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.
In this case, decided just before the holiday weekend, the claimant, "Gloria," was employed by a wireless communications company as a customer services clerk. In that capacity, Gloria' daily responsibilities consisted primarily of speaking with customers on the telephone and typing data into a computer. Gloria's employer provided a group disability policy through Metropolitan Life Insurance Company (MetLife).
Gloria suffers from "trigger finger" disorder, tendinitis, and carpel tunnel syndrome. These conditions made it very difficult for Gloria to use her hands without experiencing severe pain for work activities such as typing on a computer. After Gloria could no longer work due to pain in her hands and wrists, MetLife awarded benefits for two years before cutting them off.
After her internal appeals were denied by MetLife, she brought suit under the Employee Retirement Income Security Act of 1974 ("ERISA"). The Court agreed with Gloria that MetLife's decision was not supported by substantial evidence, noting that Gloria had had nine medical procedures to treat her conditions. Despite these numerous procedures, the described hand and wrist impairments continued to cause Gloria pain and had become a significant impediment to Gloria's ability to type on a computer. The Court found it significant that MetLife itself had noted Gloria "is unable to turn her head and use her hands for extend[ed] periods of time due to the pain."
The Court found that in the face of "overwhelming" evidence concerning Gloria's continued pain and difficulty in attempting to use her hands and wrists, MetLife relied on a "scintilla of evidence" that did not directly address these problems. "MetLife appears to have disregarded, without justification, Gloria' treating physicians' conclusions regarding her hand and wrist pain and its effect on her ability to type throughout the day," reasoned the Court. Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician.
In regard to the request by Gloria's attorneys for their contingent fees and costs, the Court considered the remedial purposes of ERISA to protect employee rights and secure effective access to federal courts. Gloria was awarded her attorneys fees and costs on the basis that there is a presumption in favor of an award of costs to the prevailing party.
This decision came from a Court that decides LTD benefit denials for claimant's living in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. The Court's well-balanced analysis gives us optimism for other LTD claimants we represent in these states.
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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No matter the economic climate, making ends meet is always difficult when an individual loses a job or stops working, but for individuals with disabilities it can be even more of a struggle. With the costs of medication, doctor visits and health insurance, many disabled individuals find themselves sinking into a world of debt while waiting for Social Security disability.
For those with spouses, family support or other resources to rely on, some individuals are able to play the waiting game. Letters to creditors and mortgage companies explaining the disability and 
stating that a Social Security disability application is pending can be useful in the beginning, but some individuals find themselves facing foreclosure and contemplating bankruptcy.
The critical question every individual asks is whether their Social Security can be garnished as part of a creditor's claim or in bankruptcy. The short answer is that Social Security payments are protected from creditor's liens and bankruptcy proceedings, with three exceptions: unpaid federal taxes, defaulted student loans and child support. The matter becomes more complicated however when Social Security funds are co-mingled with other funds sources of income. The best way to prevent this is not to co-mingle Social Security funds with any other income, whether it is wages, income from rentals, or income from a spouse's work. Whether you do this by creating a new account for the Social Security checks or set up a new account for all other monies, it is best not to allow Social Security payments to mix with other income. This way, an individual filing for bankruptcy can clearly delineate Social Security payments from all other sources.
Anyone considering filing for bankruptcy should contact a bankruptcy attorney.
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 a decision this month from the United States Court of Appeals, Fifth Circuit, the Hartford was
ordered to pay a disabled lawyer ("Brian") his benefits and attorney fees. In this dispute over long-term disability benefits, the Fifth Circuit, which rules on long-term disability cases decided in Texas, Louisiana and Mississippi, held that the Hartford abused its discretion in denying physical disability benefits to Brian and ordered the Hartford to also pay his attorney's fees.
Brian has been suffering from degenerative back disease and mental disorders for over ten years. These problems interfere with his ability to function as an attorney and, in 2003, he applied for disability benefits through his firm's long-term disability plan. His initial claim was granted with respect to his mental disability, but denied with respect to his physical disability.
In its final administrative review, the Hartford relied on the opinions of three independent experts, each of whom concluded that Brian had not supported his physical limitations and accounts of pain with objective medical evidence, as required under the policy. On the basis of these opinions, the Hartford rejected Brian's treating physicians' conclusions that Brian was disabled as well as the results of a Functional Capacity Evaluation that concluded Brian was not fit for sedentary work. In making its determination, the Hartford also noted that Brian remained listed as an attorney on his firm website, indicating that he was capable of performing the duties of an attorney.
After reviewing the administrative record, the court, in an extensive and thoughtful opinion, concluded that the Hartford abused its discretion in denying Brian physical disability benefits. In so concluding, the court noted that Brian's alleged functional limitations and subjective accounts of pain had been repeatedly corroborated by objective medical evidence. The court found this evidence "overwhelming," and reasoned that both the Hartford and its independent physicians concluded otherwise only by crediting arbitrary or inconclusive evidence. The court also observed that the Hartford was operating under a conflict of interest that could have had some effect on its decision, and that Brian had qualified for disability benefits from the Social Security Administration, a point that the Hartford had failed to address. Because the Hartford "deliberately ignored overwhelming objective medical evidence" supporting Brian's claims, the court also saw fit to award Brian attorney's fees.
There is no treating physician preference in the context of long-term disability claims, but neither may an administrator arbitrarily refuse to credit reliable evidence. "It surely should not effectively ignore it. Nor may an administrator rely on an expert opinion without considering its basis or whether, as was the case here, it is in plain conflict with the medical records", the court reasoned. In conclusion, the court properly held that the Hartford "deliberately ignored" Brian's medical evidence in order to support its "preferential and predetermined conclusions ."
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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As more and more claimants file for disability benefits, the local Offices of Disability Adjudication and Review (ODAR) are beginning to experience significant backlog and delay in scheduling hearings.
In Milwaukee, the wait for a hearing has reached an average of 12 months from the date of the application for hearing. In an attempt to reduce this backlog and schedule hearings in a timelier manner, the Social Security Administration has been hiring and training new Administrative Law Judges and expanding the number of Staff Attorneys to assist in decision-making.
Additionally, cases from the most overwhelmed offices are being transferred to other regional offices
that can assist in the adjudication of applications. Milwaukee area cases are often sent to offices in Santa Barbara, California and Phoenix, Arizona, among others. When cases are transferred to distant offices, hearings are held via video teleconferencing. The claimant and his representative appear in person at a Wisconsin location and participate in the hearing by video and are able to see and interact with the Administrative Law Judge on a large screen television. Vocational experts may also appear via video conferencing.
Any claimant who does not want to appear at their hearing by video conferencing and would rather appear in person must state their request to Social Security as early as possible. The claimant must state the reason for his objection and identify a time and place he desires his hearing to be held. Note that if a claimant objects to a video conference hearing, it may delay his hearing because the case will have to be transferred back to a local office that is overworked and backlogged.
Video conferences are most common when the case is transferred to an out-of-state ODAR office. As soon as a claimant becomes aware of this transfer, that is the time to notify the Social Security of an objection to video conference hearing. This request should be made in writing and delivered to the ODAR office in possession of the file. Claimants who make this request in the proper manner have an absolute right to have the hearing held in person rather than by video.
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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Long-term disability ("LTD") benefits claimant, "Barbara", recently received good news from the United States Court of Appeals. The Ninth Circuit, which rules on cases decided in Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, and Washington, held that Barbara's LTD carrier had abused its discretion in denying her benefits.
Barbara had undergone multiple hip revision surgeries following hip replacement surgery. After Barbara's most recent total hip revision surgery, she developed postoperative complications, including sciatic pain and numbness and weakness in her right leg and foot. When Barbara had to stop working, the Social Security Administration ("SSA") determined that Barbara was permanently disabled and awarded her benefits.
Barbara applied for long term disability benefits with HM Life, which was both the insurer and the administrator of Barbara's plan. HM Life's six reviewing physicians all concluded that Barbara was not disabled. HM Life denied Barbara's claim concluding that the objective medical evidence did not support her disability claim.
Conflict of interest results in heightened scrutiny of carrier's decision.
In long-term disability cases, abuse of discretion review is "informed by the nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record." Thus, where, as here, a structural conflict existed because the insurance company administrator both funded and administered the Plan, "the court must consider numerous case-specific factors, including the administrator's conflict of interest, and reach a decision as to whether discretion has been abused by weighing and balancing those factors together." The record in this case, made it clear that HM Life abused its discretion in denying Barbara benefits, based on the five following factors.
Quantity and quality of the medical evidence supported disability.
First, the quantity and quality of the medical evidence supported Barbara's disability claim. HM Life rejected Barbara's claim stating there was no objective medical evidence supporting her disability, but the facts show otherwise. An EMG test confirmed that Barbara had right sciatic neuropathy after her last hip revision surgery. Two MRI exams revealed excess metal artifacts in Barbara's pelvis region. Two x-ray exams revealed bone thinning in Barbara's right foot. Barbara's records showed consistent use of strong pain medication. A Functional Capacity Evaluation ("FCE") submitted by Barbara's treating physician reported that Barbara could not sit, stand or walk for more than 1-hour a day. Both of Barbara's treating physicians concluded that she was permanently disabled, which was consistent with the evaluations of Barbara's treating neurologist and two orthopedists. HM Life failed to credit this reliable medical evidence.
SSA determination was relevant evidence of disability.
Second, HM Life failed to distinguish or even acknowledge the SSA's contrary disability determination despite having knowledge of it. While HM Life was "not bound by the SSA's determination, [its] complete disregard for a contrary conclusion without so much as an explanation raises questions about whether [its] adverse benefits determination was the product of a principled and deliberative reasoning process", the court said. "In fact, not distinguishing the SSA's contrary conclusion may indicate [HM Life's] failure to consider relevant evidence."
No in-person exam indicated lack of thoroughness.
Third, HM Life failed to conduct an in-person medical evaluation of Barbara. Although the Plan did not require an in-person exam, HM Life's choice to rely on a pure paper review, "raises questions about the thoroughness and accuracy of the benefits determination ... as it is not clear the Plan presented [the six reviewing doctors] with all of the relevant evidence." Not one of HM Life's six reviewing physicians "mentioned the SSA's contrary conclusion, not even to discount or disagree with it, which indicates that they may not have even been aware of it."
Deficiencies of Barbara's proof were not disclosed by HM Life.
Fourth, HM Life failed to adequately investigate Barbara's claim and request necessary evidence. HM Life did not procure the SSA file or ask Barbara to do so. Nor did HM Life request any specific evidence that it, or its reviewing physicians, concluded was necessary to prove up Barbara's claim. For example, one reviewing physician dismissed Barbara's osteoarthritis diagnosis because no "bone density study" had been performed. Another dismissed Barbara's FCE because it relied on unspecified exams, x-rays, and evaluations. HM Life's medical director similarly discredited the FCE because it purportedly lacked an actual objective evaluation. Yet, HM Life failed to communicate these specific deficiencies to Barbara or ask her to supplement the record.
Barbara was denied opportunity to respond to new reason given for claim denial.
Finally, HM Life violated ERISA's procedures by "tack[ing] on a new reason for denying benefits in [its] final decision, thereby precluding [Barbara] from responding to that rationale for denial at the administrative level." HM Life's reviewing physicians conceded that Barbara was in fact disabled during the time she was hospitalized in response to two mental breakdowns. In its final decision, HM Life added for the first time that Barbara's hospitalizations did not entitle her to long term benefits because she was not deemed disabled at the onset of her disability effective date and because mental health coverage ends at 24 months. HM Life's last-minute addition of a new reason for denial suggested not only a conflict of interest, but can also be "categorized as a procedural irregularity where, as here, [Barbara was] foreclosed from presenting any response to the new reason", ruled the court.
These factors, taken together, showed that HM Life abused its discretion in denying Barbara's benefits. This court decision provides the attorneys representing disabled people who live in Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, and Washington, with specific guidance as to what defects need to be attacked during the administrative appeal process, and if necessary, in a federal court action.
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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