1) Proof of loss was not timely made. When an insured dies, there are usually time limits within which to file claim the benefits under the policy. Usually, the time limit is a “reasonable” time but the general idea is that the insurance company should have the time to investigate the death thoroughly to see if it can weasel out of paying the claim. If too much time passes, the insurance company might be suffer “prejudice” and might not be able to find a way out. So, make sure the claim is opened as soon as possible after the insured passes away.
2) The insured never changed the beneficiary designation on the life insurance documents. Usually this involves two potential beneficiaries (most of the time it is a wife – ex-wife or wife – girlfriend dispute). I have had situations where the insured filled out the form but never submitted it to the insurance company so the beneficiary did not change. I have had situations where the insured did not complete the form in the correct way thus leading to a dispute. Typically, the insurance company is caught in between and files the money with the court and lets the potential beneficiaries fight it out in litigation. One thing that some folks don’t know is that in Tennessee, there is no common law marriage. You have to have the ceremony and paper to complete the deal. So if the beneficiary is listed as a spouse, be advised that you need to get formally hitched in order to qualify as a spouse.
3) The death did not arise out of an “accident.” From time to time, a potential client will come to the office with a claim that has been denied because the death did not arise out of an accident as defined under the policy. It may be that the insured passed away because of a one-car wreck and alcohol was found in his blood. Or, perhaps there was an unfortunate suicide. But don’t give up hope, just because an insurance company says it is not a “accident” doesn’t mean it is not an accident. You have to have all of the facts and the policy to know for sure.
4) Some exclusion allegedly applies. Let’s face it, the “Exclusions” portion of a typical insurance policy is usually 10 times bigger than the “Insuring Clause” portion of a policy. It’s like those pharmaceutical commercials on TV that tell you how great this drug is and show an actor gathering flowers in a field and having a great time but the voice over is blabbing on about all the bad things that can happen if you take the drug. But as I stated above, don’t give up hope – insurance companies have been found wrong many times before and they will continue to misinterpret (ie.- intentionally read the policy in the wrong way) policies in the future.
5) Some definition is used to deny the claim. Ever really looked at the “Definitions” section of a policy? Each one is a way for the insurance company to get out of paying a claim. Excuses prevail like: He wasn’t an “employee,” He wasn’t and “insured,” He didn’t satisfy the requirements of “(fill in the blank here with just about anything). Insurance companies will do absolutely everything they can to avoid paying claims. It’s not fair and you should pursue the claim to its end.
Don’t let a denial phase you. Give us a call or send us an email and we will take a look at the claim to determine if there is any way to help. If there is, we’ll tell you. If there isn’t, we’ll tell you that too. Either way, you have an answer.
Prudential Insurance Company of America
Disability Management Services
P.O. Box 13480
Philadelphia, P.A. 19176
VIA FACSIMILE AND U.S. MAIL
Re: Control Number: 41113
Claim Number: 11094912
Plan Holder: Dealertrak
My Client: Steven L. Gupton
Date of Birth:
Dear Ms. Formon:
I am in receipt of your November 23, 2011 correspondence with regard to your extension of time. In that regard, I would like to clarify for the record what happened with Dr. Mazzeo. First, your hired third-party expert finding service scheduled the initial appointment without first consulting with Mr. Gupton relative to his schedule. We advised your office and Dr. Mazzeo’s office that Mr. Gupton could not go to the evaluation on that day. Further, it was not just a trip across town. Dr. Mazzeo’s office is in Beaufort, South Carolina. Mr. Gupton lives in Mount Pleasant, South Carolina. The trip is 75 miles one way.
In support of our appeal, we submit the following:
Exhibit 1 – A disability evaluation by Results Physiotherapy confirming that the restrictions and limitations set by Dr. Jacques and Dr. Houser are reasonable and appropriate.
Exhibit 2 – A Physician’s Permanent Restriction/Limitation Sheet signed by Mr. Gupton’s new treating doctor, Robert Locklear, M.D.. In addition to assigning restrictions and limitations, Dr. Locklear opined that Mr. Gupton cannot work at any employment due to a degenerative neurological condition, not a mental condition. Be advised that Dr. Locklear is board certified in both internal medicine and sleep medicine. I attach his profile for your records. These restrictions and limitations preclude Mr. Gupton from even sedentary employment.
Exhibit 3 – Fourteen (14) statements of people who know Mr. Gupton and knew him before he was forced to stop employment. These statements show that Mr. Gupton was not suffering from the symptoms commonly associated with a bi-polar condition prior to his disability. Of course, Mr. Gupton continues to treat with physicians who opine that he has sustained a degenerative neurological condition. Feel free to have any or all of your consultants contact any of these witnesses. In addition, I attach a well-supported article relevant to bi-polar disorder and the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). As you can see from this article, bi-polar disorder is characterized by cycles of manic episodes, normalcy, then depressive episodes. Mr. Gupton’s medical history does not reflect such a cyclical pattern.
Exhibit 4 – Copies of the Restriction forms signed by Dr. Jacques and Dr. Houser.
Exhibit 5 – Another copy of the report of Dr. Houser and his CV. This report shows that Mr. Gupton is not suffering from a mental condition but is suffering from a degenerative neurological condition.
Exhibit 6 – Another copy of vocational expert Michael Galloway’s report setting forth the specific details about why Mr. Gupton is totally disabled.
Exhibit 7 – An O*Net Online “Details Report” for 11-2022.00 – Sales Managers. As Prudential is aware, the O*NET program is the nation’s primary source of occupational information. O*NET is being developed under the sponsorship of the US Department of Labor/Employment and Training Administration (USDOL/ETA). A cursory review of theses job duties in this type of employment shows that Mr. Gupton cannot perform this occupation.
Exhibit 8 – Documents from the Social Security Administration file for Mr. Gupton. Therein you will find Mr. Gupton’s wage history. As you will see, Mr. Gupton made $71,708.79 in 2007, $76,898.92 in 2008 and had already made $30,346.17 in the first five months of 2008. Since the inception of his disability, he has struggled to pay his bills and has had to seek help from his friends and family. His only source of income since Prudential’s denial has been Social Security – which amounts to $1,284.00 per month. Even if Prudential was paying the benefit, Mr. Gupton would only clear $4,015.91 per month – slightly more than half annually of what he was on track to earn at Dealertrak in 2008. Hence, there is absolutely no financial incentive for Mr. Gupton to seek disability.
Exhibit 9 – A Wikipedia article, which appears to be well-supported, explaining in great detail the symptoms, prognosis, diagnosis, treatment and histopathology of Multiple System Atrophy (MSA), the condition from which Mr. Gupton’s neurological difficulties most likely arise. I also attach a Review Article from the ACNR – a bi-monthly journal for neurology. Further, I attach a Medscape article from March, 2010. I include this information because one of your consultants, Dr. Richard Day, noted that there is specific criteria to make the diagnosis of MSA including “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures.” Dr. Day also noted that, “This information is not in the medical records reviewed. Because of this lack of information the criteria for this condition is not met.” These articles point out that confirming the presence of the aforementioned inclusions and structures is made through post-mortem examination of brain tissue. Although we do not have this information yet, I am fairly certain that we will be able to provide this information sometime in the future. Nevertheless, even if this information could be gathered when the patient is still alive via biopsy, this type of invasive procedure is not compulsory under the law or the Plan – especially if the procedure would be for the purpose of diagnosis only instead of treatment. See Royal Free Hampstead “Information for Patients Having a Brain Biopsy” ; Dockery v. USG Corp. Retir. Plan, No. 08-13249, 2009 WL 2960471 (E.D. Mich., Sept. 11, 2009); Heller v. Equitable Life Ass., 833 F.2d 1253 (7th Cir., 1987).
Exhibit 10 – The opinion and an exhibit from Mullins v. Prudential, No. 3:09-CV-00371-S, 2011 WL 2295265 (W.D. Ky., June 8, 2011). Specifically, the exhibit is a MES Solutions “Peer Review Services Overview.” Prudential has used MES Solutions in this case, therefore such an overview is relevant. Furthermore, attached are several exhibits from Testa v. Hartford Life Ins. Co., No. 08-cv-816(FB)(RER), 2011 WL 795055 (E.D. New York, March 1, 2011). These exhibits reflect upon MES’ relationship with its insurers and shows a report of Dr. Topper, one of Prudential’s consultants in this case.
Exhibit 11 – PsyBar documents including an online article entitled, “Top 10 Reasons to use PsyBar to provide IMEs,” a summary of PsyBar Video presentations found on its website, a “Abbreviated PsyBar LLC IME Evaluation Interview Outline”(please note that page three of this outline provides that raw scores will be set forth in the body of the report or as an attachment), a PsyBar “IME/Treating Doctor Report Critique Referral Form,” the “For Insurers” section found on the homepage of PsyBar’s website, a PsyBar “Independent Contractor Agreement,” a PsyBar “Expert Questionnaire; Practice Particulars” form, and the “Report Critique Services from PsyBar,” section found on the homepage of PsyBar’s
website. Finally, attached are two screenshots of a PsyBar power-point type presentation showing that PsyBar rates the reports of its panelist consultants. PsyBar was used by Prudential in this case, therefore this information is certainly relevant.
Exhibit 12 – With regard to MLS Group of Companies, which assisted Prudential in finding its consultants, I attach the following case law: Carroll v. Prudential Ins. Co. of Am., No. 2:08-cv-737, 2010 WL 3070187 (S.D. Ohio, Aug. 5, 2010); Barteau v. Prudential Ins. Co. of Am., No. CV08-02733 RSWL (FMOx), 2009 WL 1505193 (C.D. Cal., May 26, 2009); Hall v. MLS National Medical Evaluations, Inc., No. 05-185-JBC, 2008 WL 130845 (E.D. Ky., Jan. 9, 2008); Hall v. MLS National Medical Evaluations, Inc., No. 05-185-JBC, 2006 WL 2873174 (E.D. Ky., Oct. 5, 2006)(Exhibit C to Motion also attached); MLS National Medical Eval. Services, Inc. v. Templin, No. 08-11653, 2008 WL 2704672 (E.D. Mich., July 9, 2008). I also attach herewith the deposition of G. Joseph Schimizzi, one of the owners and operators of MLS, which is located in Southfield, Michigan. Further, I attach Secretary of State records for several MLS business entities. With regard to this deposition, Joseph Schimizzi confirmed that his father, Tony Schimizzi, is the owner of Medicolegal Services, Inc. – a company located in Southfield, Michigan that arranges IME’s within the state. (Medicolegal Services has operated under the assumed name MLS National Medical Evaluation Services in Michigan. MLS National Medical Evaluation Services is also an assumed name for The MLS Group of Companies, Inc. – which is incorporated in Texas but is located in Southfield, Michigan). Further, I attach screen shots from the Disability Management Employer Coalition (DMEC) website showing that Denise Pretzer-Zucker sits on the Board of DMEC as an officer/chair. Ms. Pretzer-Zuckerberg is an employee of the Schimizzi owned Medicolegal Services, Inc.. Prudential is listed as a National Sponsor for DMEC. How can MLS be truly independent under these circumstances? Ms. Pretzer-Zuckerberg’s resumé (attached) states that while she worked for MLS, her duties would be “Market and selling independent medical examinations for corporations associated in the insurance industry.”
In addition to the foregoing, attached are screenshots from the website of MLS explaining the details of a secure system called eC@se Manager. According to this information, eC@se Manager is a web application program that allows claims professionals secured on-line access to track status of cases and “Supervisory/Management access to all cases.” MLS simply cannot be “independent” under these circumstances
Exhibit 13 – With regard to Prudential’s medical director, Dr. Richard Day, I attach the following case law in which Dr. Day’s opinions are discussed: Kuhn v. Prudential Ins. Co. of Am., 551 F.Supp 2d 413 (E. D. Pa., 2008); Nicolas v. MCI Health & Welfare Plan No. 501, No. 2:05-cv-442 (TJW), 2008 WL 4533728 (E. D. Tex., Sept. 29, 2008); Slupinski v. First Unum Life Ins. Co., 554 F.3d 38 (2d Cir., 2009); Besser v. Prudential Ins. Co. of Am., No. 07-00437 BMK, 2009 WL 2045695 (D. Hawaii, July 13, 2009); Pettway v. Prudential Ins. Co. of Am., No. 5:08-cv-283 KS-MTP, 2009 WL 2973393
(Sept. 11, 2009); Porco v. Prudential Ins. Co. of Am., 682 F.Supp.2d 1057 (C.D. Cal., 2010). It appears that the courts will not hesitate to call his opinions in to question.
Exhibit 14 – With regard to Prudential’s consultant, Dr. Melvyn Attfield, I attach the following case law in which Dr. Attfield’s opinion is discussed: Pfluger v. U.S. Group Long-Term Disability Ins. Plan No. 505, No. 03-c-0710, 2007 WL 130193 (E.D. Wis., Jan. 16, 2007)(Attfield’s opinion fraught with qualifications and inconsistencies).
Exhibit 15 – With regard to Prudential’s consultant, Dr. Leonid Topper, Prudential submitted his curriculum vitae with what it has sent to me thus far(attached). Without question, his expertise is in pediatric neurology. Attached are several court opinions in which the opinion of Dr. Topper have been called into question. This includes Manriquez v. Abbott Laboratories Ext. Disab. Plan, No. CV-09-00099-PHX-GMS, 2010 WL 3023260 (D. Ariz., July 30, 2010); Pauley v. Hartford Life and Accident Insurance, No. 2:09-cv-00896, 2010 WL 2836746 (S.D. W. Va., July 20, 2010); Testa v. Hartford Life Ins. Co., No. 08-cv-816(FB)(RER), 2011 WL 795055 (E.D. New York, March 1, 2011); Langston v. North Am. Asset Dev. Corp., No. C 08-02560 SI, 2009 WL 941763 (N.D. Cal., April 6, 2009); Finley v. Hartford Life & Acc. Ins. Co., No. C 06-06247 CW, 2009 WL 3517648 (N.D. Cal., Oct. 26, 2009).
Exhibit 16 – A copy of a Motion for Contempt filed against Prudential in Grams v. American Medical Instruments et al, No. 3:08-cv-1060, (M.D. Fla., Oct. 6, 2008. Exhibit A to this motion shows that Prudential has produced copies of its Group Disability Memos, Best Practices Memos and portions of its DMS Training Manuals. This Exhibit also shows that Prudential has produced servicing agreements with third parties concerning outside medical reviews.
Exhibit 17 – Prudential’s response to Interrogatories and Requests for Production in Myers v. The Prudential Ins. Co. of Am., No. 3:09-cv-00371 (E.D. Tn., March 7, 2009). This document shows that Prudential can and does keep track of the reviews that a particular physician performs for its claims. Further, the document shows that Prudential can disclose how many reviews its third parties have performed in a particular time-frame and how much Prudential has paid to these third parties. The document also shows that Prudential can find and produce other documentation related to a disability claim such as Mr. Gupton’s.
The foregoing is all of the information that we will be submitting for this matter(480 pages total with this package). Prudential should now have a digital video recording of a neurological exam by one of Mr. Gupton’s treating physicians, Dr. Jacques. Interestingly, your consultant rejected the observable results of this exam by either misrepresenting the contents of the exam or simply failing to review the video. I specifically showed how in my April 29, 2011 correspondence. You also have Mr. Gupton’s video statement and Social Security wage records that show there is no reason to malinger and no incentive to seek disability. These records also show that Social Security awarded benefits to Mr. Gupton on the first application, with no attorney assistance and for cerebral degeneration. Prudential has 21 witness statements attesting to Mr. Gupton’s total disability. Prudential has 14 witness statements that support the diagnosis of a neurological condition instead of a mental condition. You have two treating physicians and an evaluating psychiatrist that have assigned restrictions and limitations that preclude Mr. Gupton from pursuing even sedentary employment. You have a physical capacity examination that supports these restrictions. You have the vocational report of Michael Galloway attesting to the specifics of Mr. Gupton’s vocational disability. Your own neurologist, Dr. Dew, found that Mr. Gupton had cognitive impairment. Your own neuropsychologist, Robert Moss, Ph.D., did not rule out multiple system atrophy. The remainder of your consultants and third-party administrators have serious bias issues or are simply unqualified to render an opinion in this case. Therefore, we request that Prudential overturn its decision and award benefits in this matter.
John B. Dupree
The consultant calls Mr. Gupton’s condition a “somatoform disorder” or a “conversion reaction.” Somatoform disorder is mental condition that causes physical symptoms. Conversion reaction is also mental – but a true conversion reaction is rare. Incidence has been reported to be 11-300 cases per 100,000 people. Conversion disorder may present at any age but is rare in children younger than 10 years or in persons older than 35 years. Sex ratio is not known although it has been estimated that women patients outnumber men by 6:1.
I represent a man named Steve Gupton (Mr. Gupton has given me permission to post this). Mr. Gupton’s physicians believe that he has a neurological condition called Multiple System Atrophy (MSA). MSA is a degenerative neurological disorder associated with the degeneration of nerve cells in specific areas of the brain. This cell degeneration causes problems with movement, balance and other autonomic functions of the body such as bladder control or blood pressure regulation.
Mr. Gupton filed a claim for long term disability with Prudential. Prudential then engaged in the usual tactic of asserting that his condition is mental and is thus limited by the terms of the policy to only two years of benefits. In my opinion, Prudential does not want to pay this claim because Mr. Gupton is relatively young and his monthly benefit would be significant.
Prior to his disability, Mr. Gupton was making nearly $80,000.00 per year as a salesman – living independently in Greene County, Tennessee. Now Mr. Gupton has moved in to live with his mother in South Carolina and receives Social Security disability benefits. Mr. Gupton applied for, and received, Social Security disability on the first try without the assistance of an attorney.
Prudential has gone to great lengths to deny Mr. Gupton’s claim. It paid a neuropsychologist $4,500.00 for a report that said Mr. Gupton was faking his condition and symptoms. It hired private investigators to stake out Mr. Gupton’s house. Mr. Gupton believes that they are still watching his mother’s house as I type this today.
But to the blindness thing. This posting is for the purpose of showing anyone who comes to this site, including the general public, the truth about Prudential’s behavior in Mr. Gupton’s claim.
Prudential has ignored a landslide of support for Mr. Gupton’s neurological disability. For example, as part of our proof, we submitted a video-taped neurological evaluation performed voluntarily and without charge by Mr. Gupton’s treating neurologist – Dr. Jacques. On February 23, 2011, Prudential sent a denial letter for the claim relying upon the opinion of its medical “file reviewer.” I’ll not pull punches here – Prudential’s consultant should not practice medicine on any human or animal if his observations related to the video evaluation are truly reflected in the denial letter. You make the call.
Here are some direct quotes from the denial letter, our response and the relevant clip from the video evaluation.
-On page 8, third paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“Dr. Jacques asked Mr. Gupton to touch his nose with the pointer finger. . . . Mr. Gupton was able to touch the tip of his nose very precisely on the first attempt with the right hand, and on the second attempt with the left hand.”
Viewing the video at the 2:00 – 2:10, Mr. Gupton was all over the place with his fingers before “precisely” landing on the end of his nose.
\"Precise\" Nose Touching?
-On page 8, fourth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“. . . Then Mr. Gupton performed finger to nose to finger maneuver, fine motor finger tapping of both upper extremities, and rubbing his heel up and down his shin. All these maneuvers were performed with significant tremor of both upper extremities and both lower extremities but the heel rubbing over the shin was fairly precise. . . .”
While the Prudential consultant seemed to notice tremor, we vehemently disagreed that anything about the testing was “precise.” Observing these tests on the video from 2:20-3:27, if that heel rubbing can be called “precise,” I guess “imprecise” would be closer to an all out seizure. Mr. Gupton’s heel rubbing is anything but exact and sharply defined.
Precise Shin Rubbing?
-On page 8, fourth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“. . . Then Mr. Gupton was asked to walk on a straight line, heel to toe. The camera did not show the whole body but demonstrated only the feet which were placed fairly precisely on the line. . . .”
Again with the “precisely” wording. How about the stumble before it all started? How about Dr. Jacques holding his arm the whole time? This test can be observed from 3:30 – 3:56 on the video.
Precise Line Walking?
-On page 8, sixth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“Mr. Gupton was able to stick out his tongue, feel light touch in all three trigeminal branches on both sides, was able to close his eyes tight, and to shrug his shoulders symmetrically. . . .”
I am not sure what this statement is intended to convey but Dr. Jacques had to tell Mr. Gupton to keep his tongue hanging out. She also had to tell him to put his shoulders back down. These tests can be found at 5:28-6:04.
Huh? Is Mr. Gupton Doing Good Prudential?
-On page 9, first full paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“. . . He knew that if a person stands on a cliff he would grab him. While answering this question, Mr. Gupton’s tremor decreased substantially. . . .”
First, it took ten seconds for Mr. Gupton to come up with that answer. From 10:39-10:49 on that video. Second, of course you would not observe shaking during this time period (10:19-10:49) because Mr. Gupton was sitting down, because his left hand was resting in his lap and because his right elbow was resting on the examination table and his right hand was almost constantly glued to his face. HOWEVER, it can be clearly observed that at 10:21 and 10:24, Mr. Gupton’s right hand and pointer finger were shaking.
This is a cliff hanger
-On page 9, second full paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”
“Mr. Gupton was able to show how to squeeze toothpaste on a toothbrush and started showing how to brush his teeth but showed how to brush using his finger and not the toothbrush. Dr. Jacques inquired if Mr. Gupton does have trouble brushing his teeth since his hands experience shaking problems. He answered “yes” to this leading question.”
First, thankfully Mr. Gupton did not have a real toothbrush and toothpaste. He might have trashed the examination room. Mr. Gupton’s pretend teeth brushing can be observed at 9:41 – 10:16.
To Prudential: Gingivitis is the number one cause of tooth decay
But never mind about this trifling visual proof, how about scientific support for Mr. Gupton’s MSA diagnosis? Prudential’s Medical Director, Dr. Richard Day, noted that there is specific criteria to make the diagnosis of MSA including “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures.” Dr. Day also noted that, “This information is not in the medical records reviewed. Because of this lack of information the criteria for this condition is not met.” Thus the claim was denied. The only problem is that you can only get “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures” THROUGH POST MORTEM HARVESTING FROM THE BRAIN! But you would be dead and the policy says that’s when benefits stop so you lose any way!
Behold what you are in for if you file a disability claim with Prudential! If you want to know more of the story, read the final submission letter I sent to Prudential included in this blog. If you want the complete picture, wait a few months after this post and check the Pacer system in the federal courts for the administrative record. By then, the case will have been removed by Prudential lawyers from pesky state court to the federal court.
If you want to know, here are some of Prudential’s paid external and internal medical advocates in Mr. Gupton’s case:
Dr. Leonid Topper
Dr. Richard Day
Dr. Melvyn Attfield
Robert Moss, Ph. D.
Dr. Charles S. Jervey
1) Dead people usually qualify for disability benefits. Anything short of death and they can find a job for you.
2) Apparently insurance companies are in the hardwood flooring business. You can’t watch a basketball game without seeing an insurance logo emblazoned on the court.
3) The Hartford elk is really just two kids in one of those double-guy costumes. It looks more realistic now that they moved the horns to the head instead of the rear-end.
4) The Geico gecko is really just a baby komodo dragon.
5) MetLife’s first cartoon front man was Pigpen, not Snoopy.
6) The CIGNA logo, while apparently representing a benign tree, actually represents a many-headed hydra. Hydra (“water serpent”) is the name of the Lernaean Hydra, a many-headed serpent in Greek mythology. The Hydra had the body of a serpent and many heads (the number of heads deviates from five up to one hundred there are many versions but generally nine is accepted as standard), of which one could never be harmed by any weapon, and if any of the other heads were severed another would grow in its place (in some versions two would grow). Also the stench from the Hydra’s breath was enough to kill man or beast. When it emerged from the swamp it would attack herds of cattle and local villagers, devouring them with its numerous heads. It totally terrorized the vicinity for many years. Nowadays it just emerges when you file a claim, stinks up the place and then starts denying claims.
7) The AFLAC duck moonlights as one of their panel physicians.
8) SunLife is known risk for skin cancer.
9) If you look real close, the Mutual of Omaha Indian is a real sourpuss.
If you have filed a disability claim with an insurance company, here is what some disability attorneys would say are generally the most important things to remember:
1) Know What You Have to Show to Get Your Benefits.
If you don’t have a copy of your policy or summary plan description, you will not know what you have to show in order to be eligible for benefits. Also, you will not know what exclusions and limitations might be problematic for your claim. If you do not have a copy, go get your policy from the insurance company or your employer.
2) Check the Insurance Company Calculations.
Sometimes the insurance company will miscalculate the benefit that is due under the policy. Look at the policy and make sure they did it right. You also might have to obtain some of your pay records in order to be sure that the underlying numbers are correct. I once found a claim that had been miscalculated to the tune of an extra $1,000.00 per month.
3) The Less You Can See of Your Medical Condition, the Harder It is to Get Your Benefits.
I once had an old insurance defense attorney tell me, “I pay for blood and broken bones.” What he was telling me was that insurance companies like to be able to “see” the injury. Over time, adjusters and others in the insurance industry become cynical because sometimes claimants exaggerate their injuries, or are dishonest about pre-existing conditions or just make up an injury and make a claim for the resulting alleged pain. So it is a lot easier for an adjuster show that a correct claim decision was made if he or she can point to an MRI, or refer to a blood test or show some other objective test that leaves no question about the nature of the disability. From time to time, an independent auditing company will come in and review the claim files to make sure that everything is going the way it should with the claims. This auditing company will be paid a lot of money to perform this service. Now, how do you think the paying client would react if the auditing company failed to find anything wrong with the claim files? These auditing companies feel that they need to justify their existence – so even if the claims are adjusted correctly, they are going to find SOMETHING. Quite naturally, when the auditing company is looking for a scapegoat to justify its existence, this makes adjusters and their supervisors a little nervous. Hence, medical conditions that cannot be seen will be under more scrutiny. This does not mean that the condition is not real, it just means that the adjuster will look at it harder.
4) You Are Either Disabled or Not. Period.
There is no such thing as “halfway” disabled under your normal disability policy. Of course, there is always a “partial disability” benefit, but I have never seen an insurance company pay such benefits. Someone may be out there collecting these benefits, but I have never seen it happen. From what I have seen, if you can raise your head off of a pillow, you can work a full time job according to the insurance companies. So, in my opinion, a disability claimant needs to sit down with his or her family and consider whether there is any meaningful employment that can be performed by the claimant. If not, then perhaps it is time to make a claim for total disability. Most disabled claimants want to work but simply cannot given their medical conditions. If that is the case, then make a claim for the benefits that you are due.
5) Remember That Insurance Companies Have No Soul.
No matter how many commercials you see that might that try to convince you that an insurance company is such a cuddly and nice entity, it is still a COMPANY. It has a fiduciary obligation to its investors to maximize its profits. That means getting premiums and not paying claims. You’re not in good hands and you won’t have a good neighbor.
I have not posted for some time now for a simple reason – I’ve been into an intense period of litigation in my cases. I was recently reviewing the blog of a law professor and noticed that he was posting about 4 or 5 items per day. That’s fine for an academic. However, for those of us out in the streets, it is almost an impossibility. But that does not mean we litigators are not doing our part. Since Obama was elected, I sent my previously posted letter to the Department of Labor for a second time. I mentioned in my cover letter that I sent the same letter to the Department during the tenure of the Bush Administration – I never heard a peep. Hopefully, the Obama Administration will hear my appeal. Claimants need help now. I will promptly report when and if I receive some reply from the Department
For your general information, I typically file my disability cases in state court. There are two reasons: First, usually the filing fee in state court is much lower (in Knox County, Tennessee, the filing fee in Chancery Court was $57.00 until this past summer; now it is about $125 or so; filing in the Eastern District of Tennessee costs $350.00!) and because I believe that the state courts may be more sympathetic to a claimant’s case than the federal courts. In almost every case, the insurance company removes the case from state court to federal court pursuant to the ERISA statutes. While it is appropriate to file in state court, it is also appropriate to remove the case to federal court (although I do not agree with the premise that the federal courts are more prepared to handle these cases). But why would the insurance companies want the case in federal court? Hmmmmmm…… At any rate, in a recent case the insurance lawyers did not remove the case. Hence, I am excited to be able to litigate in a state court and I have been preparing a host of different pleadings in the case.
On another note, keep an eye peeled for Edwards v. Cigna/Lina here in the Eastern District. This case is ripe for decision and I just pray that Mr. Edwards prevails.
For claimants reading this blog – here’s a few things to keep in mind: I have represented insurance companies in the past – that’s how I cut my teeth in the legal profession. What I learned is that insurance companies aren’t in the business of paying claims, they are in the business of denying claims. How do I know? Because I was regularly hired by insurance companies to take a look at files – evaluate the facts, review the policy and determine if there was any way to deny the claim. I was expected to find a way to get it done for the insurance company. So, make no mistake – if you have a claim, there are people evaluating whether there is a way to deny your claim. On the flip side, if you have an claims agent or adjuster who really cares – who listens and doesn’t treat you unfairly – then personally thank them and tell others about your experience so that the company is rewarded for its fairness.
Other things to watch out for: Don’t let the insurance company just schedule a evaluation without even consulting you to determine if the evaluation comports to your calendar. It is rude for an insurance company or its agent to just tell you when and where you are to report for the evaluation. You may be disabled from work, but this doesn’t mean you stop living life – you have appointments too. Let them know if you have a conflict and make them reschedule. In addition, don’t let an insurance company back you into a corner and make you decide which of your multiple problems you intend to claim under the disability policy. If you have a constellation of medical difficulties, you have the right to CLAIM THEM ALL! Finally, be aware of the limited disabilities in your policy – specifically “self-reported” or mental claims. These are usually limited to two years of benefits. So don’t let the insurance company force you into one of those categories if you have disabilities that lie elsewhere.
I will have more tips and gripes later. Good luck with your claims and hang in there. John.
For you folks that are into the “any occupation” period of disability for your plan, beware of the insurance company sending “Proof of Continuing Disability” forms to you for completion on a seemingly constant basis. Once you have established disability from any occupation, and your disability is one that arises out of a condition that is permanent and will not improve, then such forms should only be sent once a year in my opinion. Twice a year is pushing it. Three times a year is too much. Look at your policy – I bet it doesn’t say that that the insurance company has the authority to hassle you and you doctor in this way. Bring this to the attention of the insurance company.
Here’s a letter I wrote to the U.S. Dept. of Labor regarding the problems with Erisa. This letter was sent in April of last year. I have not heard back. I will state that Mr. Duncan’s office assisted as much as possible and it is much appreciated.
Dear Mr. and Ms. :
As a matter of introduction, I am a lawyer practicing in Knoxville, Tennessee and a constituent of Representative Jimmy Duncan. Last year, I sent an inquiry to Mr. Duncan regarding difficulties that I am encountering during the course of my representation of citizens who have been denied short-term and long-term disability benefits pursuant to the ERISA (Employment Retirement Income Security Act) statutes and regulations. Mr. Duncan referred me to your office for guidance. Thus, I spoke to several times about this matter. Ms. has been patient and helpful. She suggested that I send a letter to the two of you for consideration of my queries. Hence this correspondence.
I will attempt to summarize my concerns. These ERISA disability claims are, of course, different than a social security disability matter. These cases involve a person who becomes totally disabled from employment for any reason – such as a bad back injury, disease etc.. Sometimes the person’s employer has a benefit offered for disability insurance that will pay the disabled person 2/3 of their salary until he or she reaches the age of 65. The disability insurance is offered by companies such as AFLAC, UnumProvident, Hartford, JeffersonPilot etc… The premiums are deducted from the employee’s paycheck or are paid by the employer as a benefit. ERISA comes into play because if the policy is an employee benefit, ERISA controls all aspects of the claim.
You may not know this (or you may be well aware) that ERISA claimants are at a supreme disadvantage if their claims are denied. Set forth below is a list of the reasons why from a lawyer working at the forefront of these issues:
1) The primary reason for a claimant’s disadvantage is that if the insurance company reserves “discretionary authority” to interpret the terms of the policy and decide if the claimant is totally disabled, then the decision is subject to the highly deferential “arbitrary and capricious” standard if the matter proceeds into litigation. The “arbitrary and capricious” standard is the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation for a particular outcome based on the evidence, that outcome is not arbitrary and capricious. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). Hence, all that the insurance company has to do is hire a doctor to look at the medical records and determine that the claimant could perform a sedentary job. (There is a whole closet industry of physicians who willingly perform this service. Or the insurance company may simply have a nurse or physician on staff to render such a decision.). Once the doctor opines that the claimant can work at a sedentary job, the insurance company has a “reasoned explanation” for its decision. And the claimant loses the subsequent lawsuit eight or nine times out of ten.
2) Once in litigation, the reviewing judge will only look to the administrative record from the insurance company to determine if the decision was “arbitrary and capricious.” In other words, the judge gets to consider what is in the insurance company’s file – and they choose very carefully what goes into the file. I can submit anything I want but it does not matter – if the insurance company employee physician/nurse or hired gun physician/nurse determines that the employee can work at a sedentary job, the claimant usually loses – even if the consultant does not personally examine the claimant or review all of the records.
3) A sedentary position can include a host of different jobs that a claimant has never performed. It does not matter if any of the jobs are actually available in the claimant’s community – it just hypothetically has to be available in the community.
4) There is no incentive for the insurance company to award benefits. The only damages that a patient can recover from the insurance company are the benefits and nothing else (with the exception of attorney fees, but you have to win in court to get attorney fees – even then, its discretionary with the court). This means that the claimant can be disabled, apply for benefits, have the claim denied, go through a lengthy mandatory internal appeal process with the insurance company, then file in court and perhaps win – but in the mean time lose his house to foreclosure, get sued for not being able to pay bills, lose his car and his ability to pay for the necessities of life – go through the attendant depression and other mental and physical results of financial distress – and ONLY get the benefits that was entitled to in the beginning. There is no recovery for pain, suffering or other consequential damages that arise out of an unfair denial. These cases last for years and at the end, the claimant has a huge hurdle to clear in federal court in order to win. If the insurance company offers to award benefits at the end of the lengthy appeal process, it will never pay for attorney fees or any other expenses. Furthermore, the “specter” of attorney fees awarded against the insurance company is unpersuasive. Attorney fees are only calculated from the time that the litigation begins forward. Moreover, hypothetically assuming that the attorney fee might reach a high number – like $15,000.00 – this is simply a tiny drop in the bucket to an insurance company that makes profit in the hundreds of millions or even billions of dollars. Hence, there is simply no incentive to award benefits. None.
5) Discovery is only very rarely allowed during litigation so the insurance companies can hire nefarious consultants, disregard their own internal claims policies and scheme against the claimant with no fear of discovery down the road. In other words, since a claimant cannot go in and ask questions about the policies, procedures, consultants, or anything else once the lawsuit begins, the insurance company has free reign to do what it wants secure in the protection they will receive in the courts. In normal civil suits, “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party ····” Fed.R.Civ.P. 26(c). Further, the scope of discovery is extremely broad under the Federal Rules of Civil Procedure and “is ··· within the broad discretion of the trial court.” Lewis v. ACB Business Servs. Inc., 135 F.3d 389, 502 (6th Cir.1998). However, discovery in ERISA suits has been generally limited unless there has been a violation of due process. Courts in the Sixth Circuit have repeatedly held that ERISA benefit actions are substantially limited proceedings that do not involve full trials. Schey v. UNUM Life Ins. Co., 145 F. Supp. 2d 919, 921 (N.D. Ohio 2001); see also Lucas v. Challenge Machinery Co. Salaried & Non-Union Employees. Retirement Plan, 144 F. Supp.2d 885, 887 (W.D. Mich. 2001). Therefore, in reviewing ERISA benefit denial cases, a district court only considers the administrative record that was before the administrator at the time the claim for benefits was denied. See Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir. 1990). The Sixth Circuit has set forth a limited exception to this general rule in Wilkins v. Baptist Healthcare Systems, Inc. by stating: “The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. This also means that any prehearing discovery at the district court level should be limited to such procedural challenges. Wilkins v. Baptist Healthcare Systems, Inc., 150 F.3d 609, 619 (6th Cir. 1998). But how are claimants going to be able to make an initial showing of evidence in support of procedural challenges when there is no discovery allowed? The only way to obtain the information is 1) if the information falls out of the sky; 2) if the insurance company voluntarily turns over the information. In my e
xperience, 1) has never happened to date and 2) has only happened when the insurance company makes a mistake. So, the claimant can only ask the Court to allow discovery regarding procedural issues but the Court is going to require the claimant to provide evidence of procedural irregularities in order to get the chance to ask questions about procedural irregularities. It’s circular and unfair.
6) Other matters that lie at the root of ERISA unfairness include:
a) Insurance consultants contact treating physicians and ask questions that are geared toward supporting sedentary work. The conversations are not recorded and the claimant is not advised that this is occurring so that he/she can participate.
b) Insurance adjusters send questionnaire’s to treating physicians that are geared toward establishing the ability to perform sedentary work rather than total disability. Again, the claimant is often not advised that this is occurring.
c) Treating physicians are requested by the insurance company to complete verifications of continuing disability over and over again until they become exasperated with the claimant and complete the form wrong, don not complete it at all or fire the claimant as a patient. Then the insurance company can deny the claim or terminate the claim for failure to provide proof of continuing disability.
d) Insurance companies repeatedly request medical records and verifications of disability to be provided by the claimant – this is not a problem for you and me, but the cost of obtaining medical records and the expense of having the treating physician complete forms on a regular basis can be devastating to a claimant that cannot work. If the information is not provided, the insurance company may deny the benefits or terminate benefits for failure to provide proof of continuing disability.
e) Frequently insurance companies hire a consultant who renders an opinion about disability and the decision is made to deny benefits without ever advising the claimant that this has occurred or providing the claimant with an opportunity to dispute the opinion of the consultant prior to the final decision. The decision simply arrives in the mail and the only thing the claimant can do is file suit in the hope of overcoming the arbitrary and capricious standard.
f) Although the terms of the policy are usually made available to claimants via a summary plan description or employee handbook, the terms themselves are lengthy and technical. Tucked away in the terms is offset language (allowing the insurance company to subtract social security benefits, worker’s compensation benefits or other sources of income out of the gross benefits due to the claimant) and the “discretionary authority” language aforementioned. The claimants are usually quite surprised to hear that they are not going to receive 2/3 of their income but much less because of the offset provisions. Further, ALL claimants are unaware of the “arbitrary and capricious” hurdle at the end of their cases. I submit that not many claimants would have purchased the insurance if they knew about the significance of these provisions and that the failure to bring this to their attention amounts to deceptive behavior by the insurance companies.
g) Insurance companies frequently label the employer as the “Plan Administrator” while reserving all discretionary authority over the claims to themselves. What this means is that the insurance companies can escape the regulatory penalties of $100.00 per day for failure to provide information to claimants. The regulatory penalties only apply to “Plan Administrators” not “Claims Administrators” or whatever label the insurance companies reserve for themselves. This shifting of responsibility has been deemed appropriate by the courts in the Sixth Circuit. The problem is that the only entity with information critical to the claim is the insurance company – an entity that has escaped penalty by denoting some other entity as the “plan administrator.”
h) The insurance companies have refined the way that they administer these claims over the years. Their consultants have been trained to phrase opinions in certain ways, the policies have been redrafted to close any loopholes or beneficial paragraphs, the adjusters are trained to find ways to deny claims (and many times receive bonus compensation based upon the profitability of the company – i.e. – the more denials, the more profitable the company), and the insurance companies have a stable of lawyers that can work for them at any time. Patients have no-one to help them.
i) Many times claimants are too sick or too illiterate to fight with the insurance company over a benefit denial. Many claimants simply accept the denial and move on with their miserable lives. If the claimants do appeal, the insurance company can keep denying the benefits – maybe the claimant will die, maybe the claimant’s doctor will check the wrong box, maybe the claimant will get better, maybe the claimant will not be able to find an attorney or other person to help him, maybe the claimant will screw up and not get a form in on time. And at the end, if the insurance company is wrong, it just has to start up the benefits again. Why not just deny the benefits and see what happens? Many insurance companies do just that.
j) It is hard to find legal representation for this kind of case. Not many attorneys are willing to undertake a case that in all probability is going to amount to a judgment of “0” at the district court level. ERISA is daunting and regulation intensive – a malpractice nightmare for attorneys not experienced in this area of the law. Hence, I may be only one of a handful of attorneys in east Tennessee willing to undertake this kind of case. Here is the tragedy – I have only had one client with the ability to pay me by the hour to undertake his case.
The typical client is destitute and can only promise me a percentage of the recovery in the future. Yet they always are glad to have representation because I am able to give them hope – without me, they get nothing.
I represent two gentlemen presently who are unquestionably totally disabled. I will give you their names because they are both constituents of Rep. Duncan. Their names are Mr. A and Mr. B (names deleted for privacy). I will start with Mr. A. Mr. A has Crohns disease. He has 75% of his gastrointestinal tract removed. He has an illiostomy bag that has to be changed every two hours. He has been taking steroids since the late 1970’s – as a result his bones are brittle and he has permanently broken collar bones that will not heal. He has had no more than 2 hours sleep at a time for the last 5 years. He has had nine surgeries and has spent more than one full year IN the hospital since about 1995. He is constantly in danger of illness – during flu season he does not leave his house for about 2 or 3 months. He once went without solid food by mouth for 18 months. He takes a BAG of medication every day. He has sold everything he has to pay his bills. He has no pension and he has multiple mortgages on his home. He is in pain every single day of his life. Nevertheless, in an effort to find meaning in life, during the summer he goes to Camp in County to help the BoyScouts for a number of weeks. He has an air-conditioned room and a camp physician that stays in the room next to him – thus he has better care than if he was at home. His job is to counsel homesick boys and attempt to get them to stay at camp. He also serves as the camp chaplain. He lets the boys know that life is not so bad. Well, the insurance company, specifically CIGNA, found out about it and unilaterally terminated his benefits that had been paid regularly since the early 1990’s. Cigna asserted that because he could help the BoyScouts, my client was not totally disabled. Cigna did not call my client, the BoyScouts or the treating physician – it simply cut off the benefits without ever advising my client. He found out because checks started bouncing. Cigna knew that if it could find a way to deny the claim, there was a good chance that my client would lose the will to pursue the claim, that it may be able to put such financial pressure on my client that he would just settle his claim cheaply, that he may not have been able to appeal the case correctly, that he may have never be able to find an attorney to help him, that he may just die or, last but not least, that the law would be in Cigna’s favor if the matter was decided in federal court two years from now. Fortunately I have been able to help him through the appeal process and we are now in litigation but there are hosts of other patients in outskirting counties that cannot find an attorney. Of note is that, after over almost two years, Cigna still has not provided me with the name of the plan administrator and it has not provided me with a copy of the applicable policy.
The second man is Mr. B. Mr. B has stage IV hepatitis C and needs a new liver. He also has a five-level fusion in his lower spine. He was receiving long term disability benefits from JeffersonPilot for about four years. Apparently, a new adjuster took over his file, looked at the medical records and determined that Mr. B was no longer totally disabled. No call to Mr. B, no call to the treating physicians – just cut him off. I found out later that JeffersonPilot did not even have a medical person or vocational person of any kind reviewing the file prior to the termination. Mr. B is in terrible pain from his diseases and is so fatigued that he sleeps for about 20 hours out of each day. I had to reschedule his video statement several times because he did not have the strength to ride in a car to my office and give a statement. He takes an extensive list of medications and, without question, is one of the sickest claimants that I have ever represented. After terminating his benefits, I appealed the decision and JP hired a consultant in Omaha Nebraska to go in, look at what the adjuster did, look at the medical records and render a determination about Mr. B’s ability to work. I have since discovered that the consultant, Dr. , is an insurance industry utility man. Until May 2004 he was Senior Vice President and Chief Medical Officer (whatever that means) for the Mutual of Omaha Companies. Now he operates a medical consulting company out of his home in Omaha – _______. He also is the managing partner for an expert witness company called ________ LLC. He is no longer treating patients but devotes himself to providing expert opinions and training other experts to provide expert opinions – he now has a J.D. and an MBA. At any rate, without examining Mr. B or speaking to the treating physicians (one of whom gave me a sworn statement for FREE because he felt so strongly about this case), Dr. opined that Mr. B could hold down a full time job. Therefore JP upheld its denial. I had to fight my way through JP’s internal appeal process before JP finally overturned its decision – but not before Mr. B received foreclosure papers on his home.
These examples are not unique. I encounter these types of denials frequently.
Here is what I am going to propose to make this process more fair. I am not asking to change the ERISA statute. I am asking for a change in the federal regulations that help guide the internal appeal process. Since the only opportunity that a claimant has to place evidence into the claim file is PRIOR to litigation, I would like a clarification of the regulations to allow claimants to test the validity of the insurance company denial prior to a final decision. The controlling regulations are found at 29 C.F.R. 2560.503-1(h)(2)(iii) and 29 C.F.R. 2560.503-1(j)(3). These regulations provide that a claimant can obtain “other information” from the insurance company that is or was pertinent to the denial decision. I would like a clarification that will allow a claimant to test the validity of the decision and the validity of the insurance company evidence during the appeal process. Or, how about some way for the claimant to have discovery after litigation begins? I am asking for no more than any litigant would be entitled to in any ordinary breach of contract case.
III. RELEVANT STATUTES AND REGULATIONS
29 U.S.C. § 1133 states that:
Every employee benefit plan shall-
(1) provide adequate notice in writing to any participant or beneficiary whose claims for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and
(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.
29 U.S.C.A. § 1132(c)(1) states:
(c) Administrator’s refusal to supply requested information; penalty for failure to provide annual report in complete form
(1) Any administrator (A) who fails to meet the requirements of paragraph (1) or (4) of section 1166 of this title, section 1021(e)(1) or section 1021(f) of this title with respect to a participant or beneficiary, or (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.
29 C.F.R. 2560.503-1(h)(2)(iii) states:
(2) Full and fair review. Except as provided in paragraphs (h)(3)
and (h)(4) of this section, the claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a
claim and adverse benefit determination unless the claims procedures– . . .
(iii) Provide that 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. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to
paragraph (m)(8) of this section;
29 C.F.R. 2560.503-1(j)(3) states:
(j) Manner and content of notification of benefit determination on review. The plan administrator shall provide a claimant with written or electronic notification of a
plan’s benefit determination on review. Any electronic notification shall comply with the standards imposed by 29 CFR 2520.104b-1(c)(1)(i), (iii), and (iv). In the case
of an adverse benefit determination, the notification shall set forth, in a manner calculated to be understood by the claimant–. . .
(3) A statement that the claimant is entitled to receive, 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. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by
reference to paragraph (m)(8) of this section;
29 C.F.R. 2560.503-1(i)(5) states:
(5) Furnishing documents. In the case of an adverse benefit
determination on review, the plan administrator shall provide such access to, and copies of, documents, records, and other information described in paragraphs
(j)(3), (j)(4), and (j)(5) of this section as is appropriate.
29 C.F.R. 2560.503-1(i)(5) states:
(5) Furnishing documents. In the case of an adverse benefit
determination on review, the plan administrator shall provide such access to, and copies of, documents, records, and other information described in paragraphs
(j)(3), (j)(4), and (j)(5) of this section as is appropriate.
29 C.F.R. 2560.503-1(m)(8) states:
Definitions. The following terms shall have the meaning ascribed
to such terms in this paragraph (m) whenever such term is used in this
section: . . .
(8) A document, record, or other information shall be considered
``relevant'' to a claimant's claim if such document, record, or other
(i) Was relied upon in making the benefit determination;
(ii) 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
(iii) Demonstrates compliance with the administrative processes and
safeguards required pursuant to paragraph (b)(5) of this section in
making the benefit determination; or
(iv) In the case of a group health plan or a plan providing
disability benefits, constitutes a statement of policy or guidance with
respect to the plan concerning the denied treatment option or benefit
for the claimant's diagnosis, without regard to whether such advice or
statement was relied upon in making the benefit determination.
ERISA was created for the express purpose of protecting the interests of plan participants such as Mr. A and Mr. B. Specifically, Congress stated:
It is hereby declared to be the policy of this Act to protect the interests of participants in employee benefit plans and their beneficiaries by establishing standards of conduct, responsibility and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.
29 U.S.C. § 1001(b).
Furthermore, the legislative history underlying ERISA indicates that Congress intended that the enforcement provisions should have teeth: the provisions should be liberally construed “to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations of the Act.” H.R.Rep.No.93-533, 93d Cong., 2d Sess. 17, reprinted in (1974) U.S.Code Cong. & Ad.News, p. 4639, 4655. This history further states that “(t)he intent of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants.” Id.
The Sixth Circuit, where I normally practice, has defined what makes for a full and fair review as set forth in 29 U.S.C. § 1133. The Court has found that 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. Marks v. Newcourt Credit Group, Inc. 342 F.3d 444, 462 (6th Cir. 2003) quoting Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir.1992). The problem is that the regulations do not provide a way for claimants to obtain all of the information that they need in order to “test the accuracy and reliability” of the insurance company’s evidence. All we have is a vague reference to “other information” that might have been used or considered by the insurance company.
Something has to be done. People like Mr. A and Mr. B are suffering unfairly. These claimants have no way to pay me for the phenomenal amount of time it takes to complete an ERISA case. The only way to take the case is by contingency but these claimants are having to give up a percentage of their benefits because of nefarious denials. I cannot work on these cases for free – I have a wife and three children to support. I also understand that what I am asking for could eventually lead me to find another line of business to pursue. But I do not care. The present system is unfair, these policies are scams, my neighbors deserve better treatment and this is a way to help. I must apologize for the length of this correspondence but, quite frankly, there is nothing simple or short about ERISA matters. I would appreciate the opportunity to speak with your office further about this and I am willing to spend as much time as it takes to explain fully the nature and extent of the problem.
Very truly yours,
John B. Dupree
cc: Jimmy Duncan
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