New Jersey Disability Lawyer Blog

Living With Lower Back Pain

August 14, 2011 | By Bonny Rafel

Lower back pain should never be overlooked and can result in disability, especially if surgery fails to permit you to return to full function. We at Bonny G. Rafel review many claims associated with lower back conditions because if you cannot sit for many hours in a day performing your work related duties, you will eventually seek disability benefits.

In a recent article in the Herald Tribune, the author elaborates on the source of lower back pain and the severity of the disorder. The National Institute of Health has stated that lower back pain is their No. 2 neurological disorder, trailing behind headaches.

There are many factors that can increase your risk of developing lower back pain. These factors include being overweight, being in poor physical condition, your age, and even your job. If you have a job that requires constant lifting, bending, or putting any stress on your spine you are more likely to develop back pain. You can also develop this pain by working at a desk and not sitting properly with your back up and straight

Primer on Disability Insurance -Few Employees Are Covered

August 12, 2011 | By Bonny Rafel

Whether you have a desk job or perform manual labor, its vital to consider protecting your income with a disability insurance policy in case you become disabled from working. This is different from worker’s compensation coverage.

In a recent article published in the Times Free Press, the author examines the “public-private partnership” between insurers and the government. Tom Watjen, the CEO of Unum estimated that in roughly 70% of the households, if the breadwinner were to become injured and not able to work, he would not be able to meet all his household expenses.

That is a very scary idea to think that more than 2/3 of America’s workers are not protected. The author of the article notes that more people have fire insurance on their homes and auto insurance on their cars compared to disability insurance even though the odds of getting injured are greater than a house going on fire or a car crash.

Bias by Social Security Judges in Queens, NY

August 11, 2011 | By Bonny Rafel

Many of our clients file for Social Security Disability benefits in addition to filing for employer sponsored private or group disability benefits. It remains unclear why some of our clients receive immediate approval of their claims, while others have to struggle through the appeals process. We have Social Security attorneys to refer our clients to since we do not handle such cases.

Unfortunately, some SSA decisions seem to depend on what Administrative Law Judge is assigned to your case. In April 2011, a class action lawsuit was filed in Federal District Court alleging that five of the eight Queen’s County Administrative Law Judges are biased against the applicants appealing their adverse Social Security disability decision.

The suit seeks to bar the five judges from hearing any more claims, and to annul all their decisions since 2005 to deny any benefits. Together the five judges have rejected an average of 63% of the cases they have heard since September, a huge discrepancy from the 36% average held nationwide.

Primer on Disability Insurance

August 9, 2011 | By Bonny Rafel

Over the course of your working career, statistically, you may become disabled at some point before you retire. It is better to be prepared for this possibility rather than face financial ruin if your income evaporates.

Recently in the New York Daily News article, the Social Security Administration states that there is a 25% chance that a 20-something year-old will become disabled before he or she retires. This 25% needs to be able to pay for their household expenses while disabled.

Employees need to be aware if their employer is sponsoring disability coverage and whether it’s a long term or short term policy. Another important fact to find out is whether you or the employer pays the premium for this dictates whether the benefits are taxable to you. If the employee pays the premiums on a policy out of their pocket, the benefits will be tax free. If the employer pays the premiums, then the benefits are taxable.

Unum Bad Faith Verdict in California- Jury Awards $4 Million

August 9, 2011 | By Bonny Rafel

Unum Group Corp. and its subsidiary, Paul Revere has once again been held liable for bad faith refusal to continue to pay disability benefits to its insured.

Paul Revere issued the own occupation benefits to this dental hygienist in 1988 and promised to pay her disability benefits if she became unable to perform her specialty occupation. In 1996, Kieffer, a dental hygienist, developed several disabling medical conditions, including carpal tunnel syndrome and severe cervical pain, which by 1999 forced her to stop working entirely. After paying benefits for some time, in March 2008, Unum terminated the plaintiff’s benefits despite Kieffer’s treating physician’s opinion that she refrain from working as a dental hygienist.

The verdict included compensatory and punitive damages.

Bonny G. Rafel “helped me through this diffucult time”

August 8, 2011 | By Bonny Rafel

This year, we had the opportunity to help a trial attorney analyze his options and determine the best pathway for him to follow related to his employment and disability. He asked that we post this for our readers:

“I am a service professional who recently retained Ms. Rafel’s firm after I suffered from a mental health episode that required hospitalization. Ms. Rafel was the first attorney I spoke with when I returned home. She was extremely comforting and reassuring.

When my wife and I met with her for an initial consultation we realized she was the right attorney to advocate on my behalf. she was firm and compassionate and took the time to answer all of our questions, even when she was on vacation. Because of Ms. Rafel’s efforts and those that work for her, I was able to collect the backpay that was owed to me by my former employer, and I am now on the path to complete mental health.

Severe Migraines Can Lead to Disability

August 8, 2011 | By Bonny Rafel

Each of us knows at least one person who suffers from migraines which often can be managed with medication. For those of you who do not know what it is like to experience a migraine, it is difficult to describe. In a New York Times article titled Migraine Miseries Push Patients to Ways of Coping, the author states that migraines can cause such severe throbbing pain in the head and nausea that the victim may have to retreat to a dark room for a day or more.

Craig Partridge, the chief scientist for a high tech research company, describes a migraine as imagining “someone having driven a nail straight through your head.”

The Migraine Research Foundation reported that nearly a quarter of all households are affected by migraines and that migraines are three times more likely to occur with women compared to men. The Foundation also found that more than 10% of adults and children suffer from migraines.

Third Circuit Invalidates Arbitration Clause In Employment Contract

August 7, 2011 | By Bonny Rafel

It is common for employers to include mandatory arbitration clauses in employment contracts offered to new employees. Sitting in the room with your new boss, it is difficult to resist signing the contract as presented. How can one reasonably “make waves” even before being hired? Of course employees feel they have no choice but to sign the contract as a take it or leave it.

This past October, the U.S. Court of Appeals for the Third Circuit decided a case that will revurberate for a long time in many types of cases. The district court had held that a an employment contract containing a mandatory arbitration clause was valid, and simply severed the predispute employment arbitration agreement. However, the Third Circuit held that the employer-friendly provisions were so strong as to invalidate the entire agreement.

In this case, an employee was presented with a standard employment contract, which contained a “grievance and arbitration procedure” stating that it constituted the “sole final, binding and exclusive remedy for any and all employment-related disputes.”

New Jersey Disability Claimants Will Benefit From New Law

August 4, 2011 | By Bonny Rafel

New Jersey joins Pennsylvania as a state in the Third Circuit and benefits when a PA case is successful before the Third Circuit. A case in point is Kosiba v. Merck & Co. which found that Unum acted arbitrarily and capriciously in denying benefits to a claimant suffering from fibromyalgia and sarcoidosis. Kosiba v. Merck & Co., 2011 U.S. Dist. LEXIS 23247 (D.N.J. Mar. 7, 2011).

Kosiba addressed the Third Circuit’s stance on issues such as scope of review, structural conflict, procedural conflict, selective consideration of medical history, financial conflict of interest, and remedy.

Following our Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, the Court gave significant weight to Defendants’ “reversal of position”, “failure to address one or more of the diagnosis(es) and Defendants’ failure to consider the claimant’s objective functional capabilities.

Prudential’s Selective Review of Disabled Claimant’s Medical Records held Arbitrary and Capricious

March 31, 2011 | By Bonny Rafel

In a recent case in the Third Circuit, the District Court determined that Prudential’s decision to accept the opinions and conclusions of its experts without explanation was arbitrary and capricious. Ricca v. Prudential Ins. Co. of America, 2010 U.S. Dist. LEXIS 106148 (E.D.Pa. September 30, 2010) The Eastern District of Pa Court found fault with Prudential’s decision to rely entirely on reviews performed by clinicians who had not examined the claimant and selectively consider and credit medical opinions without articulating its thought processes for doing so.

This is particularly applicable where, as here, the evidence it claims to rely on favors its employer and consists of non-treating and nonexamining experts and there is substantial evidence to the contrary. See also Elms v. Prudential Ins. Co. of Am., No. 06-5127, 2008 U.S. Dist. LEXIS 76917, at *18-20 (E.D. Pa. Oct. 2, 2008) (rejecting as a self-serving, selective use of physicians’ reports, Prudential’s almost exclusive reliance on file reviews performed by non-examining physicians as weighed against evidence from doctors who had treated or examined and had concluded the patient was impaired by significant disabilities).

What was interesting about this case is that the District Court focused on Prudential’s failure to discuss, specifically, in its three declination letters, why or how the medical data failed to support an injury or sickness within the Policy’s definition of disability. They noted that the disparity between the voluminous administrative record and the conclusory evaluations of plaintiff’s condition by Prudential’s health experts, made it impossible to review Prudential’s decision because it is unclear whether the evidence of her medical difficulties was credited in whole or in part or not at all — or instead, was simply not considered. Based on this opinion, it appears as if courts are looking for insurance companies to better explain their rationales, and how they weigh the evidence, and not just fall back on “medical records fail to support a disability” argument.