New Jersey Disability Lawyer Blog

Many of our clients have chronic pain and suffer greatly. The Wall Street Journal recently reported that chronic pain affects approximately 116 million Americans (about 1/3 of the total population).

The Institute of Medicine has stated that "pain is all too often undertreated in the U.S." The article goes on to explain the difference between acute pain and chronic pain. Acute pain is generally a warning signal to stop doing something that is harmful to your body. Chronic pain is described in the article as an alarm that "keeps sounding and producing pain long after the original cause is gone, probably due to a malfunction in the central nervous system."

Chronic pain is a terrible condition. Having to wake up each day with no medical improvement is so difficult for our clients to endure. But in order to prove that your pain is severe and restricts and limits you constantly, it is very important to be careful when filling out disability forms and medical forms. Do not overstate your limitations.

Be sure your treating doctor keeps a record of the level of pain that your experience so that if called upon to comment on whether your pain interferes with you ability to work, the doctor can provide this important link between pain and function.

Proving chronic pain remains a challenge in disability matters, but we at Bonny G. Rafel can help.

The Third Circuit is finally catching up to other Circuits in recognizing the importance that a conflict of interest plays in an insurer's decision to accept or deny a disability claim. The Third Circuit in Miller v. American Airlines noted that the claim administrator acted unreasonably by imposing additional requirements under the Plan; failing to include in its denial letter exactly what the claimant needed to provide in order to satisfy the plan requirements, failing to adequately consider all medical diagnoses and even the occupation in evaluating the case.

On the heels of Miller, our New Jersey Courts have issued another well considered opinion. Connor v. Sedgwick Claims Mgmt. Servs., 2011 U.S. Dist. LEXIS 67988 (D.N.J. June 24, 2011) The court in Connor embraced the reasoning of Miller, requiring that the termination letter provide the "precise information necessary to advise" a plaintiff "how to perfect his claim."
The denial letter must detail how the claimant "could achieve a favorable disability determination."

This should improve the quality of denial letters which are necessary to help claimants understand what is really needed to convince the company of their disability.

The Miller also noted that an insurer cannot simply change its mind about paying a disability claim once payments have been issued, unless there is evidence to support their new decision to terminate benefits. The Third Circuit noted "in the absence of any meaningful evidence to support a change in position," a plan administrator's "abrupt reversal" of a prior award of benefits is arbitrary and capricious when the plan administrator justifies its reversal on the same type of medical evidence which it initially used as justification for an award of benefits."

This rationale is ground-breaking in New Jersey, and it will be interesting to see its impact on cases involving long-term disability beneficiaries.

We at Bonny G. Rafel have already been citing these important cases in our briefs to the Court and in our appeals. We can assist you with your pending case, just contact us!

A report from The American Medical Association released in June found an increased inaccuracy in the payment of health claims. This means an astounding 3.6 million claims are being handled incorrectly.

The error rate is 19.3%, an increase of 2% over the last year. The one in five claims is being handled erroneously leads to waste in money spent on health care and administrative costs, as well as frustration for patients and health care providers. AMA Board Member Barbara McAneny, MD stated that these errors wasted an stonishing $17 billion. McAneny goes on to say that "Health insurers must put more effort into paying claims correctly the first time to save precious health care dollars and reduce unnecessary administrative tasks that take time and resources away from patient care."

At Bonny G. Rafel LLC we can help you fight these erroneous denials.

Lower back pain should never be overlooked and can result in disability, especially if surgery fails to permit you to return to full function. We at Bonny G. Rafel review many claims associated with lower back conditions because if you cannot sit for many hours in a day performing your work related duties, you will eventually seek disability benefits.

In a recent article in the Herald Tribune, the author elaborates on the source of lower back pain and the severity of the disorder. The National Institute of Health has stated that lower back pain is their No. 2 neurological disorder, trailing behind headaches.

There are many factors that can increase your risk of developing lower back pain. These factors include being overweight, being in poor physical condition, your age, and even your job. If you have a job that requires constant lifting, bending, or putting any stress on your spine you are more likely to develop back pain. You can also develop this pain by working at a desk and not sitting properly with your back up and straight

It is very important to let your treating physician know when lower back pain is causing discomfort and affecting your ability to perform your job at your full capacity. If the pain continues to interfere with your performance, seek professional treatment immediately.

We at Bonny G. Rafel can provide professional legal advise on your disability related to a back condition.

Whether you have a desk job or perform manual labor, its vital to consider protecting your income with a disability insurance policy in case you become disabled from working. This is different from worker's compensation coverage.

In a recent article published in the Times Free Press, the author examines the "public-private partnership" between insurers and the government. Tom Watjen, the CEO of Unum estimated that in roughly 70% of the households, if the breadwinner were to become injured and not able to work, he would not be able to meet all his household expenses.

That is a very scary idea to think that more than 2/3 of America's workers are not protected. The author of the article notes that more people have fire insurance on their homes and auto insurance on their cars compared to disability insurance even though the odds of getting injured are greater than a house going on fire or a car crash.

There are many disability coverage options available to the public and many available to employees of large companies. Research what your employer offers to you to determine whether investigating personal individual disability coverage would be prudent.

While there are government programs to help those who are injured and not working such as workers' compensation and Social Security Disability Income, these are dependent on the government finding that you cannot work under their guidelines and protocols.

At Bonny G. Rafel we assist consumers to file disability claims.

Many of our clients file for Social Security Disability benefits in addition to filing for employer sponsored private or group disability benefits. It remains unclear why some of our clients receive immediate approval of their claims, while others have to struggle through the appeals process. We have Social Security attorneys to refer our clients to since we do not handle such cases.

Unfortunately, some SSA decisions seem to depend on what Administrative Law Judge is assigned to your case. In April 2011, a class action lawsuit was filed in Federal District Court alleging that five of the eight Queen's County Administrative Law Judges are biased against the applicants appealing their adverse Social Security disability decision.

The suit seeks to bar the five judges from hearing any more claims, and to annul all their decisions since 2005 to deny any benefits. Together the five judges have rejected an average of 63% of the cases they have heard since September, a huge discrepancy from the 36% average held nationwide.

There are also allegations that the judges are prejudiced against applicants that immigrated to the United States (roughly half the borough's population), and have limited English-speaking skills. D. Randall Frye, president of the Association of Administrative Law Judges, says that the allegations of bias were generally sour grapes from clients who failed to receive benefits."

In determining whether bias, in fact, played a role in these cases, a court will likely look to the extent and scope of the alleged legal and factual errors that occurred in each of the eight Plaintiffs' case.

We at Bonny G. Rafel strive to help those whose claims are denied and will refer you to a capable attorney who practices Social Security law.

Over the course of your working career, statistically, you may become disabled at some point before you retire. It is better to be prepared for this possibility rather than face financial ruin if your income evaporates.
Recently in the New York Daily News article, the Social Security Administration states that there is a 25% chance that a 20-something year-old will become disabled before he or she retires. This 25% needs to be able to pay for their household expenses while disabled.

Employees need to be aware if their employer is sponsoring disability coverage and whether it's a long term or short term policy. Another important fact to find out is whether you or the employer pays the premium for this dictates whether the benefits are taxable to you. If the employee pays the premiums on a policy out of their pocket, the benefits will be tax free. If the employer pays the premiums, then the benefits are taxable.

Contact Bonny G. Rafel if you have an employee insurance disability question. We can help!

Unum Group Corp. and its subsidiary, Paul Revere has once again been held liable for bad faith refusal to continue to pay disability benefits to its insured.

Paul Revere issued the own occupation benefits to this dental hygienist in 1988 and promised to pay her disability benefits if she became unable to perform her specialty occupation. In 1996, Kieffer, a dental hygienist, developed several disabling medical conditions, including carpal tunnel syndrome and severe cervical pain, which by 1999 forced her to stop working entirely. After paying benefits for some time, in March 2008, Unum terminated the plaintiff's benefits despite Kieffer's treating physician's opinion that she refrain from working as a dental hygienist.

The verdict included compensatory and punitive damages.

At Bonny G. Rafel LLC, we can help those that have had their benefits terminated unjustly.

This year, we had the opportunity to help a trial attorney analyze his options and determine the best pathway for him to follow related to his employment and disability. He asked that we post this for our readers:

"I am a service professional who recently retained Ms. Rafel's firm after I suffered from a mental health episode that required hospitalization. Ms. Rafel was the first attorney I spoke with when I returned home. She was extremely comforting and reassuring.
When my wife and I met with her for an initial consultation we realized she was the right attorney to advocate on my behalf. she was firm and compassionate and took the time to answer all of our questions, even when she was on vacation. Because of Ms. Rafel's efforts and those that work for her, I was able to collect the backpay that was owed to me by my former employer, and I am now on the path to complete mental health.
If you are suffering from a disability, whether physical or mental and require legal assistance, I urge you to consider Ms. Rafel and her staff to help you through this difficult time."

Sincerely, "a very satisfied client", Bill.

Bonny G. Rafel, a compassionate but firm disability lawyer to provide counsel.

Each of us knows at least one person who suffers from migraines which often can be managed with medication. For those of you who do not know what it is like to experience a migraine, it is difficult to describe. In a New York Times article titled Migraine Miseries Push Patients to Ways of Coping, the author states that migraines can cause such severe throbbing pain in the head and nausea that the victim may have to retreat to a dark room for a day or more.

Craig Partridge, the chief scientist for a high tech research company, describes a migraine as imagining "someone having driven a nail straight through your head."

The Migraine Research Foundation reported that nearly a quarter of all households are affected by migraines and that migraines are three times more likely to occur with women compared to men. The Foundation also found that more than 10% of adults and children suffer from migraines.

When filing a disability insurance claim citing migraines as the main reason why you cannot perform your normal work duties, it is important to provide your treating physician a list or ledger of the symptoms that affect you and even a migraine journal of the regularity of your migraines and how long they last. When migraines do not respond to medication and cause you to be absent from work on a regular basis, you may be unable to sustain a full time work schedule.

At Bonny G. Rafel LLC, we assist our clients file for disability, and work on appeals to insurance companies to convince them that the restrictions and limitations of migraines can indeed render someone disabled.

It is common for employers to include mandatory arbitration clauses in employment contracts offered to new employees. Sitting in the room with your new boss, it is difficult to resist signing the contract as presented. How can one reasonably "make waves" even before being hired? Of course employees feel they have no choice but to sign the contract as a take it or leave it.

This past October, the U.S. Court of Appeals for the Third Circuit decided a case that will revurberate for a long time in many types of cases. The district court had held that a an employment contract containing a mandatory arbitration clause was valid, and simply severed the predispute employment arbitration agreement. However, the Third Circuit held that the employer-friendly provisions were so strong as to invalidate the entire agreement.

In this case, an employee was presented with a standard employment contract, which contained a "grievance and arbitration procedure" stating that it constituted the "sole final, binding and exclusive remedy for any and all employment-related disputes."

The requirements included: (1) filing a "detailed written grievance" with the employee's manager within five days of receiving notice of a disputed action; (2) refiling that grievance with a managing director within two days of receiving a response from the manager; and (3) filing a written request for arbitration within five days of receiving the managing directors decision.

The court ultimately decided that the contract presented to the employee was incredibly one sided. Since the employee was given no room for negotiation by the company, the court ruled that "the contract was procedurally unconscionable."

Bonny G. Rafel's commentary: Had the contract contained a "non binding" arbitration clause, I expect the court would not have invalidated the contract, but by forcing binding arbitration, the employee was signing away his constitutional right to a trial by jury.

New Jersey joins Pennsylvania as a state in the Third Circuit and benefits when a PA case is successful before the Third Circuit. A case in point is Kosiba v. Merck & Co. which found that Unum acted arbitrarily and capriciously in denying benefits to a claimant suffering from fibromyalgia and sarcoidosis. Kosiba v. Merck & Co., 2011 U.S. Dist. LEXIS 23247 (D.N.J. Mar. 7, 2011).

Kosiba addressed the Third Circuit's stance on issues such as scope of review, structural conflict, procedural conflict, selective consideration of medical history, financial conflict of interest, and remedy.

Following our Supreme Court's decision in Metropolitan Life Insurance Co. v. Glenn, the Court gave significant weight to Defendants' "reversal of position", "failure to address one or more of the diagnosis(es) and Defendants' failure to consider the claimant's objective functional capabilities.

The Court in Kosiba noted: "Rather than an initial disability determination, we are faced here with a situation where Defendants found [Plaintiff] totally disabled once, then sought to revisit the determination anew two years later, requiring her to provide entirely new information. Defendants then disregarded the historical medical record, including the portions that led to their own first finding of total disability. When [Plaintiff] provided her doctors' opinions that she was still disabled, Defendants chose to ignore them, and the other information that established her disability the first time, without any supporting information to the contrary. [The IME] opinion obtained during the appeal stage was helpful, but it did not comprise substantial evidence because it failed to address all of her ailments and did not address her functional capabilities."

Viewing the various factors as a whole, the Court found that Defendants' decision to terminate Plaintiff's LTD benefits was not the product of reasoned decision-making and substantial evidence. Rather, the numerous procedural irregularities led them to conclude that Defendants' termination of Plaintiff's benefits was arbitrary and capricious. Kosiba 2011 U.S. Dist. LEXIS 23247 (D.N.J. Mar. 7, 2011).

Adopting the Glenn rationale regarding financial pressures to deny claims, the Court noted that "Where an employer makes fixed contributions to a plan, evaluates claims, and pays claims through a trust...[e]ven in an actuarially grounded plan, the employer provides the monetary contribution and any money saved reduces the employer's projected benefit obligation."

This case will prove an important landmark for the clients of Bonny G. Rafel because the financial conflicts of insurers plainly influence their decisions and new our Courts will permit discovery on how the conflicts impaired the fair judgment on our cases for our disabled clients in New Jersey.