Disability Tag

I’m a Physician with a Disability—What Can I Do to Protect Myself?

As a physician, you’re trained to solve complex problems under pressure.  You have worked hard for your career, and probably never expected to have to stop working due to a disability.  Perhaps you applied on your own for those benefits and the insurance carrier denied your claim, or perhaps you’re beginning the process of applying for long-term disability insurance benefits.  What can cause highly educated medical professionals to lose their long-term disability appeals?

It’s not a lack of intelligence. And it’s definitely not because you’re “not really disabled.”

In my work representing physicians and other high-income professionals, I’ve seen a frustrating pattern: doctors who rightfully file for disability benefits are denied just as frequently (and sometimes more so) as people who are not trained in medicine.

Here’s what’s going wrong, and how you can protect your livelihood and your future.

•  Doctors are often treated on an informal basis by their colleagues

Any professional with a large network of trusted colleagues will turn to them first when something in their field goes wrong.  That’s a given, and I get it.  My father was a general practitioner from 1969 until 2021, when he passed away, and he was my first, and often only, phone call when I or my family had a medical concern.  However, these initial, informal phone calls and diagnoses don’t make it into your medical records.  So while you may have a months- or years-long history of seeking medical advice for your ailment, the medical records may look as though you just started treatment for a condition that has now become disabling.  My first task with any of my clients in the medical field is to request their complete relevant medical records, so that I can ascertain how supported their disability is within the records that the insurer will review.  And if those records are incomplete or sparse, I develop a strategy, through declarations, letters, or any other means, to make sure that the true course of treatment is documented in the long-term disability claim file.

• Insurers may use narrow definitions of “Disabled” for doctors

If you’re a surgeon who can’t operate anymore, that may seem clearly disabling to you. But your policy might say otherwise—especially if it’s a group policy through your hospital or medical group.

Many doctors are shocked to learn that their policy allows the insurer to deny benefits if they can do any work in a related field, such as consulting or teaching.

What to do: Get a copy of your full policy—not just the summary. A legal review by Springer Ayeni can help uncover how your “own occupation” is actually defined.

• Doctors may think it’s better to scale back to part-time rather than filing a disability benefit claim

In my experience, physicians and other professionals who have dedicated their lives to developing their expertise through education and practice, are incredibly determined to hang onto even part of their work rather than file a claim under disability insurance policies.  Why?  Because you have worked for your entire life to become a physician, and you may have even set that personal goal when you were just a child.  My father never retired as a physician, and even when he became frail and sick, he kept working, forsaking all else, until shortly before he passed.  For those of us who truly enjoy helping others in our profession, we may not even contemplate retirement, let alone leaving the practice much earlier than expected due to a disability.  

Unfortunately, long-term disability insurers often operate under what I have dubbed the “hit by a bus theory,” where one day you are fully capable of performing your job without limitation, then you get “hit by a bus,” and the next day you are disabled.  Most disabilities are not so straightforward, and many physicians continue working as long as they can with progressive disabilities,.  

If you have strived in your profession for years and years, then your medical condition causes you to lose some capacity, you might start by scaling back your hours, or switching to more administrative tasks.  Before making this kind of career move, please give me a call at 510-926-6768, so I can discuss the strategy of whether you might qualify for long-term disability benefits, and what the impact of switching job duties or reducing hours might be on an eventual disability claim.  

What to do:  Call me to discuss your disability and the terms of your benefit plan as soon as possible so that you can develop a strategy for whether, and how, you might either scale back your duties, file for disability benefits to replace your lost income, or both.  Ironically, disability insurers often scrutinize partial disability claims harder than total disability claims, seeming to punish those who have tried heroically to keep working despite disabling limitations.  I am here to help and advise, and I encourage you to let me help you make an informed decision about reducing your hours or filing a disability claim.

• Medical Records or Treating Physician Forms Alone Usually Aren’t Enough

Insurers don’t just want to know your diagnosis. They want to see how your condition limits your ability to perform your specific job duties.  In the ultimate “gotcha,” however, insurance forms for treating physicians to fill out either don’t ask the right question (“how”) or don’t leave enough room for your doctor to answer that question thoroughly.  Stating an ICD Code and a condition, like “long-COVID,” “Parkinson’s Disease,” “Mild Cognitive Disorder,” “Major Depressive Disorder,” or “Migraine,” etc., is insufficient to prevail on a claim for disability benefits.  You and your doctor need to explain how your condition affects your ability to specific tasks in your practice, such as stand during rounds, hold your arms in the correct position during surgery, respond adequately to emergencies, work a nightshift or be on-call, or manage a high-stress practice.

What I suggest:  Work with your treating doctor to create a detailed functional report—not just a chart note, by writing down a list of what specific job duties are affected by your disability, and going over that list with your treating physician.  It’s best if your medical records can be as detailed as possible about what you are unable to do at work. Also, the boxes on insurance forms are not a limitation!  Put in an asterisk and attach a supplemental page or 2 to submit as much helpful information as possible.

• Doctors Are Prime Targets for Surveillance

High-income professionals like doctors are often watched, because they are expensive claims for the insurer to pay. A short video of you walking, driving a distance longer than your restrictions permit, shopping in a store, or attending your child’s sports game can be twisted to argue you’re not truly disabled.

What to do:  Make sure all of your social media settings are set to “private.”  Be mindful of what you do in public and what your restrictions and limitations are.  Be honest in disclosing your actual activities on forms.  For example, if your physician has recommended exercise to improve your disabling conditions, make sure you state on your application or update forms what you do and why it was prescribed by your doctor.  If benefits have been denied, be sure to request and review all surveillance footage so that you can include context for what was actually happening on that day.  Judges ultimately appreciate context, and understand that there may be anomalous events that do not necessarily mean that you can return to the full-time practice of medicine.  While insurers may be looking for a “gotcha,” have faith that most judges are wise enough to see the big picture. 

• ERISA is brutally technical

The ERISA process has strict rules. You often get only one appeal to submit your evidence, and it must be submitted by a specific date or you lose your right to the claim.  Moreover, if you miss including key documents, you may not have the chance to get that evidence in front of the court if you later go to court.

What to do: Don’t wait until after your appeal is denied to consult a lawyer. The best time to get legal help is before you submit your appeal—when there’s still time to shape the record.  Reach out to me at www.benefitslaw.com or 510-926-6768 and I would be happy to discuss your specific issue with you in more detail.

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The Elephant in the Room: Can AI Really Handle Your ERISA Disability Claim and Appeal?

Why Turning to a Bot for Legal Advice Could Hurt Your Claim—And What You Deserve Instead

Let’s be honest: more and more people are asking AI tools like ChatGPT or Google’s Gemini how to appeal a denied disability claim before they ever think of calling a lawyer.

I get it. AI is fast. It’s available 24/7. It doesn’t require talking with a live person about the difficult details of your health.  And, of course, AI is free or low-cost.

But when your financial stability and health are on the line, you need to know the full truth: AI is not a substitute for experienced legal counsel.  In fact, trusting AI blindly could do more harm than good.

As someone who has spent 23 years representing clients in ERISA disability cases, I’m not here to bash technology.  There is much to gain from the efficiency of evolving technology and I am certainly not advocating AI abstinence.  I am here, however, to lay out the risks, differences, and reasons why having a compassionate, strategic, and knowledgeable attorney matters for something as critical to your financial health as your long-term disability benefits.

Why People Turn to AI—and Where It Falls Short

If you type into ChatGPT:

“How do I appeal a denied ERISA disability claim?”

You’ll probably get something like this:

“Request your claim file. Review the denial letter. Submit additional medical evidence. Write an appeal within 180 days.”  You might even get general “advice” about including medical records and statements in support of your appeal.  However, even AI knows its own limitations.  A common Bot disclaimer goes something like this:

“Generative AI features are not intended for professional advice. Do not use generative AI features to seek or provide legal, medical, financial, or other kinds of professional advice or any opinions, judgments, or recommendations without conducting your own independent consultation or research. Generative AI features cannot replace advice provided by a qualified professional and do not form any such relationship (e.g., attorney-client relationship).” (https://www.adobe.com/legal/licenses-terms/adobe-gen-ai-user-guidelines.html)

Even tech giants know that the disclaimer is necessary because AI advice is not strategic, not confidential, not detailed, and, in fact, is dangerously simplistic.

For example, AI does not, and cannot, analyze whether your plan’s language requires a de novo or abuse of discretion standard of review in court; whether the facts of your case meet the definition of disability under your plan language; whether the insurer has disclosed all required information in its claim file; whether there is evidence of biased claims handling in your file; whether the insurer has calculated offsets accurately in your case; what evidence in the claim file needs to be rebutted in an appeal; what the likelihood of settlement and possible settlement amount in litigation might be.  The list goes on and on.  These are the kinds of distinctions that change the outcome of a case—and they’re not in an AI’s toolbox.  

The bottom line: AI gives you non-confidential general advice.  Springer Ayeni gives you a legal strategy based on decades of experience handling ERISA long-term disability cases.

AI “Hallucinations” and Fake Law: A Dangerous Trend

AI tools are known for hallucinating legal citations—that is, making up case law that sounds real but isn’t. See https://hai.stanford.edu/news/ai-trial-legal-models-hallucinate-1-out-6-or-more-benchmarking-queries  I’ve read up on examples of how AI will generate completely fictitious case references and quotes from decisions that don’t exist.  This isn’t just sloppy, it’s dangerous.

First, if you submit an appeal letter to an insurer or judge citing bogus cases, you undermine your credibility.  Second, insisting that there are cases in your favor when you reach out to an attorney, when those cases are entirely fictious (unbeknownst to you), will make an attorney hesitant to offer to represent you.  Attorneys and their clients should be on the same team at all times. Most importantly, you won’t even know when AI has done you dirty with a fictitious citation, because it often sounds right and the wrong cases are mixed right in with actual cases.  

The bottom line: Legal writing is not just writing. It’s advocacy, precision, and ethics.  AI is still a baby in the world of law, and cannot be trusted to do actual legal research.

AI Is NOT Confidential, and that Can Put You at Risk

AI is not a lawyer. It doesn’t form an attorney-client relationship, as all of the tech User Guidelines state. That means: 

1. There is no legal confidentiality. What you input may be stored, analyzed, or even discoverable later.  
2. You might waive privilege by sharing facts about your medical condition, employment, or insurer.  Moreover, AI remembers your input from search to search, so even if you don’t share all the facts in one session, it may know a lot more about you, your condition, your family, your history, your dreams, and your goals from all of the data you have input in previous searches.
3. There is no duty of loyalty. AI doesn’t protect your interests—it just completes a task.  For example, when Chat GPT conversations are shared, Google produces those conversations as “results” upon a simple search.  See https://cybernews.com/ai-news/chatgpt-shared-links-privacy-leak/ 

As an attorney, I never input confidential client information into AI platforms. Doing so risks ethical breaches and the security of your case. Some lawyers are misusing AI and unknowingly exposing clients. That’s not how I work.

If I use AI at all, it’s only for mundane administrative tasks—not for case strategy, legal analysis, or communication. 

The bottom line: Your trust is sacred. And your privacy is non-negotiable. AI will not protect you and advocate for you like a good attorney will.

A Real Appeal Tells the Real Story—Not Just the Medical One

An AI might focus only on lab results and doctor notes. But I know that winning a disability appeal requires telling your whole story, not just summarizing medical visits.  It also requires understanding the law and how it applies to the facts of your case, and being able to spot and rebut flaws in the insurer’s claims handling and medical reviews.

I listen for and translate the truths that often don’t make it into a medical file, like how your fatigue crashes your productivity by noon, or how your brain fog makes multi-step tasks impossible not just at work but in your everyday life, or how your anxiety prevents you from completing your tasks efficiently, or even how you have good days and bad days, requiring you to rest for days if you have over-exerted yourself on a good day.  

I draw out the details of your daily life, your work history, and your limitations, and I explain them clearly and persuasively to the insurance company. This isn’t something a chatbot can do. It takes time, training, empathy, experience, and sound judgment.

The bottom line: I’m not just reviewing records. I’m building your narrative, filling gaps in the file, rebutting arguments, and fighting for your future.

AI Can’t Show Up for You. I Will.

Some pundits say AI will replace lawyers. I do think that technology can make lawyers more efficient at administrative tasks that take away from time spent on actual cases.  However, the best lawyers, those who listen, advocate, strategize, work as a team with their client, and ultimately are successful in cases, cannot ever be replaced by a bot.   Technology will evolve, but compassion, reputation, and results still matter.

When you retain me, you’re not getting a script. You’re getting:

• 23 years of ERISA disability experience
• Strategic, circuit-specific legal knowledge
• A reputation for success and tenacity among colleagues, insurers, and opposing counsel
• A teammate who sees you as more than a claim number
• A fierce advocate who will not ignore you or reduce you to a piece of datum that will influence future actions

The bottom line: You deserve someone who understands not just the law, but the weight of what’s at stake. You deserve someone who knows how to get results and treats you with dignity along the way.

Final Word: Don’t Trust a Bot with Your Livelihood

AI has its place, but not as your attorney. Not when your disability benefits, your financial survival, and your mental and physical health are on the line.

Before you go down a rabbit hole of chatbot answers, talk to someone who’s been through this hundreds of times, someone who won’t hallucinate law, who respects your privacy, and who knows how to win an appeal, not just write about it.

Contact Springer Ayeni today. Let’s protect what matters most—your income, your dignity, your future.

Springer Ayeni: Compassion. Reputation. Results.
www.benefitslaw.com

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How to Apply for Long-Term Disability When You Stop Work

By Cassie Springer Ayeni
You never thought it would happen.
You thought you would work until retirement or beyond, but then along came your vestibular disorder. Now, focusing on a computer screen is a challenge; someone has to drive you to work; walking is a safety hazard; and your concentration is not what it used to be. All of these symptoms can interfere with your ability to do the material duties of your occupation, and can make an attempt to get through a workday exhausting and frustrating as you struggle to complete tasks that used to be easy for you. You
see your doctor and she tells you the time has come to stop working due to your disability. Now what? How will you live without your income? Here are some options and a plan:THERE ARE SEVERAL SOURCES FOR DISABILITY BENEFITS Besides savings (and it is almost unheard of for someone in the prime of her
working life to have sufficient savings to live decently for the rest of her days), income sources for people with disabilities include:
1.Short-term disability insurance benefits through your employer (these usually last for 6 months).
2.Long-term disability insurance benefits through your employer (these usually start after 6 months and can last until retirement age).
3.Private disability insurance plans (insurance you purchased for yourself that can last through retirement age or beyond).
4.State disability insurance (usually lasts for a year, such as through California’s Employee DevelopmentDepartment “EDD”).
5.Social Security Disability benefits (SSDI) (available after being disabled for 6 months and lasting through retirement age).
6.Workers’ Compensation benefits (if your disability is due to a work-related injury).
In this article we will focus on the first two of these income sources: short- and long-term disability benefit plans offered by your employer. (See VEDA’s other articles on how to apply for SSDI.)Many employers offer group disabilityplans to their employees because the premiums are low and they can be a huge benefit to employees struck with a disability, whether short- or long-term. These benefits are usually paid by insurance companies such as Unum MetLife, Hartford, Principal, Standard, Cigna/Lina, Guardian, Sun Life, and others.A complex area of law called ERISA (the Employee Retirement Income Security Act) governs these employee benefit plans, even though you apply to an insurance company for payment of the benefits. Under ERISA, there are technical rules governing timelines for the insurance company to decide whether to pay your claim. It is a good idea for you to get help with your disability application and, of course, with an appeal of any denials.

Important Tip: Even though you have a disability plan through your employer, you can still apply for all of the other disability benefits listed
above. However, the benefits are usually coordinated so that you only receive a fixed percentage of your salary altogether, usually 2/3 of yourprevious income up to a maximum benefit per month.

YOUR DOCTOR’S ROLE
Many people with vestibular disorders have a long-standing relationship with a supportive doctor. This relationship is instrumental to getting your disability benefit claims approved. Please make sure that your doctor knows how important it is that she fills out forms promptly so that your income stream can continue while you are not working. Here are some key tips for the “Attending Physician Statements” that you submit to the insurance company.
Tip #1:
Your doctor should answer the question “why is the patient disabled now?” especially if you have been struggling to work while symptomatic fora while. Did it worsen? Have your attempts to keep working caused a decrease in your performance? Is the fatigue from managing your symptoms getting the best of you, causing you to nap during the day? Are the symptoms interfering with your ability to perform the activities of daily living, such as preparing meals? Ask your doctor to be specific and make sure this is in your medical record.
Tip # 2:
One of the areas of misunderstanding with “invisible disabilities” like vestibular disorders is that a successful claim must depend on your report of “subjective” symptoms in addition to any objective tests. For the subjective symptoms to be deemed reliable by an insurance company, your
doctor should point out that you are credible in your symptom reporting. When your doctor notes this, it helps prevent the insurance company from doubting your credibility, an unfortunately common reality when insurance companies are looking for a way to cut costs. A good way to keep track of these symptoms is by keeping a log to share with your doctor: when you are nauseous or have a headache or a bout with vertigo, write it down in a log with a symbol for each symptom, then bring the log to every medical appointment.
Tip # 3:
If you have symptoms that can be objectively documented by testing, please get those tests done as soon as possible. For example, if you have concentration or other cognitive difficulties, ask for a referral for a neuropsychological examination, which provides objective evidence of those
symptoms.

Tip # 4:
Regularly schedule check-ups. Even if you have been relatively stable, it is a good idea to see your doctor at least every 6-12 months. This helps demonstrate to the insurance company that you are under the regular care of an attending physician. Insurance companies typically request medical records every 6-12 months.
Tip # 5:
If you don’t already have an ERISA lawyer, you might want to check in with one now. Your lawyer can work with your doctor to get the forms filled out the right way the first time.SUBMITTING THE APPLICATION Finally, your doctor has told you that resting without working is in the best interest of your health. You have agreed and have decided to apply for benefits.
Here is a checklist:
1.Request the short – and long-term disability application forms from your Human Resources (HR) department.
2.Request a copy of the short- and long-term disability policies from HR.
3.Take a stab at filling out the application forms, but do not feel limited to the boxes on the forms. If you need extra space, include an addendum. If the question on the form doesn’t really apply to you, modify the question and answer tostate what needs to be said about why you are disabled.
4.Make sure that your employer knows they will have to fill out a form verifying your income and job duties.
5.If it’s too overwhelming, ask an ERISA attorney to check your work to make sure that your application gives you the best shot at success.
6.If your application is denied, you should never attempt to appel on your own without the benefit of some legal advice.

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Medical Professionals Who Have Disabilities: Why I Like to Help

By Cassie Springer Ayeni

cassie@benefitslaw.com

www.benefitslaw.com

 

I’ve developed a bit of a niche within my specialization of employee benefits (ERISA) law: I have helped numerous medical professionals secure their partial or complete disability benefits. My clients have been OBGYNs, family medicine practitioners, physical therapists, PICU M.D.s, gastroenterologists, specialized nurses, and more. I wonder: do I gravitate to them or do they gravitate to me?

I’ve always been a money saver, and to further that goal I started working during summers and after school when I was 13 years old. One of my favorite teen jobs was in the file room of my father’s medical office. I would take slips of dictation and put them into the right patient’s file, skimming the details and, without knowing it, becoming familiar with medical terminology and the fascinating process of diagnosis. I loved reading the symptoms, findings, and conclusion that came from every interaction and examination.  I got a lot of paper cuts, but I also learned early lessons in medical analysis and interpretation.

My father is one of a dying breed in the world of medicine: a jack of all trades. He’s a family practitioner, and in the 1970s he even used to deliver babies. He performs and assists on surgeries, sees people of all ages, and is loved by his patients. I am the middle child of the 6 he fathered, and he once told me he thought I would take over his practice someday. But I excelled in writing, not chemistry, and my passion for analysis fell to the pages of Jane Austen and later Supreme Court cases, not to Gray’s Anatomy.

Yet here I am, 15 years into a career that involves reading and interpreting medical records every day, just as I did in my father’s office so many years ago. This time, though, I am reading these records for evidence in support of my client’s employee benefits disability claim against an insurer. I have read through hundreds of thousands of pages of medical records in my career, MRIs, CT Scans, labs and more, figuring out medical shorthand along the way, to make arguments to insurance companies and courts about why the medical evidence demonstrates a lack of work capacity.

Maybe it’s this familiarity with the tools of the trade that has resulted in a plethora of medical professionals as clients: I respect their craft and understand the tip of the iceberg, so I am particularly eager to help these clients out when a disability causes them to cut back their duties or stop working altogether. Whatever the reason, I certainly enjoy representing doctors and nurses, and I feel so fulfilled when one of my medical professional clients recommends a colleague connected to her/him. And by the way, my father is 75 years old and still working nearly full-time as a physician. Life Goals.

Cassie Springer Ayeni is the President of Springer Ayeni, A Professional Law Corporation, in Oakland and San Jose, California. She focuses on representing people in ERISA disability and life insurance cases. She can be reached at cassie@benefitslaw.com or www.benefitslaw.com

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Reforming Disability Claim Procedures Under ERISA

On Dec. 19, 2016, the U.S. Department of Labor published in the Federal Register sweeping reforms to the regulations it issues under Section 503 of the Employee Retirement Income Security Act, aimed at eliminating bias in the ERISA disability claims and review process.

Despite ERISA’s reputation as an erudite law affecting primarily pension plans, the DOL reports that, “An empirical study of ERISA employee benefits litigation from 2006 to 2010 concluded that cases involving long-term disability claims accounted for 64.5 percent of benefits litigation whereas lawsuits involving health care plans and pension plans accounted for only 14.4 percent and 9.3 percent, respectively.” (p. 3.) Hence the DOL’s decision to take aim at the regulations affecting disability plan administration, which is typically handled by insurance carriers.

The DOL noted “the economic incentive for insurance companies to deny otherwise valid claims and because plans are often able to secure a deferential standard of review in court.” (p. 8.) Although the DOL received commentary that disability claims administrators should not be subject to the same rigorous regulations issued under the Affordable Care Act to health plan administrators, “the department views enhancements in procedural safeguards and protections similar to those required for group health plans under the Affordable Care Act as being just as important, if not more important, in the case of claims for disability benefits.” (p. 10.) It noted the need for transparency and accountability in all claims handling. (p. 11.)

The department enhanced protections for disability plan participants in eight ways (pp. 11-12):

Increased independence and impartiality of the decision makers

Adverse decisions must fully explain the reasons for the denials and why evidence of the claimant was disagreed with

Notification to claimants of the right to obtain their claim file and other documents before a final decision is made and to present testimony and other evidence in support of their claim

Provision of an opportunity for claimants to respond to adverse medical opinions before a final decision is made

A guarantee that a claimant can proceed to litigation if the administrator fails to comply with the DOL regulations (stricter than “substantial compliance”)

A guarantee that a rescission of coverage triggers appeal rights under the regulations

Cultural and linguistically appropriate requirements for communications

A requirement that the notice of an adverse benefit determination on review must include a description of any applicable contractual limitations period and its expiration date (p. 54)

But perhaps the biggest protection is the first, requiring impartiality not just in claims decision makers, but also in vocational experts, medical consultants and in-house medical reviewers. (pp. 13-15.) And the DOL understood and took issue with the notion that impartiality could be achieved if the administrator, for example, hires a company who then hires the medical expert for review. It stated: “The text of the rule does not limit its scope to individuals that the plan directly hires. Rather, the rule’s coverage extends to individuals hired or compensated by third parties engaged by the plan with respect to claims.” (p. 15.) It cautioned that such a prohibition should not temper a court’s inquiry into the neutrality of the expert, noting the availability of discovery to probe such matters. (p. 16.)

The DOL further disabused the insurance practice of rejecting experts that would support an approval of benefits in favor or experts that would support denial as inappropriate “expert shopping.” (p. 20.) It found that “[r]equiring plans to explain the basis for disagreeing with experts whose advice the plan sought” should help that problem. (p. 20.) The department couched the requirement to explain disagreement with medical and vocational professionals in denying a claim “as a matter of basic fiduciary accountability.” (p. 22.)

Regarding Social Security disability awards, the department was careful to specify that although it does not expect administrators to defer to a favorable Social Security disability determination, “a more detailed justification would be required in a case where the U.S. Social Security Administration definitions were functionally equivalent to those under the plan.” (p. 25.) It refused, however, to adopt the “treating physician rule” present in Social Security decisions, where the administrator must defer to the opinion of the treating physician. (p. 25.)

The department vigorously defended its decision to allow claimants to review and rebut evidence that would be used to deny a claim. Commenters argued that claimants could provide an endless loop of evidence supporting a claim that the administrator would have to rebut endlessly as well. The DOL dismissed that argument as contrary to fiduciary obligations: “The fiduciary obligation to pay benefits in accordance with the terms of the plan does not require a fiduciary to endlessly rebut credible evidence supplied by a claimant that, if accepted, would be sufficient to justify granting the claim. In fact, an aggressive claims-processing practice of routinely rejecting or seeking to undermine credible evidence supplied by a claimant raises questions about whether a fiduciary, especially one operating under a conflict of interest, is violating the fiduciary’s loyalty obligation under ERISA to act solely in the interest of the plan’s participants and beneficiaries.” (p. 37.)

Controversially, the department approved a “tolling” of timelines for responding to claims and appeals where the claimant submits additional evidence for the administrator to consider. “In the department’s view, the current disability claims regulation ‘special circumstances’ provision permits the extension and tolling expressly added to the group health plan rule under the ACA claims and appeals final rule.” (p. 40.) It remains to be seen if this will deny claimants swift access to the courts or even allow a statute of limitations to expire while tolling is in place. See Heimeshoff v. Hartford Life & Accident Insurance Co., 134 S.Ct. 604, 611 (2013). Perhaps in anticipation of this conundrum, the department addressed the potential problem raised by the Heimeshoff decision where a statute of limitations could expire while a participant was engaging in the mandatory review process prescribed under ERISA Section 503. It stated:

First, Section 503 of ERISA requires that a plan afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review of that decision by 53 an appropriate named fiduciary. The department does not believe that a claims procedure would satisfy the statutory requirement if the plan included a contractual limitations period that expired before the review was concluded …

A limitations period that expires before the conclusion of the plan’s internal appeals process on its face violates ERISA Section 503’s requirement of a full and fair review process. A process that effectively requires the claimant to forego the right to judicial review and thereby insulates the administrator from impartial judicial review falls far short of the statutory fairness standard and undermines the claims administrator’s incentives to decide claims correctly. (pp. 52-53.)

It further stated that a contractual limitations period that does not permit a lawsuit after the conclusion of an administrative appeal “is unenforceable.” (pp. 53-54.) In an effort to provide transparency, the department will now require administrators to state any contractual limitations period “including the date by which the claimant must bring a lawsuit” in a final adverse decision. (p. 53.)

However, the department did not provide much leeway for plan administrators to avoid litigation for failing to comply with the regulations. In fact, for the administrator to argue failure to exhaust administrative remedies despite noncompliance, the administrator’s failure to comply must be all of the following: “(1) de minimis; (2) nonprejudicial; (3) attributable to good cause or matters beyond the plan’s control; (4) in the context of an ongoing good-faith exchange of information; and (5) not reflective of a pattern or practice of noncompliance.” (p. 42.)

The department refused to provide a general rule on the level of deference an administrator would receive from a reviewing court, but did indicate that where the administrator’s noncompliance has resulted in a claim’s deemed exhaustion, the “legal effect of the definition may be that a court would conclude that de novo review is appropriate because of the regulation that determines as a matter of law that no fiduciary discretion was exercised in denying the claim.” (pp. 43-44.)

 

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PRACTICE GUIDE: ERISA ISSUE SPOTTING – HOW TO AVOID MALPRACTICE

ERISA. The acronym strikes terror in the heart of many a lawyer. Fuzzy notions of fiduciary duties, equitable remedies in the days of a divided bench, and preemption can cause even the most erudite of attorneys to break into a cold sweat. My friends: speaking as someone who has handled ERISA claims, litigation, and appeals for 15 years, I’m here to tell you that it is really not that bad! Allow me to walk you through some ERISA basics so that you can issue spot and avoid malpractice.

ERISA Fundamentals

The Employee Retirement Income Security Act of 1974 (ERISA) provides minimum standards for voluntarily established benefit plans in the private industry. In addition to pension plans, ERISA governs health and welfare benefit plans, including employer-sponsored disability and life insurance plans. ERISA does not cover benefit plans established or maintained by governmental entities, churches for their employees, or plans which are maintained solely to comply with applicable workers compensation, unemployment, or disability laws. This means that UC plans are non-ERISA (government) plans, but an employer’s benefit plans are governed by ERISA.

ERISA requires plans to provide participants with plan information. ERISA § 104(b)(4). Those who manage and control plan assets must act as fiduciaries. ERISA § 404. ERISA plans must have a grievance and appeals process for benefit claims. ERISA § 503. The process of appealing a denied benefit claim is also called a “request for review,” and is crucial to achieving success on a denied benefit claim, either with the administrator or before a federal court. TIP: There is a 180-day deadline for submitting ERISA appeals that CANNOT be missed. Finally, ERISA gives participants and beneficiaries the right to sue for benefits and breaches of fiduciary duty. ERISA § 502(a). Lawsuits related to or remedied by ERISA are brought in federal district court. Statutes of limitations are often identified in the ERISA plans themselves and must be adhered to.

ERISA Preemption

ERISA has broad preemption provisions. ERISA § 514. If a remedy is available under ERISA, the claim will be preempted. If a case “relates to” an ERISA plan because there is a “connection with or reference to” a plan, the case will be preempted. Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739. For example, in Ingersoll-Rand Co. v McClendon, the Supreme Court held that a wrongful discharge action was preempted by ERISA because the plaintiff alleged that the wrongful termination was primarily because of the employer’s desire “to avoid contributing to, or paying benefits under, the employee’s pension fund.” 498 U.S. 478, 483 (1990). However, in another case, the Supreme Court determined that California’s prevailing wage law is not preempted by ERISA because the law does not “make reference to” ERISA plans, nor does it have a connection to an ERISA plan because “[t]he prevailing wage statute alters the incentives, but does not dictate the choices, facing ERISA plans.” California Div. of Labor Standards Enf’t v. Dillingham Const., N.A., Inc., 519 U.S. 316, 328, 334 (1997).

As a general rule, if the alleged harm is that the unlawful conduct interfered with a right to receive, vest in, or accrue an employee benefit, then the claim will be preempted. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (preempting a common law wrongful discharge claim where the claim was that the employer retaliated to prevent vesting in an ERISA plan). TIP: If you are concerned that your case will be pre-empted by ERISA, avoid alleging that any remedies are available under any kind of employee benefit plan or that any claims bear a connection to an employee benefit plan. Do NOT allege that the bad behavior caused a loss of employee benefits. Do NOT allege that the bad behavior should result in payment of disability or other ERISA benefits. These allegations will cause you to be removed to the federal courts that have exclusive jurisdiction over ERISA claims. And, if the claim is properly an ERISA claim for benefits, then there will be no consequential or punitive damages available, nor will there be a jury trial.

However, ERISA’s “savings clause” provision saves from preemption any law that regulates insurance, banking, or securities. ERISA § 514(b)(2)(A). An example of the application of the savings clause is in California’s “notice prejudice” rule, which provides that claims can proceed even where there is late notice unless the insurer is prejudiced by the late notice. Because this is a law that regulates insurance and does not provide a remedy that conflicts with ERISA, the law is not preempted. UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 373, 119 S. Ct. 1380, 1389, 143 L. Ed. 2d 462 (1999).

ERISA Long-Term Disability Cases

While most people are familiar with ERISA governing pension plans, 80% of all ERISA litigation is actually over denied long-term disability (LTD) benefits.

What is the LTD benefit?

Employer-sponsored LTD plans, also known as “group” disability insurance plans, generally provide benefits after 6 months of disability until retirement age. The benefit is typically 2/3 of pre-disability earnings. Unlike private disability plans, almost all ERISA LTD plans will offset other income or benefits including severance, workers’ compensation, Social Security Disability, state disability, and even retirement benefits received. TIP: if you are negotiating a settlement for your client, be sure that it cannot be characterized as an off-settable source of income to the ERISA LTD benefits, or the client will essentially have to hand over the settlement funds to the ERISA LTD insurer.

Example of a severance that will likely be offset 100%: “After the Separation Date, EMPLOYEE will receive payments from EMPLOYER totaling $65,000, constituting salary continuation, accumulated sick leave, lost wages, and severance pay.”

Example of a severance that will not likely be offset: “After the Separation Date, EMPLOYEE will receive payments from EMPLOYER totaling $65,000 as consideration for waiving the claims specified herein. This amount does not constitute salary continuation, accumulated sick leave, lost wages, or severance pay.”
If it is impossible to avoid the triggering language, just leave out the description as a last resort.

When Is Someone Disabled?

Many ERISA LTD plans have an “own occupation” standard of disability that shifts to an “any occupation” standard of disability after 24 months. In other words, after 24 months, the claimant has to be disabled from any occupation given her education, training, experience, and station in life, to continue to receive LTD benefits.
Many ERISA LTD plans also have a 2-year limitation for certain conditions. Common limitations include mental illnesses, “self-reported” conditions, neuro-musculoskeletal disorders, chronic fatigue conditions, chronic pain conditions, allergies, and chemical sensitivities. TIP: if you are working with a disabled client’s physicians and there are also emotional distress issues, be aware that the mental health component should be listed as secondary to the physical component of the disability to avoid the 24-month mental health limitation in the ERISA LTD plan.

Types of Plans

There are two types of ERISA LTD Plans: insured and self-funded. With self-funded plans, the employer sets aside funds for qualified participants. Because the risk of payment lies with the employer, usually big employers like AT&T or Johnson & Johnson are the only employers providing self-funded plans. With these plans, non-preempted state law insurance protections do not apply. With insured plans, the employer purchases an insurance policy to provide disability benefits to its. Often, the insurer both decides liability and pays the benefits. The Supreme Court recognizes this as a structural conflict of interest. Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008). In my experience, some insurers are better than others. Standard Insurance currently has the worst definition of disability, limiting so many conditions to 24 months that it shocks me when someone is eligible for benefits beyond two years; Liberty Mutual is particularly cantankerous in litigation.

POP QUIZ!

Time for some ERISA issue spotting!

1. If someone has a disability or other employee benefit claim, does ERISA govern if the employer is:
A: A private company?
B: Government (U.C., federal employee, state employee, public school teacher)?
C: A partnership that covers both partners and employees?
D: A private company where there are only owners but no employees?

Answers: A: Yes; B: No; C: Yes; D: No (there must be an employee covered as well for ERISA to govern)

2. If someone has been disabled from her “own occupation” for 24 months, then the plan switches to an “any occupation” standard of disability, is she still entitled to benefits where she is:
A: a lawyer with bipolar disorder who is told by the insurer to go get a job as a manual laborer?
B: a construction worker who has a high school education but who also has lifting restrictions, where the insurer tells her to go get a job as a receptionist for a construction company?

Answers: A: No (not appropriate given education, training, experience, and station in life); B: Yes (as long as the salary matches her station in life)

3. What allegations will be preempted by ERISA?
A. Discrimination caused the employee to lose accrual of retirement benefits.
B. Emotional distress resulted from denied disability claim.
C. Employee was not paid fair wages.
D. California’s “notice prejudice” rule trumps an ERISA Plan’s claim filing deadline.

Answers:
A: Preempted – remedy of restored retirement conflicts with ERISA’s remedy for a breach of fiduciary duty claim. Ingersoll-Rand Co. v McClendon, 498 U.S. 478, 483 (1990);
B: Probably preempted: one court has recently held that emotional distress claims, if they are independent from the lost benefit claims, can proceed in state court. Daie v. The Reed Grp., Ltd., No. C 15-03813 WHA, 2015 WL 6954915, at *3 (N.D. Cal. Nov. 10, 2015) (“Our defendants’ duty not to engage in the alleged tortious conduct existed independent of defendants’ duties under the ERISA plan.”);
C: Not preempted: California Div. of Labor Standards Enf’t v. Dillingham Const., N.A., Inc., 519 U.S. 316, 328, 334 (1997);
D: UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 373, 119 S. Ct. 1380, 1389, 143 L. Ed. 2d 462 (1999).

A Final Tip: Don’t Waive Your Client’s ERISA Claims in a Severance Agreement

Finally, many clients call me after having accepted a “standard” severance agreement from their employer, where they unknowingly waived their ERISA disability claim rights. Oops! While ERISA pension claims vest and cannot be waived, the same is not true for ERISA health and welfare claims, including disability claims. Please be sure that your clients do not waive their ERISA rights, as their disability and life insurance plans in particular may be far more valuable to them than the severance itself. Employers are generally willing to agree to carve out ERISA disability and life insurance claims once they understand the ramifications.

Example of a good ERISA carve-out: … However, the following claims are specifically and expressly excluded from the foregoing Release: (i) health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA); (ii) claims with respect to benefits, including short- and long-term disability benefit benefits, under a welfare benefit plan governed by the Employee Retirement Income Security Act (ERISA); or (iii) claims with respect to vested benefits under a retirement plan governed by ERISA.

If you ever have a question about how to navigate ERISA’s tricky waters, call an experienced ERISA attorney. Us ERISA nerds are typically happy to field questions and co-counsel if you find yourself in over your head. I can be reached at cassie@benefitslaw.com if you have any questions. You can also find more information about ERISA on the Department of Labor’s Employee Benefits Security Administration (EBSA) website, at https://www.dol.gov/ebsa/.

Cassie Springer Ayeni is the President and Founder of Springer Ayeni, A Professional Law Corporation, in Oakland, CA, where she focuses on ERISA disability and life insurance cases. She can be reached at cassie@benefitslaw.com or www.benefitslaw.com

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Can you get benefits when Lyme disease forces you out of your job?

By Cassie Springer Ayeni

It happens:  You’ve been working with Lyme disease for years and stumbling along.  Some days/months are better than others, but you’ve been determined to keep working in a career you love.  But then, gradually, it all becomes too much.  You’re not bouncing back as well. Even though you rest from the moment you get home until when you leave for work the next day, giving up social engagements, relying on others to pick up the kids, and getting take-out dinners more than you would like, you are still struggling to get through the workday.

You see your doctor and she tells you the time has come for you to take some time off of work and focus on getting better. You are disabled from working. Now what? How will you live without your income? Here are some options and a plan.

 

1. There Are Several Sources for Disability Benefits

Besides savings (and it is almost unheard of for someone in the prime of her working life to have sufficient savings to live decently for the rest of her days), income sources for people with disabilities include:

• ERISA-governed employee benefit plans (short-term disability then long-term disability). Long-term disability usually starts after 6 months and can last until retirement age.
  • These benefits are usually tax-free if you paid the premiums with your after-tax earnings, but taxable if your employer paid the premiums.
• Private disability insurance plans (also lasting until retirement age).
  • These benefits are usually not taxable.
• State disability insurance that usually last for a year (like California’s EDD).
  • These benefits are usually not taxable.
• Social Security Disability Benefits (available after being disabled for six months and lasting through retirement age).
  • These benefits are sometimes taxable, depending on your household income.

Here, I will focus on the first prong of these income sources:  short- and long-term disability benefit plans offered by your employer. Many employers offer these group disability plans to all of their employees because the premiums are low and they can be a huge benefit to employees struck with a disability, whether short or long-term. Some employees never even realize that these benefits are in place, so be sure to check with HR or review your handbook as you are preparing to go out on disability.

However, a complex area of law called ERISA (the Employee Retirement Income Security Act) governs these employee benefit plans, even though you usually apply to an insurance company for payment of the benefits. Under ERISA, there are technical rules governing timelines for the insurance company to decide whether to pay your claim.

Even though you have a disability plan through your employer, you can still apply for all of the other disability benefits listed above. However, the benefits are usually coordinated so that you only receive a fixed percentage of your salary altogether, usually 2/3 or 60%.

 

2. Your Doctor’s Role

Most people with Lyme disease have a long-standing relationship with a supportive doctor.  This is instrumental to getting your disability benefit claims approved. Please make sure that your doctor knows how important it is that she fills out forms promptly so that your income stream can continue while you are not working. Here are some key tips for the “Attending Physician Statements” that you submit to the insurance company.

• Your doctor should answer the question “why is the patient disabled now?” especially if you have been working with Lyme disease for a while. Did it worsen? Is the fatigue getting the best of you? Is it now interfering with your ability to perform the activities of daily living, such as preparing meals? Ask your doctor to be specific and make sure this is in your medical record.
• Your doctor should point out that you are credible in your symptom reporting. When your doctor notes this, it helps prevent the insurance company from doubting your credibility, an unfortunately common reality when insurance companies are looking for a way to cut costs.
• Regularly schedule check-ups. Even though your condition may not get better with treatment, it is a good idea to see your doctor anyway every 6-12 months. This helps demonstrate to the insurance company that you are under the regular care of an attending physician. Also, insurance companies typically request medical records every 6-12 months.
• If you don’t already have an ERISA lawyer, you might want to check in with one now. Your lawyer can work with your doctor to get the forms filled out the right way the first time.

3. Submitting the Application.

Finally, your doctor is on board and you have made the decision that resting without working is in the best interest of your health. Here is a checklist for your disability application:

• Request the short- and long-term disability application forms from HR.
• Request a copy of the short- and long-term disability policies from HR. These plan documents tell you some important information, like:
  • The definition of disability. Make sure there is no “exclusion or limitation” for Lyme disease
  • The Elimination Period. This tells you how long you have to be disabled before benefits start.
  • The benefit amount. Typically this is 2/3 of your salary, when all sources of disability income are combined. There is often a “maximum” benefit, which high income earners need to be aware of.
  • When the definition of disability “shifts.” Typically, for the first 24 months you are entitled to benefits if you are disabled from your regular occupation, and after 24 months you have to be disabled from “any occupation.”
  • Duration of benefits. ERISA disability benefits usually last until retirement age or age 65, or until you are no longer disabled.
  • The process for appealing a denied claim.

• Take a stab at filling out the application forms, but do not feel limited to the boxes on the forms. If you need extra space, include an addendum. If the question on the form doesn’t really apply to you, modify the question and answer to state what needs to be said about why you are disabled.
• Make sure that your employer knows they will have to fill out a form verifying your income and job duties.
• If it’s too overwhelming, ask an ERISA attorney to check your work to make sure that your application gives you the best shot at success. A skilled ERISA attorney will look for problems in your draft, and will also supplement an application with declarations and other information that will help an approval from the outset.
• And, if your application is denied, you must engage in the “appeals process” with the insurance company by the deadline, or you will lose your right to your claim. The appeal needs to contain ample medical and other evidence in support of your claim; it must be more than a letter stating “I appeal.”  However, coming from someone who has handled hundreds of these appeals, you should never attempt to appeal on your own without the benefit of  legal advice. The appeal stage is crucial, as you may be limited to the evidence of disability you present at this stage if you ever have to go to court.

Cassie Springer Ayeni is the President and Founder of Springer Ayeni, A Professional Law Corporation, in Oakland, CA, where she focuses on ERISA disability and life insurance cases.  She can be reached at cassie@benefitslaw.com  or www.benefitslaw.com.

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