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Disability claimants often attack the ERISA plan’s expert medical reviewer as biased, sometimes seeking discovery in an attempt to show bias. Here’s a new case that highlights what can happen in a de novo review case: No discovery about a medical expert allowed. Shaikh v. Aetna Life Ins. Co., 2019 WL 1571876 (N.D. Cal. April 11, 2019)(In de novo review case, the Court denied discovery related to alleged bias of medical reviewers). FACTS: Plaintiff…
Practicing law can create real headaches. But do headaches constitute a disabling condition justifying ERISA-governed long term disability benefits?   This new case explains the correct process in assessing “job duties” in the “Own Occupation” analysis… Foster v. Principal Life Ins. Co., 920 F. 3d 298 (5th Circuit April 4, 2019)(Benefit denial when based on “passing references” to the claimant’s ‘own occupation’ or ‘own sedentary level occupation’ when “unaccompanied by any attempt to articulate…
When does evidence of malingering justify denial of a long term disability claim?  It depends. A physician’s subjective opinion regarding malingering may have less weight than objective neuropsychological testing. Key Take Away:  When the claimant’s neuropsychological testing is rendered invalid due to “failed validity tests,” that may be enough to deny the claim. It is important that the record contain evidence how the tests were conducted, and how the tests objectively measured validity. Here’s the…
You already know that ERISA sets forth a 180-day time limit for internal administrative appeals of benefit denials. And failure to pursue a timely internal administrative appeal can subject the claimant (in a later federal lawsuit) to the defense of failure to exhaust administrative remedies. But can a claimant save an untimely administrative appeal by arguing the “substantial compliance doctrine”?  No. Here’s the case of Fortier v. Hartford Life and Acc. Ins. Co., __…
From time to time you may see ERISA benefit claimants seeking declarations from the Court regarding “future benefits.” But there is that old rule, recently recognized again, that such claims should be dismissed because there is no “live case or controversy.”   To highlight this point, here’s the recent case of  Peer v. Liberty Life Assurance Co.., __ Fed. Appx. __ (11th Cir. February 8, 2019)(“Absent an adverse benefits determination, there is no ripe…
You already know that in ERISA cases the court has discretion to award reasonable attorney fees if the claimant shows “some degree of success on the merits” and this success is more than ‘trivial success on the merits’ or ‘purely procedural.’” So, what happens when the Court remands the claim for further consideration by the administrator, and on remand the claim is still denied?  Is the Claimant still entitled to attorney fees, even though the…
A common battle ground in ERISA claims involves the argument that ambiguous terms should be construed against the party that drafted the document.  This is known as the doctrine of contra proferentem.  See generally E. Erlich, [How to] Conquer Your Enemies and Impress Your Friends with Everyday Latin (2010). But when the ERISA Plan has vested discretionary authority to the plan administrator to determine eligibility and construe plan terms, should the court construe ambiguous terms…
You already know that discovery is usually limited in appeals of the denial of ERISA-governed benefits. This is especially true when there is de novo review.  But watch out if a breach of fiduciary duty claim is asserted. That same rule (prohibiting discovery) does not apply when a party seeks discovery into purported breaches of fiduciary duty under 29 USC 1132(a)(3). Here’s the case of Friemon v. National Carriers’ Conference Committee and Union Pacific Railroad
Many states have banned discretionary clauses in life and disability policies. But remember to look closely at the language… to see if the ban actually applies to the policy at issue. Here’s the case of Brian H and Alex H v. Blue Shield of California, 2018 WL 5778318 (N.D. Cal. November 1, 2018)(California’s ban on discretionary language did not apply to health insurance). FACTS: Plaintiff sued contending certain medical treatments were “medically necessary”. The…
Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added). So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms? Here’s a new case that highlights that the limitation still applies even when there might be some weak evidence in the medical records verifying the diagnosis. That’s because the diagnosis…