In addition to dealing with short term disability benefits, long term disability benefits, and health insurance denials, many of our clients are also tasked with applying for Social Security Disability benefits. On January 17, 2017, the Social Security Administration adopted new rules for evaluating mental disorders. These rules reflect the most comprehensive revision in over […]
April is Parkinson’s Disease Awareness Month, which makes it a fine time to talk about the organization that provides information, support and education for those who suffer from Parkinson’s Disease (PD) as it provides a wealth of information useful in a disability claim. The Parkinson’s Disease Foundation (PDF) works to find a cure, to advance […]
A 2014 study of Canadian workers revealed that most individuals vastly underestimate the likelihood that they will become disabled. While nearly half of workers surveyed believe that disability occurs rarely, in reality over 14% of Canadians are currently on disability, while roughly 33% of individuals will experience a period of disability lasting longer than 90 […]
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid. It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies […]
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; Continue reading
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 […]
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 […]
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 […]
Today we revisit the case of LaVertu v. Unum Life Ins.Co. of Amer., 2014 U.S.Dist.LEXIS 40442 (C.D.Cal. March 25, 2014), a case which highlights some of the tactics insurers use to stop paying long term disability claims. Kantor & Kantor represented the plaintiff and was successful in getting her disability payments reinstated.
The Plaintiff worked as an administrative assistant for an insurance agency. She became disabled in 2007 due to back pain. Unum approved the claim, began paying benefits in 2008 after the expiration of the six-month elimination period, and continued paying benefits for more than two years. However, benefits were terminated as of March 21, 2012 based on Unum’s conclusion that LaVertu no longer met the contractual definition of disability. The plaintiff’s pre-litigation appeal was unsuccessful and she filed suit.
LaVertu introduced evidence that she had undergone three spinal surgeries. None of the treatment improved the plaintiff’s condition, however. The Social Security Administration concurred, and awarded LaVertu disability benefits under the Social Security Act. Unum obtained a copy of the entire Social Security disability insurance claim file. After reviewing the contents of the file, Unum’s in-house vocational consultant determined that the file supported sitting for no more than four hours per day; thus, the plaintiff could not meet the exertional demands of a sedentary occupation. Following that review, which took place in 2009, Unum internally noted, “Clmt is [totally disabled] any occ and R&Ls are permanent.” That information was communicated to the plaintiff in a follow-up letter stating, “we do not anticipate a change in your medical status and therefore, have made the decision to extend our approval of your benefits through February 20, 2030.”
In late 2011, a paper review of the file by a physician resulted in an opinion that LaVertu was capable of full-time sedentary work activity, and corroboration through an independent medical examination was suggested. The exam, which was performed by Dr. Kamran Hakimian in February 2012, reported the plaintiff could perform a part-time sedentary job if allowed rest periods every hour. Dr. Hakimian also opined that the plaintiff could engage in a 40-hour work schedule within 6 months. Unum advised him that his prediction of a six-month return to work was “vocationally problematic,” and asked for clarification. He then agreed that the plaintiff could work full-time after a four-to-six week work hardening program without any explanation, although he retained the restrictions that a 10-minute break would be required every hour.
Unum then sought a legal opinion from in-house counsel as to whether benefits could be terminated based on part-time work capacity. Although Unum’s attorney advised that benefits could not be terminated under that scenario without the claimant’s consent, Unum terminated the benefits anyway.
The plaintiff appealed that decision. With her appeal, she provided assessments by her treating doctors, including her pain management specialist. She also provided a functional capacity evaluation finding her capable of less than sedentary work activity. Upon receipt of the appeal, Dr. William Sniger at Unum performed a review and concluded that she possessed sedentary work capacity, a conclusion confirmed by Richard Byard, a vocational consultant at Unum. The court overturned that decision.
In addressing the merits, the court determined that the evidence showed the plaintiff remained disabled since there was no evidence of improvement in her condition. Moreover, the court determined that limited sit, stand, and walk capabilities precluded sedentary work. Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, 606 F. Supp. 2d 1017, 1037 (D. Minn. 2009) (“Common sense dictates that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”). The court further held that Unum lacked a basis for disregarding the FCE findings, but even if the FCE were excluded, the evidence still supported the claimant’s lack of ability to perform sedentary work.
The court also barred Unum from raising new reasons in court that were not listed earlier, citing Harlick v. Blue Shield of California, 686 F.3d 699, 719-20 (9th Cir. 2012) (stating that “a court will not allow an ERISA plan administrator to assert a reason for denial of benefits that it had not given during the administrative process.”). Cf. Abatie, 458 F.3d at 974 (“When an administrator tacks on a new reason for denying benefits in a final decision, thereby precluding the plan participant from responding to that rationale for denial at the administrative level, the administrator violates ERISA’s procedures.”).
The court also rejected Unum’s termination based on part-time work capacity or “hypothetical future work capacity.”
We at Kantor & Kantor strive to help individuals get the insurance coverage to which they are entitled. If you or someone you know is having trouble getting their long term disability payments paid, call us today for a free consultation on 888-569-6013. We care and we can help.
Social Security is obviously a hot political topic. As the number of beneficiaries expands for demographic reasons, politicians have warned us repeatedly that Social Security’s programs are getting too expensive and that we may soon see cuts.
Some politicians, however, are fighting the conventional wisdom that cuts are inevitable. Senator Elizabeth Warren (D. Mass.) introduced an amendment to the Senate budget resolution last month with the goal of not only ensuring that the programs remain solvent, but also expanding benefits.
The amendment had the almost unanimous vote of Senate Democrats. Furthermore, public opinion polls show that voters “overwhelmingly support” increasing Social Security benefits.
Republicans, however, are dead-set against Social Security expansion. All Senate Republicans opposed Senator Warren’s amendment. Furthermore, House Republicans passed a procedural rule in January that potentially sets up a battle for Social Security.
The battle is over the interaction between Social Security’s retirement and disability funds. In the past, Social Security has been able to transfer money from the retirement fund to the disability fund in order to address any disability benefit shortfalls. (Unfortunately, the disability fund has been shortchanged by Congress.)
However, the new House rule has the effect of stopping any such transfers unless Congress addresses the long-term solvency of Social Security by either raising taxes or cutting benefits. (Naturally, Republicans prefer the latter.)
Why does this rule matter? Well, if the rule stands, and Congress is unable to negotiate a way around it, the Social Security disability fund will run out of money sometime near the end of 2016. All disability beneficiaries will immediately suffer a cut in benefits of 20 percent.
If you currently receive Social Security disability benefits, or may need to apply for them, this is cause for concern. Contact your representatives in Washington and tell them this brinksmanship is unacceptable. It is not fair to punish the disabled because Congress cannot agree on long-term Social Security solutions. And keep this dispute in mind when you vote in November of next year.