Monday, June 29, 2015

ERISA Denial Letters Do Not Need to State Time Limit to File Action in Court

It has been clearly established that a claimant has 180 to file an administrative long term disability appeal.  However, once the administrative appeal is denied, there is a great deal of ambiguity as to when a claimant must commence an action in Federal District Court.  In a recent decision,  Wilson v. The Standard Insurance Companythe 11th Circuit Court of Appeals had the opportunity to explain the applicable time limitations in ERISA cases.  
In Wilson, the 11th Circuit noted that “ERISA does not provide a statute of limitations for suits brought under § 502(a)(1)(B) to recover benefits. Thus, courts borrow the most closely analogous state limitations period,” unless the parties have contractually agreed to a different one in the ERISA plan. Northlake Reg’l Med. Ctr. v. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998).  In other words, since there is no specific time limit to file an action in court, the statue applied in ERISA cases is whatever statue exists in the forum state.  Therefore, in most long term disability cases, courts borrow the statute of limitations on breach of contract actions of the state where the case is heard.  
However, plan administrator and insurers can specify in the plan or policy document that a different statute of limitations is applicable.  This is in fact what happened in Wilson.  In Wilson, the Standard Insurance Company specified in the disability policy that the time limitation to file an action in Federal Court was 3 years.  However, the applicable statute of limitations for breach of contract cases in that particular forum state (Alabama) was six years.  When the Standard issued its letter denying Ms. Wilson her long term disability benefits, it failed to mentioned that the policy had a three year limitation period. 
Wilson eventually filed an action in Federal Court, 34 months after the three year period had passed. The Standard alleged that the action was time barred because it was outside the three year period contained in the policy.  Wilson contended that the three year period was not applicable because the Standard had failed to point out in the denial letter that there was a three year limitation to bring actions in court.  The 11th Circuit held that the insurance company was not required to inform the claimant of the time limitation to bring action in court.  According to the court, the insurance company is only required to mention in the denial letter the 180 time limitation to file administrative appeals.  Moreover, the Circuit Court of Appeals noted that the plaintiff bears the responsibility of obtaining a copy of the long term disability plan and determining on his or her own what is the applicable time period to file an action in court.



Monday, June 22, 2015

Social Security Amends its Cancer Listing: Section 13.00

Over the years the Social Security listing that pertains to cancers has been known as the listing for "Malignant Neoplastic Diseases".  This listing is contained in Section 13.00.  A few days ago, the SSA made several amendment to this listing and finally renamed it as the "Cancer" listing.
One of the changes of this listing is that it recognizes that treating sources, other than MD's, can provide valid documentation of multimodal therapy.  The new rule states: "While an acceptable medical source may provide this evidence, our existing policy allows us to accept evidence from other medical sources to establish the impairment's severity.  For example, this evidence may come from sources we do not consider acceptable medical sources, such as oncology nurse practitioners who administer chemotherapy and radiation therapists who deliver radiation treatments."
Also, Section 13.00I.6 was amended to change the definition of the term "progressive cancer". Before, progressive cancer was described as a cancer where "malignancy becomes more extensive after treatment".  The new rule states instead: "progressive means the cancer becomes more extensive after treatment; that is, there is evidence that your cancer is growing after you have completed at least half of your planned initial anticancer therapy."
The amendment to the listing also makes amendment to how specific types of cancers are evaluated. Here are some examples:
Primary breast cancer evaluations will under go some changes under the new listing. For example, Secondary lymphedema resulting from anticancer therapy is evaluated under 13.10E if the secondary lymphedema is treated by surgery, but the onset of disability can be earlier that the date of surgery if there is enough evidence to that effect.
Primary peritoneal carcinoma is evaluated under 13.24E for women and 13.15 for men.
Skin cancer listing at section 13.03 was amended to exclude malignant melanoma and directs adjudicators the new section 13.29 to evaluate this cancer.


Monday, June 15, 2015

Disability Report Must be Filed With Appeal by Deadline

Once an initial Social Security Disability application or a request for request for reconsideration is denied, a claimant has 60 days to file an appeal.  In the past, the claimant and his or her lawyer could simply file the appeal electronically using (SSA-i561 or SSA-i501) without the need to included any additional information. However now, pursuant to new rules, the appeal will not be accepted unless it is filed simultaneously with the "Disability Report" (SSA-i3441).

For a long time, attorneys had the practice of submitting the appeal (the Request for Reconsideration or Request for a Hearing Before and ALJ) within the 60 day period and then submitting the Disability Report later on.  However, at a recent NOSSCR conference in Arlington, Virginia, ODAR Deputy Commissioner Glenn Skylar announced that a claimant's appeal will no longer be considered valid unless the Disability Report has been submitted.  This new policy is more specifically described by the Social Security Administration in POMS GN 03101.125.

Another important development with respect to the electronic appeal process is that now claimants and their lawyers can upload documents as part of their appeal.  Now lawyers can attach materials such as medical records, doctor's opinions or Appointment of Representative forms (SSA-1696).

This new policy has its advantages and drawbacks.  On one hand, it prevents irresponsible social security lawyers from doing a quick appeal without doing any work.  On the other hand, it can be very difficult for claimants who obtain legal representation just a few days before their sixty day deadline.  In many cases, claimants who obtain a lawyer in the last minute are unable to remember details of their medical treatment and it can be very difficult to complete the Adult Disability Report. 

It is important to point out that the requirement to file an appeal electronically applies only to to Requests for Reconsideration and Requests for a Hearing.  Appeals to the Appeal Council must still be filed in paper.   

Monday, June 8, 2015

SSD Tip of the Week: Get a Print Out of All of Your Worker's Comp. Payments, ASAP

Social Security Disability Benefits (SSD) are reduced by Worker's Compensation (WC) payments.  If a disabled individual is receiving both SSD and WC, SSD monthly payments cannot be more than 80 percent of the money that the beneficiary got paid during full time employment.  This is commonly referred to as "the worker's comp offset".

Social Security Administration employees who process payments are trained to look for possible worker's comp offsets.  If they find any evidence that there ever were any worker's comp payments made to a claimant, they will stop the payment process until the claimant produces paperwork itemizing all worker's comp payments.  Please be aware that it does not matter how long ago these payments were made or the amount of money involved.  You must assume that SSA field office employees will not process your payment if they don't get a clear explanation of the money that you got in worker's comp.  This situation has become a real nightmare for many claimants in Connecticut and Massachusetts who desperately need their monthly Social Security Disability check, right away.

My advise to all the readers of this blog is that no one should wait until a disability case is won to start looking for worker's comp paperwork.  In fact, it is highly advisable to obtain this information during the initial application stage.  Once an application is filed, a claimant who has received WC benefits should contact the insurance carrier who issued the benefits and request a full print out of all the payments.  Also, it is important to obtain copies of any WC settlement that describes any lump sum payments made to you.  It is might be a good idea to request this information from the lawyer who handled the comp case.

Once this information is gathered, the claimant or his or her lawyer should submit it to the field office with a cover letter explaining that information provided contains the total figures of the amounts of worker's compensation benefits received. 

Monday, June 1, 2015

LTD ERISA: 9th Circuit Excludes Weekends from 180 Day Appeal Deadline

Once an insurance company denies or terminates a long term disability claim, a claimant has 180 days to file an administrative appeal.  Last week, the 9th Circuit Court of Appeals ruled that weekends should not be counted in the 180th day computation when the deadline falls on a Saturday or a Sunday.     
In Legras v. Aetna Life Insurance Company, (Click Here for a Copy of the Opinion) Aetna cancelled Andre LeGras' long term disability benefits because he, allegedly, was no longer disabled under the terms of the plan.  The the 180 time frame for LeGras to file the appeal ended on a Saturday. However, he did not mail his appeal until the following Monday.  Aetna automatically turned down his appeal because it was untimely.  Subsequently, the the District Court entered a judgement in Aetna's favor and ruled that LeGras had failed to submit his appeal within the 180 time period. 
On appeal, Judge Richard Paez from the 9th Circuit Court of Appeals determined that Aetna should have allowed LeGras' appeal based on the "widespread understanding that a deadline falling on a Saturday, Sunday or a holiday extends to the next business day".  It is important to note that ERISA does not specify a method for computing time for appeals.  There has always been a great deal of uncertainty as to how this time period is computed.  Fortunately, this Circuit Court decision provides some guidance on this issue.  
Judge Paez wrote on behalf of the majority: "There is nothing novel about the principle we adopt here",,,  Incorporating this time-computation method into ERISA's federal common law protects the interests of insureds, thereby effectuating the policy goals of ERISA.  
A dissenting opinion was written by Judge N. Randy Smith who maintained that the case dealt with "simple contract interpretation" and that the ruling expanded "Federal Common Law" without any precedent.       

Monday, May 25, 2015

Newtown Officer Must Get Disability Benefits for PTSD

Many individuals who contact our office seeking the assistance from a long term disability lawyer, seem to be unaware that most disability plans have a limitation on payments for claimants who suffer from mental health conditions.  Unfortunately, they assume that disability benefits will continue to be paid until age 65 or 66, regardless of whether their disabling condition is caused by mental health or not.

As part of my practice, I must constantly remind clients and prospective clients that most group insurance policies only pay benefits for a period of 24 months if their inability to work was caused by a mental health condition.  It appears, that town officials in Newtown, Connecticut also overlooked the 24 month mental health limitation provision when they negotiated the collective bargaining agreement with the police union.  

As part of the police union contract, the town of Newtown agreed to provide members of the police department with disability benefits.  The union contract that was signed did not contain any limitation for the payment of benefits for mental health conditions.  However, when the town proceeded to purchase a group disability policy for the union members, they bought a "standard a group policy" that has a 24 month limitation for mental health.  As a result of the purchase of this type of insurance policy, the town has been left with the responsibility of paying from its own funds for any claims for disabling mental health conditions that last more than 24 months.  

This past Friday, the Connecticut State Board of Mediation and Arbitration ruled that Newtown must pay a police officer who hasn't worked since 2012 due to PTSD that was caused by his involvement in the horrific Sandy Hook Elementary School massacre.  The three member panel ruled that the town was contractually obliged to pay disability benefits under the union contract, without being subject to the two year limitations contained in the LTD insurance policy.  For a copy of the Arbitrator's decision click here.
  

Monday, May 18, 2015

FedEx LTD Denial Subject to De Novo Review

On May 5, 2015 the United States Court of Appeals for the Fourth Circuit ruled against the Federal Express Long Term Disability Plan in its denial of LTD benefits to one of its former employees. This decision is great news for  disabled FedEx employees.  FedEx was unsuccessful in convincing the Circuit Court to apply an abuse of discretion standard to review the denial of benefits. Instead, the court determined unanimously that the denial was subject to a de novo review.  See Bilheimer v. Federal Express Corporation Long Term Disability Plan, No. 13-1859.  

Long term disability attorneys must deal, on a regular basis, with the issue of what standard of review a court must apply when reviewing a denial of benefits.  Under ERISA case law, a court may review a denial of benefits using one of two standards: 1. an abuse of discretion standard or, 2. a De Novo review.  Under an abuse of discretion standard a court will not reverse a denial of LTD benefits if the denial "was reasonable" even when the court "would have reached a different decision". Therefore, as long as the denial is grounded in some "principled reasoning process" it will not be reversed.  However, under a "de novo" standard a judge can review the record and make a decision without any deference to the denial by the insurance company or plan administrator. Obviously, the de novo standard is much more beneficial for disabled individuals and is the standard that plaintiffs' lawyers always want.

In the case of Bilheimer, which was decided just a few weeks ago, the Fourth Circuit Court of Appeals had the opportunity to decide whether FedEx had discretion in denying LTD benefits to one of its employees.  The Circuit Court ruled that the denial was subject to a de novo review because the FedEx LTD Plan did not properly delegate its final decision making authority to Aetna.  The court found that FedEx could not outsource its discretionary duties to Aetna without first amending its long term disability plan documents.  RamosLaw is currently representing another  disabled FedEx employee whose LTD benefits were also denied.  The case involves the same standard of review issue as Bilheimer and is pending before the Connecticut District Court.  Although the Fourth Circuit decision is not binding in our case, (Connecticut is on the Second Circuit) we are confident that the Court will reject the abuse of discretion standard also, and review the case de novo.