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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.”

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The 11th Circuit recently decided an important case in the grey area of when does the deadline for filing litigation expire in a disability claim. In Witt v. MetLife,2014 U.S. App. LEXIS 22321 (11th Circuit 11/25/14), Mr. Witt was denied benefits in 1997 but did not contact MetLife to contest the denial until 12 years later. MetLife performed a courtesy review consisting of an administrative review of documentation and evidence. MetLife ultimately upheld its earlier denial of 12 years before and in its final letter to Witt, noted that he had exhausted his administrative remedies under the plan and had the right to bring civil action under Section 502a or ERISA.

MetLife’s letter did not assert a time bar or statute of limitations defense, and MetLife never noted in its letters or interaction with Witt’s attorney that it would ever exert a statute of limitations as a defense to litigation. When Witt filed a lawsuit several years later, MetLife successfully dismissed the claim and the 11th Circuit upheld the District Court’s decision. The court reasoned that it was not necessary for MetLife to expressly state in writing that it was preserving its right to exert the statute of limitations as a defense.

MetLife was entitled to perform a “courtesy review” of the claim without thereafter binding it to a re-initiation of a statute of limitations. The court was concerned that if they require an insurer to expressly state that its reconsideration of a stale claim preserved its right to a statutory timeliness defense, “that outcome would prevent plan participants with meritorious though untimely claims from receiving a review and possibly benefits. At the same time, it would aid only those individuals who fail to file claim in a timely fashion and then have their subsequent claims denied on the merits”.

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In light of Robin Williams’ passing this year, mental health has returned to the headlines. As described in Arianna Huffington’s article “Robin Williams, Connectedness and the Need to End the Stigma Around Mental Illness,” Williams’ suicide was undoubtedly linked to his struggle with depression and anxiety. In fact, as Huffington reports, “90 percent of those who commit suicide suffer from a mental illness of some kind at the time of their death.” Of all mental disorders, depression is the most common: it inflicts one out of every twenty Americans. This public-health concern has received far too little attention and since the 1980s, government “spending for mental health, while increasing in raw terms, has still remained only 1 percent of the economy, even as overall health spending has risen from 10 percent of GDP to 17 percent by 2009.” This lack in spending is largely due to the stigma associated with mental-health issues.

Decades ago, disability insurers became aware that a high percentage of their policyholders became disabled by mental health conditions. Instead of lending a helping hand, they turned their back on this population, by incorporating coverage limits for disability caused or contributed to by a mental health condition. This sweeping limitation has been upheld on court challenges even involving the ADA. 42 U.S.C. § 12101 et seq; Fletcher v. Tufts University 2005 U.S. Dist. LEXIS 7237 (D. Mass. April 15, 2005)

Illnesses of the body that affect our physical health are far easier to objectify and more accepted within the disability landscape, tending to overshadow emotional health. Physical ailments are often related to or can lead to mental disorders. NBC reported that Robin Williams was battling symptoms of early Parkinson’s disease. The news source noted that in addition to the paralyzing affects on a patient’s body, Parkinson’s often leads to “depression and other disability.” This is well documented.

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Oftentimes, when reviewing a disability claim, the insurer will not consider how the insured was actually required to perform his occupation. Instead, the insurer, relying on the clause in its policy “the Covered Person’s occupation is as it is normally performed in the local economy” will define “own occupation” solely be reference to how the position could be performed in the local (or national) economy. This issue arises when the particular job requires additional duties such as travel to solicit business as was the case with Polnicky v. Liberty Life Assur. Co. of Boston, 2014 U.S. Dist. LEXIS (N.D.Cal. Nov. 25, 2014). Mr. Polnicky was required to travel out of the office to attend open houses, conduct presentations, deliver loan documents, meet with realtors but Liberty’s vocational case manager determined that the occupation of Reverse Mortgage Consultant could be performed without traveling. The court disagreed with Liberty’s analysis because although it was permitted to consider his occupation as it is normally performed, it must also consider the material and substantial job duties that Mr. Polnicky was required to perform in his position for Wells Fargo.

Insurers cannot agree to provide coverage for an employee’s “own occupation” and then fail to consider the precise elements of the material and substantial duties of the occupation when evaluating a disability claim.

We at Bonny G. Rafel can help if your claim is denied because the insurer does not consider all of the duties of your occupation. Bonny G. Rafel, LLC We advocate for patients with disabling conditions and may be able to assist you in getting the benefits you deserve.

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Insurers are still permitted to include “pre-existing” limiting provisions in its disability policies. Cigna policies provide that ” The Insurance Company will not pay Disability Benefits for any period of Disability caused or contributed to by, or resulting from a Pre-Existing Condition.” A “Pre-existing Condition” means “any Injury or Sickness for which medical treatment, care or services including diagnostic measures, prescription drugs or medicines was recommended or received from a licensed medical practitioner within 3 months before the Employee’s most recent effective date of insurance.” Cigna has a pattern of discriminating against women suffering from breast cancer. See ABC news report from 2009. They again committed bad faith in 2014 when they applied the pre-existing provision to our client, Ann-Marie, denying her bona-fide claim for disability due to metastatic breast cancer.

In 2007 Ann-Marie was diagnosed with breast cancer during a routine mammogram. She underwent surgery and chemotherapy and returned to work. For the next six years, she saw her doctor for bi-annual cancer screening and received monthly adjuvant hormonal therapy purely as a preventative measure, because the breast cancer had a large number of estrogen receptors. The treatment reduces the body’s own production of estrogen. Ann Marie changed jobs last year and received new group long term disability benefit coverage with Cigna.

Our client had symptoms of metastatic cancer four months after she began her new employment and Cigna denied the claim, asserting that her treatment of Zoladex in the three months pre-employment qualified as “treatment for cancer”.

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Multiple Sclerosis is an autoimmune disease where the individual’s autoimmune system attacks healthy tissue in the brain and spinal cord, damaging nerve fibers. Typical symptoms include muscle spasms pain and tingling, numbness, cognitive impairment, vision problems and difficulties with balance and walking.

An estimated 400,000 Americans have this disease. The New York Times recently highlighted several New Yorkers living with Multiple Sclerosis and reported the toll the disease has on their lives in Multiple Sclerosis Takes Toll on Body and Soul.

The story of Denise Muller in particular peaked my interest because it is so similar to the experience of our clients struggling to have their disability claims paid. A significant percentage of the cases we handle at Bonny G. Rafel LLC involve autoimmune disorders, including Multiple Sclerosis.

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Recipients of long term disability benefits often experience improvement in their condition when they stop working. For example, a construction worker who experiences severe back pain may experience a health improvement when he is not engaged in intensive physical activity on a daily basis. When you have been approved for long term disability, the benefits administrator will continue to request updates from your physician regarding your treatment progress. If there is any indication of a health improvement while on long term disability, the administrator may request an independent medical evaluation (“IME”), a functional capacity evaluation (“FCE”), or even hire a third-party vendor to follow and video your public activities. Your medical improvement could potentially be used against you to terminate your benefits.

A recent case from Michigan provides a great window into how this process can work. In Gillespie v. Liberty Life Assurance Co. of Boston, the plaintiff was a former bank teller who underwent surgery to relieve persistent back and neck pain. The plaintiff briefly attempted to return to work following her surgery. However, this exacerbated her pain symptoms. After she stopped working, her condition improved, she was able to see her doctors less frequently, and to reduce the amount of pain medication she took. However, this improvement triggered a heightened review by Liberty. Her treating physicians reported to Liberty that she was still unable to work, but Liberty, unsatisfied, requested an independent medical examination (IME). The IME doctor reported that she could return to a sedentary position. Liberty terminated her benefits in a month after the IME. Despite appealing, her denial was upheld and she filed suit against Liberty.

Thankfully, the court found that Liberty’s decision was improper on a number of grounds. Liberty over-relied on their own doctors and consultants, as there is nothing in the record to indicate that Gillespie’s treating physicians’ opinions were considered. Most importantly, Liberty failed to address the fact that work exacerbated Gillespie’s pain symptoms and did not consider how a return to work again would not end in the same result.

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The New York Times Magazine recently published a thought-provoking article in its health issue called, “How Do You Heal a Traumatized Mind? A Revolutionary Approach to Treating PTSD.” While most trauma therapists swear by the two most clinically approved and widely employed techniques in treating Post Traumatic Stress Disorder (PTSD), cognitive behavioral therapy and exposure therapy, Dutch psychiatrist, Bessel van der Kolk, challenges the norm.

Van der Kolk reasons that the most helpful therapies to heal patients suffering from PTSD are not emotional or behavioral, but instead physiological. Van der Kolk calls the patient’s act of remembering a traumatic event, “reactivation,” because the body sends the individual back into fight-or-flight mode. The majority of PTSD patients desire to numb this “reactivation” of pain by “dissociating” in the short-term, and self-numbing (food, exercise, work, alcohol, etc.) in the long-term. While most therapists would normally focus on the mind and how it relates to the traumatic incident, van der Kolk’s techniques shift that focus to the body.

To treat the disconnect between memories and the body’s reaction to them, van der Kolk suggests techniques that give attention to the way the body functions, like yoga, the Emotional Freedom Technique (tapping), or eye movement desensitization and reprocessing (E.M.D.R). With a therapist’s guidance, patients use Emotional Freedom Technique by tapping various acupressure points with their own fingertips while reciting positive phrases. By physiologically tuning into the problem, tapping can calm the sympathetic nervous system and prevent the patient from entering fight-or-flight mode. For patients with isolated traumatic memories, van der Kolk also recommends E.M.D.R., in which “a therapist wiggles fingers back and forth across the patient’s field of vision and the patient tracks the fingers while “holding in mind” the traumatic memory. Van der Kolk now uses this technique routinely because it helps patients process their traumas; the goal is for the negative experience to transform from an existing paranoia into a distant memory. Now, more than 60,000 therapists around the world are certified in E.M.D.R., and van der Kolk calls the therapy a godsend.

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The law on marijuana use is rapidly changing nationwide. To date, 23 states have legalized some medicinal use of marijuana, with legislation pending in three additional states. Most notably, 2012 ballot initiatives in Colorado and Oregon legalized recreational marijuana use. Further, additional jurisdictions have decriminalized marijuana, and some prosecutors, such as the Brooklyn District Attorney’s Office, no longer pursue low-level possession charges. This quickly evolving area of law will impact not only our criminal justice system, but also disability benefits claims. As legalized medicinal use of marijuana becomes more common, employers and their workers will face tough questions. Employers are understandably unlikely to allow a worker under the influence of marijuana to work. However, if an employee has not been able to find relief for their disabling conditions through any other means, should they be allowed to work if it is controlled through marijuana use? And if they work in a particularly sensitive occupation where driving or the operation of heavy machinery is necessary, is an employee’s use of marijuana to control their symptoms disabling? Unfortunately, there are no documented cases of medicinal marijuana use and disability, but we do expect to see some in the near future as access to the drug increases. However, other cases dealing with medicinal use of controlled substances and disability are instructive of how medicinal marijuana use may be disabling.

Certain jobs come with zero-tolerance for the use of even prescribed controlled substances. The Federal Aviation Administration’s (FAA) Office of Aerospace Medicine has published a lengthy and non-exhaustive list of prohibited medications, and Aviation Medical Examiners have been instructed to refuse issuance of an FAA medical certification to any person who use any drug on this list. In

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Following the U.S. Supreme Court’s Decision in Heimeshoff, Lawyers are being extra-careful in determining the deadline for filing a lawsuit in court to protect a clients’ rights. Unfortunately, the insurers do not believe they are responsible to advise their insured if a deadline is approaching. A recent example of the insurer outfoxing the insured is Gordon v. Deloitte & Touche, LLP Group Long Term Disability Plan, 2014 U.S.App. LEXIS 6688 (9th Cir. April 11, 2014).

Ms. Gordon had appealed the denial of her claim several times. She let the claim lay stagnant, and then recontacted MetLife and requested they consider another appeal. Following intervention by the Department of Insurance, MetLife agreed to reevaluate the claim and did so. Detailed exchanges commenced, and the ultimate outcome was MetLife’s upholding its denial. Gordon filed a lawsuit and the 9th Circuit upheld the application of the Plans’ statute of limitations deadline for filing a lawsuit. The court held that MetLife’s reopening of Gordon’s claim file does not in and of itself revive the statute of limitations because it would discourage reconsideration by insurers even when reconsideration might be warranted.

Commentary: One would consider estoppel or waiver in this circumstance. Firstly, it is well established law that “a defendant will be estopped from setting up a statute of limitations defense when its own prior representations or conduct have caused the plaintiff to run afoul of the statute and it is equitable to hold the defendant responsible for that result.” However, in this case, the statute of limitations had already run before MetLife agreed to review the appeal again. Secondly, caselaw suggests that waiver requires an intentional relinquishment of a known right and consideration for the alleged waiver. In this case, there is no evidence that MetLife intentionally relinquished its right for the statute of limitations defense. However, MetLife did advise Gordon that she should file an appeal of their decision and in the event her appeal is denied she would then have the right to bring a civil action under ERISA. Unfortunately for Gordon, she embarked on a costly comprehensive appeal expecting that she would have the right to contest a denial in court, but that would not be the outcome.