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

How many times has one of your clients told you the IME or FCE physically hurt them during the course of a so called "independent medical exam" or "functional capacity exam"?  What if the injury is permanent?  Can they sue the IME doctor or physical therapist for medical malpractice?

According to a sharply divided NY Court of Appeals, the answer is "Yes".  On June 24, 2009, the Court in Bazakos v. Lewis, 209 NY Slip Op 05199, the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examine." and found a "limited doctor-patient relationship" between the examiner and the claimant. 

New Chief Judge Jonathan Lippman was almost apoplectic in a strongly worded dissent. The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.” Unfortunately, Judge Lipman forgets that "benefit for the defendant" ended up seriously inuring the claimant.

At the end of the day, what does this decision portend for the future of IME's in workers' comp and disability claims? First, their typical boilerplate statement at the end of their reports saying that the exam was performed, but their was no doctor /patient relationship, is now worthless. Second, far fewer IME's will lay a hand on injured workers during an IME absent a full indemnification agreement  from the insurance carrier. Many others will quit the IME business in NY all together. Third, there is no reason this decision should not apply also to physical therapists who routinely do the more intrusive (and often unsafe) Functional Capacity Examinations (FCE) in long term disability claims  (our law firm does not allow our clients to attend FCE exams). Finally, IME and PT medical malpractice rates will likely rise in New York given this new extension of liability.  

Given the scandalous expose on workers' compensation IME fraud in the NY Times recently, this decision will hopefully curb some IME abuse.  Hit  the hacks where it hurts! 

 

I will be speaking at the NOSSCR Disability Attorney Conference on May 13, 2009 in Washington, DC on the topic of: Winning Long Term Disability Claims at the Initial Level. As those of you who read this blog regularly know, I am a big ( must do, mandatory, stupid if you don't) proponent of at least consulting with a long term disability lawyer  prior to filing for LTD on your own.  The deceptively simple process is a minefield for the already disabled novice, and proceeding without at least some legal advice might jeopardize your economic security.  

A simple one hour consultation with a long term disability attorney (either in the office or by phone) can teach you how to avoid the top five deadly mistakes which will allow the disability insurance company to deny you claim the first time around.  I file long term disability denial appeals every day. These appeals can be costly and take months to resolve, all while you are struggling to pay the mortgage and your children's college tuition.  You do not want to appeal a claim you could have won with the right assistance during the initial application level.  Below is an a description of my presentation to the Social Security disability lawyers in attendance:

• There was once a time when many of us told clients to apply on their own for SSDI, and call us only if denied. Today, many of us help our clients with the initial SSDI applications stage. Even more so than with SSDI claimants, you should be helping your clients strategize and prepare a bullet-proof application in the adversarial arena of ERISA long term disability claims. This session will explore ways to overcome and avoid the inherent traps and pitfalls used by long term disability insurers to deny claims at the initial application level, thereby preventing costly and time-consuming appeals for claimants.

NOSSCR is the premier disability lawyer association in the country with over 3000 members.  It has been an honor to be a member of their Board of Directors representing the New York and Connecticut area for the last three years.  More than 1000 disability claim advocates are expected at the upcoming Washington, DC conference.  Hopefully, many will attend my lecture to refine their advocacy skills when it comes to long term disability claims.  Hope to see you there! 

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!

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.

 

 

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".

 

At this festive time of year, when so many of us are struggling in economic despair, let us not forget all that we still have.  In the spirit of the Christmas season, let us try to put aside our worries, if only for one day, and rejoice for the things that matter most - the happiness and health of our families.

For the those among us who are not working due to accidents or disease, may 2009 bring you a return to work and good health.  The attorneys at Turley, Redmond & Rosasco have dedicated our professional lives to representing injured and disabled claimants with ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims.  May 2009 bring happier, healthier and more prosperous days to the clients we serve.  Merry Christmas and Happy Holidays!

The Social Security Administration has recently developed a new procedure for handling disability claims from claimants with the most severe and disabling conditions.  The new procedure allows decision-making on these claims to be "fast-tracked" (not necessarily approved) given the current Social Security backlog.  This is a welcome change for Social Security Disability attorneys who often struggle to explain to our very sick clients why Social Security can't make a quick decision when the disability is "cut and dry".  The following is Social Security's list of 50 disabilities that they will consider for a "compassionate allowance":  

1	Acute Leukemia
2	Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
3	Alexander Disease (ALX) - Neonatal and Infantile
4	Amyotrophic Lateral Sclerosis (ALS)
5	Anaplastic Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
6	Astrocytoma - Grade III and IV
7	Bladder Cancer - with distant metastases or inoperable or unresectable
8	Bone Cancer - with distant metastases or inoperable or unresectable
9	Breast Cancer - with distant metastases or inoperable or unresectable
10	Canavan Disease (CD)
11	Cerebro Oculo Facio Skeletal (COFS) Syndrome
12	Chronic Myelogenous Leukemia (CML) - Blast Phase
13	Creutzfeldt-Jakob Disease (CJD) - Adult
14	Ependymoblastoma (Child Brain Tumor)
15	Esophageal Cancer
16	Farber's Disease (FD) - Infantile
17	Friedreichs Ataxia (FRDA)
18	Frontotemporal Dementia (FTD), Picks Disease -Type A - Adult
19	Gallbladder Cancer
20	Gaucher Disease (GD) - Type 2
21	Glioblastoma Multiforme (Brain Tumor)
22	Head and Neck Cancers - with distant metastasis or inoperable or uresectable
23	Infantile Neuroaxonal Dystrophy (INAD)
24	Inflammatory Breast Cancer (IBC)
25	Kidney Cancer - inoperable or unresectable
26	Krabbe Disease (KD) - Infantile
27	Large Intestine Cancer - with distant metastasis or inoperable, unresectable or recurrent
28	Lesch-Nyhan Syndrome (LNS)
29	Liver Cancer
30	Mantle Cell Lymphoma (MCL)
31	Metachromatic Leukodystrophy (MLD) - Late Infantile
32	Niemann-Pick Disease (NPD) - Type A
33	Non-Small Cell Lung Cancer - with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
34	Ornithine Transcarbamylase (OTC) Deficiency
35	Osteogenesis Imperfecta (OI) - Type II
36	Ovarian Cancer - with distant metastases or inoperable or unresectable
37	Pancreatic Cancer
38	Peritoneal Mesothelioma
39	Pleural Mesothelioma
40	Pompe Disease - Infantile
41	Rett (RTT) Syndrome
42	Salivary Tumors
43	Sandhoff Disease
44	Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
45	Small Cell Lung Cancer
46	Small Intestine Cancer - with distant metastases or inoperable, unresectable or recurrent
47	Spinal Muscular Atrophy (SMA) - Types 0 And 1
48	Stomach Cancer - with distant metastases or inoperable, unresectable or recurrent
49	Thyroid Cancer
50	Ureter Cancer - with distant metastases or inoperable, unresectable or recurrent

Given this time of Thanksgiving, we are thankful to Social Security for developing this new program to help the sickest claimants.  Thank you also to Geri Kahn, Esq. at the California Social Security Lawyer Blog  for first posting on this subject.  She is an asset to the disability law blogging community and I read her blog regularly. 

And of course, Happy Thanksgiving to all the readers of the New York Disability Law Blog!

Today's NY Times reports that a federal jury in Boston has found Unum, the nation's largest long term disability (LTD) insurer, committed fraud by requiring it's customers to apply for Social Security disability (SSD) benefits, even though they knew they were not eligible.

In addition to Unum, another large disability insurer, CIGNA, is facing a similar lawsuit which has been filed under the federal "whistle-blower" False Claims Act  alleging that the US taxpayer is paying to process these fraudulent claims.

In my opinion, this self-dealing referral by long term disability companies has been an ongoing problem for years that I have reported on this blog before.  A "cottage industry" of  Social Security representatives like Allsup and Advantage 2000, whose business' are supported largely by referrals from disability insurance companies like Unum, CIGNA and Hartford, make millions of dollars from relationships with companies like Unum.

The self-interested system works like this:  Most employees who pay for long term disability insurance  through their employers are surprised to find out that if they become disabled and collect benefits from companies like Unum or Cigna, they are required to also apply for Social Security disability benefits under the threat that their LTD payments will be stopped or reduced.  Why do the LTD companies require them to apply for Social Security disability?

Let's use the following example:  Mary Smith is a secretary with a young child earning $32,000/yr.  She pays $30 per week out of her paycheck for her long term disability protection. She stops work due a diagnosis of breast cancer requiring surgery, chemo-therapy and radiation.  The cancer was caught early and the eventual prognosis is good.  Her surgeon tells her she should be back to work in 6-9 months.  She applies for long term disability through her company's long term disability insurer, such as Unum, Cigna or Hartford.  She is granted long term disability benefits at a rate of 60% or her monthly gross income.  In Mary's case, this equals $1600 per month.  

After being granted LTD benefits, the insurer refers her to an outside Social Security disability representative with whom they have a financial relationship, such as Allsup or Advantage 2000 (aka Advantage2K).  These companies encourage the claimant to file for Social Security disability for the simple reason that if they are successful, the LTD carrier will get most of its money back from the claimant's Social Security award.  Unbeknownst to most employees when they sign up for long term disability through their employer, any money the LTD insured pays the employee is "offset" by whatever amount the employee or her dependents receive from Social Security. 

In Mary's case, her family Social Security benefits equal $1500 per month.  If she is awarded Social Security, Unum will only have to pay her a whopping $100 per month (the original $1600/mo. LTD payment less the $1500/mo Social Security payment).  This $100 per month disability protection is what Mary gets for her $30 per week salary deduction for LTD coverage!! 

Is this a scam? When I explain this to my clients on almost a daily basis, they are legitimately angry at their employers for selling them LTD coverage which in many cases is minimal at best.  They never would have signed up for and paid for LTD if they knew the protection was so lame.  This is a rampant problem among American employers, and should be addressed by an wide ranging educational program by organizations such as the Society for Human Resource Management.

As bad as this system is, the Boston jury actually found  Unum guilty of a different type of fraud.  In Mary's case, her doctors believe she will be back to work within nine (9) months.  In order to obtain Social Security disability benefits, the claimant must be out of work a minimum of twelve (12) months.  She simply doesn't qualify. Yet it is not uncommon for Unum and other disability insurers to encourage Mary to apply for a benefit they do not qualify for, in the hopes of recouping a large portion of their prior long term disability claim payments.  This was the essence of the fraud finding against Unum, but as explained above, it exposes a much larger problem of LTD insurers referring claimant's to Social Security representation companies with whom they have a financial interest. 

So what is the fix?  Congress should pass a law preventing long term disability insurers from referring claimants to their hand picked representatives, which really represent insurers more than the actual individual.  I have had to take over SSD cases from representative firms who have clearly acted against the best interest of the client in order to benefit the LTD carrier.  My Advice - hire a local Social Security disability attorney who specializes in Social Security law and has no connection to any LTD insurance company.  He or she will have to act in your best interests as required by the Code of Ethics.  Until this mess is cleaned up, disabled buyers should beware.

 

I had a great time at the NOSSCR Social Security Disability  law conference in Los Angeles last week.  I actually had a chance to chat with Social Security Commissioner Michael Astrue down at the pool.  This is a very bright guy, and in my opinion he is moving the agency in the right direction.  His Deputy Commissioner Linda deSoto and Chief Administrative Law Judge Frank Cristaudo were also quite impressive.  It was also great to break bread at an old Italian restaurant named Matteos with my good friend Larry Wittenburg, probably the best Social Security attorney in North Carolina.

As a Member of the NOSSCR Board of Directors and Second Circuit representative, I hosted our Second Circuit Round-table discussions on Wednesday night which are always interesting.  The rest of the seminars dealt with how to win Social Security disability claims involving many types of disabilities, including heart disease, cancer, diabetes, HIV/AIDS, depression, MS (multiple sclerosis), lupus, fibromyalgia, herniated disks, bipolar disorder, arthritis, seizure disorders, lung disease, RSD (reflex sympathetic dystrophy),  COPD,  CRPS (Chronic regional pain syndrome), anxiety and PTSD (post-traumatic stress disorder). 

Our office sees these and other unique diseases every week.  We probably have a higher incidence of PTSD here in New York due to the ongoing trauma of 9/11 workers' compensation claims.  The next national Social Security disability lawyer conference will be next Spring in Washington, DC, where we plan to lobby Congress to improve the Social Security Disability system for disabled clients. 

According to an article in Newsday today regarding the LIRR disability retirement scandal, Attorney General Andrew Cuomo has now issued subpoenas to four long term disability insurance companies and five Long Island doctors who predominately examined LIRR workers.  This is in the wake of recent reports indicating that a whopping 98% of Long Island Railroad workers retire with disability pensions.  The fact that white collar LIRR employees were getting occupational disability pensions tells you how broken this system really is.

The long term disability insurance companies have been identified by the New York Times in their ongoing railroad disability scandal series as First Unum Life Insurance Company, AFLAC, Transamerica Financial Life Insurance Company and CUNA Mutual.  It is possible that these disability insurance companies may have been victims of the broken Railroad Retirement Board disability decisions if they were required to pay out on policies if the LIRR employee was granted a disability retirement pension.  It is not often on this blog that you will see me refer to long term disability insurers as potential victims, but it seems they might have been in this case.

As a disability lawyer for almost 20 years on Long Island, I am proud to say that I have never represented any LIRR employee in a Railroad Retirement Board disability claim.  It appears they didn't need me -  all they had to do to get disability benefits was to raise their hand!  Unfortunately, abuses like this tarnish those LIRR employees with legitimate disability claims, of which I am sure there are many.  

I predict this story is only going to get  bigger, and will eventually lead to major reform of the Long Island Rail Road workers disability system.  One simple solution would be to simply abolish the Railroad Retirement Board, and to include LIRR employees in the Social Security Disability system, which generally requires the claimant to be "disabled from all work", not just their "regular occupation".   This would also help LIRR workers since Social Security disability taxes withheld from their paycheck are far less than the railroad system taxes they now pay.  Perhaps Senators Schumer and Clinton can propose this easy fix.   However this broken system is reformed, the days of automatic disability pensions for LIRR workers are over.  Now they will have to be truly disabled.

As the New York Disability Law Blog has done since its inception, today we pay respects, on the seventh anniversary of 9/11, to the families of all those killed or injured in this devastating terrorist  attack.  I truly hope one of our presidential candidates finally chases Osama  Bin Laden to "the gates of hell".  He has gone unpunished for far too long.

That being said, sadly, workers compensation lawyers and disability lawyers like myself are still litigating claims arising from 9/11.  Shockingly, and with far too little publicity, insurance companies are still fighting these claims, causing further anguish and grief to the victims and their families. 

Our firm recently successfully concluded two contested 9/11 claims under the new 9/11 First Responder law, passed in October 2007, which uniquely provided for 75%  of a claimant's lost wages for life.  Our clients were EMT's for voluntary hospitals in New York City suffering from 9/11 induced post-traumatic stress disorder (PTSD).  Although the insurance companies fought these claims tooth and nail due to the high financial exposure,  we prevailed for these long overdue victims. 

The New York State Insurance Fund (NYSIF), the semi-public insurance company, recently fought a claim by a 9/11 victim by advancing the novel theory that his injuries were related to his service in Vietnam - despite the claimant working successfully full-time for over 30 years prior to 9/11.  After we obtained the client's VA medical records, we easily refuted the NYSIF's silly argument. The workers compensation law judge ruled in our client's favor earlier this week and he will receive workers' compensation case and medical benefits for life.  The New York Workers' Compensation Board continues to do an admirable job protecting the rights of 9/11 claimants. In addition, the New York City Department of Health runs an excellent website on 9/11 related health problems.

Long Island's own Congressman Tim Bishop recently urged additional federal funding for 9/11 victims at Stony Brook University's World Trade Center Monitoring and Treatment Program.  This excellent program is headed by Dr. Benjamin Luft and has been of great help to many of our clients. The program also operates in offices in Islandia and Nassau University Medical Center, with a new Hicksville office coming soon.  The New York Disability Blog strongly urges Congress to fully fund this much needed program for 9/11 victims in Nassau and Suffolk.

It is clear that we will all be living with the painful legacy of 9/11 for at least another generation.  Many more workers compensation, Social Security disability and long term disability claims are yet to be filed.  May we all join together with compassion, empathy and financial support  for every 9/11 victim.

 

Eliminating the backlog of Social Security Disability claims is a moral imperative, according to a recent report issued by SSA Commissioner Michael J. Astrue to Social Security lawyers throughout the country.  We agree!  Too many disabled Americans are suffering financially while they wait for a Social Security hearing.

The Commissioner has asked disability attorneys and great organizations such as NOSSCR to help in realizing this goal. We stand ready to assist as long as due process is protected.  Click here for a summary of the Commissioner's report.

                         

Good Morning America continues to report on the horrors that claimants experience fighting long term disability insurance companies throughout the country.  The video in this report is a must see for all members of Congress, and should at least give other disabled claimants comfort in knowing they are not alone.  Despite the positive Supreme Court  ERISA ruling in Glenn v. MetLife last week, Congress still needs to address both the delays and the harassment claimants must go through to get the disability benefits they deserve.

The two breast cancer cases where the claimants were denied benefits are both heartbreaking and maddening.  A young woman with breast cancer and children should not have to spend the last year of her life fighting a disability insurance claim.  It is just plain cruel.

Thanks to my South Florida colleague, Alicia Paulino-Grisham, for her great work on bringing these injustices to the attention of ABC News and Congress.  Last month I attended a disability insurance lawyer conference in Boston and had a chance to speak with Alicia and her partners.  With fighters like Alicia on our side, at least claimants stand a chance against the likes of CIGNA, MetLife and The Hartford.

    The decision all ERISA long term disability attorneys around the country have been waiting for, Metropolitan Life Insurance v. Glenn, 554 U.S. ____ (2008) , finally came down from the U.S. Supreme Court this morning .  Click here for the full decision.

The issues in MetLife v Glenn were whether MetLife, as a plan administrator,  had a "conflict of interest"  by being both the decision-maker and payer of claims, and if a conflict existed, what "standard of judicial review" should be used by the courts when a beneficiary appeals a denial of ERISA long term disability benefits. The Court held:

Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket.  We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.  See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

Many claimant ERISA long term disability lawyers had been hoping for a de novo standard or review when a conflict existed.  The Court clearly rejected this standard in favor of a quite vague "factor test"  in deciding whether a plan administrator "abused its discretion" based upon the facts of a particular case. 

While better scholars than myself will surely be able to dissect and analyze this decision in more detail in the coming days and weeks, it seems clear that: 1) this is generally a good decision for ERISA long term disability claimants and 2) ERISA long term disability lawyers and courts will be struggling to apply the Supreme Court's intentionally vague "factor test"  for years to come.

 

 

 

I'm off to Boston this week to attend the premier LTD Litigation conference in the country.  See the conference schedule here for some of the cutting edge ERISA and medical issues we will be discussing. Some of the best long term disability lawyers in the country will be speaking on trial techniques, mediation of claims and recent case law.  I can always learn more. It should be a winner!  

I'm off to Miami Beach (yes - a conference in Miami in June!) tomorrow for the semi-annual NOSSCR Social Security Disability Law conference through Friday.  In between my responsibilities representing the Second Circuit on the Board of Directors of NOSSCR, I plan to take advantage of some of the great seminars NOSSCR always offers.  Every Social Security Disability attorney should try to attend this conference at least once a year to keep their knowledge and skills "cutting edge".   In addition, it gives me a chance to talk with some of the real "thought leaders" in disability law.

Seminars this year include "Chronic Fatigue Syndrome - Unraveling the Mystery", "Psychiatric Testing for Mental Illness & Traumatic Brain Injury (TBI)", "Ethics and Professionalism" and the inter-relationship of Social Security disability claims with ERISA long term disability claims. It should be a great conference.

It will also give me a chance to have dinner with my dad, Ed Rosasco, who retired a few years ago as President & CEO of Mercy Hospital in Miami.  He is now doing health care consulting and sits on the boards of several hospitals and charities in the South Florida area.   I hope to see my colleagues from around the country at the conference - or at the pool!

Last night the CBS Evening News with Katie Couric unveiled the first of two special reports on the Social Security Disability claim backlog.  My friend and fellow Social Security Disability lawyer, John Hogan, was interviewed and spoke of the 2 1/2 year wait for a hearing in the Atlanta area!  When you see the disabled claimant's profiled in this report, you will realize how cruel and unacceptable such waits are. 

I suppose that we should be thankful that the hearing wait in the New York metropolitan region is only 18 months!???  But it is hard to feel this way when you see clients losing their homes while they wait for the disability benefits they paid for and deserve.  Sadly, some of my clients have died before they get their hearings.  Hopefully, Congress will listen to this report and fund Social Security properly so that future claims can be expedited. Catch Part 2 of the CBS special report tonight at 6:30 pm EST by clicking here.  Thanks for your concern, Katie!

Happy New Year to all the readers of the New York Disability Law Blog!  Over the course of 2007, we are pleased to report that our firm has once again helped thousands of injured and disabled claimants successfully win the benefits they deserve.

Our blog has  tried to provide timely and helpful information to all those struggling with a variety of disability claims, including long term disability insurance claims, Social Security disability claims,  workers' compensation claims and VA disability claims.  Since its inception in March 2005, our blog's readership has steadily grown and we have become a frequent resource to reporters and other media professionals on disability claim matters. 

We look forward to another year of fighting the good fight for our clients and friends. We wish you and your families a healthy and happy 2008!

 

 

"This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy..."  - Charles Dickens, A Christmas Carol (1843).

At this festive time of year, when so many of us have more worldly goods than we truly need, let us not forget those among us who are not working due to accidents or disease.  The attorneys at Turley, Redmond & Rosasco have dedicated our professional lives to to lifting up and providing for injured and disabled claimants with ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims.  May the year 2008 bring happier and healthier days to the clients we serve.  Merry Christmas!

Yesterday's front cover of the NY Times had an article detailing the long delays in the Social Security Disability claim process.  Much of the backlog is the result of Congress failing to adequately fund a Social Security disability claim system which is now facing more claims due to the aging of the "baby boomer" generation.  Today, a rash of editorials skewering both President Bush and Congress for this preventable crisis hit the streets and the far reaches of the Internet.  Something must be done - now! 

Last week, I traveled to New Haven, Connecticut to handle a Social Security disability hearing for an emergency room physician stricken with chronic Lyme disease.  The hearing before an Administrative Law Judge went well and we will win the case.  However, the client had to wait over 18 months for her hearing before the judge.  In this particular case, the wait did not have a dramatic financial impact on the doctor since she was already collecting benefits from her own private long term disability insurance policy through Northwestern Mutual Life. 

But this is the exception, not the norm.  Less than 20% of my clients have either employer sponsored group ERISA long-term disability plans or private individual disability income protection.  Most of my clients, when faced with the long delays at Social Security disability, are facing either bankruptcy or foreclosure.  As stated in the article, some die before their case is heard.  I have one such client in the hospital now with stage 4 terminal cancer.  In most cases, "justice delayed is justice denied".  A judge has not even been assigned to the case yet.  Thankfully, I was able to call in a few favors and have Social Security place this case on an expedited review.

The Social Security Administration recently proposed new rules to streamline the disability appeals process.  Click here to see the new rules and submit your comments.  Some of their ideas are good, others would harm disabled claimants even further.  As a member of the NOSSCR Board of Directors, I can assure you we will be submitting detailed comments to both expedite claims while protecting fundamental fairness to disabled claimants.

 

 

Turley, Redmond & Rosasco founding partner William "Bill" Turley was endorsed today by Newsday as Smithtown's next representative in the Suffolk County Legislature.  Bill, who has been practicing workers' compensation and disability claim law on Long Island for over 20 years, impressed the Newsday staff with his innovative ideas on clean energy and immigration. 

• 13TH DISTRICT
  
  North Smithtown, part of Huntington
  
  Republican Lynn Nowick, 60, of St. James, is running for a fourth term. Her assiduous constituent services assure her popularity. But she has few constructive new ideas, especially regarding the 800-pound gorilla in her district: the fate of the former Kings Park Psychiatric Center.
  
  On this vexing issue, her Democratic opponent, William Turley, 49, of Fort Salonga, agrees that the legislature has little influence beyond rhetorical support of a better proposal for the complex's use. But Turley, an attorney specializing in workers' compensation, brings a refreshing and progressive perspective that differs sharply with Nowick's in every other respect. He favors hiring halls for migrant workers, wants stricter penalties for sex offenders but is concerned about the constitutionality of residential restrictions, and would push for alternative energy policies in the county to offset dependence on foreign oil. We endorse Turley.
  

For many disabled clients on Long Island and New York City, Bill has been a steady hand guiding them through the disability claim maze.  Good luck Bill on November 6th!

I'm off to St. Louis to attend the NOSSCR conference for the next few days.  In between my Board of Directors meetings, I'll be sharpening my Social Security disability lawyer skills at some of the great seminars NOSSCR always offers.  See you on the blog next week.   

Thanks to Jane Reilly and all those at the Long Island, New York Chapter of the National Multiple Sclerosis Society for inviting me to participate at their annual free "Meet the Attorney" night last week at the Melville headquarters.  I had a private meeting with a lovely woman struggling with MS to discuss both her ERISA long term disability claim with Unum, and her pending Social Security Disability claim.  

I advised her NOT to use the "free" representation from GENEX Services to assist her with her Social Security Disability claim, as GENEX operates solely for the benefit of Unum, and therefore has a major conflict of interest similar to Allsup and Advantage 2000.  (See my previous blog posts  about Allsup and Advantage 2000 for the full story).  GENEX is no better! Did you know that GENEX Services was a wholly owned subsidiary of Unum until just recently, and that Unum remains their major client.  This tells you everything you need to know. 

I told this grateful woman she would be far better off hiring a private attorney to represent her in her Social Security Disability claim,  regardless of who the particular attorney is.   Attorneys have an ethical obligation to guard the client's secrets and confidences, as opposed to GENEX which is obligated to share personal information with Unum since Unum is paying their bill.  Money talks!

In other MS news, my partner Chris Redmond participated in a Bike-A-Thon recently to raise funds for multiple sclerosis research.  Finally, Chris' Uncle Ed Keegan, age 69 and still a top New York Life Insurance Agent, made headlines in Newsday by walking across Long Island in a T-shirt that read "Who Gives 100%?" to raise funds for MS.  Ed's daughter has MS.  Ed Keegan gives 100% ! Thanks Ed!

 

It's all in your head!  You do not have "objective medical evidence" of a disabling condition!  Your symptoms are "self reported" and not supported by "testing"!  Any chronic fatigue syndrome (CFS) sufferer whose disability claim has been denied by either Social Security or an LTD insurance company has seen these infuriating phrases before.  As reported by Dr. Sanjay Gupta of CNN last week, a new study and test for CFS may put an end to this injustice.

Despite ample clinical evidence of disability from treating physicians, many ME/CFS and FM patients and couldn't get past "objective evidence" roadblock put up by ERISA disability plan administrators.  Social Security finally caved a few years ago by issuing a ruling telling Administrative Law Judge's that Chronic Fatigue Syndrome claimants did not need objective medical evidence to prove that they were disabled.  Like other auto-immune disorders such as fibromyalgia (FM), lupus and sarcoidosis, CFS is primarily diagnosed based upon the patient's reported symptoms. 

The new study involved stomach biopsies done through endoscopy which revealed a strong association between enterovirus and CFS.   While a confirmatory stomach biopsy might not change the course of treatment for any chronic fatigue syndrome patient, it could be the evidence that long term disability lawyers need to obtain benefits for clients from disability insurance companies.  Gotcha Unum and MetLife!   For any of my disability insurance claim clients fighting a CFS case, I will be sure to tell them to discuss an upper GI endoscopy with their treating physician.  It could mean the difference between winning and losing your long term disability claim.

Recently, a group of some of New York's top long term disability insurance lawyers and advocates gathered in Manhattan to sign an important document for the benefit of all employees who are covered for LTD benefits through an ERISA plan sponsored by their employer.  This letter to the NY Insurance Superintendent Eric Dinallo requested that unfair "discretionary clauses" in insurance contracts be banned in New York, as they have been recently in New Jersey and California. 

As previously reported in this blog, this follows the prior attempts to ban discretionary clauses under the Pataki administration.  To date, it is unknown what the Spitzer administration's position will be on this issue.  However, it is hoped that the Superintendent Dinallo will join other progressive states in leveling the playing field for disablity claimants and stop unfair insurance company practices which deny legitimate long term disability claims.  We will keep you updated when we receive a response from Superintendent Dinallo.

Turley, Redmond & Rosasco partner Chris Redmond has a long record of helping raise money to battle Multiple Sclerosis.  This year, the firm was pleased to help fight Multiple Sclerosis by sponsoring an individual bike rider in his local MS Bike fundraiser on July 21st in Pennsylvania.   Our law firm helped sponsor Chris Carson, brother of Linda Rosasco and brother-in-law of LTD Claim Division  partner Troy Rosasco.  Chris rode with the Peters & Wasilefski law firm team.   So far, the team has raised over $1,800.00! Chris is one of those real good guys this world needs more of.  Thanks Chris!

I just met Anne Davis, Esq. ,of the New York City Chapter of the National Multiple Sclerosis Society, last night.  Anne is joining with a group of  ERISA long term disability lawyers to try to persuade New York State to prohibit " discretionary clauses " in disability insurance policies and contracts. Discretionary clauses in ERISA disability income policies allow insurance companies to  insulate unfair claim denials from proper judicial review.  In a big win for consumers, New Jersey recently adopted rules banning discretionary clauses, despite fierce opposition from the powerful insurance industry.  Hopefully, New York State Insurance Superintendent Eric Dinallo will do the same.  This will go a long way in protecting the economic resources and dignity of those battling Multiple Sclerosis.

 

I was on vacation recently where the only newspaper in town was USA Today. While it is not on my normal daily reading  list, it had a disturbing article on long term care insurance denials.  This article reinforces the findings of a New York Times article last March detailing the abuses of long term care insurance companies like Conseco, John Hancock, Bankers Life and Penn Treaty. Quoting from the article, "delays, premium increases and denials of payment make the enormous investment in long-term care policies all but worthless".  The article then goes on to relate some long term care insurance denial horror stories. 

When Paula Johnson's husband was diagnosed with Alzheimer's disease, she thought the long-term care policies she and her husband bought would protect them from financial ruin. Unfortunately, in her time of need, the insurance company the insurance company threw up all the same road blocks attorneys frequently see in long term disability claims.  "Having a diagnosis of Alzheimer's from the Mayo Clinic should be a slam-dunk, but still I fought and struggled and begged and pleaded and cried to get the claims paid", said Johnson.  "It was if they were torturing me".

Bottom Line - as long term disability attorneys have known for some time, some insurance companies use their claims departments as profit centers.  Who is more vulnerable than an elderly and infirm policyholder facing needless procedural road blocks.  It is a sad truth that many die before the fight with the insurance company is over.   Thankfully, a small cadre of consumer oriented LTD lawyers like myself are starting to pick up the long-term care insurance fight for angry policyholders across the country.  As we see more egregious and unfair denials, we will report them here.

  

Congratulations to my friend and fellow long term disability attorney Eve-Lynn Gisonni on her significant victory at the New York State Court of Appeals in Benesowitz v. MetLife.  This decision is a great victory for long term disability claimants who are denied benefits due to a "pre-existing condition clause" in their employer's LTD Summary Plan Description.  Credit is also due to Eric Dinallo, Governor Spitzer's new Superintendent of Insurance, who supported Eve-Lynn's position in an Amicus brief to the Court.

In Benesowitz, the Court ruled that claimants who apply for long term disability benefits in part due to a preexisting condition which was present at the time disability coverage began only have to wait 12 months before they can collect disability benefits.  Up until now, many disability insurance companies, including Unum, MetLife and Cigna , used preexisting condition clauses to unfairly deny claims forever.  Now, the Court has ruled that claimants in these fairly common situations will have a 12 month "waiting or elimination period" before being able to collect benefits.  For a 30 year old with a pre-existing history of cancer which reoccurs and causes permanent disability for the rest of her life, this will be an economic life saver if she is claiming long term disability benefits. 

That's the rumor in the latest business press.  Having just digested the giant Travelers Insurance, MetLife is apparently on the prowl for its next corporate meal, and Unum Group might be ripe for swallowing.   But what impact would such a acquisition have on individuals claiming long term disability benefits from the "new undisputed disability insurance king"?  Probably not much.

As it stands now, neither MetLife nor Unum Group are great claims payers.  In the last month, I've had employees of these companies come to my office for representation because their own employers unfairly denied their ERISA disability claims.  If this is how MetLife treats its own employees, can you imagine how you will be treated. These two titans are motivated primarily by shareholder profits, not policyholders interests.  From a long term disability lawyer's perspective, it would be a perfect marriage in which both naysayers deserved each other.    But then again, it might be a good stock?!

I was reading the magazine section of my Sunday paper this weekend and ran across a great article on online support groups by Peter Waite, the founder of HealingWell.com, a website devoted to online discussion groups for individuals with chronic illnesses.  I have always been a big fan of support groups for those with particular medical conditions, whether they be cancer, diabetes heart disease or some less common but equally disabling conditions.  However, I have always been dubious of recommending specific online disease forums due to the proliferation of bad medical information and questionable "lurkers".  Up until now, about the only Internet medical site I have recommended is MedlinePlus, sponsored by the National Institute of Health.  MedlinePlus is the starting place for my medical research.

Mr. Waite makes an excellent suggestion that anyone considering participation in an online support group first check out who sponsors the site (is it a drug company that wants to sell you its latest multiple sclerosis medication?) and if the site is accredited by the Health on the Net Foundation.  He also discussed proper online etiquette and the always sound mantra to check everything with your doctor.

My curiosity piqued, I got out of the recliner, sat down at my computer, and went to the HealingWell.com website.  It is well organize and has a user friendly interface.   More importantly, it has well attended discussion forums on diseases such as fibromyalgia, chronic pain, lupus, depression, arthritis, Crohn's Disease and ulcerative colitis, to name a few.  For those of you who are fighting a Social Security Disability claim or ERISA long term disability claim, this helpful site may give you some much needed support in the interim.  

Far and away, the UnumProvident (and its subsidiaries, Paul Revere, First Unum, Unum Life, and Provident Life) denies more claims unfairly than any other insurance company. If Unum Provident has written or administers your long term disability policy, you should be prepared for a legal fight. In fact, in late 2004 Unum Provident settled a class action lawsuit with the Attorney Generals of over 40 states based upon unfair claim handeling procedures. This settlement required Unum Provident to review over 200,000 previously denied claims and pay a $15 million fine.

Other insurance companies that frequently deny claims include: Hartford, CIGNA, Disability Management Services (DMS), Prudential, Guardian, The Equitable, Colonial, Trustmark, Berkshire, CNA, Liberty Mutual, AIG, Connecticut General, Penn Mutual, Northwest Mutual, Mass Mutual and Met Life, among others.