Author: Cody Allison

by Cody Allison

Arbitration in ERISA Cases

More and more contracts seem to be moving toward clauses which require the parties to submit to arbitration rather than taking the matter to court. In the case linked below, the U.S. Court of Appeals for the Ninth Circuit examines the issue of whether or not an arbitration clause in an insurance contract forces the employee to arbitrate all claims or if some claims were excluded from this clause. In this case, Munro v. University of Southern California, the Court examined whether or not an arbitration clause bound employees to settle a dispute in arbitration that was not personal to the employee but rather a dispute brought on behalf of the ERISA plan itself.

As more and more companies move to arbitration clauses, these type of issues will arise. If you need help with your long-term disability claim, call us. We are here to help.

This is the link to the Munro case: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/17-55550.pdf

by Cody Allison

Jones v. Aetna / Equitable Considerations

This case has to do with equitable considerations in a denial of coverage under a long-term disability policy.  If your coverage is denied, that may not be the end of your claim.  If your coverage has been denied, contact us — we are here to help.

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com

____________________________________________________________________________________

United States Court of Appeals, Eighth Circuit.

Lisa Jones Plaintiff – Appellant v. Aetna Life Insurance Company; The Boeing CompanyEmployee Health and Welfare Benefit Plan; Employee Benefit Plans Committee of The Boeing Company; The Boeing Company Defendants – Appellees

No. 16-1714

    Decided: May 08, 2017

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.

Lisa E. Jones submitted a claim for disability benefits. Her plan administrator denied it. She sued under the Employee Retirement Income Security Act (ERISA) for denial of benefits and breach of fiduciary duty. The district court dismissed the fiduciary claim as “duplicative” of the denial-of-benefits claim. It then granted summary judgment against Jones on the denial-of-benefits claim. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

Jones worked for The Boeing Company as a business and planning analyst. She was covered by Boeing’s employee welfare benefit plan. The plan provided short-term (up-to-26-weeks) disability benefits funded by Boeing and administered by Aetna Life Insurance Company. It also provided long-term disability benefits funded and administered by Aetna.

On October 16, 2013, Jones stopped working and submitted a claim for short-term benefits. On October 21, rheumatologist Dr. Francisco J. Garriga submitted an “Attending Physician Statement” with a primary diagnosis of “ankylosing spondylitis” (inflammatory arthritis primarily affecting the spine), and a secondary diagnosis of “migraines.” Dr. Garriga first stated that Jones could not work through November 4. On October 23, Aetna approved her claim for short-term benefits effective October 24. Dr. Garriga then extended Jones’s unable-to-work dates many times. Aetna extended her benefits and required updates from Dr. Garriga. On January 30, 2014, Aetna made what would be its final extension—through February 17.

On February 26, Dr. Garriga extended Jones’s unable-to-work date to April 28. At Aetna’s request, he submitted a “Capabilities and Limitations” worksheet on March 17. It was mostly blank because “no formal testing has been done – would need PT appointment to accurately assess.” On April 11, chiropractor Dr. Brian Dent submitted a “Capabilities and Limitations” worksheet stating that Jones was limited to working two to four hours per day pending flare-ups.

On April 16, Aetna told Jones that her submitted information did not sufficiently document a level of impairment preventing her from working. Aetna requested more information. Aetna then sent Jones’s file to Dr. Kia Swan-Moore for review. Dr. Swan-Moore reviewed the medical records and spoke to Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work however [Jones] continues to tell him that the pain is so intense she could not concentrate.” Dr. Swan-Moore also tried, unsuccessfully, to contact Dr. Mahendra Gunapooti, a pain management specialist who Jones said had treated her. On April 24, Dr. Swan-Moore concluded, based on the medical records, Jones could work an eight-hour day for the period of February 17 through May 30 (with unlimited sitting, standing, and walking, and with some limits on pushing, pulling, and carrying). On April 28, Aetna essentially restated Dr. Swan-Moore’s conclusions and told Jones her benefits were terminated effective February 17. The same day, Dr. Gunapooti sent records to Aetna. Those records showed that Jones reported chronic pain, was on numerous medications (including painkillers), and received epidurals. In light of Dr. Gunapooti’s records, Dr. Swan-Moore reviewed her determination and tried to contact him (but was again unsuccessful). Dr. Swan-Moore reaffirmed her determination. Aetna reaffirmed its denial.

On July 8, Jones submitted to a functional capacity evaluation by physical therapist Kevin J. Wilhite. He said Jones “demonstrated lifting performance that would place her in the Sedentary Physical Demand Category,” but he was “ultimately Unable to Classify her ability of work over an 8 hour work day due to her inability to complete the aerobic capacity testing” (which he did not conduct “due to safety concerns of using a treadmill with her gait performance and use of the cane”). He said, based on her self-reported pain, he “would not expect her to tolerate any activity over 2 hours,” and noted that “Productive Sedentary work for an 8 hour work day would not be expected based on this date’s performance.” Wilhite did say that Jones “demonstrated inconsistent performance,” including “movement and muscle recruitment patterns that were inconsistent when aware and unaware of observation.” Aetna concluded that Wilhite’s report did not support a disability finding, especially due to Jones’s reported inconsistent performance.

On July 17, Jones appealed the denial of benefits. She submitted Wilhite’s report and a newer “Attending Physician Statement” from Dr. Garriga saying that her inability to work was “ongoing” and she “cannot remain standing for over 2 hrs.” Aetna sent Jones’s medical documentation to Dr. Daniel Gerstenblitt to see if Jones qualified as disabled between February 18 and April 16. Dr. Gerstenblitt tried to call Dr. Garriga seven times, leaving messages that were not returned. Dr. Gerstenblitt stated that Jones “appears to have chronic neck and back pain,” determined that her “functional capacity evaluation was an invalid study and self-limited,” and concluded that “there is absolutely no reason that she is incapable for performing in at least a sedentary position.” Aetna denied Jones’s appeal on October 8. On January 19, 2015, Jones asked Aetna to place in her file a letter from the Social Security Administration granting her disability benefits.

In February 2015, Jones sued Aetna, the “Boeing Employee Health and Welfare Plan,” and the “Employee Benefit Plans Committee, the Boeing Company.” Her amended complaint had two counts. Count I alleged that Aetna denied her short-and long-term disability benefits in violation of 29 U.S.C. § 1132(a)(1)(B). Count II alleged Aetna breached its fiduciary duty to her as a participant by (among other things) failing to obtain medical records, failing to tell her where to send evidence of disability, and using claims examiners with conflicts of interest, all in violation of § 1132(a)(3). The district court dismissed Count II as “duplicative” of Count I, and denied Jones’s motion for discovery on the fiduciary-duty claim. It then granted summary judgment to Aetna on Count I, determining Aetna did not abuse its discretion in denying Jones’s claim. It also granted Aetna’s motion to strike documents Jones attached to her memorandum opposing summary judgment.

II.

Jones argues that the district court erred in dismissing Count II. This court reviews the district court’s dismissal de novo. Wilson v. Ark. Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017).

Two of ERISA’s theories of recovery are relevant here. First, under § 1132(a)(1)(B), a plan participant or beneficiary may sue “to recover benefits due to him under the terms of his plan.” Second, under § 1132(a)(3), a participant or beneficiary may sue “to obtain other appropriate equitable relief ․ to enforce any provisions of this subchapter”—including provisions of the subchapter that impose liability on fiduciaries ² that breach their statutory duty to exercise a “prudent man standard of care.” See §§ 1104(a), 1109(a); Varity Corp. v. Howe, 516 U.S. 489, 507-15 (1996).

A.

This court’s cases conflict about whether a participant or beneficiary bringing a § 1132(a)(1)(B) claim “to recover benefits due to him under the terms of his plan” may also bring a § 1132(a)(3) claim to obtain benefits (as “other appropriate equitable relief” for a breach of fiduciary duty by a plan administrator).

In Conley v. Pitney Bowes, 176 F.3d 1044 (8th Cir. 1999), a beneficiary sued under (a)(1)(B) for benefits. He also sued under (a)(3) for breach of fiduciary duty. He “described the alleged fiduciary violations as failure to provide him with proper notice of his opportunity to appeal, failure to maintain a complete administrative record, and failure to conduct a full and impartial investigation of his condition.” Id. at 1047. He “sought equitable relief in the form of a restoration to him of past and future additional long-term disability benefits.” Id. The district court dismissed the (a)(3) claim. This court affirmed, explaining that “where a plaintiff is provided adequate relief by the right to bring a claim for benefits under § 1132(a)(1)(B), the plaintiff does not have a cause of action to seek the same remedy under § 1132(a)(3)(B).” Id. (internal quotation marks omitted). It held that the beneficiary “has a claim for benefits under § 1132(a)(1)(B) and therefore may not seek the same benefits in the form of equitable relief under § 1132(a)(3)(B).” Id.

More recently, in Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Cir. 2014), a beneficiary sued under (a)(1)(B) for benefits from a valid insurance policy. He also sued under (a)(3), arguing that even if the policy was never validly approved (and thus never took effect), the employer and insurer still owed benefits because of fiduciary misconduct in failing to obtain approval. Id. at 727-28. Both counts sought the same relief—“payment of benefits that were seemingly owed under the Plan [in the amount of] $429,000.” See id. at 724, 728 n.12. The court refused to dismiss the (a)(3) claim, holding the beneficiary “is allowed to assert liability under the two subsections of 29 U.S.C. § 1132 at issue in this case.” Id. at 728.

Silva acknowledged that earlier Eighth Circuit cases suggest that a plan beneficiary cannot bring both (a)(1)(B) and (a)(3) claims. Id. at 726, citing Pilger v. Sweeney, 725 F.3d 922, 927 (8th Cir. 2013). The earlier cases rely on the Supreme Court’s 1996 Varity decision—specifically, its statement that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” 516 U.S. at 515. Silva determined that Varity and the earlier Eighth Circuit cases do not “stand for the proposition that [a beneficiary] may only plead one cause of action.” Silva, 762 F.3d at 726. Instead, Varity and the earlier Eighth Circuit cases more narrowly “prohibit duplicate recoveries when a more specific section of the statute, such as § 1132(a)(1)(B), provides a remedy similar to what the plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” Silva, 762 F.3d at 726.

Silva buttressed its interpretation of Varity and the earlier Eighth Circuit cases with “further support” from CIGNA Corp. v. Amara, 563 U.S. 421 (2011). Silva, 762 F.3d at 726. Amara reviewed an order for plan reformation under (a)(1)(B). The Court held that (a)(1)(B) does not authorize that type of relief, but a different statutory basis—(a)(3), which the district court had considered and rejected—does authorize that relief. Amara, 563 U.S. at 438, 442. According to Silva, the Amara “Court addressed the issue in terms of available relief and did not say that plaintiffs would be barred from initially bringing a claim under the § 1132(a)(3) catchall provision simply because they had already brought a claim under the more specific portion of the statute, § 1132(a)(1)(B).” Silva, 762 F.3d at 727.

Silva acknowledged that “this interpretation of Varity may seem to be at odds with earlier Eighth Circuit cases,” but distinguished those earlier cases “based on the stage of litigation the court was reviewing.” Silva, 762 F.3d at 727. The earlier Eighth Circuit cases, Silva said, were all summary judgments, where “a court is better equipped to assess the likelihood for duplicate recovery, analyze the overlap between claims, and determine whether one claim alone will provide the plaintiff with ‘adequate relief.’ ” Id. Silva, on the other hand, was a motion-to-dismiss case, where “it is difficult for a court to discern the intricacies of the plaintiff’s claims to determine if the claims are indeed duplicative, rather than alternative, and determine if one or both could provide adequate relief.” Id.

Silva’s attempt to distinguish previous cases based on the stage of litigation falters because Conley dismissed a § 1132(a)(3) claim on a motion to dismiss, not at summary judgment. Silva did not cite Conley. Neither Silva nor any other case from this court explicitly holds that Conley is no longer good law.

This court must resolve the intracircuit conflict between Conley’s rule—an (a)(1)(B) claimant may not seek relief under (a)(3)—and Silva’s rule—an (a)(1)(B) claimant may seek relief under (a)(3). Generally, in the case of an intracircuit conflict, the earliest opinion controls. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). However, “a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent.” T.L. ex rel. Ingram, 443 F.3d at 960. The Silva panel’s departure from prior precedent followed the intervening Amara opinion that undermined the prior panels’ interpretations of Varity. Indeed, Amara implicitly determined that seeking relief under (a)(1)(B) does not preclude seeking relief under (a)(3). See Amara, 563 U.S. at 438; Moyle v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 960-62 (9th Cir. 2016) (agreeing with Silva’s interpretation of Amara). Although Silva did not recognize Conley, it did properly depart from it based on Amara. Silva controls.

B.

Aetna tries to distinguish Silva by limiting it to its facts, essentially arguing it applies only where the (a)(3) claim asserts that a plan was never validly approved. But Silva’s rule is broader than that: so long as two claims “assert different theories of liability,” plan beneficiaries “may plead both.” Silva, 762 F.3d at 728 & n.12.

Here, Jones asserts different theories of liability. Like Silva, the two counts seek functionally identical relief—“an amount in excess of one million dollars,” the benefits Jones says Aetna denied her. But despite the similarity of the relief, Counts I and II allege distinct theories of liability. Count I asserts that Aetna denied her benefits due under the plan. Count II asserts that Aetna, among other things, used claims examiners with conflicts of interest and denied short-term benefits solely to disqualify long-term claims. Count II’s theory of liability is that Aetna used a claims-handling process that breached its fiduciary duties, not that Aetna denied her benefits due. True, Jones argues that this process caused her to be denied benefits she was due. But Aetna’s alleged liability under (a)(3) flows from the process, not the denial of benefits itself. A plan administrator is not liable under (a)(1)(B) for administering a claims process contrary to its fiduciary obligation to carry out its duties solely for participants and beneficiaries. Even if an administrator made a decision with procedural irregularities that “serious[ly] breach” its duties to its beneficiary, it is not necessarily liable under (a)(1)(B); instead, the serious breach prompts more searching review of the denial-of-benefits claim. See Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d 628, 631 (8th Cir. 2016); Waldoch v. Medtronic, Inc., 757 F.3d 822, 830 (8th Cir. 2014) (explaining that a “serious breach of the plan trustee’s fiduciary duty to the plan beneficiary” will either “alter the standard of review or affect our review under the abuse-of-discretion standard”).

Despite Aetna’s attempts to characterize the two claims as duplicative because both allege “improper claims processing,” the two claims assert different theories of liability. The district court erred in dismissing Jones’s Count II (a)(3) claim on that basis. Its dismissal of Count II is reversed.³

III.

Jones contends that the district court erred in granting summary judgment on her Count I (a)(1)(B) denial-of-benefits claim. According to her, she is entitled to both short-term and long-term disability benefits under the plan. The parties agree that the Summary Plan Description gives Aetna discretionary authority to interpret the plan. “When a plan grants an administrator this type of discretion, the district court reviews the administrator’s construction of the plan terms for an abuse of discretion.” Silva, 762 F.3d at 717 (internal quotation mark omitted). Under abuse-of-discretion review, “[a]n administrator’s decision is upheld if it is reasonable, that is, supported by substantial evidence”—meaning “more than a scintilla but less than a preponderance.” Id. See also King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-1000 (8th Cir. 2005) (en banc); Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1199 (8th Cir. 2002). If an administrator also funds the benefits it administers—like Aetna does for Jones’s long-term benefits—the district court “should consider that conflict as a factor” in determining whether the administrator abused its discretion. Silva, 762 F.3d at 718. See also Whitley v. Standard Ins. Co., 815 F.3d 1134, 1140 (8th Cir. 2016). This court reviews de novo the grant of summary judgment, viewing the evidence most favorably to Jones. Silva, 762 F.3d at 718.

A.

In her “Statement of the Issues,” Jones frames her challenge to the district court’s summary judgment grant narrowly: “Whether the trial court erred in granting summary judgment because the trial court failed to consider the administrative record in that Aetna’s own doctor found Jones had a functional impairment in evaluating her disability.” Taking the issue as defined by Jones, she does not show that Aetna’s decision was unreasonable. Yes, Aetna’s reviewing doctor, Dr. Swan-Moore, found that “functional impairment is supported” for February 17 through May 20, 2014. But the functional impairment found by Dr. Swan-Moore was limited: “Based on an 8 hour day; sitting, standing, and walking would be unlimited. She could push, pull, and carry no more than 10 pounds at any time. There are no restrictions to emotional control, focus or concentration as well as cognition.” By the “disabled” definition in the Summary Plan Description, you are not disabled due to a “functional impairment”; rather, you are disabled if an illness “prevents you from performing the material duties of your own occupation or other appropriate work the Company makes available.” Dr. Swan-Moore’s determination that Jones had some functional impairment does not render Aetna’s no-disability determination unreasonable.

B.

Jones makes other arguments, none of which shows that Aetna’s denial of benefits was unreasonable. First, she asserts that Dr. Swan-Moore never considered she suffered from migraines. Jones is incorrect. Dr. Swan-Moore’s review noted twice that Dr. Garriga diagnosed her as suffering from migraines. Dr. Swan-Moore also discussed Jones’s condition with Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work.” Aetna reasonably relied on Dr. Swan-Moore’s review, which “accurately represent[ed] [Jones’s] medical record and adequately address[ed] the evidence supporting her claim for disability.” Midgett v. Washington Grp. Int’l Long Term Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009). Second, she argues that Aetna’s Summary Plan Description (which the district court used to determine her benefits) has two flaws: (1) it was not authenticated, and (2) there is no way to know whether the underlying plan contradicts the Summary Plan Description. The first premise fails because the plan was authenticated by affidavit. Her second premise fails because courts frequently look to summary plan descriptions in determining benefits. See generally Jobe v. Med. Life Ins. Co., 598 F.3d 478, 481-86 (8th Cir. 2010). It is true that since the summary plan description states that the plan governs in cases of a conflict between the summary and the plan, the plan governs if there is a conflict. See id. at 485-86. But the underlying plan matters only if there is a conflict. Jones presents no evidence of a conflict and does not argue that she requested discovery of the underlying plan. Third, she contends—without citing any evidence—that Aetna denied her short-term benefits in order to avoid having to later pay long-term benefits. Even considering this potential conflict in determining whether Aetna abused its discretion, Jones has not shown that Aetna’s determination was unreasonable.

C.

Jones contends that the district court erred in striking evidence she submitted to oppose summary judgment. “Determinations as to the admissibility of evidence lie within the sound discretion of the district court, and we review those determinations under an abuse of discretion standard, even at summary judgment.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 818 (8th Cir. 2010). Jones submitted a “Supplemental Administrative Record,” which included a letter from the Social Security Administration granting disability benefits, a letter from Jones to Aetna asking for inclusion of the SSA letter in the administrative record, and a letter from Aetna acknowledging receipt. Jones sent the letter to Aetna on January 19, 2015—over three months after Aetna denied her appeal.

When applying abuse-of-discretion review, a court reviewing a denial of benefits should not consider information that was not before the plan administrator: “Review of a plan administrator’s discretionary decision must be limited to the administrative record ․” Ingram, 812 F.3d at 634. Since the “Supplemental Administrative Record” materials were not before the plan administrator when it made its discretionary determination, the district court correctly struck those materials.

D.

In her reply brief, Jones makes additional arguments for reversal of summary judgment. This court generally does not consider arguments raised for the first time in a reply brief, although it may if the new arguments supplement those raised in an initial brief. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006). These arguments assert errors not raised in the initial brief. Jones offers no reason for not raising them sooner. This court declines to consider the new arguments. The district court’s grant of summary judgment on Count I is affirmed.

* * * * * * *

The judgment of the district court is affirmed in part, reversed in part, and the case remanded for proceedings consistent with this opinion.

FOOTNOTES

2.   ERISA defines fiduciaries to include any person exercising “discretionary authority or discretionary control respecting management of [a] plan” and any person with “discretionary authority or discretionary responsibility in the administration of [a] plan.” 29 U.S.C. § 1002(21)(A).

3.   Before the district court, Jones moved for discovery to support her Count II claim. The district court denied that motion “in light of its dismissal of Count II.” Since this court reverses the basis for the denial, on remand the district court should reconsider the discovery motion.

BENTON, Circuit Judge.

by Cody Allison

What is the ERISA “Safe Harbor” Provision And Why Should I Care?

Below is an explanation of the “safe harbor” provision under ERISA.  As you will learn in dealing with your claim, there are all sorts of wrinkles in the law as it may apply to your policy or your situation.  This is why it is important to consult with a professional when you are thinking of making a claim.  Contact us — we’re here to help!

The ERISA “safe harbor” provision is covered under 29 C.F.R. 2510.3-1(j).

If a long-term disability plan, or other employee insurance policy, is excluded from ERISA coverage if it meets the criteria under this provision. The criteria include:

1) The employer makes no monetary contribution to the policy;
2) Employee participation in the policy is completely voluntary;
3) The Employer’s only function, without endorsing the policy, is to allow the insurer to publicize the policy to employees, and collect the premiums through payroll deduction;
4) The only consideration the Employer receives is in the form of an administrative fee for the payroll deduction function.

A policy must meet all four (4) criteria in order to be exempted from ERISA coverage. If these criteria are found to exist, the plan can be exempted under ERISA. Why should Employees / Claimants care if their plan can be exempted under the safe harbor provision of ERISA? The answer is because ERISA favors the Employer/inurance company. When attempting to enforce the payment provisions under the policy, it is to the advantage of the Employee / Claimant if the policy can be exempted from ERISA coverage, thus, the Employee / Claimant can argue coverage (payment) under state law.

If you are involved in a long-term disability claim and need a qualified attorney to review your case at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000. You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Long-Term Disability Future Benefit Buyout

Once a long term disability payment amount is reached, the question of a future benefit buyout may arise.  Sometimes, the insurer or the insured wants to settle the entire claim for a one-time lump sum buyout of all future benefits.  The insured has many questions to consider before doing this.  You need to consult a professional — that’s why were are here.  Call us today.

Does a future benefit buyout make sense for your claim? How much is your buyout worth?

My law firm deals with these two questions weekly. The answers are dependent on the facts of each individual claim. There are many factors to consider, such as:

1) Claimant’s basis of disability;
2) Policy definitions;
3) Mortality considerations;
4) Claimant’s age;
5) Proper calculation of future value and assessment of present value of the policy;
6) reinsurance agreements;
7) interest rates at the time of buyout proposal;
8) Personal financial obligations of the Claimant.

It’s important to remember each buyout situation is different. Just because an insurance company is offering a potential buyout doesn’t necessarily mean that a future benefits buyout is right for you. At Cody Allison & Associates, we understand these are difficult considerations. That’s why we have a team of professionals ready to assist you in assessing your individual situation. Further, we ONLY get paid if we successfully negotiate a buyout on your behalf.

If you are involved in a long-term disability claim and need a qualified attorney to review your case at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000. You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Fibromyalgia In Long Term Disability Claims

Long-term disability can arise from a variety of reasons.  One of these reasons my be Fibromyalgia.  Below is an explanation of the condition and a warning that making a claim for benefits may be a long and complex process.  If you need help making such a claim, contact us.  We are ready to help.

Fibromyalgia is a real condition which may have a great effect on an individual’s ability to work; however, fibromyalgia claims for ERISA long-term disability benefits are difficult and need extensive documentation.

Symptoms of fibromyalgia include widespread pain and fatigue; however, some tests may not show this.  Fibromyalgia is not like other chronic conditions such Rheumatoid arthritis, Multiple Sclerosis, or degenerative disc disease.  Fibromyalgia does not appear on what are called objective tests, such as MRIs, x-rays, or even blood tests.  It is often difficult condition to diagnose.

by Cody Allison

Treating Doctor v. Insurance Company’s Doctor

When there is a dispute regarding your disability, any court hearing comes down to a “battle of the experts.”  In these case of long term disability, the experts are doctors and other medical professionals.  The insurance company may want to to have an “independent” medical examination by a doctor that they want to see, and this doctor may end up disputing what your treating physician says about your condition.  This is why it is so important to get the right legal professionals working for you.  At Cody Allison and Associates, we stand ready to help.

Long-term disability claims primarily involve gathering the right information from your doctors in order to show an accurate picture of your limitations and inability to work based on the definitions in your policy.  Many times the insurance company will attempt to contradict the opinions of your doctor by sending your medical records to an “independent” (peer review/insurance company) doctor.  The insurance company doctor does not know you and has never even seen you, yet often times, will support the insurance company’s decision to deny benefits.  At Cody Allison & Associates, PLLC, our attorneys can effectively argue against the insurance company doctor’s review based on the credentials of the doctor, their bias, as well as the quality of the review itself.

The case law in the Sixth Circuit of the United States Court of Appeals shows that in an ERISA long-term disability decision, the treating doctor of the claimant should be given adequate weight to insure a fair decision is being made.  The courts are looking to see if the insurance company acted arbitrarily and capriciously in denying benefits. They are prohibited from relying solely on their “hired guns” when making a decision.

Every case is different.  Just like you are a unique individual, your case is unique as well.

At Cody Allison & Associates, PLLC we fight denied long-term disability claims everyday.  It’s what we do.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation.  You can reach Cody Allison & Associates, PLLC at (615) 234-6000.  We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few).  We will be happy to talk to you no matter where you live.  You can also e-mail our office at cody@codyallison.com.   Put our experience to work for you.  For more information go to www.LTDanswers.com.

by Cody Allison

Understanding The Definitions in Your Long-Term Disability Policy for Own Occupation to Any Occupation

Just like most areas of the law, long term disability policies have their own “jargon” that you need to be familiar with to make a claim.  Below, you will find information regarding being about to define “own occupation” within the context of your policy.  Unfortunately, this is not the only term that you are going to run into when you are dealing with your policy provider that you will need to know the meaning of.  Contact us — we are here to help you and answer your questions.

Most ERISA Group Long-Term Disability Policies pay disability benefits for the first two years you may qualify for disability benefits under your policy’s definition of “own occupation”.   It is important to know what your long-term disability policy’s definition of “own occupation” is defined as.  The definition in these group policies can vary with many different versions of a definition for “own occupation”.  Certain policies may use the term “regular occupation” instead of “own occupation”.  It is extremely important to understand not only the definition of your “own occupation”, but all the definitions in your long-term disability policy.  In most ERISA Group policies, after two years of benefits have been paid for your “own occupation” period, the definition then changes to “any occupation”.   If you do not have a copy of your long-term disability policy, we would recommend you request the policy and review the definitions so you know what you need to do in order to qualify to receive these benefits.  Just because you have the policy in place, does not automatically mean you will receive the long-term disability benefits because your doctor says you can’t work.  There are many definitions and variations of definitions that you need to be aware of.   We will be happy to review your long-term disability policy free of charge and answer any questions you may have.

If you are involved in a long-term disability claim and need a qualified attorney to review your case  at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000.  You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Systemic Lupus Erythematosus

Depending on your medical condition, it is necessary to seek out the appropriate kind of doctor to be treated by in order to make a claim under a long-term disability policy.  It can be difficult for a lay-person to determine what sort of doctor needs to treat them in order to have a valid claim.  Below are instructions about a helpful webside, Medline Plus, which has valuable information about Systemic Lupus Erythematosus.  If you are having problems making a claim, or if you have questions about treatment for your specific medical problem, call us.  We are ready to help.

The website Medline Plus, a service of the U.S. National Library of Medicine and the National Institutes of Health, has a great deal of information on Systemic Lupus Erythematosus, or SLE, which we have attached below.

If SLE is causing a disability, a person claiming long-term disability benefits needs to see a specialist who can administer all relevant testing. Rheumatologists are the appropriate specialists to diagnose and treat lupus. If a claimant suffering from SLE has not treated with a rheumatologist, it will be difficult for them to prove that they qualify for long-term disability benefits. Regular treatment is necessary to control symptoms, although there is not a known cure at this time.  A claimant of long-term disability benefits must maintain regular treatment, or they may not be able to show the severity of their symptoms.

If you are involved in a long-term disability claim and need a qualified attorney to review your case  at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000.  You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

MEDLINE PLUS INFORMATION ON SLE:

Symptoms of Systemic Lupus Erythematosus vary from person to person, and may come and go. Almost everyone with SLE has joint pain and swelling. Some develop arthritis. The joints of the fingers, hands, wrists, and knees are often affected.

Other common symptoms include:

• Chest pain when taking a deep breath
• Fatigue
• Fever with no other cause
• General discomfort, uneasiness, or ill feeling (malaise)
• Hair loss
• Mouth sores
• Sensitivity to sunlight
• Skin rash — a “butterfly” rash in about half people with SLE. The rash is most often seen over the cheeks and bridge of the nose, but can be widespread. It gets worse in sunlight.
• Swollen lymph nodes

Other symptoms depend on which part of the body is affected:

• Brain and nervous system: headaches, numbness, tingling, seizures, vision problems, personality changes
• Digestive tract: abdominal pain, nausea, and vomiting
• Heart: abnormal heart rhythms (arrhythmias)
• Lung: coughing up blood and difficulty breathing
• Skin: patchy skin color, fingers that change color when cold (Raynaud’s phenomenon)
• Kidney: swelling in the legs, weight gain

Some people have only skin symptoms. This is called discoid lupus.

Exams and Tests

To be diagnosed with lupus, you must have 4 out of 11 common signs of the disease.

Your doctor will do a physical exam and listen to your chest. An abnormal sound called a heart friction rub or pleural friction rub may be heard. A nervous system exam will also be done.

Tests used to diagnose SLE may include:

• Antibody tests, including antinuclear antibody (ANA) panel
• CBC
• Chest x-ray
• Kidney biopsy
• Urinalysis

You may also have other tests to learn more about your condition. Some of these are:

• Antithyroglobulin antibody
• Antithyroid microsomal antibody
• Complement components (C3 and C4)
• Coombs’ test – direct
• Cryoglobulins
• ESR
• Kidney function blood tests
• Liver function blood tests
• Rheumatoid factor
• Antiphospholipid antibodies

Treatment

There is no cure for SLE. The goal of treatment is to control symptoms. Severe symptoms that involve the heart, lungs, kidneys, and other organs often need treatment from specialists.

by Cody Allison

My Long Term Disability Insurance Company Thinks I’m “Cured.”

Just because an insurance company tells you something it true, does not make it so, especially something as subjective as when you are well enough for benefits to cease.  Don’t just take their word for it — get some professional assessment.  Here at Cody Allison and Associates, we have experience in reviewing medical records and insurance policies, and we can act as another set of eyes to review the documents in your case to help you decide if you are really not entitled to further benefits.  Call us today — we are ready to help!

Cody Allison & Associates, PLLC recently, successfully, represented a very nice lady who said something that stuck in my mind. When providing a testimonial for our website,www.LTDanswers.com, she stated, “One day, I was receiving my benefits and the next day I was cut off.  It was like the insurance company decided I was cured.”  This happens far too frequently in long-term disability cases.  The insurance company’s decision to discontinue benefits is seemingly arbitrary and without merit.  Clearly, they benefit financially from such a decision.  If this has happened to you, you should be asking yourself, what has changed?  Why am I no longer disabled?  Why is the long term disability insurance company allowed to stop my checks out of the blue?

If this has happened to you, remember, you have legal rights.  These rights include appeals and the possibility of a lawsuit.  Your legal rights are time sensitive.

Most importantly, don’t give up.  That’s what the big insurance companies want you to do.

At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday.  It’s what we do.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation.  You can reach Cody Allison & Associates, PLLC at (615) 234-6000.  We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few).  We will be happy to talk to you no matter where you live.  You can also e-mail our office at cody@codyallison.com.   Put our experience to work for you.  For more information go to www.LTDanswers.com.

by Cody Allison

Has UNUM Denied Your Long Term Disability Claim?

Many people are just not familiar with what to do if your benefit has been denied.  Below is some explanation of what to do if your carrier is UNUM and they deny your benefit.  They have to follow certain procedures to deny this benefit, and you should check and make sure these procedures have been followed.  If you need help, please call us.  We are ready to help!

Formerly know as UnumProvident, UNUM is one on the largest providers of long term disability (LTD) insurance in the United States.  They are based in Chattanooga, TN and trade on the New York Stock Exchange under the ticker symbol UNM.  They are a Fortune 500 Company, have over 9000 employees, and reported revenues topping 10 billion in 2013.

How does the claimant stand a chance against such a large corporation?  Answer: Exercise your rights under the law.

If denied, UNUM, or any ERISA based long term disability plan, is required to notify you in writing through a denial letter.  Further, they MUST give you a reason for the denial.  Some reasons given for denial of your benefits include:  lack of medical documentation, lack of detail about your disability, or failure to meet certain LTD policy definitions.

If denied benefits after your initial application, should you accept the insurance company’s denial as the end of the road?  NO! 

You have rights which include appeals and the possibility of a lawsuit; but be sure to act quickly, your rights are time sensitive.  Most importantly, don’t give up.  That’s what the big insurance companies want you to do.

At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday.  It’s what we do.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation.  You can reach Cody Allison & Associates, PLLC at (615) 234-6000.  We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few).  We will be happy to talk to you no matter where you live.  You can also e-mail our office at cody@codyallison.com.   Put our experience to work for you.  For more information go to www.LTDanswers.com.