In the context of disability benefits, claimants must establish that they are unable to work in their own occupation and in some cases, any gainful occupation. If a claimant has an online presence which indicates participation in physical activities such as sports, or in social groups, the insurer is likely to find this data and compare it to what the claimant is noting in submissions to evaluate the actual limitations in place. Information reported online can be very damaging, as the Washington Post recently reported in an article about background checks. Washington Post, April 11, 2012. Information thought to be confidential may find its way to the internet in some format and into the hands of the insurance company.
An individual who claims to be unable to work should not be posting their availability to work on sites, such as by creating a Linkedin profile or an account on a job search engine. We recently had an experience where our client did not tell us that they had returned to work, but the insurance company found out by checking the client's Linkedin profile. That case settled quickly! Another client's reasonable attempts to keep her new employer's identity confidential (since they did not know of her disability) was undermined since her employer noted on its website that she had joined their team of executives. While the company knew that she had returned to work, they did not know where.
If you feel that your disability claim has been denied due to an insurance company manipulating or unreasonably using personal information obtained online, Bonny G. Rafel can assist you in correcting the company's errors and ensuring that your rights to benefits are not threatened by inaccurate information.
- By Sara E. Kaplan, Esq.
For example, the Los Angeles Times recently published an article on post-chemotherapy cognitive impairment, or "chemo brain," the mental fog often caused by chemotherapy treatments. Los Angeles Times, Feb. 27. 2012. Symptoms of "chemo brain" include impaired cognition, attention, and memory, as well as mental fog, fatigue, and confusion. Mayo Clinic Online. The Times cited a recent study which tested 196 women who had undergone chemotherapy treatment for breast cancer, and which found that women who received the chemotherapy "fared much worse" on cognitive and executive function tests long after (21 years on average) they finished treatment. While it is not clear whether it is chemotherapy alone or complications of the treatment that cause "chemo brain," the symptoms can be disabling, especially for patients whose pre-disability occupations required extensive cognitive or critical thinking ability. The long-lasting effects of cancer treatment have been acknowledged by the courts. See, e.g., McCauley v. First Unum Life Ins. Co. (finding that the insurer wrongfully denied a cancer survivor disability benefits where chemotherapy had left him both mentally and physically impaired).
Another well known side effect of chemotherapy treatment that can be disabling independent of the cancer itself, is peripheral neuropathy. This condition is often irreversible and can be devastating and painful. Objective testing such as EMGs and Nerve Conduction Studies can be helpful in proving that this condition is severe to the insured.
Insurance companies must take side effects of treatment into consideration when determining whether claimants qualify for disability benefits. They should not terminate your benefits simply because you enter remission. We at Bonny G. Rafel can assist you in overturning a disability carrier's denial if you are disabled due to the after-effects of cancer treatment.
- By Sara E. Kaplan, Esq.
Mr. Lafferty became disabled due to congestive heart failure. He applied for disability benefits to Unum, who denied the claim on the basis that Mr. Lafferty had a pre-existing condition for which he had treatment during the three month look back period in the policy. Mr. Lafferty had a long-standing heart condition and was taking medication (aspirin) as a preventative measure against further cardiac events.
The pre-existing provision in the policy excluded medical conditions for which the insured "received medical treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines" three months before the policy's effective date. Unum argued that, since hypertension, hypercholesterolemia, and coronary artery disease could lead to congestive heart failure and the need for a pacemaker, Lafferty's congestive heart failure was a pre-existing condition.
The court disagreed, emphasizing that the plaintiff's disabling condition was new. The Court found that the preventative care constituted "taking steps to prevent a disorder," as opposed to having the disabling medical condition. The Court relied in part on McLeod v. Hartford Life and Accident Ins. Co., which cautioned that "considering treatment for symptoms of a not-yet-diagnosed condition as equivalent to treatment of the underlying condition ultimately diagnosed might open the door for insurance companies to deny coverage for any condition the symptoms of which were treated during the exclusionary period. To permit such a backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of preexisting condition as to make that term meaningless: any prior symptom not inconsistent with the ultimate diagnosis would provide a basis for denial."
In our opinion, the Court correctly limited the application of the pre-existing clause of the policy because taking preventative care is very different from caring for a medical condition that already exists. We at Bonny G. Rafel are experienced in interpreting insurance contracts, and will fight to maximize your rights under your disability policy.
- By Sara E. Kaplan, Esq.
A Pennsylvania court in McMillen v. Hummingbird Speedway, Inc. recently did just that in a personal injury case. After the defendants reviewed the public portions of the plaintiff's Facebook account, discovering comments regarding his trip when the alleged injury in question took place, they asked the court to compel production of his passwords to these accounts. The court ordered the plaintiff to produce his usernames and passwords, finding that no privilege exists for information posted on social networking sites.
In November 2011, another Pennsylvania court ordered a plaintiff in a personal injury auto accident case to disclose her Facebook password. Largent v. Reed. The defendant sought this information, claiming that the plaintiff posted photographs and status updates showing that she was not permanently disabled, as she claimed. The court found that the Stored Communications Act, which prevents the government from compelling Internet Service Providers and Facebook from providing passwords, does not stop the court from compelling the plaintiff in a civil action from releasing her password. The order was entered despite the fact that exchanging passwords violates Facebook's terms of service. The court concluded that Facebook posts are not "truly private" and producing her password will result in little harm or burden. Also in November, a Connecticut court ordered that a divorcing couple exchange their Facebook and dating website passwords. Forbes, November 7, 2011.
There are several ways to avoid these potential issues from arising in litigation. If you feel that you cannot give up your social media activity, you absolutely must be responsible in what you post and you must maintain the proper controls to limit access. For example, Facebook, as well as other social media, offers privacy settings which can allow one to be proactive. On Facebook, you can customize your audience by selecting from the audience selector tool. You need to remember that the people you choose to share your information with can also share that same information with others, so choose wisely. You may also control how you connect with people you know by selecting "custom" or "friends" rather than allowing "everyone" to connect to you. Likewise, any information shared as a result of downloading games and apps can be controlled through an app privacy control. In this way you can choose the people with whom you are most comfortable sharing information.
Tags are a great way to share photos but it is best to enable a profile review or tag review in your default privacy settings because it notifies you when you are tagged and allows you to approve or deny the request.
If you are concerned about information previously posted, you can convert anything that was posted to the public to a more restricted audience.
By following these simple guidelines, you can certainly limit access to your social media account. However, you must always be aware that what is posted on the internet stays there, and that even a secured account is not fool-proof.
We at Bonny G. Rafel counsel our clients to be careful about their presence online in order to protect their rights under their insurance policies.
It is extremely important that when providing information about a claim that you are accurate and honest. According to the act, knowingly making or providing false or misleading statements concerning any fact or thing material to a claim constitutes fraud. N.J. Stat. § 17:33A-4(a). Not only can insurance fraud lead to criminal charges but a person committing insurance fraud can face severe civil penalties as well. If the insurance commissioner has deemed someone to be in violation of the act, the commissioner may seek a civil action, place an administrative penalty on the person, and/or order restitution including but not limited to attorney fees and cost of prosecution. If the commissioner orders an administrative penalty or restitution be paid, a person may request a hearing within 20 days of receipt of the violation. Additionally, if criminal charges are not already brought against you, the commissioner may request that the Attorney General do so.
In addition to facing state imposed penalties and fines, anyone who violates this act may be sued by any insurance company damaged by the fraudulent act. The insurance company can recover compensatory damages that can include surveillance and investigation costs, attorney fees, and any costs related to the lawsuit. If successful the court may award treble damages (three times the amount of the damages) if it is determined that the person has engaged in a pattern of violating the act. N.J. Stat. § 17:33A-7(b). "Pattern" means five or more related violations of the Fraud Act. . Allstate Ins. Co. v. Greenberg, 376 N.J. Super. 623, 640 (Law Div. 2004).
Committing insurance fraud creates a burden not only for the state and insurance companies but also for insureds who are not committing fraudulent acts. Because of the serious nature of insurance fraud it is easy to see why committing it can lead to heavy financial and criminal penalties.
We at Bonny G. Rafel will help you report your disability claim in an honest and effective manner to help you obtain the benefits you deserve.
--By Alexander Schaffel
The pension at issue was a Defined Contribution Plan. The plaintiff divorced his wife, and based on a property settlement agreement, the plan administrator erroneously transferred half of the plan funds to her, resulting in an overpayment to her of $763,847.93. The husband sued the plan under ERISA to recoup this money.
The plan argued, it could not distribute the money without first being repaid by the ex-wife, since doing otherwise would reduce the plan assets, which they refer to as alienating the benefits of other plan members.
The Court cited the concurring opinion in LaRue v. DeWolff, Boberg & Assoc., Inc., and explained that "all of the Plan's undistributed assets are legally owned by the trustee and managed for the benefit of all plan participants, with gains and losses shared by them on a pro rata basis. A single participant's 'account' is merely a bookkeeping entry that is used at the time of his retirement to determine what benefits he is entitled to receive." The Court thus distinguished Guidry v. Sheet Metal Workers National Pension Fund, and Kickham Hanley P.C. v. Kodak Retirement Income Plan, 558 F.3d 204 (2d Cir. 2009), as those cases enforced the anti-alienation provision in the face of benefits that members were entitled to.
The plan's final key argument rested on the distinction between defined contribution pension plans and defined benefit plans. A defined contribution plan guarantees that an employer makes a fixed contribution, while a defined benefit plan guarantees the beneficiary a fixed amount of benefits upon retirement. Since the plan at issue was a defined contribution plan which did not guarantee members a fixed payment on retirement, the defendants argued that it would be inequitable to allow those funds to be used to satisfy liabilities. However, the Court rejected this argument, stating that ERISA's anti-alienation provision "does not protect [beneficiaries] against the risk that poor management decisions will expose the plan's assets to liability."
You have specific rights as a member of an employee benefit plan. We at Bonny G. Rafel handle disability matters which often coincide with other benefits. Contact us to provide legal assistance on your claim.
- By Sara E. Kaplan, Esq.
State legislators are reacting to these unfair clauses. California recently enacted a law, making discretionary clauses in disability and life insurance policies void and unenforceable. Starting January 1, 2012, for California residents challenging the denial of disability benefits, that denial may now be subject to de novo review by the court--the court would decide whether given all the evidence the person is disabled.
New Jersey Insurance regulations contain a weaker version of this California prohibition. New Jersey Administrative Code section 11:4-58.3 prohibits provisions that reserve "sole discretion" to the insurer, but permits discretionary clauses as to the insurer's "initial interpretation of the policy." Why did the Department of Banking and Insurance decide to place the word "sole" before discretion? The meaning of the word "sole" is not apparent and could lead to unfair interpretations, such as in Evans v. Employee Benefit Plan, 311 Fed. Appx. 556 (3d Cir. 2009) and Baker v. Hartford Life Ins. Co. This regulation should be revised to unequivocally state that discretionary laws are void as a matter of public policy.
We at Bonny G. Rafel are experienced in interpreting insurance contracts and will continue to pursue fairness and justice by using the New Jersey Regulation and its progeny to protect your rights.
--By Julie Gendel, Esq.
In Cohen, the insured underwent spinal surgery by an out-of-network physician, and then issued the surgeon an assignment of benefits under his health insurance plan. The defendants (the insurer, the plan and the plan administrator) paid a fraction of the doctor's bill directly to the insured, but refused to pay the rest of the doctor's bill, which was $143,626.00. This fractional amount represented a substantially higher patient obligation for out-of-network services. The defendants grounded their non-payment on an anti-assignment clause in the insured's policy, which read, in pertinent part, "The right of a Covered Person to receive benefit payments under this coverage is personal to the Covered Person and is not assignable in whole or in part to any person, Hospital, or other entity nor may benefits of this coverage be transferred."
The Court found that the clause was not preempted by ERISA, and distinguished Neuner v. Horizon Blue Cross Blue Shield of New Jersey, 301 B.R. 662 (Bankr D.N.J. 2003) (providers have standing to demand payment in the absence of an anti-assignment clause), and Ambulatory Surgical Center of New Jersey v. Horizon Healthcare Services, 2008 U.S. Dist. LEXIS 13370 (D.N.J. Feb. 21, 2008) (finding that providers could be valid assignees, without addressing whether ERISA permits anti-assignment clauses in insurance contracts). Additionally, the defendants had not waived their right to enforce the anti-assignment clause by corresponding with the doctor directly during the claim process, because Pennsylvania State law, which governed that issue, required a "clear, unequivocal and decisive act" of waiver, which the defendants had not shown.
The Court did not address the doctor's recourse to payment of his full bill. Therefore, the combination of this provision with the procurement of out-of-network services may have created a precarious situation for both the doctor and the insurer in the Cohen case.
Consumers in need of medical care welcome the assistance of their doctors to obtain payment of their medical bills. However, the Cohen case makes clear that there can be problems attendant to placing medical providers in this role. Insureds need to check the language in their policies, as they in fact may not be able to assign their rights to benefits to their doctors.
Fighting insurance company denials can be stressful, but we at Bonny G. Rafel can help.
- Sara Kaplan, Esq.
]]>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.
]]>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!
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.
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.
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.
]]>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.