Hewlett-Packard (HP) and Sedgwick Lose in the 6th Circuit

A notable ERISA Long Term Disability case decided just a few weeks ago is that of Godmar v. Hewlett-Packard Co., 2015 U.S. App. LEXIS 21467, 2015 FED App. 0801N (6th Cir.)  This decision is notable because it provides some interesting commentaries regarding credibility determinations in long term disability cases and it also comments on the role of doctors hired by plan administrators to conduct paper reviews.

In Godmar, the plan administrator claimed that the plaintiff was not credible because his claims were subjective and could not be corroborated with objective tests.  As we all know, this is  standard language used by many disability insurance companies in their denial letters.  Fortunately, the Sixth District Court of Appeals found that making “credibility findings concerning [the claimant’s] pain without the benefit of a physical exam” would “support the finding that [the administrator’s] determination was arbitrary.”  In other words, the Court of Appeals found that the plan administrator determination could not make a credibility determination regarding the plaintiff's condition without conducting an actual physical exam.  The Court noted that although there is nothing inherently wrong with a paper review of a claim file, it is "particularly troubling" when the plan administrator makes "critical credibility determinations".   

The case is also notable because it "picked apart" the opinions of consulting physicians who offered conclusive statements without any specific discussions of the basis for their opinions.  This is a common practice by doctor's hired by insurance companies and plan administrators.  The 6th Circuit stated:

Sedgwick's decision-making process is difficult to parse. Its final denial letter offered little analysis of Godmar's medical records. Most of the letter is a rote recitation of the records Sedgwick received and the steps taken by its consulting physicians. The letter then provides a  brief summary of the medical documentation—including "chronic nerve pain," "ongoing pain management," and "opioid dependence with substantial limitations"—and offers a conclusory assertion that this evidence is insufficient to support disability benefits.

This case is a great victory for long term disability claimant's and their lawyers because it does not not allow plan administrators and insurance companies to shield themselves with a blanket "abuse of discretion" defense.  Instead, it forces those who deny ERISA long term disability claims to explain the actual basis for their determinations.

Happy Holidays from RamosLaw!

The Holiday season is a perfect time to take a well deserved break and reflect on all the blessing bestowed upon us.  We would like to thank all of our wonderful clients for giving us the opportunity to serve them.  We also would like to thank you for keeping us in mind when a family member or a friend with a long term disability, social security disability or personal injury case needs a lawyer.

We hope that you are enjoying precious memories with your loved ones, particularly the children.  

Be safe this holiday season.  No drinking and driving or, texting while driving.

Merry Christmas
Happy Hanukkah
Happy Kawanzaa
and Happy New Year!

As you relish the good food, decorate your home and sing and dance until the wee hours, may the joy of the season continue to radiate into the new year.  May the holiday season bring more compassion, clarity of mind and a better sense of justice to all of those in charge of adjudicating and administering the disability benefit claims of all of those who suffer from chronic illness or serious injuries.  

Medical Expert Testimony in Social Security Disability Hearings

In certain cases, a medical expert (ME) is asked to testify during a Social Security Disability hearing. This testimony should not be confused with the written medical opinions provided by treating physicians or, confused with the written opinion of doctors hired by the agency to make a paper review of the claim file or conduct a consultative examination of the claimant.  ME's are different in that their testimony is provided during the hearing stage of a case and at the request of an administrative law judge (ALJ).

ME testimony is governed by Hallex I-2-6-70, I-5-34 and I-2-5-39.  ME's are seldomly used by ALJ's in hearing offices in Hartford, Springfield, MA (which includes Worcester) or New Haven. I am aware of an ALJ in Providence who uses ME's on a frequent basis. 

ALJ's may elect to ask an ME to testify under the following circumstances: 

• In order to determine whether a claimant meets or equals a listing
• Determining side effects of medication
• Determining whether a claimant is following prescribed treatment
• Determining a claimant's functional capacity
• Determining the onset of an impairment 

 In the following instances, ALJ's are required to obtain an ME opinion:

• When the Appeals Council or the Federal Court orders it
• To evaluate or interpret a medical test
• In order to consider if a claimant medically equals a listing 

Prior to the hearing, the ALJ must request the ME to examine all the pertinent evidence in the case in which he or she is going to testify.  Moreover, the ALJ must notify the claimant and his or her lawyer of the ME's testimony and provide them with copies of all relevant correspondence.

Section A of Hallex I-2-5-39 requires that the ALJ make a specific opening statement prior to any hearing in which a ME will testify.  The ALJ must explain to the claimant and his or her lawyer why ME testimony is necessary.  The ALJ must also ensure that: the ME has reviewed all the medical evidence, that the ME's professional qualifications are on the record and, must also provide a summary of the the testimony to the ME, if the ME was not able to hear it in person.

During the hearing, claimants or their lawyers can cross examine the ME.  ME's are specifically forbidden from making any physical or mental status examinations during hearings.  Moreover, ME's cannot provide testimony or answer questions on nonmedical matters or make statements outside of their medical and scientific expertise.  

New Claim Procedure Rules Proposed for ERISA Disability Plans

The Employee Benefits Security Administration (EBSA) of the Department of Labor recently proposed new regulations regarding claim procedures for plans providing disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA).  For a copy of the proposed regulations click here.

The amendments are intended to strengthen the current rules and adopt certain safeguards already made part of the Affordable Care Act.  Interested parties may submit comments to the proposed changes in the regulations.

The proposed changes codify many legal standards that are already being implemented by some Federal Courts.  Here is a summary of the proposed changes:

• New procedures must ensure independence and impartiality by those who make decisions regarding long term disability and short term disability claims.  For example, insurance companies handling disability claims cannot provide bonuses to their employees that encourage denials.
• Denial letters must fully discuss the basis for the decision and provide a full discussion of the standards used.  Letters must explain why treating doctor's opinions are not being followed. Moreover, if a claimant has been granted Social Security Disability benefits, the denial letter must also explain why the Social Security decision is not being followed.
• Claimants should be provided with a full claim file and denial letters must contain a provision advising of the right to obtain the file.
• Notice must be given to claimants regarding any new evidence before the claim decision is made.  The claimants must be given an opportunity to respond to the new evidence.
• Final denials at the appeals stage cannot be based on new evidence or new rationales without first giving the claimant a chance to respond.
• Letters from disability insurance companies and plan administrators "must be written in a culturally and linguistically appropriate manner".  If a claimant's address is in an area where 10 percent or more of the population is literate only in the same non-English language  then, denial letters must contain a sentence regarding the availability of translation services.  Such services must include: oral language services, such as a telephone hotline, written notices upon request in a language other than English and, the answering of questions and assistance with filing claims and appeals in any needed non-English language. 

Long Wait Times Prompt Lawsuit in Miami

Disabled claimants are tired of waiting.  In Connecticut and Massachusetts it takes an average of 12 to 14 months to see a judge once a hearing has been requested. 

Its a long time and its not fair to make some of our most vulnerable citizens go through such an ordeal. 

If you think that Connecticut and Massachusetts wait times are bad, take a look at Miami.  In the Sun City, the average wait for a hearing is 22 months!  This situation has prompted the Miami Law School Legal Clinic to file a lawsuit on behalf of 12 indigent and disabled individuals who have been waiting as long as 26 months to get a hearing before an administrative law judge. 

"The delay defeats the Social Security’s purpose of helping to keep people from poverty, and, in the case our clients, has the harshest impact on the poorest population. Miami has one of the highest poverty rates in the country, which makes the extreme delay in Miami that much more unfair,” said JoNel Newman, Director of the Miami Law Health Rights Clinic.

It is not clear what result this legal action will have, however it is clear that it already has had the effect of bringing awareness regarding some of the injustices in the Social Security Disability system. At least two New England newspapers, the Boston Globe and the Portland Press Herald, have covered the news story.  Moreover, since Florida is such an important state in the upcoming Presidential election, the issues raised by the lawsuit hopefully will be brought up during debates concerning Social Security. 

There are other cities in which waits are almost as bad as Miami.  Brooklyn, N.Y., Spokane, Wash., Fort Myers, Fla, and Milwaukee have a 20-month wait time.  Atlanta, Charlotte, N.C., Cincinnati, Baltimore and Chattnooga, Tenn. have a 19 month wait.  

How to Deal With Non-Wage Earnings Received After the Onset Date

The Social Security Administration takes a very close look at any earnings received by a claimant after the alleged onset date.  However, in may instances, receiving money after the onset does not necessarily ruin a person's chances of winning Social Security Disability benefits. Sometimes, the only problem caused by such earnings is that it can slow down the application process and create confusion among adjudicators and judges who are afraid of granting an application to someone that they suspect might have been working above the substantial gainful activity level.

Social Security Disability claimants must bear in mind that the agency has access to practically all of their financial records.  Therefore, never assume that the agency won't have information about earnings. In my experience, it is much better to be upfront about earnings than to try to hide them.  Note that the only income that can affect your chances of winning are earnings received from wages.  Earnings received after a person has stopped working such as, payments for unused sick leave or vacation time, doesn't affect a claimant's chances of winning.  Income from pensions, long term disability payments or dividends, are not detrimental either to an SSDI claim.

Given these circumstances, I always advise my clients to be proactive and provide the SSA with a clear explanation of the nature of any earnings received after the onset date.  (Be aware that the SSA receives statements of earnings with very little information explaining where the money came from.) This can be done by writings a letter to the Social Security field office, by mentioning it on your remarks section of your initial application or, by asking your Social Security Disability lawyer to address it in his or her representative brief.  You can also complete a form called the "Work Activity Report" (Form SSA-821) and submit it to the Field Office.  You can download a Form SSA-821 by clicking here.  In this form, you can attest that you have not engaged in any "work activity" and provide information about the nature of your earnings. 

Sun Life Buys Assurant's Disability Insurance Division

Sun Life Financial, one of the largest disability insurance companies in the Nation, has acquired Assurant Inc.'s long term disability benefits division, as well as other group benefit divisions, for $975 million.  The deal includes the purchase of Disability RMS, a subsidiary that specializes in managing disability claims and consulting services for life and long term disability plans.  According to Sun Life's executives, with the purchase of Assurant, they become the sixth largest group benefit business in the U.S.    

Sun Life, a Canadian Company, has strong ties to New England.  Its U.S. headquarters are located in Wellesley, Massachusetts and it operates offices in Windsor, Connecticut and Portsmouth, New Hampshire.  According to media reports, most of the operations related to Assurant's disability insurance policies will be conducted out of Portland, Maine.  Assurant's main offices used to be located in Kansas City, Missouri.  

It is not clear at this point what changes, if any, will be implemented in the claims process currently used in Assurant long term disability policies.  Nonetheless, our law office is familiar with the process used by both insurance companies to decide claims and is ready to provide aggressive legal representation to policy holders of either insurer.