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.

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!

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.

"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.

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.

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.

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.