Contacting the Treating Physician

In most ERISA LTD claims, the insurance company will hire a physician, usually an employee of the insurance company, to review the medical records and give an opinion on the claimant’s functional limitations.  Said physicians are often called “reviewing physicians.”  Generally, the insurance company’s reviewing physician will try to contact the claimant’s treating physician(s).

In Shaw v. AT&T Umbrella Benefit Plan No. 1, 795 F.3d 538 (6th Cir. 2015), the Court made specific note of the fact that the Plan failed “to make a reasonable effort to speak with” the claimant’s treating physicians.  In Shaw, the reviewing physicians attempted to contact the claimant’s treating providers; however, the treating providers were only permitted 24 hours to return the phone call.  The Court noted: “the cursory manner in which the Plan attempted to contact Shaw’s treating physicians is evidence that the Plan’s decision was not ‘the result of a deliberate, principled reasoning process.'”

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Ignoring Favorable Evidence

LTD carriers are not permitted to ignore favorable evidence in a long term disability claim. “A plan may not reject summarily the opinions of a treating physician, but must instead give reasons for adopting an alternative opinion.”  Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006).

LTD ERISA Venue

29 USC 1132 (e)(2) provides: “Where an action under this title is brought in a district court in the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.”

GENERAL:

  • Plaintiff’s choice of forum is entitled to substantial deference.  Hanley v. Omarc, Inc., 6 F.Supp.2d (N.D.Ill. 1998).  However, the Plaintiff’s choice may still be incorrect. Id.
  • The defendant must be subject to personal jurisdiction in the selected venue.

WHERE THE PLAN IS ADMINISTERED:

  • Ret. Funds v. Golden Eagles Architectural Metal Cleaning & Refinishing, 277 F.Supp.2d 291 (S.D.N.Y. 2003)

WHERE THE BREACH TOOK PLACE:

  • The plaintiff’s state of residence can be a proper venue if that is the place where he/she was to receive benefits.  Cole v. Cent. States Southeast & Southwest Areas Health & Welfare Fund, 227 F.Supp.2d 190 (D.C.Mass. 2002); Oakley v. Remy Int’l, Inc., 2010 U.S.Dist. Lexis 10821 (M.D.Tenn. 2010)

WHERE DEFENDANT RESIDES OR MAY BE FOUND:

  • For venue purposes, some courts hold that the corporation resides wherever personal jurisdiction is proper.  Ransom, 820 F.Supp. 1429 (N.D.Ga. 1993). But see Med. Mut. v. DeSoto, 245 F.3d 567 (6th Cir. 2001).

Consideration of Social Security determination in LTD claims

Quite often, a claimant who is receiving long term disability benefits will be required by the insurance company to file for Social Security Disability.  In fact, often the Plan will provide a representative to assist the claimant in obtaining Social Security disability benefits. If SSA awards benefits, the LTD carrier then claims an overpayment of benefits.   More often than not, the claimant is found disabled by SSA around two years after he/she became disabled, which is right around the time period when the LTD definition of disability changes.  I have represented a number of individuals who are approved by SSA for disability, and then denied by the LTD carrier a month or two later.  In the 6th Circuit, the LTD carrier is not permitted to ignore the SSA disability finding.  In situations where the LTD carrier has required the claimant to apply for disability, and receives a financial benefit from an award of SSA disability, a reviewing court will generally take those facts in to serious consideration in determinating when the decision to deny LTD benefits was arbitrary and capricious. Calvert v. Firstar Finance, Inc., 409 F.3d 286 (6th Cir. 2005); Glenn v. Metlife, 461 F.3d 660 (6th Cir. 2006).  As a practical and legal matter, if the LTD carrier requiring the claimant to apply for disability, is assisting the claimant in applying for disability, and receives a financial benefit from the claimant obtaining disability through SSA, the carrier should be estopped from arguing that the claimant is not disabled.

For example, in Raybourne v. Cigna Life Ins. Co. of New York, 2012 U.S.App. Lexis 24018 (7th Cir. Nov. 21, 2012), Raybourne applied for long term disability benefits with Cigna.  He also filed for Social Security disability benefits.  Cigna hired a company to assist Raybourne with his Social Security disability claim. Raybourne’s disability claim was approved by the Social Security Administration; however, just a few months prior to the disability award, Cigna hired a physician to review the file.  Said physician opined that Raybourne was not disabled.  The report from Cigna was never provided to the Judge deciding Raybourne’s Social Security disability claim.  Instead, after Raybourne was awarded social security disability benefits, Cigna “recouped from the back benefits the money the insurer had paid to Raybourne during the first twenty-four months of his disability.”  Even more disturbing is the fact that just three weeks before Raybournes social security disability hearing, Cigna denied Raybourne claim for long term disability.  In other words, Cigna hired someone to argue that Raybourne was disabled, despite the fact that Cigna had denied his claim for private disability benefits just three weeks prior to the hearing.  Cigna denied Raybourne’s administrative appeals, and did not even mention the social security disability finding.  The case went to federal court, at which time the federal judge remanded the claim back to Cigna for consideration of the SSA disability determination.  Cigna then supplied a list of “reasons” for not accepting the disability finding of the social security administrative law judge.  The Court noted the “seemingly inconsistent positions taken by the insurer” that were “financially advantageous to the insurer.”  The Court further noted that Cigna did not produce the report from their doctor to the Social Security Administration, and instead, only used his report “when it was financially advantageous to the insurer.”  Ultimately, the Court concluded: “Cigna’s denial of benefits was not supported by substantial medical evidence but instead was the result of a structural conflict of interest.” The Court also affirmed the award of attorney fees to Raybourne’s attorney.

If you would like to discuss your Social Security and/or Long Term Disability claim, please click here to obtain the author’s contact information.

LTD Attorney Fees

In Cockrell v. Hartford Life and Accident Insurance Company, 2013 U.S.Dist. Lexis 69017 (W.D.Tenn. May 15, 2013), the Court decided a dispute between the parties concerning LTD attorney fees.  After succeeding on the merits with her LTD claim in District Court, the Plaintiff filed a Motion for Attorney’s Fees.  The defendant insurance company opposed the Motion.  First, the Court noted that as a preliminary matter, the plaintiff must have had “some degree of success on the merits.”  This threshold requirement is satisfied if the plaintiff obtains a remand.  Or, as stated by the court, “had received another shot at benefits by winning a remand.”  After determining the threshold issue, the Court examined the five factor test from Schwartz v. Gregori, 160 F.3d 116, 119 (6th Cir. 1998).  The five factors include:

  1. Culpability or bad faith
  2. Ability to Satisfy Award
  3. Deterrent effect
  4. Common benefit
  5. Merits of the case

After analyzing the five factors, the Court held: “the circumstances of this case favors an attorney’s fee award. . . .”

Next, the Court evaluating the reasonableness of the award.  Plaintiff claimed attorney fees of $23,725, which was supported by Affidavits from the plaintiff’s attorney, and another attorney located in Memphis.  The Court noted that “the lodestar approach is the proper method for calculating the award. When using the lodestar approach, ‘in which the number of hours reasonably expended on litigation is multiplied by a reasonable hourly rate,’ . . . . there is a strong presumption that the lodestar figure represents a reasonable fee.”  The Hartford challenged the figure by arguing that the number of hours litigating the case was unreasonable.  The Court carefully scrutinized the hours spent by plaintiff’s counsel, and reduced the figure to $21,225.00.

11th Circuit Review of LTD Claims

The 11th Circuit has formulated a multi-step framework for reviewing an ERISA plan administrator’s decision:

  1. De novo review to determine whether the claim administrator’s benefits-denial decision is “wrong”; if it not, the decision will be affirmed.
  2. If the decision is “de novo wrong,” the Court will determine whether the administrator was vested with discretion in reviewing claims; if not, the decision will be reversed.
  3. If the administrator’s decision is “de novo wrong” and the administrator has discretion in reviewing the claim, the Court will determine whether “reasonable” grounds support the decision.
  4. If no reasonable grounds exist, the administrator’s decision will be reversed.  If there are reasonable grounds, the court will examine whether there is a conflict of interest.
  5. If there is no conflict of interest, the decision will be affirmed.
  6. If there is a conflict of interest, the court will consider the conflict of interest as a factor in determining whether the administrator’s decision was arbitrary and capricious.

Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011).

ERISA LTD Discovery

Discovery aimed at demonstrating a conflict of interest may be appropriate in a long term disability case.   Moreover, “discovery regarding the proper standard of review to be applied is also proper.”  Medford v. Metro. Life Ins. Co., 244 F.Supp.2d 1120, 1129 (D.Nev. 2003).