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The Department of Labor Employee Benefit Security Administration just established by Federal Regulation an extension of certain timeframes under ERISA for group health plans, disability and other welfare plans during the COVID-19 National Emergency.  On March 13, 2020, the government declared a National Emergency Concerning COVID-19 in effect as of March 1, 2020.  As a result of the National Emergency, participants and beneficiaries covered by these plans “may encounter problems in.. filing or perfecting their benefit claims.. and the EBSA has taken steps to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established time frames.

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A, all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notice (the “Outbreak Period”)8 for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure pursuant to 29 CFR 2560.503-1(h),

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The disabled must navigate the maze of insurers’ roadblocks to maintain their disability benefits often when they are too ill to tend to the demands of the insurers.  Insurers aggressively find ways to deny the payment of bona fide disability claims.  Over a decade ago, the Supreme Court recognized that insurers have an incentive to hold onto the benefit dollars they owe to claimants because it clearly improves the company’s finances. Insurance companies have what is referred to as a structural “conflict of interest when a plan administrator both determines eligibility for benefits and pays benefits claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 171 L.Ed.2d 299 (2008).

A common thread in disability denials is the company’s decision that the insured can perform “sedentary work” despite their restrictions and limitations.  Sedentary work, simply considers the physical condition of the person- can they sit most of the time, and walk or stand for brief periods of time.  The DOT definition for sedentary work conveniently focuses exclusively on the physical demands and disregards any other aspect such as cognitive.

In Smith v Reliance, Reliance paid LTD benefits out for several years to an executive who had strokes and suffered from heart problems. Reliance then reversed course and concluded Mr. Smith could return to work, alleging he had to prove that he could not perform sedentary work due to a physical limitation on, for example, sitting, typing, or speaking.  The court disagreed, holding that if someone had to prove they could not sit, speak or type, in order to receive disability benefits, “such a rule would erase disability eligibility for all but the bedridden. Some serious diseases are debilitating because of their effect on the mind or because they worsen with stress.” Smith v. Reliance Standard Life Ins. Co., 2019 U.S. App. LEXIS 18518, at *14 (4th Cir. June 20, 2019)

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Common thinking about disability coverage would cause the average individual to expect that if they become unable to perform the specific duties of their occupation, they would qualify for disability benefits.  For example, if your employer requires you to travel for your occupation, then if you cannot perform this essential duty, you should qualify for coverage. The insurance companies would prefer to profile the occupation in a generic sense, because the manner in which one employer requires the employees to perform their duties may be particular to that work setting, or even geographical area of employment.   This issue is often litigated because many policies define “occupation” based on how the job is performed in a fictitious “national economy,” which is a term of art.  Courts are split on their treatment of this issue. Should insurance companies evaluate whether a claimant can perform their actual duties or should they evaluate whether a claimant can perform the duties of their occupation as it is generally performed?

Recently, the Third Circuit re-affirmed the established principle that if the policy refers to the “regular occupation,” or even “own occupation” this terminology is ambiguous and refers to the usual work that the insured was actually performing immediately before the onset of disability.” Patterson v. Aetna Life Ins. Co., 763 F. App’x 268, 272-73 (3d Cir. 2019).  The purpose of disability insurance and the modifier “his/her” before regular occupation made clear the analysis had to be conducted based on the insured’s own occupation. The Court in Patterson added “Additionally, even if a difference between “own occupation” and “regular occupation” could be teased out, the words “own occupation” would seem even more directly to capture the idea of one’s actual job duties than the words, regular occupation.”  Courts have recognized that the distinction between “own occupation” and “regular occupation” is one without a legal difference.  Hankins v. Std. Ins. Co. 677 F.3d 830 (8th Cir. 2012).

Another example concerns the occupation of an attorney.  The demands of an attorney vary across specialty and firm size. In 2018, a Utah trial attorney at a large firm became disabled after a quadruple bypass surgery. Dewsnup v. Unum Life Ins. Co. of Am., 2018 U.S. Dist. LEXIS 208688 (D. Utah Dec. 10, 2018).  The Unum policy defined “disability” as “unable to perform each of the material job duties of his regular occupation.”  The Court held that Unum was entitled to consider how an attorney functions in the “national economy”, but rather than consider “generalized” attorney duties to judge his disability, Unum was required to consider the physical and cognitive demands of a litigation attorney including competencies for cognitive excellence. Dewsnup’s claim was successful.

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We regularly file appeals of disability insurance denials of long term disability claims.  Our clients are bound by ERISA regulations which require that all appeals must be filed within 180 days of the insurance company denial. We meet with our clients as early as possible following their receipt of the denial, to strategize what evidence to collect to challenge the wrongful denial of LTD benefits. We always demand a copy of the insurance company’s entire claim file, because we have a right to the record and it often provides great insight as to the thoughts of the insurer as they planned their denial of the claim.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days.  In our experience, insurance companies regularly ignore these deadlines.  They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination.  The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands.  Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline.  Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors.  We object to our clients having such an exam during the appeal.  It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned.  Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier.  We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline.  Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

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This is the first in a series of articles designed to showcase various topics related to disability claims that are particularly relevant to medical professionals.  When a client seeks our assistance regarding their need to file a disability claim under an insurance policy, we first determine when they became disabled. If the disabling medical condition is caused by a sudden accident or injury the date of disability is usually clear. Often the disability is instead caused by a progressive illness or condition that was initially manageable but became more limiting over time. Some examples of these long term conditions may be Multiple Sclerosis, herniated discs in the neck or low back, essential tremors or arthritis.

Most professionals will attempt to make accommodations or adjustments to their practice in order to remain at work as long as they can before beginning the process to file a disability claim. Steps taken might include relinquishing certain work duties/procedures that exacerbate the condition, reducing or eliminating hospital or emergency call, and reducing patient care hours. The medical professional may refer difficult cases out to other colleagues. These are all prudent and reasonable accommodations to make but they often lead to a significant loss of income over time.

Stoic individuals that continue to work despite brewing disability are essentially “working while disabled.” In these instances, we take the time to determine when exactly the disability began, and when did it interfere with the established duties of the occupation. The reason for this analysis is to evaluate whether we can date the claim to a time period even before the client meets with us. Why does this matter? Three incentives: establish a claim earlier so the waiting period for benefits has already occurred; establish a loss of earnings from the “working while disabled” period of time so that benefits can begin; and thirdly establish a basis for calculating a loss of earnings when the professional was earning the most in his/her profession.

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Many individuals with chronic permanent medical conditions reach a level of treatment that is palliative, that will not improve their symptoms or effect their prognosis. Continuing to visit a medical provider to monitor your condition  that does not provide any medical benefit may seem pointless, and can use up valuable time and money resources. The disabled may reduce the frequency of medical visits, especially when the provider advises that no treatment is necessary.  Nonetheless, claimants on long-term disability must fulfill the burden of proof showing that they remain disabled over time. Such a requirement includes furnishing continuing proof of disability, such as medical notes or disability forms signed by a current treating medical provider.

The incompatibility of these two situations clash when the insurer to your disability claim requires “appropriate treatment” for the disabling condition in order to continue the claim.  The recent court decision in Griffin v. Hartford Life & Accident Ins. Co., 898 F.3d 371 (4th Cir. 2018) makes clear that continuing medical visits are necessary. Griffin stopped working due to pain from a herniated disc and saw his medical provider from September 2011 to June 2013. Since there was o feasible medical treatment to improve his condition, he stopped active treatment. Griffin explained to Hartford that he was unable to afford continuing visits to his medical provider, yet Hartford still required that a physician remark on functionality in order to continue paying Griffen long-term disability benefits. Since no treating physician could speak confidently on Griffin’s current disability the court upheld Hartford’s denial of Griffin’s long-term disability claim despite his contention that he remained disabled.

I advise all clients experiencing a chronic medical condition to remain under the care of a physician with at least quarterly visits, even if the physician maintains that the condition remains unchanged. Clients should have disability claim forms completed by their treating provider and keep up to date with any necessary claim materials, so that disability is continuously supported. While it may seem unnecessary to spend resources on visiting a provider when no tangible benefit comes from doing so, previous cases such as Griffin v. Hartford Life show that courts are likely to view, as insurance companies do, a lack of continuing medical history as congruent with improvement in one’s condition or absence of disability altogether.

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Disability policies contain a provision explaining that coverage will not be extended for a claim based on a “legal disability.”  Legal disability relates to the individual’s eligibility to work due to necessary licensing, such a financial advisor (Series 7 license), lawyer (bar license) and physician (medical license).  What happens when a disability caused by a physical or mental disability results in the professional becoming legally prohibited from working in their occupation-due to suspension or revocation of their license? This may occur if an attorney develops dementia, commits ethical violations and becomes disbarred- or if a doctor develops a substance abuse, such as addiction to fentanyl, and loses his medical license.  Recently several doctors have been incarcerated for Medicaid fraud.  What is the root cause of the disability? Do they have a valid claim for disability benefits while their license is suspended?

Insurers will often take the position that a claimant’s legal difficulties are the cause of his inability to practice in his occupation, and cite to the “legal disability” coverage exclusion. In reality it might be that a claimant’s medical impairment, the “factual disability” due to sickness or injury caused an inability to engage in his or her occupation and led to the legal consequences of their behavior.

Courts have identified this problem, and often it’s a “what came first” assessment, or a “but for” assessment. Eligibility for benefits depends on three factors:  (1) “whether the claimed factual disability is medically bona fide;” (2) “whether its onset actually occurred before the legal disability;” and (3) “whether the factual disability actually prevented or hindered the [client] seeking disability benefits from engaging in his or her profession or occupation.”  Jacobs v. Nw. Mut. Life Ins. Co., 957 N.Y.S.2d 347, 351 (N.Y. App. Div. 2012).  The basic idea is that professionals “who would still be practicing their profession had their licenses not been suspended or revoked are not entitled to disability benefits.”  Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 27 (Tenn. Ct. App. 2002)

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For those of us handling long term disability claims for people suffering from chronic back conditions, a clause in the MetLife LTD policies has caused us much tsuris (Yiddish word, “worry”). Their policies contain a limitation for “neuromuscular disorders” providing coverage for only two years for disorders of the spine unless one of six exceptions are objectively proven. Simply stated, this clause impacts a large pool of disability claims, since many of the disabled have back conditions that impair their ability to sustain static positions required for most work, such as prolonged sitting or standing. Some long term back conditions linger despite an absence of radiographs or MRIs, or EMGS documenting evidence of progression. A whole other category of disability, that caused by chronic pain and the side effects of necessary narcotic pain medication, is often overlooked by the insurer eager to deny claims.

We have handled many long term disability cases involving “failed back syndrome” where our clients have neuro-stimulators permanently installed in their backs to help them manage pain. Despite that evidence of the severity of their despairing condition, the absence of an “objective” test showing the precise cause of the spinal dysfunction was used to deny their claim.

Fortunately, the 7th Circuit Court of Appeals recognized the significance of various elements of proof establishing the existence of a neuromuscular disorder which qualifies under the exceptions to the MetLife limited coverage. While MetLife emphasized that there were some equivocal test results showing ongoing radiculopathy (an exception to the limit), the Court of Appeals considered the clinical examination results of the claimant’s own specialists, ongoing consistent testing which aligned with the disorder and past positive EMGs as the objective evidence MetLife arbitrarily disregarded. They reversed the District Court in Hennen v. Metro. Life Ins. Co., 2018 U.S. App. LEXIS 26114 (7th Cir. 2018). This decision fortifies that the insurers must not require only a certain “objective evidence” to establish the necessary proofs.

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 Reliance Standards’ unreasonable and bad faith claims handling , was carefully scrutinized by Judge Reeves, sitting in the Southern District of Mississippi.  Reliance and its competitors in the industry, as the Judge notes, “have conflicting missions of deciding who qualifies for benefits and ensuring those decisions do not undermine their own bottom line.”  Nichols v. Reliance Std. Life Ins. Co., No. 3:17-CV-42-CWR-FKB, 2018 U.S. Dist. LEXIS 109526 (S.D. Miss. June 29, 2018).  This conflict of interest has become very evident to the courts, which frequently criticize the practices of disability insurers; yet insurers refuse to change their ways, seeking to preserve their financial interests.

The case involved 62 year old Ms. Nichols who spent her entire life working as a Hazard Analysis and Critical Control Points Coordinator at a chicken processing plant in Mississippi.  Her duties included training employees on quality assurance procedures and inspecting, packaging, and exporting meat products in processing areas, which were maintained at near-freezing temperatures. Ms. Nichols suffers from circulatory disorders, including Reynaud’s Syndrome rendering her unable to tolerate cold temperatures because doing so would cause her arteries to spasm and could lead to serious medical complications, such as gangrene.

Ms. Nichols’ medical conditions clearly prevented her from performing the duties of her occupation, which required exposure to cold.  Reliance sought a way to deny Ms. Nichols’ claim turning to the policy’s definition of  “regular occupation”—which defines a claimant’s occupational duties as they are “normally performed in the national economy,” rather than “the unique duties performed for a specific employer or specific locale.”  Reliance excluded Ms. Nichol’s duties associated with exposure to the cold by generally classifying her job to ignore the meat inspection, packaging, and exporting duties of Ms. Nichols’ occupation and denied her disability claim.  Ms. Nichols brought suit in federal court, and she won a resounding victory.

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Our clients often ask how to retain employee benefits while on disability leave.  A source of this information should be an employee handbook or summary of benefits available from the employer.  Often all benefits such as medical coverage or life insurance continues while the employee is on short term disability.  Then if the employee does not return to work and receives long term disability, they are offered to continue such ancillary benefits providing they start to pay the premiums or convert the coverage in some way.  For instance an employer will issue a letter explaining the employee is eligible for COBRA medical coverage for a set period of time if they pay the premiums for the coverage.

An issue arises when the employee indicates an interest in continuing the coverage but the employer fails to submit the necessary paperwork to them. A recent example of this problem occurred in Erwood v. Life Ins. Co. of N. Am._ 2017 U.S. Dist. LEXIS 56348. Erwood left work on disability, but the employer did not inform him or his family of his need to convert life insurance coverage to own it himself in order to remain covered and did not  provide him with the conversion forms. When Erwood died and his family sought life insurance, the carrier, CIGNA denied the claim because no conversion forms were on file. The employer defended its position by claiming that there was a packet of materials sent to Erwood, but the Court held  the packet was inadequate because it did not include the materials necessary to convert life insurance coverage or inform where to access such materials or even where to send them. The employer’s excuse that Dr. Erwood did have access to the life insurance program on its benefits internet portal was not enough. The Court held that “merely making an SPD on its portal does not satisfy its disclosure obligations of the plan administrator, the employer, especially in light of the fact that once Dr. Erwood’s FMLA leave expired, his access to the portal was terminated.” The Court entered judgment for the full life insurance benefit from the employer.

The Court explained that once Erwood, an ERISA beneficiary, requested information from the employer who was aware of his status and situation, the employer has a fiduciary obligation to convey complete and accurate information material to the beneficiary’s coverage and rights even if he has not specifically inquired about it. The fiduciary, in this case the employer, has a duty to inform when he knows that silence might be harmful. So if an employer makes an affirmative misrepresentation or fails to adequately inform a plan participant, that misrepresentation or inadequate disclosure can be material and when the employee detrimentally relies upon it and loses coverage, the employer can be liable.

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