Nationwide Long Term Disability Attorney Nancy L. Cavey talks about the insurance carriers and the games and tricks they like to play with your disability policies! In this episode we feature "What You Need To Know As A Prudential Disability Insurance Policyholder".
Welcome to winning. Isn't easy. I'm Nancy Cavey national ERISA disability and IDI attorney. Before we get started, I've got to give you a legal disclaimer. The Florida bar association says, I have to tell you that this podcast isn't legal advice, but nothing is ever going to prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play and what you need to know to get the disability benefits you deserve. So off we go, do you have a Prudential short-term or long-term disability insurance policy or the beneficiary of an employer provided Prudential disability plan? If so today's podcast is for you, but if you're not insured by Prudential and under insured by another carrier, I think you can still learn a lot of lessons from this podcast. So don't go away. All right, I'm going to talk about three things today. First, the 11 circus approach to ERISA disability insurance claims and what every policy holder in Florida, Georgia and Alabama has to know to how a federal judge called out Prudential insurance Company's failure to provide a denied a ERISA policy holder with a copy of her file and how a court overturned Prudential's reliance, a liar for hire peer reviewers who gave Prudential the ammunition. It was looking for to terminate the benefits of a policy holder who had been paid benefits for 11 years. Let's take a break for a moment before we get started.Promotional Message:
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Welcome back to winning isn't easy. Are you ready to get started? Let's first talk about the 11th circuit's approach to ERISA disability insurance claims and what every policy holder in Florida, Georgia, and Alabama must know. And what you need to know, even if you aren't in the 11th circuit, if you have a disability insurance policy or plan from your employer, your disability insurance claim is probably going to be governed by a federal law called the employee retirement income security act, or ERISA first time you've heard that word right? There is an exception. If your employer is a governmental entity, like the state of Florida, Pinellas county, or the city of St Petersburg, or you work for a religious organization, like the Catholic church, Arista does not apply to those types of claims. What you also need to understand is that Arista is not a federal, it's a federal law, but it's not a friendly law. And it's interpreted by courts. And this interpretation becomes a minefield. There are 11 federal circuits and a surrogate for the district of Columbia. Each circuit has its way of interpreting the Arista statute, the 11 surrogate, which includes Florida, Georgia, and Alabama is no exception. And it's really crucial that you understand from the beginning how a federal court in those states is going to review your claim if it ends up in court. And I'm going to talk about the 11th circuit , because that's where I'm primarily based. Of course I have a nationwide practice. And as I've said, every surrogate has a different standard of review, but we're going to talk specifically today about the 11th circuit and a case called Leghorn vs Prudential insurance company, out of the middle district of Georgia. And it illustrates how the 11th circuit reviews a denied disability insurance claim. Leghorns benefits were terminated after one year when the policy definition change from the ability to perform her own occupation, to an inability, to do any occupation. Prudential did what it always does. It reviews the medical records and it concluded that she could frequently sit with changes in position. She could lift 10 pounds frequently, and then Prudential took those restrictions limitations and had an employability analysis done. And of course that concluded that it was other work that Leghorn could do based on our education employment history and the Prudential assigned restrictions and limitations, leg horn appeal and submitted medical records and a favorable social security decision. And of course, Prudential did what it always does. It upheld the denial of her claim. And ultimately we ended up in federal court in Atlanta where the 11th circuit is based. The 11th circuit has a strange multi-step framework to guide the federal judges in that surrogate in reviewing an ERISA claim and the policy holder or the plan beneficiary has to prove every element, the failure to prove just one will result in the court, upholding the claim denial. So there is a six step test . You got six chances to lose. Let's go through them. Number one, the judge has to decide whether or not the claim denial was wrong. And if not, the policy holder loses two . If the decision was wrong, the judge has to determine whether there was discretion in reviewing the claim. And if there is discretion, basically the judge, his hands are handcuffed and they have to uphold the denial. Now, if the carrier or the administrator's administration's decision was wrong, and the judge is vested with discretion, they determine whether or not there were reasonable grounds that supported the decision. If no reasonable grounds existed at step four, then they can reverse the decision. Yay . And if a reasonable ground exists, determine whether or not there was a conflict of interest. Now, unfortunately, a step five, if there was no conflict of interest, because the one hand pays in the other hand, denies, the judge has to affirm the denial. And if there is a conflict, then the judge has to consider that as a factor in determining whether or not the decision was arbitrary and capricious. If the judge finds that the decision was arbitrary and capricious, they can reverse the decision. And if they find that it was not arbitrary and capricious you'll lose it . So the standard of review that I just discussed is not taught in law school. And quite frankly, it is the highest standard of review in an American court. The policy holder or the plan beneficiary has the burden of proving entitlement to the risk benefit. And it's a tough one. And you can see why many of these cases settled because depending on the standard of review, at least in the 11th circuit, you've got a six chances to lose. Now in the leg horn case, the court reviewed the medical and the vocational evidence and Prudential reasoning in quotes for rejecting the sole screen administration's decision , uh, and approving Leghorn social security claim. Now after reviewing the claim file, which is basis of the trial of your case and applying the 11th circuit , uh , test the court concluded that Leghorn had not shown that the termination of her benefits was arbitrary and capricious, and they held that Prudential had reasonable grounds for denying her benefits. The court specifically noted that Leghorn did not provide Prudential with medical records or a fully completed capacity questionnaire at the time the claim was denied. So leg warrant really didn't meet her burden of proof. And , um, basically when she ultimately submitted that documentation, as sort of after the fact the Prudential rejected it and the judge said, okay, look, there's no treating physician rule and ERISA, and the disability carrier like Prudential is entitled to rely on us liar for heart doctor's opinions. So long as those opinions are reliable. So as a result at step one, the court found that the decision to deny benefits was not Di- nova wrong. And the denial was upheld. She never made it further than step one. And unfortunately that's not uncommon in certainly the 11th circuit and other circuits. You can see that the appeal process is very complicated and you have to know what your burden of proof is. What that standard of review is. If you want to have a shot at winning the appeal is the trial of your case. And in my law firm, we develop the medical vocational and lay evidence to rebut and try to overcome that claims denial. My appeal letters are 25 to 65 pages long. And I'm writing this appeal letter as if it is in fact, the trial of the case, because I want to have evidence in that appeal , uh , that if not successful would be in front of a judge to try to convince them that the claim denial or termination was , uh, was arbitrary and capricious. So you can see standard of review is the key. Now next, I'm going to talk about whether this way care has to give you a copy of your file after they have denied your claim. Let's take a quick break, Welcome back to a Winning Isn't easy. Let's talk about how a federal judge called out Prudential and their failure to provide it denied a ERISA policy holder with a copy of her file. Now you've probably figured out that disability carriers are not in the business of honoring the promise that they made to you. When they sold you your disability policy, they will often deny or terminate a claim. Wrongfully, hoping that you'll just go away and they get the pocket, all the money that they otherwise would have had to pay you and invest it. However, under ERISA regulations, you are required to file the appeal within 180 days. The carrier can then argue that if you don't do that, that you have not exhausted your administrative remedies. So one of the basic principles of ERISA laws that you have to exhaust your administrative remedies and the appeal process before you can file suit. But what would happen if the disability carrier fails to comply with your ERISA regulations and give you the necessary file material with which to file an appeal. I'm going to tell you the story of Ms. Lagoon , whose claim for disability benefits was denied, and she made multiple requests for copies of her file. And you should too, if your claim is denied now, when Prudential failed to provide her with that claim, she filed a lawsuit in federal court, and she has in fact represented by editorial by thing you should be. And she attached the affidavit of her lawyers who confirmed their unsuccessful, multiple written requests and requests by phone for a copy of the claims file and their failure to ever ever get it. Now, of course, Prudential said, look, you know, we're going to sweep this under the rug, just affirm our denial on the basis that she has an exhausted her administrative remedies. She didn't file the appeal before she passed, go and file a lawsuit. So the question posed by this case is what are the obligations of a disability insurance carrier under the Arista law? The Arista law is a federal law that will govern disability benefits. It also governs life insurance benefits, group health benefits and pensions, but the Arista law is made. Um, it's sort of like a skeleton, if you will. And regulations put the skin , uh , and the meat and the muscle on the skeleton and ERISA regulations , uh, in fact, provide that the claims have to be the claimant or the policy holder was denied, have a reasonable opportunity to have a full and fair review. Section 1, 1, 3 of the regulations under section 1, 1, 3 of the Arista statute and the corresponding regulations require that a plan provide adequate notice in writing, setting forth, the specific reasons for denial written in a manner calculated to be understood by you and affording you a reasonable opportunity for a full and fair review. Now it's impossible to write an appeal letter. If you don't have access to the carrier file and the documentation that they relied on in denying or terminating your benefits. Now, Prudential tried to pull a fast one and they argued to the court that it produced over 1000 pages of the file material before the appeal period expired, except for lagoons attorneys said, oh no, no, no, no, you didn't. And Prudential never offered any proof that they ever sent a record other than a bald allegation that they did. And even if they had, it would have been a possible to write a meaningful appeal letter because the appeal letter has to be filed within 180 days. And not just 14 days before the appeal period ran. And that's when the carrier said that they sent the material to lagoons attorneys. You can't do an appeal in 14 days. It's the trial of your case. You need to develop the factual, medical, legal, vocational evidence to rebut this denial. And you can't do that in 14 days. So what did the court do? They said, oh, so no. In the case of Lajune versus Prudential, which is a Western district of Louisiana case, the judge said, Hey, I'm going to let Ms Lazoon file an appeal of her case based on the entire administrative record. And they threw out the claims denial. The judge agreed that she never ever had an opportunity to have a full and fair review without access to the carrier's file. That's a great win, and that's holding carriers feet to the fire to comply with a ERISA regulations. Now I'm going to talk next about another favorite of disability carriers. That's the use of liar for hire peer review doctors in setting up that claims denial. Let's take a break.Promotional Message:
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Welcome back to winning. Isn't easy. Let's talk about how a court overturned Prudential's reliance on his liar for hire peer review doctors who gave Prudential the ammunition. It was looking for to terminate benefits of a policy holder who had been paid benefits for 11 years now, Ms . Pagan, who was employed as a business development director in Colorado, had encephalitis from a mosquito infected with the west Nile virus. He sustained brain damage and cognitive difficulties, and they paid him short and long-term disability benefits for 11 years, Prudential, that tired of paying those benefits. And they had him undergo an independent in quotes, neuropsychological evaluation, and they concluded that there was no valid evidence of a continuing impairment that would prevent him from performing the duties of his regular occupation. He must have been your accuracy cured, I guess his claim was denied. And of course he appealed ultimately up in federal court in the case of penguin versus Prudential insurance company. In this Colorado case, the court saw through Prudential sham denial. The court found that the evidence overwhelmingly supported the conclusion that his cognitive ailments, which they had paid for for 11 years were permanent. And they were disabling. They noted that 16 medical professionals, including one from Prudential, all supported the disability. Well, three disability doctors found that he was not disabled. The court said, oh, not so fast. The claim had been re reviewed regularly. In the course of those 11 years, the claims manager had noted in the claims notes that his cognitive issues were not likely to improve and that there was no gainful employment options for him based on the evidence in the record. And of course the court said, oh, show , no , we're rejecting these liar for hire peer review doctors who have somehow miraculously concluded that he is capable of returning to work. And we're rejecting the neuropsychological and testing because we know based on these other medical records, based on the other medical testing, and the fact that Prudential had acknowledged that his cognitive elements were printed disabling, that this was a setup , it was a bogus claims, denial , the court awarded back benefits and told Prudential to reinstate the claim. Wow. So what are the lessons that we've learned in today's podcast? First, we have learned about the importance of understanding the standard of review, which is the standard that a federal judge will apply and reviewing a denied claim. And I always start there because I always want to understand what it is I have to prove in terms of the standard of review. As I an analyze the claims denial, begin to write the appeal letter and develop the medical evidence. You've got to work from that point forward, not backwards. Secondly, we learned that under the ERISA regulations, you have to ask for your claim file. And if they don't give it to you ask multiple times and do it in a fashion that's been documented via certified mail return receipt requested. And if the carrier doesn't give it to you, and the appeal period is running, you just pass, go and file a lawsuit, arguing that you could never have exhausted your administrative remedies because they never gave you the claims file denying you a full and fair review. And lastly, we've learned that carriers will use every trick in the book to deny a claim, regardless of how long they've been paying benefits. And the key to overturning that denial can be found right in the claims notes that the disability care , uh , has issued. And as documented that they in fact don't think that the person ever is going to be returning to work. Lots of lessons learned today. And I hope you've enjoyed this week's episode. If you like this podcast, consider liking our page, leaving a review and sharing it with family and friends. Remember this podcast comes out every week. So stay tuned for next week's episode of Winning Isn't easy.