200 W. Madison St. | Suite 2670 | Chicago, IL 60606 | Resource Links | Directions

Call Now 312-702-1842
800-237-5182 Toll Free
We Return Calls The Same Day.

Chicago Bad Faith Insurance Law Blog

Fibromyalgia recognized as a disabling impairment

Attorneys Mark DeBofsky and Bridget O'Ryan secured a victory in the U.S. Court of Appeals on May 18, 2017 in a disability benefit case involving fibromyalgia - Kennedy v. Lilly Extended Disability Plan, 2017 WL 2178091 (7th Cir. May 18, 2017)(available at Final Opinion). The court began its ruling by announcing that this case is about fibromyalgia, and then proceeds to explain the nature of the condition, its chronicity, and the severity of the pain it causes. Cathleen Kennedy was a senior human resources executive at Eli Lilly & Company, one of the world's leading pharmaceutical companies, before she became disabled due to fibromyalgia. Lilly is very familiar with fibromyalgia since it markets Cymbalta to treat the disease.  Lilly has also retained Dr. Daniel Clauw, a professor of rheumatology at the University of Michigan, as a consultant on fibromyalgia.  Dr. Clauw has publicly stated that many persons who suffer from fibromyalgia "end up needing to stop working because of this condition" and has also remarked that fibromyalgia "is not only very common but is typically also very disabling." 

Despite Lilly's initial approval of Kennedy's claim for disability benefits, which she submitted when she stopped working in 2008 after a 26-year career of steady advancement at the company, benefits were terminated after several years following a determination that she was no longer unable "to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience." The district court overturned that finding; and the court of appeals affirmed the lower court.

Surveillance, social media investigations, and tactics insurance companies use to deny disability insurance claims

Insurance companies often hire private investigators to find ways to deny or discontinue payment of disability insurance benefits. The tactics that big business uses to develop evidence seems to expand as technology changes. For years, insurance companies have sent investigators to conduct undercover surveillance stake outs, hoping to secure video evidence that a claimant is not really disabled, or is less injured than he or she claims. However, in a court ruling obtained several years ago by our firm, Skibbe v. Metro. Life Ins. Co., No. 05 C 3658, 2007 WL 2874035, at *11 n. 3 (N.D. Ill. Sept. 24, 2007), the court pointed out: 

The Fifth Circuit Opens the Door to De Novo Review

A recent decision issued by the U.S. Court of Appeals for the Fifth Circuit illuminates the importance of the standard of judicial review applied to resolution of cases seeking benefits under ERISA.  In Ariana M v. Humana Health Plan of Texas, Inc., 2017 WL 1423765 (5th Cir. April 21, 2017), although the court of appeals upheld the benefit plan's denial of coverage for a continued partial hospitalization for mental health treatment, the court issued a concurring opinion that suggested the Fifth Circuit should grant an en banc rehearing to determine the proper standard of judicial review, which, if granted, could very well change the outcome of this case.

Discovery in ERISA cases

DeBofsky, Sherman & Casciari, PC recently received a ruling from Judge Robert Dow, Jr. of the U.S. District Court for the Northern District of Illinois in Harding v. Hartford Life and Accident Insurance Company, 2017 WL 1316264 (N.D. Ill. April 10, 2017), which thoughtfully analyzed the scope of  available discovery in an ERISA action adjudicated under the de novo standard of judicial review.  The case involved a bank employee who became disabled 2011 due to multiple musculoskeletal and autoimmune conditions.  Although Harding's ensuing claims for  long-term disability benefits and a life insurance premium waiver on account of disability under her employer's group disability insurance plan was approved for a period of time, Hartford terminated both benefits in 2014 and upheld its decision after a pre-suit appeal was submitted.  Plaintiff then brought suit against Hartford.

More adults under the age of 55 are experiencing disabling strokes

New research indicates that the rate of people experiencing a stroke prior to the age of 55 has increased in recent years. The average age of people experiencing a first-time stroke has dropped by nearly 2.5 years between 2000 and 2012. The study indicates that while the overall stroke rate in the U.S. has decreased, more younger people are suffering strokes.

Strokes are a leading cause of long-term disability in the United States according to the Centers for Disease Control and Prevention. What is troubling is that when younger people suffer a stroke, the impact on public health may be more profound, according to the study. When a younger person suffers a stroke, the researchers say that the victim may be disabled for a longer period of time and thus require greater medical and financial support.

Can a disability insurer rely on a treating doctor's outlier opinion?

The recent ruling in Broderick v. Hartford Life and Acc. Ins. Co., 2017 WL 652451 (D. Minn. February 16, 2017) presents an interesting challenge - if a doctor gives an opinion that his patient can work which contradicts the doctor's treatment notes and other contemporaneous statements, would that be a sufficient basis to deny benefits?  The court answered that question by making it clear that a disability insurance company needs to look at all of the evidence and cannot reasonably rely on an outlier opinion.

Life Insurance Incontestability - What is it and how do you deal with it?

After the death of a spouse or loved one who is providing you financial support, one of the first questions that arises is whether the decedent had life insurance. But even if there is a policy in effect, the insurance company may be telling you that payment is being delayed or possibly even denied because your loved one died within the period of contestability.

Another problem occurs if the policy inadvertently lapses, but is reinstated on condition of the insured completing a new application -- that triggers a new contestability period.

The Problem with File Reviews in Disability Benefit Cases

The practice by insurance companies of hiring doctors to review disability benefit claim files has been coming under increasing fire.  Doctors are hired to assess  a claimant's disability based on a review of records rather than examining the claimant or even speaking with the claimant or the treating doctors.  A recent ruling from Tennessee, Carty v. Metro. Life Ins. Co., 2016 WL 7325334 (M.D. Tenn. December 15, 2016), joins a long list of cases that question the validity of file reviews, particularly in psychiatric cases or in cases requiring an assessment of symptom complaints such as pain or fatigue.  The Carty case involved a claim for disability based on bipolar disorder, depression and anxiety.  Another recent case questioning file reviews, Montero v. Bank of America Long-Term Disability Plan, 2016 WL 7444957 (W.D.N.C. December 27, 2016) , addressed file reviews in a case involving fibromyalgia, a condition in which symptoms of pain and fatigue can cause disability despite the absence of any neurologic or musculoskeletal findings.

"Claims Procedure for Plans Providing Disability Benefits," 81 FR 92316 (December 19, 2016)

The Employee Benefits Security Administration of the U.S. Department of Labor has issued final regulations published in the Federal Register on December 19, 2016 (81 Fed. Reg. 92316) relating to disability benefit claims governed by ERISA.  Proposed regulations were initially published for comment on November 18, 2015 at 80 Fed.Reg. 72014; and after considering over 100 comments, the proposed regulations were modified into a final form in order to "promote fairness and accuracy in the claims review process and protect participants and beneficiaries in ERISA-covered disability plans by ensuring they receive benefits that otherwise might have been denied by plan administrators in the absence of the fuller protections provided by this final regulation. The final rule also will help alleviate the financial and emotional hardship suffered by many individuals when they are unable to work after becoming disabled and their claims are denied."

Medical complications and accidental death insurance

DeBofsky, Sherman & Casciari, PC recently won an important accidental death insurance case in the U.S. Court of Appeals - Prather v. Sun Life and Health Insurance Company, 2016 WL 7232144 (7th Cir. December 13, 2016) - http://www.debofsky.com/Cases/Prather-v-Sun-Life.pdf.   The case was brought on behalf of Lee Ann Prather, the widow of Jeremy Prather, who died at age 31 of a pulmonary embolism due to a deep vein thrombosis after undergoing surgery to repair his Achilles tendon which he ruptured while playing basketball.   Mrs. Prather brought a claim for accidental death insurance under a group policy issued to Jeremy's employer for the benefit of its employees.  However, the claim was denied based on coverage that was limited to "bodily injuries ... that result directly from an accident and independently of all other causes." (emphasis added).  The insurer maintained that Jeremy Prather's death was due to "complications from surgical treatment" and the district court upheld that finding.  The court of appeals reversed and awarded benefits to Lee Ann Prather.  

DeBofsky, Sherman & Casciari, PC