Mental illness is nothing to be ashamed of, but stigma and bias shame us all. – Bill Clinton

February 27, 2017 |

Eating disorders are a serious public health concern in the United States and around the world. At least 30 million people in the United States will suffer from an eating disorder at some point in their life. And eating disorders don’t just impact women.  Approximately 10 million men in the United States will face an eating disorder in their lifetime. But despite the staggering number of people affected and the reality that eating disorders have the highest mortality rate of any mental illness, eating disorders often live in the shadows and most people don’t get the help they deserve. Unfortunately, all too often people will not seek out treatment due to stigma, misperceptions, lack of education, diagnosis and access to care.

Anorexia nervosa, bulimia nervosa and binge eating disorder are the most prevalent eating disorders. These eating disorders and all other eating disorders will be in the spotlight from February 26th, 2017 – March 4th, 2017 when patients, families, practitioners, advocates and educators celebrate National Eating Disorders Awareness Week. This year’s theme is “It’s Time to Talk About It” and the goal is for more people to get screened and start getting the help they need.

From the famed Empire State Building in the east, to Los Angeles International Airport’s stylish, 100-foot, glass pylons in the west, 61 iconic landmarks in cities across the country will be lit in the signature blue and green colors of the National Eating Disorders Association (NEDA) to put a spotlight on the seriousness of eating disorders.

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Resist the Urge to Submit a Quick Long Term Disability (LTD) Appeal – ERISA or Insurance Bad Faith

February 22, 2017 |

One of the most common mistakes we see with long term disability (“LTD”)  denials (ERISA and non-ERISA/bad faith) is claimants rushing to submit their appeal. The desire to move quickly is understandable:

  • You have no money coming in;
  • You are angry at the insurance company and want to give them a piece of your mind;
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Make Sure Your Lawyer Knows the Law Controlling the “Standard of Review!”

February 3, 2017 |

Many of the “rules” governing ERISA claims are not contained in the statute itself, but rather are the result of judicial decisions interpreting ERISA. In the landmark case of Firestone v. Bruch, 489 U.S. 101 (1989), the U.S. Supreme Court upheld the right of an ERISA fiduciary (including insurance companies!) to reserve “discretion” to decide eligibility for benefits under an ERISA plan. When “discretion” is granted to an insurance company or a claims administrator, a reviewing court does not decide whether or not the claimant is entitled to benefits under an insurance policy. Instead, a court is limited to deciding whether the insurance company abused its discretion or acted “unreasonably” when deciding the claim.   Under this standard of review, some courts have concluded they are compelled to uphold the insurer’s decision merely because there was some medical support for the decision. See, Carlo B v. Blue Cross Blue Shield, 2010 WL 1257755 (D. Utah, 2010 (It does not matter whether the Court agrees with the insurer or its physicians. The decision need not be the only logical decision or even the best one.)

After years of unfair decisions under this standard of review, some states, including California, have taken action. Effective January 1, 2012, the California legislature outlawed discretion in policies. California Insurance Code, Section 10110.6. The statute applies to any policy which “issued or renewed” after January 1, 2012 and which covered residents of California.  What this means is that courts can now actually look at the evidence and decide for themselves whether they think an insured person is entiteld to benefits.  This is called a “de novo” proceeding, meaning the court will look at the evidence “anew” instead of deferring to what the insurance company decided. (See one of our earlier blogs for more info: http://www.californiainsurancelawyerblog.com/2015/03/california_insurance_code_sect_1.html )

Insurance companies such as MetLife, Liberty Life, Prudential and others have tried making all kinds of arguments to avoid the impact of section 10110.6. Application of the statute can depend on the facts of the case, but, since January 1, 2012, Kantor & Kantor has been successful in persuading many Federal Judges, and even insurance company lawyers, to invalidate or ignore grants of discretion written into insurance plans. A number of other experienced ERISA practitioners have also been successful in this argument. To date, the statute has been applied in at least 15 court decisions in California.

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What’s Going to Happen to Obamacare?

January 23, 2017 |

Donald Trump has just been sworn into office as this country’s 45th president, and Barack Obama is a private citizen once again. Now that Obama is gone, will his signature legislative achievement follow close behind him?

If conservatives have their way, the Affordable Care Act (ACA), commonly known as Obamacare, will be a blip in our nation’s history. Under Obama, the Republican-controlled House of Representatives voted more than 60 times to repeal the ACA, and during his presidential campaign Trump repeatedly vowed to get rid of it.

Of course, this is all easier said than done. Many parts of the ACA are very popular, including the provisions that prevent insurers from denying coverage based on pre-existing conditions, and those that allow parents to keep their children on their coverage until age 26.

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The pitfalls of doing your own appeal without talking to an attorney first.

January 20, 2017 |

Why pass on free personalized advice?

One of the people who contacted us this week was a woman who had her Long Term Disability benefits terminated by Standard Insurance Company after Standard had paid her those benefits for many years. Despite multiple surgeries, her symptoms had not improved. Each morning she takes powerful pain medications. Sometimes those medications offer enough relief to enable her to attend to daily functions, but often, they do not.

Either way, she was certainly not able to perform the duties of her job when Standard cut off her benefits. Nonetheless, Standard Insurance Company all of the sudden determined she had not provided sufficient proof of disability and terminated her Long Term Disability benefits. Thinking this was simply a misunderstanding, she appealed the denial on her own without speaking to an attorney first. After all she reasoned, Standard Insurance Company had told her all she needed to do was explain to them why she was still disabled.

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Your Insurance Claim Will Probably Be Denied!

January 18, 2017 |

On January 13, 2017, the Los Angeles Times published a column entitled Healthcare insurance hell: If at first your claim is denied, try, try again

The article describes on insured’s extreme difficulty in obtaining approval for treatments of her multiple autoimmune disorders that cause chronic pain, migraines, extreme dizziness and debilitating chronic fatigue. As the title shows, the main thrust of the argument is to never give up if your health insurance claim is denied – however, this advice is not only applicable to health insurance claims – the same holds true, believe it or not, for Long Term Disability, Long Term Care, and even Life Insurance claims!  

Some interesting additional information is also included in the column:

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Aetna Defends Claim of Arbitrary and Capricious Disability Benefits Termination

November 25, 2016 |

In Jacowski v. Kraft Foods, et al., the Federal District Court for the Western District of Wisconsin denied plaintiff Kathy Jacowski‘s claim that Aetna arbitrarily and capriciously terminated her long-term disability benefits in violation of ERISA.
Jacowski began working for Kraft Foods in 1981. In 2008, Jacowksi quit her job, citing her poor mental health. Her treating physician diagnosed her with depression, anxiety, and post-traumatic-stress disorder. In 2011, she was notified by Aetna, the insurer that Kraft contracted with to administer its disability benefits, that she qualified for total disability benefits. She received these benefits until February, 2014, when they were terminated.

Jacowski’s Claim

Jacowski claimed that the termination of her benefits violated ERISA because it was arbitrary and capricious. Her claim cited five reasons:
1. The defendant relied on biased medical evidence, and did not give deference to the opinion of her treating physician;
2. The defendant didn’t consider the fact that the Social Security Administration had determined that she is disabled;
3. There was no occupational analysis done which identified a job she could do;
4. The defendant didn’t consider her voluntary appeal; and
5. There was a conflict of interest between the defendant’s role of considering voluntary appeals and its interest in denying benefits.

The Legal Standard

The court noted that the “arbitrary and capricious standard is the least demanding form of judicial review,” but that “it is not a rubber stamp” for insurer decisions.

The Opinion

First, the court held that insurers have the right to consider all relevant medical evidence, and that ERISA does not require that deference be given to treating physicians.

Next, the court found that, “Although plaintiff is correct that failing to consider the Social Security Administration’s finding of disability may be evidence of arbitrary decision-making, a plan administrator is not forever bound by that determination.” In this case, because the SSA determination was more than five years old, the court determined that it was within the defendant’s discretion to ignore it.

The court then held that, under ERISA, “no categorical rule requires a plan administrator to provide the type of vocational analysis claim that plaintiff describes.” The court found that ERISA merely requires a “reasonable inquiry” into a claimant’s vocational potential.

Finally, the court determined that hearing a voluntary appeal is discretionary, and a decision not to do so is not subject to “arbitrary and capricious” review. As such, the court found that the conflict of interest was also not reviewable.

This case was not handled by Dell & Schaefer, but we feel it can be instructive for others who have had long-term disability benefits terminated. If you have a question about this case, or any other issue concerning disability benefits, contact one of our attorneys today for a free consultation.

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MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

November 22, 2016 |

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

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MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

November 22, 2016 |

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

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MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

November 22, 2016 |

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

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