Please feel free to contact our office if you require assistance with your Colorado PERA disability retirement claim or have received a denial of benefits from either Standard Insurance Company or Unum for which you most likely need to file an internal appeal with either company. Click here if you would like to read more about the Colorado PERA Disability Retirement Program.

Signed, Shawn McDermott

As counsel for Plaintiff in the class action lawsuit filed by our client, Tracey Lawless, we have filed a motion to certify the case as a class action under Rule 23. The issue is now fully briefed and awaiting the court’s decision. Perhaps more importantly, we have also filed our dispositive motion and extensive legal brief asking Judge Hood to agree with our position that the “second prong” of the short term disability (STD) definition found in the policy must beremoved as it is not supported by and is entirely inconsistent with the PERA statute defining when a PERA member is entitled to STD payments. As of earlier this week, the dispositive motions filed by all parties are also now fully briefed. We simply await the Judge’s determination.

As a reminder to all who may be affected, if you believe your case fits within this proposed class or if you have any other questions regarding your Colorado PERA disability retirement claim or denial, you can always contact the disability insurance lawyers at our office for an initial, free consultation.

The amended complaint in Lawless v. Standard and PERA, pending in the Denver District Court, seeks certification of a class whose members are defined as those PERA members whose claim for short term disability benefits have been denied even though Standard Insurance has determined that such individual is incapable of performing the essential functions of their “own job.” As such, these individuals meet the statutory definition of short term disability found in the PERA law. However, PERA has adopted a Rule and purchased a disability policy from The Standard which does not comply with this law. Instead, it adds a “second prong” or additional requirement that the PERA member also prove the inability to earn 75% of their pre-disability earnings in some other job based upon their education, training and experience. This second prong in the definition is not authorized by statute. We intend to immediately request the court to rule on this legal question so as to hopefully obtain benefits for our current clients and other members of the class. We also hope to obtain class certification in an expedited manner.

Please feel free to contact the Law Office of Shawn E. McDermott if you have a denied PERA disability retirement (short term disability or disability retirement) claim by either Standard Insurance Company or the new PERA disability program administrator, Unum Insurance Company, and if you believe you fit the description of the class of PERA members whose benefits have been wrongfully denied. Our phone number is (303) 964-1800.

We have recently filed four new law suits against Standard Insurance and PERA and anticipate filing at least a few more over the next month or so. The vast majority of these claims were denied under the so called “second prong” of the definition of short term disability found in the policy issued by Standard Insurance to PERA. It is the opinion of this office that this “second prong” of the STD definition in the policy violates the law. For more information about this issue and a prior favorable ruling received by this office, please click here.

If your claim under the PERA disability retirement program has been denied by Standard Insurance (or, if your claim was filed after January 1, 2011, by Unum Insurance), you need to understand your rights and may require an attorney experienced in handling PERA disability claim appeals or litigation. Click here to learn more about the Colorado PERA Disability Retirement program. Please feel free to contact our office at (303) 964-1800 or email me at shawn@mcdermottlaw.net for a free initial consultation.

We recently learned that Unum Insurance Company will be assuming the role as DPA commencing with all claims filed on or after January 1, 2011. Unum Insurance will also be supplanting Standard Insurance Company as the insurer of the short term disability (STD) benefit. As the DPA, however, Unum will also be rendering all claims decisions concerning “disability retirement,” if applicable.

We have not yet had the opportunity review the actual short term disability group insurance policy issued by Unum to PERA. We are certainly interested in reviewing this policy to determine if it suffers from some of the same deficiencies as the policy previously issued by Standard. One such deficiency is the policy’s incorrect approach to defining short term disability. Click here for more information about the PERA disability system. You may also want to review our previous blog concerning this office’s contention that the second prong of the definition, as applied by Standard Insurance, which requires that a PERA member prove an inability to earn 75% of his or her predisability earnings in another occupation, is a requirement not authorized by statute. Click here to review that blog.

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.

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.

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 the purpose of covering all PERA members contained a definition of disability that did not comply with the definition of short term disability benefits established by state law. More specifically, we argued that the “second prong” of the definition which requires a PERA member to prove not only an inability to perform the essential functions of their own job, but to also show an inability to earn 75% of predisability earnings in some other occupation, should not exist in the policy. The second prong of the definition tracks the language found in PERA Rule 7.45(e). We argued that PERA inappropriately adopted that rule as it was inconsistent with the statutory definition. Judge Plaut agreed.

Additionally, the Court ruled that Standard’s handling of the voluntary, third level of review was done incorrectly. The PERA statutes and rules guarantee that a PERA member whose disability benefit claim has been denied is entitled to a final medical determination to be conducted by a “panel of independent experts.” In Ms. Nunez’s case, the final level of review was performed by one physician. Judge Plaut ruled, as a matter of law, that a review by one physician does not constitute a review by a panel of independent experts. Based upon Judge Plaut’s ruling, Standard Insurance informed our office that it intended to re-conduct the third level of review in two other cases we are currently litigating.

The Law Office of Shawn E. McDermott, LLC is actively pursuing these same and other issues on behalf of other PERA members. We represent these individuals following a denial of benefits by Standard Insurance Company. We have experience representing individuals through the internal appeal process with Standard Insurance and in litigation against Standard and PERA, if necessary.

On Friday, May 16, 2008, the Colorado Court of Appeals issued a decision of first impression which addresses Standard Insurance Company’s long pursued argument that it is entitled to governmental immunity in administering claims for disability retirement benefits for the Colorado Public Employees Retirement Association (PERA). Our office has handled many of these claims and faced this argument by Standard on more than one occasion. Until now, the Court of Appeals had not been presented with the legal question of immunity, but, now that it has, it has answered the question correctly. Standard Insurance does not have immunity and may be sued directly.

In the case of Moran v. Standard Insurance Co., No. 06CA2081, the Plaintiff appealed the trial court’s finding that Standard was an “instrumentality” of PERA and thus entitled to immunity under the Colorado Governmental Immunity Act (CGIA). Standard’s argument was based on the fact that the applicable statutes require PERA to contract with a third party administrator to administer the PERA disability retirement program. Standard Insurance is the third party administrator hired by PERA. Under the administrative services agreement entered into between Standard and PERA, Standard determines whether a person is eligible to obtain or continue to receive PERA benefits, while PERA is actually responsible for paying any such benefits. The court ruled that Standard is a private corporation and there is no express indication by the Colorado legislature which expanded the scope of immunity under the CGIA to include a private corporation which it entered into a contract with the public entity known as PERA.

We wait to see if Standard/PERA appeals this decision to the Colorado Supreme Court. If it does, this office would expect the Supreme Court to follow the reasoning of the Court of Appeals and conclude that Standard’s arguments are incorrect. We hope this finally settles the issue which we have to battle in each and every lawsuit we file on behalf of claimants seeking disability benefits from Standard/PERA. At the Law Office of Shawn E. McDermott, LLC we have extensive experience in handling disability insurance claims, whether individual policies, those ERISA or those pursuant to PERA mandated disability benefits. We are here to answer your questions and to make recommendations on your claim.