A delay in benefits is a very serious problem in the world of disability insurance benefits. Often the insurance companies delay payments, because they can. The disability insurance attorneys at Dell & Schaefer cut through the clutter and get to what the insurance companies are doing to delay your claim.
Continue Reading What Can You do If There is a Delay in Receiving Your Disability Payments?

Multiple Sclerosis is a disabling illness that affects more than 2.3 million people around the world. MS is usually diagnosed between the ages of 20 and 50 and is two to three times more common in women than men. Multiple Sclerosis is a disease of the central nervous system which interrupts the flow of information to the brain and between the body and the brain such as; numbness and tingling in the extremities, fatigue, paralysis, cognitive impairment and sometimes blindness. Unfortunately, there has been no way to predict how a patient with MS will progress over time once they are diagnosed.
Continue Reading National Multiple Sclerosis Society Researchers Find Analyzing MRI’s May Predict MS Progression

Claimants often ask why ERISA lawsuits are so difficult. Among other reasons, the biggest obstacle for claimants in ERISA lawsuits is often the standard of review employed by the court reviewing the claim denial.

The core of every ERISA lawsuit involving the recovery of disability benefits essentially comes down to whether the court will give the claims administrator the benefit of the doubt. In most cases, where the plan gives the administrator discretionary decision making authority, the court reviews the claim denial merely for an abuse of discretion. In other words, the administrator gets the benefit of the doubt.
Continue Reading Plan administrator gets the benefit of the doubt in another ERISA lawsuit

A Tennessee Plaintiff filed an ERISA lawsuit regarding the denial of her short term disability and long term disability benefits, contending that 1) she was disabled under the terms of the plan; 2) that United of Omaha Life’s reliance upon the opinions of medical experts who did not physically examine her was inadequate to provide a reasoned explanation for its decision to deny benefits; and 3) that the plan’s self-reported symptoms provision provides for disability payments for up to 2 years.

In this case, the terms of Plan delegated to United of Omaha Life full authority and discretion to make eligibility determinations for benefits and to interpret the terms of the Plan, for both short term and long term disability. Because of this, the Tennessee court applied the arbitrary and capricious standard of review. Accordingly, the court was charged only with the task of deciding whether United of Omaha Life’s decision to deny short term and long term benefits to the Plaintiff was based on a reasonable interpretation of the Plan.

Was Ms. Holden disabled under the terms of the Disability Plan?

In order to satisfy the definition of disability under the terms of United of Omaha Disability Plan, the Plaintiff, Ms. Holden, was required to establish that, as a result of injury of sickness, she has a "significant change in Your mental or physical capacity and You are: a) prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and b) unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness. After a Monthly Benefit has been paid for 2 years, Disability and Disabled mean You are unable to perform all of the Material Duties of any Gainful Occupation." The Plan further stated that to receive a monthly benefit, acceptable proof of loss must be provided.

Disability Claim Based on Fibromyalgia, Lupus and Migraines

Ms. Holden had a long documented medical history of accelerated chest pain syndrome, cardiac catheterization with normal findings, noted lupus erythematosus, migraine headaches, noted fibromyalgia, small L1-2 disc protrusion without impingement and minimal L4-5 facet joint degenerative changes, with complaints of symptoms such as heart palpitations, muscle and joint pain, fatigue, arm pain, ankle swelling, syncope, near-syncope, and difficulty with prolonged sitting, rising and lifting.

When Ms. Holden filed her initial claim for short term disability benefits in February 2009, she was treating with her primary care physician, a nurse practitioner, rheumatologist and a cardiologist, with complaints of edema, palpitations, arm pain, nausea and rear syncopal feeling. In May, Ms. Holden was awarded short term disability benefits up to 4/21/2009 as United of Omaha Life’s Nurse Case Manager found that the medical records were sufficient to support restrictions and limitations up to the 4/21/09 office visit with the cardiologist while she was being evaluated for angina and her medications were being adjusted. However, her cardiac conditioned had stabilized as she was not required to follow up with the cardiologist for 6 months, and her main complaints at this point were related to fibromyalgia and lupus.

It should be noted that although fibromyalgia is characterized by subjective complaints of pain and fatigue, there are widely accepted diagnostic tests which are used to objectively establish a diagnosis of fibromyalgia. These tests involve identifying specific "tender points" on the patient. If the patient possesses a minimum of 11 out of the 18 defined tender points, they are eligible for a diagnosis of fibromyalgia. In this case, Ms. Holden never met the criteria for a diagnosis of fibromyalgia and laboratory tests did not confirm a diagnosis of lupus, which also produces subjective symptoms such as generalized pain and fatigue.

Additional medical records were requested and provided to United of Omaha Life, and a second review of the medical file concluded that continued restrictions and limitations were not supported beyond 4/21/09 because Ms. Holden had not demonstrated the she was unable to perform her job duties which were classified as sedentary. United of Omaha Life denied further disability benefits and Ms. Holden appealed.

Ms. Holden continued to treat with her medical providers and submitted her appeal to United of Omaha Life in December 2009 and in January 2010, a third review of the medical file was conducted and determined that the medical information lacked objective physical and diagnostic findings which supported restrictions and limitations that would preclude Ms. Holden from performing the material duties of her regular sedentary job. The denial letter included a detailed summary of the review of the medical records that was performed.

Ms. Holden continued to treat for her generalized symptoms, but physical examinations and diagnostic testing resulted with normal findings.

In June 2010, Ms. Holden applied for long term disability benefits due to pain, inability to get out of bed and inability to drive. A physician’s statement indicated she could not work because of fibromyalgia, osteoarthritis, lupus and migraine headaches. United of Omaha Life had their Senior Vice President and Medical Director, Dr. Reeder, review Ms. Holden’s medical record. Dr. Reeder concluded that Ms. Holden did not meet the accepted criteria for a diagnosis of fibromyalgia or rheumatoid arthritis, and that there was no medical evidence to support functional loss or that Ms. Holden was incapable of working in a sedentary occupation. In December 2010, Ms. Holden’s long term disability benefits were denied and she appealed.

During the appeal, Ms. Holden underwent an arthroscopy surgery, which was tolerated well, and a follow up with her rheumatologist indicated her FMS score was 5/18 with no weakness.

United of Omaha Life retained a rheumatologist, Dr. Peck, to perform a review of Ms. Holden’s medical records. Dr. Peck noted that Ms. Holden’s records indicated that she did not fulfill the criteria for fibromyalgia, and lab results indicated a false positive ANA with no evidence of lupus or other connective tissue disease. Dr. Peck opined that the restrictions and limitations provided by the treating physicians were not supported with medical evidence of impairment, even in the doctors’ own notes, and that Ms. Holden is capable of light work on a full time basis. The restriction to light work results from the facts that she has internal derangements of her knees, lumbar spondylosis and myofascial pain syndrome. Based on Dr. Peck’s review, United of Omaha Life upheld its denial of long term disability benefits.

While Ms. Holden claimed that she was disabled under the terms of the Plan, she conceded that she was not able to clearly prove through her records that she was disabled, but that her claim was entirely dependent on subjective evidence of her disability. She further argued that the Self-Reported Symptoms provision of the plan, in and of itself, was enough to prove that her self-reported symptoms were sufficient evidence of disability. However, United of Omaha Life responded that while self-reported symptoms may be used as evidence of an illness, Ms. Holden still must provide sufficient objective evidence of disability from such an illness. The Court in this case recognized that, while it is unreasonable to require objective evidence of a subjective illness, objective evidence of disability may be required, even when the alleged disability stems from fibromyalgia, as long as the Plan administrator notifies the claimant that it requires additional objective evidence of the disability.

In this case, United of Omaha Life repeatedly requested, from both Ms. Holden and her physicians, objective medical evidence to support her claim of disability and inability to perform her job. Ms. Holden and her physicians failed to submit sufficient objective evidence and several of her treating physicians actually indicated to United of Omaha Life that she was not restricted to perform sedentary work.

Was United of Omaha Life’s reliance upon the opinions of medical doctors that never examiner the claimant Sufficient to support a disability denial?

Ms. Holden further alleges that United of Omaha Life acted unreasonably by basing its decision to deny benefits on the opinions of "non-examining file reviewers", rather than having a physical examination performed. The court found that there was no Plan language which barred a medical file review in lieu of a physical examination.

The independent medical reviewers retained by United of Omaha Life were of the appropriate medical specialties and it is apparent in their reports that they greatly considered the treatment, assessments and opinions of Ms. Holden’s treating physicians. The independent reviewers also provided the treating physicians with the opportunity to respond and provide comment on the reports. Dr. Reeder noted that Ms. Holden’s rheumatologist refused to respond and suggested she be referred for a functional capacity examination. Her cardiologist advised that her chest pain was non-cardiac in nature and that she did not have any work restrictions, including driving. Dr. Reeder wrote to Ms. Holden’s nurse practitioner citing his review of the medical records, and indicating that, in his opinion, the records did not support restrictions and limitations which precluded Ms. Holden from performing her sedentary occupation. Dr. Reeder requested that any information with physical exam or diagnostic test findings, or other objective evidence to support work restrictions and limitations be submitted. The nurse practitioner’s office informed United of Omaha Life that she would not be responding because she agreed with Dr. Reeder’s letter/assessment. Other additional records submitted by Ms. Holden’s treating physicians noted that she did not have any work restrictions or limitations.

Because the independent medical reviewers actually gave great weight to the medical record, and went so far as to contact the treating physicians, by telephone and by letter, to discuss Ms. Holden’s case, under the arbitrary and capricious standard of review, United of Omaha Life did not act unreasonably by relying on their opinions as a basis for the decision to deny Ms. Holden’s benefits.

Outcome of the ERISA Lawsuit Against United of Omaha

The Tennessee Court found that United of Omaha Life did not act unreasonably and its decision to deny Ms. Holden’s short term and long term disability benefits was not arbitrary and capricious. The court granted United of Omaha Life’s motion for judgment on the record and denied Ms. Holden’s motion for judgment.

Ms. Holden’s claim of disability was based solely on subjective complaints of pain and fatigue. All of the objective measures, even for such subjective syndromes such as fibromyalgia and lupus, had negative results for Ms. Holden and no firm diagnosis could be established which would support her claim for disability. Even Ms. Holden’s treating physicians did not support her in her claim for disability. Our law firm did not handle this claim.

Ms. Holden and her disability lawyers incorrectly relied on a self-reported symptoms policy provision as a means to prove her disability claim, when the purpose of that provision was to acknowledge that some conditions are diagnosed based on subjective symptoms, and to establish that in such an instance, the disability benefits would be limited to 24 months. This case is another example of how important it is to have strong physician support in order to obtain of approval of long term disability benefits.

If you have a disability insurance claim and would like to know your legal options, contact Attorneys Dell & Schaefer for a free consultation

As national disability insurance lawyers, every day we hear from disability claimants that have been denied long term disability benefits. Most of the these disability claimants have disability policies that are governed by ERISA. We want to get some public opinion from a claimant’s perspective about whether ERISA is a fair law. Please post your comments on our blog so that we can spread the word about changes that must be made to ERISA laws. Here is a recent comment from someone that emailed us earlier today:

I want to help other people with this issue! It’s a serious problem with have in the disability insurance industry. If the law would allow bad faith claims to filed, then it is my opinion that the bad faith denials would stop.

As of now they can deny all they want without suffering any type of penalty or slap on the wrist and hence these issues will continue. To not even award attorney fees is just outright wrong. I’m out 401k , my own funds, it sank me financially and I m out attorney fees. And my issue is easily proven to be bad faith. So, this is just wrong in so many ways the very fact that this ERISA law has been around since 1974 is really disgusting that this has not been fixed. It was initially put forward to stop people from frauding insurance. But now the insurance companies are taking it using this loop hole to commit fraud against a claimant now. Obviously the ERISA act is broken due to this allowance of not penalizing the insurance for wrong doing.

Anyway, I hope Dell & Schaefer and other firms unite and fight and Ill be more than happy to join it. So many are suffering over this and have lost everything we have. I just hope if something did change it would allow those who got punked due to bad denials are allowed to recover losses if they do change something. 

Disability Blog & Cases:
California Court denies Plaintiff’s Attempt to Introduce New Medical Information During ERISA Disability Lawsuit Against Hartford for Long Term Disability Benefits

One of the largest obstacles facing an insured in bringing a lawsuit against a disability insurance company for benefits under an ERISA governed group disability policy is the inability to add additional information, in most cases medical information, to the administrative record after a final denial has been entered by the insurance company.


Disability Blog & Cases:
Cigna Denies Disability Benefits, But Additional Information Could Have Resulted In A Victory

When filing a disability application or appeal it is of the utmost importance to provide the insurance company all of the relevant medical records and/or documentation supporting your disability in a timely manner.

If you fail to submit any important documents or records they will not be considered by the judge at a later date if your disability claim is denied.

ERISA is a federal law that governs most disability plans offered through employers and was enacted in part to make it more affordable for employers to offer long-term disability coverage and health insurance for employees. Unfortunately, ERISA tends to be an unfair law for disability insurance claimants.

The limitations and obstacles inherent to an ERISA regulated disability policy do not present themselves oftentimes until a claimant is faced with the unfortunate occasion of becoming disabled and unable to work. One such limitation is that an ERISA governed policy requires a claimant to exhaust administrative remedies before filing a lawsuit. This oftentimes only serves to prolong the time a disabled claimant must wait to receive benefits to which he or she is entitled. In the event that a claimant does file a lawsuit, under ERISA, a claimant is not entitled to a jury trial. The decision is therefore up to the judge who is usually limited to a review of the "claim file" under a standard requiring the judge to determine simply if the administrator acted unreasonably even if the judge thinks the claimant is in fact disabled.

Not surprisingly, disability insurers fight to have ERISA be the governing law over disability policy disputes.

In the case of Healy v. Minnesota Life Insurance Company, Dr. H. was a member of a medical group through which he obtained a disability policy administered by Minnesota Mutual. When Dr. H. and his disability lawyer sued Minnesota Mutual seeking long-term disability benefits, it was unsurprising when Minnesota Mutual argued that ERISA governed the policy.

Dr. H. argues his disability policy is not covered by ERISA

Dr. H. argued that his disability policy is not an "employee welfare benefit plan," and therefore not subject to ERISA, because the plan was not "established or maintained" by the employer. Specifically, Dr. H. argues that his employer:

  • Did not negotiate the terms of the policy;
  • Did not pay any portion of the premiums;
  • Did not participate in Dr. H’s application for the policy; and
  • Had no involvement in the administration or submission of the claims.

According to Dr. H, his employer’s only responsibility with regard to the policy was to forward his premium payments to the insurer. Ultimately, the court agreed with Dr. H. explaining that there was no evidence that Dr. H’s employer had established or maintained the program with the purpose of providing benefits to its employees as required by the ERISA statute.

About the author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell & Schaefer. Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. To request a free legal consultation call 800-411-9085.

Long term disability insurance provides the needed safety net to protect against disabling injury or illness. Some insurance companies offer a provision called a "lump sum buyout" which may be beneficial to the policy holder.

A lump sum buyout is the payment of funds in exchange for the surrender of one’s long term disability policy. As a way to save money, insurance carriers calculate these buyouts based on the amount they project they will have to pay a claimant in the future, but at an overall reduced rate.

Each insurance company has their own methodology in determining the buyout amounts, however, there is a general principle that most insurance companies follow: if the lump sum buyout amount is less than the expected monthly payments, insurers will try to negotiate a buyout.

Lump sum buyouts are always at a discounted rate, which seems like it would be in an insurer’s interest to continue to collect benefits instead of a lump sum payment. However, this is often not the case.

Let’s examine the potential benefits of a lump sum buyout below:

  1. Lump sum buyouts provide extra security for a claimant’s family. Long term disability insurance policies contain no rights of survivorship that are commonly present in life insurance policies. To obtain a lump sum buyout, there is additional financial security in case of an emergency.
  2. While receiving long term disability benefits, there’s always a risk that benefits will be denied or cut off. With a lump sum buy out, there is a freedom to live without the constant fear of a denial.
  3. The cash received in the lump sum buyout is often tax-free and free to use and further invest.
  4. A claimant can return to work without hurting a claim or subject to the scrutiny of insurance companies.

It is essential to consult an attorney when planning a lump sum buyout. These are complicated processes which require the expertise of an attorney to negotiate the best possible lump sum settlement.

About the author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell & Schaefer. Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. To request a free legal consultation call 800-411-9085.

ERISA is a federal law that governs most disability plans offered through employers and was enacted in part to make it more affordable for employers to offer long-term disability coverage and health insurance for employees. Unfortunately, ERISA tends to be an unfair law for disability insurance claimants.

The limitations and obstacles inherent to an ERISA regulated disability policy do not present themselves oftentimes until a claimant is faced with the unfortunate occasion of becoming disabled and unable to work. One such limitation is that an ERISA governed policy requires a claimant to exhaust administrative remedies before filing a lawsuit. This oftentimes only serves to prolong the time a disabled claimant must wait to receive benefits to which he or she is entitled. In the event that a claimant does file a lawsuit, under ERISA, a claimant is not entitled to a jury trial. The decision is therefore up to the judge who is usually limited to a review of the "claim file" under a standard requiring the judge to determine simply if the administrator acted unreasonably even if the judge thinks the claimant is in fact disabled.

Not surprisingly, disability insurers fight to have ERISA be the governing law over disability policy disputes.

In the case of Healy v. Minnesota Life Insurance Company the claimant sought long-term disability ("LTD") benefits from his insurer and filed suit in Missouri. The Defendant insurance company argued that ERISA governed the policy.

While most plans offered through employers are governed by ERISA, such plans may be exempt from ERISA if the disability plan meets all four requirements set forth in the federal Safe Harbor Regulations.

If a court finds that an employer has "contributed" to the plan then it cannot be exempt under Safe Harbor Regulations.

Minnesota Mutual argues a 10% discount of claimants’ premiums was a "contribution" and that the policy is subject to ERISA

Naturally, Minnesota Mutual argued in an effort to convince the court ERISA governed the policy. Ultimately, the court ruled that the plan was not subject to ERISA after finding the policy had not been "established or maintained by an employer"—a requirement under ERISA. However, the court also explained that the policy was not exempt from ERISA based on the federal Safe Harbor Regulations.

This case is important because the Missouri Federal court joined several other courts in finding that a discount of the claimant’s premiums was a "contribution" and therefore the Safe Harbor exclusionary provision does not apply. In other words, the disability policy, although held by the court to fall outside the purview of ERISA regulation, came dangerously close to falling within ERISA simply because the insurance company offered a 10% discount for purchasing the policy through the claimant’s employer.

When an insurance company offers a discount for obtaining a long-term disability policy through your employer it is important to consider the possible effects the discount may have on the policy. A contribution by an employer could put a policy under ERISA regulation thereby subjecting a claimant to various obstacles and limitations.

About the author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell & Schaefer. Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. To request a free legal consultation call 800-411-9085.

Disability Blog & Cases:
Jean Pentecost and her Montana disability lawyer file a complaint against CIGNA

On June 6, 2011, Jean Pentecost sued CIGNA for her disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA) in the United States District Court of Montana, Butte Division. Seeking long term disability benefits as well as attorney fees, Pentecost and her Montana disability attorney ask the Court in Pentecost’s disability insurance lawsuit to force CIGNA to pay her disability benefits as promised by her plan, award her reasonable attorney fees and Court costs, prejudgment interest and any other relief the Court sees as just and proper.


FAQ: IME Exams & Insurance Company Doctors:
Can a disability insurance company rely on a Functional Capacity Exam (“FCE”) to deny long-term disability benefits?

Unfortunately a recent Appellate court answered this question yes. Every disability case is distinguishable so for every case that says an FCE is reliable evidence of disability, there is another case that will say it is not reliable. Additionally, it is rare that an FCE on its own is enough to support a disability denial. Functional Capacity Examinations (FCE) requested by disability insurance companies are frequently used by disability insurance companies in an effort to deny disability benefits. There is no consistent law which states that if an FCE determines a person can work, then the claimant must not be disabled. To learn more about FCE exams and what to expect you should watch our video discussing FCE exams.


Disability Blog & Cases:
What is Liberty Life Assurance Company of Boston trying to hide in denial of disability benefits?

This disability insurance case against Liberty Life Assurance is an example of the type of fight that a disability insurance company will engage in once a disability lawsuit is filed. It is often surprising that disability insurance companies will claim they are acting fairly, yet when you ask them to provide claims handling information they will aggressively object.


FAQ: Disabling Conditions & Treatment:
Is it legal to limit disability insurance benefits to 24 months for mental nervous claims?

The question listed below was recently posted on our disability benefits blog, but since it is a question that we receive on a weekly basis, we decided to make it a frequently asked question.


Disability Blog & Cases:
Law office bookkeeper with lupus and fibromyalgia denied disability benefits by Unum Life Insurance Company of America in Indiana

Recently one disabled employee of Scopelitis Garvin Light Hanson & Feary PC filed a lawsuit against the Unum Life Insurance Company of America (Unum) and Scopelitis Garvin Light Hanson & Feary PC Plan for the wrongful denial of disability benefits under the Employee Retirement Income Security Act (ERISA).