Winning Your Long-Term Disability Claim with BenGlassLaw
Winning Your Long-Term Disability Claim is the podcast for anyone fighting — or about to fight — an insurance company over a denied or terminated LTD claim. Hosted by Ben Glass, who some call "America's Disability Lawyer for Doctors" and a plaintiff's ERISA attorney who has been fighting these claim in federal court since 1999, and Damon Miller, an attorney at BenGlassLaw who litigates these cases all over the country. Each episode breaks down real long-term disability and life insurance claim fights — recent court decisions, appeal strategies, and the tactics insurance companies like Reliance Standard, MetLife, Unum, Guardian, Lincoln Financial, Prudential, Cigna, Hartford, Principal, and Aetna use to deny and delay. If you're on claim, on appeal, or in litigation against any LTD carrier, this show is for you.
The podcast is a production of Ben Glass Law, a national long term disability and life insurance law firm headquartered in Fairfax, VA.
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Winning Your Long-Term Disability Claim with BenGlassLaw
Ben Glass argues for widow after Lincoln refused to pay life insurance
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Overview: the employer changed life insurance companies while an employee was already out on disability. Should the new company have covered the family when the employee passed away?
The legal issue revolved around the eligibility for life insurance benefits under an ERISA-governed policy. The main question was whether the insurer, Lincoln National Life Insurance Company, had abused its discretion in denying the plaintiff's claim for benefits. The dispute centered on whether Mr. Morris, the insured individual who died from leukemia, was "Totally Disabled" as of January 1, 2015, under the terms of the policy, and thus ineligible for coverage. The court's decision focused on evaluating the evidence to determine whether the insurer's conclusion that Mr. Morris was totally disabled and therefore not eligible for coverage was reasonable and supported by substantial evidence.
The District Court held in favor of Lincoln. This is the argument in the Fourth Circuit Court of Appeals.
This podcast is brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA. To the extent that these episodes include oral argument recordings from real courts, these recordings are in the public domain and free to everyone to use as they see fit.
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.
ERISA Litigation Podcast
Speaker 1I guess if I could tell you this is a friendly question , okay , I like that On my part . It seems to me that in order to cover the basis to have us consider the full range of territory here on appeal , that you need to mention at least a 180 day requirement for long-term disability in the supplemental policy , or you haven't covered all your bases .
Speaker 2I want to hear everything so we can consider all as a group Under the supplemental policy , in order for Lincoln to prevail as of January 1 , Stephen Morris would have had to have been unable to work for 180 days , because that was the definition of disability under the policy and he was not diagnosed . He didn't get sick until October . He had not been unable to work for 180 days . And I think I'm answering your friendly question .
Speaker 1I'm wondering how did Judge Tranca go off the rails there ? How did you address that in the district court .
Speaker 2I addressed that in the oral argument that we had and it's in the transcript and in our brief . We cite to the page . We cite to the page that we address that . 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 . A commentary that is not part of the actual recordings is out of the show sponsor .
Speaker 3The Honorable the Judges of the United States Court of Appeals for the Forest Circuit . Our next case is 191546 , stephanie Morris versus Lincoln National Life Insurance Company .
Speaker 4Thank you , madam Clerk . Mr Glass , are you out there somewhere ? I am , yes , sir . I am Good to have you with us , sir , and you represent the plaintiff and Ms Morris , I do .
Speaker 2We have a pleasure to hear from you . Thank you , sir . In this case , which is a life insurance case governed under ERISA , lincoln abused its discretion by failing to even consider seven very discreet items of evidence that we submitted or pointed out in our post-remand submission and internal appeal of the case . And under ERISA , lincoln is a fiduciary and it's bound to act as a neutral , taking in facts and letting the chips fall as they may . And Lincoln's obligation is to thoughtfully consider at least thoughtfully consider the evidence that the claimant submits and in this case , it ignored them completely . Now remember the framework for the case , because , although the record is very large , we have , as the district court had , found that Lincoln had abused its discretion the first time around to the district court and it remanded the case of Lincoln to solve one question Was Stephen Morris totally disabled , as that was defined under the Lincoln policies on January 1 , 2015 ? So that's really where this case that we hear today really starts . At that point , it's really a new claim . And so , as part of that process , we go back to Lincoln and we submit medical records and , in the first round , narrative statements , trying to get Lincoln to focus on Stephen Morris's functionality , his ability to work at any job , even on a part-time basis , on January 1 , 2015 . That's a single operative issue here , and so we point out to Lincoln hey , lincoln , look at the records from December of 2014 and early January and into January of 2014 . And let's first look at the medical records . What does it say about Stephen Morris's ability to function ? December 10 , 2014 record no new symptoms . Feels well except for mild fatigue . He's got a Karnofsky score and I'll talk about the Karnofsky and the ECOG score in just a bit . But these are objective measures that oncologists use to assess a patient's ability to live life and to function . It's a language that oncologists use so that they can talk with each other . His Karnofsky score in December 10 was 80% , which is really good . Can do sedentary work . December 30 , like two days before the operative date record generally feels well , unremarkable review of symptoms Again , karnowski performance score 80% and he's walking freely Seven days into January doing well no new complaints . A different objective measure , the ECOG score , is one which means he's not able to do strenuous activity but he's able to do sedentary to light duty activity . A week later his only issue is the acid nose bleed . That's on the 14th of January and the 28th , no abnormal symptoms . In February he travels down to Texas to a cancer center for treatment All the way up until August . Remember , he passes away in September of 2015 , and even as of August of 2015 , he's out in the beach , he's taking walks , he's taking putt balls , he's doing putt golf .
Speaker 2The second thing that we asked Lincoln to look at is hey , we went and got narratives from friends and family acquaintances and said tell us in a statement what you observed about Steve Morris's condition in this January one , this December to January period in 2014 and 15 , a paraphrase but basically healthiest sick guy we ever saw . So we submit that to Lincoln and say , hey , pay attention , because Judge Schrenger said pay attention to January one as you under arrest . These companies , they speak through their denial letters . So we get a denial of the claim . Lincoln finds that , oh no , he's not able .
Speaker 2Mr Morris is not able to do any work , even on a part-time basis , and they cite a couple of things . So , number one they do have an oncologist . Look at the case . The oncologist quotes in his opinion it makes it into the denial letter a purported statement by Mr Morris's oncologist , dr Patel Donnelly . That statement quote Mr Morris was unable to work at all due to his ongoing treatment and chronically low counts During this period from October really , october of 2014 , to when he died in September . And Lincoln relies on this statement . That statement could A Dr Hartner , the Lincoln oncologist . He doesn't get Dr Patel Donnelly to verify it . As we often see in these cases , they'll send a letter , say , hey , is this what you actually said ? This is what I heard you say . But that statement could be one of three things . It could be an opinion that he couldn't work at all . It could be an opinion that he couldn't work at his job , which- .
Speaker 5Can I ask , what was that opinion submitted for ? Mr Got that opinion from the doctor and submitted it . What did he submit it for ?
Speaker 2Now , what you're talking about is our reply , our appeal of Lincoln's initial denial .
Speaker 5And that I think what I'm talking about . I'm just I don't recall . That's why I was asking . Mr Morris submitted his doctor statement that he was unable to work for short-term disability benefits . So that's not what happened . Help me understand why not .
Speaker 2If what you're talking about is the Dr Patel Donnelly statement that we just quoted , let's make sure you and I are on the same page . We're talking about that . Yes , sir , yes sir . Okay , that's a statement Dr Patel Donnelly allegedly made and a phone call to Lincoln's oncologist what we call a peer-to-peer call . So Steve Morris did not submit that statement . The statement that again that Lincoln relies on in their denial letter was a statement that their oncologist reportedly heard it was their oncologist's statement .
Speaker 4It was his quote of that he said he heard from his oncologist .
Speaker 2Correct Judge King . And my point on this will be that we went back to Dr Patel Donnelly , because once Lincoln denied this claim , then we appeal . Right , we had an internal appeal back up to Lincoln . We said to Dr Patel Donnelly hey , what if , first of all , did anyone talk to you about what not work means no , what if the definition of disability was what's in this policy was do you think , mr Morris , in January , one could have worked at an occupation , even on a part-time basis ? She said , yes , he could have . Now , importantly , in our appeal back to Lincoln , we submitted , in addition to that statement from his treating oncologist , a letter from the employer that said , hey , if Mr Morris had wanted to work from home , we would have had work available for him .
Speaker 6This podcast is brought to you by Ben Glass Law , a national leader in long-term disability insurance claims . We help doctors , lawyers , entrepreneurs , ceos and other C-suite executives get paid for their long-term disability benefits . Visit us at benglaslawcom or give us a call at 703-591-9829 . And have a great day , guys .
Speaker 2Remember the treatment he was getting for cancer made him highly susceptible to infection .
Speaker 4A lot of the . So she said is it correct in your sense that she said she didn't talk to Lincoln's ?
Speaker 2fellow . No , sir , no Judge King . What she said was I didn't understand , when I made that statement , what he meant by unable to work .
Speaker 5Okay , what about Dr Spira's statements ? I'm glad you're confused , dr Spira , on the short-term disability benefits , he or she said that he severely limited functional capacity , couldn't be expected to return to work till April . Right , that's right . This is his own statement on behalf of short-term disability . I don't know if it's right or wrong , but it seems consistent with what the oncologist you just described later said , and both seem to provide some evidence that the story now is a little different .
Speaker 2So Dr Spira's statement is in an attending physician statement dated in October Remember that's when Mr Morris was diagnosed and he was very sick and Judge if the operative date that we were talking about here is October 15 , then no , there's no coverage in the case and we lose All right . So he started treatment and all of the evidence around January 1 was that he had the capacity to do at least part-time work and he had the educational background to do work . And so this is where it gets important , because , in addition to the Patel Donnelly explanation , we submitted the letter from his employer saying yes , if he had wanted to do this work from home telework , we would have had work for him to do . Remember he didn't need to do it because he had a good long-term disability policy . Just came in .
Speaker 1Yeah , Thank you , Mr Gloss . Aren't you going to argue the distinction , too , between the two policies and their coverage and defining what is long-term disability ? Isn't that part of this case too ?
Speaker 2It is essential . All right , I will tell you that . Yes , so there's two policies . There's a basic policy and a supplemental policy .
Speaker 1What I'm concerned with is if we disagree with you regarding the record concerning his ability to work . It appears to me that you still have an argument under the policy language of the supplemental policy . You're right Typically the 180-day requirement . So I think it might be a good idea for you to at least spend some of your time addressing that .
Speaker 2Let me talk about it . I'm going to give you a little bit of a general comment . Under the supplemental policy , it defined totally disabled as and you have been unable to work for 180 days . The reason I say that's not essential and the court doesn't even need to go here is because my main argument in this case is that we submitted these seven pieces of evidence that Lincoln never even considered . They never addressed the narratives the Patel Donnelly clarification letter , the letter from the employer , the article from the American Cancer Society and a vocational report . And ERISA requires two things . It requires a deliberate— .
Speaker 1I understand your question . I guess if I could tell you this is a friendly question . It seems to me that in order to cover the basis to have us consider the full range of territory here on appeal , that you need to mention at least a 180-day requirement for long-term disability in the supplemental policy , or you haven't covered all your bases . I'm not going to hear everything , so we can consider all as a group Under the supplemental policy .
Speaker 2in order for Lincoln to prevail as of January 1 , stephen Morse would have had to have been unable to work for 180 days , because that was the definition of disability under the policy and he was not diagnosed . He didn't get sick until October . He had not been unable to work for 180 days . And I think I'm answering your friendly question .
Speaker 1I'm wondering how did Judge Tranca go off the rails there ? How did you address that in the district ?
Speaker 2court . I addressed that in the oral argument that we had and it's in the transcript and in our brief we cite to the page . We cite to the page that we address . How he didn't address that or why he didn't , I don't know . But again , my fundamental point though , judge Keenan , is that we never actually reach , in my view , the merits .
Speaker 1No , I understand your point , but that was my point , thank you .
Speaker 5Can you at least briefly address the issue exhaustion before the administrator ? I understand , I believe , the argument at the district and I think you acknowledged below that you could have done a better job of it , but that you did raise it and we can evaluate that . But talk to me a little bit about issue exhaustion before the administrator , because it seemed pretty clear that this issue never came up before the administrator . Were you required to do that ?
Speaker 2I may or may not have been , so I will go through that issue . That specific legal argument never came up . My bigger ERISA principle point is that they didn't address anything that we sent in our appeal . And when you look at the report of the… .
Speaker 5Let me just back you up one second . Let me just ask it a slightly different way Do you agree that there is no issue exhaustion before an ERISA plan administrator ? The answer is yes , yes , thank you .
Speaker 2Thank you very much .
Lincoln's Denial and Disability Claim
Speaker 2The point I would like to leave the court with as I sit down this first time is JA115 is the report of the nurse . That provides the basis for Lincoln's final denial . It's really clear from that she never even got our appeal . She lists our prior appeals , pre-remanned . She doesn't mention any of the seven discrete bodies of evidence that we provided and she doesn't discuss any . Then of course it doesn't make it into the denial letter . So if the court upholds Lincoln's procedure in this case , it's unreasonable reasoning process in my view . These companies are going to be able to say look , you send it , we don't even have to discuss it . I'll sit down and let the court ask any questions at this point .
Speaker 4Thank you , you saved some time for rebuttal . Yes sir , thank you , mr Decker . Thank you .
Speaker 7You're on a bird deck or through the defendant , lincoln National . I'm glad Mr Glass mentioned fiduciary duties . It is very important to keep the perspective in mind here about Lincoln's duty to adjudicate these claims and strictly enforce the policy terms and , in this case , this particular case , to look at this issue as if a finding of total disability on January 1st 2015 meant an award of benefits . It has to look at the exact same way if it's deciding a claim for benefits , as in this very unique situation with respect to this PIC provision . And that is exactly what Lincoln did , and it was not a difficult call . It was an extremely easy call and that's why it's no surprise that every person who touched the file at least five people at Lincoln , several people at Reliance Standard all agreed that for the entire period we're talking about here , which is from when he left work to when Mr Morris passed away so tragically , he was unable to do any sustained , consistent , reliable work activity for an entire time , including January 1st 2015 . The fact is , he was- .
Speaker 5I don't know . I want you to get your word in on that piece if you like , but to follow Judge Kenan's guidance to your colleague . Can you talk a little bit about the supplemental policy and in particular three points , and I'll remind you if you don't keep them . But one is issue exhaustion before the administrator . Is there any reason to believe that there is , given the nature of that proceeding and the lack of any plan language suggesting that there is issue exhaustion ? Second , what your argument is that it was not raised before the district court ? And then , third , on the merits how do you find 180 days to exist between October 15 and January 1st ?
Speaker 7Yes , your Honor , thank you . So the Gale case talks about the exhaustion requirement . Exhaustion is not a planned doctrine , it's a judicial doctrine and there are very good reasons to require exhaustion because we don't want to become To be clear , that's administrative exhaustion , not issue exhaustion , right ?
Speaker 5So this is the Sims case from the Supreme Court and the agency context . But so I totally agree that there's administrative exhaustion required .
Speaker 7There's a separate question about issue exhaustion , which is not that's right , your Honor , gale , that's right , your Honor , and my contention is that there are good reasons to require if you've got evidence , if you've got arguments , you bring it forward to the administrator . Fourth Circuit has never decided as far as I know . But the First Circuit has a case called Liston where they talk about the importance of bringing all your evidence and arguments so that the court does not become a substitute plan administrator . And now you're inserting yourself in a situation that Congress did not intend you to have . I understand the distinction . I think there are very good reasons to require someone to make those arguments , and here the plaintiff did not . He did not exhaust or preserve the argument in the District Court either . There was none of the careful scrutiny that is required . But he raised it at oral argument for the first time and he talked about it for 30 seconds or so . That is not the kind of preservation .
Speaker 1And how ? What ? Excuse me , Mr Decker , you're saying I'm sorry . What .
Speaker 7The 180 days argument .
Speaker 1Okay , but the contract is in front of the court , though it's part of the record .
Speaker 7Right your Honor , and that's the issue of exhaustion . Again , he never raised the issue below to the administrator and he didn't preserve it in the District Court . He only mentioned it at oral argument In the first instance . Take upon that issue yourself . You become a substitute plan administrator , who's contrary to what Congress intended .
Speaker 5I understand that , but let me just understand on the District Court point . So he comes to the District Court and he says listen , I was getting ready for argument . I realized this argument that I hadn't thought of before . It's pretty straightforward about it . And Lincoln didn't argue that the issue was waived and the District Court didn't find the issue was waived and it was presented to the District Court . But why would this court find the issue to be irrevocably waived in that situation ?
Speaker 7I think the District Court did consider it waived . He hadn't mentioned it in any of the briefs . He mentioned it briefly at oral argument . I think you require some briefs .
Speaker 5Where do I see the District Court's decision that the argument was waived ?
Speaker 7I think he considered it waived because he didn't address it in his opinion , but I think that was appropriate . Again , it wasn't preserved .
Speaker 4I think the line is on that An implied decision by the District Court .
Speaker 7Again , I think it wasn't preserved enough so that he was focusing on it . I think that's the point . But if I can move to the merits of it , your Honor , the interpretation makes no sense . The total disability requirement under the ELWOC provision of the supplemental policy has two requirements you have to be totally disabled and you have to be totally disabled . It has to last for 180 days .
Speaker 1What is the date that we measure the 180 days from ?
Speaker 7We're not talking about the Lincoln policy here . We don't measure the 180 days .
Speaker 1I'm asking you , mr Decker , a very simple question what is the date from which we measure for purposes of this appeal ? The date from which we measure the 180 days ?
Speaker 7My point , your Honor , is that you don't measure it . It's not part of the inquiry under the PIC . The only issue under the PIC is we're totally disabled . To find that totally disabled means totally disabled for 180 days is circular and would not serve the purpose of the PIC at all . What would that mean , your Honor ? Wait a second . The policy ?
Speaker 1Don't we have to go by the policy If we find that it wasn't waived in the District Court ? How do we get beyond that clear policy language ? The man didn't know he had acute myelodephymia until October , so he clearly didn't meet the definition of total disability in the supplemental policy .
Speaker 7The supplemental policy your Honor says for this benefit , to get this benefit under the Lincoln policy which again we're not talking about we're talking about the Lincoln supplemental policy through the PIC . In order to get this benefit , if you're on the Lincoln policy , you've got to be totally disabled and it has to last 180 days .
Speaker 5You don't murder . Here's the challenge , and this is Judge Keenan asked own what date ? What are we judging it by ? We look at the PIC Failure to Satisfy Work Rule and it says are not totally disabled . Own the date the policy takes effect . I agree , the policy took effect on January 1st . Right , that's right , your Honor .
Speaker 7What that means , and it's certainly not an arbitrary interpretation of it . What that means is is he totally disabled ? Not whether it has lasted for 180 days , that's what it means .
Speaker 5No , but totally disabled is capitalized . It's a defined term . That's correct , your Honor On the previous page , which requires both the sickness piece and the 180 day piece . It has to include both because it's a defined term .
Speaker 7Your Honor , that is completely certain . What that would be saying is that when we're looking at the PIC , we're going to take anybody on the Lincoln policy . You could be on your deathbed . You could be in a deathbed . We'll take you as long as you haven't been out of work for more than five months and 31 days . That is exactly contrary to what the PIC is trying to do .
Speaker 5The pick is trying to help me understand that , because I would have thought it's the opposite . I thought it made perfect sense . So tell me why that's . That doesn't make sense .
Speaker 7Because what the what ? What the pick is trying to do ? Your honor is to make sure no one falls through the cracks , not to have Lincoln taking on a claim that belongs on the other policy . The pick is designed to determine which policy does this claim belong on ? Your honor ?
Speaker 5remember , I know , but that's included under point one , right ? So if it's already , it's already covered somewhere else . That's one thing , but that's subpart four of the fair to satisfy the active work
Dispute Over Life Insurance Coverage Entitlement
Speaker 5rule .
Speaker 7Your honor that person who's on their death bed , or mr Morris , is Entitled to an extension of life insurance benefits from the previous plan . Thus he's not entitled to take advantage of the pick that person is . That's what the pick is intended to do , your honor . It's intended to Not have Lincoln taking on a risk that it can't price for and assess . Somebody who's on their death bed , you know , after five , five months , and it's totally disabled , is entitled to take advantage of that Reliant standard extension of life benefits plan . And that .
Speaker 5Can you back that up for just a second ? Let me make sure I understand your argument . Yeah , argument is okay . Fine on four , but we should find that mr Morris was entitled to an extension of life insurance benefits under the prior plan .
Speaker 7He clearly was , and that informs both three and four you're on .
Speaker 5How do I know that on three , tell me what I'm looking at to figure that argument out . I just hadn't heard that argument yet . So where ? How would I know that he's entitled to an extension of life insurance under the prior plan ?
Speaker 7The prior plan has the exact same extension of life insurance provision as the as the Lincoln plan . That's a two , six , five , nine . So if you can do , you have to be unable to do any type of work for wage or profit which you are capable of , for your education and whatnot . It's almost the exact same . Almost exact same definition . So again , your honor , the . This is not what the pick was designed to do . The pick was not designed to allow something . What happened here is mr Morris chose to convert his policy . Had he filed the claim for LWAP benefits with reliant standard , they would have had to grant that claim .
Speaker 5They would have had to the the pick that's based on the extension of life insurance benefits that you represent as being Substantially similar to the one that's found at J A to six , five , nine .
Speaker 7And so you have to read the whole . Pick together , your honor . So what it's trying to do is say , listen , if we're trying to figure out which policy this person comes in under and if they're able to extend under the prior plan , they're not gonna be insured under Lincoln's plan . That doesn't make any sense .
Speaker 1And again to look at what's going on Doesn't say that , doesn't ? The intent is clear , your honor , it's about you're doing these argue just one sec , mr Decker . What I'm concerned with is that your argument is addressing logic rather than policy language , and this is sick release synonymous .
Speaker 7Let me make the point another way . So it's clear that the pit is trying to prevent Someone from shooting , from falling through the gaps , someone who's not at work for a short period of time and dies before they can go back to . It's what it's not With . The intent is clear that it's not intended to give someone an opportunity to get something that they would not otherwise get If there was no change in character in in in carriers . So that's got to go down here .
Speaker 5Can I ask a follow-up question ? So if I wasn't gonna find what you said , I would find on two , six , five , nine . Do you have another suggestion where I could find an extension of life insurance insurance provision ? And If you do not have it , with the my colleagues agreement , I'd be happy to have you submit it by letter . But I just I want to be . You say it's subject to it . I just want to see what I'm looking at and I'll try to find it my own .
Speaker 7Sure , you're on . The RSL policy is on . It's two six five , two , six , five , seven , two , two , six , six , two , two , six , six , three . I and I can . So that's the RSL policy and I can pinpoint the if I fail to give you the right policy .
Speaker 5If this one , one of those pages , I can find it , that's okay .
Speaker 7Yeah . So again , it's not intended to to allow someone to get something they could not get if there was no change in care in carriers . So again , it's instructive to look at what would happen if there was no changing characters . There is no circumstance or honors that mr Morris could ever obtain one point two million dollars in life insurance coverage from rights that accrue from the same plan . You couldn't have done that I .
Speaker 7What happened here is he chose to convert . You cannot convert and keep the group coverage . And Mr Glass says no , that's no big deal for people , it's a huge deal for people . The option to convert is extremely expensive . You're turning it into an individual policy , so you've got to pay those premiums . No one is ever going to choose to convert if they can extend the insurance under the prior plan . That makes no sense . You want to extend the group coverage as long as you possibly can .
Speaker 7So if there was no change in coverage , someone in Mr Morris' position would have filed that LWAP plan with RSL and RSL would have had to grant it . Given what they said about this man's situation on numerous times incapable of sustained frequent activity . Incapable of sustained activity , sustained work , activity on February and March . Incapable of any sustained activities , rsl would have had to grant that claim . So what you said , and there are people who can't afford to convert . So what Mr Glass is asking to do is to find that someone in Mr Morris' position who can't afford to convert is not totally disabled under this plan . That's just not the case . Again , if Lincoln wanted to ignore whether the person was actually totally disabled as of the affected date , it would have said listen , all you got to do is apply within five months and 31 days of leaving work and it will take you . That's not what the policy says and it's not what it's intended to do . So here there was no loss whatsoever because he was able to convert . He made that choice . He's not entitled to get more than he would have gotten had there been no change in care . That's in order to find that again , you've got to agree with his interpretation of the definition of total disability , which also doesn't make any sense . The notion that you're only going to look at one day , when everyone who looked at this file says he's incapable of sustained , reliable , consistent work activity . It's certainly not an arbitrary , capricious or unreasonable way to look at the definition and that's how everyone who touched the file looked at it and no one who looked at it didn't .
Speaker 7We talked about the evidence . Judge Trinket got this exactly right in terms of reviewing Lincoln's determination under the arbitrary and capricious standard , as Judge Richardson mentioned Dr Spina's APS in October , incapable of even sedentary activity . Dr Patel Donnelly in December , unable to work at all until June of 2015 . Mr Morris himself , on January 5th , talks to RSL and says he can't do household activities , he's not going to be able to return to any occupation because there is no remission Again , as of December 30th . He's in the office with Dr Patel and she's telling him we don't even know if there's a clinical trial that you can participate in . I'm not aware of any case anywhere ever where an insurance company said to a person in that situation oh yeah , because you've had some good days in between your second failed therapy and your first clinical trial , that you can work and we're gonna say no to your disability plan . And again , had he filed the claim with RSL , that's exactly what they would have done . They would have approved it , as any insurance company would have .
Speaker 7And Judge Treadman went through the evidence and discussed these issues that Mr Grassrace in terms of Nurse Sucha , who considered everything Nurse Sucha had access to the entire file . The referral to Nurse Sucha talks about in detail all of the information that Mr Grass submitted on the appeal . She obviously reviewed that . She didn't find Dr Patel Donnelly's retraction of her prior opinion to be of any weight and Judge Treadman agreed , and I think so would anyone pursuant to the case law . We said in our brief that talks about doctors who switch their opinions . That's just not a weighty thing to consider .
Speaker 7The procedural argument that there's some requirement to detail every piece of evidence , that's just not the case . The Department of Labor regulations say one has to begin a denial , that it has to be susceptible to judicial review , it has to have the reasons for the decision that you made and the policy provisions . The Supreme Court says in NORD you don't have to explain your disagreements . And if you had that requirement it would not be good . It would not be good for anybody because it would incentivize claimants to just large the file with stuff and then gotcha when there's no exact response . So I think that fails as well . It looks like my time is up , your Honor . Is there any other questions I can answer ?
Speaker 4We appreciate your presentation , mr Decker , but Mr Glass , you have some time for rebuttal .
Speaker 2Steve Morris . He was not entitled to the extension of benefits under the reliance policy . He had converted . I have no idea whether that's expensive or not . It probably is . Mr Decker is probably right , but the reality is that's what he did and , importantly , when you look at Judge Trenger's , I'm sorry back up that ?
Speaker 5You said two different things . You said he was not entitled to extension and then you said it was expensive , which are not the same point . Tell me so . I understand the second point , but I'm less interested in it . Tell me why it is you think he was not entitled to any extension of life insurance under the prior plan .
Speaker 2He had converted the policy and that policy had ended . And this is exactly why , judge he converted which policy ? I'm sorry ? The prior policy , the reliance policy . It was coming to an end December 31 . He would no longer be covered . Every employee at OG Systems would offer the chance you can now buy an individual policy . He bought the policy from reliance
Abuse of Discretion and Unfair Insurance Practices
Speaker 2. This is exactly what Judge Trenger , this argument that Mr Decker just made , is what Judge Trenger found to be an abusive discretion . The first time around . When Lincoln sent Ms Morris on a wild goose chase to go get a letter from reliance saying he would not have been eligible for this extension of death benefit under the reliance policy , judge Trenger said , of course he wasn't . He had converted the policy , the policy had so where is that ?
Speaker 5Can you just ? I just want to look at it . Where's the JA site ? Or that's just the first Judge . Trenger order is what you're calling . Yes , sir .
Speaker 2It's a memorandum opinion and my assistant may be able to pull the page . I can find it , thank you . Okay , thank you . The second thing is yeah , and I just want to go back and thank you for the questions about issue exhaustion . Remember , I think all of these people claimants need lawyers to appeal these irisic cases with their insurance companies , but the vast majority of them are not lawyers and so to require a consumer to make to exhaust legal arguments in his or her appeal back up the ladder with an insurance company , that's just not going to happen and in reality is most of these cases are done by consumers without lawyers .
Speaker 2Mr Decker and I . Mr Decker points out , and Lincoln has argued that this case that Mr Morris self declared himself unable to work and unable to do any job , and they just ignore that the two days later and this is at 1520 , when he was filling out a form for a reliant standard , and they ask what can we do for you ? And he says I may be able to work Again , this is January 7th , I may be able to work from home , do computer work with limited hours , but I heard the questions . My ask of the court would be because you've used language in several unpublished opinions like . There must be a meaningful dialogue and the insurance company must like at least fairly address these pro claimant issues that the claimant brings . My ask would be for a published opinion that makes this very clear . Follow other circuits that don't let companies like Lincoln get away with just ignoring this .
Speaker 2My friend , mr Decker , says Narsutra reviewed and had , he says how , all this available to her . The court needs to be able to see the work in order to make an independent determination by the district court or you or this court right Of whether there was a rational and principled decision-making process . You can't find that work in this claim file and this record at all . Unless there's any other questions , we'd rest on our arguments and on our briefs and Mr Decker and I are gonna get on Zoom and have a beer with each other .
Speaker 4Thank you , mr Glass , very much . The bill will be submitted and Madam Clerk will call the next case .
Speaker 6The 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 .