Articles Posted in New and Newsworthy

In general, if a group insurance benefits plan pays benefits such as medical bills or disability benefits related to an event caused by another “third party”, such as an automobile accident, the plan has the right to recoup their payment from the claimant’s collection of money (“recovery”) from the “third party.” This often stymies the rights of the sick, ill and disabled because after reimbursing the bills paid by the plan, there may be little left for their pain and suffering and permanent injuries or loss of income.

The United States Supreme Court recognizes these rights and how “a health-plan administrator . . . may enforce such a reimbursement provision [in a benefits plan] by filing suit under § 502(a)(3) of ERISA.” US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1542 (2013).

An interesting case was decided recently in Indiana that brought to light a provision in a plan that I had not seen before. In Smith v. Walmart Stores, Inc. Assocs. Health & Welfare Plan, 2014 U.S. Dist. LEXIS 143716 (S.D. Ind. Oct. 9, 2014), the Plan sought reimbursement for the benefits Smith had received. Walmart’s plan had a clause that if notified that the claimant had become totally disabled, within the first year they would waive their right for reimbursement. Smith had twelve months after being notified of the reimbursement claim, to seek a waiver of the reimbursement due to “total disability.”

Often times, we are approached by clients who are denied disability claims because of mental health issues (i.e., posttraumatic stress disorder, social anxiety, or major depressive disorder). The main reason why these clients are denied disability is because mental illnesses are hard to prove, and it is even harder to prove that such a condition makes an individual incapable of performing his or her occupation. Insurance companies often times prove that an individual is not physically disabled by way of surveillance video; however, there is no equivalent when it comes to “testing” mental illnesses.

However, those with mental illnesses should not be discouraged from filing a claim for disability. This is because courts have previously faulted an insurer’s failure to “give meaningful consideration as to how Plaintiff’s chronic fatigue, as well as memory and concentration problems, would impact upon her performance.” Engel v. Jefferson Pilot Financial Ins. Co., 2009 U.S.Dist LEXIS 89396 (W.D. Pa. Sept. 28, 2009); see Olive v. Am. Express Long Term Disability Benefit Plan, 183 F. Supp. 2d 1191 (C.D. Cal. 2002) (claimant’s ability to focus and concentrate must be considered as an essential occupational duty and must be taken into account in determining whether he/she is disabled).

Generally, the guide used for “proving” mental illness is the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). This manual has been broadly used by psychiatrists and mental health professionals for decades and was just recently revised, as it is now in its fifth edition. Recently, an interesting article appeared in Corporate Counsel, Will the DSM 5 Lead to Crazy Employment Law?, where it discussed how the new edition will impact employment law; mainly because the new edition of the DSM adds new diagnoses, while also broadening already existing diagnoses. For example, the new DSM adds the diagnoses of “social (pragmatic) communication disorder,” where this disorder applies to individuals with “persistent difficulties in the social use of verbal and nonverbal communications.” Essentially, employees who were previously thought of as being shy may qualify under this new “disorder.”

We are often faced with assisting a disabled client who has been denied benefits from Cigna, Prudential, Aetna, Hartford or Unum based on a brief video surveillance of their daily activities. Our clients ask us, how can a company justify a denial on the flimsy basis that they saw me walking my dog, or taking my daughter to school? And, do they even have the right to videotape me?

The answer to that question derives from the influential case of Creel v. I.C.E. & Accocs., 771 N.E.2d 1276 (Ind. Ct. App. 2002), where the court determined that videotaping an individual where their actions are open to the public does not surmount to an invasion of privacy. This is because, and as the court explains, invasion of privacy can occur when there is an invasion of one’s private or “physical space,” such as a person’s home. Therefore, there is no invasion of privacy when people are videotaped outside of their private space, such as walking their dog or taking their daughter to school.

Although videotaping claimants cannot generally be considered an invasion of privacy if their actions are recorded in public places, this does not mean that insurance companies can use this surveillance to deny disability claims. In a recent case, Ingravallo v. Hartford Life & Accident Ins. Co., 2013 U.S. Dist. LEXIS 48397 (E.D.N.Y. Mar. 29, 2013), the video surveillance showed the claimant “pushing a baby stroller from her home to a pharmacy two blocks away” and “unloading grocery bags from the trunk of her car.” From this surveillance, the insurance company hypothesized claimant’s ability to work a sedentary job; however, the court determined that this was an inappropriate use of the surveillance video because the classification of disabled depends on claimant’s ability to do work, not “chores.” Therefore, it is improper for an insurance company to use short clips of surveillance video to justify denial of a disability claim where such footage does not depict a claimant’s ability to perform his or her job requirements, but rather, depicts his or her ability to perform “normal activities.” This case was similar to Rigg v. Cont’l Cas. Co., 2004 U.S. Dist. LEXIS 8009, at *16 (N.D. Cal. May 5, 2004), where the court found no correlation between claimant’s limited ability to perform some daily tasks, with the ability to work “as a project manager, facilitating business requirements, and the implementation of accounting software on a global scale.”

In May of this year, a four year Targeted Market Conduct Examination of CIGNA and Life Insurance Company of America (LINA)’s Disability Income Insurance Claim Handling Practices was concluded by the Departments of Insurance in Maine, Massachusetts, California, Connecticut and Pennsylvania. Review the Regulatory Settlement Agreement of May 13, 2013. See CIGNA’s discussion of this in its SEC filing. As a result of this close examination, significant changes must now be made in their handling of disability claims, as set forth in the Regulatory Settlement Agreement. Cigna will pay significant fines and set aside up to 77 million dollars to pay disabled claimant’s whose claims were wrongfully denied.

Our persistent efforts to initiate proactive communications with the New Jersey Department of Banking and Insurance (DOBI), specifically with Julie Stockman, an Investigator at DOBI, has paid off. She verified our suspicions, and made available to us through public record, confirmation that New Jersey is, in fact, a part of this settlement agreement. This essentially means that New Jersey’s consumers whose disability claims were denied by CIGNA and LINA from January 2009-December 2010 are entitled to a review of those claims. DOBI’s confirmation of New Jersey’s status regarding this agreement holds significant weight as it is DOBI’s goal to protect and educate “consumers regarding insurance, money matters, and real estate transactions.” We, like DOBI, are interested in protecting our state’s consumers.

Further, with New Jersey’s confirmed participation in this recent agreement, this will serve as a benchmark in our review of our client’s claims, not only administered by CIGNA and LINA, but all other companies, including Hartford, Reliance Standard, Prudential and Unum, to name a few.

A key to a successful disability claim is support from your treating doctors. They will be called upon to complete forms and often are requested to speak with medical consultants from the insurance companies who will ask them to confirm your restrictions and limitations. We recognize the importance of working with doctors, and having them understand their patients’ impairments. Recently, an interesting article appeared in the New York Times, For New Doctors, 8-Minutes Per Patient where Doctor Pauline W. Chen commented on the astonishing truth that “doctors-in-training” are only allowed to spend minutes with each patient.

This unfortunate reality is in stark contrast to the fundamental care services, which doctors provide to their patients. Today, doctors-in-training are not allowed to spend more than 80 hours per week at the hospital. To compensate for this strict time restriction, some doctors-in-training “sneak” back into the hospital to check on patients. This is a significant drawback to the healthcare profession, especially since most individuals choose to pursue a career in healthcare with the hope of interacting with patients.

This dramatic change was spawned by medical centers transitioning into an era of electronic-based record keeping. This, together with the Accreditation Council for Graduate Medical Education limiting the number of hours that interns are allowed to work, created this devastating reality. Regrettably, “current interns spend the majority of their time in activities only indirectly related to patient care, like reading patient charts, writing notes, entering orders, speaking with other team members and transporting patients.”

A four year Targeted Market Conduct Examination of CIGNA and Life Insurance Company of America (LINA),’s Disability Income Insurance Claim Handling Practices was just concluded by the Departments of Insurance of Maine, Massachusetts, California, Connecticut and Pennsylvania. Review the Regulatory Settlement Agreement of May 13, 2013. See CIGNA’s discussion of this in its SEC filing. As a result of this close examination, significant changes must be made in their handling of disability claims, as set forth in the Regulatory Settlement Agreement. Cigna will pay significant fines and set aside 77 million dollars to pay disabled claimant’s whose claims were denied.

This agreement is far-reaching in its application to ongoing disability claims managed by CIGNA because it creates a baseline of claims handling protocols which must be followed. We will use this benchmark in our review of our client’s claims, not only administered by CIGNA and LINA, but all other companies, including Hartford, Reliance Standard, Prudential and Unum, to name a few.

The last time this occurred was in 2005, when all 50 states joined in a massive Market Conduct Study of Unum’s claims handling practices. What emerged was the Multistate Regulatory Settlement Agreement, and the review of hundreds of thousands of claims denied during a certain time period.

As more and more individuals establish an online presence, insurance companies are looking to cyberspace to investigate – and in some cases find evidence which may support the denial of insurance disability claims. The implications are twofold. “E-investigations” provide a method of ensuring that only valid claims are paid and that insurance costs to consumers are mitigated. However, sometimes this research unveils irrelevant, dated or inconsequential information used to support an insurance company’s denial of disability benefits.

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.

Litigants should beware of posting information on social networking sites such as Facebook and MySpace. Not only can your public pages be viewed and possibly used against you in court, judges are now sometimes ordering litigants to reveal their usernames and passwords to opposing parties in litigation.

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.