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Chicago Bad Faith Insurance Law Blog

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.  

What is the Employee Benefits Security Administration?

You have likely heard of the Employee Retirement Income Security Act (ERISA) that establishes minimum standards for pension plans in private industry. But, do you know anything about the agency that manages it? To best understand ERISA, it is important to know the history and structure of the agency that manages it.

Pensions have a complicated history in the United States dating back to the Progressive Era of the early 1900s. Many agencies have been involved in the management and regulation of pensions since then.

What is the difference between Schizophrenia and a Schizoaffective Disorder in Disability Benefit Cases?

That was the question posed in Duncan v. Metropolitan Life Ins. Co., 2016 WL 6651317 (D. Utah November 10, 2016), which held that MetLife's interpretation of its mental impairment limitation as it applies to schizophrenia was inconsistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The case involved Michelle Duncan, who worked for U.S. West and then Verizon for twenty-two years before she developed psychiatric symptoms, including extreme paranoia and auditory and visual hallucinations, which forced her to cease working in 2011.  Duncan subsequent underwent numerous hospitalizations.  Although her claim for disability benefits was approved, Verizon's group disability insurer, MetLife, terminated Duncan's benefits after two years based on its mental impairment limitation.  While schizophrenia was exempted from the limitation, MetLife asserted that Duncan's diagnosis of schizoaffective disorder did not fall within the exception.  The court rejected that finding.

Can Prevailing Defendants in ERISA Cases Recover Attorneys' Fees?

In a ruling recently secured by DeBofsky Sherman & Casciari, P.C., a federal court definitively ruled that prevailing defendants in ERISA cases are rarely entitled to fees. In Geiger v. Aetna Life Ins. Co., 2016 WL 5391206 (N.D. Ill. September 27, 2016) (opinion), where a court upheld Aetna's termination of disability benefits (currently on appeal), the court denied the insurer's application for fees. Although the court acknowledged that under Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010), either party is entitled to fees so long as the fee claimant has achieved "some degree of success on the merits," and also recognized "a 'modest presumption' in favor of awarding fees to the prevailing party, the court nonetheless refused to award fees to Aetna.

Notwithstanding Aetna's achievement of "success on the merits," the court found a fee award inappropriate for a number of reasons. The court explained the overarching test is: "[W]as the losing party's position substantially justified and taken in good faith, or was that party simply out to harass its opponent?" (citations omitted). The court concluded that the plaintiff's litigation position was "substantially justified and taken in good faith." The court explained:

Overcoming the Fibromyalgia Stigma

If you or a loved one has fibromyalgia, you're probably familiar with how often it is misunderstood and misdiagnosed. Unfortunately, this misunderstanding can often lead to inadequate treatment and denial of disability insurance claims.

As medical understanding is improving, widespread discrediting of fibromyalgia symptoms may be waning. Those living with the syndrome in the meantime, however, will want to do what they can to make sure they get needed treatment and workplace accommodations - and, if necessary, disability insurance.

DeBofsky, Sherman & Casciari, PC