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.
The arbitrary and capricious standard that is used by courts to review some cases under the Employee Retirement Income Security Act of 1974 (ERISA), a decision by the administrator may be reversed based on a procedural error. In Rudzinski v. Metropolitan Life Ins. Co. , Slip Copy, 2007 WL 2746630 (N.D.Ill.2007), the court held that, "[i]n assuring a full and fair review for plan participants, ERISA regulations require that no deference be given to the initial decision, that the review be conducted by someone other than the initial reviewer, that someone trained and experienced in the appropriate field of medicine be consulted, and that a different consultant be involved in advising on the review."
A failure of the long-term disability benefits carrier to present evidence of the reviewing agent's medical credentials also could result in a ruling in the claimant's favor. The Rudzinski court cited, "fail[ure] to have medical personnel review Plaintiff's first or second submissions" as another example of procedural irregularity contrary to ERISA's requirements. Id. citing Martin v. Metropolitan Life Ins. Co. , 2002 WL 32072618, at*7 (E.D.Va. Sept. 23, 2002) (noting that plans must, have a physician or nurse consultant review a claimant's application for 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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The Employee Retirement Income Security Act of 1974 (ERISA) provides that the claims procedures of a disability benefits plan is reasonable only if, "a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits." A document, record, or other information shall be considered "relevant" to a claimant's claim if such document, record, or other information was relied upon in making the benefit determination; was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination; demonstrates compliance with the administrative processes and safeguards required by ERISA in making the benefit determination. The persistent core requirements of review intended to be full and fair include knowing what evidence the decision-maker relied upon, having an opportunity to address the accuracy and reliability of that evidence, and having the decision-maker consider the evidence presented by both parties prior to reaching and rendering his decision. A LTD benefits claimant simply cannot know what evidence the decision-maker relied upon, nor have an opportunity to address the accuracy and reliability of that evidence, if it is withheld from the claimant.
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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The Employee Retirement Income Security Act of 1974 (ERISA) sets certain minimum requirements for procedures and notification when a plan administrator denies a claim for long-term disability benefits. In a nutshell, ERISA requires that specific reasons for denial be communicated to the claimant and that the administrator afford the claimant an opportunity for "full and fair review". These requirements insure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present the claimant's case.
A "full and fair review" has the four following requirements: 1) a specific reason for the denial; 2) a specific reference to pertinent plan provisions on which the denial is based; 3) a description of any additional material or information necessary for the claimant to perfect the claim; and, 4) an explanation of why such material or information is necessary.
Federal courts have held that a LTD carrier's comment to the claimant that, "[y]ou should include all relevant information to support your claim for benefits", does not satisfy the requirements of ERISA regulations mandating that the denial be "written in a manner calculated to be understood by the participant." One court scrutinized a letter ambiguously informing the claimant that she, "should include appropriate issues, comments, and reasons why you think your claim should not have been denied." Such a description is too vague to satisfy ERISA's notice requirements, the court held. Similarly, a benefit termination letter failed to satisfy notice requirements where it advised claimant to, "forward any additional information or medical reports which you wish to have considered as part of your appeal".
The rationale behind these court decisions in favor of the LTD claimants is that, "describing additional information needed and explaining its relevance enables a participant both to appreciate the fatal inadequacy of his claim as it stands and to gain a meaningful review by knowing with what to supplement the record."
As held in White v. Airline Pilots Ass'n, Intern., 364 F.Supp.2d 747, 762 (N.D.Ill., 2005), MetLife conducted a careless and superficial review of White's claim by not following its own procedure, not describing the background or qualifications for the internal MetLife reviewers (the "nurse consultants"), and not attaching parts of the record until filing its response brief in the case. After a disorganized and imperfect review, MetLife arbitrarily concludedthat White was able to perform her "own occupation" without considering what White's occupation required. Id.
Disability benefit denial letters lacking the four cornerstones of reason, reference, description, and explanation, pursuant to ERISA, are defective and must be remedied through an award of disability benefits to the claimant and all additional statutory remedies.
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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What if you thought you had insurance, were paying your monthly premiums, got sick and got treatment - and then were notified that your insurance was being canceled retroactively, leaving you with huge medical bills?
That's what happened to Patsy Bates, a 52-year-old grandmother. Patsy was diagnosed with stage-3 breast cancer in September of 2003. She had surgery, and then in the middle of chemotherapy she was notified that her policy had been canceled. She was left with nearly $200,000 in bills.
Badgered by bill collectors, Patsy found an attorney who sued the insurance company. In the process, internal company documents were disclosed showing that Health Net had paid employee bonuses for meeting a cancellation quota and for the amount of money saved.
Patsy was awarded more than $9 million on February 23, 2008 in her case against Health Net Inc, one of the largest for-profit insurance companies.
Calling Health Net's actions "egregious," Judge Sam Cianchetti ruled that the company acted in bad faith. "Health Net was primarily concerned with and considered its own financial interests and gave little, if any, consideration and concern for the interests of the insured," Cianchetti held.
Health Net Chief Executive Jay Gellert ordered an immediate halt to cancellations and, as reported in The Times, the company would be changing its coverage applications and retraining its sales force. "I felt bad about what happened to her," he said. "I feel bad about the whole situation." Gellert said he would move quickly to "give people the confidence that they can count on their policy." Specifically, he pledged to stop all cancellations until an external review process could be established to approve all cancellations.
As an advocate for the disabled, I was pleased with the judge's strong denunciation of the way Health Net carried out Bates' cancellation. The big money award was exactly the kind of message necessary to get the attention of greedy insurance companies. People work hard to earn their employment benefits including medical and disability insurance plans and they expect the benefits to be there when they need them. It is reprehensible for a company to take away those benefits for the sole purpose of increasing profits. When health or disability benefits are erroneously denied the carrier is liable to the disable person under the Employee Retirement Income Security Act of 1974 (ERISA) or in some instances under state law for bad faith. The same state law bad faith remedy is available to those wrongfully denied their health insurance benefits-- like Patsy Bates.
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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After being denied your long-term disability benefits claim, you may have requested the carrier to produce your entire administrative file. In response, the carrier will normally produce all of the documents it received and relied upon to deny your claim. Usually missing from the production, however, are the carrier's SOAP notes and other internal communications regarding your claim. These missing documents may contain a treasure trove of useful information regarding the insurance carrier's thought process (or lack thereof) that went into the denial of your long-term disability benefits claim. You have a right to the entire administrative record under the Employee Retirement Income Security Act of 1974 (ERISA).
The SOAP note (an acronym for subjective, objective, assessment, and plan) is a method of documentation employed by doctors and other health care providers to write out notes in a patient's chart, along with other common formats, such as the admission note. Documenting patient encounters in the medical record is an integral part of practice workflow starting with patient appointment scheduling, to writing out notes, to medical billing. Long-term disability insurance companies also use the SOAP format to track their own internal analysis of the LTD claim.
Subjective component
This describes the LTD claimant's current condition in narrative form. The experienced symptoms are recorded in the claimant/patient's own words. It will include all pertinent and negative symptoms under review of body systems. Pertinent Medical history, surgical history, family history, social history along with current medications and allergies are also recorded. In the disability denial appeal process, I often use affidavits to flesh-out my client's subjective complaints to provide the carrier with details that may not appear in the medical record. Because the subjective complaints are recorded in only a summary fashion in the medical notes, I will also have my client's doctor elaborate on them in a written report.
Objective component
Includes vital signs, findings from physical examinations e.g. posture, bruising, abnormalities, and results from laboratory tests. The objective measurements in the claimant's medical file are not always indicative of the existence of a disability. Some conditions, like chronic pain syndrome and fibromyalgia, cannot be measured objectively. Other conditions, e.g. neurological, show normal functioning when measured in a laboratory setting but may not accurately measure the claimant's inability to function in a full-time job under pressure.
Assessment
Is a quick summary of the claimant/patient with main symptoms/diagnosis including a differential diagnosis, a list of other possible diagnoses usually in order of most likely to least likely. When there is more than one diagnosis, I find it useful to create a record of the interaction of the two conditions and medications for each. The combined total health condition may be more than the sum of the parts.
Plan
This is what the health care provider will do to treat the patient's concerns. This should address each item of the differential diagnosis. A note of what was discussed or advised with the claimant/patient as well as timings for further review or follow-up may also be included. Often the Assessment and Plan sections are grouped together. Most LTD policies require the claimant to be receiving ongoing medical treatment and adherence to a reasonable plan for treatment in order to qualify for long-term disability benefits.
In following the SOAP protocol, the long-term disability carrier often relies on email and other internal communications. Getting copies of those communications is vital to proving your claim for long-term disability benefits. In my experience, those emails have revealed the carrier's influence on its vocational consultant and medical experts. The internal documents are also critical to establishing whether the individuals employed by the insurance company were qualified to deny benefits. Getting the entire administrative file including internal SOAP notes and emails is an important step in winning your claim for long-term disability benefits under ERISA.
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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