Other Limiting Conditions means chronic fatigue conditions (such as chronic fatigue syndrome, chronic fatigue immunodeficiency syndrome, post-viral syndrome, limbic encephalopathy, Epstein-bar virus infection, herpes virus type 6 infection, or other myalgic encephalomyelitis), any allergy or sensitivity to chemicals or the environment (such as environmental allergies, sick building syndrome, multiple chemical sensitivity syndrome, or chronic toxic encephalopathy), chronic pain conditions (such as fibromyalgia, reflex sympathetic dystrophy, or myofacial pain), carpal tunnel or repetitive motion syndrome, temporalmandibular joint disorder, crainomandibular joint disorder, arthritis, diseases or disorders of the cervical, thoracic, or lumbosacral back and its surrounding soft tissue, and sprains or strains of joints or muscles.

Are you kidding me!? Why doesn’t the insurance policy just say “we will pay you a monthly benefit for your disability, but you should be aware that we don’t actually cover most disabling disabilities or conditions.”

The employer who purchased this policy on behalf of its employees should have paid better attention to the product it was buying. This particular limiting provision would rule out the payment of benefits beyond 24 months for perhaps 30-40% of the individuals who contact our office suffering from a disabling illness, condition, or disease. This particular employer likely had no idea this type of provision had been included in its policy. Claimants seeking disability benefits under a group policy have a difficult enough time actually receiving those benefits given the protections afforded to employers (not employees as intended) and insurance companies by the Employee Retirement Income Security Act (“ERISA”). Such onerous provisions make it that much more difficult. Frankly, such a policy rises to the level of being illusory – meaning the policy promises a benefit that really isn’t there.

Here, the plaintiffs were understandably perturbed when CIGNA converted their defined benefit plan to a cash balance plan. The summary plan description of the changes provided by CIGNA to its employees was misleading in that it characterized the new plan as being more generous than it actually was. At the district court level, the judge found that CIGNA had withheld accurate information from the employees. CIGNA appealed. The Second Circuit agreed with the district court, and the case ultimately ended up at the Supreme Court. Although CIGNA technically won the battle with Amara (who was the representative plaintiff in the class action), the ultimate impact of the decision should well benefit plan participants. The Supreme Court agreed with CIGNA that the lower courts had incorrectly used an ERISA enforcement provision found at 29 USC Section 1132 (a)(1)(B) to reform CIGNA’s pension plan. Generally speaking, an ERISA claim against a plan or plan insurer under section 1132 (a)(1)(b) allows courts to award claimants the benefits due under the plan.

However, importantly, the Court went on to hold the plan could be reformed under a different subsection of the same statute, subsection (a)(3), which provides ERISA participants with “appropriate equitable relief” to redress violations of an ERISA plan or to enforce the terms of a plan. The Supreme Court ruled that pension plan fiduciaries could in fact be held liable for “make-whole” relief for the harm they cause employees (participants in the plan) in failing to comply with their duties in administering the pension plan. In the end, the Court really seems to have opened the door for the employees to recover what an employer promises would be received in exchange for their employment efforts. Yes, I know this sounds obvious to the casual reader, but the past 20 years of ERISA decisions by our courts had so twisted this arena that many wrongs committed by plan fiduciaries did not result in an actual, fair remedy to the aggrieved employee. Hopefully the tide is turning.

Insurers and their ilk are already attempting to spin this decision in their favor, as CIGNA was in fact successful in having the lower court decision overturned. But the only thing that really happened was that the Supreme Court clarified which section of the ERISA enforcement statute provides the relief sought by the class plaintiff, and clarity was provided as to the scope and substance of remedies available under subsection (a)(3) which could include money damages.

Click here for further information on ERISA welfare benefit claims.

When a claim for life insurance is received, and despite what you may be told, the insurance company performs an investigation primarily intent on figuring out a way not to pay the claim. Life insurance claims can be denied for a number of reasons. The most common bases for denial include suicide, improper use of prescription or illegal medication, inappropriate or illegal conduct or the individual’s misrepresentation of their medical condition. We have also dealt with issues as to the proper beneficiary designation or even allegations where the beneficiary of the life insurance policy is claimed to have caused the death of the insured.

If you have life insurance through your employer, and you are terminated for whatever reason, you may have the right to convert that life insurance policy to an individual policy. The full premium cost will become your responsibility but at least coverage can continue uninterrupted. This can be extremely important to individuals who would otherwise be uninsurable due to a pre-existing condition. There will be time limits that apply. An insured under a life insurance policy should check the language of the policy itself and exercise these conversion rights if desired.

For a no cost review of a life insurance claim denial, please feel to contact the Law Office of Shawn E. McDermott, LLC by completing our online contact form or calling our office at (303) 964-1800. Although our office is located in Denver, Colorado, we can likely assist you regardless of your location within the state of Colorado or any other state.

Most disability policies will pay benefits if the insured is unable to perform the material or substantial duties of their “own occupation.” However, after two years, the typical group policy definition changes such that an insured must then prove an inability to perform “any occupation.” Most waiver of premium provisions found in life insurance policies define disability as the inability to perform “any occupation.”

If you are pursuing a disability claim under a policy of insurance which you have purchased on your own or have by virtue of your employment, you will want to check your life insurance policy to determine if there is such a waiver of premium provision. If so, and you meet the conditions, you will need to submit a separate claim to the life insurance company (which is often the same company as the disability insurance carrier but not always) for the waiver of premium provision to apply. There are usually time limits on such applicaton.

Please feel free to contact our office if you have any questions regarding such claims or if your life or disability insurance claim has been denied.

The inclusion of discretionary clauses generally leads to a denied claim being reviewed by a judge in a deferential manner if the claim is governed by ERISA. When discretion to render a claim exists with the plan administrator or insurance company, the claimant whose claim has been denied must demonstrate that the insurer abused its discretion in rendering the claim determination, or that the insurer acted in an “arbitrary and capricious” manner. Many states have recognized the existence of a conflict of interest that exists when an administrator or insurer who is required to pay the benefit is also the party rendering the benefit determinations. Any logical observer would agree that a conflicted entity’s decision should not be granted deference by the court. At a minimum, the aggrieved claimant should have the opportunity to have his or her claim reviewed by the court without deference being granted by the judge to the party with the conflict of interest. There are now more than 20 states which have enacted laws or passed rules banning these discretionary clauses.

In analyzing an ERISA disability, life or health insurance claim denial, one of the first steps we undertake is to determine whether discretion has been granted to the plan’s administrator, and, if so, what steps can be taken to combat this very unfavorable standard of review which flows from the grant of such discretion. To learn more about the standard of review in ERISA-governed claims, visit our website here.

In the claim against LINA, Mr B was originally rendered disabled by bladder cancer which had gone into remission. However, at the time of the termination of long term disability benefits, he began suffering from severe pulmonary symptoms and was diagnosed with COPD and emphysema. He underwent a series of pulmonary tests, physical therapy and pain management to treat his disabling conditions.

Attorney Shawn E. McDermott and Heather Petitmermet filed an appeal of behalf of our client in October 2010. In our appeal, we were able to illustrate to the insurance company that our client was indeed disabled and unable to perform the material and essential duties of his occupation.

LINA disregarded the appeal and we were eventually required to file suit on behalf of our client. Because LINA’s decision was not timely and therefore its appeal procedures had not adhered to the required deadlines, any deference to which the insurer may have been entitled would likely have been lost and the court would have provided a more favorable standard for reviewing the claim termination. Whether this was the reason, or because LINA actually reached the correct decision upon receiving the appeal submitted by our office, shortly after our filing the lawsuit LINA reversed its position and determined that our client was indeed entitled to benefits. Our client is now receiving his monthly disability benefits from LINA.

In the claim against Hartford Life & Accident Insurance Company Ms. H suffered from the following conditions: diffuse myofascial pain/fibromyalgia, cervical and thoracic spine spondylosis, fatigue, restless leg syndrome, osteoarthritis and degenerative disease of the knee, adult-onset diabetes mellitus, obstructive sleep apnea, pulmonary hypertension, patent foramen ovale, cerebrovascular accident, vitamin D deficiency, chronic pain syndrome, spinal stenosis/arthritis, epiploic appedagitis, hypercholesterolemia, diverticulitis, depression, and anxiety, among others. She underwent physical therapy, operative arthroscopy of both knees, surgical intervention to repair her rotator cuff, transthoracic echocardiogram, colonoscopy, overnight pulse oximetery study, and an extensive medication regime.

Attorneys Shawn E. McDermott and Heather Petitmermet, with significant assistance from their legal staff, including MarySue Kern, filed an appeal of behalf of our client in November 2010. In the ERISA appeal, we were able to illustrate to the insurance company that our client was indeed disabled and unable to perform the material and essential duties of “any occupation.”

In January 2011, Hartford Life & Accident Insurance Company informed us that our client’s adverse benefit determination had been reversed and that disability benefits were indeed payable. Our client received a check for all past due benefits and is currently “on claim” and continuing to receive benefits into the future. As part of our ongoing relationship with the client, our firm continues to handle her disability claim on an ongoing monthly basis.

The disability attorneys at the Law Office of Shawn E. McDermott, LLC have represented hundreds of individuals whose short term and long term disability claims have been denied. Our office has handled claims against every major disability insurance company issuing individual and group disability policies. Please feel free to contact us for a free consultation.

In Robin Cross v. Qwest Disability Plan, Magistrate Judge Kathleen M. Tafoya awarded attorney’s fees in favor of Plaintiff Cross whose disability benefits had been reinstated during the course of litigation. The Court ordered Defendant to pay for all but a small portion of Plaintiff Cross’s attorney time incurred on the claim. The Court determined that $290.00 per hour was a reasonable hourly attorney fee. Other cases in Colorado have granted fees in favor of ERISA claimants up to $400.00 per hour. The attorney for Cross retained the service of Shawn McDermott to offer expert testimony as to the reasonableness of the legal services performed on behalf of Ms. Cross and the reasonableness of the hourly rates being requested.

Potentially obtaining attorney’s fees against a disability plan or insurer is an important aspect of ERISA cases and one of the few valuable provisions (to claimants) found in the statutory scheme. The potential award of attorney’s fees in favor of Plaintiffs in ERISA-governed long term disability cases makes it somewhat easier for individuals to find attorneys willing to take on such a case. If you have a disability, health or life insurance claim which has been denied or terminated, please contact the attorneys at our office for a review. We may be able to help.