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Chicago Bad Faith Insurance Law Blog

Disability claims and complex regional pain syndrome

Complex regional pain syndrome (CRPS), formerly known as reflex sympathetic dystrophy (RSD) is a chronic pain syndrome that can occur after an injury, and its persistence is often significantly worse than the original injury. It is a difficult condition to diagnose and common for disability insurance companies to refute or deny as a compensable disability claim. The Social Security Administration, however, has published a guidance memorandum that describes the condition and offers instructive guidance to Social Security personnel, including administrative law judges, as to how disability claims involving CRPS should be assessed.

If an insurance company has denied your disability claim related to CRPS, you should not give up pursuing your claim. This disease can significantly affect your life for years to come, and you will need compensation to replace lost wages and medical bills. The insurance company should not treat your claim any differently than another claimant, and an attorney experienced in and knowledgeable about CRPS claims can assist you.

The problem with pain

According to the National Institutes of Health, approximately one in 10 Americans experience severe pain every day. This pain could be the result of any number of conditions. Because pain is a subjective experience, not every condition that causes pain is known -- but what is known is that pain can drastically affect your quality of life and ability to work.

Chronic pain can affect your ability to both sit for long periods of time and remain standing, interfering with your capacity to remain comfortable at home and on the job. As a result, individuals who suffer from chronic pain may need to apply for disability insurance benefits if the level of pain reaches a level of severity to precludes the continuation of work on a consistent and reliable basis.  For those who have reached that point, it is important to understand the process of applying for disability insurance and the common issues that arise in applying for these benefits.

Review your employee benefits every three years

We have all seen the letters in the mail. Your employer is updating their benefits policies, and by law, you are required to receive notification summarizing the changes. These notices contain a lot of legal jargon and fine print, and you probably threw them away without much more than a cursory glance. Although these updates are often difficult to understand, they can go far in explaining how your benefits are changing, and small changes can add up. How can you stay on top of these changes to ensure your benefits are optimized for the future?

Failing to account for changes in your employer benefits could mean that you lose out on the full value of your plan, putting you in a potentially tough position when you need your benefits the most. You can conduct this check whether you are currently employed, formerly employed or now a retiree anticipating payout.

401(k) litigation is rising. What could change?

According to USA Today, the stock market gained 20 percent last year, making 2017 one of the best years for stocks since Y2K. A natural result of these gains was a rise in the value of 401(k) or 403(b) investments for consumers around the country. While the money in 401(k) and 403(b) accounts grew, so did the litigation surrounding the fiduciary duties of their providers to limit excessive fees charged to plan participants. What could change as the result of the litigation and how does it affect you as the beneficiary of a 401(k) or 403(b) account?

The potential for changes due to 401(k) litigation is important to everyone saving for retirement because new rulings can affect the way your company’s plan is managed. Under the Employee Retirement Income Security Act of 1974, also known as ERISA, companies receive guidance on how to operate retirement accounts. The law establishes that employers and benefits managers are subject to fiduciary duties that require them to manage retirement plans with the best interests of their beneficiaries in mind.

Obtaining LTD benefits for Multiple Sclerosis can be complex

Multiple Sclerosis is a serious neurological disorder that is often disabling.  The Multiple Sclerosis Foundation estimates that more than 400,000 people in the United States suffer some level of symptoms from the condition. Not all cases lead to disability. However, the condition can progress to the point that continuing to work is no longer an option for some people. Unfortunately, a diagnosis alone does not automatically lead to a long term disability benefit approval and insurers may resist paying benefits if they deem the evidence of functional impairment inadequate. 

The disease does not follow a linear direction, and progression of the condition can vary widely. Symptoms are often episodic, with exacerbations and relapses. Because symptoms wax and wane, this often presents a potential pitfall for individuals seeking LTD benefits.

Is Death Resulting from Autoerotic Asphyxiation "Accidental"?

Anecdotally, the most litigated accidental death insurance claims involve drunk driving. The next most prevalent type of litigated accidental death claim are cases involving autoerotic asphyxiation. The recent ruling in Tran v. Minnesota Life Ins. Co., 2018 WL 1156326 (N.D. Ill. March 5, 2018) was one such case.

The plaintiff was the widow of an individual who hung himself while engaging in an act of autoerotic asphyxiation. Although the police were called to the decedent's home "for suicide by hanging," the medical examiner determined the cause of death was "[a]sphyxia due to hanging, autoerotic in nature" and further deemed the manner of death was an "accident." The defendant's consulting physician also concluded that the decedent's death was due to autoerotic asphyxiation; however, the claim for accidental death insurance was denied on the ground that it fell within an exception in the policy for "suicide or attempted suicide or other self-inflicted injures." The insurer deemed the death the result of a self-inflicted injury and therefore excluded. The denial was upheld following the plaintiff's appeal. The court reversed

The 5th Circuit finally gets de novo review right (somewhat)

In Ariana M v. Humana Health Plan of Texas, Inc., 2018 WL 1096980 (5th Cir. March 1, 2018), a divided Fifth Circuit issued an en banc ruling that fiinally overturned Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991) and concurred with every other Circuit that Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) applies the default de novo standard of judicial review to both legal and factual determinations, thus paving the way for the Texas ban on discretionary clauses (TEX. INS. CODE § 1701.062(a), along with similar bans by 25 other states - Nat'l Ass'n of Ins. Comm'rs, Prohibition on the Use of Discretionary Clauses Model Act ST-42-3-6 (2014), http://www.naic.org/store/free/MDL-42.pdf.) to trigger de novo review of benefit denials of health and disability benefit claims.

The Importance of Medical Records in LTD Insurance Claims

When a person is unable to work due to a disabling injury or medical condition, obtaining benefits under an individual disability income insurance (IDI) policy or a group long-term disability (LTD) insurance policy is of a major concern for financial stability. The claims process is often foreign for disabled claimants. Filling out the forms and continuing to receive medical tests and treatment often seem like the only steps a person needs to take to obtain LTD benefits for a valid claim.

The insurance companies, however, are not necessarily going to accept the opinions of the claimant’s treating doctors at face value.  Medical doctors employed by the insurance companies who have never treated, or even spoken to the claimant or the treating doctors review not only the claim forms, but also the entire medical file. Your doctor’s notes compiled during the course of treatment are part of the medical evidence being considered. For that reason, it is critical to work with your doctor to help insure that the medical file is complete and documents all relevant symptoms and clinical findings.

Beware of social media when applying for disability insurance benefits

A recent article published by Bloomberg Law offers a stark warning to disability insurance claimants who use social media.  The article by Jacklyn Wille entitled "Facebook Has a New Friend: Disability Insurers" (https://www.bna.com/facebook-new-friend-n73014475033/) discusses insurers' use of social media to investigate disability insurance claimants.  And it is becoming more common that social media posts are cited as the basis for denying disability insurance payments. 

As social media usage has grown, disability insurers have increased their reliance on claimants' postings to furnish grounds for challenging disability claims.  Facebook or Instagram postings of photographs of vacations can be fodder for suspicious insurers.  Linked In posts may also create a false impression that someone is continuing to work while claiming to be disabled.

The Importance of ERISA Claim Appeals in Disability Benefit Claims

Qualifying for disability benefits often requires claimants to face many hurdles. An initial claim denial is not the end of the road, though. If you have group coverage, it is likely governed by ERISA, the Employee Retirement Income Security Act. One of the benefits of ERISA is that if a claim is denied, the claimant is statutorily entitled to a full and fair review of the denial. Taking advantage of that right and appealing the benefit denial is not only of critical importance in ultimately achieving success; it is a necessary precursor to filing a lawsuit to challenge the denial of benefits. And if done right, the claim will often be approved without the need for litigation. But even if the appeal is not immediately successful, it will set the stage for a successful benefit recovery in court. 

Be aware of timeframes

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