Our office has uncovered what we believe to be a significant error in the way the Colorado Public Employee Retirement Association (PERA) administers its disability retirement program. As a Colorado PERA member, you may be entitled to certain disability benefits if you are no longer able to work. The PERA Disability Retirement Program consists of two parts: (1) Short term disability (STD) benefits which are paid pursuant to a policy issued by Standard Insurance Company, and (2) Disability Retirement Benefits if you are permanently disabled. PERA STD benefits are payable for a maximum of 22 months. PERA disability retirement benefits can be payable for your lifetime. Standard Insurance is the designated program administrative which makes all disability determinations, whether STD or disability retirement.
In our opinion, and the opinion of at least one Colorado District Court Judge, the PERA STD benefits are being administered by Standard Insurance in a way that is not consistent with the applicable statutory definition. We have come across many denied claims on behalf of potential and current clients which are in fact payable, yet were denied by Standard.
If you have been denied PERA STD benefits by Standard Insurance, you are encouraged to contact our law office. Our lawyers and legal staff will help you determine if your claim was properly handled by Standard, whether the correct disability determination was reached, and your potential avenues of recourse if not. We can assist with your appeal of the disability denial directly with the insurance company or file and pursue a lawsuit if necessary.
For additional information on the PERA Disability Retirement Program, visit teh PERA section of our legal website. Click here.
A horrific accident occurred in Denver on Saturday, April 3, 2010 in which two people riding in another vehicle were tragically killed when struck by an RTD bus. From a legal standpoint, the relatives of the deceased will never receive fair compensation for their losses, regardless of the conduct of the bus driver. According to witnesses, the RTD bus ran a red light and struck two vehicles. The RTD bus was being driven by an employee for a private contractor, Veolia Transportation. According to the Colorado Court of Appeals in the decision of Henisse v. First Transit Inc., the contractors of RTD service are considered employees of RTD and therefore covered (and protected) by the Colorado Governmental Immunity Act. As an special district or instrumentality of the State of Colorado, RTD is considered a governmental entity. Regardless of the conduct involved, a governmental entity in the State of Colorado cannot be held responsible for damages to injured individuals for more than a maximum of $150,000 per person, or a total of $600,000 per accident. The value of the losses suffered by the surviving relatives of these two individuals clearly exceed the $150,000 limitation, but their chance of recovery of amounts greater than that appear slim at this point in time.
In this attorney’s opinion, private contractors to a governmental entity should not be considered public employees for the purposes of protection under the Governmental Immunity Act. Veolia Transportation is a private company and employed private employees. The drivers of RTD buses, which have the ability to cause far more damage than your average motor vehicle, should face the same exposure as every other driver on the road – such as you and me – who do not enjoy such protections. The Court of Appeals opinion in Henisse v. First Transit Inc. impermissibly expands the Colorado Governmental Immunity Act beyond its intended scope. The case has been appealed to the Supreme Court of the State of Colorado and will hopefully be overturned. We have addressed these issues in representing past clients in automobile accident injury cases. Similarly, we have faced the same argument from Standard Insurance who claims that it is an agent of Colorado PERA for purposes of administrating its disability retirement program. That issue has been successfully resolved in front of the Court of Appeals. Standard Insurance no longer makes that claim to immunity in the PERA disability benefit cases we litigate for clients.
Magistrate Judge Kristen Mix of the U.S. District Court for the District of Colorado recently found in favor of an ERISA long-term disability claimant’s right to conduct discovery. This order can be found in Almedia v. Hartford Life and Accident Insurance Company, No. 09-cv-01556-ZLW-KLM, 2010 WL 743520 (D.Colo. March 2, 2010). In reaching the conclusion that discovery is permitted in ERISA governed LTD case, Judge Mix cited to and partially relied upon a decision in prior case handled by this office, Kohut v. Hartford Life and Accident Insurance Company.
Similar to the issues this office had pursued in the past, the Plaintiff in Almedia sought discovery concerning the scope of the conflict between Hartford Insurance and the third party independent medical reviewers and professionals it utilizes to deny claims. Plaintiff also sought information concerning potential improper incentives paid to Hartford employees who rendered claim decisions, information concerning Hartford’s claims manuals, training and claims guidelines and (more…)
This office handles a great many number of claims on behalf of PERA Members who are seeking disability benefits. The PERA Disability Program is administered by Standard Insurance Company. For a more detailed discussion of PERA issues, please refer to the PERA disability section of our website by clicking here.
This office recently concluded litigation in the case of Leticia Nunez v. Standard Insurance and PERA. Several important rulings on legal issues were obtained from Judge Frank Plaut who was sitting by designation as the district court judge in Kit Carson County. On behalf of Ms. Nunez, we took the position that the short term disability (STD) policy issued by Standard Insurance Company to PERA for (more…)
The 10th Circuit Court of Appeals recently issued a decision addressing two ERISA issues: (1) what constitutes a “governmental plan;” and (2) the right to trial by jury. These issues were addressed in the case of Shirley Graham v. Hartford Life and Accident Insurance Company, 589 F.3d 1345 (10th Cir. 2009), decided December 29, 2009. This was an appeal out of the Northern District of Oklahoma.
At issue was Ms. Graham’s claim for long-term disability (LTD) income protection benefits. She was a former employee of the United States Postal Service (USPS). Unlike most LTD plans, Ms. Graham was insured under a plan established by the National Rural Letter Carriers Association (NRLCA), recognized by the USPS as the exclusive bargaining representative for rural letter carriers. The NRLCA procured the group long term disability policy from Hartford. USPS was not involved in those negotiations, nor did it sponsor the plan. Given these facts, the Court concluded that although Ms. Graham was considered a governmental employee of the USPS, the actual plan and policy at issue was obtained by an employee organization, and not the governmental employer. As a result, the plan was not a “governmental plan” and therefore not exempted from ERISA. (more…)
Earlier this year, the Law Office of Shawn E. McDermott, LLC received a favorable decision from the United States District Court Judge Christine M. Arguello in an ERISA long term disability case involving two important issues. The case handled by this office is titled Mark Kohut v. Hartford Life and Accident Insurance Company and has now been published by WestLaw at __ F.Supp.2d __, 2008 WL 5246163 (D. Colo.). This disability case was subsequently resolved by agreement of the plaintiff and disability insurance company, Hartford Insurance.
As mentioned in an earlier blog, dated June 5, 2008, the Colorado legislature adopted C.R.S. §10-3-1116 which bans the use of “discretionary clauses” within any insurance policy, including group policies, issued in Colorado. We believe this is the first decision issued (more…)
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The President recently signed into law an economic stimulus package titled The American Recovery and Reinvestment Act. This law may impact your health care and other employee benefits. The plan includes provisions to assist certain eligible jobless workers pay for health insurance under COBRA. COBRA applies to employers with 20 or more employees and, specifically allows newly unemployed workers to keep health insurance provided by their former employers. The new American Recovery and Reinvestment Act makes COBRA coverage more accessible to former employees.
For workers who are involuntarily terminated for reasons other than gross misconduct between September 1, 2008 and December 31, 2009, the federal government will subsidize 65% of the premiums under COBRA for nine months. Additionally, for involuntarily employees who did not sign up for COBRA originally have been granted an additional 60 days within which to do so.
There is a high income exclusion however. If your adjusted gross income exceeds $125,000 per year or $250,000 per family, the income tax will be raised by the premium reduction amount which effectively removes the subsidy.
If you have lost your job involuntarily in this economic downturn, it is possible your rights under COBRA have been impacted. You may want to contact your employer to determine if you have the right to enroll in COBRA healthcare coverage or have the right to seek a subsidy under this new Act.
The U.S. Congress and our newly inaugurated President Obama signed into law this morning the Lilly Ledbetter Fair Pay Act. This new law is a clear repudiation of the conservative Supreme Court’s ruling last year in Ledbetter v. Goodyear which many legal scholars agree wiped out years of employment law precedence on equal pay provisions. While my law office emphasizes representing clients with employee benefit claims, as compared to the equal pay, wrongful termination and discrimination suits seen in the broader practice of employee rights, this new law is still worthy of mention.
Ms. Ledbetter is a former employee of Goodyear Tire and Rubber Company in a plant located in Gadsden, Alabama. She worked there for more than 19 years (more…)
The American Association for Justice (formerly the Association of Trial Lawyers of America) recently released a new report on the insurance industry titled “Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse.” The report reviews some of the egregious ways the industry attempts to make large sums of money at the expense of their insureds, the consumer. The report details six methods that directly impact policy holders. It identifies the insurers who are engaging in these practices. Finally, it reviews what each consumer can do to resist these tactics. Review the AAJ report by clicking here.
The Law Office of Shawn E. McDermott LLC recently won a Colorado appellate case on behalf of its clients relating to uninsured/underinsured (UM/UIM) automobile insurance benefits. In this case, our clients, the Meza family members, had pursued a wrongful death claim under six different underinsured motorist policies issued to various family members of the Meza family. The claims were based on the tragic death of the family matriarch, Lucia Meza, who died in an automobile accident in 2000.
This insurance coverage denial case was initiated in 2002 by State Farm Insurance against the Mezas and three other insurance companies including Farmers, American Family and American Standard. Each of these carriers had denied the UIM claims of the Meza family members for a variety of reasons. The claims against State Farm and Farmers were resolved a few years ago. The final piece of the puzzle against American Family and American Standard was placed by the Colorado Court of Appeals with its decision on July 3, 2008 which affirmed the decision of the trial court from two years earlier. These two companies had improperly and in violation of public policy defined the term “relative” in its insurance policies in such a way to violate Colorado law. After six years of litigation, the Court of Appeals finally agreed with the legal arguments put forth by the Mezas and our office.
As the case was not published pursuant to Rule 35(f) of the Colorado appellate rules, it is reproduced below for interested readers: (more…)