At Mehr Fairbanks Trial Lawyers, we understand the intricate nature of long-term disability claims and appeals. The appeal process in a long-term disability claim is vital as it provides a platform for claimants to challenge an unfavorable decision made by the insurance company. Often, depending on the insurance policy terms, the appeal process is even required before you can file a lawsuit challenging the insurance company’s decision. However, the sophistication needed in these cases requires more than just a basic understanding. And, importantly, the way you communicate with the insurance company may likely be used against you.

DOES AI REALLY HELP YOUR CLAIM?

Technology often lacks the human emotion that may be necessary to humanize you for purposes of the appeal – or later, for the Court.

Although technology advancement, particularly AI, has brought convenience to many aspects of our lives, it’s important to tread carefully when considering its use in the claim or appeal process for long-term disability claims. While AI assistance might seem inviting due to its speed and ease, it lacks the human touch necessary for these complex endeavors. AI, by nature, lacks the empathy and insight inherent in human interaction. For those who are going through the distress of dealing with a disability, it may be difficult expressing their concerns or articulating their situation to the insurance company. AI likely won’t capture the full extent of what a disabled claimant suffers on a day-to-day basis.

Insurance companies often use communication skills, detailed summaries, and information from claimants as evidence to prove the ability to work. Machine-generated appeals or summaries may lack the necessary nuances or fail to fully capture the claimant’s situation. AI also lacks the ability to understand and convey emotions, a significant factor considering the individualized nature of disability claims. In such sensitive cases, human involvement and understanding are indispensable.

Insurance companies will often seize any angle they can to minimize or deny the payout for a claim. One particular approach that these companies have been known to employ involves the exploitation of concise, well-written summaries, emails, or medical records provided by a claimant. Moreover, they might even leverage such articulated documents that were compiled with the assistance of AI. For instance, the company might argue that the claimant is not disabled or ill to the extent they claim if they are capable of putting together a lengthy medical history or appeal. By suggesting that the very ability to write a comprehensive, structured document contradicts the severity of the claimed disability or medical condition, the company may try to avoid its obligations and refuse to approve benefits.

The insurance company may not even acknowledge its view of your “detailed” appeal until you receive the final denial letter that alleges you were able to communicate and provide detailed information. If this happens, it is unlikely that you will be able to defend yourself by explaining that you utilized AI to assist you because once the insurance company issues a final denial of your benefits, you may not be able to submit any additional information in support of your claim.

PITFALLS OF AI

AI is not perfect. There is absolutely room for error in the information it generates based on the inquiries you input. There is a significant risk that – without careful review – you may even unknowingly provide information to the insurance company that is simply wrong. By failing to catch incorrect information that AI generated for you, you may be subject to the incorrect information being used against you unfavorably by the insurance company. If the appeal process finalizes without this information being corrected, you are at risk of being bound to that information without a way to dispute it if you file a lawsuit. This, combined with the lack of human emotion, the risk of the insurance company using detailed communications in opposition to you, and the privacy concerns related to your information, demonstrate the dangers of relying on AI to support your claim.

It is important to be up-to-date on the software you are relying on. Is that information protected? Are there privacy concerns? You may unknowingly put your own privacy at risk by inputting your confidential medical and personal information in AI software.

CONTACT US TODAY FOR A FREE CONSULTATION

Professional advice and representation in these matters carry more weight than any AI can provide. Mehr Fairbanks Trial Lawyers is ably equipped to navigate the complex terrain of disability claims and appeals. Our law firm provides personalized attention and drafts comprehensive appeals which articulate your story and situation compellingly. We keep abreast of the ever-evolving rules and regulations surrounding long-term disability claims, appeals, and ERISA to ensure we are always poised to fight for you.

Bear in mind, presenting well-articulated documentation is perfectly within your rights. If an insurance company tries to barter with such unscrupulous semantics, Mehr Fairbanks Trial Lawyers can help protect your rights and help you get the compensation you deserve. Reach out to us at (800) 249-3731 for a free consultation today.

Do you ever get the feeling that someone is watching you? It may be happening, and it may be your insurance company!

Do you have a long term disability claim with an insurance company? Imagine waking up in the morning, attending to your daily routine, all while unaware that you could be under the watchful eyes of your insurance company as part of their long-term disability claim investigation. Can they do that?? Yes, it’s possible! Insurance companies occasionally employ video surveillance tactics, photography surveillance, or deep-dive into your social media activities, looking for evidence to deny disability benefits.

I’VE BEEN RECEIVING BENEFITS FOR YEARS – IS SURVEILLANCE STILL POSSIBLE?

Short answer: yes!

Whether your claim has been approved for 1 month, 5 years, or is still pending an initial claim decision, the insurance company can perform a variety of investigation tactics into your claim. It is possible that the insurance company may schedule you to attend an in-person medical evaluation. In this case, don’t be surprised if the day of the evaluation arrives and – unbeknownst to you – someone is camped out down the street ready to video you leaving for the evaluation, traveling to the evaluation, or following you once you leave the evaluation. Do you live in a rural area where access to your home is scarce? That may not matter; the surveillance may occur in the parking lot of the evaluation. It is even possible that they may follow you after the evaluation is over and continue recording or taking pictures (even if you go inside a restaurant with your spouse – yes, that can happen!).

WAIT- CAN THEY DO THAT?

Some may wonder, how is such a practice legal? The answer lies in the fine print of your insurance policy agreement. Most states have laws in play that allow insurance companies to use such surveillance methods. While it might feel intrusive, they do it in the name of preventing insurance fraud.

Bear in mind, what you might perceive as an innocuous update on Facebook or an innocent post on Instagram could be misconstrued and used against you. In these days of digital footprints, it’s crucial to be mindful of the information we share online, especially when pursuing a long-term disability claim.

WHAT INFORMATION CAN THEY GET?

If you are in a public space, or provide any information online publicly, that information is at risk of being obtained by the insurance company. Sometimes even something simple can be misinterpreted or misconstrued by an insurance company without context. Therefore, it is not surprising if the insurance company may use against you anything it finds through surveillance and/or social media investigations.

WHAT HAPPENS IF MY CLAIM IS DENIED BECAUSE OF SURVEILLANCE OR AN ONLINE INVESTIGATION?

If your long-term disability claim is denied, it is likely that you will be given an opportunity to appeal that denial. The appeal process is typically a very crucial part to your claim after a denial has occurred. Ensuring that the denial is appealed properly and that all necessary information has been provided to the insurance company is key. If you believe you are being unfairly surveilled or if your claim has been denied on the grounds of such investigations, we at Mehr Fairbanks Trial Lawyers are here to help. You should not be alone navigating these challenging issues. Call us today at (800) 249-3731 to discuss your case.

Of note, the 6^th Circuit, which is relevant Kentucky, has discussed not using summary judgment procedures or bench trials to decide ERISA actions, but instead reviewing the merits of the action based solely upon the administrative record with findings of fact and conclusions of law. It was suggested that the courts only consider evidence outside of the administrative record for limited exceptions. Wilkins v. Baptist Healthcare Sys., 150 F.3d 609, 619 (6th Cir. 1998) (Gilman, J., concurring).

For example, when insurance companies try to determine whether or not to award disability benefits, they may seek to hire their own physicians to review the medical records on file to reach a determination. This determination may or may not conflict with the medical opinions of the treating physicians. When there are conflicting opinions between the physicians hired by the insurance company and the treating physicians, however, this will likely lead to material facts in dispute. This is when a bench trial may be the most appropriate way for courts to rule on ERISA denial-of-benefits cases. Like in the example outlined below:

In October of 2013, Anita Tekmen started new employment with Adsum, Inc., as a Financial Analyst. This position required “reasoning, cognitive exertion, and the ability to hear and understand easily.” Tekmen, 55 F.4th at 955. Simultaneously, through her new position, Ms. Tekmen received coverage under a long-term disability insurance policy provided by Reliance Standard Life Insurance Company. Unfortunately, Ms. Tekmen was involved in a rear-end car accident that drastically and negatively impacted her ability to continue working in her new position as a Financial Analyst.

Ms. Tekmen visited several physicians and specialists hoping to come up with a treatment plan that would ultimately see her return to work full-time. After her accident, however, Ms. Tekmen was unable to perform her work duties consistently and efficiently as she continued experiencing “dizziness, sensitivity to light and noise, and [had] difficulty concentrating.” Id. Despite her continued visits to specialists and treating physicians, Ms. Tekmen’s symptoms were worsening at a steady rate. Nearly two years later, Ms. Tekmen decided to file a claim for short-term disability benefits with Reliance and they granted her claim. Despite her best efforts, however, it became clear that Ms. Tekmen would not be returning to full-time employment as her symptoms continued to worsen.

Thus, two months after she submitted her claim for short-term disability benefits, she sought to convert her benefits into long-term disability benefits. Reliance denied Ms. Tekmen’s claim for long-term disability benefits and determined that she was not “Totally Disabled” as defined by her disability insurance plan. Ms. Tekmen brought an action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. Section 1132(a)(1)(B). Ms. Tekmen argued that the denial of benefits violated ERISA. The district court conducted a bench trial in accordance with Federal Rule of Civil Procedure 52 and awarded judgment to Ms. Tekmen. The district court primarily relied on the medical opinions of Ms. Tekmen’s treating physicians to determine that she was “Totally Disabled” as defined by her disability insurance plan. Reliance appealed and the Fourth Circuit affirmed the lower court. The Fourth Circuit held that Ms. Tekmen was entitled to long-term disability benefits under the terms of the plan. By bringing an action under ERISA and moving for a bench trial in accordance with Federal Rule of Civil Procedure 52, Ms. Tekmen was able to eventually be awarded long-term disability benefits.

If you have questions about your benefits or have experienced a situation similar to Ms. Tekmen, call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation.

Most employers provide some type of disability insurance coverage for their employees. It might be time to refresh your memory on what your employer provides you with specifically. In an unpublished opinion, the Ninth Circuit recently determined that an employer provided disability insurance company was within its rights to reduce an employee’s disability benefits by $800,000. The $800,000 came from a recent personal injury settlement the employee received on a completely unrelated matter. Haddad v. SMG Long Term Disability Plan, No. 16-CV-01700-WHO, 2021 WL 2187979 (E.D. Cal. May 28, 2021).

The case turned on the legal distinction between “offsets” and “exclusions” and “limitations” in regard to long-term disability plans. This marginal difference may be the difference between receiving the anticipated total value of long-term disability benefits or having that total value later diminished. Exclusions and limitations carve out areas from the scope of an insurance policy’s coverage. Offsets reduce the total amount owed for covered claims.

For example, in the case mentioned above, Mr. Haddad was an employee that received long-term disability benefits from his employer-sponsored insurance plan after becoming disabled. He received an $800,000 settlement for an unrelated matter and his disability benefits were reduced, or offset, by the amount he received in the settlement. Mr. Haddad challenged this offset and ultimately lost. The Ninth Circuit reasoned that offsets are distinctly different from exclusions and limitations and therefore the employer-sponsored insurance plan was within its rights to reduce Mr. Haddad’s disability benefits by the amount he received in his settlement.

The Ninth Circuit further stipulated that the employer-sponsored insurance plan was clear and unambiguous when it mentioned specifically in its long-term disability plan that disability benefits would be offset by any payments that were the result of a settlement or judgment to the insured employee. This long-term disability plan specifically did not require that the offsets to settlements be for related injuries. This long-term disability plan provider was also not required to draw attention to the language in its plan related to offsets based on settlements or judgments. Thus, even though Mr. Haddad received the settlement for something unrelated to his disability insurance it was still deemed okay for the employer-sponsored insurance provider to reduce his disability benefits by the settlement amount.

If you have questions about your disability insurance plan or have experienced a situation similar to Mr. Haddad, call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation.

On May 5, 2020, Mehr Fairbanks posted a blog that outlined how COVID-19 can impact the claims and appeals process for both our short-term and long-term disability clients. That blog post can be found here. However, since the original post, the Department of Labor has updated the guidance on the deadlines and extensions that may impact short-term and long-term disability claims and appeals under ERISA.

Because ofthe COVID-19 National Emergency, it was first announced that deadlines related to filing and appealing claims under ERISA were tolled until a certain amount of time after theNational Emergency ended. Originally, ERISA deadlines were suspended until 60 days after the end of the National Emergency. However, because of certain restrictions in the authority to extend deadlines for longer than a period of one year, the suspension of ERISA deadlines has been clarified.

With the COVID-19 National Emergency continuing, the Department of Labor has provided further guidance that may impact your time to submit a claim or appeal of your disability claim.

EBSA Disaster Relief Notice 2021-01 outlines that the one-year extension applies separately to each extended deadline. The applicable deadlines are extended until the earlierof (1) one year from the date action would be required (such as the date of a denial letter or end of benefits for example), or (2) 60 days after the National Emergency ends. It is important to note, that the “disregarded” or suspended deadline period cannotexceed one year.

What does this mean for you? That depends. For example, if an insurance company denied your LTD claim on October 1, 2022 and would typically provide you with 180 days to appeal that denial, the 180-day appeal deadline is now extended because the National Emergency continued at the time your claim was denied. Thus, you would have (1) one year + 180 days, or (2) 240 days after the end of the National Emergency, to appeal the denial of your LTD claim. This is simply an example; every insurance policy is differentand deadlines may vary depending on your specific denial.

It is important to remember that the National Emergency can have an impact on your claim and/or appeal. Every case must be analyzed separately to determine what the extension of time looks like for each specific claim. Therefore, it is crucial to seek a consultation if you have any questions regarding filing a disability claim or appeal.

Call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation

Recently, a federal judge in Texas court ruled in favor of retired NFL player, Michael Cloud, determining that the administrators of The Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”) violated their fiduciary duties under ERISA in denying Cloud a full and fair application review. Cloud’s appeal concerned his eligibility for the highest level of disability benefits under the Plan, which was subsequently denied by the Defendants.

Cloud boasts an impressive NFL career, playing 7 seasons, including for the New England Patriots during their 2004 Super Bowl winning year. Cloud additionally played for the Kansas City Chiefs and the New York Giants between 1999 and his retirement in 2006. During his career, Cloud states that he injured “virtually every aspect of his body” as well as endured numerous cases of head trauma known as “dings” (an instance where a player’s vision goes black due to a hard hit to their head). One of Cloud’s last head injuries sustained in 2004 led to his early retirement, as the frequency and severity of the injuries had caused “cumulative mental disorders.” In 2010, Cloud began receiving benefits under the retirement Plan, and was found to be “totally and permanently” disabled in 2014. Subsequently, in 2016 Cloud applied for reclassification under the Plan but was denied both initially and on appeal.

Cloud brought an action against the Plan in 2020, alleging that his application for reclassification was never fully reviewed by the Defendants. He alleged that the Defendants (including six board members for the Plan) did not adequately review his over 1000-page application. Instead, a paralegal was made to write a summary of the application for the administrators. It has been speculated that the decision on the matter was already drafted before the administrators viewed the summary of the new appeal, as it cited to incorrect documents that belonged to the wrong benefits plan. Further, the denial letter included contradicting information with written minutes taken at the board meeting during their deliberation; the minutes state that the only reason for the denial was the Cloud did not show by clear and convincing evidence the existence of a new injury, while the letter additionally states that the application was made outside of a 180-day deadline among other timing issues. During closing arguments, counsel for Cloud stated that the issue of unfair denial is not new nor exclusive to Cloud, and that the Plan consistently failed to fully review applications by reviewing as many as 50 at a time with no discussion of the specific cases.

The Defendants argued that the payment of benefits was not appropriate, as Cloud did not sustain any new injuries between his first application in 2014 and his application for reclassification in 2016. They further opined that Cloud’s current benefits category was “exactly where he should be” and that he was one of the few beneficiaries to bring an action against the Plan.

The Court did not agree, stating that the denial was incorrect and Cloud’s reclassification application should be granted and he should be placed in the highest benefits category due to the injuries sustaining during his career. Judge Karen Gren Scholer stated that the Plan obviously spent “virtually no time in rubber-stamping the decision.” She further stated that the Plan’s practice of reviewing player’s applications was “wrong and absurd.” Regarding the argument that the low number of cases brought against the Plan is evidence that the decision was correct, Judge Scholer stated that this essentially constituted an “if it ain’t broke, don’t fix it” argument and thus was rejected. She further speculated that it is incredible that under the Plan only 30 former players (all of whom have injuries causing paralysis) are at the highest benefit tier. Thus, she stated that, “The Plan is broke and it’s time to fix it.”

Both Cloud and his family are grateful that the long battle for benefits due to him under the Plan is finally over. Cloud described the Plan’s denial and its effects had “tortured [his] family for years without caring.” This decision is not only a victory for Cloud and his family, but other members of the same or similar retirement plans who have been denied full and fair review of applications by plan administrators. In fact, even outside of the realm of plans relating to former athletes, the decision solidifies the fiduciary duties owed to beneficiaries under ERISA and sets the standard for individualized, thorough, and fair reviews of applications and benefit determinations.

A federal court in Pennsylvania recently certified a class of Plaintiffs under Defendant Aetna Life Insurance Co.’s disability benefits plan (“Plan”). The Plaintiffs alleged that the Defendants forced beneficiaries who had received payments for personal injury claims to send the payments back to the company in violation of ERISA.

The named Plaintiff, Joanne Wolff, first filed suit against Aetna in 2019 when the company asked for the repayment of over $50,000 in long-term disability benefits stemming from a temporary disability suffered by the Plaintiff after a car wreck. At the time of the request, Wolff told the Defendants that her employer, Bank of America, did not allow reimbursement, and negotiations ended in an agreement that that Wolff would pay $30,000 despite this fact.

This did not end the dispute, however, and Wolff along with an at least 48-member class now allege that Aetna violated ERISA when it required reimbursement payments of long-term personal injury disability payments. Aetna responded that class certification would be inappropriate, as the proposed class did not meet the specifications required for certification under the Federal Rules of Civil Procedure. Mainly, the Defendants argued that some of the members of the proposed class should be disqualified, thus the number of participants in the class did not meet the numerosity requirement. It argued that since some of the members of the class were from different companies, there was not sufficient typicality to fulfill the requirements under the Civil Rules and members under other employers should be disqualified, reducing the class number to 28. Aetna also argued that timing issues barred several more participants under the relevant statutes of limitations.

The Court disagreed, stating that the class size both exceeded the minimum number of members and that the benefit plans of each member were substantially similar, thus making certification appropriate under the Civil Rules. It was decided that the plans at issue contained similar enough language that the fact that the beneficiaries worked for different companies was irrelevant. Judge Matthew W. Brann stated, “Because Wolff meets all three concerns implicated by typicality, the court finds she had satisfied this requirement.” Regarding the argument that certain members were barred under statutes of limitations, the Court stated that this number was so few that it would not impact the ability for the class to be appropriately certified under the Civil Rules.

Therefore, Wolff and the class of members is permitted to move forward in federal court as all requirements have been satisfied. This decision is a victory not only for members of the class, but for participants in disability plans governed by ERISA. ERISA requires that plan administrators fulfill various fiduciary duties to their participants; when these duties are violated it is often done on a large scale and impacts participants across not only the specific company but under similar plans as well. This decision shows the importance of policy language and similarity between plans, creating the standard that when companies breach their duties to participants, an action may be brought under similar policy language rather than under the same employer. This provides the opportunity for recourse under ERISA to a wider range of plan participants, ensuring the fulfillment of benefits and accountability from administrators.

Recently, a federal judge in Texas court ruled in favor of retired NFL player, Michael Cloud, determining that the administrators of The Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”) violated their fiduciary duties under ERISA in denying Cloud a full and fair application review. Cloud’s appeal concerned his eligibility for the highest level of disability benefits under the Plan, which was subsequently denied by the Defendants.

Cloud boasts an impressive NFL career, playing 7 seasons, including for the New England Patriots during their 2004 Super Bowl winning year. Cloud additionally played for the Kansas City Chiefs and the New York Giants between 1999 and his retirement in 2006. During his career, Cloud states that he injured “virtually every aspect of his body” as well as endured numerous cases of head trauma known as “dings” (an instance where a player’s vision goes black due to a hard hit to their head). One of Cloud’s last head injuries sustained in 2004 led to his early retirement, as the frequency and severity of the injuries had caused “cumulative mental disorders.” In 2010, Cloud began receiving benefits under the retirement Plan, and was found to be “totally and permanently” disabled in 2014. Subsequently, in 2016 Cloud applied for reclassification under the Plan but was denied both initially and on appeal.

Cloud brought an action against the Plan in 2020, alleging that his application for reclassification was never fully reviewed by the Defendants. He alleged that the Defendants (including six board members for the Plan) did not adequately review his over 1000-page application. Instead, a paralegal was made to write a summary of the application for the administrators. It has been speculated that the decision on the matter was already drafted before the administrators viewed the summary of the new appeal, as it cited to incorrect documents that belonged to the wrong benefits plan. Further, the denial letter included contradicting information with written minutes taken at the board meeting during their deliberation; the minutes state that the only reason for the denial was the Cloud did not show by clear and convincing evidence the existence of a new injury, while the letter additionally states that the application was made outside of a 180-day deadline among other timing issues. During closing arguments, counsel for Cloud stated that the issue of unfair denial is not new nor exclusive to Cloud, and that the Plan consistently failed to fully review applications by reviewing as many as 50 at a time with no discussion of the specific cases.

The Defendants argued that the payment of benefits was not appropriate, as Cloud did not sustain any new injuries between his first application in 2014 and his application for reclassification in 2016. They further opined that Cloud’s current benefits category was “exactly where he should be” and that he was one of the few beneficiaries to bring an action against the Plan.

The Court did not agree, stating that the denial was incorrect and Cloud’s reclassification application should be granted and he should be placed in the highest benefits category due to the injuries sustaining during his career. Judge Karen Gren Scholer stated that the Plan obviously spent “virtually no time in rubber-stamping the decision.” She further stated that the Plan’s practice of reviewing player’s applications was “wrong and absurd.” Regarding the argument that the low number of cases brought against the Plan is evidence that the decision was correct, Judge Scholer stated that this essentially constituted an “if it ain’t broke, don’t fix it” argument and thus was rejected. She further speculated that it is incredible that under the Plan only 30 former players (all of whom have injuries causing paralysis) are at the highest benefit tier. Thus, she stated that, “The Plan is broke and it’s time to fix it.”

Both Cloud and his family are grateful that the long battle for benefits due to him under the Plan is finally over. Cloud described the Plan’s denial and its effects had “tortured [his] family for years without caring.” This decision is not only a victory for Cloud and his family, but other members of the same or similar retirement plans who have been denied full and fair review of applications by plan administrators. In fact, even outside of the realm of plans relating to former athletes, the decision solidifies the fiduciary duties owed to beneficiaries under ERISA and sets the standard for individualized, thorough, and fair reviews of applications and benefit determinations.

Recently, the Boston Children’s Hospital asked a judge in federal court to dismiss a case brought by former employees that alleged the charging of “exorbitant” fees relating to the management of ERISA retirement plans. The Hospital argues that fees associated with the plans were not exorbitant and no damage was sustained by plan members under the class, thus the case against them should be dismissed. The Hospital additionally argues that there was no requirement for them to pick the lowest possible costs for administration of their ERISA plans. Further, they argue that the plaintiffs in the class at issue were not deeply invested in the plans that are involved.

The Plaintiffs (former employees of the Hospital) in the class allege that the Hospital’s fiduciary duties under ERISA were breached when they overcharged participants for fees relating to recordkeeping. Further, the Plaintiffs allege that the Hospital encouraged participants to invest in funds that were more expensive than others and underperformed compared to their counterparts. The case was originally brought by four former employees of the Hospital, with the class now encompassing compensation for 18,580 employees. The Plaintiffs state that while participants in similar plans were required to pay between $23 to $42 per year in recordkeeping fees, participants in the Hospital’s plans at issue paid $73. The large size of the plan, according to the Plaintiffs, would have enabled them to negotiate for lower fees if the Hospital had been proactive about ensuring the performance of their duties to the participants.

The Hospital counters in their motion to dismiss that, “ERISA does not require Children’s to select the least expensive or best performing investment, and Plaintiff’s cannot plausibly allege a breach merely by pointing to alternative target date funds that have some similarities and that purportedly cost a bit less or performed a bit better.” Further, the Hospital alleges that the Plaintiffs are essentially attempting to make arguments that are directly opposed, stating that there are no comparable plans that are both less expensive and perform better than that those at issue in the case. Regarding the plans exemplified by the Plaintiffs as less expensive, the Hospital states that the cheaper plans did not perform as well as those chosen by the Defendant. The plans argued by the Plaintiffs to be comparable also had different payment structures and provided different services to participants, according to the Hospital.

The Defendant states that even if the allegations against their management of the plan were accurate, the Plaintiffs in the case have no cause of action for plans in which they did not specifically invest. The Hospital argues that this results in the named Plaintiffs having no claim for relief, therefore the suit should be dismissed.

Lastly, the Hospital argues that the amount of recordkeeping fees alleged in the case relate to 2020 prices, when none of the named Plaintiffs were involved in payment of plan fees.

The question is now posed to the Court of whether the arguments brought by the Defendant should result in dismissal of the case. Courts have recently held that classes of plaintiffs in similar situations are entitled to certification and a chance to litigate their claims. The facts of this case regarding the level of participation the Plaintiffs actually engaged in by paying excess fees may change this result. However, courts have made it apparent that when plaintiffs have paid excess fees under ERISA plans, they are entitled to appropriate legal recourse.

Attorney Elizabeth Thornsbury received a favorable Order in federal court against The Prudential Insurance Company of America in an ERISA case on September 4, 2019. The judge granted Plaintiff’s motion to compel discovery stating that:

“Aliff may conduct some discovery to enable the Court to determine whether such conflict affected Prudential’s benefit decisions.”

Prudential had previously only answered part of Aliff’s discovery requests claiming that she was not entitled to all of the information requested. However, the judge continued to explain that:

“the mere presence of conflict of interest is enough to permit discovery beyond the administrative record.”

Plaintiff’s motion to compel discovery was granted and a new scheduling order will soon be enforced.

To read a copy of the Order, please click here.

Elizabeth Thornsbury, one of the firm’s attorneys experienced in short- and long-term disability claims, received an Order in federal court against Reliance Standard Life Insurance Company on June 12, 2019. Judge Caldwell found that “Reliance Standard acted arbitrarily and capriciously in denying Asher’s appeal…” and that “the final denial decision was not the result of a ‘deliberate principled reasoning process.’” The case was remanded to Reliance Standard to give our client’s claim “a full and fair review.”

Click here for a copy of the Order.

You need to know what are the common mistakes to watch out for in order to increase your chance of getting ERISA (Employee Retirement Income Security Act) long-term disability benefits.

Did you know that you may be eligible to claim long-term disability benefits under ERISA should you be unable to work because of sudden disability? You may actually also enjoy these benefits under an employer-sponsored group insurance plan. However, how you apply for the benefits is critical to get the best possible outcome. You cannot discount that the process in ERISA long-term disability benefits application is fraught with challenges and a simple oversight can adversely affect your chance to get the benefits. As such, it helps to know what to watch out. Even better, consulting an ERISA lawyer in Kentucky will be advantageous to you do not waste any time understanding the complicated process of ERISA benefits.

Avoid These ERISA Disability Missteps

❌ Blunder #1: If you think that your employer’s opinion about your ability to work is enough evidence for your claim, you may be in over your head. Even if your employer assures you that you can claim for benefits because the employer deems you are too sick to work, do not be complacent. The long-term disability benefits will be paid for by the insurance company and NOT your employer. The insurer will be the one to assess and decide if you are eligible based on the legal definition of disability under the terms of the insurance policy.

❌ Blunder #2: If you think your company’s human resource department’s advice is enough basis for your next steps, then you are putting your claim at risk.. Even if the human resources team are doling out words of advice out of concern for your plight, they just do not have the proper training in interpreting insurance policies. Even if they may be the ones in charge of filing some of the documents with the insurance company as part of their tasks in employee’s compensation and benefits processing, they do not have any direct influence on what the insurers will eventually decide on.

❌ Blunder #3: If you think that keeping tabs of your disability claim by using only the forms provided by the insurance company is sufficient, be aware that you must do more than that. Your doctor may even be required to answer certain questions on the insurance company forms but a more thorough explanation or information to prove your disability can further help your cause. The person who can do that without question is no other than your doctor. Talk to your doctor and share the terms of your disability insurance policy. A medical report that fully explains how your sickness or condition is preventing you from performing the “substantial and material” duties of your occupation will be a great supporting document, even if this may entail additional cost on your part\

❌ Blunder #4: If you feel so good you think you can actually do some activities that your doctor prohibited you from doing, please don’t! No matter how great you may feel, do not, in any way, defy the warnings of your doctor to avoid certain activities. You will not want the insurance company to think you are trying to cheat them, especially when they are monitoring your activities and may even ask you to fill out an activity log. Follow the doctor’s orders and you may be a step closer to getting those disability benefits.

❌ Blunder #5: If you think that it will be easier to get assistance from the insurance company’s lawyers to help you file for Social Security benefits, think again! Be mindful of your responsibilities. When you receive long-term disability benefits, you will generally be required to file for Social Security benefits. There may be times that the insurance company’s lawyers or an affiliated law firm will offer assistance with the application process. Watch out! There have been instances where shady insurance company’s lawyers lead unsuspecting claimants to choose specific disabilities on their Social Security disability benefit applications. However, it will be too late when the applicants eventually discover that it is harder to prove the long-term disability claim because of those disabilities the insurance company’s lawyers “helped” them to select.

❌ Blunder #6: If you think that any kind of lawyer can help you with your disability claims, reconsider! ERISA is a complex law and you may get lost in the policies and procedures in your disability benefits application. It is in your best interest to work with an experienced ERISA disability attorney in Kentucky to help you out.

Contact an Experienced ERISA Disability Attorney

Call one of the best disability attorneys in Kentucky. At Mehr Fairbanks Trial Lawyers, we will do the best we can to help you the get the disability benefits you are entitled to. Call us for a free case evaluation.

Simplified Employee Pension Plans (SEP) – A plan in which the employer makes contributions on a tax-favored basis to individual retirement accounts (IRAs) owned by the employees. If certain conditions are met, the employer is not subject to the reporting and disclosure requirements of most retirement plans. Under a SEP, an IRA is set up by or for an employee to accept the employer’s contributions.

Is it possible to sue under ERISA?

Yes, you have a right to sue your plan and its fiduciaries to enforce or clarify your rights under ERISA and your plan in the following situations:

• To appeal a denied claim for benefits after exhausting your plan’s claims review process;
• To recover benefits due you;
• To clarify your right to future benefits;
• To obtain plan documents that you previously requested in writing but did not receive;
• To address a breach of a plan fiduciary’s duties; or
• To stop the plan from continuing any act or practice that violates the terms of the plan or ERISA.

What do you do if you have a problem?

Sometimes, retirement plan administrators, managers, and others involved with the plan make mistakes. Some examples include:

• Your 401(k) or individual account statement is consistently late or comes at irregular intervals;
• Your account balance does not appear to be accurate;
• Your employer fails to transmit your contribution to the plan on a timely basis;
• Your plan administrator does not give or send you a copy of the Summary Plan Description; or
• Your benefit is calculated incorrectly.

It is important for you to know that you can follow up on any possible mistakes without fear of retribution. Employers are prohibited by law from firing or disciplining employees to avoid paying a benefit, as a reprisal for exercising any of the rights provided under a plan or Federal retirement law (ERISA), or for giving information or testimony in any inquiry or proceeding related to ERISA.

You should call Mehr Fairbanks Trial Lawyers to help you retain your rights and benefits today by calling Toll-Free: 800-249-3731.

Our experienced ERISA Disability Lawyers in Kentucky will help you answer questions to your ERISA Disability needs.

1. THE BASICS

A federal law known as ERISA (Employee Retirement Income Security Act of 1974) is a complicated and comprehensive law that sets minimum standards for retirement and welfare benefit plans in private industry. ERISA does the following:

• Requires plans to provide participants with information about the plan including important information about plan features and funding. The plan must furnish some information regularly and automatically. Some is available free of charge, some is not.
• Sets minimum standards for participation, vesting, benefit accrual and funding. The law defines how long a person may be required to work before becoming eligible to participate in a plan, to accumulate benefits, and to have a nonforfeitable right to those benefits. The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for your plan.
• Requires accountability of plan fiduciaries. ERISA generally defines a fiduciary as anyone who exercises discretionary authority or control over a plan’s management or assets, including anyone who provides investment advice to the plan. Fiduciaries who do not follow the principles of conduct may be held responsible for restoring losses to the plan.
• Gives participants the right to sue for benefits and breaches of fiduciary duty.
• Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation.

2. WHAT TYPE OF BENEFITS ARE GOVERNED BY ERISA?

At the most basic level, ERISA applies to two types of plans: Employee Welfare Benefit Plans and Employee Pension Benefit Plans.

An Employee Welfare Benefit Plan is any plan, fund, or program established or maintained by an employer or by an employee organization, or by both, which provides any of the following benefits, through insurance or otherwise:

• health insurance
• group life insurance
• long-term disability (LTD) income
• severance pay
• funded vacation benefits
• apprenticeship or other training programs
• or day care centers, scholarship funds, or prepaid legal services

In most cases, health insurance, group life insurance, long-term disability insurance, and short-term disability insurance are provided through an HMO or Insurance company, such as Unum, Cigna, Liberty Mutual, MetLife, Aetna, Anthem, Sun Life, LINA, Mutual of Omaha, Matrix, The Hartford, among others. The employer purchases, for instance, a group long-term disability insurance policy to offer its employees. Is this plan subject to ERISA? Probably, although there are exceptions depending on the type of employer.

An Employee Pension Benefit Plan under ERISA is any plan, fund, or program established or maintained by an employer or by an employee organization, or by both, which provides retirement income to employees, OR results in a deferral of income by employees for periods extending to the termination of covered employment or beyond. Employee Pension Benefit Plans include:

• Profit-sharing retirement plans • Stock bonus plans
• Money purchase plans
• 401(k) plans
• Employee stock ownership plans
• Defined benefit retirement plans

3. WHY DOES IT MATTER IF MY BENEFIT CLAIM IS GOVERNED BY ERISA?

ERISA will have a profound effect on how your claim should be handled- both by you and the insurance company. If your disability claim, for instance, is denied, then it is important that you contact an attorney with experience in ERISA. For instance, you would not be able to sue the insurance company most likely without “exhausting” your “administrative remedies”, which means appealing an adverse benefit determination with the insurance company. On appeal, the disability insurer must follow certain procedures, such as making a decision within a certain period of time, having a different qualified medical professional review your medical records, and review your medical condition in conjunction with the requirements of your policy’s definition of disability. You are also entitled to receive a copy of all relevant information used by the insurance company when making its decision to deny your claim. This includes not just medical records, but internal case notes, correspondence, medical opinions from outside consultants, any surveillance data, and any occupational data considered.

Although ERISA was enacted to protect individuals, it is commonly understood that ERISA actually protects insurers, not claimants as intended. Some of these reasons include:

• ERISA disability disputes can take a long time. Before any lawsuit, the claimant must “exhaust administrative remedies” by sending a written appeal to the denying insurance carrier. Denied claimants generally have 180 days to appeals, and insurers have up to 90 days to consider the appeal. This means that by the time the internal appeal process has concluded, 270 days have easily passed. During that time, the disabled person generally has no income whatsoever.
• If the disabled claimant also seeks Social Security Disability (SSD) income, the long term disability insurer usually is allowed to deduct the SSD income from the amount it owes the claimant. This is referred to as an offset. If the disabled person does not seek SSD income, the long term disability plan usually allows the insurance company to estimate the SSD income and offset it anyhow.
• ERISA allows insurers the discretion to administer their own policies. Essentially, if such discretion is allowed under the disability plan, then a denial can generally only be overturned only by a showing that the denial was “arbitrary and capricious.” This standard is very difficult to overcome. The court doesn’t look at whether you are disabled, but whether the insurer was “arbitrary and capricious” when it used its discretion to determine that you were not disabled.
• If the insurance company upholds its denial on appeal, then the only option left is to file a suit in the United States District Court. But a lawsuit under ERISA does not necessarily mean their individual will have his or her day in court, so to speak. This is because testimony is usually not allowed and cases are decided by judges, not a jury. Very rarely will the judge even be able to see the claimant in person. Instead, the case is decided on the “record”- meaning that the judge will only look at the lawyers written arguments and the “claims file”, which is comprised of everything the insurer had before it when it made the decision to deny the individual’s benefit claim.

Unfortunately, very few people have the stamina or resources to put up a fight against the disability insurance companies, and they know this. If you had to stop working due to an illness or injury, you should be using this time to focus on your health, not dealing with the insurance company endlessly to figure out what new piece of information they need or tracking down all of your doctors to make sure your medical records have been sent. Many people do not challenge wrongfully denied benefit claims, and the insurance companies bet against you doing so.

The experienced ERISA disability lawyers at Mehr Fairbanks Trial Lawyers can help you during every phase of the ERISA claim and appeal process. We can ensure that all vital information is submitted and that all of filing deadlines are met on time. We will fight to protect your rights and we will work hard to get you the benefits you deserve. Give us a call now at 800-249-3731.