Thank you for visiting my blog. I practice long-term disability law throughout the United States. I have created this web log to give useful information about the issues my clients face in the process of recovering their long-term disability benefits.
If you have any questions you would like me to address in this blog, or about your case in particular, please don't hesitate to contact me.
Long-term disability ("LTD") claimants who are forced to bring suit against their insurer after
negotiations fail are understandably concerned about the attorney fees and expenses they would incur. The good news is that a claimant's attorney fees and expenses are paid by the in-surance company if and when the claimant prevails. In determining whether to award attorney fees under the Employee Retirement Income Security Act of 1974 (ERISA), a court considers the following:
- the degree of the carrier's culpability or bad faith;
- degree of ability of it to satisfy an award of attorney fees;
- whether award against the carrier would deter other persons acting under similar circumstances;
- amount of benefit conferred on the claimant or other participants; and
- relative merits of parties' position.
Court's routinely award attorney fees to the prevailing claimant. At the outset of the case, claimants are usually offered the option to retain a disability benefits attorney on a contin-gent fee, hourly, or flat fee basis, depending on the needs of the client. The court's fee to file suit is $350 and the process server will charge about $25 to serve the suit on the insurance carrier. These expenses are also recoverable from the carrier pursuant to ERISA.
If I lose do I have to pay the insurance company's legal fees?
The same factors outlined above apply to a claimant's duty to pay the prevailing carrier's legal fees. An order for fees against the claimant is extremely rare due to the fact that LTD clai-mants are, by definition, unable to work and unable to pay such fees. More importantly, as long as the LTD claim had arguable merit, i.e. evidence to support the disability claim, the carrier would not be eligible to recover its fees from the claimant. As the courts have held, allowing a counterclaim for fees against the disability claimant would compromise the efficacy of ERISA. If such an award were allowed in an ERISA case, an LTD claimant would be compelled to weigh the benefits of pursuing ERISA claims against the burdens of paying opposing counsel's fees. Requiring an LTD claimant to engage in such a calculation would create a clear disincentive to the assertion of ERISA claims, a result at odds with the statute's purpose and goals. See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 496-98, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (holding that an important purpose of ERISA is to protect employee [disability] benefits).
The purpose of ERISA is to protect long-term disability benefit entitlement. To fulfill this purpose, advocates for long-term disability benefits claimants must be willing to support their client by investing the time and money necessary to pursue the claim aggressively all the way to fruition.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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While there is no cost of living adjustment for Social Security beneficiaries for 2010, other changes will be effective as of the new year.
Particularly important for any SSDI or SSI claimant are the earnings thresholds. In 2010, an individual must earn $1,120 to be credited a quarter of coverage for SSDI and/or SSI eligibility purposes.
Substantial gainful activity ("SGA") thresholds will also increase for 2010. As discussed previously, substantial gainful activity is the gross income threshold to determine if a person's work is substantial and therefore that person is not disabled. In 2010, a non-blind individual may earn $1,000 a month (gross income) and still be eligible for disability benefits. If the claimant is blind, the SGA threshold is $1,640 per month.
An individual pursuing disability benefits or already receiving disability benefits who attempts work, or enrolls in the Trial Work Period ("TWP") may earn up to $720 per month, a $20 a month increase.
SSI benefit amounts for an individual and couple will remain the same because there is no cost of living adjustment this year.
Any individual pursuing disability benefits should be aware of the SGA threshold limitations. If the individual works, even part-time, he should monitor his gross monthly income and earn no more than the SGA allowable income if he wishes to remain eligible for benefits.
Attorney Allen is an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding social security disability benefits, please feel free to contact her at: JAllen@Employee-Advocates.com
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In another victory for a disabled individual today, the Seventh Circuit Court of Appeals vacated a lower court's decision. In this case, the claimant, "Kirsten", sued MetLife in federal court, challenging the denial of her disability benefits under the Employee Retirement Income security Act of 1974 (ERISA). The Appeals Court refused to "rubber-stamp" MetLife's denial of Kristen's long term disability benefits. The Court found it troubling that Dr. Marion's report-the sole basis for MetLife's determination-concluded, erroneously, that Kirsten did not submit objective evidence of functional limitations.
As is too often the defect in MetLife's claim decisions, Dr. Marion did not acknowledge, much less analyze, the significant evidence of functional limitations that Kirsten offered. Dr. Marion ignored Dr. Hardin's conclusion that Kirsten was incapable of typing and sitting. Accordingly, the Court held that "Dr. Marion's statement that Hardin's evaluation 'does not document, nor is it reasonable to conclude from it, that the claimant has functional limitations that precluded sedentary work activity requiring sitting, using a computer and telephone' is simply not true." In reality, Dr. Hardin explicitly said that Kirsten could not sit or type sufficiently to return to her former job as a nurse consultant.
In the Court's view, these omissions made Kirsten's case like two other recent decisions in which the plan administrator's determination was found to be arbitrary and capricious. In the first similar case, the Court held that it was arbitrary and capricious for a plan administrator to "ignore" and "dismiss out of hand" evidence in a functional-capacity evaluation that a claimant was not capable of sitting, concluding this was an "absence of reasoning in the record ." And in the second similar case, the Court found it arbitrary and capricious for a plan administrator "simply [to] ignore" a treating physician's medical conclusion and to "dismiss [other] conclusions without explanation."
The Court held that this precedent demonstrated insistence that procedural reasonableness is the cornerstone of the arbitrary-and-capricious inquiry. As such, the arbitrary-and-capricious review turns on whether the plan administrator communicated "specific reasons" for its determination to the claimant, whether the plan administrator afforded the claimant "an opportunity for full and fair review," and "whether there is an absence of reasoning to support the plan administrator's determination."
By ignoring Kirsten's key medical evidence, the Court reasoned, MetLife could hardly be said to have afforded her an opportunity for full and fair review, and its failure to address that evidence in its determination surely constitutes an absence of reasoning.
This case represents another sign that the Courts are willing to hold disability carriers to the proper standard of diligence in evaluating the claimant's medical evidence of disability.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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Applicants for Social Security are frequently asked if they can perform any job in the economy. The most common answer is "I don't know"; another common answer "Maybe". Unfortunately these answers, while honest, can be detrimental to a claim for benefits.
Eligibility standards for SSDI benefits require that the claimant be precluded from working in any job available in the national economy. Many times, claimants who believe they may be able to work with the right assistance are benefited by contacting the Department of Vocational Rehabilitation ("DVR") (or any other vocational training/assistance program or specialist). The DVR is a state sponsored program designed to help disabled persons develop an employment plan and find work. While not everyone is eligible for the program and not everyone finds a job, contacting the DVR can be beneficial in a number of ways.
First of all, if the DVR is able to find work for the claimant, then that's a best case, win/win scenario. Second, if an individual is denied services by the DVR based on the severity of their condition, that information can be used at hearing to support a finding of disability by an Administrative Law Judge. Third, if the claimant attempts jobs but is unsuccessful at maintaining those jobs, that information can also be used at hearing.
Utilizing the services of the DVR or any other vocational program or counselor is not required for an award of benefits, but can be valuable information. Any claimant who contacts the DVR however needs to identify him or herself as an individual who has applied for SSDI benefits and is awaiting a decision. As always, it is important to keep your attorney or representative and Social Security up to date on your work related activities.
Attorney Allen is an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding social security disability benefits, please feel free to contact her at: JAllen@Employee-Advocates.com
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Most long-term disability benefit policies provide that the insurance carrier may recover overpayments made to the claimant for disability benefits. Overpayments occur most frequently when the claimant receives SSDI back benefits that cover the time period during which the LTD carrier paid long-term disability benefits in full rather than reducing for the SSDI amount. As a result, the LTD carrier may seek to recover an offset for the amount of SSDI benefits.
The Supreme Court has held consistently that under the Employee Retirement Income Security Act of 1974 (ERISA), a plan fiduciary may obtain only equitable relief against an LTD claimant to enforce the terms of an ERISA plan. To state a claim the LTD carrier must establish that it has an equitable lien with respect to the funds that it seeks. As a rule, an LTD plan's demand to be reimbursed for benefits wrongly paid out is not an equitable claim because the carrier wants money, not the return of the checks it issued.
When a claimant who was denied LTD benefits sues under ERISA, the insurance carrier defendant normally files a counterclaim against the claimant for any overpayment of benefits. Such a counterclaim may be brought only under federal common law and for breach of contract under state law. However, the United States Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, and Ninth Circuits have each held that it is inappropriate to create a federal common law remedy of unjust enrichment in actions brought under ERISA. It may be successfully argued in these Circuits that the LTD carrier cannot bring a counterclaim for recovery of the benefit overpayment and have the counterclaim dismissed. This places the LTD claimant in a much better position to recover the full amount of denied LTD benefits.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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