Tag: ERISA

What’s Going to Happen to Obamacare?

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 […]

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

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 […]

Your Insurance Claim Will Probably Be Denied!

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 […]

Conflict of Interest Can Arise When Insurers has Duty to Determine Whether Claimant Qualified for Benefits and The Responsibility to Pay Benefits

As part of Kantor & Kantor’s “Throwback Thursday”, we take a look at Mondolo v. Unum Life Ins. Co. of Amer., CV-11-07435 CAS (MRWx) (C.D. Cal. 2013).

Kantor & Kantor LLP achieved a victory on behalf of client Tanya Mondolo, who sued Unum Life Insurance Co. in U.S. District Court for the Central District of California for wrongfully denying her disability insurance benefits. The court ruled that Unum, a Fortune 500 company and the largest group and individual disability carrier in the United States, abused its discretion in terminating Mondolo’s disability benefits. The court ordered Unum to reinstate benefits, with interest, and that Kantor & Kantor could make a motion for attorneys’ fees and costs.

Mondolo suffered from fibromyalgia and avascular necrosis, often called bone death. Her physicians believed the bone death was a late developing side effect from the chemotherapy regimen used years ago to treat her leukemia. She had difficulty walking, suffered from uncontrolled pain, and was too weak to tolerate prolonged sitting or typing.
“Like so many group disability insurers, Unum labored under a structural conflict of interest because Unum has both the duty to determine whether claimants qualified for benefits and the responsibility for paying those benefits,” said Kantor & Kantor partner Alan E. Kassan, who assisted associate Brent Dorian Brehm on the case. “Unum’s bias led the court to review Unum’s decision regarding Mondolo’s benefits with enhanced skepticism and the denial could not withstand scrutiny.”

In reaching its decision, the court noted Unum’s history of biased claims administration and case specific facts that the Kantor lawyers argued aggravated Unum’s conflict of interest. The court found the following:
• Unum failed to properly investigate Mondolo’s claim, neglecting to determine how much sitting she could tolerate without significant pain.
• Unum did not investigate whether the alternative jobs it claimed Mondolo could perform were appropriate for her limited ability.
• Unum and its reviewing physicians failed to consider psychological evidence, even though the policy expressly stated that such evidence must be considered.

In addition, attorneys Kassan and Brehm argued that Unum’s conclusions were unreasonable. For example, Unum insisted Mondolo could sit between one-third and two-thirds of a work day. The Kantor attorneys proved even if Unum’s supposition was accurate, Mondolo was still not able to meet the requirements of, or perform the sedentary work Unum argued she was capable of.

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Unum Bad Faith Practices

A resident of Michigan has filed a Long term Disability lawsuit against Unum, one of the largest insurers in the country with a 16.2 percent market share. Unum got there by being a leader in the insurance industry. But the company has come under fire in recent years amidst allegations of bad faith practices of denial. It is a common theme amongst insurers and something we discussed here on the Kantor & Kantor blog last week in our entry “ERISA: Guilty Until Proven Innocent.”.

In this case, the plaintiff is an owner and operator of an auto parts business. He was diagnosed with chronic depression that required hospitalization and was declared permanently disabled and unable to work by two independent psychiatrists.

The bad faith insurance lawsuit claims that Unum commenced LTD payments in 2009 upon the plaintiff’s release from the hospital, only to abruptly stop benefits in 2013, claiming the plaintiff was not, in Unum’s view, disabled and thus could duly perform the duties of his occupation. The plaintiff’s appeal to Unum, in spite of sound medical evidence, was not successful.

You can see a copy of the plaintiff’s Long term disability lawsuit here: Case No. 1:15-cv-00238-GJQ, in the US District Court for the Western District of Michigan, Southern Division.

We appeal denials and file lawsuits like this all throughout the state of California; and not just against Unum. Almost every week we appeal or sue MetLife, Aetna, Liberty Mutual, CIGNA, LINA, Reliance Standard or other long term disability companies for what we believe were wrongful or bad faith denials of our clients’ claims.

If you have been denied insurance benefits call Kantor & Kantor today for a free consultation on 800-446-7529. We care and we can help.

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Appaling Conduct By Aetna Results in Court Issuing Order Against Aetna Without a Hearing

After Kantor & Kantor helped a client recover her long term disability benefits on appeal, Aetna decided that no further benefits would be provided unless the client filed a lawsuit. Kantor & Kantor obliged. The attorneys defending Aetna’s actions must now show good cause to a Federal Judge explaining Aetna’s actions.

Our client started working for Bristol-Myers Squibb in 1989 – staying with the company until she became disabled in November 2010. At that time our client’s doctors determined she was no longer able to work due to a multitude of medical conditions including post-traumatic stress syndrome, depression, anxiety, hypertension, a right knee injury, lumbar strain, and insomnia.

After our client submitted a claim for disability plan benefits, Aetna (the insurance policy’s claim administrator) found her to be disabled under the terms of the plan and long term disability benefits were paid. The Social Security Administration also found our client to be disabled and has continued finding her disabled.

After one year of benefits, the disability insurance policy definition of disability required the claimant to be disabled from “any occupation” to receive benefits (rather than just her “own occupation”). Even still, in October 2011, Aetna determined our client was entitled to plan benefits under the “any occupation” definition of disability.

In March 2013, Aetna terminated our client’s LTD benefits effective April 1, 2013. Aetna provided our client with an opportunity to appeal its determination. Our client hired us to help her submit her appeal.

An appeal was submitted in September 2013. In order to help prove our client was disabled from any occupation, Kantor & Kantor had her undergo an independent neuropsychological examination. The testing objectively confirmed our client’s continued disability. Kantor & Kantor had the objective medical evidence reviewed by an independent vocational reviewer. This further confirmed there were no feasible occupations that our client could currently perform.

In October 2013, Aetna upheld the termination of benefits. Aetna failed to address our independent neuropsychological examination or independent vocational review. Aetna offered one final opportunity to appeal. Aetna stated that in the event an appeal was submitted, “If the decision is unchanged at the completion of the review process and you or your client continue to disagree with our decision, you or your client have the right to bring a civil action….” (emphasis added)

In April 2014, Kantor & Kantor submitted another appeal challenging Aetna’s benefit termination. Along with the appeal Kantor & Kantor submitted additional medical evidence showing our client’s continued disability from April 1, 2012 through the present.

Aetna responded to the appeal in four versions of the same letter – two dated July 24, 2014 and two dated July 28, 2014 – all authored by Linda Camacho. A different letter dated July 28, 2014 was also submitted and authored by Joann Harrigan. All five letters changed Aetna’s decision to terminate benefits effective April 1, 2013, and Aetna now agreed to pay benefits up to May 01, 2014.” Aetna now terminated all benefits effective May 2, 2014. The basis for the new termination date was a lack of medical information as of that date.

Despite the fact that the April 1, 2013 termination of benefits had been completely overturned, with benefits reinstated, Aetna did not give our client the option of another administrative appeal. Aetna did not request the missing information as required by the Plan’s terms. Aetna did not give our client the opportunity to provide the “missing” information as required by the Plan’s terms. Rather, Aetna stated “[a]ccording to your client’s group plan, this decision is final and not subject to further review.” Aetna did not provide the Plan term supporting this statement, and it could not, as no such term exists in the Plan.

Aetna stated that if our client disagreed with the new decision, her only option was to file a civil action under ERISA. With no other option, Kantor & Kantor filed a lawsuit in the Federal District Court in the Central District of California. The case was assigned to a judge sitting in Los Angeles. Bristol-Myers Squibb hired a Morgan Lewis, a 2,000 lawyer multi-national law firm, to defend the plan and Aetna’s actions.

Because our client was not provided with a full and fair review, Kantor and Kantor immediately initiated legal proceedings to prove in court that Aetna had acted wrongfully and our client’s claim should be remanded for further evaluation. The attorneys at Morgan Lewis resisted, claiming Aetna’s termination of benefits was not improper. With the first opportunity to present the basic issue to the Court, Kantor and Kantor did so.

The court saw the logic in Kantor and Kantor’s arguments. Without even having a hearing, the court issued an order to show cause in which Bristol-Myers Squibb Co. had to explain why Aetna’s actions and the law did not dictate a remand.

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May is Lupus Awareness Month

Lupus is a chronic, autoimmune disease that can damage any part of the body (skin, joints, and/or organs inside the body). Chronic means that the signs and symptoms tend to last longer than six weeks and often for many years.

In lupus, something goes wrong with your immune system, which is the part of the body that fights off viruses, bacteria, and germs (“foreign invaders,” like the flu). Normally our immune system produces proteins called antibodies that protect the body from these invaders. Autoimmune means your immune system cannot tell the difference between these foreign invaders and your body’s healthy tissues (“auto” means “self”) and creates autoantibodies that attack and destroy healthy tissue. These autoantibodies cause inflammation, pain, and damage in various parts of the body.

Lupus is also a disease of flares (the symptoms worsen and you feel ill) and remissions (the symptoms improve and you feel better). These are some additional facts about lupus from the U.S Department of Health and Human Services, Office on Women’s Health:
• Lupus can range from mild to life-threatening and should always be treated by a doctor.
• Research estimates that at least 1.5 million Americans have lupus.
• More than 16,000 new cases of lupus are reported annually across the country.
• It is believed that 5 million people throughout the world have a form of lupus.
• Lupus strikes mostly women of childbearing age (15-44). However, men, children, and teenagers develop lupus, too. Most people will develop lupus between the ages of 15-44.
• Women of color are two to three times more likely to develop lupus than Caucasians.
• People of all races and ethnic groups can develop lupus.

Lupus can be extremely hard to diagnose. The most common symptoms of lupus, which are the same for females and males, are:
• Extreme fatigue (tiredness)
• Headaches
• Painful or swollen joints
• Fever
• Anemia (low numbers of red blood cells or hemoglobin, or low total blood volume)
• Swelling (edema) in feet, legs, hands, and/or around eyes
• Pain in chest on deep breathing (pleurisy)
• Butterfly-shaped rash across cheeks and nose
• Sun- or light-sensitivity (photosensitivity)
• Hair loss
• Abnormal blood clotting
• Fingers turning white and/or blue when cold (Raynaud’s phenomenon)
• Mouth or nose ulcers

Many of these symptoms occur in other illnesses. In fact, lupus is sometimes called “the great imitator” because its symptoms are often like the symptoms of rheumatoid arthritis, blood disorders, fibromyalgia, diabetes, thyroid problems, Lyme disease, and a number of heart, lung, muscle, and bone diseases.

If you or someone you know is suffering from Lupus, or any other illness, and you are being denied benefits by your health or long term disability insurer, please call Kantor & Kantor for a free consultation at 888-569-6013. We can help!

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ERISA: Guilty Until Proven Innocent?

Every day we are asked similar questions by our clients and prospective clients. They typically revolve around such themes as “how can my insurance company blatantly refuse to pay?” “Why is it that I have to engage a lawyer to fight for my benefits when my doctor has clearly proved that I am disabled?” And, “why can I only sue for the benefits I am owed and no punitive damages?”Unfortunately, we live with a system where insurers can, and do, deny disability claims that should be paid. Lawsuits are often necessary. Even then, people who need insurance benefits most can sometimes wait up to two years before their case goes to court or settles.

The Employee Retirement Security Act (“ERISA”), which is the law that governs most GROUP insurance policies, is stacked in favor of the insurance companies. ERISA imposes significant procedural limitations on the enforcement of group insurance benefits, and limits those benefits to those provided for in the policy. No emotional distress. No punitive damages. No out-of-pocket or consequential damages. And, attorneys fees only at the discretion of the Court. Employer Sponsored Group Policies fall under the Act unless they are a Government or Church Plan. ERISA is a federal body of legislation that establishes minimum standards for retirement, health, and other welfare benefit plans offered by employers to their employees. The Act expressly preempts all state legislation “relating to” an employee benefit plan, and federal courts have interpreted that phrase broadly, finding that a state law “relates to” a benefit plan “if it has a connection with or reference to such a plan.” The Act’s pre-emption clause extends to any state law allowing for recovery under an applicable plan. Unfortunately, this has resulted in a situation where ERISA preempts all common law tort actions for bad faith insurance and, consequently, does not allow plaintiffs to collect extra-contractual or punitive damages on claims involving covered insurance plans.

So what does this mean for the insured and the insurance company? For the insured it means that if they are denied health or disability benefits and they sue the insurance company under ERISA, the most they can hope for is that their benefits will be reinstated and back-paid to the time that they were denied; and that their attorney’s fees will be reimbursed in whole or part.

For the insurance company it really only means they may eventually have to pay what they should have paid in the first place. This system essentially creates a disincentive to pay the claims until they are challenged.

Clearly, the law is flawed. But it is the law we and our clients must live with. The good news is that we handle these types of matters every day, and have become quite good at it. We understand how the insurance companies and their lawyers work, and we can navigate this system to help maximize the chances your claim will be paid!

If you have been denied insurance benefits call Kantor & Kantor today for a free consultation on 888-355-5596. We care and we can help.

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Los Angeles Port Workers Sue Pacific Maritime Association, Cigna and Zenith American Solutions for $100 million in Unpaid Health Claims

A doctor and the spouses of two dockworkers at the Los Angeles Port have filed a class action lawsuit against Zenith American Solutions, the Pacific Maritime Association and Cigna Inc, alleging that the port’s health care plan is subject to unacceptable backlogs and health care insurance denials.

The lawsuit alleges “when a claim is denied and a request to review the denial is timely submitted, Zenith either summarily denies the appeal, or simply refuses to act on the appeal.”

Kristen Andrich, Loren Armijo and Dr. Ralph Mayer are claiming that thousands of policyholders and dependents have not had their claims repaid, despite the treatment being both a covered benefit under the plan and deemed medically necessary. The backlog has had a dramatic snowball effect that has seen doctors and hospitals go unpaid, medical providers seeking payment from plan participants, policyholders not being reimbursed for their payments and many patients not seeking medically necessary treatment because they cannot rely on their insurance plan to pay for it.

Ms. Andrich claims she received treatment for diabetes and a spinal cord injury, and was given approval to have the medical care covered. After incurring more than $380,000.00 in medical expenses, Ms. Andrich’s treatment was denied or unpaid.

The claims state that in 2013, Zenith American Solutions became the third party administrator for the health care plan, and that is about the time complications with the insurance plan began. Furthermore, the suit alleges that Cigna, who was the administrator prior to Zenith taking over, stopped processing claims a month before it was supposed to and that some 89,000 claims went unprocessed at the beginning of 2013. By the Summer of 2013, there were allegedly 286,000 unprocessed claims because “Zenith lacked adequate trained personnel to administer the Plan,” the lawsuit claims.

If you have unpaid claims and believe you have been wrongly denied or they have simply not been paid, call Kantor & Kantor for a free consultation on 888-569-6013.

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Make Your Long Term Care Insurance Work For You

As one of the few firms in California who handle long term care disputes, Kantor & Kantor frequently sees long term care claims which were denied on the basis that the facility or caregiver were not “eligible” under the Policy. One of the reasons for frequent denials is that the long term care policies sold in the 1990’s were written before the popularity of “assisted living facilities.” As a result, policyholders try to use their policies to cover the cost of room of board in an assisted living facility, when the policy may only provide benefits for a stay in a “licensed” nursing home.

An article in Money Magazine suggested that long term insurance is a valuable investment. It cites lower statistics for those who may need care in the future: 44% of men and 58% of women may ultimately need long term care of more than 3 months. Other statistics have suggested that up to 70% of the population may require long term care in their lives. Regardless, the article suggests that the insurance may be a worthwhile investment since it is meant to protect against catastrophic events.

If you have long term care insurance, you can take steps to make sure that it works for you. Many insurers who issued policies in the 1990’s no longer underwrite long term care insurance policies. However, if you have a policy which was issued by an insurer who is currently in business, such as Genworth or Bankers, you should contact your agent to ensure that your policy is up to date. Specifically inquire whether your policy will provide coverage for a stay in an assisted living facility. If you are assured that there is such coverage, ask for confirmation in writing.

If you are under the age of 80 and healthy, you might also consider replacing your old policy with a newer product. Again, if your insurer is currently in the business of issuing long term care policies, it may offer you a financial incentive to stay with the Company, by offering you expanded coverage.

The most important thing you can do is to check your policy, or that owned by your parents, before you make any decisions regarding long term care. Generally, long term care insurers will not guarantee that a facility is eligible before a claim is made. Therefore you have little guidance, other than the policy language itself, as to whether a facility meets the criteria under the Policy. You can ascertain whether the Policy requires that a facility have a particular license, number of beds or a certain level of nursing care by the policy language. When you are investigating facilities, you should ask for documentation that the facility has the necessary license to qualify under the Policy.

The same is true with respect to home care. Often, long term care policies will require that care be provided by a “licensed” home health care agency. We have seen instances where our clients have inquired whether an agency is “licensed.” The agency will advise the client that it is “licensed,” but it only has a business license and is not licensed as a home health care agency by the proper state authority. This may lead to a claim denial.

The facility or the caregiver should be fully investigated before crucial decisions are made to move a loved one. Transitioning to a new home or entrusting one’s care to a caregiver is often a disturbing event; especially for those who are cognitively impaired. Ensuring that the insurance will pay for what it was intended before these decisions are made will help smooth the transition.

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