Articles Posted in New and Newsworthy

Sometimes our clients who are physicians diagnose and self-treat their conditions and ask us whether they can establish their disability claim based on their own assessment.  It stands to reason that an insurance company asked to pay benefits will not rely solely on the word of the claimant. In fact, most policies indicate not only that the claimant has to be under “appropriate care” for their condition, but they cannot be treated by a family member.  Weisman v. The Guardian Life Ins. Co. of Am., Civil Action No. 7:22-cv-00595, 2024 U.S. Dist. LEXIS 2807  (W.D. Va. Jan. 5, 2024).is interesting because the court held that Dr. Weisman, neuro-ophthalmologist and ophthalmic surgeon who experienced tremors and self treated for years was eligible for disability benefits even though he had not seen a doctor just before stopping work in Dec 2021.   The court concluded that whether or not Dr. Weisman met the policy requirement that he be under the regular care of a doctor during his disability was not relevant because the court agreed with Dr. Weisman that he had reached his maximum point of recovery and was  disabled before the policy ended.   The court relied on the opinion of a specialist, who examined Dr. Weisman after the fact and stated that he had received the appropriate care for his disability.

Finally, the court rejected Guardian’s contention that there was inadequate evidence that Dr. Weisman was disabled before he quit his job because he was self-evaluated (and treated) up to that point and only went to the specialist after he stopped working. This ERISA claim turned on whether he was covered under the policy even though he sold his business as of the date of his disability. .

We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome the denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled.  See our website for video presentations and information on our boutique practice and contact us to discuss your case.  www.disabilitycounsel.com.

We are often asked by our disabled clients if they must stop all cease or limit their daily activities in order to prove they are unable to work in their occupation.  The answer is no.  Insurers do poke around, asking claimants on “Activities of Daily Living” forms questions such as how far they can travel, what computer devises they operate, whether they tend to their yard, or clean their home or exercise at a gym.  Detailed prodding often seeks information about how the claimant spends their day from the moment they awaken to when they go to sleep at night.

We have handled appeals for clients who suffer from chronic pain but are able to mow their lawn, or clean their own home, or care for children.  Hartford, Cigna, Unum and Prudential often deny claims of individuals whose lives outside of work appear to be too busy or too “normal” to justify a disability claim.  However when rushing to deny a claim, the insurer does not ask how often the person is able to perform these activities, or under what conditions.  We have successfully appealed cases where the insurers have challenged our client’s claim because they admit to using a computer or smart phone. The insurer simply concludes that the person surely can perform the duties and demands of their sedentary job which requires sitting at a computer during the normal work day.    We have established the key difference between using a mobile device and computer periodically to check emails, or the news,  and functioning in an executive capacity, performing cognitive demanding, time sensitive work duties on a daily basis.   We advise our clients to be careful when completing insurer forms and to place their acitvities into the proper context.

A recent case by a Software engineer, disabled by cognitive and depression symptoms outlines the courts analysis on this issue.  In Chapin v. Prudential Ins. Co. of Am., Prudential alleged that Mr. Chapin was not disabled due in part to his doctor’s noting that he continued to exercise, ski and hike. The court noted “Being able to ski, hike and work out in no way transfers into or supports performance as a software engineer.”  Evidence supported that he was disabled from his cognitively demanding occupation despite his continued attempts to remain physically active.

Recently our firm has seen a significant upsurge in disability insurance companies including Hartford, Cigna, Aetna and Unum suddenly denying long term disability claims that have been paid for many years.  It is the burden of the disabled claimant to remain under medical care for their disabling condition and to periodically provide updates to the insurance company.  But often, after years of being on claim, and reaching the point of medical care that is palliative, many people reduce their doctor visits and learn to live with their condition with minor medical care.  A recent legal case reminds us that being on claim for a long time does not automatically mean your claim will not be challenged.  In  Skinder v. Fed. Express Long Term Disability Plan      Aetna found Ms. Skinder, a FedEx account executive totally disabled from working in any occupation in 2004 due to a back condition and paid her ever since. Suddenly, Aetna’s medical consultant performed a paper file review and decided that Mr. Skinder was no longer unable to work! The court examined the evidence and determined that the paper reviewer failed to thoroughly review all of the evidence and cherry-picked favorable medical records to support his biased view. Aetna was admonished for failing to advise Skinder of exactly what medical evidence they needed to continue to approve the claim after so many years.  The court reasoned, “a denial without new medical information to justify that decision should be treated with significant skepticism.” Aetna’s failure to “get to the truth of the matter undermines its claim that it used a deliberate, principled reasoning process.”

The lesson of this case is, to stay on top of your medical proofs, be sure that you keep up with periodic medical evaluations and provide your doctor with all of your symptoms and continuing medical problems so their records are complete.  Do not assume that since you have been on claim for a long time, the insurer will just put your file away and not question your disability in the future.

We at Bonny G. Rafel LLC monitor our clients’ cases to be sure that their medical proofs remain supportive of their disability. We are prepared to update the disability insurers periodically to advocate for our clients, as the Voice of The Disabled.

The Department of Labor Employee Benefit Security Administration just established by Federal Regulation an extension of certain timeframes under ERISA for group health plans, disability and other welfare plans during the COVID-19 National Emergency.  On March 13, 2020, the government declared a National Emergency Concerning COVID-19 in effect as of March 1, 2020.  As a result of the National Emergency, participants and beneficiaries covered by these plans “may encounter problems in.. filing or perfecting their benefit claims.. and the EBSA has taken steps to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established time frames.

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A, all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notice (the “Outbreak Period”)⁸ for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503-1(h),