The New York Disability Law Blog : New York Disability Lawyer & Attorney : Turley, Redmond & Rosasco : Brooklyn, Queens, Long Island, Nassau, Suffolk, Bronx, Staten Island

First and foremost, congratulations to our new President - Barack Obama.  His historic election will forever change the way opportunity and entitlement are viewed in the United States.  He has tremendous challenges before him, but with our support and shared sacrifice, perhaps we can right this dangerously leaky ship we call America.  Godspeed, Mr. President.

In the midst of this country's many problems, and on Inauguration Day especially, perhaps it seems a bit parochial to ask the new President to consider fixing the Employee Retirement and Income Security Act (ERISA).  However, since the stated goal of the New York Disability Law Blog is to provide "information, help and support" for disabled workers, and given that ERISA often times provides more security to "employers" than "employees", causing untold human suffering and economic despair, I will not apologize for focusing this one little post on the plight of the disabled.  After all, if you look at the amount of "pork" already stuffed into the current economic stimulus bill, you will clearly see that less important narrow interests are already swarming like vultures around Washington. And it is highly unlikely that CNN will pick this post up today.

Therefore, I implore the new President to ask but one aide to investigate the wholesale problems with ERISA that force so many with disability claims into bankruptcy.  Long before the mortgage meltdown, disability claim lawyers like myself saw families consistently go down the economic drain while fighting for their  disability benefits under the "employee unfriendly" ERISA.  Let us, with the hope inspired by our new President, resolve to fix  ERISA disability claims law in the next four years so that it actually does what it was intended to do - protect employees!

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Michael Yoeli, one of the most experienced long term disability lawyers in the legal community, has joined Turley Redmond and Rosasco as 'Of Counsel".  After a distinguished career on the defense side of the long term disability bar, Mike has  been representing individuals and policyholders solely since 1998 and has used his prior experience and contacts to obtain several million dollar settlements for claimants against long term disability insurers.  Says Senior Partner Troy Rosasco:

With the addition of Michael Yoeli as of counsel to our firm, Turley Redmond & Rosasco is able to offer our clients a unique level of representation in the areas of individual and group disability claims and litigation. For ten years, Michael was a partner in a leading firm representing many of the prominent disability insurers in their New York litigation. In representing these companies in the trial courts, Appellate Divisions and the New York State Court of Appeals, Michael developed an unparalleled level of expertise and experience in both disability insurance law and in how disability insurers operate. In 1998, Michael decided to put his knowledge to work exclusively for the benefit of policyholders. In the past ten years, he has represented numerous disabled persons. Utilizing the intimate knowledge he gained in representing insurers, he has been able to achieve impressive results for his clients, including several seven figure settlements, often without the need for prolonged and expensive litigation. We are thrilled to now be able to offer Michael's outstanding skills to our clients.

The last point cannot be emphasized enough.  Due to his well established reputation with insurance companies, Michael can often obtain similar benefit results without the need for prolonged and costly litigation.  Click here for ERISA  and individual policyholder long term disability lawyer Michael Yoeli's contact information, and join us in welcoming him to the Turley, Redmond and Rosasco team.

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Actually, the scathing Second Circuit decision in McCauley v. First Unum Life Ins. Co., 2008 U.S. App. LEXIS 26094 (2nd Cir., Dec. 24, 2008) came down this past Christmas Eve. But why quibble with form over substance when heralding this ground-breaking, pro-claimant decision interpreting the Supreme Court's recent decision in  MetLife v. Glenn.  McCauley, if followed by other circuits, has the potential to impact all claimant's with ERISA long term disability denials throughout the country.  If you don't think Unum was "taken behind the barn",  just read this from the Court in McCauley:

"First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges. A district court in Massachusetts wrote that “an examination of cases involving First Unum . . . reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics.” Radford Trust v. First Unum Life Ins. Co., 321 F. Supp. 2d 226, 247 (D. Mass. 2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir. 2007).

That court listed more than thirty cases in which First Unum’s denials were found to be unlawful, including one decision in which First Unum’s behavior was “culpably abusive.” Id. at 247 n.20. Also, First Unum’s unscrupulous tactics have been the subject of news pieces on “60 Minutes” and “Dateline,” that included harsh words for the company. Id. at 248-49. First Unum has fared no better in legal academia. See John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev. 1315 (2007). In light of First Unum’s well-documented history of abusive tactics, and in the absence of any argument by First Unum showing that it has changed its internal procedures in response, we follow the Supreme Court’s instruction and emphasize this factor here.

Accordingly, we find First Unum’s history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley’s claim for benefits."   -  Ouch! 

Much like the recent ERISA disability claim we won on appeal for a trial attorney with MS who was turned down by his own employer, the infamous Met Life, Mr. McCauley was a tax attorney with an unquestionable disability - advanced colon cancer with the after effects of surgery and treatment. He originally applied for and was denied disability benefits in 1996, and the fact that he lived through the glacial administrative and legal process of ERISA claims is nothing short of a miracle, or perhaps the will of a determined man who had been wronged.

Despite the inhumanity of Unum's actions in this case, perhaps they have been unfairly singled out.  As an industry, there are very few long term disability insurers who don't use ERISA as a shield against unfair, and often times shocking, disability claim denials.  Cigna's unscrupulous disability claim denial tactics were the subject of a recent series of stories on Good Morning America.  As Professor Langbein so acutely observed in his article on the Unum Provident scandal cited by the Courts in both Glenn and McCauley:

"Cases of abusive benefit denials involving other disability insurers abound. Unum turns out to have been a clumsy villain, but in the hands of subtler operators such misbehavior is much harder to detect.'' 101 Nw.U.L.Rev. at 1321.

With new discovery opportunities envisioned by both Glenn and McCauley, it will be our job, as claimant ERISA long term disability attorneys, to expose the "subtler operators".

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