Click here for a copy of the conference brochure:
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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."

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

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.

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.

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.

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.

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.

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/

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."

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.

* 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.

If a decision is made to attempt to cancel the FCE, how do you approach the insurance company? There are two general strategies. First, consult the policy. Most LTD policies give the insurer the authority to request a physical examination by a physician, but make no mention of an FCE. You could argue that the insurer has no contractual right to request an FCE; an FCE is not an "examination" and it is generally not conducted by a physician. Second, consult with the claimant's treating physician. The physical tasks required by the FCE may be potentially harmful to your client depending on the nature of his or her disability. If the tasks are harmful, get a short note from the treating physician explaining why the tasks are potentially harmful to your client. It is has been our experience that the insurer will almost always cancel an FCE if you provide it with proof of potential harm.

If a decision is made to permit your client to attend the FCE, what do you do? If possible, arrange to either have someone videotape the FCE or to have a nurse be present who will take detailed notes of the FCE. This will not only help to keep the examiner honest, but could later be used to attack the conclusions of the examiner.

For more information about helping your client obtain long term disability benefits, please consult the obtaining disability benefits section of our website.

The most important question you must be prepared to answer is the following: Why were you able to work yesterday, but not today? This is easy to answer in the case of an accident, but not in the case of a progressive illness. Often, an individual becomes slowly and progressively more impaired until they reach a point when they just cannot work any longer. This must be explained to the insurer.

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

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.

On November 14, 2006, we successfully defeated CIGNA's attempt to prevent disclosure of its Book of Operating Knowledge. In the case of Levy v. INA Life Ins. Co. of New York, 2006 U.S. Dist. LEXIS 83060 (S.D.N.Y. Nov. 14, 2006), Judge Gerard E. Lynch denied CIGNA's motion. Judge Lynch explains:

The case for non-disclosure is further undermined by Department of Labor regulations requiring disclosure of procedures employed during claims processing as mandated under section 503 of ERISA. See 29 C.F.R. § § 2560.503-1(g)(1), (h)(2), (i)(5), (j)(5), and (m)(8). Indeed, the Department of Labor "has taken the position that internal rules, guidelines, protocols, or similar criteria would constitute instruments under which a plan is established or operated within the meaning of section 104(b)(4) of ERISA and, as such, must be disclosed to participants and beneficiaries." U.S. Department of Labor, "Frequently Asked Questions about the Benefit Claims Procedure Regulation," C-17, www.dol.gov/ebsa/FAQs/faq_claims_proc_reg.html. These requirements make plain that such claims-handling manuals, whether in whole or piecemeal, are likely to be disseminated widely to plan participants and to litigants challenging benefits denials. Under these circumstances, the effort to protect such materials as confidential is quixotic.

Obtaining CIGNA's Book of Operating Knowledge is often helpful because if CIGNA did not follow its own internal procedures a strong argument could be made that it failed to provide you with a full and fair review.