Long Term Disability Law Blog

On July 17, 2008, Scott M. Riemer will serve as a faculty member on a live webcast sponsored by the Practicing Law Institute. The topic of the webcast will be "A New Firestone Drill under ERISA: MetLife v. Glenn." Please take a look at PLI's website for more information. http://www.pli.edu/product/webcast_detail.asp?id=49490

On June 19, 2008, the Supreme Court issued its long awaited decision in MetLife v. Glenn. The Supreme Court held that Courts must consider an insurer's conflict of interest as one of the factors when deciding whether an insurer's determination was an abuse of discretion. Most importantly, the Supreme Court established that the conflict of interest may serve as a tiebreaker when the other factors are closely balanced. As a practical matter, this could have a huge impact. Prior to MetLife v. Glenn, close cases usually were decided in favor of the insurance company. Now, the opposite may prove true. Stay tuned. The next few years of litigation will be quite interesting.

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.

On October 24, 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.

Your long term disability claim case manager is not your friend, your advocate, or your confidant. Don’t be fooled. No matter how empathetic, how friendly or how helpful your case manager appears to be, your case manager is your adversary. What you say, can and will be used against you in not only your claim, but in any legal proceeding in the future. Be careful.

Insurance companies make money by collecting premiums, not by paying out benefits. Disability insurers are every bit as bad as the HMOs described in Michael Moore’s recent movie “Sicko.” They do everything they can to reduce the amount of benefits they must pay. One common tactic is to lull claimants into feeling safe and secure by assuring claimants that they are there to help—as if they were part of the team assigned to get the claimant through this difficult time.

What should you do? Be courteous and cooperative, but also be careful. Nothing you say is off the record. Everything you tell the case manager will be evaluated, i.e. could it help support a denial of your claim.

Because what you tell the case manager is so important, think about what you are going to say before each time you speak with case manager. If you are called at a bad time, ask the case manager to call you back when you had an opportunity to better gather your thoughts.

For more information on applications for long term disability benefits, please see the obtaining benefits section of our website.

Disability insurance companies will often ask you to describe a "typical" day. This is a trap for claimants who suffer from a condition with variable symptoms. If you have such a condition, you generally have "bad" days and "better" days. You may have days when you are feeling so bad that you must stay in bed all day, but you may also have days in which you could perform limited activities. You should tell the insurance company both what you can do on your worst days and what you could do on your better or best days. Be careful about the terminology that you use. Do not substitute "good" day for "better" or "best" day. When you describe a day as a "good" day it implies that on those days you are symptom free, which may not be the case.

If you fall into the trap of describing a "typical" day, the insurance company will often assume that that is what you could do on all of your days. Making matters worse, it has been our experience that most claimants who describe their "typical" day unwittingly describe what they could do on one of their "better" days. The insurance company is therefore not provided with any information on your symptoms on your "bad" days. This understates your claim, making it less likely that you will obtain disability benefits.

For more information on applications for long term disability benefits, please see the obtaining benefits section of our website.

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."

The success of a long term disability claim is dependent on proving that your symptoms are disabling. A diagnosis of a particular illness is not enough. You will need to establish that the symptoms that you suffer prevent you from performing the duties of your occupation. How do you do this? By submitting objective evidence, such as MRI's, SPECT scans and other test results; the opinions of your treating physicians, and by providing a statement explaining how your symptoms make you unable to do your job. We recommend that a claimant keep a contemporaneous diary of all symptoms. For instance, if you had a migraine headache on Monday, that should be put in your diary. If you could not get out of bed on Tuesday, that also should be placed in your diary, and so on and so on. By keeping a diary, you can be very specific. Specificity makes your symptoms more credible and allows them to be viewed and evaluated in context.

We also recommend that you bring copies of the new pages in your diary to each doctor visit so that the doctor puts it in your file. This enables the doctor to evaluate all of your symptoms, not just the ones you remember to mention at the visit. It also permits the doctor to keep more accurate treatment notes that reflect all of your current symptoms. This is very important for your claim because the insurance company will often review your doctor's notes as part of their evaluation of your claim.

For more information on applications for long term disability benefits, please see the obtaining benefits section of our website.

Scott M. Riemer appeared as the guest speaker at the membership meeting of the Greater New York Chapter of the Vasculitis Foundation held on May 17, 2007. Mr. Riemer addressed potential pitfalls claimants could face when applying for long term disability benefits, particularly with respect to the family of diseases comprising vasculitis. The following diseases comprise vasculitis:

* Behcet's Disease
* Buerger’s Disease
* Central Nervous System
* Churg Strauss Syndrome
* Cryoglobulinemia
* Giant Cell Arteritis (Temporal Arteritis)
* Henoch-Schönlein Purpura
* Hypersensitivity Vasculitis
* Kawasaki Disease
* Microscopic Polyangiitis
* Polyarteritis Nodosa
* Polymyalgia rheumatica
* Rheumatoid Vasculitis
* Takayasu’s Arteritis
* Wegener's Granulomatosis

For more information about vasculitis, please visit the website of the Vasculitis Foundation.