Disability Insurance Law TV:
Liberty Mutual Long Term Disability Insurance Claims

In this two part episode disability insurance attorneys Gregory Dell Stephen Jessup and Rachel Alters of Attorneys Dell & Schaefer discuss Liberty Mutual Disability Insurance Company and their handling of long term and short term disability insurance claims.

FAQ: Does my disability insurance lawsuit need to be filed in State or Federal Court?

Disability Blog & Cases:
American United Life Insurance disability denial reversed for woman with fibromyalgia, depression and migraines

This disability insurance denial by American United Life Insurance Company (American) and Disability Reinsurance Management Services is a classic example of a disability insurance company’s effort to convert a physical disability claim into a mental nervous claim only. Most disability insurance policies limit disability benefits to 24 months for a mental nervous condition, therefore disability companies will try to argue that a claimant is only disabled by a mental condition and not physical. This argument is frequently raised by insurance companies when a person has a medical condition like fibromyalgia which cannot be verified by any objective testing.

Disability Insurance Law TV:
Mass Mutual Financial Disability Insurance Claims

In this episode disability insurance attorneys Gregory Dell and Cesar Gavidia of Attorneys Dell & Schaefer discuss Mass Mutual Disability Insurance Company and their handling of long term disability insurance claims.

FAQ (Lump Sum Buyout):
Is my disability insurance company required to offer me a lump sum  buyout of my disability policy?

Disability Blog & Cases:
Aetna refuses video recording of IME and threatens to deny disability benefits unless claimant agrees to sign IME doctor’s authorization form

In my opinion Aetna’s handling of our client’s long term disability claim is egregious and unreasonable. We share this story with you in order to continuously educate the public about the conduct of many disability insurance companies.

Disability Blog & Cases:
Prudential ordered by Michigan Court to reconsider long term disability insurance denial

A Michigan Federal Judge recently ruled that Prudential Insurance Company Of America’s denial of long term disability benefits was arbitrary and capricious. The court found that Prudential ignored the claimant’s complaints of pain, failed to evaluate his occupational duties, ignored the opinions of his treating physicians, relied exclusively on a paper review of the medical records rather than examining the claimant, and failed to explain why the claimant could not work. Despite Prudential’s wrongful denial of disability insurance benefits, the court sent the case back to Prudential for further review instead of awarding disability benefits to the claimant. and told them to reevaluate the case. Hopefully this disability claimant will be awarded disability benefits after Prudential conducts another review of the file.

Disability Blog & Cases:
Sun Life disability insurance benefit denial is reversed after 8 years

Eight years of battling Sun Life for long-term benefits and the claimant finally prevails. Sun Life should be ashamed for their lack of respect for this disability claimant and their unreasonable claim handling. Sun Life’s attempt to use hired gun doctors was shot down by the court. This case is an example of a situation where a person could be disabled yet continue to be at work until the day they are fired. This case created challenging contractual issues for the claimant as she claimed that she was disabled at the time she was fired. The Sun Life disability policy and all ERISA governed disability policies require the claimant to be disabled while they are actively employed by their employer. In order to avoid this situation, a claimant should always try to stop working if they believe they will be fired due to their inability to perform their job.

Disability Insurance Law TV:
Sun Life Financial Disability Insurance Claims

In this two-part episode, disability insurance attorneys Gregory Dell and Cesar Gavidia of Attorneys Dell & Schaefer discuss Sun Life Financial Disability Insurance Company and their handling of long term disability insurance claims. More specifically our disability attorneys discuss some lawsuits that have been filed againt Sun Life and we describe Sun Life’s internal disability claims handling resources.

Disability Blog & Cases:
Disability lawsuit filed against The Standard Insurance Company for denial of disability benefits to man suffering with hepatitis C

Our Client, Mr. B worked as a Traffic Central Worker II, often for long hours installing traffic sign throughout Broward County. Despite his strong ambition to work, Mr. B suffered disabling symptoms arising from chronic hepatitis-C, which in turn prevented him from continuing the job he maintained for a number of years.

Disability Blog & Cases:
 Prudential wrongfully denies disability insurance benefits to man with fibromyalgia

 As an employee of Prudential Insurance Company of America (Prudential), Duane Morgan might have expected more of his employer when he had to take advantage of the long-term disability plan offered as part of his employment package. He had been a senior life representative when symptoms of chest pain, palpitations and dizziness, sweating and shaking, numbness in his arms, high blood pressure, difficulty sleeping, and diarrhea forced him to stop working in September 2005.

Disability Case:
Hartford misleads disability insurance claimant’s doctor which results in benefit denial

In a recent long term disability insurance case against Hartford Life and Accident Insurance Company (Hartford), Glenn Pauley alleged that Hartford wrongfully denied his long-term disability benefits. This case is a classic example of the frequent tactic used by Hartford to deny long term disability claims. On numerous Hartford claim denials we have seen Hartford draft undisclosed one-sided letters to the treating physician of a disability claimant. These letters are drafted with specific questions designed to establish a denial of a claimant’s long term disability benefits. In most cases, a claimant’s treating physician will not discuss the questions with a claimant and will not understand the consequences of the answers they choose to provide. A treating physician should always discuss any letters from a disability company with the patient. This case may never have ended up in court had Pauley’s doctor been advised of the significance of the letter that Hartford secretively sent him.

FAQ:
Do disability insurance companies handle a claim differently when a lawyer is involved?

Disability attorney Gregory Dell discusses how disability insurance companies evaluate a claimant’s eligibility for disability benefits on a month to month basis and how a disability lawyer can assist a claimant throughout the process.

Disability Case:
Does Fibromyalgia Have a Credibility Problem in Disability Insurance Claims?

A recent article posted by CNN Health addresses the lack of support women who suffer from fibromyalgia can face personally, professionally and even from their own physicians as they try to cope with this debilitating and often misunderstood disease.

Disability Attorneys Dell & Schaefer have represented numerous long term disability claimants that have been unable to work as a result of suffering from fibromyalgia.

FAQ / ERISA Information:
How long does the disability insurance company have to make a claim decision once the application for ERISA long term disability benefits is submitted?

The Department of Labor has drafted regulations which provide that a disability claim must be resolved, at the initial level, within 45 days of receipt of a complete application; a plan may, however, extend that decisionmaking period for an additional 30 days for reasons beyond the control of the plan.

If, after extending the time period for a first period of 30 days, the plan administrator determines that it will still be unable, for reasons beyond the control of the plan, to make the decision within the extension period, the plan may extend decisionmaking for a second 30-day period

FAQ / ERISA Information:
Why is ERISA an unfair law for disability insurance claimants?

ERISA stands for the Employer Retirement Income Security Act and it was a Federal law that was passed in the early 1970s which was supposed to make it more affordable for employers to be able to offer long term disability coverage as well as health insurance for employees.

Disability Insurance Attorneys Gregory Dell and Stephen Jessup discuss the numerous reasons that ERISA is an unfair law that can negatively impact the thousands of people that file disability insurance claims each year.

Disability Case:
First Unum terminates long-term disability benefits after 4 years of paying and SSDI approval

In a recent Federal Court decision in favor of First Unum, the Court validated the right of a long-term disability insurance plans to rely upon functional capacity evaluations (FCE) as a basis for determining whether or not the claimant has the right to continue receiving disability insurance benefits. In VanWright v. First Unum, VanWright’s long-term disability attorney pointed to another case, Alfano v. Unum, as a reason that the Court should not find First Unum Insurance Company’s decision to terminate his client’s disability benefits reasonable. It appears that disability benefits were appropriately terminated in this case as the disability claimant was performing activities that far exceeded the restrictions and limitations indentified by his treating physician. A look into the background of this case will show why the Court took Unum’s side in its decision.

Dearborn National, a multi-billion dollar insurance company that sells long term disability insurance products, recently hired a law firm to prohibit Disability Insurance Attorneys Dell & Schaefer from displaying the Dearborn National on a webpage that discusses the company. Dearborn National was concerned that consumers may believe “that there is a connection, affiliation, endorsement or relationship between Dearborn National and Attorneys Dell & Schaefer.” Obviously no one that visits diattorney.com is confused as every page of the website says “representing Disability Insurance Claimants.” Disability Attorneys Dell & Schaefer never represent disability insurance companies.

Dearborn National is obviously aware that more and more disability claimants around the country are learning about the legal services offered by Disability Attorneys Dell & Schaefer. It is our opinion that Dearborn National is concerned that some of their potential customers may actually locate our firm’s website and learn the importance of having a disability lawyer for any disability insurance claim. The logo of Dearborn National appeared on the Attorneys Dell & Schaefer website so that consumers could have further confirmation of the company that was being discussed with the associated text.

Dearborn National also indicated in their letter that they did not want any text that appeared on their website describing their company to appear at diattorney.com. It seems strange to our law firm that Dearborn National would not want us to describe their company in the same manner as they have chosen. Disability attorneys Dell & Schaefer do not have the time to dispute Dearborn National’s request to remove their logo from the website, therefore we have agreed to remove the logo and modify the text describing Dearborn.

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.

Mass Mutual, an insurance company that sells long term disability insurance products, recently hired the international law firm of Shutts & Bowen in an effort to prohibit Disability Insurance Attorneys Dell & Schaefer from displaying blank Mass Mutual long term disability insurance claim forms on their website. More specifically, Mass Mutual hired attorney Jeffrey Landau, one of the leading insurance defense attorneys in the United States. Mass Mutual claims that by displaying their logo and claim forms that Attorneys Dell & Schaefer is “conducting an unfair and deceptive trade practice.” The forms are posted by Attorneys Dell & Schaefer in order to inform potential claimants of the requirements necessary to prove disability. Mass Mutual has over 300 billion dollars in assets under management and it is interesting that they are concerned about Attorneys Dell & Schaefer providing access to a set of blank claim forms that must be submitted in order for disability applicant to complete their claim for benefits. Instead of blank claim forms, we could have provided copies of claim forms that were submitted as public records in one of the many lawsuits against Mass Mutual.

I always try to give disability insurance companies the benefit of the doubt that they want to do the right thing for their insured’s, but it is actions like requesting a law firm to remove blank claim forms which reaffirms my belief that insurance companies are committed to making the disability benefit claims process as difficult as possible.

Disability Attorneys Dell & Schaefer do not have the time to dispute Mass Mutual’s request to remove the disability claim forms from their website, therefore we have agreed to remove the forms from our website. Claim forms and information regarding Mass Mutual are available upon request. A copy of the cease and desist letter sent by Mass Mutual’s hired lawyer can be viewed below.

Re: Infringement of MassMutual Intellectual Property

Dear Greg:

We represent Massachusetts Mutual Life Insurance Comapny and its affiliated entities (collectively, “MassMutual”) in connection with the enforcement of its intellectual property rights and pursuit of those who may infringe those rights. Your website, http://www.diattorney.com/, and more particularly the page located at http://www.diattorney.com/mass-mutual/ (collectively, the “Dell Website”) have come to the attention of MassMutual, which has asked us to contact you regarding your unauthorized use and display of MassMutual’s registered marks, proprietary information, and forms that also contain those marks. This includes, but is not limited to, the use of the MassMutual Financial Group logo and MassMutual long term disability claim forms. It also appears that some of these copyrighted and/or trademarked materials may have improperly, and without authorization, been misappropriated from MassMutual’s own website.

We assume you are aware that unauthorized duplication of MassMutual’s proprietary marks and forms violates federal law, including the Lanham Act. Furthermore, while we understand that competition in the marketplace is allowed, this conduct is unfair and deceptive trade practice under Florida law and en example of sanctionable unfair competition. These act violate section 501 et. seq., Florida Statutes and Florida common law. The potential remedies available under Florida law and for infringement actions are significant.

MassMutual is prepared to pursue its civil remedies in this matter. As a plaintiff, we may not only enjoin the unlawful infringement of MassMutual’s marks and proprietary documents, but may also obtain damages for such infringement and unfair competition, including, but not limited to, the defendant’s profits, any damages sustained by the plaintiff, and the cost of the action. In egregious cases, such as where knowing and willful infringement is found, the damages may be multiplied.

However, MassMutual wishes to resolve this matter amicably and without filing suit – but is fully prepared to enforce it’s rights in court if necessary. Accordingly, we demand, on behalf of MassMutual, that you and your law firm immediately:

  1. Take down all infringing content at all websites under your control, including, but not limited to those pages located at http://www.diattorney.com/ and http://www.diattorney.com/mass-mutual/
  2. Cease and recall all advertising and promotional materals bearing MassMutual’s marks and other proprietary forms
  3. Discontinue all use of the text, images, and forms taken from our MassMutual’s website (of from a website of an authorized used of the materials and marks); and
  4. Commit in writing to cease all use of such marks or materials.

We ask you to confirm your agreement and comply with our request by signing and returning a copy of this letter to us by the close of business on October 20, 2010. MassMutual’s course of action in this matter will be determined based upon your degree of cooperation. If we do not hear from you we will be forced to move ahead promptly.

This offer of compromise is without prejudice to any claim for copyright or trademark infringement or unfair competition, or damages that may be asserted on behalf of MassMutual should this matter not be resolved promptly to its satisfaction.

If you have any questions about this, please don’t hesitate to contact me.

Very truly yours,
SHUTTS & BOWEN LLP
Jeffrey M. Landau

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.

Ms. Kathleen M. Hackett brought suit in the U.S. District Court of South Dakota’s Western Division against Standard Insurance Company (Standard), alleging that Standard had wrongfully denied her long-term disability benefits claim. In the first round, in 2007, both parties moved for summary judgment. The District Court granted summary judgment to Standard on August 15, 2007. Court held that although Standard operated under a conflict of interest, under Woo, Hackett’s disability attorney had failed to prove that a serious breach of fiduciary duty had occurred.

On appeal against the order of the District Court, the Eighth Circuit Court of Appeals reversed and remanded the matter back to the District Court for its reconsideration of the conflict of interest issue. This was ordered in the light of Glenn v. Metropolitan Life Insurance Company decision.

In remand, Hackett’s disability attorney served a set of interrogatories and request for production of documents upon Standard. The answers Standard gave prompted a second motion to compel discovery.

Standard raised objections on those interrogatories and pointed out that discovery was already closed and the Court on remand was only allowed to consider the administrative records in light of Glenn, a decision that had taken place after the District Court’s first ruling.

Standard Raises Objections to Court Ordering Discovery.

Standard argued that the Eighth Circuit Court did not mentione anywhere in its order to remand that the District Court could allow additional discovery. Therefore, as far as Standard was concerned, the Judge had erred by allowing further discovery.

But in raising these objections, Standard failed to acknowledge the issuance of a Court order setting the deadline to file a rebuttal against the order within 10 days. The Eighth Circuit Court remanded the case which clearly showed that additional discovery had to be considered. After a careful analysis as to whether Glenn made this appropriate, the Court determined that additional discovery should be allowed. This decision was affirmed, and the objection raised by Standard was denied.

Standard then went on to argue that the requested discovery was cumulative and irrelevant to the present conflict. The Court disagreed. Hackett’s attorneys efforts to enquire into Standard’s efforts to assure accurate claims assessment was consistent with the clear language of Glenn.

Prior to Glenn, Hackett’s discovery would have been limited to the business relationship between Standard and Dr. Zivin and Dr. Dickerman. But post Glenn, the main question was whether the Court should allow discovery to extend into the other related areas not requested by Hackett’s ERISA attorney in his interrogatories. After consideration of cited authorities and the logic expressed by both sides for and against discovery, the Court held that the more appropriate step was to allow limited discovery. The Court determined that it should allow Hackett to make inquiry into any incentives paid by Standard for denial of claims. The same thing remained true with respect to relationship between Standard and the outside medical advisors it hired, who might have received incentives to inappropriately deny claims.

ThereforetheCourt held that Hackett’s disability attorney must be allowed to make inquiry into the conflict of interest so the Court could make a reasonable analysis. This objection was also denied. Limited discovery would be allowed.

Standard’s last objection was that the burden of the requested discovery outweighed the potential benefits. The disability insurance company claimed that the cost to produce the requested documents would outweigh the benefits which Hackett’s attorney would gain in presenting the case.

The Court found that this argument was not convincing. Standard had not raised this point when the Court was first considering whether discovery should be allowed. In Howell, the Court had already found that when the discovery requested is relevant to the dispute, expensiveness and burdensome of production of such discovery is not be a proper reason to deny the discovery. I always find it comical when a multi billion dollar insurance company says that it will be a financial burden for them to obtain requested information.

Court Considers Arguments against Interrogatories

The Court had already found that the six questions Hackett’s ERISA attorney asked regarding how Standard shielded decision makers from financial concerns addressed the main reason behind the Glenn decision. Her attorney had limited the scope of his questions from 2000 onward, which fell within a reasonable time scope, considering that Hackett’s first claim occurring in 2002.

Based on Burns v. Imagine Films Entm’t, Inc., the fact that answering these interrogatories would require Standard to “expend considerable time, effort, and expense consulting, reviewing, and analyzing huge volumes of documents and information” was not a sufficient reason for the Court to uphold Standard’s objections. The order to supply answers to these questions was once again affirmed, with stipulation that Standard use the time frame of 2000 through 2006.

The next objection was related to Hackett’s interrogatories 9 to 12. The first round of discovery revealed that Dr. Zivin had reviewed 398 files for the consideration of $115,228 during 2003 to 2005. Dr. Dickerman had reviewed 1,939 files for a fee of $577,00. This suggested to the Court that Standard had paid $289.94 to Dr. Zivin and $297.58 to Dr. Dickerman for each review done by them.

Standard argued that this was not the case. Rather some of the reviews had included multiple reviews of a single claimant’s file. Standard claimed that some reviews only involved comments on a single chart, while others included a claimant’s entire medical history.

The Court found that this argument supported Hackett’s attorney’s supposition that discovery into the billings presented to Standard would be useful in proving or disproving a conflict of interest. The Court found that the requested information was relevant to the matter in dispute. The information would help the Court to determine the percentage of time Dr. Zivin and Dr. Dickerman denied claims. And it would help to prove whether or not Standard was engaged in a history of biased claims administration with the help of both physicians. Without this information, Hackett’s disability attorney would not be able to prove a biased claims approval history. Therefore Hackett’s disability attorney was entitled to the discovery, as had been approved by the Court earlier, in order to shore up the evidence required to prove his case. For this reason Standard’s objection to interrogatories 9-12 was denied.

Hackett’s attorney succeeded in securing the Court’s support of his discovery requests, although Standard raised objections to them. Hackett’s disability attorney argued competently against each and every objection. Because Standard still maintains that it made the right decision regarding Hackett’s disability claim, this is a case that will be seen again. It will be interesting to see whether discovery has an impact on the District Court’s decision when it reviews this case again on remand.

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 Insurance Attorneys Dell & Schaefer are excited to report that Senate Finance Committee Chairman Max Baucus (D-Mont.) will convene a hearing on Tuesday to examine the difficulties workers face in securing benefits they are entitled to from private long-term disability insurance plans. The hearing, entitled “Do Private Long-Term Disability Policies Provide the Protection They Promise?” will take place at 10:00 a.m. on Tuesday, September 28 in Room 215 of the Dirksen Senate Office Building.

At the hearing, Baucus will focus on whether private-sector long-term insurance claims are being unfairly denied or terminated by the companies providing long-term disability insurance covered under the Employee Retirement Income Security Act (ERISA). The hearing will also examine how these private insurance companies have handled workers’ appeals of denials and terminations. Baucus will raise questions about possible improvements that can be made to ensure claimants and beneficiaries of long-term disability insurance plans covered under ERISA are treated fairly.

The hearing can be watched by going to http://finance.senate.gov/hearings/. Any individual or organization wanting to present their views for inclusion in the hearing record should submit a typewritten, single-spaced statement, not exceeding 10 pages in length. Title and date of the hearing, and the full name and address of the individual or organization must appear on the first page of the statement. Statements must be received no later than two weeks following the conclusion of the hearing.

Statements should be mailed (not faxed) to:

Senate Committee on Finance
 Attn. Editorial and Document Section
Rm. SD-219
Dirksen Senate Office Bldg.
Washington, DC 20510-6200

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.

After successfully winning her claim against Liberty Life Assurance Company of Boston (Liberty Life) at both district and appeals court levels, Theresa Willcox’s disability attorney sought compensation for the attorney’s fees charged Willcox to bring her claim before the Courts. When the District Court denied the application, Willcox’s disability attorney appealed the decision.

The primary reason given by the District Court for denying the disability attorney compensation hung on the reality that despite the fact that the Court found Liberty Life had abused its discretion, there had been enough contradictory evidence in the record to clear the disability insurance company of charges it had acted maliciously.

Court finds disability attorney’s fees are excessive.

The Court also found that the fees Willcox’s disability attorney was seeking to collect were “clearly excessive.” The Court noted that Willcox’s disability insurance attorney had engaged in a “pattern of inflammatory and vitriolic arguments.” The District Court concluded that his charges it was Liberty Life’s fault that so much time and resources had gone into the disability lawsuit were unfounded.

Court considers basis for awarding disability attorney fees.

In order to determine whether the District Court had made the correct decision, the Court of Appeals considered whether the District Court had applied the following five factors to reach the decision.

  1. To what degree was Liberty Life guilty of culpability or bad faith?
  2. Was Liberty Life able to pay attorneys’ fees?
  3. Would awarding attorneys’ fees against Liberty Life deter other disability insurance companies acting under similar circumstances?
  4. Was Willcox’s claim seeking to benefit all the participants and beneficiaries of Liberty Life’s ERISA plan or did the claim resolve a significant legal question regarding ERISA itself?
  5. What was the relative merits of Willcox’s position when compared to Liberty Life’s position?

These five factors are known as the Westerhaus factors—named after the 1984 Lawrence v. Westerhaus opinion in which the factors first appeared. The Court has been using these five factors to evaluate when to award attorney fees under ERISA.

The Court of Appeals found that the District Court had applied these five factors properly. While it is unnecessary for all five factors to apply, the Court has generally found more than one factor necessary before it will award attorney fees. In Willcox’s case, only one factor clearly weighed in favor of awarding attorney’s fees—Liberty Life’s ability to pay.

Disability attorney seeks recognition of bad faith on part of disability insurance plan.

The District Court did not find the disability insurance plan culpable or guilty of bad faith. In his appeal of this finding, Willcox’s long-term disability attorney argued that Liberty Life should have been found culpable for its abuse of discretion. By conducting a cursory review of her benefits claim, the disability attorney argued that Liberty Life had acted in bad faith.

The Court of Appeals disagreed. Based on Fletcher-Merrit v. NorAm Energy Corp. and Eisenrich v. Minneapolis Retail Meat Cutters & Food Handlers Pension Plan, Liberty Life could not be held culpable when there was enough evidence to suggest that Liberty Life’s denial was not without some merit.

Willcox’s claim only sought personal benefits, notwithstanding her disability attorney’s claim that her lawsuit was filed to indirectly motivate Liberty Life to conduct more thorough investigations in the future. The Court of Appeals sided with the District Court’s evaluation of this matter as well. Wilcox was not directly seeking to benefit other participants in the disability insurance plan, thus this factor weighed against approving compensation for attorney’s fees.

While her disability attorney argued that awarding disability attorney’s fees would discourage long-term disability insurance plans from performing surface claims review, both Courts felt that it would not have much impact, if any, on other disability insurance plans. Siding with the District Court, the Court of Appeals found that the disability attorney had exacerbated the situation by his handling of the lawsuit.

Court finds disability attorney prolonged ERISA litigation process.

After reviewing all the evidence the Court of Appeals upheld the finding of the District Court that Willcox’s disability attorney had “done more to unreasonably” prolong the ERISA litigation “than any litigating position Liberty Life took.” The Court found that it preferred to deter long-term disability attorneys from clogging the Court system with drawn out ERISA claims.

Willcox’s disability attorney argued that the merits of her case were so strongly on her side, that attorney’s fees should be paid on this one factor alone. The Court of Appeals found otherwise. The merits of Willcox’s position was only slightly stronger than Liberty Life’s, but not enough to tip the scales toward payment of her disability attorney’s fees. Liberty Life had made a decision on evidence that did present some merit.

Court finds that disability attorney is not entitled to recovery of fees.

After considering Willcox’s case carefully, the Court of Appeals reached a conclusion. The District Court had not made a “clear error in judgment” as Willcox’s disability attorney claimed. Rather, because the only factor that weighed clearly for awarding attorney’s fees was Liberty Life’s ability to pay, the Court of Appeals upheld the District Court’s decision.

This case highlights one vital factor that a disability attorney must consider when representing a client in an ERISA claim. The Court felt this disability attorney had caused the whole litigation process to linger in the Courts. The decision to deny attorney’s fees fails to give specific details, but it may be inferred from reading the decision that the disability attorney “unreasonably multiplied” the proceedings in some way. As I have stated in numerous articles, attorney fees are discretionary with the court and it appears that the disability attorney in this case must have pissed off the judge.

It is important that a disability attorney expend time and resources efficiently. The Court is well aware of what is necessary to prepare a proper litigation, yet is also sensitive to things that lawyers may do that are unnecessary and take up more time than needed. If it appears that an attorney is “milking” a claim for everything he/she can get, the Court is less favorable to awarding attorney’s fees, even if it has sided with the claimant, as it did in Willcox’s case.

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.