Disability Insurance Claims 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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A Conversation with Attorney Cassie Springer Ayeni

Q: When did you know you would pursue a career in the legal field?
CSA: As early as junior high or high school, I felt the need to advocate for others, to make a point to stand up for the kids who were being bullied or ostracized. I also realized around the same time that I truly enjoyed writing, reasoning, and debating. The law seemed a natural fit: I could use my skills to make a palpable difference in people’s lives. I had settled on a career in law by the time I was 16 and never looked back.

Q: Can you explain what types of cases an ERISA Attorney handles and why you chose this area of law?
CSA: I primarily help people with their employer-sponsored disability benefit claims. ERISA governs all private employer benefit plans, not just pension plans. Many employers provide disability benefit plans in addition to health and pension benefits. In fact, 65% of ERISA litigation is over denied disability benefit claims. The plans are often insured, and clients typically come to me after they stop working, apply for disability benefits to the insurance company, and are denied. I then step in to try to get their disability benefit income restored while they focus on their health.

Q: What is your approach or philosophy to winning or representing a case?
CSA: I lead with kindness. I want to understand truly what my clients have gone through medically, economically, and emotionally to get to this point in their lives, and how I can help. In representing a client, I am there for that person: I am responsive and listen with an open heart. I believe this the secret to winning a case as well – if I am doing my job right, I am painting a picture of the person and the case to help the court appreciate why my client is deserving of their disability benefits. I have the paintbrush and paint ready because I have spent months getting to know my clients and researching the law. And I also aim to be the best-prepared lawyer in the room with the most compelling brief … that helps too.

Q: If we interviewed all your past clients … what is “one” common word that comes up when they describe working with your law firm?  
CSA: Compassion

Q: What are some of the most popular topics you are asked to lecture on?

CSA: I speak frequently on ERISA topics, especially in my current role as the co-chair of the ABA’s Employee Benefits Committee. I love presenting to newer attorneys about the fundamentals of ERISA litigation, because I am eager to energize attorneys about how engaging ERISA work is. ERISA is fun! The law is always evolving, providing constant intellectual stimulation, and practicing ERISA law is also a great way to help people in need. I also enjoy speaking to women about re-defining what it means to be a successful litigator, and how to challenge traditional law firm standards to achieve a better work-life balance.

Q: What advice would you give to young women who want to pursue a career as an Attorney? 
CSA: Any woman who wants to pursue a career as an attorney should make sure that her potential work environment values diversity and inclusion, fosters a sense of belonging, and creates opportunities for women at every turn. If she is unable to find that environment, she should open her own law firm and create those opportunities herself. 

Q: How do you maintain a work/life balance?
CSA: Being the owner of my firm allows me to make up the rules: I look to the best practices of progressive companies and pick policies that I believe are imperative to work/life balance for everyone. I figure that everything I need to raise four children and work full-time as an attorney is what everyone at my firm needs too. I offer unlimited PTO, great benefits, four months of fully paid maternity leave, the ability to bring children in to work as needed (in fact I have brought each of my babies into work until they needed another environment), the ability to work from home, and a practical approach to parenting … like closing the office on Halloween and Valentine’s Day so that we can all attend class parties without rushing to or from work. I, of course, avail myself of each of these policies, which is why I created them in the first place. That’s not to say that I don’t wake up early to work for a bit so that I can focus fully on my kids to take them to school, or grab a few hours on the weekend to pound out a brief, but family always comes first, for me and for everyone who works at Springer Ayeni.

Q: What’s one lesson you’ve learned in your career that you can share with our audience?
CSA: I have always learned to be myself. If you are authentic, you are compelling as an advocate and a counselor: you listen and communicate better when you are not spending energy on worrying about how you should come across. I also believe in the power of preparation. If you are committed to doing your best and preparing your utmost, then even a negative outcome cannot be met with regret, but a positive outcome is much more likely. And if you’re nervous before a court appearance or speaking engagement, just take a breath and realize that even in a worst-case scenario, you will survive and move forward … we all do.

Q: What are some of the challenges you feel women face today?
CSA: Looking at women lawyers only, there is much progress to be made. As Joan Williams at the UC Hastings Center for WorkLife Law has analyzed convincingly, women lawyers (and women in other fields too) are asked to “prove it,” then “prove it again.” In other words, women need to do the job before getting the promotion, whereas men are promoted based on potential. This is a major obstacle to women’s promotion and needs to be addressed systematically.

Five Things About Cassie Springer Ayeni

1. If you could talk to one famous person past or present, who would it be and why? 
There are so many! But if I had to pick one it would be Harriet Tubman – her courage and vision even in the face of medical problems were and are awe-inspiring.

2. What’s your favorite holiday? Why? 
Valentine’s Day! I don’t view it as just a romantic holiday, but as a day to express to those around you how much you care.

3. If you were a superhero, what would your special powers be?  
Time-traveling. That would be magical!

4. What app can’t you live without?  
Facebook – it has allowed me to make great connections with other lawyer moms – lawmas!

5. Favorite food to eat? 
Strawberries. Now, then, forever, and always.

See the interview at https://bayareawomenmag.com/news/view/11665/Her_Firms_Achievements_-_Results_are_Measured_by_the_Satisfaction_of_Her_Clients_A_Conversation_with_Attorney_Cassie_Springer_Ayeni

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ERISA Disability Traps & Tricks for the Non-ERISA Practitioner

By Cassie Springer Ayeni, President Springer Ayeni, A Professional Law Corporation

The Employee Retirement Income Security Act, better known as ERISA, is referred to by at least one judge as “Everything Ridiculous Imagined Since Adam.”  Florence Nightingale Nursing Service, Inc. v. Blue Cross and Blue Shield, .832 F. Supp. 1456, 1457 (N.D. Ala. 1993), affirmed, 41 F.2d 1476 (11th Cir. 1995) (Acker, J.).  It gets its sordid reputation from its limited remedies, roots in trust law, and limited discovery rules.  Yet ERISA is so vast that every lawyer should know a little bit about it.

Most practitioners know that ERISA covers employer-sponsored retirement plans, yet few realize that with minor exceptions[1] it also governs all employer-sponsored health plans, disability benefit plans, and life insurance plans.  29 U.S.C. § 1002.  Of these categories of ERISA litigation, disability benefit lawsuits comprise 64.5% of ERISA litigation, health care accounts for 14.4% or ERISA litigation, and pension just 9.3%.  Anderson, S., ERISA Benefits Litigation: An Empirical Picture, 28 ABA J. Lab. & Emp. L. 1 (2012) at p. 7.  Why is that?  Though ERISA was originally designed to protect pension claims, more and more employers are eliminating traditional pension plans for employees or have outsourced to fiduciaries, and ERISA provides limited relief for breaches of fiduciary duties.  Health claims are notoriously mishandled (we all probably have our own examples of that!), yet if a plaintiff brings an ERISA claim for denied health benefits, the remedy is that the medical provider gets reimbursed, and there are no punitive, compensatory, or consequential damages available to the plaintiff.  Disability benefit claims, however, are another story.  If a worker with an employer-sponsored disability benefit plan files a claim for benefits, that claim is typically administered and paid for by an insurance company.  And because these insurers have a financial conflict of interest, many disability benefit claims are denied despite the claimant’s doctor’s decision that the claimant should stop working.  The remedy under ERISA is payment of the disability benefits through the date of judgment, and benefits can potentially continue until retirement age.  In other words, disability benefits are worth a lot over the claimant’s working lifetime.  That’s why a little ERISA knowledge comes in handy for any practitioner.

 

Screening for ERISA

First, in screening these calls from potential clients, be aware that some issue spotting will be incredibly valuable, as most individuals do not even realize that their claim for disability benefits is governed by ERISA.  Most individuals call with an assumption that the appropriate area of expertise is disability discrimination, workers’ compensation, Social Security disability, or California state disability insurance.  But if the employer offered a disability plan, it is ERISA help they need.

TRAP #1:  Assuming that the potential client knows what kind of attorney she needs for her disability issues.  TRICK #1:  Simply ask “did your employer offer a disability benefit plan?”  If so, ERISA will probably govern.

 

Severance Waivers of ERISA Claims

Second, many people with disabilities may contemplate quitting their job for performance issues or have already been told they will be terminated.  If they are getting close to retirement age, they may assume that an early retirement is the honorable way to exit the job.  The disabled worker may be offered separation or severance pay, but many standard separation or severance agreements actually waive all claims under ERISA!  If someone could potentially obtain a monthly disability benefit until retirement age through their disability benefit plan, this is an extremely valuable benefit to waive in exchange for severance.  Indeed, the prudent plaintiff’s attorney should routinely screen for disability if negotiating severance, as no one would want to give the green light for waiving hundreds of thousands of dollars in disability benefits in exchange for a little severance.

TRAP #2:  Failing to edit out a waiver of ERISA claims.  TRICK #2:  Carve out any claims for disability benefits, health benefits, or pension benefits that might arise under ERISA.  An example of a good carve out is:  “However, the following claims are specifically and expressly excluded from the foregoing Release: (i) health insurance benefits under ERISA or 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.”  Most employers understand the practicality of this, particularly because such claims are usually (but not always) filed against the disability insurer, not the employer.

 

Strict ERISA Deadlines

Third, although it is best for the potential client to find an ERISA attorney before making the decision to apply for disability benefits, most do not.  Rather, most potential clients try to find legal help only after the insurer has denied the claim for disability benefits.  At that point, ERISA’s Regulations prescribe a 180-day period for appealing the denied benefit claim.  This process MUST be completed or else the claimant loses the right to file suit, also known as “failure to exhaust administrative remedies.”

TRAP #3:  Failing to submit an appeal of an adverse disability benefit decision within 180 days of receipt of that decision.  TRICK #3:  Don’t miss this deadline!  But if all else fails, immediately call the insurer to request an extension.  ERISA’s regulations allow for “at least” 180 days, but it is up to the insurer to allow an extension.  If granted over the phone, immediately follow it up in writing and indicate a date by which the claimant will submit the appeal.

 

Evidence in the Appeal

Fourth, although filing a hasty appeal is all that is necessary to preserve the ability to file a lawsuit, a scant appeal letter will not win the appeal, nor will it enable an ERISA practitioner to take the case for litigation.  ERISA disability litigation is limited to the factual evidence presented in the aforementioned administrative appeal.  Once in court, in all but rare circumstances, there will be no depositions, further medical records, or opportunities for direct or cross-examination.  And there are also no jury trials.  So if you help someone with their disability benefit appeal, please be sure to include all evidence necessary to win the case down the road.

TRAP #4:  Assuming that there will be a chance in court to put in more evidence supporting the disability claim.  TRICK #4:  Throw in everything but the kitchen sink into the appeal!  If you think the evidence might be useful in litigation, put it into the appeal.  Declarations from the client, friends, family, medical providers, and colleagues, as well as all relevant medical records and expert reports, are key to submit in the appeal of a denied claim.

 

Filing an ERISA or ERISA-Related Claim

Finally, if you do decide to litigate an ERISA claim, be aware that these claims must be brought in federal court or you will face removal of the ERISA claims and all claims related to the ERISA claims.  With limited exceptions, if you are bringing state law claims and ERISA claims, ERISA will preempt those state law claims.[2]

TRAP # 5:  Failing to separate any state law claims from ERISA claims.  TRICK # 5:  Don’t even mention ERISA or other employee benefits or benefit-related remedies in your state law complaint.  Leave the ERISA claims alone and litigate those separately as ERISA claims in federal court, or face removal.

 

TRICK #6:  Give me a call.  I’m an ERISA nerd and I’m happy to field your ERISA questions!  510-926-6768 Option1, or cassie@benefitslaw.com

Cassie Springer Ayeni is the President 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

[1] Those exceptions are for public employees (anyone who works for the government such as teachers, legislators, public safety officers, etc.), and “church plans,” (anyone employed, even tangentially, by a religious organization including those who work at Catholic hospitals).

[2] 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).

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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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