Thank you for visiting my blog. I’m a Milwaukee lawyer who protects the rights of employees to recover their long-term disability benefits. I have created this web log to provide useful information regarding the denial of long-term disability benefits.
If you have any questions you would like me to address in this blog, please don’t hesitate to contact me.
Last month, The Hartford Life and Accident Insurance Group was found by the court to be arbitrary and capricious in its failure to conduct a proper vocational assessment of the claimant's ability to perform all occupations. Most long-term disability policies pay benefits for the first two years of the claimant's disability if the claimant is unable to perform her own job. After the first two years, the claimant must show, more broadly, an inability to work in any occupation for which she has the experience, training, or education.
In the present case, the claimant was approved and received benefits for several years "based on the conditions of Chronic Low Back Pain, Lumbar Facet Arthritis and spondylolisthesis." However, after she notified Hartford that she had taken in a foster child, it undertook a special investigation and conducted surveillance. She was videotaped on two different occasions at a fast food restaurant. On the first day, she was observed driving and getting in and out of the car. On the second day, she sat, without visible discomfort, for twenty-eight minutes at a table inside the restaurant. A Hartford representative showed the video to the claimant in her home. The claimant said the video "represented her normal/average level of functionality." The claimant stated her capabilities on her "best day" as including the ability to walk and stand for twenty minutes, to sit for thirty minutes, and to lift up to twenty pounds. Her statement claimed that she was having an "average" day and that she had two "best" days per week and one to two "bad" days per week.
Hartford sent the claimant to an independent medical examination (IME) which resulted in a report noting restrictions on the claimant's ability to work, including lifting 20 pounds, limitations on her ability to move, and a need to adjust positions periodically throughout the day. Hartford viewed these findings as allowing for full-time sedentary work as long as the claimant would have the ability to change positions and the job would not require prolonged standing or walking. This analysis was reported to the claimant's personal physician who refused to take a position on his patient's capacity to perform work and recommended a functional capacity evaluation, emphasizing that neither his own observations, nor those of the independent medical examiner, were "sufficient to make the needed determination!"
Despite these repeated recommendations from the claimant's doctor, Hartford refused to conduct a functional capacity evaluation. Instead, Hartford used the Occupational Access System (OASYS), a computerized job matching system based on the Dictionary of Occupational Titles by plugging in the claimant's education, experience, and the assumption that the claimant could work in sedentary jobs. The program returned four jobs that that the claimant supposedly could perform.
The claimant hired her own vocational expert who determined that three of the four jobs Hartford found appropriate simply did not exist in the claimant's home state. The vocational expert also stated that all of these jobs would have a probationary period where no absences would be tolerated, followed by allowing at most one absence per month. Rather than identifying where the jobs exist, Hartford merely repeated the statement that the jobs were "prevalent in the national economy." The court held that, "Hartford should have responded to [the vocational expert's] report with the actual numbers and locations of these jobs." The court found this failure "particularly troubling" in view of other factors relevant to these three jobs, such as a sit-stand option and ability to miss days-- both of which needed to accommodate the claimant.
The court also found it significant that none of Hartford's reviewing experts specifically addressed the effect of the claimant's bad days. "Two consecutive 'normal' days are not particularly instructive on the claimant's ability to work on her bad days", said the court.
Finally, Hartford accepted the claimant's statements only when they confirmed the video surveillance and ignored her other statements. While the corroborating video surveillance was important, it was insufficient on its own to terminate benefits. It showed less than one hour of the claimant's life. Since the Plan failed to show the availability of three of the jobs and had not considered whether the claimant was sufficiently well to work the fourth job on a daily basis, the decision to terminate benefits was arbitrary and capricious, held the court. Accordingly, Hartford was ordered to reinstate long-term disability benefits retroactively to the date they were terminated.
This case emphasizes how crucial a strong vocational analysis is for the claimant to win her long-term disability benefits case.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@Employee-Advocates.com
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Before you can launch a successful appeal against your long-term disability benefits carrier, you have to "get the goods." What I'm referring to are the pieces of information that your carrier has been using against you behind the scenes.
The U.S. Department of Labor ("DOL") has certain regulations governing the submission and determination of claims under employee welfare benefits plans. These regulations specify that a claims administrator is required to have certain procedures to comply with the requirement that it has established a "reasonable claims procedure". A reasonable claims procedure is defined in DOL Regulations as procedures to "ensure and verify that benefit claim determinations are made in accordance with governing plan documents and that plan provisions have been applied consistently with respect to similarly situated claimants."
The Regulations further contemplate that a claimant is to have access to these claims procedures. Under a related Regulation [29 C.F.R. Section 2560-503-1(j)], a claimant is entitled to reasonable access to all "relevant documents." "Relevant documents" are defined as those maintained by the claims fiduciary. Thus, under the regulatory scheme, a claimant is entitled to disclosure of all "relevant documents," including those that ensure that the terms of the plan are applied consistently.
Moreover, the DOL's intent in enacting these Regulations, removes any doubt concerning the public assess to a claims administrator's claim procedures. In adopting these Regulations, the DOL stated that the "claimant should receive any information demonstrating that, in making the adverse benefit determination, the plan complied with its own processes for ensuring appropriate decision-making and consistency ." This allows the claimant copies of any "internal rule, guideline, protocol, or other similar criterion relied upon in making the adverse determination." This includes copies of all Benefit Claims Manuals and internal claim review guidelines.
Based on the foregoing, it is absolutely essential that your attorney ask your carrier to provide copies of all claims manuals, claims guidelines, training guidelines, and/or any other documents which demonstrate the carrier's compliance with 29 C.F.R. Section 2560.503-1(b)(5).
In addition, you or your attorney should ask your long-term disability benefits carrier to provide proof that the applicable insurance policy was submitted to and was approved by the state insurance commissioner and U.S. Department of Labor.
Lastly, require your carrier to identify the Plan Administrator and its address; or, provide documents that will identify the Plan Administrator for the purpose of serving suit or the filing of a lawsuit under state statutes.
Only after you and your attorney have received the above requested materials, will you be in a proper position to submit additional documents for the carrier to consider, as well as written comments necessary to win your claim for long-term disability benefits.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@Employee-Advocates.com
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Pain is a subjective symptom and there is virtually no way to objectively or clinically confirm the complaints of pain by a person claiming disability. This makes it very difficult for an Administrative Law Judge and the Social Security Administration to determine who is disabled when considering limitations restrictions based on complaints of pain.
The Administration's policy on pain, and other symptoms, requires a finding of credibility of an individual's statements, in connection with the records as a whole. Pain can evidence a more severe impairment than the objective medical evidence alone and the individual's subjective reports must be considered in determining disability. The ALJ cannot disregard the individual's reports of pain simply because they are not substantiated by objective medical evidence. This rule is consistent with the courts decisions regarding long-term disability cases as well.
When an individual complains of limitations and restrictions based on pain, the ALJ is bound to evaluate and investigate (if necessary) the complaints and consider them in association with the record as a whole. This analysis is two fold. First, the ALJ must determine if there is an underlying condition (physical or mental) that can be established with medically acceptable techniques that could reasonably be expected to cause the symptoms.
If there is no objectively determinable impairment or the symptoms could not reasonably be caused by the impairment, the symptoms cannot be found to prevent the individual from working. If however, there is an impairment and the symptoms are reasonable based on that impairment, the ALJ must them consider the severity, duration and effect of the symptoms in order to determine whether the symptoms limit the ability to work.
Generally speaking, the severity and duration of the symptoms cannot be confirmed with any clinical test and therefore the ALJ must make a finding on the credibility of the individual. The ALJ should consider not only the subjective statements from the claimant, but also statements from family members, observations by medical practitioners, vocational examiners, and other SSA employees. The combination of these observations, including the observations of the ALJ, should be weighed together to determine if the individual is credible and the reports some consistency in type of complaint or limitation.
The above observations generally include testimony regarding the claimant's daily activities; frequency, duration and location of pain; precipitating or aggravating factors; dosage, effectiveness and side effects of medication; any other attempts to alleviate the symptoms; and any other factors resulting in functional limitations and restrictions.
Finally, the ALJ cannot discredit the complainant's subjective reports simply because of a lack of continuous medical treatment. If treatment is interrupted or the complainant is not following medical instructions, the ALJ must make efforts to determine the reason for the lapse in treatment or cessation of medication, etc. For instance, if a person is unable to afford treatment or stops medication because the side effects are worse than the actual condition, those factors must be taken into consideration.
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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A federal court in Kansas held that UNUM was arbitrary and capricious to deny benefits based on a policy exclusion that the claimant's ("Kathy") fibromyalgia was a self-reported condition. Last week the court agreed to vacate the record of its decision against UNUM that it had improperly discontinued Kathy's long-term disability benefits in violation of the Employee Retirement Income Security Act (ERISA). The record of the decision was vacated because UNUM made it a condition of settling with Kathy in lieu of continuing its appeal.
Even though the decision that UNUM acted arbitrarily in this ERISA case was based, as it must be, on specific evidence in the record, mere factual differences do not necessarily mean that the decision will not be useful to someone in the future. "Because UNUM presumably has many disability policies outstanding with precisely the same provision concerning self-reported limitations, it may be important to UNUM that others not become aware of how that limitation has been construed in this case", the court reasoned.
Despite public policy reasons against erasing the record of UNUM's ERISA violation, the court reluctantly concluded that this case involved exceptional circumstances. Equitable principles justified vacatur after considering the length of time that Kathy had been attempting to collect her disability benefits, her age, her medical condition, and the additional delay that a continued appeal would cause. In a parting shot, the court stated that, [w]hether the vacatur gives UNUM what it really desires-to have the court's opinion disappear entirely-remains to be seen, depending upon whether, or to what extent the opinion is removed from the Westlaw database."
The good news is that the court removed only the record of the decision which did not interfere with Kathy keeping her settlement.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@Employee-Advocates.com
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While the news is filled with information about bailouts for banks and major corporations and stimulus money to help restart the economy, news about stimulus payments to the disabled are buried.
On February 17, 2009, President Obama signed into law the "American Recovery and Reinvestment Act of 2009" which provides significant funds to the SSA, and SSI and SSDI beneficiaries.
By June 20, 2009, all SSI and SSDI beneficiaries receiving disability benefits for November 2008 through January 2009 should receive a one-time stimulus payment of $250 as part of the Act. It appears that an individual who in the future is found to be retroactively entitled to benefits for those months will be eligible for the $250 stimulus payment until December 31, 2010 which is when payments are scheduled to end.
These payments will be received by beneficiaries in the same manner that the monthly benefit is paid (i.e., either by direct deposit or check). If an individual is eligible for multiple types of federal benefits, such as Veterans benefits and SSI, the individual will receive only one payment. These payments will not be considered gross income for tax purposes and will not be considered "income" for SSI recipients.
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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