The side effects should be communicated to your physician so that his or medical records will accurately reflect the additional impairment caused by the medication.

If you require help with a disability claim, call Kantor & Kantor on 888-569-6013. We can help.

Pre-Litigation “Discovery” in PIP

In Shands Jacksonville Medical Center, Inc. v. State Farm Automobile Insurance Company,  40 FLW D1447a (Fla. 1st DCA June 22, 2015), the First District Court of Appeals ruled on the ways a PIP carrier can obtain information from PIP medical providers in Florida pre-litigation.

In this case, State Farm, sent a pre-litigation request to Shands pursuant to Florida Statute Section 627.736(6)(b) asking for: 1) copies of third-party contracts with medical insurers which contain negotiated discount rates; and 2) corporate representative depositions of Shands’ employee(s).

The 1st DCA rejected both of State Farm’s requests.  Regarding the insurance contracts, the 1st held:

[A]lthough the documents the trial court ordered may very well be relevant and discoverable in the context of litigation over the issue of reasonableness of charges instituted pursuant to subsection (5)(a), they are clearly not the types of documents specifically delineated by subsection (6)(b). Accordingly, State Farm was not entitled to these documents in a proceeding brought pursuant to subsection (6)(c). The trial court’s order compelling production of these documents was an abuse of discretion because it exceeded the bounds of subsections (6)(b) and (c).

In other words, pre-litigation, PIP carriers are only entitled to force medical providers to provide them with information about the insured.  PIP carriers are not entitled to force medical providers to provide the carrier with information about the medical provider.

With regard to the request for the corporate representative deposition, the Court first recognized that the Fourth DCA allows these types of pre-litigation depositions by PIP carriers.  However, the 1st rejected the 4th’s reasoning, stating:

We respectfully disagree with this reasoning and certify conflict with Kaminester. In our view, the phrase “discovery of facts” in subsection (6)(c) is limited to the production of the documents described in subsection (6). The process encompassed by subsections (6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.

The discovery tools found in the rules of civil procedure, on the other hand, are not triggered until litigation over the reasonableness of those charges has ensued (i.e., commenced pursuant to subsection (5)(a)). Thus, nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.

This decision will be welcome news to medical providers who are frequently requested to give pre-suit depositions, some of which can last for hours.  Trial courts in the 1st DCA must follow this decision, while trial courts in the 2nd, 3rd and 5th DCA’s can chose to follow the holding in this case, or the Kaminester decision from the 4th.

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