New Jersey Disability Lawyer Blog

Oral argument set for May 20th at Third Circuit to Defend our Success for Disabled Bank Employee

May 19, 2015 | By Bonny Rafel

In Stevens v. Liberty Mutual together with esteemed attorney, Mark D. DeBofsky, Esq. of DeBofsky & Associates, P.C. we continue our battle against Liberty to reverse their denial of disability benefits to a disabled bank employee. We won our motion for summary judgment in January, and the Court ordered that Liberty pay Mr. Stevens his short term disability benefits, plus our counsel fees. Our claim for Long Term Disability Benefits was remanded to Liberty to review the evidence and made another benefits determination. Instead of proceeding with the remand, Liberty appealed the entire decision to the Third Circuit Court of Appeals.

Oral argument before the Court of Appeals on May 20, 2015 will center on whether the Court of Appeals has jurisdiction to hear Liberty’s appeal since the case is not concluded and the district court retains jurisdiction over the case.

Joseph Stevens suffers from ankylosing spondylitis, joint swelling, pain, fatigue, and cognitive issues. His case continues and will not be completed until we have a determination on the long term disability claim. Our success before the district court is available. Stevens v. Liberty. We will update the blog once the Third Circuit decides our case. Hopefully the result of tomorrow’s argument will change the law in the State of New Jersey. Contact us at Bonny G. Rafel, LLC, and let us fight for your disability.

ERISA Insurers Must Consider the Actual Job Duties of The Occupation In Determining Disability

May 18, 2015 | By Bonny Rafel

Often our clients are denied disability benefits on the basis of the insurers’ conclusion that they can work in a “sedentary occupation.” Insurers also base their analysis often on something known as the “national economy.” By ignoring the demands of our client’s individual job workplace and environment, the insurers misclassify a job and the duties required to perform it. This unfairness permeates many vocational reviews. Fortunately, the courts have addressed this situation in several cases.

Courts have consistently rejected the argument that the specific tasks listed by a claimant’s own employer are irrelevant to an occupational analysis, noting that “while the correct standard is the occupation in the general economy and not the specific job for a specific employer, the specific duties of the employee’s job, as described by the employer, are relevant.” See Burtch v. Hartford Life & Accident Ins. Co., 314 Fed. Appx. 750, at 4 (5th Cir. 2009). The law is clear, that the disability assessment must be based on the occupation that the insured was actually performing: the actual job duties and not a reference to how the position might be performed in the local economy. Polnicky v. Liberty Life Assur. Co. of Boston, 2014 U.S. Dist. LEXIS 164890 (N.D. CA Nov. 25, 2014).In the ERISA context, an administrator must consider a claimant’s inability to perform his specific job requirements of a position in light of the relevant symptoms and medical conditions. Miller v. Am. Airlines, Inc., 632 F.3d at 854-55 (3d Cir. 2011).

The 1st Circuit Court of Appeals recently addressed this situation in McDonough v. Aetna Life Ins. Co., 2015 U.S. App. LEXIS 6153 (1st Cir. Mass. Apr. 15, 2015). In deciding that McDonough was no longer disabled, none of Aetna’s medical consultants or vocational reviewers considered the demands of his high-pressured position in the national economy or how “his symptoms would affect his ability to meet those demands.”

Prudential’s Attempt to Toll The Deadline for ERISA Appeal Determination Rejected

May 15, 2015 | By Bonny Rafel

A recent ruling received by Bonny G. Rafel, LLC examined the recent habit of insurers tampering with the ERISA regulated mandates for deciding appeals of denied ERISA claims. We have received many letters from insurers advising us that they will not start the appeal review until we notify them that we will not be furnishing anymore medical records to them for consideration. We have always contested that unilateral roadblock to providing proof during the appeal that our clients remain disabled! The law is clear as to the obligation of the insurer to decide the appeal no later than 90 days after the submission of the appeal.

ERISA requires all employee benefits plans to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2). The Secretary of Labor has established regulations implementing the minimum requirements under ERISA for employee benefit plan procedures pertaining to beneficiary claims. These regulations include time limits by which an appeal of a denial of benefits must be decided. ERISA provides: “the plan administrator shall notify a claimant . . . of the plan’s benefit determination on review within a reasonable period of time, but not later than [45] days after receipt of the claimant’s request for review by the plan, unless the plan administrator determines that special circumstances (such as the need to hold a hearing, if the plan’s procedures provide for a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial [45]-day period. In no event shall such extension exceed a period of [45] days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review.” 29 C.F.R. § 2560.503-1(i)(1)(i) & (i)(3)(i). (emphasis added).

There is a regulation that provides a plan the right to “toll” the deadline if they request certain documentation missing from the submission. But that is not at all what happened here to our client.

Time Limitation In Welfare Benefit Plan Strictly Enforced

April 29, 2015 | By Bonny Rafel

In general, if a group insurance benefits plan pays benefits such as medical bills or disability benefits related to an event caused by another “third party”, such as an automobile accident, the plan has the right to recoup their payment from the claimant’s collection of money (“recovery”) from the “third party.” This often stymies the rights of the sick, ill and disabled because after reimbursing the bills paid by the plan, there may be little left for their pain and suffering and permanent injuries or loss of income.

The United States Supreme Court recognizes these rights and how “a health-plan administrator . . . may enforce such a reimbursement provision [in a benefits plan] by filing suit under § 502(a)(3) of ERISA.” US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1542 (2013).

An interesting case was decided recently in Indiana that brought to light a provision in a plan that I had not seen before. In Smith v. Walmart Stores, Inc. Assocs. Health & Welfare Plan, 2014 U.S. Dist. LEXIS 143716 (S.D. Ind. Oct. 9, 2014), the Plan sought reimbursement for the benefits Smith had received. Walmart’s plan had a clause that if notified that the claimant had become totally disabled, within the first year they would waive their right for reimbursement. Smith had twelve months after being notified of the reimbursement claim, to seek a waiver of the reimbursement due to “total disability.”

Deadline for Filing Lawsuit Applies Even If Insurer Agrees to Voluntarily Review An Appeal Filed Late

January 12, 2015 | By Bonny Rafel

The 11th Circuit recently decided an important case in the grey area of when does the deadline for filing litigation expire in a disability claim. In Witt v. MetLife,2014 U.S. App. LEXIS 22321 (11th Circuit 11/25/14), Mr. Witt was denied benefits in 1997 but did not contact MetLife to contest the denial until 12 years later. MetLife performed a courtesy review consisting of an administrative review of documentation and evidence. MetLife ultimately upheld its earlier denial of 12 years before and in its final letter to Witt, noted that he had exhausted his administrative remedies under the plan and had the right to bring civil action under Section 502a or ERISA.

MetLife’s letter did not assert a time bar or statute of limitations defense, and MetLife never noted in its letters or interaction with Witt’s attorney that it would ever exert a statute of limitations as a defense to litigation. When Witt filed a lawsuit several years later, MetLife successfully dismissed the claim and the 11th Circuit upheld the District Court’s decision. The court reasoned that it was not necessary for MetLife to expressly state in writing that it was preserving its right to exert the statute of limitations as a defense.

MetLife was entitled to perform a “courtesy review” of the claim without thereafter binding it to a re-initiation of a statute of limitations. The court was concerned that if they require an insurer to expressly state that its reconsideration of a stale claim preserved its right to a statutory timeliness defense, “that outcome would prevent plan participants with meritorious though untimely claims from receiving a review and possibly benefits. At the same time, it would aid only those individuals who fail to file claim in a timely fashion and then have their subsequent claims denied on the merits”.

Disability By Mental Illness Is Underappreciated By Insurance Industry

January 4, 2015 | By Bonny Rafel

In light of Robin Williams’ passing this year, mental health has returned to the headlines. As described in Arianna Huffington’s article “Robin Williams, Connectedness and the Need to End the Stigma Around Mental Illness,” Williams’ suicide was undoubtedly linked to his struggle with depression and anxiety. In fact, as Huffington reports, “90 percent of those who commit suicide suffer from a mental illness of some kind at the time of their death.” Of all mental disorders, depression is the most common: it inflicts one out of every twenty Americans. This public-health concern has received far too little attention and since the 1980s, government “spending for mental health, while increasing in raw terms, has still remained only 1 percent of the economy, even as overall health spending has risen from 10 percent of GDP to 17 percent by 2009.” This lack in spending is largely due to the stigma associated with mental-health issues.

Decades ago, disability insurers became aware that a high percentage of their policyholders became disabled by mental health conditions. Instead of lending a helping hand, they turned their back on this population, by incorporating coverage limits for disability caused or contributed to by a mental health condition. This sweeping limitation has been upheld on court challenges even involving the ADA. 42 U.S.C. § 12101 et seq; Fletcher v. Tufts University 2005 U.S. Dist. LEXIS 7237 (D. Mass. April 15, 2005)

Illnesses of the body that affect our physical health are far easier to objectify and more accepted within the disability landscape, tending to overshadow emotional health. Physical ailments are often related to or can lead to mental disorders. NBC reported that Robin Williams was battling symptoms of early Parkinson’s disease. The news source noted that in addition to the paralyzing affects on a patient’s body, Parkinson’s often leads to “depression and other disability.” This is well documented.

Insurer Must Consider the Occupation As It Was Performed When Disability Commences

December 31, 2014 | By Bonny Rafel

Oftentimes, when reviewing a disability claim, the insurer will not consider how the insured was actually required to perform his occupation. Instead, the insurer, relying on the clause in its policy “the Covered Person’s occupation is as it is normally performed in the local economy” will define “own occupation” solely be reference to how the position could be performed in the local (or national) economy. This issue arises when the particular job requires additional duties such as travel to solicit business as was the case with Polnicky v. Liberty Life Assur. Co. of Boston, 2014 U.S. Dist. LEXIS (N.D.Cal. Nov. 25, 2014). Mr. Polnicky was required to travel out of the office to attend open houses, conduct presentations, deliver loan documents, meet with realtors but Liberty’s vocational case manager determined that the occupation of Reverse Mortgage Consultant could be performed without traveling. The court disagreed with Liberty’s analysis because although it was permitted to consider his occupation as it is normally performed, it must also consider the material and substantial job duties that Mr. Polnicky was required to perform in his position for Wells Fargo.

Insurers cannot agree to provide coverage for an employee’s “own occupation” and then fail to consider the precise elements of the material and substantial duties of the occupation when evaluating a disability claim.

We at Bonny G. Rafel can help if your claim is denied because the insurer does not consider all of the duties of your occupation. Bonny G. Rafel, LLC We advocate for patients with disabling conditions and may be able to assist you in getting the benefits you deserve.

Cigna Denial Reversed! Hormone Therapy is Not Treatment That Limits Cancer Disability Claim Coverage

December 28, 2014 | By Bonny Rafel

Insurers are still permitted to include “pre-existing” limiting provisions in its disability policies. Cigna policies provide that ” The Insurance Company will not pay Disability Benefits for any period of Disability caused or contributed to by, or resulting from a Pre-Existing Condition.” A “Pre-existing Condition” means “any Injury or Sickness for which medical treatment, care or services including diagnostic measures, prescription drugs or medicines was recommended or received from a licensed medical practitioner within 3 months before the Employee’s most recent effective date of insurance.” Cigna has a pattern of discriminating against women suffering from breast cancer. See ABC news report from 2009. They again committed bad faith in 2014 when they applied the pre-existing provision to our client, Ann-Marie, denying her bona-fide claim for disability due to metastatic breast cancer.

In 2007 Ann-Marie was diagnosed with breast cancer during a routine mammogram. She underwent surgery and chemotherapy and returned to work. For the next six years, she saw her doctor for bi-annual cancer screening and received monthly adjuvant hormonal therapy purely as a preventative measure, because the breast cancer had a large number of estrogen receptors. The treatment reduces the body’s own production of estrogen. Ann Marie changed jobs last year and received new group long term disability benefit coverage with Cigna.

Our client had symptoms of metastatic cancer four months after she began her new employment and Cigna denied the claim, asserting that her treatment of Zoladex in the three months pre-employment qualified as “treatment for cancer”.

Disability Caused by Multiple Sclerosis

December 27, 2014 | By Bonny Rafel

Multiple Sclerosis is an autoimmune disease where the individual’s autoimmune system attacks healthy tissue in the brain and spinal cord, damaging nerve fibers. Typical symptoms include muscle spasms pain and tingling, numbness, cognitive impairment, vision problems and difficulties with balance and walking.

An estimated 400,000 Americans have this disease. The New York Times recently highlighted several New Yorkers living with Multiple Sclerosis and reported the toll the disease has on their lives in Multiple Sclerosis Takes Toll on Body and Soul.

The story of Denise Muller in particular peaked my interest because it is so similar to the experience of our clients struggling to have their disability claims paid. A significant percentage of the cases we handle at Bonny G. Rafel LLC involve autoimmune disorders, including Multiple Sclerosis.

Temporary Improvement Does Not Signify Ability To Work

August 1, 2014 | By Bonny Rafel

Recipients of long term disability benefits often experience improvement in their condition when they stop working. For example, a construction worker who experiences severe back pain may experience a health improvement when he is not engaged in intensive physical activity on a daily basis. When you have been approved for long term disability, the benefits administrator will continue to request updates from your physician regarding your treatment progress. If there is any indication of a health improvement while on long term disability, the administrator may request an independent medical evaluation (“IME”), a functional capacity evaluation (“FCE”), or even hire a third-party vendor to follow and video your public activities. Your medical improvement could potentially be used against you to terminate your benefits.

A recent case from Michigan provides a great window into how this process can work. In Gillespie v. Liberty Life Assurance Co. of Boston, the plaintiff was a former bank teller who underwent surgery to relieve persistent back and neck pain. The plaintiff briefly attempted to return to work following her surgery. However, this exacerbated her pain symptoms. After she stopped working, her condition improved, she was able to see her doctors less frequently, and to reduce the amount of pain medication she took. However, this improvement triggered a heightened review by Liberty. Her treating physicians reported to Liberty that she was still unable to work, but Liberty, unsatisfied, requested an independent medical examination (IME). The IME doctor reported that she could return to a sedentary position. Liberty terminated her benefits in a month after the IME. Despite appealing, her denial was upheld and she filed suit against Liberty.

Thankfully, the court found that Liberty’s decision was improper on a number of grounds. Liberty over-relied on their own doctors and consultants, as there is nothing in the record to indicate that Gillespie’s treating physicians’ opinions were considered. Most importantly, Liberty failed to address the fact that work exacerbated Gillespie’s pain symptoms and did not consider how a return to work again would not end in the same result.