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As a general rule, litigation over matters of insurance coverage should take place in the Federal or State forum in which the insurance contract is signed. However, disabled claimants are sometimes surprised to learn that their policy contains a “forum selection clause”–a provision in the policy dictating that any litigation regarding the contract must take place in a specific jurisdiction, regardless of where the contract was signed or where the claimant lives.

In the groundbreaking decision of Coleman v. Supervalu, Inc. Short Term Disability Program, 2013 U.S. Dist. LEXIS 13372 (N.D. Ill. Jan. 31, 2013), the Northern District of Illinois recently held that forum selection clauses in ERISA policies are per se invalid. Coleman resided in Illinois, yet her disability policy contained a forum selection clause requiring all litigation related to her policy to be filed in the United States District Court for the District of Minnesota. The Court found the clause unenforceable, emphasizing ERISA, 29 U.S.C. 1132 (e)(2)’s provision that litigation under the Act may be brought in the district where the alleged breach of contract occurs (meaning where the individual denied benefits resides). The Court noted that this “is not a neutral provision,” since ERISA’s policy declaration states that ERISA is meant to protect the interests of plan participants by providing “ready access to the Federal courts” and Congress’ intent as expressed in the legislative history was “to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary duties.” Citing 29 U.S.C. § 1104(a)(1)(D), which provides that “[A] fiduciary shall discharge his duties with respect to a plan…(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [ERISA],” the Court concluded that since forum selection clauses deprive claimants of ready access to the Courts, they are unenforceable as inconsistent with the provisions and rights provided by ERISA.

The Coleman decision departs from caselaw in other jurisdictions upholding forum selection clauses in ERISA contracts. In Klotz v. Xerox Corp., 519 F. Supp. 2d 430 (S.D.N.Y. 2007), the court upheld the clause in Klotz’s disability policy, stating that the clause furthered ERISA’s public policy objectives by mandating litigation take place in the Western District of New York, since it “allows one federal court to oversee the administration of the LTD Plan and gain special familiarity with the LTD Plan Document, thereby furthering ERISA’s goal of establishing a uniform administrative scheme.” The court in Smith v. AEGON USA, LLC, 770 F. Supp. 2d 809 (W.D. Va. 2011) reached the same result, finding that mandating jurisdiction in the Northern District of Iowa where the company’s headquarters were located “was [not] fixed as a way to discourage potential plaintiffs from pursuing legitimate claims.” Hopefully the Federal Courts– including the Third Circuit–will embrace the outcome in Coleman based on the court’s novel and in-depth rationale.

If you are suffering from fibromyalgia or chronic fatigue syndrome (CFS) and need to go on disability, chances are that you will receive push back from your short term or long term disability insurer. Insurers often resist claims based on fibromyalgia and CFS. More often than not, insurers will require claimants to provide “objective evidence” of these conditions and evidence of the symptoms experienced. As these are conditions that cannot be proven through traditional clinical testing, it is important to take steps to protect yourself to present the strongest case possible to your insurer.

Third Circuit courts have repeatedly held that it is arbitrary and capricious for an insurer to require that a claimant provide “objective medical evidence” in the context of a claim for LTD benefits when that claim is due to fibromyalgia or CFS. Balas v. PNC Fin. Servs. Group, 2012 U.S. Dist. LEXIS 26027 (W.D. Pa. Feb. 29, 2012); See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 442-443 (3d Cir. 1997); Steele v. Boeing Co., 225 Fed. Appx. 71, 74-75 (3d Cir. 2007); Kuhn v. Prudential Ins. Co. of Am., 551 F. Supp. 2d 413, 427 (E.D. Pa. 2008). It is well known that both fibromyalgia and CFS are diseases that cannot be verified through traditional objective testing and therefore requiring a claimant to do so creates an impossible hurdle that cannot be overcome. Id. Other Circuits have reached a similar consensus that it is improper for an insurer to require objective evidence to justify fibromyalgia and CFS. See Burkhead v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 52040 (D. Colo. Apr. 13, 2012); Ayers v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 55814 (D. Or. Apr. 19, 2012); Solomon v. Metro. Life Ins. Co., 628 F. Supp. 2d 519 (S.D.N.Y. 2009); Holler v. Hartford Life & Accident Ins. Co., 737 F. Supp. 2d 883, 891 (S.D. Ohio 2010); Rodriquez v. McGraw-Hill Companies, 297 F.Supp 2d 676 (S. D. NY 2004).

In Balas, the court distinguished between requiring objective proof of a condition and requiring objective proof ofa loss of functional capacity causing the claimant to be disabled. Balas, 2012 U.S. Dist. LEXIS 26027 at *25. However, as the court in Heim v. Life Ins. Co. of N. Am., 2012 U.S. Dist. LEXIS 38257 (E.D. Pa. Mar. 21, 2012) points out, there is an inherent problem “in requiring objective evidence of the symptoms or bases of diagnoses for which there are no objective tests.” The Heim court found it improper when the insurer sought objective evidence that the claimant’s symptoms of fatigue and pain rendered her unable to work. Id. at *28.

As disability attorneys, we often meet with individuals who have continued working after developing a disabling condition for various reasons, both financial and professional. Insurance companies will often refuse to find a claimant disabled until he or she stops working entirely. However, some individuals may have a legitimate disability claim that begins prior to leaving work, which can potentially increase the amount of benefits payable.

The Courts have recognized that an individual who works while disabled is not necessarily precluded from collecting total disability benefits. See Rabbat v. Standard Life Ins. Co., 2012 U.S. Dist. LEXIS 142336 (D. Ore. Oct. 1, 2012). The court ruled that Rabbat was disabled by these symptoms despite continuing to work for a period of time, based on his doctors’ reports of the severity of his condition; his frequent need to miss work when having a flare-up; and his supervisor documenting Rabbat’s observable severe symptoms and increasing difficulty performing his job during his final year at work. The court stated, “A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. . . . Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. The claimant may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working.” Similarly, in Bray v. Sun Life & Health Ins. Co., 838 F. Supp. 2d. 1183 (D. Co1. 2012), the court found that Bray was disabled prior to leaving work due to a then undiagnosed brain tumor, as it was clear from his performance that his symptoms prior to diagnosis severely impeded his work performance such that it could not be said he was truly capable of performing his job.

Caselaw aside, some disability income policies contain a partial disability provision for a continued percentage of benefits while the insured is disabled but working in a limited capacity. While this typically applies to residual rather than total disability, it is an alternative avenue to explore for individuals who are ill but continue to work in a certain capacity due to their particular circumstances.

As the Wall Street Journal recently discussed, residual benefits might be a useful option in the case of a professional who becomes ill and, after a period of recovery returns to work on a reduced schedule and therefore loses incomes. If the policy was issued in the 80’s or 90’s, it may even compensate for a loss in income until the insured reaches ages 65.

However, the Wall Street Journal article fails to address the potential pitfalls of purchasing a disability income policy with a residual benefit provision. A strict total disability policy will pay the insured a flat monthly benefit upon disability, regardless of whether he or she suffers a loss of income due to disability. Such a policy will generally pay benefits so long as the insured is restricted from performing one or more material duties of his or her occupation. However, residual disability provisions–while seemingly offered to benefit the insured in the event of partial disability–generally provide that an insured will qualify as residually disabled if he or she can perform some of the duties of his her occupation, but not all. As residual benefits compensate the insured only for income lost due to disability and not the full monthly benefit available under the total disability provision, an insured may be left with a lower benefit amount as a result of paying extra premium dollars for residual coverage.

We have frequently challenged insurance companies classifying our client’s claims as residual. The dispute often centers on the terms of the particular policy. In Klay v. AXA Equitable Life Ins. Co., 2010 U.S. Dist. LEXIS 10288 (W.D. Pa. Sept. 28, 2010), Klay was a cardiothoracic surgeon who ceased performing cardiac surgeries due to his disability. The policy in question defined residual disability as an inability to “do one or more of the main duties of your occupation,” and total disability as an inability to “do the main duties of your occupation.” The Court found that since Klay continued working in a reduced capacity as a vascular surgeon, his claim could only be classified as residual. By contrast, the policy in Bybel v. Metropolitan Life Ins. Co., 2010 U.S. Dist. LEXIS 122367 (E.D. Pa. Nov. 18, 2010) contained language very similar to that in Klay, yet the court determined that Bybel could be entitled to total disability benefits. Bybel was an OB/GYN who was forced to cease her obstetrical practice when she became disabled, and the Court reasoned that since she was terminated from her position as an OB/GYN and unable to deliver babies on her own, a refusal to find her totally disabled “would contradict the intent of the parties and the purpose of a disability insurance policy.”

Often employees are offered individual disability policies at a discounted rate if purchased with other employees. The employee may deal directly with a broker or the insurance company to purchase the policy, with the only employer connection a payroll deduction for premiums. The employees expect they have purchased an individual disability policy that is not part of an employer benefit plan. Only when their claim is denied or they are forced into litigation against the insurer due to a denial of benefits does the employee learn that the litigation may be governed under ERISA and not state law.

The recent case of McCann v. Unum Provident, 2013 U.S. Dist. LEXIS 13132 (D.N.J. Jan. 31, 2013), illustrates this situation, and how courts in the Third Circuit apply the safe harbor provision of ERISA. In McCann, a medical fellow purchased a policy that was offered to him at a discount through his employment. McCann paid the premiums directly. The policy took effect when his fellowship had ended. Benefits were denied and Unum argued that ERISA applied. The court ultimately agreed with Unum and held that the policy in question fell under ERISA and the “safe harbor provision” did not apply.

The safe harbor provision of ERISA removes a disability insurance plan from ERISA coverage if:

In December 2012, we posted a blog regarding laws protecting Long Term Care Insurance consumers. Long Term Care is becoming an increasingly important area of focus as our population ages. However, the data inescapably indicates that LTCI is far more of a women’s issue than a men’s issue.

The New York Times recently published an article highlighting the special issues that women face as LTCI consumers. From a financial perspective, the Long Term Care Insurance market has been shrinking–with many carriers ceasing to sell policies altogether and others raising premiums by significant amounts–as the aging American population has increasingly come to call on benefits and insurers realize the true cost of the policies to their bottom lines. This issue is magnified in the case of women, who statistically live longer than men and consequently cost insurers the majority of money in LTCI benefits. Genworth Financial, the top LTCI carrier in the country, has announced that it will be raising premiums by up to 40% for single women applying for coverage. This “gender-distinct” pricing is legal in 48 states, including New Jersey. Statistics cited in favor of such pricing increases center around the fact that women have, on average, longer life spans than men. They are therefore more likely to be widowed and living alone by the time they are elderly, or to reside in nursing homes whose costs are covered by LTCI. These difficulties are in addition to increasing stringencies in the underwriting process, including home visits rather than telephone interviews, reduced inflation protection, and longer elimination (waiting) periods. More cynical speculators opine that the true reason is lower interest rates set by the Federal Reserve, which reduces insurers’ returns on invested premiums.

Despite the intensified shift toward gender-distinct pricing and stricter underwriting, insurers in New Jersey are bound by the terms of the New Jersey Long Term Care Insurance Act, which regulates the underwriting and pricing schedules of LTCI policies.

The issue of whether a claimant with a relapsing and remitting condition is entitled to benefits arises fairly frequently in the disability context. Insurance companies often justify a denial of benefits on the fact that a claimant is in remission, or on the fact that a claimant’s variable symptoms have abated for a period of time.

In Colby v. Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan, the First Circuit affirmed the District Court’s ruling that Colby, who suffered from opioid dependence, was entitled to LTD benefits due to her risk of relapse. Colby was an anesthesiologist whose practice allowed her ready access to opioids. Both her own doctors and several of the insurance company’s physicians had concluded that she was at a severe risk of relapse and that her returning to work would exacerbate this risk due to her occupation as an anesthesiologist and her comorbid back pain and mental health conditions. These opinions were supported by Colby’s continued struggle with addiction after leaving a treatment facility. The court concluded that, since the disability policy in question did not contain an exclusion for risk of relapse and that such a risk was a presently disabling condition, the District Court acted properly in awarding her benefits.

The risk of relapse is an issue in cases based on physical illnesses as well, particularly in cardiac cases where the stress of one’s occupation threatens to precipitate another cardiac event. See Dimsdale, “Psychological Stress and Cardiovascular Disease.” The Third Circuit addressed this issue in Lasser v. Reliance Standard Life Ins. Co., where Lasser, an orthopedic surgeon, had a diagnosis of coronary artery disease and had suffered a heart attack. Lasser argued that the stress of his occupation, including on-call and emergency duties would put him at risk for another heart attack. The Court agreed, finding that Lasser’s risk of relapse was a present disability under his policy based on his treating doctors’ opinions on the gravity of the risk.

Fibromyalgia remains an enigmatic condition, as its symptoms are entirely self-reported and there is no objective testing that can confirm the presence of the disease. See MD Guidelines. This often makes it extremely difficult for claimants with fibromyalgia to get their disability carriers to pay their claims.

Fortunately, the Social Security Administration came out with a ruling this summer that provides guidance in determining whether a claimant is functionally impaired due to fibromyalgia. See SSA Ruling of July 25, 2012. Instead of the objective testing–such as x-rays and lab reports–which can substantiate other diagnoses, the SSA will here focus on the quality of the evidence documented by a claimant’s treating physicians. The SSA has provided that proofs may come in the form of medical records, so long as the physician conducts a physical exam and documents symptoms of fibromyalgia as prescribed by the American College of Rheumatology including pain, tender points, and the absence of any other objectively diagnosable disorder. The SSA will then look to see whether the pattern of the symptoms the physicians document is consistent with a diagnosis of fibromyalgia.

The SSA’s emphasis on the importance of treating physician’s opinions and documentation in fibromyalgia disability cases buttresses the holdings of many federal courts in ERISA cases who have maintained that an insistence on objective symptoms and the rejection of consistently documented subjective symptoms is an inappropriate basis on which to deny a fibromyalgia claim. See Brown v. Continental Casualty Co., 348 F. Supp. 2d 358, 369-70(E.D. Pa. 2004) (even if an ERISA administrator may sometimes impose a requirement for “objective” medical evidence that does not appear explicitly in a plan’s terms, it would be unreasonable to do so here . . . Such a requirement would effectively preclude any fibromyalgia patient from qualifying as totally disabled on the basis of the disease . . . Such a requirement would merit reversal here even if CNA’s administrative decisions were entitled to deference); Duperry v. Life Ins. Co. of North America, 2009 U.S. Dist. LEXIS 83532, *40-1 (E.D.N.C. Aug. 10 2009), aff’d at 632 F. 3d 860 (4th Cir. 2011) (finding the administrator’s denial arbitrary and capricious where it relied on the report of a physician who “recognize[d] plaintiff’s diagnoses of rheumatoid arthritis and fibromyalgia…[but went] on in each report to summarily state that pain associated with plaintiff’s fibromyalgia is not disabling”).

On November 27, 2012, the Supreme Court of the United States heard oral argument in the matter of U.S. Airways, Inc. v. McCutchen. The question is simple — can an insurer require an ERISA beneficiary to reimburse it for health coverage payments made if the individual recovers money from the responsible party? In the usual circumstance, the individual is “made whole” by a recovery from the tortfeasor for his injuries and has enough to pay back the health insurer for the medical payments. But that does not always occur. If the injured person does not fully recover for his damages, must he still turn over money to the insurer who is contractually liable to pay for other benefits, such as medical coverage or disability benefits?

McCutchen was catastrophically injured in a car accident, but paid only a small sum from the case since the tortfeasor carried meager insurance. Despite the small settlement which did not fully compensate him for his damages, U.S. Airways claimed reimbursement out of the settlement proceeds for the full amount that it had paid on McCutchen’s behalf. It relied on the plan’s subrogation reimbursement provision which required reimbursement for any amounts recovered from a third-party tortfeasor. U.S. Airways also refused to pay its share of attorney fees associated with obtaining the resolution of the underlying case. See the Third Circuit’s Opinion at 663 F. 3d 671 (3d. Cir. 2011).

The Third Circuit overturned the District Court’s ruling based on equitable principles. Even though the plan gave U.S.Airways the contractual right to collect every dollar it had spent regardless of whether McCutchen or his attorney received a dime, the Court held that “appropriate equitable relief” under Section 502(a)(3) necessarily meant that any equitable remedy of reimbursement available to the insurer “must, absent other indication, be deemed to contain the limitations upon its availability that equity typically imposes.” The Third Circuit found that it would be unjust to require McCutchen to reimburse the full cost of his medical bills because it would leave him without full compensation for his medical expenses and would provide a windfall to the Plan.

According to the National Institute on Aging and Alzheimer’s, early identification of Alzheimer’s may lead to earlier medical treatment. This is due in part to two things: 1) medical advances allowing a better understanding of cognitive decline due to age versus Alzheimer’s and 2) new criteria from expert panels of the National Institute on Aging and Alzheimer’s, for clinical diagnosis of mild cognitive impairment due to Alzheimer’s. The new criteria helps identify people who are in the symptomatic predementia phase of Alzheimer’s, known as mild cognitive impairment. The new diagnostic guidelines replaces previous techniques for identifying early stages of Alzheimer’s, and provide medical professionals with a new tool to assess their patient’s cognitive impairments. This evolved criteria for diagnosing mild cognitive impairment is crucial as early stages of the disease can only be determined by a clinician. The criteria used will allow a medical provider to differentiate between cognitive issues from age, other causes, and that of Alzheimer’s.

The Alzheimer’s Association predicts that by the year 2050, the presence of Alzheimer’s will triple, affecting more than 13.6 million people in the U.S. The rise is estimated to create medical costs up to $1.1 trillion by that time. With early detection techniques, health care providers can implement critical treatment to provide important options to those in need.

We at Bonny G. Rafel have worked with many people suffering from Alzheimer’s to help them receive disability benefits that they are entitled to. If you have been diagnosed with Alzheimer’s and are unable to continue working, we can help you apply for the disability benefits you deserve.

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