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August 2014 Archives

Considering Impairments in Combination

Disability is not always based on a single medical condition. Many individuals suffer from multiple impairments; and while no single condition may be disabling, the combined co-morbidity of disparate impairments justify an entitlement to disability benefits. That was the lesson taught by Curtis v. Hartford Life & Acc.Ins.Co. 2014 WL 4185233 (N.D.Ill. August 20, 2014) (attached) which involved Cindy Curtis, a former operating room nurse at Lurie Children's Memorial Hospital in Chicago, who became disabled in 2007 due to injuries to her back, knees and shoulders, resulting in arthritis, fibromyalgia and myofascial pain throughout her body. Although Curtis received two years of benefit payments after Hartford determined that she could not perform the material duties of her regular occupation, benefits were discontinued thereafter because the standard for continued payment required her to show an inability to perform the duties of any occupation she was capable of performing based on her education, training and experience and which paid a salary commensurate with her pre-disability earnings. The court overturned Hartford's determination.

Is a court remand sufficient for a fee award?

In ERISA litigation, the availability of an attorney fee award pursuant to 29 U.S.C. Sec. 1132(g) gives an incentive to attorneys to take on such difficult cases.  But what happens if a court fails to decide the matter, but instead, remands the case to reconsider the issues presented. In Gross v. Sun Life Assur.Co. of Canada, 2014 WL 3954030, 2014 U.S.App.LEXIS 15617 (1st Cir. August 14, 2014), the court firmly held that fees are due for remands even if no benefits are recovered.

Is taking prophylactic measures a pre-existing condition?

Can taking vitamins recommended by a physician trigger a pre-existing condition exclusion in a disability insurance policy?  That was the holding in Kutten v. Sun Life Assur.Co. of Canada, 2014 WL 3562784 (8th Cir. July 21, 2014) where the court found that taking Vitamin A constituted "medical treatment" sufficient to allow an insurer to avoid paying disability benefits to an executive who became disabled due to retinitis pigmentosa.  The policy contained the following exclusion:

Working while disabled

Can you be working and disabled at the same time? That was the question answered in Mirocha v. Metro.Life Ins.Co., 2014 U.S.Dist.LEXIS 98025 (N.D.Ill. July 18, 2014), which found that even though the plaintiff, Joseph Mirocha, had been discharged from his position as an electrical supervisor at Palos Community Hospital in the Chicago suburbs, he was disabled even though he worked up until the date of discharge.  The court flatly rejected MetLife's main argument that Mirocha did not suffer a loss of income prior to his disability date; and found: "MetLife's contention in its summary judgment papers that Mirocha does not qualify because he earned 100% of his Predisability Earnings for one week after the date he claims disability borders on the frivolous."

DeBofsky, Sherman & Casciari, PC