Long Term Disability Law Blog

On January 26, 2012, Scott M. Riemer will speak at the 14th National Advanced Forum on Litigating Disability Insurance Claims in New York City. The conference is sponsored by the American Conference Institute. The conference will include speakers who are leading plaintiff and defense lawyers as well as top medical experts. The topic of my discussion will be "The Restrictions and Limitations Between the Own Occupation and the Any Occupation Standard." Please take a look at ACI's website for more information, http://www.americanconference.com/2012/878/litigating-disability-insurance-claims

Scott M. Riemer was a presenter at the Annual ABA Symposium on Insurance and Employee Benefits in Miami on January 15, 2011. The Symposium was sponsored by the Tort Trial & Insurance Practice Section of the American Bar Association.

Riemer presented on the topic of "Practical Tips to Make Conflict of Interest Discovery Work for You and Tips to Defend Against its Impact; A View from Both Sides of the Bench."

For more information about the Symposium, click here.

Scott M. Riemer was one of the principal presenters at the "ERISA Basics" conference held by the Pension Rights Center, on June 10, 2010. Mr. Riemer's topic was "Disability Claims under ERISA."

The Conference was held at the offices at Legal Services NYC. The attendees were predominately public service attorneys.

The NY Insurance Department recently proposed important new regulations, 11 NYCRR 222, banning discretionary clauses in New York. These regulations are immensely important because they will dramatically increase court scutiny of long term disability denials.

United Policyholders, a non-profit consumer organization which advocates for fairness in insurance transactions, asked Scott M. Riemer to write comments on the proposed regulations to the NY Insurance Department.

Mr. Riemer argued that discretionary clauses are particularly unfair because insurance companies do not provide claimants with adequate notice of their impact. The typical policy does not explain to the insured (or even the insured's employer) that the inclusion of the discretionary clause will greatly limit the insured's right to judicial review; that the insured's claim will be restricted to the administrative record and that the court will only search the file to determine whether there is substantial evidence in support of the insurer's determination. Mr. Riemer explained that in his experience prospective litgants are often shocked when he explains to them the impact of the discretionary clause.

The New York State Insurance Department has issued a proposed regulation prohibiting insurers from placing discretionary clauses in insurance policies. This regulation is hugely important to long term disability claimants. If this regulation becomes law, it would enable courts to fully scrutinize the claim determinations of insurance companies. Under the current law, a court will only overturn a claim denial if the insurance company's determination is an abuse of discretion. This regulation would constitute a turning point in this area of the law.

The Insurance Department is seeking comments from the public, which must be sent to the Department by May 5, 2010. We encourage everyone to contact the Department to express your support. Emails may be sent to dkullman@ins.state.ny.us . Click here to review a copy of the proposed regulation.

MSNBC reported today that disability filings are up 30% in the last two years as a result of the poor economy. Click here

At Riemer & Associates, we are experiencing the same trend. As a result, we are adding staff in order to service the increased workload. We are also moving our offices to a larger suite. Our new address as of January 1, 2010 is Riemer & Associates, LLC., 60 East 42nd Street, Suite 1750, New York, New York, 10165.

It has been our experience that there are many individuals with chronic illnesses who are having increasing difficulty in managing the increased demands and pressures of the current business environment. We help these individuals with their exit from work and assist them in completing the paperwork required for a disability claim.

For more information about our claim services, click here.

On August 5, 2009, the Federal District Court in New York City ordered INA Life Insurance Company of New York, a subsidiary of CIGNA, to pay our client $180,466.60 in attorney fees. This award follows a battle for long term disability benefits, where the Court found that CIGNA's denial of long term disability benefits was arbitrary and capricious.

The lawsuit was subject to the Employee Retirement Income Security Act ("ERISA"). Under ERISA, the Court may in its discretion award the plaintiff with reasonable attorney fees. Fees are usually awarded if the plaintiff prevails and establishes that: the defendant's conduct was culpable; the merits of the lawsuit favored the plaintiff; and the award of fees would deter other defendants from similar action in the future.

In awarding the requested fees in this action, the Court awarded fees at Mr. Riemer's current hourly rate of $560; the associate hourly rate of $340; and the paralegal hourly rate of $180.

Please note that prior results do not guarantee a similar outcome.

On June 15, 2009, Scott M. Riemer was one of the featured speakers at the 12th National Advanced Forum on Resolving Disability Insurance Claims & Litigation in Boston. The conference was sponsored by the American Conference Institute. The conference included speakers who are leading plaintiff and defense lawyers as well as top medical experts. The topic of Mr. Riemer's discussion was "The Impact of MetLife v. Glenn on the Standard of Review and Discovery." Please take a look at ACI's website for more information, http://www.americanconference.com/Home.htm.

Click here for a copy of the conference brochure:
http://www.americanconference.com/litigation/Litigating_Disability_Insurance_Claims.htm

Last year, Scott M. Riemer spoke at the 11th National Advanced Forum in Boston. The topic of his discussion at that conference was "Standard of Review in ERISA Litigation in Light of MetLife v. Glenn."

In Jacoby v. Hartford, 254 F.R.D. 477 (S.D.N.Y. 2009), the Federal District in New York City ordered Hartford to produce thousands of pages of documents pertaining to Hartford’s inherent conflict of interest. Rejecting Hartford’s claims of confidentiality and burdensomeness, the Court ordered Hartford to respond to plaintiff’s interrogatories and document demands, including the full production of Hartford’s BMS Claims Manual and SIU Reference Manual. The Court also rejected Hartford’s claim that documents held by its consulting firms Medical Advisory Group and University Disability Consortium were not within its “possession, custody or control.”

This decision is a valuable precedent because it provides a possible solution to the dilemma of being whipsawed between the insurance company and its consultants. When seeking documents, each entity claims that the other has the sole duty of producing the requested documents. In this case, the Court rejected Hartford's assertion that the documents held by its consultants, Medical Advisory Group and University Disability Consortium were outside Hartford's control. The Court ordered Hartford to use its influence with its consultants to obtain the requested documents. The Court held:

In these circumstances, Hartford is directed to cause the production of the requested materials that are in the hands of UDC and MAG. Should it fail to do so, and should plaintiff press the point, a hearing concerning the relationships between Hartford and each of these entities and the nature of Hartford's efforts to secure their cooperation could prove necessary.

On January 12, 2009, Scott M. Riemer will receive the Public Education award of the New York City Chapter of the National Multiple Sclerosis Society. The Award is to salute Mr. Riemer for his volunteer services for Chapter members and for his pro bono efforts to make the procedures used for long-term disability insurance more equitable for those disabled by multiple sclerosis.

The Award will be presented at the Chapter's Annual Meeting and dinner to be held at the New York Marriott Marquis Hotel on January 12, 2009.

For more information about the NYC Chapter of the National MS Society, please click here: http://www.nationalmssociety.org/chapters/NYN/index.aspx

On December 2, 2008, Scott M. Riemer spoke at the ALI-ABA conference on "ERISA Benefit Litigation: From Pilot Life and Firestone to Glenn--Where are We Now." The conference was a Live Video Webcast from ALI-ABA's headquarters in Philadelphia, PA. Mr. Riemer represented the plaintiff's perspective on two ERISA litigation topics: "Procedural Nuts and Bolts;" and "Substantial Benefit Claims." Deidre A. Grossman, Esq. of Proskauer Rose LLP represented the defense perspective.

For more information on the conference, please go to the ALI-ABA website: http://www.ali-aba.org/index.cfm?fuseaction=courses.course&course_code=CP620

On November 3, 2008, Scott M. Riemer appeared as a Panelist at the NY, NJ and CT Regional Conference of the College of Labor & Employment Lawyers. The College is a non-profit professional association honoring the leading lawyers nationwide in the practice of labor and employment law. Mr. Riemer highlighted four paradigm shifts in ERISA law as a result of the Supreme Court's recent case MetLife v. Glenn:

1. Glenn describes a "combination-of-factors method of review" in order to determine whether a defendant has "abused its discretion." It does not describe the standard as the "arbitrary and capricious" standard of review. This represents a shift from the arbitrary and capricious standard of review, which has its basis in administrative law, to the abuse of discretion standard, which has its basis in trust law. This shift is important to claimants because trust law calls for much more scrutiny of a defendant's determination than administrative law.

2. Glenn establishes for the first time a priority of the competing goals and purposes of ERISA. Prior to Glenn, Courts have restricted discovery and judicial review on the grounds that extensive proceedings were inconsistent with ERISA's goals to: (a) avoid complex review proceedings; (b) avoid deterring employers from setting up benefit plans; and (c) allowing employers to administer their own plans. The Glenn Court held, "As to all three [of those goals] taken together, we believe them outweighed by Congress' desire to offer employees enhanced protection for their benefits." Courts will now focus more on protecting the rights of employees.

3. Glenn shifts the presumption that a tie goes to the defendant. Glenn holds that a defendant's conflict of interest could "act as a tiebreaker when the other factors are closely balanced." This is hugely important to claimants because in many of the cases that make it to litigation the other factors are closely balanced. Thus, instead of a victory in favor of defendant, Glenn supports a victory in favor of the claimant.

4. Glenn specified that there should be no "special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict." Prior to Glenn, the Courts established elaborate procedures for dealing with a defendant's conflict of interest. These rules often made it difficult for a claimant to present the insurer's conflict of interest as an issue in the case.

As a result of these paradigm shifts, the law will enter a period of uncertainty as the lower courts parse through what is still good law. Overall, however, Glenn appears to be very good news for claimants. Claimants will be provided with increased discovery and Courts will provide much closer scrutiny of insurance company determinations.