Ms. C. was a former employee of Martin Marietta (now Lockheed Martin) and was a participant in Lockheed Martin Long Term Disability Plan (LTD Plan and the Lockheed Martin Group Universal Life Plan (Life Plan). Ms. C. has been disabled since 1993 and has continuously received LTD benefits since that time. As is true with most group life insurance plans and policies, Ms. C. enjoyed the benefit of a “waiver of premium” (LWOP) provision which provides for continued life insurance coverage if the participant is disabled. Connecticut General, as the insurer of the Lockheed Martin Life Insurance Plan, found Ms. C. to be disabled as that term is defined under the waiver of premium provision and continued her life insurance coverage until that coverage was unceremoniously terminated on June 9, 2009. Ironically, the LTD benefits provided by Life Insurance Company of North America (LINA), also a subsidiary company of CIGNA, continued to be paid in an uninterrupted fashion.

With the assistance of the disability and life insurance attorneys at the Law Office of Shawn E. McDermott, LLC, Ms. C. filed suit on March 30, 2010. Because the issue seemed so clear-cut that the denial of coverage under the waiver of premium provision was wrongful, it was decided not to pursue any discovery and to proceed as quickly as possible to judgment. The disability attorneys for Ms. C. provided CIGNA with the opportunity to simply reinstate coverage under the life insurance plan and, if so, the lawsuit would be dismissed. In our opinion, this would have been a reasonable approach to the dispute since, after all, life insurance benefits would only be payable under the life policy if in fact Ms. C. were to die prior to the age of 65, which is of course not likely. In other words, the reinstatement of coverage by CIGNA would not actually cost the insurance company anything. No benefits would become payable under the life policy unless and until death occurred.

Surprisingly, the insurance company refused this very reasonable offer, requiring plaintiff to move forward with litigation, and the matter was fully briefed and submitted for the judge’s determination. (Remember, there are typically no trials in ERISA benefits dispute litigation). Due to the case being transferred between judges on two occasions, the decision by the court was significantly delayed. After waiting nearly 17 months for a ruling, the newest judge assigned to the case issued a decision on April 26, 2012 concluding that the “evidence considered as a whole does not support the conclusion that Ms. C. is capable of successfully performing gainful employment within the meaning of a reasonable and appropriate interpretation of the disability clause in the life plan.” Thus, Connecticut General’s decision to deny the LWOP benefit was reversed, and the insurance company was directed to reinstate the life insurance policy without the payment of premiums for so long as Ms. C. remains totally disabled. We are also very satisfied to report that our client was also awarded her reasonable attorneys’ fees and costs.

This case has been reported at Croll v. Connecticut General, 2012 WL 1439172 (D. Colo. 2012).

The ERISA disability attorneys at the Law Office of Shawn E. McDermott, LLC have represented hundreds of individuals whose short term disability and long term disability claims have been denied. We have also handled ERISA life insurance denials, appeals and litigation matters on behalf of many clients. Throughout the years, we have had many former Lockheed Martin employee-clients whose benefits were denied or terminated by Life Insurance Company of North America (for LTD claims) and Connecticut General (for life insurance claims), both of whom are considered part of the CIGNA Group of companies. Our office has handled claims against every major disability insurance company issuing individual and group disability and life insurance policies. Please feel free to contact us for what is typically a free initial consultation if your claim has been denied.

This claim is one of many this office has handled that has arisen during the transition from Standard Insurance Company to Unum Life Insurance Company of America. Let me provide a quick background. By statute, PERA is required to contract with a disability program administrator (DPA) to evaluate PERA Members’ medical entitlement to PERA disability benefits. PERA had previously contracted with Standard for this purpose. However, that relationship ended as of January 1, 2011, at which time Unum became the designated DPA. When applying for PERA disability benefits, PERA Members are not permitted to opt between disability retirement or STD. Instead, the claim is supposed to be reviewed by the DPA, who evaluates an applicant’s entitlement to either benefit. However, the system has been complicated over the past year due to this change in DPAs. Standard has retained the authority to decide the STD portion of claims that were submitted before January 1, 2011. Then, Members have been required to submit a separate claim to Unum for PERA disability retirement. It is our opinion that this improperly burdens claimants, and has certainly caused much complication and duplicative work during the appeals process.

Returning to our recent case, our client was told in her termination letter that she had the right to pursue disability retirement benefits with Unum, if she thought she was entitled to them. We assisted her with filing that claim and concurrently appealing the PERA STD denial. Ultimately, upon reviewing her claim for the first time, Unum disagreed with Standard’s previous conclusion, determined our client was totally and permanently disabled, and reinstated her benefits.

Navigating the PERA disability process can be quite complicated, particularly during this transition period from Standard to Unum. If you have any questions regarding denial of your PERA disability claim or need assistance with appealing your PERA disability denial, contact us. The disability lawyers at the Law Office of Shawn E. McDermott have many years of experience in handling PERA STD and disability retirement claims, as administered by Standard and Unum.

*”PERA” stands for the Colorado Public Employees Retirement Association.

This is not the first case we have handled on behalf of an individual suffering with chemobrain. For example, we were previousley successful in convincing another insurer, MetLife, to approve a client’s claim based on this chemotherapy-related cognitive impairment. In both cases, a thorough neuropsychological evaluation was helpful in establishing the individual’s decreased cognitive abilities.

Cognitive impairment, whether related to chemobrain, traumatic brain injury, or another condition can certainly be disabling, even if physical function is not affected. The disability lawyers at our office have handled numerous cases for clients suffering with decreased cognition. If you need assistance with a long-term disability claim arising from a change in your mental abilities, please contact the Law Office of Shawn E. McDermott at (303) 964-1800.

With the assistance of the disability and life insurance attorneys at the Law Office of Shawn E. McDermott, LLC, Ms. C. filed suit on March 30, 2010. Because the issue seemed so clear-cut that the denial of coverage under the waiver of premium provision was wrongful, it was decided not to pursue any discovery and to proceed as quickly as possible to judgment. The disability attorneys for Ms. C. provided CIGNA with the opportunity to simply reinstate coverage under the life insurance plan and, if so, the lawsuit would be dismissed. In our opinion, this would have been a reasonable approach to the dispute since, after all, life insurance benefits would only be payable under the life policy if in fact Ms. C. were to die prior to the age of 65, which is of course not likely. In other words, the reinstatement of coverage by CIGNA would not actually cost the insurance company anything. No benefits would become payable under the life policy unless and until death occurred.
Surprisingly, the insurance company refused this very reasonable offer, requiring plaintiff to move forward with litigation, and the matter was fully briefed and submitted for the judge’s determination. (Remember, there are typically no trials in ERISA benefits dispute litigation). Due to the case being transferred between judges on two occasions, the decision by the court was significantly delayed. After waiting nearly 17 months for a ruling, the newest judge assigned to the case issued a decision on April 26, 2012 concluding that the “evidence considered as a whole does not support the conclusion that Ms. C. is capable of successfully performing gainful employment within the meaning of a reasonable and appropriate interpretation of the disability clause in the life plan.” Thus, Connecticut General’s decision to deny the LWOP benefit was reversed, and the insurance company was directed to reinstate the life insurance policy without the payment of premiums for so long as Ms. C. remains totally disabled. We are also very satisfied to report that our client was also awarded her reasonable attorneys’ fees and costs.

The ERISA 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. We have also handled ERISA life insurance denials, appeals and litigation matters on behalf of many clients. Our office has handled claims against every major disability insurance company issuing individual and group disability and life insurance policies. Please feel free to contact us for what is typically a free initial consultation if your claim has been denied.

If you have income replacement protection if you become disabled due to a sickness or injury or illness, such coverage is most likely available to you through a group disability policy purchased by your employer. For the most part, these policies and claims thereunder are governed by the federal statute known as the Employees Retirement Income Security Act (“ERISA”). Most state and federal employees as well as employees of church groups are not covered by the federal ERISA laws.

If you have purchased a policy directly from an insurance company or insurance agent, then you have an individual as opposed to a group policy. Your individual policy will not be governed by ERISA, and instead be guided by the statutes and case law of your particular state. The state laws can differ. In Colorado, for example, a “bad faith” denial of your claim can lead to the recovery of extra-contractual damages. Some states do not have these bad faith laws. Colorado also has a powerful statute which provides for a recovery of double the contract benefits and attorneys’ fees if the claim is “unreasonably delayed or denied.”

What to do if your claim is denied?

The answer to this question depends greatly on whether you have an individual or group policy. If an individual policy, you may or may not have to pursue an internal appeal of the denial with the insurance company, although we may recommend that you do so for a variety of reasons. However, for a claim arising under a group (ERISA) policy, there are certain statutory and regulatory obligations which cannot be overlooked. You are required to file an internal appeal with the entity which denied your claim. You must be provided at least 180 days within which to submit the appeal. The appeal is a prerequisite for the subsequent filing of a lawsuit, if that becomes necessary. We always tell our clients that this internal appeal stage in an ERISA-governed claim is the most important stage of your claim. Your appeal should include all documentary evidence supporting your claim. In representing our clients, we employ different approaches and tactics to ensure a well prepared appeal for each case. A well documented appeal has a greater chance of success and, if litigation becomes necessary, is crucial to the potential success of a lawsuit.

The Litigation Process

If a lawsuit becomes necessary, litigation of a claim denial under an individual disability policy looks very different than that of a group policy. Under an individual disability policy, you will likely be entitled to a jury trial. The types of damages you can claim greatly exceed those which are recoverable under a group (ERISA) disability policy.
ERISA long term disability litigation is often resolved by the decision of the trial court judge. These cases end up in federal as opposed to state court most often. The decision of the trial court judge is usually rendered after the parties have filed motions for summary judgment. These motions and accompanying briefs can be quite extensive. We submit extensive briefs arguing the facts, the law, and all other relevant factors of the claim in this written document. Importantly, the judge’s review of the evidence relevant to the claim is limited to the “administrative record” (better known as the insurance company’s claim file which was prepared prior to the filing of suit). Generally speaking, in an ERISA disability case, no evidence concerning the claimant’s disability can be added to this claim file following the underlying appeal decision by the insurance company. In other words, all evidence in support of your disability claim must be submitted long before the lawsuit is initiated. This is not true with respect to individual disability policy claims and denials.

Chances of Success

In our experience, you have a much greater chance of success in your disability claim under an individual policy versus a group policy governed by ERISA. Because of a lack of damages that can be awarded in your favor and against a group disability insurance company, the insurer knows that its only true exposure is the payment of the past-due disability benefits, interest and possibly an award of attorneys’ fees. Knowing that its exposure is limited, the insurance company is less concerned about its conduct in processing a claim under an ERISA long term disability policy. The ERISA laws were passed in 1974 to supposedly protect the plan participant (employee) but it is generally accepted that the opposite is true. The employer who provides the disability benefit and more typically the insurance company that insures that group disability benefit, faces little exposure as a check on its conduct and decision making authority. An insurer of an individual long term disability policy faces much greater scrutiny, will have the decisions analyzed and decided by a group of your peers through a jury trial most likely and can face significantly higher exposure for reaching a wrong or unreasonable decision.

Need Help with a Claim or Denial?

If you have a disability policy and are thinking of filing a claim, and would like to have your situation reviewed in advance by experienced disability insurance lawyers, feel free to contact us. Such reviews can typically be accomplished in a one hour meeting. If you have already filed a disability claim, and it has been denied, you should not hesitate in having your situation reviewed by experienced attorneys. We have the experience it takes to understand your claim and guide your thought the internal appeal process and to pursue your lawsuit against your insurance company (or third party claim adminstrator) if necessary. Click here to contact us by email or call (303) 964-1800.

We recently received a favorable decision from Hartford overturning a termination of our client’s (let’s call her Ms. B) ERISA long-term disability benefits. Ms. B left her former job as a retail sales manager due to her lower back condition. She had previously undergone lumbar fusion, and had been diagnosed with chronic pain syndrome, lumbar degenerative disc disease, sacroiliitis, lumbosacral spondylosis and lumbar radiculopathy. Due to her constant pain, she was prescribed several narcotic medications (including morphine and valium) which affected her cognition and mood. These conditions and medications rendered her unable to work.

Hartford originally agreed Ms. B was unable to perform her prior occupation, and paid her benefits for two years. As we regularly see, Hartford re-evaluated the claim at the end of the initial 24-month benefit period, as the policy definitions change at that time. As described elsewhere on this cite, most group insurance policies provide benefits throughout the first two years if an individual demonstrates an inability to perform his or her “own occupation.” After two years, the definition typically changes, and an individual must demonstrate an inability to perform “any occupation.” A large majority of the denials we see occur with this “change in definition.”

When Ms. B’s policy definition changed, Hartford promptly terminated her long-term disability benefit. Before doing so, they requested her physician complete an “attending physician statement,” setting forth restrictions and limitations. Her treating physician clearly responded that she could sit no more than four hours per day, which is inconsistent with full-time sedentary work. He also noted that her pain interfered with daily tasks, including concentration. Hartford claimed to base its decision on this physician’s opinions, yet completely disregarded these portions of his statement, which were not helpful to its position.

After receiving Hartford’s termination, Ms. B contacted our office seeking assistance with her appeal submission. Attorney Heather Petitmermet immediately requested Hartford’s claim file and made several recommendations to our client. Ms. B underwent a thorough functional capacity evaluation to further establish her restrictions and limitations. Ms. Petitmermet also discussed the case with Ms. B’s treating physician, and obtained clarification of his opinion in a narrative letter. With the help of paralegal Emily Fourcroy, we ultimately submitted a lengthy appeal, including extensive medical and other evidence which undoubtedly established Ms. B’s disability and Hartford’s erroneous claims practices. After reviewing the extensive appeal submission, which established its denial was unsubstantiated, Hartford reinstated Ms. B’s LTD benefit.

Hartford’s tactics in the way they handled Ms. B’s claim are, unfortunately, quite typical. If Hartford or any other insurance company has terminated your long-term disability claim, give us a call or email to discuss your legal options. The Law Office of Shawn E. McDermott will provide a free consultation regarding your long-term disability termination or denial.

Ms. S contacted the Law Office of Shawn McDermott to request our assistance in preparing her ERISA long term disability appeal. Attorney Heather Petitmermet prepared and submitted a thorough appeal to Hartford on her behalf. Under ERISA regulations, claims administrators are required to render claims determinations within 45 days. At the expiration of 45 days, we had not received a decision from Harford. Ms. Petitmermet called to follow up on the status, and was unbelievably told that Hartford had failed to assign the case to an analyst upon receipt of the appeal; no one had even looked at the file yet. Given Hartford’s clear lack of compliance with the regulations, Ms. S chose to proceed with a lawsuit. Eventually, Hartford voluntarily reversed its decision and benefits were reinstated.

People often don’t realize that they may be entitled to some disability benefits even if they are still working, if their work earnings are diminished due to their condition. It all depends on the terms of your plan or policy. If you need assistance with a partial disability claim filed with any disability insurance carrier, regardless of your location, contact the disability attorneys at the Law Office of Shawn E. McDermott. We can help you review your policy to determine if you may be entitled to partial disability benefits.

The court’s Order (and now Final Judgment) can be found at:

Bray v. Sun Life & Health Ins. Co., 2012 U.S. Dist. LEXIS 24131 (D. Colo. 2012)

Our client’s husband was a high-level travel executive. In 2005, his work performance began to suffer (as confirmed by numerous clients, co-workers, and others). He also started exhibiting odd behavior in his personal life. His physician incorrectly diagnosed these issues as depression. Shortly thereafter, he was terminated from his job, because his small (3 person) division was not as successful as it had been in the past and was no longer “a good fit” for the company. About six months later, he learned he had a massive brain tumor, which accounted for the pre-termination performance issues. Sun Life denied the disability claim, based solely on the fact that he continued to attempt work (albeit unsuccessfully) following his termination, and that his termination was not officially due to the disability. Sadly, this gentleman eventually died due to this brain tumor. A life insurance claim was then filed (under the “waiver of premium” provision found in his group life insurance claim), which Sun Life also denied.

It was quite apparent to us (and now the judge who has decided the case) that Sun Life made up its mind to deny the claim at the outset, and nothing was going to change its decision. The way Sun Life treated our client in the end of his life and his widow following his death was appalling. Sun Life’s decision has now been overturned by the court. All benefits are now payable, along with pre- and post-judgment interests and costs. We will also be seeking an award of attorney fees, as is permitted by ERISA statute.

Once in a while a wrong in the world can be righted . . . even in the world of ERISA.

I previously blogged about the 10th Circuit’s decision in Murphy v. DeLoite & Touche and the permissible scope of discovery in claims governed by the Employee Retirement Income Security Act (“ERISA”). (Click here for prior post.) Although many of our local judges in the federal court in Colorado previously allowed at least some discovery sought on behalf of our clients, the gate has clearly been pushed further open. More recently, this office received favorable orders in Erickson v. Lincoln National and Bottoms v. Liberty Life. The decision issued by Magistrate Judge Shaffer in the Bottoms case has been published by Westlaw at 2011WL6181423.

In this case, Liberty Life argued that Plaintiff was not entitled to conduct discovery. Plaintiff’s discovery request sought information concerning the insurance company’s conflict of interest in rendering ERISA claim decisions, information concerning bias of the reviewing physicians retained by Liberty Life to perform a paper review of Plaintiff’s medical records, the incentive pay plans of Liberty Life employees who rendered the claim decision, and related information. Ultimately, the judge concluded Plaintiff was entitled to obtain much of this information from the insurance company.

Finally, after years of pushing this Issue, which required extensive briefing and attendance at numerous hearings, our clients’ rights to seek discovery under our federal rules of civil procedure on behalf of our clients is becoming more and more clear. Such discovery “battles” should be far less contentious in the future. Disability insurance carriers (such as Unum, Hartford, MetLife, Liberty Life, CIGNA, Sun Life, Prudential, Standard, and the others) will be required to produce information which should have always been readily available to Plaintiffs whose benefits have been denied under this biased and tainted method employed by disability carriers in rendering decisions. Judge Shaffer made it clear at the hearing and in his written decision that the days of insurance companies opposing all forms of discovery in these types of cases are over.

Over the years, the “other limiting conditions” provisions we have seen have grown ever more inclusive. We suspect that employers buying these group policies from the various insurers are quite unaware of the nature of these limiting provisions and the reality that many types of disabling illnesses are not actually covered or are seriously limited. A particularly onerous provision recently found in a policy issued by Standard Insurance includes the following:

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.