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If you’re receiving long-term disability benefits, you may find yourself in a confusing situation. It’s not uncommon for disabled people’s conditions to improve (or ebb and flow). However, the disability insurance company may argue that you’re no longer eligible for monthly benefit payments based on your improved circumstances. What are you supposed to do?

Disabled individuals typically must take steps to improve their condition. However, when you start gaining function, your LTD insurer may start scheduling medical examinations and asking tough questions. In this blog, our experienced disability insurance lawyers explain how you should handle this situation and what you should do if your benefits are cut off.

Disability Insurance Companies Can Define “Disability” in One of Two Ways

As your medical conditions evolve, the insurance company will want to occasionally reassess your eligibility for benefits. When this happens, the claims adjuster will return to your policy’s definition of disability. So, it’s important that you understand this definition. Most LTD policies define “disability” in one of two ways:

  • Own occupation: You are disabled if your medical conditions or injuries prevent you from doing your actual job.
  • Any occupation: The insurance company will pay your LTD benefits if you are unable to perform any type of work.

While most employer-sponsored, group LTD plans use the more stringent “any occupation” language, some private LTD policies contain an “own occupation” definition.

Your policy’s definition may significantly impact your right to ongoing long-term disability benefits. For example, suppose you work as an emergency department physician. After a mild or moderate traumatic brain injury, you’re unable to continue this employment due to problems with your attention, concentration, and executive functioning.

However, with intensive therapy and counseling, you eventually regain some of your short-term memory and find coping mechanisms that could help you do simpler, less stressful jobs. If you have an “own occupation” policy, your benefits would likely continue after your modest improvement. With an “any occupation” policy, you may receive a termination of benefits notice.

When Should I Report Changed Circumstances to My LTD Insurance Company?

Whether you must report a change of circumstances depends on the “materiality” of the change. A change in circumstances is material if it will influence your eligibility to receive disability benefits or the amount of benefits that you might receive.

For example, let’s say you are currently receiving benefits for a total disability, but you underwent a surgical intervention that improved your condition. You are now only eligible to receive “residual benefits,” and you would have to notify your insurer.

Not all material changes are linked to the disabling condition itself. The basis of disability insurance benefits is that you are incapable of working. So, if your former employer offers to change the duties of the job to better suit your new limitations (and offers you the position), then you will likely have to notify your insurer of this change.

If your change in circumstances could affect your eligibility for benefits, you should report it to the insurance company. In many LTD policies, there is a required reporting schedule that you must follow. Under this schedule, you’ll probably have to update the insurance company on your health and medical treatment annually (some policies ask for an update every six months). However, there may also be an additional voluntary reporting requirement.  If you need help understanding your reporting obligations, consult an experienced LTD attorney.

 

What Will Happen After I Update the Insurance Company About My Disability Claim?

Once you’ve notified the insurance company about a change in your circumstances, the insurer will start to reassess your eligibility for LTD benefits. This may involve a series of tactics:

  • Requests for updated medical records: The insurance adjuster reviews your recent medical records to assess the severity of your condition and capabilities
  • Independent medical examinations: The insurance company pays a doctor to examine you and write a report that outlines your current limitations
  • Consulting physician assessments: Rather than examine you, the insurance company’s doctor simply reviews your medical records and issues a report
  • Field interviews: An insurance company representative meets with you in person to discuss your change in circumstances
  • Surveillance: Private investigators track you both in real life and online, looking for evidence that you’re capable of returning to work

This process can feel invasive and uncomfortable, which is why so many disability insurance claimants choose to negotiate an insurance buyout or settlement instead.

The Insurance Company Just Stopped My Benefits. What Should I Do?

First, don’t panic if the insurance company terminates your monthly benefits. However, you do need to act quickly. Depending on whether your LTD plan is privately funded or employer-sponsored, you may face strict filing deadlines for an appeal. To give yourself the best chance for success, you need to start building your case right away.

For most LTD claimants, the first step in their appeal is contacting an experienced disability insurance lawyer. An attorney can provide you with an honest assessment of your claim, suggest ways you can strengthen your appeal, and help you navigate the complex process of filing an administrative appeal or a lawsuit.

Bryant Legal Group: Chicago’s Respected Disability Insurance Team

At Bryant Legal Group, we’ve earned a reputation for our practical, client-focused approach to disability insurance law. Whether you’re considering applying for LTD benefits or the insurance company terminated your monthly payments, our team can help you build a plan and educate you about your legal options. We assist people in Chicago and throughout Illinois with their disability insurance claims and appeals.

To schedule your free consultation with an attorney from our team, call us at 312-561-3010 or use our online form.

When you live with depression, anxiety, bipolar disorder, or another mental health condition, it can be hard to maintain employment. At Bryant Legal Group, we know how frustrating it is to suddenly find yourself unable to control your symptoms, especially if you’ve worked hard to build your career. Insurance companies, however, take a different view. Because they’re for-profit companies, insurers see long-term disability claims for mental health conditions as an expensive burden.

That’s why insurance companies often add limitations and exclusions that can affect your ability to get long-term disability benefits for mental illness. Most (but not all) group long-term disability insurance policies limit payment on mental health claims to one or two years of benefits. In this article, our experienced disability insurance lawyers outline factors that may affect your depression or mental health claim.

Mental Illness Is a Top Cause of Disability

According to the World Health Organization, depression is one of the top causes of disability. When you add in anxiety, bipolar disorder, post-traumatic stress, and other mental disorders, mental illness is a factor in the vast majority of disability cases worldwide. In the United States alone, one in five people live with a mental health disorder, and about 4% of us have severe mental illness.

Our mental health also has a profound impact on our ability to work. Many mental health disorders cause symptoms that interfere with our jobs, including:

  • Poor attention and concentration
  • Memory difficulties
  • Anxiety and panic attacks
  • Feelings of hopelessness, helplessness, and worthlessness
  • Fatigue and sleep disturbance
  • Lack of motivation and follow-through
  • Crying spells
  • Impulsive behavior
  • Mood swings and personality changes
  • Problems with decision-making and executive functioning
  • Suicidal thoughts and self-harm

Globally, it’s estimated that we lose $1 trillion in productivity each year due to depression and anxiety.

Because our mental health issues are so profound and evaluating how severe a mental health condition can be very difficult, insurance companies have tried to lower their costs by limiting coverage of these conditions. Whether you have an employer-sponsored group disability insurance plan or a private policy, you need to understand insurance companies’ tactics and how to respond.

Look Out for “Mental and Nervous” Limitations

Unlike Social Security disability benefits, long-term disability insurance is offered by privately owned insurance companies. These companies can include a wide variety of terms, conditions, exceptions, and limitations to their plans. You should always carefully read your disability insurance plan’s documents before you file a claim for benefits.

Long-term disability policies often include a “mental and nervous” clause that limits the amount of time you can receive benefits for a mental disability. Policies vary substantially, but as a general rule, most “mental and nervous” clauses impose a one- or two-year limitation.

For example, if you are suffering from depression that is so severe that you cannot work, then you may be eligible for benefits under your long-term disability plan. However, if your plan includes a “mental and nervous” limitation, you’ll only receive benefits for a few years, even if your disability lasts longer. As soon as you reach your plan’s cut-off date, the insurer no longer has to pay benefits for your mental health claim.

There Are Exceptions to Most “Mental and Nervous” Clauses

It’s worth noting, however, that “mental and nervous” limitations have exceptions. For example, many long-term disability mental health limitations do not apply to organic brain disorders, like schizophrenia, Alzheimer’s disease, and other forms of dementia. Your disability lawyer can help you review your policy’s “mental and nervous” limitation and apply it to your unique circumstances.

However, be prepared for a fight. Long-term disability insurers sometimes try to redefine disabling conditions as mental health problems to cut costs. By categorizing your disability as solely a mental health condition, the insurer will try to avoid paying out significant lifetime benefits that they might otherwise owe. You and your lawyer will have to counter their tactics with compelling evidence and insight from your treating physicians and other experts.

Additionally, many people with depression and anxiety also have disabling physical conditions. According to the National Alliance on Mental Illness, if you have a mental health issue, you’re 40% more likely to have heart disease or a metabolic condition. If physical conditions, like heart disease, degenerative disc disease, or an autoimmune disorder, also prevent you from working, the “mental and nervous” limitation may not apply to your claim.

 

Insurance Companies Misinterpret Medical Evidence and Policy Language to Their Advantage

When you apply for disability benefits, you’ll fill out a series of forms and provide the adjuster with medical evidence and other information. Then, the insurance company rep must review all the information, apply your policy’s terms and conditions, and decide whether you’re eligible for benefits. Insurers sometimes misinterpret policies’ language, gloss over your medical records, and deny long-term disability benefits.

For example, the insurance adjuster may try to argue that your depression is disabling, but that your physical conditions are not as severe. Suppose that you have coronary artery disease, diabetes, and depression. The adjuster may agree that your depression is disabling and apply your policy’s two-year limitation on mental illness. However, they may also argue that you’ve fully recovered from your heart attack and that your uncontrolled blood sugars are due to your poor diet and lifestyle choices.

Disability insurance plans often include vague limitations and poorly written definitions of mental health conditions. For instance, some insurers have (unsuccessfully) tried to argue that a policy that fully covers schizophrenia may not provide the same level of benefits for “schizoaffective disorder,” a condition that involves similar symptoms and limitations.

In a long-term disability claim, you’ll need to collect and interpret critical medical evidence that explains your conditions and their severity. Then, your disability insurance lawyer will take all of these facts and analyze them based on your policy’s language and the law. Fortunately, Illinois law ensures that courts must interpret all ambiguous provisions in private insurance in favor of you, the policyholder.

Substance Use and Mental Health Are Often Linked, Bringing in Other Policy Limitations

More than 19% of people with mental illness also struggle with a substance use disorder. While our disability attorneys understand that addiction is a disease, insurance companies sometimes use people’s struggles with substance use against them. Many long-term disability plans limit addiction-related benefits to one or two years.

However, insurance adjusters will sometimes argue that overdoses and substance use are “self-inflicted,” and many LTD plans exclude injuries due to self-harm. Don’t fall for these tactics. Instead, consult an experienced disability attorney who can help you build your case and correctly interpret your policy’s language.

Some Private LTD Policies Don’t Include “Mental and Nervous” Limitations, So Review Your Plan Carefully

When you purchase a private disability insurance policy, you have more control over the terms and conditions. You and your agent may have considered a variety of plans that offered different levels of coverage, terms and conditions, and monthly premiums. Some of these private insurance policies do not include “mental and nervous” limitations.

If you’re a business owner, professional, or another person who has private long-term disability insurance, you must carefully review your plan’s language. If you need help interpreting your policy’s dense and hard-to-read conditions, contact your attorney. They can use their years of experience and legal knowledge to help you navigate your Plan Document.

Bryant Legal Group: Fighting for Disabled People in Chicago and Throughout Illinois

When your disability claim involves mental health issues like depression, anxiety, or affective disorder, the insurance company may try to limit your LTD benefits. At Bryant Legal Group, our team helps people get the compensation they deserve. For decades, we’ve fought for people with mental illness, giving them the information and support they need at every step, and we’ve won millions in benefits for our clients.

To schedule your free, no-risk consultation, contact us at (312) 667-2536 or use our online contact form. 

You’ve paid your private disability insurance premiums on time for years. Then, when you file a claim for disability insurance benefits, you get a letter saying you “hid” a medical condition, and your policy is canceled or void. How can this happen?

Most private disability insurance policies require that you tell the truth and accurately describe your medical conditions in an application. But even if you’ve been completely truthful, insurers will sometimes try to void your policy to get out of paying your short-term and long-term disability benefits.

If you made a mistake on your disability insurance application or the adjuster claims you did, it’s time to consult an experienced disability attorney from Bryant Legal Group. Your disability benefits claim may still be legitimate, even if there were mistakes (or misrepresentations) in your insurance contract or application. To learn more, keep reading.

When Can an Insurer Cancel a Policy?

Under Illinois law, there are various reasons why an insurance company can cancel a disability insurance policy. For example, you’ll lose coverage if you fail to pay your monthly premiums or violate the terms of the plan. When this happens, you should get a written notice in the mail.

However, insurance companies can also void your policy or deny a claim if you made misrepresentations in your written application or other policy documents. Typically, the insurance adjuster will say that you hid a chronic or disabling medical condition. Instead of getting a cancellation notice, you may receive a letter denying your short-term or long-term disability claim.

Pre-Existing Conditions and Disability Insurance

When you apply for a private disability insurance policy, the insurer will typically ask you about your pre-existing conditions. It’s in your best interest to outline all of your chronic conditions and existing injuries. However, mistakes can happen. Other times, the insurance adjuster will study your medical records and search for evidence of an undisclosed, pre-existing condition.

Many private disability insurance policies include a detailed list of pre-existing condition exclusions. If your condition existed when you applied for coverage and is excluded, you’ll likely be denied benefits.

However, the adjuster will sometimes take things out of context. Suppose you occasionally complained of headaches at your doctor’s appointments, often due to allergies or a cold. Later on, you develop migraine headaches. The insurance adjuster may try to deny your migraine-related disability, arguing that you failed to mention your (unrelated) headaches when you applied for coverage. In this case, you should immediately contact a disability insurance lawyer and work with them to file an appeal or lawsuit.

 

Misrepresentations Won’t Always Void a Disability Insurance Policy

In Illinois, our state’s Insurance Code outlines the circumstances when an insurer can rescind a policy and deny your disability insurance claim. Under Section 154 of the code, the insurance company must show that:

  • The insurance contract or application contains a written misrepresentation
  • Your statements were false, and you intended to deceive the insurance company
  • The misrepresentation was material to the spirit of the disability insurance contract and would have influenced coverage

Generally speaking, an honest mistake on an insurance application will not give an insurer the right to revoke your policy.

For example, suppose you forgot about a childhood injury, and you didn’t include it in your application’s medical history section. Years later, when you file a claim for LTD benefits, the insurance adjuster denies your benefits due to this “misrepresentation.”  As long as you can show that the error was unintentional, you should be able to enforce the insurance policy.

Whether a misstatement or omission is “material” is more complicated and depends on the circumstances. The insurer must show that, had they known the truth, they would have denied your coverage or changed the terms of your insurance policy.

For example, suppose you lied about your marital status in your application. Later on, you’re in a catastrophic car accident and suffer a spinal cord injury. Your marital status probably has nothing to do with your claim and would not have impacted the insurance company’s decision to cover you.

However, let’s say you have a long history of back pain. You apply for short-term disability coverage and fail to list your orthopedic doctor, your physical therapist, or your diagnosis on your application. Later on, you undergo spinal surgery due to severe degenerative changes. When you file for disability insurance benefits, you may face challenges due to your unreported medical history.

If the insurance company is arguing that you made a material misrepresentation, it’s best to contact an experienced disability insurance lawyer. They can guide you through this nuanced legal analysis and help you identify your next steps.

Bryant Legal Group: We Stand Up to Insurance Companies in Illinois

At Bryant Legal Group, our team helps people across Illinois and Chicago get the disability insurance benefits they deserve. If your long-term or short-term disability insurer denied you claim due to a pre-existing or “hidden” condition, call us today. Our client-focused approach will help you regain control.

To schedule an appointment, either use our online contact form or call us at (312) 667-2536.

When most of us think about “disability,” we define the term simply: you can’t work because of an illness, medical condition, or injury. However, when you apply for long-term disability insurance, you’ll discover that “disability” can mean many different things, depending on your policy.

Unfortunately, many disabled individuals don’t realize that their policy’s language can have a profound impact on their right to benefits. This lack of understanding can lead to a lot of frustration and denied benefits. In this blog article, our disability insurance lawyers break down the difference between “own occupation disability” and “any occupation disability.”

Read Your Long-Term Disability Plan Document

A long-term disability (LTD) policy is a contract. Either you or your employer agreed to the terms in the contract when they bought the coverage, even if you didn’t read them. When you apply for long-term disability benefits, these terms and conditions will affect when you apply, whether you’ll get monthly benefit payments, and how much you’ll receive.

If you apply for disability insurance benefits before reviewing your policy’s standards and processes, you’ll be at a serious disadvantage. To get started, you should request the following documents:

  • Plan Document: Details every term, condition, and process that applies to your policy; Plan Documents are often dense and difficult to read
  • Summary Plan Description (SPD): Outlines the key elements and procedures of your long-term disability plan in an easier to read format

While you may prefer reviewing the SPD, your disability lawyer will probably dig into the precise language of the Plan Document.

One of the most important issues outlined in your LTD policy is its definition of disability. If you don’t meet the definition, you cannot receive benefits. While every policy has unique quirks, most lawyers break disability definitions into two categories: own occupation disability and any occupation disability.

Own Occupation Disability Focuses on Your Actual Job

Own occupation and regular occupation policies will pay your long-term disability benefits if you can prove that you are unable to perform the primary duties of your current job because of an illness, injury, or chronic medical condition.

For example, a surgeon with severe nerve damage in their hands may be unable to perform surgery. Even if the surgeon could take on different, less hand-intensive work, they should get disability benefits under an own occupation disability insurance plan.

Compared to “any occupation” disability plans, it’s easier to get disability insurance benefits under an own occupation plan since you only have to show that you’re unable to perform the substantial duties of your specific occupation. You also may be able to perform simpler or lighter work and still get the benefits you need.

For this reason, insurance companies tend to avoid the “own occupation” definition of disability in long-term disability policies. (It is much more common in short-term disability plans.) However, if you have an individual disability insurance policy that you purchased, you may have an own occupation definition in your Plan Document.

What’s My Occupation?

If you have an own occupation disability policy, don’t be surprised if the insurance company tries to categorize your work in a way that’s inaccurate. Insurance adjusters often try to describe your job as broader and easier than your specific occupation. If this occurs during your disability claim, your disability lawyer will typically work with vocational experts, assessing your job description, essential duties, and employment records to determine how to categorize and define your occupation.

Insurance Companies Often Add Limitations to Own Occupation Policies

Because a true own occupation policy is relatively lenient, insurance companies often try to add qualifications and limitations to these definitions. When you review your Plan Document or Summary Plan Description, look out for these more restricted versions of an own occupation policy.

  • Modified own occupation: You must show that you cannot perform your actual job and you are not working in any other occupation.
  • Transitional own occupation: This definition of disability requires that you cannot perform your actual job and are not earning more than your pre-disability income.

Other times, you may receive a partial long-term disability benefit if you have returned to work.

 

Any Occupation Disability Usually Requires Total Disability

Any occupation definitions of disability are common in long-term disability plans. Insurance companies prefer the any occupation definition because it makes it harder for individuals to receive benefits. If your policy contains “any occupation” language, you must prove that you’re unable to perform the substantial duties of any occupation, not just your own job.

For example, let’s revisit the surgeon with severe nerve damage in their hands. Suppose that the surgeon’s work restrictions limit repetitive use of their hands, gripping, and grasping, but they are otherwise healthy. While the doctor is unable to perform surgeries, the insurance company will argue that they have other options, like teaching at a medical school, telemedicine, or even simple jobs outside the medical profession.

Look for “Gainful Occupation” Language in Your Long-Term Disability Policy

Some long-term disability policies define disability as being unable to perform any gainful occupation. While this may sound identical to “any occupation,” the addition of the “gainful” can loosen your policy’s definition of disability.

  • Any occupation: You must show that you are unable to perform any job, including the simplest, lowest-paying ones.
  • Any gainful occupation: A gainful occupation is one that pays you a significant portion of your pre-disability wages, often between 60–80%.

For example, suppose our surgeon’s policy says they cannot perform any gainful occupation and defines a gainful occupation as one that earns them at least 60% of their pre-disability income. Before they stopped working, the surgeon earned $500,000 annually. The surgeon’s disability insurance lawyers collect evidence that shows the surgeon’s restrictions limit them to jobs that pay roughly $100,000, or 20% of their prior earnings. In this case, the surgeon may be eligible for long-term disability benefits.

Look Out for Hybrid Own Occupation and Any Occupation Language

Even if your long-term disability plan starts as an own occupation policy, don’t assume it will stay that way. Some disability insurance plans take a hybrid approach. For a specified period (typically two years), the insurance company will pay your disability benefits if you’re unable to do your own job. However, after that time, your policy will convert into an any occupation plan.

We’ve met with many people who felt blindsided when the insurance adjuster suddenly terminated their LTD benefits, even though their condition had not changed. We often discover that these denials are due to a changed disability definition.

However, remember that you have rights and options after you receive a denial. If you receive a letter ending your long-term disability benefits, you should always consult a disability insurance lawyer. The team at Bryant Legal Group can help you understand your legal options and work with you to get you the benefits you deserve.

Bryant Legal Group: Illinois’ Trusted Disability Insurance Team

If you’d like to learn more about your long-term disability plan’s terms and conditions, or if you need help filing a claim or appeal, contact Bryant Legal Group today.

Our respected disability lawyers take a practical, hands-on approach, and we’ve recovered millions for our clients. We also offer remote consultations if you would rather not meet in person due to concerns about your health.

To schedule your free initial consultation, call us at 312-667-2536 or complete our online contact form.

When you’re unable to work, due to an injury, illness, or chronic medical condition, you may be eligible for short-term disability benefits. Many people think that getting short-term disability is a simple process and are surprised when issues come up that lead to a denial or termination of benefits.

If you’re considering applying for short-term disability, you need to be prepared. To give yourself the best chance at getting benefits without an appeal, you need to provide detailed information and substantial evidence. In this article, we’ll outline the essentials of a short-term disability claim.

What Is Short-Term Disability Insurance?

Short-term disability insurance plans are available either independently through a private insurance plan or through your employer. The employee benefits from these plans serve as a limited wage replacement during a temporary disability period.

For example, suppose you are in a car accident and need cervical spine surgery. Your doctor takes you off work for six months while you heal and rebuild strength. Thankfully, your back heals, and you’re able to return to work. Under these circumstances, you may be eligible for short-term disability benefits during the six months of recovery.

Short-term disability is different from workers’ compensation. To get workers’ comp, your injury or illness must be work-related, which means you either suffered the injury on the job or it occurred directly because of your work duties. With short-term disability, you can collect benefits even if the injury or illness happened away from your workplace and had nothing to do with your work.

Also, short-term disability and workers’ compensation don’t necessarily exclude each other; in some instances, it is possible to collect both types of benefits at the same time.

Short-term disability is also not related to Social Security Disability (SSD). The Social Security Administration does not offer any type of short-term benefits.

Am I Eligible for Short-Term Disability Benefits?

Depending on your short-term disability insurance plan, you can have quite different requirements for qualification. Each plan has its own definition of what constitutes a qualifying “disability,” and there are additional requirements that can differ, too.  These requirements may include:

  • Minimum period of time working for an employer before coverage applies
  • Full-time employment
  • Minimum duration of disability (usually a minimum of 8–9 weeks)
  • Frequency of medical updates

Requirements may differ from plan to plan, but in general, short-term disability coverage requires that you have a condition that prevents you from working for a significant but temporary period, usually between two months and one year. There is often a waiting period (also called an “elimination period”) before you are entitled to receive benefits, and you may have to use sick days at work before your benefits kick in.

 

How Much Will I Receive in Short-Term Disability Benefits?

Short-term disability benefits will pay a percentage of your wages. Depending on the terms of your disability insurance plan, you may receive 40, 50, or 60 percent of your wages on a weekly, biweekly, or monthly schedule.

For example, if you were earning $3,000 per month and your short-term disability plan paid out 50 percent of your wages, you could receive $1,500 per month in biweekly payments of $750.

How Long Will My Short-Term Disability Benefits Last?

Short-term disability benefits are intended as a stopgap measure that replaces your wages following an unexpected event, like an accident or illness. Under most plans, the benefit period lasts for a year or less.

If your disabling condition continues, you may be eligible to receive long-term disability benefits. Depending on the plan, your short-term disability benefits may automatically qualify you for long-term disability benefits after a certain period of time.  Otherwise, you will have to reapply and qualify for long-term disability benefits.

RELATED: How Long Do I Have to Wait for a Disability Insurance Decision?

How Do I Apply for Short-Term Disability Benefits?

Before you apply for short-term disability benefits, it’s important to understand your plan’s exact terms and conditions. You should request a copy of your Plan Document and Summary Plan Description from your employer’s human resources department or directly from the insurance company. Then, carefully read these documents (or work with an attorney who can read them) to identify the disability definition, filing deadlines, and procedures that apply to your claim.

Because filing a disability claim is a highly technical process, we encourage short-term disability claimants to schedule a consultation with an experienced lawyer. Disability insurance claims require a detailed understanding of the law, medicine, and vocational analysis, and a single misstep can cost you the benefits you deserve.

Also, short-term disability benefits are short-lived. Sometimes, insurance companies deny or delay valid claims, hoping that you’ll simply return to work and give up. So, it’s critical that you consult an attorney early on in the process. Your attorney will challenge wrongful denials and work to make sure that your full benefits are paid promptly.

Once you understand the policies and processes that will frame your short-term benefit claim, you and your lawyer will compile evidence, including medical records and statements from your physicians. You’ll also complete a series of forms that discuss your disability, work experience, job requirements, and other issues.

RELATED: Common Reasons for Denial of Short-Term Disability Benefits

What Happens After I File for Short-Term Disability Benefits?

Once the disability insurance company receives your application for benefits, an adjuster will investigate your claim. They may ask for additional information or schedule an examination with one of their doctors. In general, the company will look for reasons to deny your claim, like a pre-existing condition. Based on its assessment, the insurance company will either approve or deny your claim.

However, you do have the right to appeal the insurance company’s decision. If you receive a written notice denying your short-term disability claim, you should contact a disability insurance attorney immediately to discuss your legal options.

Bryant Legal Group Is Here to Help With Short-Term Disability Claims in Chicago

If you’re ready to apply for short-term disability benefits, it’s time to get in touch with an experienced Chicago short-term disability attorney at Bryant Legal Group. Our attorneys have decades of experience helping people file successful short-term disability claims and challenge unreasonable denials. We are committed to our clients, and we make ourselves available to answer any questions or concerns you may have regarding the claims process.

Call 312-561-3010 or complete our online contact form to speak with one of our short-term disability attorneys today. We look forward to assisting you.

Filing for disability insurance benefits can be a difficult decision, especially when you love your profession. However, when you’re unable to work due to an illness, injury, or chronic condition, short and long-term disability benefits can provide financial security and peace of mind. If you’re not sure where to start, Bryant Legal Group wants to help.

In this article, we outline several ways you can strengthen your ERISA claims and streamline the application process.

Don’t Minimize Your Symptoms When You Talk to a Doctor

One of the most important tips is simple: always be honest with your doctors. Your doctor appointments are not the time to sugarcoat your daily life. We frequently hear feedback from clients that they want their doctors to feel positive about their treatment and what they are doing to help them, so they minimize their symptoms. This is never a good idea.

The first reason is that your doctor needs an accurate report of your symptoms’ severity to provide the best treatment possible. If they don’t understand the significance of your conditions, your medical team cannot build a treatment plan that fully meets your needs.

Secondly, inaccurate statements can complicate your disability claim. If you always tell your doctors that you are feeling “better,” your medical records won’t reflect how you actually feel — and the insurance company will use the records to attack your credibility and deny your claim. Your doctor is not a mind reader and cannot necessarily tell how you feel if you are not honest with them.

Review Your Medical Records for Inaccuracies

Here’s why your medical records are the most critical evidence for any disability claim.

  • X-rays, MRIs, and other diagnostic tests provide objective support for your claims.
  • Your doctors’ notes track the progression and severity of your symptoms.
  • A physical exam might note subtle evidence like muscle spasms and gait issues that can impact your ability to work.
  • Your records may contain your doctors’ suggested work restrictions and limitations.
  • Your treatment plan and prognosis can help the insurance company understand how long you’ll be unable to work.

You want those records to be as accurate as possible. Even if you have been honest with your doctor, mistakes and typos might still appear. That’s why it’s a good idea to review your records and consider pursuing correction if there are any errors. Both the Department of Health and Human Services and Health Policy Institute at Georgetown University provide helpful resources about correcting medical records.

 

Request Copies of Your Disability Insurance Plan Documents

Every disability insurance plan is different, and you need to understand your policy’s precise terms and conditions. This requires a careful analysis of your plan document and summary plan description (SPD), which contain your disability insurance plan’s:

  • Definition of disability
  • Waiting periods and filing deadlines
  • Exclusions for certain conditions and diagnoses
  • Limitations for pre-existing conditions, mental health disabilities, and substance abuse claims
  • Appeal process
  • Any other requirements for the payment of benefits

This information can help you and your disability insurance lawyer determine whether you qualify for benefits, when you should file your claim or appeal, and the value of your claim.

Under federal law, you have the right to receive copies of your plan documents from your disability plan administrator, usually your employer. Simply contact your human resources representative or disability insurance company and request copies. You can also request a copy of your disability insurance file if you’ve already applied for benefits and been denied.

RELATED: 5 Essential Questions You Should Ask a Disability Insurance Lawyer

Consult an ERISA Lawyer Before You Apply

Navigating a disability insurance claim isn’t an easy process, especially if your claim is covered by ERISA — a federal law that governs most employer-sponsored benefit plans. Unless you follow the claim and appeal procedures to perfection, you might lose out on your disability insurance benefits.

When you work with an ERISA lawyer, they will help you identify the timelines, procedures, and legal issues that impact your claims. Then, your legal team should build a comprehensive strategy aimed at getting you the benefits you deserve.

Bryant Legal Group: Respected Disability Insurance Lawyers

At Bryant Legal Group, our team has represented people with disabilities for decades. We provide our clients with practical advice, emotional support, and aggressive legal strategies.

To request a no-risk consultation, please contact our office by calling 312-561-3010 or completing this brief and easy online form.

If you are suffering from a disability and have had your benefits claim denied by your private disability insurer, then you may be entitled to bring an action against your insurer — whether your insurance coverage was purchased individually or provided as part of an employer-sponsored plan.

Insurers are often quite aggressive in denying private disability benefits. In many cases, the insurer understands that if they deny a “difficult” or “ambiguous” benefits claim for which they can provide a reasonable justification, a number of claimants will simply refrain from any further attempts to secure their rightful benefits. This strategy saves insurers a substantial amount, as they can avoid having to payout benefits that they might otherwise have to pay if the claimant were to challenge the denial.

Consider the following justifications commonly used by private disability insurers to deny benefits.

Application of a Coverage Exclusion

Private disability insurance policies can vary drastically, and as such, your coverage may feature a number of exclusions that are unique to that particular insurance contract. Insurers may apply those exclusions in an over-broad manner to avoid having to payout benefits. It’s important that you seek the assistance of an attorney to evaluate the policy and determine the contours of those exclusions.

Some coverage exclusions are so common that they are nearly ubiquitous in the disability insurance context. For example, the vast majority of disability plans feature a coverage exclusion that makes those who intentionally cause their own disabling condition/injury ineligible for benefits.

Claim Submission Lacked Sufficient Information

When you submit your claim for benefits, it must include sufficient documentary evidence and information to support your claim — in fact, it must be so comprehensive that the insurer cannot reasonably deny your claim for insufficiency. If you are missing certain medical records in your application for benefits, for example, then the insurer is likely to use that as a basis to deny your claim.

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Coverage Rescinded Due to Material Misrepresentation

Insurers often deny claims when they determine that the policyholder has made a material misrepresentation on the original application to purchase coverage. Insurers tend to be overly aggressive in enforcing this rule, however, and in doing so, they may unjustifiably rescind coverage (and deny your claim) without property considering whether the misrepresentation at-issue was actually “material” — in other words, relevant — to the coverage.

For example, if you misspelled your name on the insurance application form, that would be considered irrelevant to your coverage. The insurer could not use something so minor and immaterial to justify denial.

Disability is Related to a Pre-Existing Condition

When an insurer provides disability coverage, they generally exclude benefits for pre-existing conditions. Of course, insurers tend to be rather excessive in interpreting the extent of your pre-existing condition and the relatedness of your new disability.

Medical Treatment and Mitigation Concerns

Insurers will almost certainly deny benefits if there are significant gaps in your medical care after you have received an injury, or suffered an illness or condition that later causes you to become disabled. Most disability policies require the appropriate treatment of your medical condition. Policyholders must make reasonable efforts to seek and maintain appropriate medical care.

Contact a Skilled Chicago Private Disability Attorney for Help

Here at Bryant Legal Group, P.C., our attorneys have extensive experience representing private disability claimants in disputes with their insurance carriers, including situations that involve wrongful denials.  We understand the underlying dynamic that fuels the conflict between insurer and policyholder — the incentive to deny disability claims and thereby avoid having to payout benefits — and how to approach the dispute so as to secure maximum benefits on our client’s behalf.

Interested in learning more about your claims?

Call (312) 561-3010 today to schedule a consultation with an experienced Chicago private disability attorney at Bryant Legal Group, P.C.  We will evaluate your claims and help you to develop an effective forward-strategy.

Disability is Related to a Pre-Existing Condition

When an insurer provides disability coverage, they generally exclude benefits for pre-existing conditions. Of course, insurers tend to be rather excessive in interpreting the extent of your pre-existing condition and the relatedness of your new disability.

Medical Treatment and Mitigation Concerns

Insurers will almost certainly deny benefits if there are significant gaps in your medical care after you have received an injury, or suffered an illness or condition that later causes you to become disabled. Most disability policies require the appropriate treatment of your medical condition. Policyholders must make reasonable efforts to seek and maintain appropriate medical care.

Contact a Skilled Chicago Private Disability Attorney for Help

Here at Bryant Legal Group, P.C., our attorneys have extensive experience representing private disability claimants in disputes with their insurance carriers, including situations that involve wrongful denials.  We understand the underlying dynamic that fuels the conflict between insurer and policyholder — the incentive to deny disability claims and thereby avoid having to payout benefits — and how to approach the dispute so as to secure maximum benefits on our client’s behalf.

Interested in learning more about your claims?

Call (312) 561-3010 today to schedule a consultation with an experienced Chicago private disability attorney at Bryant Legal Group, P.C.  We will evaluate your claims and help you to develop an effective forward-strategy.

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By: Stephen A. Jackson

Hennen v. Metro. Life Ins. Co., 17-3080, 2018 WL 4376994 (7th Cir. Sept. 14, 2018).

Hennen worked as a sales specialist for NCR when she sought treatment for a back injury.  She was covered under her employer’s long-term disability plan insured by MetLife.  When physical therapy and surgery failed to resolve her injury Hennen applied for LTD benefits under the plan. Acting as the administrator, MetLife agreed Hennen was disabled and paid benefits for two years.  However, the plan had a two-year limit for neuromusculoskeletal disorders subject to several exceptions, one applies to radiculopathy.  Hennen argued she was entitled to benefits beyond the 2-year limitation because she has radiculopathy.

Hennen had a history of back problems with a surgery in 2003 and 2008 including fusing three vertebrae in her lower back.  In February 2012 she suffered a new back injury and sought treatment with a specialist in physical medicine and rehabilitation.  She was diagnosed with disc herniation and was treated with physical therapy and pain management techniques.  Failing conservative treatment an orthopedic surgeon recommended surgery and operated on Hennen’s L3-L4 disc herniation in September 2012.  At follow up appointments Hennen was struggling to sit for any extended period of time and she complained of bilateral radiating pain down the buttocks, posterior thighs, and to the knee.  An MRI was ordered that showed no nerve compression.

With no surgical option Hennen sought treatment from Dr. Buvanendran, an anesthesiologist who provided pain management.  The physician treated Hennen’s leg weakness and pain with a series of epidural injection.  He then diagnosed Hennen with post-laminectomy pain syndrome and lumbar radiculopathy.  The injections failed and so the anesthesiologist implanted a spinal cord stimulator.  It provided relief for a few weeks, but symptoms returned including recurrent leg weakness and tripping.  After the device was dislodged in a fall, Hennen had multiple surgeries to fix ongoing issues with it.

With the two-year limit on the horizon MetLife contacted Hennen’s doctors for information. Dr. Buvanendran responded that Hennen was unable to work due to post-laminectomy pain syndrome and radiculopathy.

MetLife then advised Hennen that her condition fell within the neuromusculoskeletal limit and that additional documentation was needed to support a diagnosis of radiculopathy.  Hennen had another MRI.   On October 13, 2014, MetLife wrote Hennen that her benefits were scheduled to end on November 11, 2014, under the neuromusculoskeletal limitation.  Dr. Buvanendran then faxed the MRI to MetLife, which showed a new annular fissure but no herniation or stenosis. MetLife’s reviewing physician opined the MRI did not show compression that would support a diagnosis of lumbar radiculopathy.

Hennen appealed and through help of counsel challenged MetLife’s conclusion.  She also submitted an EMG by Dr. Kipta, a neurologist.  Dr. Kipta found nerve-related abnormalities on the EMG and concluded it confirmed radiculopathy in four nerve roots as did an examination that showed diminished nerve sensation.  Another board-certified neurologist Dr. Malik, who supervised Dr. Kipta, agreed with his findings.

Dr. Adewumni, MetLife’s medical director reviewed Hennen’s appeal and agreed with Dr. Kipta that the EMG supported radiculopathy.  Concluding that Hennen satisfied the radiculopathy exception MetLife consulted with Dr. McPhee to assess her condition and asked him two questions, whether the medical file supported functional limitations and if so, what those limitations were. Despite the limited scope of these questions Dr. McPhee opined the EMG was negative for active radiculopathy with no abnormal activity recorded.  He also criticized Hennen’s self-reported pain levels as implausible and he found her doctor’s notes on muscle weakness inconsistent.

MetLife utilized Dr. McPhee’s assessment to reject the medical director’s conclusion and to decide that Hennen did not meet the exception for radiculopathy.  Dr. Buvanendran responded that the EMG confirmed radiculopathy without any doubt and that Hennen suffers from radiculopathy.  In response, Dr. McPhee prepared an addendum and opined it would be helpful for Hennen to have additional electrodiagnostic testing.  MetLife did not order an IME or additional testing as Dr. McPhee had recommended nor did MetLife explain why additional testing was unnecessary. Instead, MetLife upheld its decision the next day.

Hennen sued MetLife in the Northern District of Illinois seeking plan benefits under ERISA. Upon cross-motions the court granted summary judgment for MetLife, reasoning Hennen failed to offer evidence of active radiculopathy.  The court also found MetLife’s reliance on Dr. McPhee’s opinion was reasonable.

Upon appeal to the Seventh Circuit the court agreed that Hennen had shown MetLife’s decision to terminate benefits was arbitrary and capricious.  MetLife acted arbitrarily when it credited Dr. McPhee’s opinion over the opinions of four other doctors, including Hennen’s treating physician, two neurologists with clinical training in electrodiagnostic training, and MetLife’s own medical director. The arbitrary character is demonstrated by MetLife’s choice not to follow Dr. McPhee’s recommendation to order an IME and additional testing.

To reach the conclusion that that Hennen lacked “objective evidence” of active radiculopathy MetLife relied on Dr. McPhee’s opinion based solely on a file review without examining Hennen. MetLife acted arbitrarily in rejecting the opinions of every physician who examined Hennen who concluded she had radiculopathy. Those doctors’ opinions ad substantial medical support and Dr. McPhee was the only doctor who believed that radiculopathy was absent. But MetLife never asked McPhee to diagnose Hennen or make a finding of radiculopathy.  McPhee was only asked to assess Hennen’s functional limitations once Dr. Adewumni concluded Hennen met the plan’s radiculopathy exception.

Another indication of arbitrary decision-making was MetLife’s failure to heed Dr. McPhee’s recommendation to seek further testing and an IME.  MetLife chose not to follow up on Dr. McPhee’s advice and instead treated his original opinion as definitive and immediately sent Hennen a letter affirming the denial of benefits.

As a fiduciary, MetLife owed Hennen a duty to execute faithfully the terms of the plan. Here, MetLife took an extra step for its own benefit when it referred Hennen’s file to Dr. McPhee, but when Dr. McPhee recommend that MetLife take an extra step for Hennen’s benefit – to confirm whether his lone opinion was accurate – MetLife declined to take that step.  That was arbitrary and capricious.

The fact that MetLife acted arbitrarily and capriciously does not mean that Hennen is automatically entitled to benefits.  The remedy is to remand to MetLife, so it can reassess Hennen’s claim consistent with the court’s opinion and to correct the defective procedures and provide Hennen with the procedures she sought in the first place.

If you’ve had a legitimate insurance claim denied in Illinois — whether a health insurance claim or a disability insurance claim — then you may find that the insurer justifies their denial on the basis of a discretionary clause written into the policy.

Discretionary clauses can vary in function somewhat, but as a general rule, they give the insurer the ability to interpret (in accordance with their own standards) the terms of the contract.  This type of “discretionary” power gives the insurer an enormous advantage when it comes time to determine whether or not to award health or disability benefits.

Discretionary Clauses are Prohibited in Health and Disability Insurance Policies

Fortunately for policyholders in Illinois, the state has banned discretionary clauses from health and disability insurance policies — the courts have determined that giving an insurer discretionary authority when interpreting the terms of an insurance policy would put the policyholder in a highly-disadvantageous position.

For example, an insurer would be prohibited from making a decision on whether to accept or deny your disability insurance claim due to some ambiguous discretionary standard.  A provision that allowed the insurer to deny a claim “at their discretion” (or using functionally similar language) would therefore not be enforceable.  You could challenge the use of discretionary authority by the insurer, and have a court re-examine the legitimacy of your insurance claim under an objective “de novo” standard of review.

Courts Must Apply the De Novo Standard of Review

When a court defers to the standards applied by an insurer (in making a decision relating to an insurance claim), they are applying the “deferential” standard of review.  By contrast, the “de novo” standard of review is one in which the court considers whether your insurance claim qualifies for benefits without paying any heed to the interpretation of the policy terms by the insurer.  In other words, “de novo” review is akin to starting with a blank slate.  The court will not give weight to the decision of the insurer.  They will examine the evidence in an unbiased manner.

In Illinois, the law not only prohibits the inclusion of discretionary language in health and disability insurance policies, but also requires that courts apply de novo standard of review when evaluating claim denials.  In fact, here at Bryant Legal Group, P.C., our attorneys have been involved at the cutting-edge of “de novo” standard of review case law in the state of Illinois.

 

Get in Touch With an Experienced Chicago Insurance Attorney

If you’ve had your insurance claim wrongfully denied by your insurer, then you may be entitled to appeal the denial, or — in certain circumstances — pursue litigation against the insurer in order to recover your rightful benefits.

When challenging the decision of an insurer in Illinois, it’s worth noting that the reviewing court is required to apply the “de novo” standard of review, even if the insurance policy contains a discretionary clause (which is illegal in the state of Illinois).  In order to successfully navigate this complicated legal landscape, we encourage you to get in touch with an experienced Chicago insurance attorney here at Bryant Legal Group, P.C., who can advocate on your behalf through every step of the litigation process.

Our attorneys have represented numerous policyholder-clients in a range of disputes with their insurers, in both the health insurance and disability insurance contexts.  We are intimately familiar with worst tendencies of insurers — such as their willingness to include ambiguous and damaging provisions in the insurance contract — and are well-positioned to challenge their conduct in a court of law.

Call (312) 561-3010 today to schedule a free consultation with one of the skilled attorneys here at Bryant Legal Group, P.C.

By: Jennifer Danish

Courts infrequently award attorneys’ fees to defendants for having to defend themselves in ERISA disability benefit claims. Recently though, the Court, in James W. Hackney v. Allmed Healthcare Management, Inc., No. 3:15-CV-00075-GFVT, 2018 WL 1981902 (E.D. Ky. Apr. 27, 2018) ordered an unsuccessful plaintiff to pay the defendant attorneys’ fees and costs, because the plaintiff pursued a cause of action not generally recognized as available under ERISA.

Hackney brought a state law negligence claim against Allmed for rendering an unlicensed medical opinion about him in connection with his long-term disability benefit claim under an ERISA-governed benefit plan insured by Lincoln National. The district court construed Hackney’s claim as one for the improper denial of long-term disability benefits, which could be filed under ERISA Section 502(a)(1)(B). Hackney v. Allmed Healthcare Mgmt., Inc., No. 3:15-CV-00075-GFVT, 2016 WL 1726098, at *3 (E.D. Ky. Apr. 28, 2016), judgment entered, No. 3:15-CV-00075-GFVT, 2016 WL 1728963 (E.D. Ky. Apr. 28, 2016), and aff’d, 679 F. App’x 454 (6th Cir. 2017), cert. denied, 138 S. Ct. 236, 199 L. Ed. 2d 122 (2017).  The court also held that
even if the claim against Allmed was not precluded by a prior judgment in the LTD case against Lincoln National, the claim against Allmed could not proceed under ERISA because Allmed is not a proper defendant in an ERISA suit challenging the wrongful denial of benefits. Id.

Hackney appealed his case to the Sixth Circuit Court of Appeals, and the decision was affirmed. The Sixth Circuit, in an unpublished decision, found that the state-law
claim against Allmed is completely preempted by ERISA, because, in essence, it is about a denial of benefits under an ERISA plan, and Allmed did not owe Hackney an independent duty under the Kentucky medical licensing statute. Hackney v. AllMed Healthcare Mgmt. Inc., 679 F. App’x 454, 459, 62 EB Cases 2564 (6th Cir.), cert. denied, 138 S. Ct. 236, 199 L. Ed. 2d 122 (2017). The court also agreed with the district court that Allmed was not a proper defendant for an ERISA claim, because it was not the plan administrator. Id. Hackney filed a writ a certiorari to the U.S. Supreme Court, which was denied. Hackney v. Allmed Healthcare Mgmt. Inc., 138 S. Ct. 236, 199 L. Ed. 2d 122 (2017).

AllMed initially filed its Motion for Attorneys’ Fees on May 12, 2016. Hackney v. Allmed Healthcare Mgmt. Inc., No. 3:15-CV-00075-GFVT, 2018 WL at *1. Although the motion was briefed, the underlying matter was still pending before the Sixth Circuit and the Court denied AllMed’s motion without prejudice and directed them to re-file following the resolution of Mr. Hackney’s appeal. Id. Three days after the Sixth Circuit affirmed, AllMed refiled its motion. Id. After briefing, the Court awarded attorneys’ fees, but directed additional briefing as to the amount owed by Mr. Hackney to AllMed. Id. The Court noted, “Mr. Hackney has repeatedly objected to any award for fees and or costs, but until now, has raised no specific objections to the amounts specified in AllMed’s declarations.” Id. In reviewing this case, this appears to have been a point where Plaintiff made a vital mistake—failing to raise specific objections to the award of fees and the award of fees in the proposed amounts early on.

The district court adopted the Magistrate Judge’s recommendation to award Allmed attorneys’
fees in the amount of $81,589.95 and expenses in the amount of $1,520.35. The Court stated:

Even though Mr. Hackney did not object to the claimed hours prior to Judge Atkins’s Recommended Disposition, he now files timely objections to the award. [R. 59.] However, only a few of these objections are adequately specific, and many of his objections lack merit. Mr. Hackney begins by filing several “Specific Objections to R&R,” and “General Issues and Additional Objections,” all of which fail to identify specific factual or legal issues from the Report and Recommendation, instead objecting to an award of any fees at all. The Court is not required to conduct a de novo review on such generalized objections. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Hackney v. Allmed Healthcare Mgmt. Inc., No. 3:15-CV-00075-GFVT, 2018 WL at *2.

Hackney identified four “Specific Objections to R&R,” in which he objected to any award of attorneys’ fees and costs based on his belief that the court should not have awarded fees and costs to AllMed at all. Id. The Court indicated that these were not objections to Judge Atkins’s Recommended Disposition, which merely addresses the amount of award, and that such objections were appropriately addressed in a motion under Fed. R. Civ. Pro. 60, which Hackney did not file. The Court summarized, “Mr. Hackney merely attempts to restate his displeasure with the Court’s previously ruling, and therefore, the Court refuses to address this objection. See Moore v. Prevo, 379 F. App’x 425, 428 n.6 (6th Cir. 2010); Murr v. United States, 200 F. 3d 895, 902 n.1 (6th Cir. 2000).” Id. And the Court concluded, “Mr. Hackney has had ample opportunity to address AllMed’s request and has, instead, used that opportunity to argue he should not be required to pay fees and costs at all. This objection also lacks merit.” Hackney v. Allmed Healthcare Mgmt. Inc., No. 3:15-CV-00075-GFVT, 2018 WL at *3.

Following these objections, Hackney addressed “General Issues and Additional Objections,” again outlining why AllMed should not be awarded attorneys’ fees and costs. Id. He claims neither party can satisfy the ERISA fee statute because Hackney never asserted an ERISA claim. The Court was unpersuaded and wrote, “This argument has been addressed ad nauseam. [R. 28; R. 37; R. 53; R. 58.] This Court and the Sixth Circuit have both determined the claim was governed by 29 U.S.C. § 1132. Id. Accordingly, the Court refuses to reconsider this objection.” Id.

Hackney again stated his belief that AllMed should not be awarded fees or costs because of its failure to comply with Federal and Local Rules. Id. He then raised a new argument, stating AllMed should not recover fees and costs because they did not incur any fees. Id. Hackney asserted without adequate evidence that Lincoln National Insurance Company would indemnify AllMed for such fees and costs. Id. The Court concluded again that these objections related to this Court’s previous award of fees and costs, not to the Report and Recommendation, and declined to address this objection.

The Court addressed some of the balance of Hackney’s objections that it deemed sufficiently specific and found:

  • Allmed is entitled to fees even though the billing entries did not include dates but included the bill number, the number of hours, the bill rate, and a brief redacted summary
    of the work. The Court explained that poor record keeping could reduce a fee, not result in a denial. Id, citing Ohio Right to Life Soc., Inc., v. Ohio Elections Comm’n, 590 F. App’x 597, 603 (6th Cir. 2014); Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir. 1999).
  • There is no law forbidding the award of attorneys’ fees when an attorney does not appear before the Court and simply works for a legal firm representing a party where other
    firm employees are admitted to practice before the Court. Hackney v. Allmed Healthcare Mgmt. Inc., 3:15-CV-00075-GFVT, 2018 WL at *4.
  • Allmed is entitled to recover fees opposing a motion at the Supreme Court that Hackney later withdrew and filing a response to the petition for writ of certiorari that was not
    Allmed succeeded in its opposition, because the Supreme Court denied the petition. Hackney v. Allmed Healthcare Mgmt. Inc., No. 3:15-CV-00075-GFVT, 2018 WL at *5.
  • Allmed is entitled to recover for all time spent on research, including 46 hours, totally less than 13% of the total time expended in the case. Id.
  • Allmed is entitled to recover time spent on unsuccessful efforts; “the fee will not be reduced simply because Allmed did not succeed on each motion it filed.” Id.
  • Allmed can recover time relating to communications with Lincoln National, because Hackney failed to provide any legal justification for this argument. Id.
  • Allmed is entitled to its sought-after costs even though costs labeled “copying” did not provide more detail. Id.
  • Allmed is not entitled to an additional $4,935 in fees for responding to Hackney’s objections to the award, because the issue has not been fully briefed and Hackney has not had
    the opportunity to respond. Hackney v. Allmed Healthcare Mgmt. Inc., 3:15-CV-00075-GFVT, 2018 WL at *6.

The reality is based on the language of ERISA and emphasized by this Court’s order, a plaintiff who pushes the envelope in an attempt to expand the scope of remedies available risks being found responsible for defendants’ attorney fees and costs. Plaintiffs must more creatively seek relief against third-party service providers, like Allmed, who routinely provide “paper reviews” of disability claims that can destroy the lives of claimants whose benefits are stopped in reliance on a doctor who never examined them in person and conducted a limited paper review of records—a third-party service provider with a conflict of interest between having a doctor render a fair opinion and the company’s business interests in maintaining the insurance industry’s business.

David A. Bryant & Jennifer Danish

On April 4, 2018, the Seventh Circuit Court of Appeals issued an opinion vacating the denial of a Supplemental Security Income disability claim brought by 47-year-old Rebecca Ann Akin, who suffered from fibromyalgia, back and neck pain, and headaches. Akin v. Berryhill, 887 F.3d 314 (7th Cir. 2018).

On appeal, Akin argued that the administrative law judge wrongly discounted her allegations of back pain, improperly credited the opinions of agency doctors who had not reviewed all the medical records (including MRI scans) and disregarded her history of headaches. In its opinion, the Seventh Circuit described in detail Akin’s history of chronic back and neck pain, headaches, and other symptoms associated with her fibromyalgia diagnosis. The court then noted that the agency doctors whose opinions were relied upon by the ALJ did not review about 70 pages of medical records, including relevant MRI results. Rather, in denying the claim, the ALJ interpreted the MRI results himself. The Seventh Circuit found that this evaluation of the MRI results was flawed because the ALJ impermissibly “played doctor.” Akin, 887 F.3d at 317, citing, Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014). The lower court’s decision denying benefits was vacated and the case was remanded to the agency for further proceedings.

In commenting on Akin’s additional arguments, the Seventh Circuit further addressed and criticized the ALJ’s finding that Akin’s testimony was “not entirely credible” as “meaningless boilerplate.” In this discussion, the court noted that the disabling pain caused by fibromyalgia cannot be evaluated or ruled out by objective medical tests, as relied upon by the ALJ. Akin, 887 F.3d at 318, citing, Vanprooyen v. Berryhill, 864 F.3d 567, 572 (7th Cir. 2017).

Further, the court noted that the ALJ improperly discredited Akin’s testimony regarding her preference to delay undergoing a series of injections. The court noted that the ALJ did not consider Akin’s stated reasons for preferring a conservative course of treatment, as those stated reasons did not undermine the legitimacy of her complaints of disabling pain. Id, citing Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014).

Finally, the court noted that based on the opinions of two state-agency consultants, the ALJ discounted Akin’s complaints of headaches, despite Akin’s persuasive arguments to the contrary based on CT scans and other evidence. Akin, 887 F.3d at 318.

Roy Alan Cohen, The Tort Trial and Insurance Practice (TIPS) Section 2018-2019 Chair, appointed Jennifer Danish to serve as a Immediate Past Chair of the Health and Disability Insurance Law General Committee for 2018-2019 on April 25, 2018. Jennifer has served as the Chair of the Committee 2017-2018 and has accepted the appointment.

Mr. Cohen also appointed Jennifer to serve as a Member of the Solo and Small Firm Task Force, the Diversity and Inclusion Standing Committee, and the Plaintiffs Practice Standing Committee for 2018-2019 on April 26, 2018. These leadership appointments are a clear recognition of her competence and experience, commitment to TIPS, and reputation among nearly 18,000 TIPS members.

Jennifer is honored to serve in both capacities for the American Bar Association’s TIPS Section in the coming year.