Aetna denied the claim. The claimant appealed and then asked for her claim file. Aetna said "no," we won't give it to you. Does that violate ERISA's long term disability claim regulations?
In this oral argument from the Fourth Circuit Court of Appeals in Richmond, Virginia, long-term disability attorney Ben Glass (Fairfax, VA) represents a claimant whose long-term disability claim was unjustly denied due to procedural errors and the insurance company's refusal to provide essential documents. This case highlights the importance of claimants having access to all relevant information to effectively communicate with insurers and spot violations of ERISA regulations.
Each hearing we discuss points to the need for more transparency and fairness in the ERISA process. We emphasize why it's crucial for every claimant to be well-informed and advocate for themselves effectively. Our podcast aims to equip you with essential knowledge and insights into navigating these complex issues.
These public domain recordings are brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA.
By making these recordings into a "podcast," we've made the listening easier for claimants, attorneys and claims adjusters alike.
If long term disability or life insurance benefits have been denied, we'd love to review your denial letter and give you a strategy for moving forward. This is a free service and you can go here to begin submitting your denial letter.
Aetna denied the claim. The claimant appealed and then asked for her claim file. Aetna said "no," we won't give it to you. Does that violate ERISA's long term disability claim regulations?
In this oral argument from the Fourth Circuit Court of Appeals in Richmond, Virginia, long-term disability attorney Ben Glass (Fairfax, VA) represents a claimant whose long-term disability claim was unjustly denied due to procedural errors and the insurance company's refusal to provide essential documents. This case highlights the importance of claimants having access to all relevant information to effectively communicate with insurers and spot violations of ERISA regulations.
Each hearing we discuss points to the need for more transparency and fairness in the ERISA process. We emphasize why it's crucial for every claimant to be well-informed and advocate for themselves effectively. Our podcast aims to equip you with essential knowledge and insights into navigating these complex issues.
These public domain recordings are brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA.
By making these recordings into a "podcast," we've made the listening easier for claimants, attorneys and claims adjusters alike.
If long term disability or life insurance benefits have been denied, we'd love to review your denial letter and give you a strategy for moving forward. This is a free service and you can go here to begin submitting your denial letter.
She was denied her full and fair review because the Nile letter was bad. They didn't give her the claim file and that double down is brief Didn't say. This is a mistake. This is a policy that I'm here to correct and what I'm asking the court to do is to remand the case to the district court, to judge Hilton with instruction To remand the case to Etna and give her for full and fair review, in other words, to restart her appeal process, and we will be able to now address All of the issues Etna raises in their second denial letter and all the additional Issues that they raise in their brief. There's this new information now because she has this neuropsych which was too late for the claim because she didn't know, and she's got a social security disability.
Speaker 2:Welcome to the ERISA litigation podcast. This podcast is brought to you by Ben Glass Law, a National long-term disability law firm with headquarters in Fairfax, virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of Practicing ERISA disability and life insurance law throughout the United States. By putting these public domain recordings into the form of a podcast, ben Glass law has made it easy for the public to access these recordings. All commentary that is not part of the actual recordings he's out of the show. Sponsor.
Speaker 1:If again you may. Good morning. May please record. My name is Ben glass. I'm here on behalf of Robin Thomas.
Speaker 1:When a claimant your honor in an ERISA governed long-term disability insurance case has her claim denied, erisa promises her a Fundament. Erisa promises her what they're called a full and fair review. And there are two parts to a full and fair review. The first is a denial letter that fairly speaks of the reasons why we are denying your claim and second, access to Pertinent documents that we, the insurance company, relied upon to deny your claim. I Think the big issue in this case, your honor, is the refusal of that. Now to provide the claim file to my client when she asked for it. But I want to touch for a moment on the denial letter because I think it sets up this bigger problem.
Speaker 1:If you look at the initial denial letter in this case, it lists really one reason why we're denying your claim. You'll recall that this lady was on you've been a car accident. She was on short-term disability benefits for about four and a half months. Etna was managing that Gets near the end of that term, they terminate her short-term benefits and because she had applied for long-term, they deny you. See, your claim for long-term benefits is denied, and here's the reason. It really lists one reason. The reason is two conversations of conversations that we, the insurance company, have had with two of your health care providers a, mr Omqvist he's referred to as a doctor in the denial that he's not as a physical therapist, and a doctor new in. So in that first denial letter there's a mention of medical records but there's no analysis. There's nothing that says oh, we looked at all these tests, they're all negative. We don't think that you followed up with your treating doctors. There's none of that. And so, but when you look at the final denial letter, which is at the end of the period, there's about ten brand new reasons, mainly based upon an analysis of the Medical records that didn't appear in the first now. So that's a fundamental violation of orissa, because this whole scheme, the orissa scheme, is designed so the claimant and an insurance companies is almost always insurance company can have an opportunity to participate in a meaningful dialogue.
Speaker 1:I sent you my records. You denied my claim, why? Oh, let me go fill in the holes. Let me try to overcome the reasons. So, as a first matter, that initial denial letter fails, and we know that it fails because there's ten reasons in the second one and there's four more reasons in the brief and at this brief in this court which aren't even in either of the two denial letters. Now you could almost forgive or get around or accommodate for the failed Denial letter because in every case a claim ask for a claim file and it's routine, the claim file is provided.
Speaker 1:I didn't know how to policy. That said, once you tell us that you want to appeal your claim, we're not gonna give you the claim file and I'll tell you that claim file is always full of nuggets and information. That, again, what we're talking about here is allowing the claimant to participate in having meaningful dialogue with the insurance company which she, the day after Edna, told her that they was denying initially denying her long-term disability claim. She says I'd like to appeal that Yesterday this court issued it's a published opinion in SHUPE, which is a long-term disability case, and in SHUPE the court uses the phrase what the claimant did is asking. He begins asking for the process of a full and fair review of the claim and now this policy of disability I'm not gonna give it to you at all.
Speaker 1:And that claim file had information, a lot of information in it. It was rich with information that she could have used to provide herself new information for Edna Principally. You'll recall that her claim was she'd been a T-Bone to the Crocs, she had six prior neck surgeries, she had a lot of head and neck pain and she complained of cognitive dysfunction. So dizziness, forgetfulness, inability to string sentence together, things like that, it's not in the initial denial letter but in the claim file. We see the report from one of the Edna specialists, dr Siegel, one of the Edna reviewers, who says ah, I see all these complaints, I see they're noted through the medical records, but they're only subjective. There's no objective evidence of them, like a neuropsychological evaluation, and neuropsychological evaluation, as you probably know, is testing which, my words, makes objective. Things like an inability to word, find, have short and long-term memory, think logically, things like that Now in.
Speaker 1:So it's clear that Edna violated in two ways One, the bad original denial letter and two, in saying, no, that's our policy, you can't have the claim file. So the real question is, did that matter? Because if you go all the way back to, there's a case called Ellis versus Metropolitan Life. So there's two cases that I think are important for this case, and one is Gagliano from 2008,. The other is Ellis versus Metropolitan Life. There's a third case this court's unpublished opinion two years ago in a case called Odle, which also dealt with the risk, and in Odle there was an audit. It was a pension case. There was an audit that the claimant was looking for. The administrator said no, you can't have it.
Speaker 1:And this court asked well, so what difference would it have made and that's the question that gets asked here If we had, if she had had, the claim file? What difference would it have made? We know this one year after her accident, after this claim is closed, she does get neuropsychological evaluation and she does have testing and that testing found profound disturbances in her cognitive ability. It found that she scored below 50% in a number of cognitive areas. So had she had, they either said in the initial in the aisle letter look, there's no objective evidence of a cognitive disorder, or had they given my client the claim file that she can now look at and go oh, this reviewer is looking at this and saying there's no neuropsych here, let me go get a neuropsych. There's very strong evidence, because we know what it was like one year post-accident. Very strong evidence that it would have mattered and you and I.
Speaker 1:This court in Ben Glass shouldn't be here debating the quality of evidence. Was one better than the other? That's what Orissa in providing for a meaningful dialogue at the claim level. That's where that discussion should take place. Etna should look at all of that information and we should have the opportunity when I ask you for the opportunity to be able to take this information back to Etna and give her the what Orissa guarantees her, which is a full and fair review. So yes, sir.
Speaker 4:Don't allow fishing expeditions. There has to be a causal connection, and correct me if I'm wrong. There is a causal connection between the ultimate denial of the claim documents and its failure to provide the road documents as absent. The information or the file Orissa's saying what's in that file that you know now is related to their failure to give.
Speaker 1:There's a couple of things. So first there's the 10 specific new reasons in the second denial letter that she's never been able to address and, for example, some of those are. We looked at the record and it appears that you did not accept a surgery a trigeminal neuralgia surgery that one of your physicians was recommending. Now I don't know if that's a good reason or a bad reason, but that's in the claim file and she should be able to say you know what? I've had six prior neck surgeries and Dr Nguyen tells me there's other treatment available to me. So that's an example. But the biggest example I would point to Judge Floyd is the neuropsychological evaluation that was done February, one year post accident, because it strongly shows that she had significant cognitive dysfunction. And again, my argument is that if she had seen in the claim file that a key argument that the reviewer is using is the lack of a neuropsych evaluation, then she would have at least had the opportunity to go get one. And I should be allowed, and she should be free, to argue that it's likely that a neuropsych done earlier than one year post accident also would have showed, would have given objective evidence of significant cognitive disunction.
Speaker 1:Remember she had a pretty high end job Working for Booz Allen. She worked with numbers and spreadsheets and met with teams and worked with a number of screens all the time and from the beginning of the claim her principal complaint was I can't think straight. And her employer said you can't come back to work until you are 100% Because I had some. And I had an argument that she could go back to work with some accommodations, which really involved, I think, like putting a neck brace on and looking at various screens. Anyway, does that answer your question, because I think that is the most significant point. I would make the subsequent neuropsych as to why it actually matters. And let me just say this for a moment, judge Wood, because the rule can't be, the rule shouldn't be, an insurance company is allowed to have policy that says we can say no because I tell you that will that will encourage this sort of activity. I think it does. I think I think gaggle on a gaggle on a Ellis, and you won't find a case in the country that says you're allowed to have that policy and that you're allowed to just saying no.
Speaker 1:I think the question has already been answered. I don't understand Ben Glass doesn't understand why it doubles down on this argument and didn't just give her another review. But the question is, would it have met and say this finally, and then I'll sit down is the bar for her, for Adam Thomas should not be high to show, because what are we aiming for? We're aiming for an opportunity for a meaningful review, for meaningful by log is what the cases and putting this quarter said, a discussion so that we make these claims efficient. These people don't have to go get lawyers, don't drive up the time and the expense of getting a claim resolved.
Speaker 1:That's the balance. You know, rissa gives these insurance companies discretionary standard of review and that tilts the playing field. But the risk that then takes its regulations to try to balance that tilting of the playing field as best it can by saying here's the file and it's the only type of litigation I do a lot of tort litigation only type of litigation where you get the entire insurance company claim file and they have to give it to you and they have to give it to you for free as soon as you ask for it and I'll tell you that routinely client comes in having denied claim. We send the letter in 30 days we have a claim file. I also done the lesson. Court has any other questions about this.
Speaker 5:Thank you. Thank you, mr Downey.
Speaker 6:Good morning your honor Brian Downey and Troutman Pepper Hamilton Sanders, on behalf of that in a life insurance company. The primary issue before this court is really whether at an abused its discretion when it determined that Robin Thomas was not entitled to long term disability benefits, that she had not established her decision to those benefits and, as Judge Hilton appropriately found, that decision was correct. It was neither arbitrary nor capricious. Instead, it was the result of a principled and reasoned analysis and the the the argument that she was not disabled from the view that she had been disabled initially, because there is no question at all.
Speaker 5:Mr Downey, you can argue the case where you want, but all argument is for the answer. Our question, at least right now, mine. But you said it's not really a question right now. I think that was correct and have a sound reason for denying it In the threshold questions whether or not this Thomas had an opportunity to have a fair and meaningful opportunity to address those issues before you made that final decision. So can you address that? Yes, the court in case it right now. You addressed that.
Speaker 6:Absolutely honor, and the answer is she did so that there's a here's the. The issue that I think gets obscured through this discussion, which is there's a lot of talk about her app, the lack of the fact that she didn't have a neuropsychological evaluation, and why is that significant? The underlying question behind that, though, is why didn't she have a neuropsychological evaluation? The answer is obvious because her treating neurologist did not think she needed one, and the reason her treating neurologist did not think she needed one is, if you look at Dr Crutchfield's records over and over what Mr Glass said, that she says I suffer from certain things. I suffer from cognitive impairment, I suffer from impaired memory, I suffer from an inability to speak. He examines her and his answer is no, she doesn't. She has good short-term memory, good long-term memory, is fluent in speech patterns, has a good fund of knowledge and has no cognitive limitation that he identifies.
Speaker 3:This podcast is brought to you by Ben Glass-Law, a national leader in long-term disability insurance claims, to help doctors, lawyers, entrepreneurs, ceos and other C-suite executives get paid for their long-term disability benefits. Visit us at benglasslawcom or give us a call at 703-591-9829.
Speaker 6:Case and when he identifies the limitations, which she would certainly have some accommodations that would need to be made for her or would have been made to be made for her. When he identified those accommodations, they were all physical. He did not identify any neurocognitive limitation. So the record before Etna is that, according to her own physicians, she doesn't need that. The reviewer mentions in passing that she hasn't had that, which is true, as you would always look at in any case where someone is asserting a disability, when her physicians are saying that her condition is much better than she is, and so you see it in a mental health case all the time.
Speaker 5:You're still not addressing my question because you're going into the merits of your decision, which is fair enough when you get to that aspect of it. Right now, the question is whether or not she had a fair opportunity to address, for your medical safety environment, various sound reasons.
Speaker 6:Fair enough. Sorry, and Yarn, I started down that road and I sidetracked myself. I apologize, let me get back onto it. The answer is yes. So the July 31, 2017, that is the initial denial, and what it does is as required by the then applicable 2002 regulations. It provides specific reasons for the adverse determination and references of pertinent plan provisions. So it summarizes the applicable policy provisions, which is what is required to do.
Speaker 6:It explains the process of record review. It explains that there was an independent clinical review. So, prior to appealing and prior to making the decision not to request a claim file, before starting her appeal, she knew this existed. The idea that she was surprised or didn't know anything about it is just not true. And then, of course, it goes through the communications with the providers. So it has identified that she is not disabled, that the medical evidence does not support that she's disabled. It then tells her she has 180 days to submit an appeal. Of course, she's not required to appeal. Number one that's her choice. If she wants to, she has 180 days to do that identified some areas of information that she could submit. She could get a copy of the record if she wanted them and she's not required to do any of what she opted to do was to appeal immediately.
Speaker 5:Was she informed that if she opted to appeal that right to get her file would be cut off?
Speaker 6:No, your Honor Gee. And if you think about what Ellis provides as law, what's the point under the Ellis jurisprudence about this? The point of giving her the claim file is so that she can prepare the appeal. She's already done that. Now Mr Glass might regret how she did it. She might regret how she did it, but she did it, and it's not the role of a claim administrator to step in either and interfere with her decision and say, no, you shouldn't, you should do something differently, or, as is even suggested here, interfere with her treatment. To step in and say you should be looking and you should be trying to get a doctor to get you this kind of testing. Even though you're a treating physician doesn't think you need it.
Speaker 4:I have a little bit of a problem. It's simpler than say she was told that Edna does not release claim information Once a review is in process. That is contrary to Agliano and to Alyssa that they're entitled to that material. So why wasn't she entitled to it? Why was she told no? Because it is an appeal in process.
Speaker 6:So that they could process the appeal. So they have the record. They're most of the way through it actually initially, other than they ended up now needing an additional review at the end. But that's the reason, your Honor, do I wish they hadn't done it. I don't think they were legally required to do it, but I wish they had. I think we wouldn't be here today, on this issue at least, but she hadn't. I'm sorry, your Honor.
Speaker 4:Is that issue the hardest of the appeal?
Speaker 6:I understand that's what the plaintiff, the appellant, is trying to make. I don't think it really should be, but because I don't think it's the issue that the appellant has that it has the legs. The appellant does but thinks it has. But if you're telling me it's the hard of the appeal, then I would defer to you on that. But it is a and of course, what happens? Why does she ask for the claim? She asks for it because she learns that there is a record, that there's a report that has been generated on appeal that she wants. That's the trigger and under the then applicable regulations she was not entitled to get that. Now the answer if that happened today, the regulations have changed. So if she called today and said I even want the IMR report, she would get it or she wouldn't even have to call. It would have automatically been sent. But that just was not true at that time and when she got.
Speaker 6:What Ellis talks about is why do you get the appeal? You get the appeal so that you I'm sorry, why do you get the record? You get the records you can prepare the appeal. She did that. She could have done any number of things. She could have waited to appeal, she could. She talked about how she had a lawyer. She could have had her lawyer, but she opted not to do any of those things, and I think we're on dangerous ground when we start to say that a claim administrator is now somehow supposed to manage that as opposed to do what it's supposed to, which is once she files that appeal, the clock is running.
Speaker 5:How do you equate responding by giving her the documents to managing? The one who's seen the first is the former is to give the documents. The latter would be actually to do something to met like, for example, sir, you're not going to say, look, sit here, I see the holes here and therefore you need to show up this show. That would be managing, but to simply give those documents, the claim file. That would be management on the on. That was part of it.
Speaker 6:Not. If he had asked at the beginning of course not your honor she was she should have given it to her. They would have had she asked for it. She wanted not to do that.
Speaker 6:The management piece that now is being imposed is this argument that that in, instead of going through the normal appeal process, perhaps should have said to her why don't you wait a hundred and eighty days? Why don't you get a lawyer? Why don't you review the whole record? Why don't you ask us for things that you don't have? It's not the claim administrators possible to do that. It's her right. That's for prior to the appeal. She didn't Our right to hold the appeal, our right to get all those things.
Speaker 6:And Edna said once we were in process, because we're working with this right now, we're in the middle of this trying to administer your claim under specific Orissa guidelines that we have to comply with. We don't send out a copy, we'll send it to you at the end. And that's what you got. She got one later and the idea that it mattered. Of course we do know that after the denial, even though she's, even though her doctor had not seen the need for a neuropsychological evaluation after the denial, she eventually got one. She got something which is turned out not even to be reliable which, again, not surprising, and it happens but so that it would not have made any difference in the end.
Speaker 6:Now I can talk about the case itself, but my sense is that it might be better if you had specific questions about the case itself, meaning the claim itself as opposed to the regulatory issue, and I'm happy to do that. But I'm also, if there are questions about that, I'm happy to do it and answer them. Or if you feel you don't need anything further on the merits of the decision itself, I'm happy to stop.
Speaker 5:Thank you so much, mr.
Speaker 1:Downey.
Speaker 5:Mr Glass, we have some time reserved.
Speaker 1:Briefly and thank you very much. We're not asking anyone to manage a claim. We're asking them to hit the print and send button. My friend on the other side raises a question how come none of her doctors littered neuropsych before this? That's a question that needs to be raised during the administrative process so it can be answered. I have an answer for that, I'd be sure with you. But the point is that's an answer. That's a question that needs to be tussled with during the appeal process.
Speaker 1:And the appeal process. It's important to remember and I think that we all here do is that it's not like an appeal to this court. We've got a closed record and you file your notice of appeal and now we're working. And these are recent cases and appeal sets off an iterative process, just like in the case from yesterday, shupe. A lot of things happen. Insurance companies get IMEs, shupe got an FCE and sometimes insurance companies say during the appeal process we want to send you to our doctor to go get a neuropsychological evaluation. So that's all part of the process.
Speaker 1:My friend says the neuropsych that she gets a year later isn't valid.
Speaker 1:I think that's medical nonsense and I should have an opportunity to address what I view as my experts would say, is medical nonsense, that neuropsych is somehow not valid and she didn't have a lawyer.
Speaker 1:Look, she didn't have a lawyer. When she gets the letter and she calls her claim rep and says I want to appeal, and as a layperson, again, these regulations are written to protect people so they don't have to go get lawyers to have benefits of sometimes between $1,500 and $4,500 a month, and so we're not spending years and years doing this. It's meant to balance the playing field. So, again, unless the court has any questions, I think this is a remand to judge children, again with instructions to remand the case to the claim administrator and either at the end of the SHUPE opinion, the court mentions attorney fees and says in that case that that question should go back to the district court for the first time, and another court has done it in different ways. If I win, I'm like to apply for attorney fees and this legal to this court to tell me whether to make application here or in the district court when it goes back to judge Hilton. Unless the court has any other questions, I'm good, thank you.
Speaker 5:Mr. Thank you, mr Downey. The arguments again, as I said before that we wish to come down and greet you in our normal fashion, but we cannot in circumstances. But please know nonetheless we appreciate your being here and thank you so much for the arguments. Be safe and stay well.
Speaker 3:The proceeding has been a production of Ben Glass Law, a Fairfax, virginia based personal injury and long term disability law firm. For a free evaluation of your claim, visit us at benglaslawcom or call us at 703-591-9829.