Herbert M. Hill On Disability Law | Claims for Disability and Other Employment Benefits

Insurance Company Contact with Health Care Providers

Posted on 08. Nov, 2012 by herb in Blog, Herbert M. Hill On Disability Law

One topic which has weighed on my mind recently is that of Insurance Company contact with my client’s Health Care Providers. Too often this is handled in a fashion designed to discount or even change the clear opinions of your doctors regarding their medical findings and related physical restrictions. Let me identify some of the tactics employed by Insurance Companies to this end.

The first tactic involves a letter sent to your treating doctor asking him to sign off on some statement allegedly made during a telephone conference with either the doctor or one of his staff. This is coupled with a demand for an immediate response. Then, when the artificial deadline is not met, the suggestion is made that the doctor is uncooperative. Usually, that deadline is the result of the insurance company sitting on the claim for so long that it does, in fact, need something immediately but only because it wants to “look busy” in the face of its own inactivity and hopefully place the blame elsewhere for its own failure to act. Of course, your doctor is running a real world medical practice with in office and out of the office appointments and schedules which have been pre-set and must be met. Also, the doctor has a reasonable expectation of being compensated for his or her work, something almost never offered by the insurance companies. Indeed, if the offer to pay was made, the doctor would likely take the time to fully consider the matter, something the insurance company does not want when it is trying to put words in the doctor’s mouth.

I love to call insurance companies “it” because, in fact, that is what they are. Despite the commercials about being on your side, insurance companies are heartless and soulless legal fictions with no purpose other than to make money. You are the one at whose expense the effort is now being made to make that money by saving on the payment of a legitimate claim for benefits which they agreed to pay, at least when the premiums were being paid.

Another tactic is for the insurance company to have its hired gun “medical records reviewers” call up and impose upon an alleged professional courtesy with your treating doctor, insisting that the phone call be taken immediately. The number of times the author has seen these medical records reviewers make comments about treating doctor’s findings totally inapposite to the actual opinions expressed by the treating doctor would be considered astonishing if it were not the actual routine practice employed by these insurance company hired guns.

One of the first steps taken by Herbert M. Hill, P.A. when hired for representation on a disability benefits claim, whether on a private policy or on a group policy governed by ERISA, in which benefits have been denied is to advise the insurance that there is to be no further contact with my client treating doctors without our prior knowledge. All such communications have to be in writing and given to us as well such that we can ensure the doctor is given adequate time to respond and fully consider the opinion he is being asked to render. Every effort is made to tightly control such contact. This is necessary because we are never given the chance to speak with the physicians hired by the insurance company about the predetermined opinions for which they routinely pay.

Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.

Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability insurance policies.

Exhaustion of Administrative Remedies

Posted on 13. Dec, 2011 by herb in Blog, Herbert M. Hill On Disability Law

One quirk of claims governed by ERISA is the requirement that “administrative remedies” be exhausted prior to the filing of a lawsuit to enforce rights to the claimed benefit entitlement. “Quirk” is a polite term because the requirement is, quite frankly, another one of the numerous mechanisms provided in the ERISA statute which slants the provisions thereof unfairly in the favor of the Employers and Insurance Companies. As discussed elsewhere on this website, the Plan Administrator (usually the insurance company) is given discretionary authority in rendering its benefits determination which must be given deference by the reviewing Court of Law.

The exhaustion of administrative remedies requirement basically forces the claimant to engage in the administrative appeal process set up by the Plan Administrator. While there are federal regulations governing the process, the end result is typically untoward delay in addressing the issue of entitlement. The process is supposed to one in which the Plan Administrator is required to consider all of the evidence but typically the process is just one which allows them to gather further evidence in their favor and fill in those places where mistakes were made in past handling of the claim. It is apparent to the undersigned that the merits of the case are not the primary concern but instead there are policy decisions made about certain claims and no amount of supportive evidence will change whatever policy decision has been made regarding a benefit denial.

Case law governing the “exhaustion of remedies” requirement is clear even though there is no express provision in ERISA requiring as much. Exhaustion of remedies is a requirement imposed on the claimant as a matter of case law grafted onto the ERISA statute’s language. In the 11^th Circuit, where most claims of the writer pend, the court has specifically held the administrative remedies must be exhausted prior to the filing of a lawsuit. Perrino v. Southern Bell Tel. & Tel. Co., 209 f.3f 1309 (11^th cir. 2009). However, the rule is not without exception. Generally, if the administrative process can be shown to be futile or inadequate then the requirement will be waived. Curry v. Contract Fabricators, Inc. Profit sharing Plan, 891 F.2d 842 (11^th Cir. 1990). Another basis for waiver of the requirement would exist if there is language in the governing Plans Documents which reasonably leads the claimant to believe he can proceed directly to Court. Watts v Bellsouth Telecomm., Inc., 316 F.3d 1203 (11^th Cir. 2003).

In any event, the administrative appeal process set up by the Plan Administrator must be followed. The governing federal regulations allow a claimant 180 days to appeal the initial denial of claims involving disability benefits. Other time frames may apply for other appeals or types of benefits. See, generally, 29 C.F.R. §2560. The claimant must be careful to comply with these deadlines as the failure to appeal within these deadlines could be the death knell to the claim. One must, under no circumstance allow the deadline to pass without affirmatively placing some form of document in the possession of the Plan Administrator claiming the right to appeal. Sending the document with some proof of delivery is important.

The appeal should include all evidence which supports the claimed entitlement together with a rebuttal of the points made in the letter of denial. Remember that doctor’s records generally address medical issues and the specific issues governing the entitlement to the legal claims made the subject of the benefit entitlement to be enforced. Some specific input from your doctor would be appropriate in claims with medico/legal issues. Please keep in mind that the appeal will likely be your last chance to get evidence before the Plan Administrator and, ultimately, the Judge. It must been done with thoroughness.

Communications with the Insurance Company

Posted on 21. Jul, 2011 by herb in Blog, Herbert M. Hill On Disability Law

It is important that all communications with representatives of the Insurance Company are handled in a very precise manner.

The first subject is written communications. I do not want to suggest the letters you send the insurance company end up in the trash can but I have had numerous complaints from clients that the insurance company has denied receipt of documentation or correspondence which they have sent. All written communications should be sent in a way in which delivery can be verified. This can be by Certified Mail, Return Receipt Requested or by way of courier service. Ensure that you keep a copy of what was sent as well as the document which evidences delivery. Facsimile transmittal can be used as long as there is a cover sheet indicating the number of pages sent . When using facsimile also ensure you keep copy of the “transmission report” which every facsimile machine can generate. This will evidence the telephone number to which the document was sent, as well as the date and time. If your doctor or anyone else on your behalf sends documentation directly to the insurance company, get a copy of what was sent and then send it again yourself.

Regarding written communications from the insurance company, please keep not only the letter or documents received but also keep the envelope and mark on the face of the envelope the date you received it. More often than not, the insurance company’s letters are not mailed on the date found on the face of the letter. The postmark on the envelope evidences the date of mailing. The reason it is important to know the date you received some letters is because some time frames commence from the date of receipt.

Keep a copy of all documents to and from the insurance company in a file in one place, in a chronological order.

The second subject is oral communications. These should be handled with your personal “case diary” before you. Note the date and time of the conversation. Before you engage in the substance of the conversation, ensure that you get the representative’s full name (“Bob” is not enough). If they will not give it, either get their employee number or refuse to talk to them. They know your full name. You must be able to get back in touch with them or at least be able to identify with whom you spoke.. Along these lines, get a return telephone number with a direct extension. Again, if they will not give this, refuse to talk to them. They know how to get in touch with you easily. You should not be forced to work your way through the impenetrable telephone maze which many insurance companies have in place. Only after you are on a level playing field should you talk with them. Again, these things should be done at the beginning of the conversation. During the conversation, keep notes on what was said, letting them know you are doing so. One good way to do this is to get them to repeat something they said “just so I make sure I understand.” Also, make sure your questions (the ones you have noted in your case diary) get answered.

Oral communications are problematic because at the beginning of the claim, the claims representative will try to be your “buddy,” as if they are on your side. This is especially so when benefits have been approved. In fact, when a new claims representative later calls you, please ask why the change. What has probably happened is that a adverse decision has already been made and now you will deal with the “hatchet” man (or woman). They will not remember all the fair weather representations made by your “buddy.”

Take these communications seriously. Insurance companies are not really in the business of paying benefits. That costs them money. They are in the business of collecting premiums and keeping pay outs to a minimum, to the point of a lawsuit, if necessary. Indeed, insurance companies are as much in the litigation business as are attorneys. Their representatives are highly trained to this end, even the “buddies.” Remember that insurance companies already have attorneys on staff who direct the claims handling process. When your case becomes too expensive or looks like there may be a long pay out, efforts will be made by the insurance company to reduce its exposure. Yes, an insurance company is an “it” which has no care whatsoever for you, despite the friendly voice on the telephone line. An insurance company is a legal fiction which by its nature is heartless and soulless whose only reason for existence is to generate a profitable bottom line for its shareholders. If you want to read a chilling comment on the subject, I offer one from Abraham Lincoln from almost 150 years ago which I believe is coming to pass these days before our very eyes:

”I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war. God grant that my suspicions may prove groundless.”

– U.S. President Abraham Lincoln, Nov. 21, 1864 (letter to Col. William F. Elkins)

When talking with a claims representative, always keep in mind with whom you are really dealing!

Social Security Reimbursement Agreement

Posted on 27. May, 2011 by herb in Blog, Herbert M. Hill On Disability Law

Of the many documents which an Insurance Company may submit to you in connection with commencement of either your claim or the later payment of benefits, is one typically entitled “Social Security Reimbursement Agreement,” or words to that effect. Many inquiries have been received about whether this document should be signed. This is one instance in which the answer is a rather simple “yes” but let me explain the reasoning.

As discussed elsewhere on this website, the Insurance Company is typically entitled to an offset of at least part of the benefits you receive from the Social Security Administration. I say “typically” because this is often the case; however, the Plan Documents governing your benefit entitlement should be examined to determine whether the Insurance Company can rightfully claim this offset. The Plan Documents and securing a copy thereof is also a topic addressed elsewhere on this website.

One reason the Insurance Company requests the Social Security Reimbursement Agreement is to ensure that you understand the offset (presuming it exists). Also, it is not unusual for group Long Term Disability benefits to be paid prior to an award and payment of Social Security benefits. The Insurance Company will agree to pay the gross or full amount (before the offset) of group Long Term Disability as long as the Social Security Reimbursement Agreement is signed evidencing an understanding of the entitlement to an offset and, more importantly, the potential obligation to “reimburse” the Insurance Company for any overpayment resulting from a subsequent award of Social Security benefits.

There are couple of points to keep in mind. First, there typically is no offset against Short Term Disability benefits because the Social Security Administration does not pay benefits from the date of disability. Second, the amount of the offset which the Insurance Company can claim is limited to the “Primary Insurance Amount” which, for present purposes, can be described as the amount of Social Security benefits due in the first month of entitlement thereto. The effect of this is that the Insurance Company is not entitled to offset any subsequent “Cost of Living Adjustments” paid by the Social Security Administration.

One point which must be kept in mind is the hiring of an attorney for purposes of pursuing your Social Security claim. If you get to the point of needing to do so, it is suggested that you do not use the attorney recommended by the Insurance Company even though they suggest they will pay the attorney’s fee. It is disingenuous for them to make this suggestion. First, you should have your own local attorney represent you rather than one of the nationwide, impersonal Social Security attorney firms. Second, any fee you incur as a result of representation will ordinarily be deducted from any amount you are required to reimburse the Insurance Company from any overpayment resulting from receipt of Social Security benefits.

Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving disability policies of insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.

Benefit Limitations – “Mental/Nervous” or “Self Reported Conditions”

Posted on 16. Mar, 2011 by herb in Blog, Herbert M. Hill On Disability Law

In the typical claim for Long Term Disability benefits governed by the federal statute commonly referred to as ERISA (Employee Retirement Income Security Act), if benefits are initially approved and you remain disabled, the next important point in your claim will come, typically, after receipt of benefits for 24 months. I say typically because the Plan Documents governing the benefits vary from employer to employer. The following is written based on the standard policies which the law firm of Herbert M. Hill, P.A. reviews. That experience extends to claims arising out of employment throughout the southeastern section of the country. In any event, in all cases, your situation must be tailored to the terms of the governing Plan Documents.

If you have questions about the contents of the “Plan Documents,”please see my writings on that subject found elsewhere on this website.

In any event, after 24 months, two (2) important issues may arise. First, at the 24 month point in time, there typically is a change in the definition of the term “disability” relative the occupation to which it applies Second, there are typically certain medical conditions for which benefits are limited to a 24 month entitlement. I will address the second issue in this writing. The first is addressed elsewhere on this website under a writing entitled Benefit Limitations – “Own Occupation” v. “Any Occupation”

In any event, most Plan Documents (but certainly not all) provide for a limitation on the period benefits are paid, usually 24 months, for disability involving mental or nervous conditions. As to what constitutes a mental or nervous condition, there may or may not be a definition of the meaning of this term. As far as that definition is concerned, the legal maxim of contra preferentum, which stands for the proposition that a vague or ambiguous documents will be construed against the author, would result in a narrow construction and application of any such limitation.

The specific language of the Plan Documents needs to be carefully reviewed because there are two (2) types of clauses currently in use in the industry. The first is a clause which provides for the limitation in benefits is the disability “is caused by” or “due to” a mental or nervous condition. The approach here would be to ensure that any underlying medical or physical problems is properly addressed so as to make it clear that, if it can be done, the mental or nervous condition is secondary to or an adjunct of the truly disabling condition, the underlying physical condition. Of course, the medical evidence may not lend itself to this proposition but the point must be carefully explored and presented to party charged with rendering the benefits determination.

The second type of clause which might be found in Plan Documents is more problematic. This is a clause which provides for the limitation if the mental or nervous condition “causes, or contributes to,” the disability, or words that effect. However, the undersigned would suggest that every disabling physical condition is, at first, a medical problem. Then it becomes an economic problem when it prevents us from working. Working goes at the core of our self identification. It is how we support ourselves and our loved ones. When we are unable to do so because of a medical condition it almost always becomes an emotional issue as well. If so, the insurance company might use this as a way of limiting benefits under this second type of clause. Indeed, just about every employee who is off work because of a physical medical condition might end up falling under this clause. Now, please understand that I am not suggesting that you not seek treatment for mental or nervous conditions in this circumstance. It is just that it will be necessary to carefully present the claim in a manner which makes it clear that the mental or nervous would not be present but for the underlying physical problem or that the employee could work if the mental or nervous condition were the only problem.

Either way, claims involving mental or nervous must be approached very carefully to avoid these tender traps laid by the insurance companies for the unwary.

There are other conditions which might also fall under a similar type of benefits limitation clause. The undersigned has seen Plan Documents limiting benefits in a similar manner for claims involving fibromyalgia, chronic fatigue syndrome and other conditions which insurance companies think involve only self reported symptoms. Again, the contra preferentum legal maxim would apply but the approach on such claims must, nonetheless, be made very carefully.

The law office of Herbert M. Hill, P.A. represents clients throughout the southeastern part of the country. We would be happy to assist if you are having difficulty with any issue arising out of your private short term disability or long term disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.

You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.

Two Years- “Own Occupation” v. “Any Occupation”

Posted on 02. Mar, 2011 by herb in Herbert M. Hill On Disability Law

If you have questions about the contents of the “Plan Documents,”please see my writings on that subject found elsewhere on this website.

In any event, after 24 months, two (2) important issues may arise. First, at the 24 month point in time, there typically is a change in the definition of the term “disability” relative the occupation to which it applies Second, there are typically certain medical conditions for which benefits are limited to a 24 month entitlement. I will address the first issue in this writing. The second is addressed elsewhere on this website.

Definition of Disability. During the first two (2) year period of Long Term Disability benefit entitlement, the definition of disability typically provides that you are disabled if you are unable to perform each of the material duties of your own occupation. (The “own occ” phase of the claim.) Thereafter, the definition typically changes to “any occupation for which you are reasonably qualified by way of education, training and experience.” (The “any occ” phase of the claim.) The insurance company will have one of its “in house” vocational “specialists” perform a review of the medical records and attempt to locate a job you could perform in the “Dictionary of Occupational Titles.” Keep in mind, they do not have to find a job for you, only identify one you could do. In performing this task, it is the experience of the undersigned that the vocational specialist will “cherry pick” the medical records to understate your limitations, overstate your job skills and then locate a job you have never had any experience doing, if it even exists in your locality. Further, they will typically ignore the medications you are required to use to maintain even a modicum of daily functioning. Governing case law requires them to do so but the medications issue is one which is routinely ignored.

There are many other issues arising in connection with particular issue which have been or will be addressed elsewhere on this website. As an example, those issues include how the term “occupation” is defined and what occupations are reasonable based on education, training or experience (i.e., can a person educated and employed as a professional engineer be considered not disabled because she can perform the job requirements of an office receptionist?).

Insurance companies will typically try to define the claimant’s occupation by use of the definition thereof found in a book entitled “Dictionary of Occupational Titles.” Unfortunately, the definitions found in this “dictionary” are rather generic and do not typically accurately identify all of the requirements of the “Own Occupation” which the claimant is performing. The insurance company will take whatever generic job title the claimant has been given and claim that the job duties are the one listed in the “DOT,” as it is called. More often than not, however, the claimant does far more, typically including whatever the employer needs done and the faithful employee does just that. The rub is this issue is not presented until after the employee becomes disabled. Also, after the first two (2) years of disability, the insurance company will use the DOT to identify jobs which the claimant can do as an “any occupation” which would then be relied upon to deny future benefits.

There are different tacks which can be taken to defeat the defenses by the insurance companies. The insurance companies’ own Claims Manual can be helpful. Sometimes it is necessary to fight fire with fire by securing the services of a vocational rehabilitation specialist to demonstrate the faulty reasoning relied upon by the insurance company to deny benefits. However, when these issues arise, it is time, if you have not already done so, the employ the services of an attorney to guide you through the potential pitfalls associated with these issues.

You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.

Plan Documents

Posted on 23. Feb, 2011 by herb in Herbert M. Hill On Disability Law

Let me take this opportunity to note that if you do not have a copy of the Plan Documents, you are entitled to receive a copy, free of charge, from the “Plan Administrator” which is usually the Employer, or some committee or division thereof. You need only send a letter, preferably by “Certified Mail, Return Receipt Requested,” and they have 30 days within which to respond. If they do not respond, there are penalties which may apply. I would suggest you not rely on oral requests. I would also suggest that this should be done at the commencement of your claim so you can see the direction your claim might be headed. At Herbert M. Hill, P.A., one of the first letters which goes out is the request to the Plan Administrator for those documents. Those documents include not only the “Plan Documents” but also any “Summary Plan Description.” The import of this is that there have been cases in which these documents differed from the ones being used by the Insurance Company to render its benefits determination. If there is a difference, there is very specific case law which determines which documents governs the claim.

At Herbert M. Hill, P.A., we represent clients throughout the southeastern section of the country. We would be happy to assist if you are having difficulty with securing Plan documents or with any other issue arising out of your private disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.

You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You can also Email Herbert Hill at hmh@herbertmhill.com.

The Starting Point

Posted on 26. Jan, 2011 by herb in Herbert M. Hill On Disability Law

The Employee Retirement Income Security Act (“ERISA”), found at 29 U.S.C. §1001, et seq., was originally passed by Congress in 1974. Despite its name, it is, at best, only cold comfort for the employee who has a claim for any employer-provided benefits governed by the statute. By its terms, the right to a jury trial is eliminated and, as a result of judicial interpretations of its terms, the situation only gets worse. This is not intended as an adverse commentary on the judiciary. The judiciary is only doing its job in interpreting a statute which is slanted heavily (and unreasonably) in favor of the employers and insurance companies who render the initial benefits determination with which an aggrieved employee may disagree.

The starting point in any discussion concerning the case law interpreting ERISA is the Supreme Court case of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948 (1989). This is the case most often cited for the proposition concerning the manner in which claims for ERISA benefits are reviewed by Courts. The starting point is that the Court’s review is “de novo” unless the Plan Documents governing the benefit entitlement provide an express grant of discretionary authority. If that grant of authority is provided the party charged with rendering the benefits determination, then concepts of Trust law will be applied to give “deference” to the benefits determination made. In the Firestone case, the employer could not rely upon application of trust law to the ERISA actions because its plan had no discretionary language. From this point, case law has blossomed over varying issues concerning what language grants discretionary authority, the procedure to be followed by the Court in rendering its decision and the impact of the conflict of interest inherent in the situation in which the party charged with rendering the benefits determination is also the purse holder, i.e., it is paying benefits out of its own money. On the subject of the conflict of interest, it is rather unusual (I will refrain from saying “silly” or “absurd”) to think about the proposition of putting an insurance company in the posture of a trustee in connection with benefit determination which it will have to pay. Apparently, Congress did not think so but I will have more on that subject later.

In handling claims involving group short and long disability benefits , pension, 401k, medical claims and other claims arising out of employer- provided benefits, the law firm of Herbert M. Hill, P.A. routinely handles cases involving all of the various legal and factual issues associated with such claims. Throughout the southeastern part of the country, representation is afforded the employee who has been unable to secure those benefits to which he or she is rightfully entitled. All inquiries are handled by way of a free initial consultation.

Legal Disclaimer

Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the area of law addressed. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of the area of law addressed, you should contact an attorney who handles that area of law. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.

Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment claims of all sorts, including discrimination and wrongful termination. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as "ERISA") for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.

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