Long Term Disability Law Blog

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.

Your client's disability insurance company schedules a Functional Capacity Examination (FCE); what do you do? This is often a judgment call. On the one hand, an FCE almost always results in a bad result for your client. If your client is able to perform the tasks assigned, the examiner will pronounce that your client is not disabled. If your client is not able to perform the tasks, the examiner will pronounce that your client gave sub-maximal effort. On the other hand, if your client refuses to go to the FCE, the insurer will either terminate your client's benefits for failure to cooperate or will schedule an independent medical examination (IME). An IME is often harder to discredit later than the FCE. FCE's can often be discredited because: the protocol that they apply has not been subjected to peer review; asks claimants to perform tasks that are completely unrelated to their occupations; and are just downright unscientific. It is a great leap in logic to project from the ability to perform certain discrete physical tasks on one or two particular days to the ability to perform a full time occupation (that involves cognitive tasks and time pressures) on a consistent basis day after day.

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.