5 02, 2019

An Example of Justice Being Decided by the Review Standard for ERISA Disability Benefits

By | 2019-10-09T18:32:28+00:00 February 5th, 2019|Uncategorized|Comments Off on An Example of Justice Being Decided by the Review Standard for ERISA Disability Benefits

A recent Colorado case—Ellis v. Liberty Life Assurance Co. of Boston—illustrates the importance of de novo review when a court evaluates an insurance company’s wrongful denial of disability benefits in an action governed by the Employee Retirement Income Security Act (“ERISA”).  Initially, the court upheld the benefit denial after conducting an abuse of discretion/arbitrary and capricious review—a review that gives deference to the insurance company’s conclusions.  But it reversed the denial on reconsideration, after conducting a de novo review—an independent determination of whether a preponderance of the evidence supported disability, giving no deference to the insurance company’s conclusions.

In early-2012, Ellis suffered a significant health issue resulting in a debilitating cognitive impairment.  Ellis could no longer work, however, through his employment he had obtained an ERISA-governed long‑term disability insurance policy issued by Liberty.  Liberty approved and began paying the $8,572 monthly LTD benefit.  Over time, Ellis underwent multiple neurocognitive evaluations and continued under the care of multiple physicians, each concluding that Ellis’s impairment precluded employment.  Twice over Liberty’s own consulting neuropsychologist reached the same conclusion.

Liberty then hired Dr. Gant to perform “independent” neuropsychological testing of Ellis.  The test results were ultimately deemed “invalid” and Dr. Gant concluded he was “not certain” whether Ellis was cognitively impaired.  Nevertheless, in December 2013, Liberty terminated Ellis’s LTD benefits based upon Dr. Gant’s conclusion.  Ellis appealed—submitting additional compelling evidence of his disability.  Liberty hired a second “independent” neuropsychologist, Dr. Belliveau, who merely reviewed the paper file and concluded it did not support a finding of cognitive impairment.  Liberty upheld the denial, forcing Ellis to file a lawsuit to obtain justice.

The judge initially entered judgment in favor of Liberty, upholding the termination of benefits.  He noted Liberty’s original denial was based upon Dr. Gant’s questionable conclusions and despite significant evidence supporting the claim.  He also noted that on appeal Liberty’s neuropsychologist’s findings were difficult to follow and unpersuasive.  Nevertheless, believing the policy pre-dated a Colorado law prohibiting an insurance policy from delegating discretionary authority to the insurer, the judge was compelled to honor the policy’s delegation clause and conduct an abuse of discretion review.  While he found the conclusions of Drs. Gant and Belliveau unpersuasive, they nevertheless constituted evidence in support of Liberty’s determination such that the denial was not arbitrary and capricious and had to be upheld.

On reconsideration, the judge concluded the Colorado law did, in fact, apply, thus mandating de novo review.  Giving no deference to Liberty’s determination and independently evaluating the evidence, the judge found that Liberty’s conclusions were not supported by a preponderance of the evidence and that Liberty “attached greater weight to the relatively scant evidence that supported a denial . . . than to the voluminous evidence that supported a contrary conclusion.”  The judge “conclude[d] that de novo review of this case dictates a different result than the arbitrary and capricious standard of review previously employed.”  He then ordered Liberty to pay Ellis the wrongfully denied LTD benefits.

28 01, 2019

Pre-Existing Conditions—Don’t let these landmines blow-up your LTD claim!

By | 2019-10-09T18:32:36+00:00 January 28th, 2019|Uncategorized|Comments Off on Pre-Existing Conditions—Don’t let these landmines blow-up your LTD claim!

Most long-term disability insurance policies (and some short-term disability policies) contain a clause excluding pre‑existing conditions.  This clause allows an insurance company to avoid paying benefits for conditions that existed before coverage began.

The most common clause provides that, if you become disabled within 12 months after the coverage began, no benefit will be paid if you received any type of medical treatment, care or service (including prescribed medications), related to the disabling condition during the 3 months before the coverage began (the “look-back” period).  Some clauses extend the period to the first 24 months of coverage, with a 12-month look‑back period.  Others provide that, if you were treated for a condition during the look-back period, no benefits will be paid unless you complete 12 months of coverage without further treatment for that condition.  Ultimately, the clauses vary and the applicable terms can only be determined by reviewing the specific policy at issue.

As a general rule, insurance companies apply pre‑existing condition clauses very broadly.  They look for any treatment received during the look-back period that could be used to justify denying benefits—regardless of how remote the relationship may be.  For example, consider someone involved in a serious accident shortly after his or her disability coverage begins, who undergoes multiple low-back surgeries, and is left permanently disabled.  In an effort to deny benefits, a company may look to a physician’s record documenting a nominal complaint of low-back pain during the look-back period.

If you are considering filing a disability claim, first determine whether you completed the policy’s pre‑existing condition period.  If you have not, then consider whether, during the look‑back period, you received any type of medical service (including prescriptions) that even remotely-relates to your disabling condition.  To the extent possible, you may want to delay your disability leave until you have cleared this landmine.  Too often, individuals lose disability benefits they would have otherwise received, only because they took disability leave before completing the pre‑existing condition period.

If you are concerned that your insurer erroneously denied your claim based on a pre‑existing condition or if you need assistance applying for benefits, the attorneys at Guerrini & Thompson, P.C. stand ready to help you evaluate whether you could benefit from our services.

16 03, 2018

An Improved Standard of Review for ERISA Disability Benefit Claims in Texas

By | 2019-10-09T18:32:47+00:00 March 16th, 2018|Uncategorized|Comments Off on An Improved Standard of Review for ERISA Disability Benefit Claims in Texas

An Improved Standard of Review for ERISA Disability Benefit Claims in Texas

On March 1, 2018, the U.S. Fifth Circuit Court of Appeals (which decides how federal law applies in Texas), issued its decision in Ariana M v. Humana. The decision was a significant win for Texas citizens—providing us with protections that have been available to the rest of the country for years. With this development, an employee whose long term disability insurance claim or health insurance claim was wrongfully denied, can file a lawsuit and ask a federal judge to independently evaluate whether the claim should be paid.

Previously, when a Texas claimant challenged an insurance company’s wrongful denial of disability benefits, a federal judge would review the company’s “factual determinations” using the deferential “abuse of discretion” standard. The review might very in intensity, but usually resulted in the judge rubber-stamping the company’s decision—even though the judge actually disagreed with the decision and thought the benefits were otherwise owed. The Fifth Circuit, since its 1991 decision in Pierre v. Connecticut General Life, has been the only court in the country to mandate deference to insurance companies’ self-serving factual determinations, which provided shelter for denying eligible claims.

Now, the review standard used by trial judges will be de novo review. This means the judge will independently review and evaluate the medical evidence and proof of disability submitted by the claimant. The judge is no longer constrained to accepting the insurance company’s factual determination and is no longer required to accept the insurance company’s medical record reviewer’s opinions over those of the claimant’s treating physicians. Finally, after many years of unfair treatment, claimants in Texas have an improved standard of review by which to challenge wrongfully denied health and disability insurance benefits.

28 11, 2017

Pain and Long Term Disability Claims

By | 2019-10-09T18:32:55+00:00 November 28th, 2017|Uncategorized|Comments Off on Pain and Long Term Disability Claims

Pain can be caused by any number of conditions including spinal column anomalies, headaches, gastrointestinal issues, traumatic injuries and/or undiagnosed conditions.

When pain is the predominant symptom, issues that must be kept in mind are other-caused symptoms, policy coverage and proof of disability.

Medically, pain may cause other symptoms such as fatigue due to interrupted sleep, lack of focus, depression and/or anxiety. All of these combine to cause disability.

With respect to insurance policy coverage, be aware some policies limit coverage to two years for a disability based on pain. These policies limit coverage for pain as it is the type of symptom that is not provable by tests or imaging studies.

As important, the proof of disability is made more difficult because there are no tests or imaging studies which detect pain or the extent of pain experienced by an individual. Simply submitting medical records from your doctor(s) will not be enough to secure disability benefits.

When pain is a significant symptom, it is very important to have a supportive medical provider to provide evidence of your disability. Repeated notations in the medical records regarding pain and other-caused symptoms are very important. Clinical examination may reveal indications of pain such as spasms, muscle tenderness and/or decrease in range of motion.

There also may be tests to show the fatigue pain causes, or to show a decrease in range of motion, inability to lift and/or inability to sit/walk for a required period of time. Other tests may demonstrate the impact pain has on an individual’s cognitive abilities and mental status.

Since pain is difficult to prove, a claimant should collect as much information as possible such as maintaining a pain/fatigue log by day recording the time, degree and remedy used to treat the pain/fatigue. Information of a similar nature from friends, family and business associates may also be helpful as proof because observation is made over an extended period.

14 04, 2017

ERISA Long Term Disability Benefits

By | 2019-10-09T18:33:05+00:00 April 14th, 2017|Uncategorized|Comments Off on ERISA Long Term Disability Benefits

Employer provided disability insurance benefits, which are governed by the Employee Retirement Income Security Act (ERISA), pay a portion of a claimant’s earnings if they cannot work because of illness or injury. Typically, the first six months of disability insurance benefits are paid by what is referred to as short term disability (STD) insurance.  The benefits paid thereafter, typically until the age of 65 are paid by long term disability (LTD) insurance.

The ERISA claim regulations apply to both STD and LTD insurance benefits. While STD insurance and LTD insurance pay benefits, the terms under which such benefits are paid and calculated differ significantly.

Both STD and LTD insurance benefit claims are started with a notice of claim that must be given within a certain period of time that is stated in the insurance policy. Typically, the process of providing notice of claim starts with an inquiry to the employer’s human resources department. The claimant should receive a three-part form or be provided with a web address to file the claim. On the form, one part is filled out by the employer, one part by the claimant’s doctor and one part by the claimant. See, Frequently Asked Question (FAQ’s) No. 11. This form is sent to the insurance company. Within a specified period, the insurance company should contact the claimant for the continuation of the claim process. If the insurance company does not contact the claimant, the claimant has an obligation to provide additional information required by the policy. See, Common Issues in ERISA Claims II 1a.

Once a claim is made, the insurance company has a certain period of time to make a decision. Special circumstances allow the insurance company to obtain an extension of time. If the insurance company determines to pay the benefits, it will issue monthly checks for the STD or LTD benefit in the amount calculated according to the terms of the policy. If the insurance company determines that it will not pay the benefits (See, FAQs Nos. 23 and 24.), it must issue a denial letter with the items required by the ERISA regulations. See, FAQ No. 13.

The denial letter, among other things, must advise the claimant that the claimant has 180 days to appeal the denial determination and identify the information necessary to perfect the appeal. The additional information typically includes office visit notes, doctor letters, tests and/or films.

Once the appeal is filed, the insurance company has a specified period of time and extensions to make a determination. It may reverse its decision and start to pay benefits. It may uphold its decision to not pay benefits. Some insurance companies allow for a second appeal which is governed by the same regulations for the first appeal.

If the claimant is not willing to accept the adverse benefit determination, then the claimant must file suit. This suit is generally filed in a federal court. The case is presented to the judge without a jury and is limited to the evidence in the administrative record with respect to the merits of the claims. See, Common Issue in ERISA Claims, II 2E. The case typically is decided on the basis of whether the insurance company abused its discretion in denying the benefits. See, FAQ No. 17. The conflict of interest of the insurance company is a factor that is considered by the judge.

The time involved in an ERISA STD or LTD insurance benefit claim can be substantial and will tax the financial endurance of any claimant. From the date a claim is filed, it may take the insurance company 90 days to make a determination, the claimant may take 180 days to file an appeal, the insurance company may take 90 days to reach a decision, if necessary, suit is filed with a trial date of 13-15 months, a decision by the judge may take 6 months and an appeal to the court of appeals adds 18 to 24 months. The entire process may total 43 to 51 months.

The definition of disability is usually the same for both STD and LTD insurance benefits. See, FAQ No. 16. Some of the differences between STD and LTD benefits, in addition to the duration of the benefits, are very significant. STD insurance benefits may be calculated based on 100% of the claimant’s weekly earnings with no offsets. LTD benefits are typically 60% of the claimant’s monthly earnings offset by numerous sources of other income, most notability Social Security Benefits. The LTD definition of disability changes at a point, typically 24 months, from using your own occupation as the criterion to any occupation that the claimant can perform based on their education, training and experience. So the promise to pay 60%, if you cannot do your job, is not necessarily the most accurate way to state the benefit amount or the obligation.

The STD insurance benefits claim may or may not be subject to a pre-existing condition clause. The LTD insurance benefits claim is always subject to a pre-existing condition clause which may be avoided in certain circumstances.

The LTD insurance benefits are subject to more defenses to the obligation to pay than STD insurance benefits. One such defense is the limitation of benefits to 24 months for disability based on a mental or nervous condition and/or alcohol/drug abuse. Some insurance policies also have a similar limitation for subjective symptoms which cause disability.

Taxability of the benefits depends on whether the claimant paid the disability insurance with after-tax dollars. In such case, the benefits most likely would not be taxable. If the employer paid or the claimant paid with before-tax dollars, the benefits most likely would be taxable. See, Common Issues in ERISA Claims, II 9.

13 04, 2017

What Are A Law Firm’s Qualifications?

By | 2019-10-09T18:34:05+00:00 April 13th, 2017|Uncategorized, Videos|Comments Off on What Are A Law Firm’s Qualifications?

1) What are the qualifications of the lawyer:

▸ how long has he/she been in practice;
▸ does he/she focus mainly on ERISA long term and short term disability claims;
▸ how long has he/she handled ERISA claims; and
▸ how many claims, appeal and lawsuits has he/she handled.

2) Does the lawyer provide empathetic and compassionate service?

3) When you call, do you tell your story to the attorney or a case screener?

4) Is the attorney available to answer your questions as your claim progresses?

5) What does the attorney charge for the services provided?

ERISA law is very complex and few attorneys practice in this area. An experienced ERISA lawyer can help you file your claim, maximize your evidence and prevent you from making a mistake that could be fatal to your claim.  

ERISA gives the insurance company the upper hand as ERISA does not reward the company if it does what is right nor does it punish the company if it does what is wrong. So the company has no incentive to do what is right. You must be mindful of this when you begin the claim process and not be lulled into thinking that the company is actually trying to help you file your claim or receive your benefits.

Bernard Guerrini has been in practice for 38 years and has handled numerous ERISA claims, appeals and lawsuits. John Thompson has been in practice for 19 years. Most important, the focus of this practice is ERISA long term and short term disability claims. They do not handle any other benefit claims such as Social Security benefit claims, pension claims or veteran’s benefit claims. They do not handle personal injury claims or business claims. They focus their practice on ERISA claims.

15 10, 2015

Life Insurance Coverage Governed by ERISA

By | 2019-02-05T23:24:53+00:00 October 15th, 2015|Uncategorized|0 Comments

Most large employers provide a benefit plan that may include benefits for life, health, disability, vision and/or dental.  These benefits may be funded by a policy of insurance.  Life insurance is an important benefit as it would pay the proceeds upon the death of the employer or, perhaps if coverage is provided, for the death of a spouse or child.  Included in this life coverage is accidental death and dismemberment coverage (AD & D coverage) that pays only upon injury or death occurring by accident.  Life insurance is a way to provide for the tremendous financial loss that is caused by a death in the family.

Life insurance seems rather simple, that is, you pay the premiums and upon a death the insurance company pays the benefit to the designated beneficiary(ies).  However, there are many traps that may befall a claimant and many exclusions that prevent payment of the benefit.  One trap deals with the fact that such benefits are governed by the Employee Retirement Insurance Security Act (ERISA).[1]  Any claimant on a life insurance policy governed by ERISA is at a disadvantage compared to a claimant on a policy that was purchased on an individual basis.

Another set of traps comes about in the enrollment process for the coverage on the employee and dependent(s).  One trap may be the designation of a beneficiary(ies).  For example, the applicant must determine if a domestic partner or a same-sex spouse can be covered by the policy.  Also, in the instance where the spouse is designated as the beneficiary and there is a divorce, the applicant must remove the spouse as the beneficiary or determine if the ex-spouse can remain as the beneficiary without some action taken by the applicant.

Another trap in the enrollment process may be the failure to provide accurate information or make accurate selections, e.g., optional coverage, which could call the coverage into question upon the death of the employee or dependent.

While it sounds like the proceeds will be paid upon death, it is not that simple.  There are conditions and exclusions regarding coverage that may allow the insurance company to escape paying the proceeds.

In the case of applying for coverage outside the enrollment period, the employee may have to provide evidence of insurability to obtain coverage or an increase in coverage.  If this evidence is not provided to the insurance company, there will be no coverage.

Other conditions require that the employee by a full-time employee, be actively at work, be in a covered class of employees and complete the waiting period before coverage will become effective.

With respect to the AD & D coverage, there are conditions that the injury be caused by an accident and the injury be the sole cause of the loss.  There are many exclusions from coverage such that benefits will not be paid, such as suicide, self-inflicted injuries, sickness, medical or surgical treatment, infections, war, while on active duty with the military, commission of a felony and participation in hazardous sports.

When an employee terminates his/her employment, there are issues with respect to continuing the life insurance coverage.  This is referred to as porting the group coverage or converting the group coverage to an individual policy for the ex-employee.  The time period and the conditions to continue coverage are found in the policy, and must be complied with or the opportunity to do so will be lost.

[1]The Employee Retirement Income Security Act of 1974, P. L. 93-406 (“ERISA”), codified at 29 U.S.C. § 1001 et seq. and in other titles, is a “comprehensive and reticulated statute.” Pension Benefit Guaranty Corp., 116 U.S. 359, 361 (1980).

23 05, 2014

What is actually paid under a long term disability policy?

By | 2019-02-05T23:25:04+00:00 May 23rd, 2014|Uncategorized|0 Comments

Many employees are provided long term disability coverage under a benefit plan[1] which is governed by ERISA.[2]  Most of these plans provide that the employee will be paid 60% (although there are different percentages) of the monthly earnings if the employee satisfies the definition of disability in the plan.  While this 60% is prominently displayed in the schedule of benefits, it is only upon a reading of the plan that one is advised that the 60% amount is offset by other monetary payments[3] received by the employee because of the disability.

The typical offset found in almost every case is the payment under the U.S. Social Security Act.  Most plans require a claimant file for social security benefits or it will estimate the amount that will then be offset.

If an employee makes $48,000 a year or $4,000 monthly, the 60% gross benefit would be $2,400.  When social security payments are made, that amount would be offset from the $2,400 to arrive at the net benefit.  As an example only, if the claimant received $1,200 and the child/children received half of that or $600, the total payment from social security would be $1,800.  This would result in a net benefit of $600.  So in this example the claimant would receive $600 from the plan and $1,800 from social security (until the children reach a certain age).

In the circumstance where the net benefit is very small or is a negative number, the plan typically provides for a minimum net benefit of $100.

One can see that the 60% benefit in the schedule of benefits is misleading, at the very least.  If an employee did not plan on receiving the 60% benefit ($2,400) minus the social security benefit ($1,800) in case of disability, the employee may have over estimated the income they were to receive.  Therefore, the importance of the realization that the plan only pays a net benefit is in planning one’s financial well-being in case of a disability.



[1]The terms employee welfare benefit plan and welfare plan mean any plan, fund, or program which was . . . established or maintained by an employer or by an employee organization . . . to the extent that such plan, fund, or program was established . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) [holiday benefits, among others] of this title (other than pensions on retirement or death, and insurance to provide such pensions).   29 U.S.C. § 1002(1) (emphasis supplied).

[2]The Employee Retirement Income Security Act of 1974, P. L. 93-406 (“ERISA”), codified at 29 U.S.C. § 1001 et seq. and in other titles, is a “comprehensive and reticulated statute.” Pension Benefit Guaranty Corp., 116 U.S. 359, 361 (1980).

[3]Some plans identify these payments as “deductible sources of income” or “other income.”  Typically these other payments are amounts received under worker’s compensation or similar act, employee’s retirement plan, state compulsory benefit law, U.S. Social Security Act and/or that received from a third-party responsible for causing the disability.




29 01, 2014

How do you make the decision to apply for benefits

By | 2019-02-05T23:25:18+00:00 January 29th, 2014|Uncategorized|0 Comments

Making the decision to apply for and to go on disability is often very difficult when the condition causing the disability is not acute, that is does not require an immediate application for benefits as for example the result of an accident. When you consider this prospect, you need to have several things in order before initiating the claim process with the HR department of the employer.


First, you should make sure that the doctor(s) that are treating the disabling condition agree that you are disabled due to that condition. If possible have the doctor(s) record the symptoms in the medical records, and also recommend that you stop working and you apply for disability.


Second, you need to know the date that you will go on disability. This is not always an easy date to determine. Even if you have a disabling condition, you can struggle through day to day. You are disabled when you finally decide that today is the day that you can no longer do the material duties of your job. This day should be chosen in the context of the policy terms. For example, if there is a preexisting condition issue, one would not want to go on disability until that clause has been satisfied.


Third, you need to have the finances in order as the claim process could last anywhere between six months to more than two years before a decision is finally reached.


Fourth, you need to decide if legal representation is required. For the initial claim process, the less sophisticated you are about such things and the more devastating the disease/symptoms you have, the more you should consider hiring an experienced ERISA attorney. If you are experienced with administrative type procedures and the cause of disability is acute, such as an accident, the more you may think about handling the initial claim process by yourself. For the appeal of any initial denial, you should always consider seeking the help of an experienced ERISA attorney.


You should call a reputable attorney experience in ERISA claims and discuss this further. This attorney should be able to tell you about the company involved, the type of disability condition you have together with the anticipated difficulty in proving the disability, the likelihood that you will successfully navigate the initial claim process and the attorney fees that would be charged in that situation. From this discussion you should a have a better feel for whether you want to try to file the initial claim.

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