Long Term Disability Law Blog

On June 12, 2008, Scott M. Riemer will lecture at the 11th National Advanced Forum on Resolving Disability Insurance Claims & Litigation in Boston. 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 "Standard of Review in ERISA Litigation in Light of MetLife v. Glenn." MetLife v. Glenn, which will be decide by the Supreme Court this term, is expected to be the most important ERISA case in the last 20 years. Please take a look at ACI's website for more information, http://americanconference.com

Click here for a copy of the conference brochure:
Download file

Last year, Scott M. Riemer spoke at the 10th National Advanced Forum in Boston. The topic of his discussion at that conference was ""Developments in ERISA Claims Handling and Litigation."

On March 27, 2008, the NYC Chapter of the National Multiple Sclerosis Society filed an amicus curiae brief in the case of MetLife v. Glenn, now pending in the U.S. Supreme Court and waiting for oral argument on April 23, 2008. The brief of the Chapter was proudly filed on a pro bono basis by Riemer & Associates, LLC and Jonathan Feigenbaum.

MetLife v. Glenn is a potentially landmark case, which will address how much deference, if any, a court should give the determination of an insurance company that has an inherent conflict of interest, i.e., when the insurance company both decides claims and pays benefits.

The Chapter's brief argues that Article III of the Constitution requires that Ms. Glenn receive a de novo plenary proceeding; that granting any level of deference to the determination of a conflicted insurance company would constitute an unconstitutional relegation of judicial power.

A copy of the brief could be obtained by clicking here. Download file

New York has always been a regressive State for insurance claims. Not any more. On February 19, 2008, New York's highest Court issued a decision in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York that dramatically changed the legal landscape. An insured can now assert a claim against an insurance company for violation of an implied covenant of good faith and fair dealing. Therefore, if an insured can establish that the insurance company denial was in bad faith or that there was no reasonable basis for the denial, the insured can recover not only the insurance benefits at issue, but also reasonably foreseeable damages.

This new relief will help fully compensate plaintiffs when insurance companies improperly deny their claim for benefits. It will also help deter insurance companies from inappropriately denying meritorious insurance claims in the first place.

The Supreme Court agreed to hear MetLife's appeal in MetLife v. Glenn. This will perhaps be the most important Supreme Court decision in the area of long term disability claims in decades.

On January 18, 2008, the Supreme Court agreed to decide whether the arbitrary and capricious standard of review should be tempered or abandoned if the insurance company both decides the claim and pays the benefits. Right now, the Circuit Courts of Appeal have widely different standards. In the Second Circuit, where we practice, such a conflict has no impact on the standard of review. The standard of review is only switched if a plaintiff can demonstrate that the insurance company's conflict of interest in fact influenced the claim determination. Because that is extremely difficult to establish, no plaintiff has ever been able to switch the standard of review based on a conflict of interest. In other Circuits, such as the Third Circuit, the Court will apply a heightened standard of review in the event of an inherent conflict. In Glenn v. MetLife, the Sixth Circuit held that the District Court committed reversible error because it failed to take into account that MetLife was both decider and payor of the claim.

Given the existing standard in the Second Circuit, we are cautiously optimistic that no matter how the Supreme Court decides MetLife v. Glenn, plaintiffs within the Second Circuit will benefit.

HR2622 is an important Bill before Congress that deserves and needs your support. Any attorney representing claimants in long term disability cases could tell you that the playing field is slanted in favor of insurance companies. This is because in most cases under existing law an insurer's denial of disability benefits will be overturned by a Court only if the Court finds that the insurer's denial was arbitrary and capricious. Instead of looking at the evidence fairly, the Court will give the insurer's denial deference. Therefore, in order to win it is not just a question of proving that you are disabled, you must establish that the insurer's denial was arbitrary. This is extremely difficult to establish.

Recognizing the unfairness of the law, Congresswoman McCarthy has introduced House Resolution 2622. HR2622 would tell federal judges to look at the evidence "de novo." This means that the federal judge will be able to look at the case fairly, and not to give insurance companies an unfair advantage.

This Bill needs all the support it can get because the lobbying machine of all the insurance companies is working full time to defeat it. Click here to see a copy of the Bill: http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.2622:

What can you do? You can write your Congressman or Congresswoman to express your support. You could explain how you have been unfairly treated when you or a family member submitted your long term disability claim. It is very helpful for Congress to see specific examples of how the existing law treats individuals unfairly.

To find out the name and contact information of your Congressman or Congresswoman, please click here: http://www.house.gov/writerep/

On June 7, 2007, I lectured at the 10th National Advanced Forum on Resolving Disability Insurance Claims & Litigation in Boston. The conference is 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 my discussion was "Developments in ERISA Claims Handling and Litigation." Attending the conference are plaintiffs and defense lawyers as well as insurance company claims managers. Please take a look at ACI's website for more information, http://americanconference.com

Click here for a copy of the conference brochure:
Download file

Last year, Scott M. Riemer spoke at the 9th National Advanced Forum in Miami. The topic of his discussion at that conference was "Litigating ERISA Disability Claims: Applicability, Discovery and Other Critical Issues."

On February 7, 2007, I lectured at a Special Workshop on long term disability benefits held in the New York City offices of Friends in Deed. The title of the lecture was "Long-Term Disability Benefits in Danger: Disturbing Trends and Dirty Tricks. This was in conjunction with Per Larson, a financial planner. Friends in Deed is a nonprofit organization in New York City that serves as a crisis center for individuals suffering from life-threatening illnesses. Their website is located at www.friendsindeed.org.

At the workshop, I focussed on the top ten sleezy practices of disability insurance companies. They are:
1. Losing your documents.
2. Misrepresenting conversations with your doctor.
3. Cherrypicking your medical records.
4. Requesting Functional Capacity Evaluations that have no scientific validity.
5. Insisting on objective evidence of pain and fatigue.
6. Evaluating your claim solely on the basis of a "peer review."
7. Characterizing your occupation as sedentary and ignoring its cognitive demands.
8. Moving the goal posts.
9. Putting a wedge between you and your doctor.
10. Pressuring an insured to take a low lump sum settlement.

For more information on the sleezy practices of insurance companies, please see the obtaining benefits section of our website.