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.'”

Advertisements

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).

Private Long Term Disability Policy

If you have a private long term disability policy, or a similar type of contract that pays benefits while you are unable to work, state law may assist you in your claim.  For example, in Georgia, a policy is to be construed liberally in favor of coverage.  Barrett v. Nat’l Union Fire Ins. Co. of Pitt., 304 Ga.App. 314 (2010).  If you have an insurance policy and you live in Georgia, contact our office if you are not receiving benefits you feel you are entitled to receive. We may be able to help. 

Heimeshoff v. Hartford Life & Accident Ins. Co

Yesterday, the United States Supreme Court decided a very important case in the context of ERISA long term disability.  The plaintiff filed a claim for long term disability benefits, which was denied by the Hartford.  Almost three years after the denial, but more than three years after the date proof of loss was due under the Policy, the Plaintiff filed suit.  The Policy contained a contractual statute of limitation providing that suit must be filed within three years of the date proof of loss is required. The case made it up to the U.S. Supreme Court, which held The Plan’s limitation provision is enforceable.  Heimeshoff v. Hartford Life & Accident Ins. Co., ____ U.S. _____, No. 12- 729 (Dec. 16, 2013).  
The Court ruled that unless the contractual limitation period is unreasonably short or there is a “controlling statute to the contrary”, the limitation will be given effect.  In this case, the Court held the 3 year contractual statute of limitation was reasonable. The Court did not preclude the application of equitable tolling, waiver or estoppel.
What remains to be seen is whether LTD insurers will seek to impose a contractual limitation in a scenario where the Plaintiff is approved for two years, and subsequently denied, but unable to file suit within the applicable period of time.  It is difficult to imagine a Court enforcing a contractual limitation in a situation where the claimant is initially approved for a period of time. Nevertheless, the Heimeshoff case opens the door to such arguments. 

ERISA Time deadlines and Standard of Review

Under the ERISA regulations, a plan must issue a benefits determination no later than 45 days after receiving a claim.  The regulations provide for an extension of that deadline, but what happens if the plan doesn’t comply with the 45 day deadline?  It appears the answer depends upon the jurisdiction.

One consequence of the failure to comply with the 45 day deadline is “exhaustion.”  In other words, a claimant is not permitted to file suit in federal court until such time as administrative remedies have been exhausted.  Thus, if a decision is not made by the plan within 45 days, there is authority for the proposition that such a situation constitutes a constructive denial of the claim.  As a result, the plaintiff can bring a lawsuit in federal court. See 29 CFR 2560.503-1.

Once the Plaintiff brings the claim in federal court, what happens?  Normally, disability determinations under ERISA are reviewed by the court under the arbitrary and capricious standard of review.  Interestingly, there is some authority for the proposition that a plan’s failure to comply with the 45 day benefit determination deadline results in de novo review instead of the deferential arbitrary and capricious standard.   Stefansson v. The Equitable Life Assurance Society of the United States, 2005 U.S.Dist. Lexis 21723 (M.D. Ga. 2005) (“because DMS failed to render a benefits determination in accordance with the regulatory requirements, application of the de novo standard of review is appropriate”).  See also: Gilbertson v. Allied Signal, Inc., 328 F.3d 625 (10th Cir. 2003); Jebian v. Hewlett Packard Co., 349 F.3d 1098 (9th Cir. 2003); Kinstler v. First Reliance Standard Ins. Co., 181 F.3d 243 (2nd Cir. 1999); Buck v. Kraft Food Global, Inc., (M.D.Tenn. 2007); Kosiba, 384 F.3d 58 (3rd Cir. 2004). But see: Southern Farm Bureau Life Ins. Co. v. Moore, 933 F.2d 98 (5th Cir. 1993); Hackney v. The Lincoln National Life Ins. Co., 2012 U.S.Dist. Lexis 694 (W.D.Ky. 2012) (de novo determination appropriate in some situations, but Court remanded to insurer for benefit determination).

If you have a long term disability claim governed by ERISA, and the insurer has not rendered a timely decision, it is important that you contact an attorney to discuss your rights.

6th Circuit Standard of Review for LTD ERISA Claims

District court review of a plan administrator’s denial of benefits is normally de novo. Jones v. Metro. Life Ins. Co., 385 F.3d 654 (6th Cir. 2004). However, where a plan fiduciary has discretionary authority to determine eligibility for benefits or construe plan terms, a district court will review per the “arbitrary and capricious” standard. Whitaker v. Hartford Life & Acc. Ins. Co., 404 F.3d 947 (6th Cir. 2005).  The arbitrary and capricious standard is used so long as the plan contains a clear grant of discretion to the administrator to determine benefits or interpret the plan. Perez v. Aetna Life Ins. Co., 150 F.3d 550 (6th Cir. 1998).

The arbitrary and capricious standard “is the least demanding form of judicial review of administrative action . . . . When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Perry v. United Food & Commercial Workers Dist. Unions 64 F.3d 238, 241 (6th Cir. 1995).   As a result, a decision will “be upheld if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.” Baker v. United Mine Workers of America Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991).  Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

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).