A case out of the 9th Circuit holds that ERISA LTD plans can still contain discretionary clauses. This is a complicated, but important issue, and I'll try to distill it down into as simple of a discussion as I can.
When an insurer denies your LTD benefits, and you want a court to review and overturn the denial, the insurance company is held to a standard.
First, you need to determine if your case falls under ERISA. If you receive LTD insurance from your employer, it's safe to assume you have an ERISA plan.
Under Federal law, ERISA plans can "reserve" discretion for themselves. Meaning, when a court reviews their decision to deny your request for benefits, the court must find the insurance company "abused" their discretion. The court will give deference to the administrator's decision, and will only overturn if there is clear abuse. This is a hard standard to overcome. It makes it tougher for you to win.
California banned these discretionary clauses. That means, when a court goes to review your case, they don't give any deference to the plan administrator. It's essentially 50/50 between you and the insurance company.
The problem is, and this is where it gets really complicated, California can only regulate ERISA plans under very narrow circumstances. I won't get into the how and the why, just be aware that if a plan is self-funded, then California's ban on discretionary clauses will not apply.
A plan is self funded when the company itself puts it's money up to fund the plan. As you can tell, only big companies with a lot of cash can do this. In this case, it's Boeing.
So it's important to find out whether your plan is self-funded or not.
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The 9th Circuit of Appeals (the federal appeals circuit which covers California) has determined that a long term disability insurer abused its discretion when it failed to consider two things:
If you receive SSDI, the determination by the Social Security Administration (SSA) that you are disabled, is not binding on the insurer. However, they must consider, and "grapple" with it. In the 9th Circuit, LTD insurers must meaningfully review any Social Security Administration conclusions. And if they end up disagreeing with the SSA's finding of disability, they must give their reasons for doing so.
Not distinguishing the SSA's finding of disability, is evidence that the meaningful review did not take place.
So if you receive SSI or SSDI, that means the SSA determined you are disabled. If your long term disability insurance company (whether covered by ERISA or not) then denies your application for disability benefits, they must state why they came to a different conclusion than the SSA.
The worker in this case suffered from Chronic Pain Syndrome. Chronic pain syndrome is one of those medical conditions that cannot be verified by objective testing (such as X-Rays, MRIs, or other imaging) and must rely on subjective complaints by the sufferer.
In cases where the medical condition cannot be verified by objective medical evidence, the insurance company cannot deny the claim based on lack of objective medical evidence. In this case, the "Independent Medical Examiner" (who isn't really independent as they are hired by the insurance company) observed the claimant exhibiting pain symptoms during his medical exam. The doctor also noted the long history of chronic pain.
Many medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established,” but “a disability insurer [cannot] condition coverage on proof by objective indicators ... where the condition is recognized yet no such proof is possible.” Id. Pain is an inherently subjective condition, and it is unclear what objective evidence the Plan was looking for in order to establish that Cruz-Baca’s pain prevented her from working. Neither the Plan nor Dr. Srinivasan offered any explanation as to why Cruz-Baca’s history of pain and pain-related treatment were insufficient to support a finding of disability. Under such circumstances, to disregard Cruz-Baca’s subjective complaints of continuing and pervasive pain was arbitrary and capricious.
The court also found this as an abuse of discretion by the Edison International Long Term Disability Plan, an ERISA plan.
While I did not handle this case, and this is just a summary of a disability case, if Edison or any other company denied or terminated your benefits, call us right now at (858) 999-2870, or Toll-Free at (888) 320-2058. Or just fill out our contact form on this page and we will respond promptly.
[pdf-embedder url="http://www.disabilitylegalcenter.com/wp-content/uploads/2017/11/Cruz-Baca-v.-Edison-Intl-LTD-Plan-9th-Cir.pdf" title="Failure to Review SSDI Abuse of Discretion in ERISA LTD Case"]
The Insurance Institute for Highway Safety, well known for crash testing cars to see how well they protect people in an accident, tested the performance of 82 headlights on 31 different cars.
The reports were dismal. Only one car tested was rated "Good." And that was just with LED headlights. The Prius equipped with headlights passed the test with a Good rating, when it was equipped with LED lights and high beam assist. The other 30 cars failed, and the Prius also failed when equipped with Halogen lights.
LED lights do better on the tests than Halogen lights in general.
The IIHS thinks that headlights shoot illuminate at least 330 feet straight ahead. Motorists going at least 60 mph might not have enough light to see hazards in time to stop.
Read more here
A federal US district court (Northern District of California, San Jose) in an ERISA Long Term Disability case decided a prior finding of disability by the insurance company is an important factor. The Court also decided that a Functional Capacity Exam (FCE) is a factor in determining the case, despite Prudential's attempt to discount the exam's findings.
The court's ruling holds that a prior finding of disability by the insurer is a significant factor that weighs in favor of the plaintiff. Since Prudential first decided the Plaintiff, a Drug Safety Operations Manager at Jazz Pharmaceuticals (“Jazz”) in Palo Alto, California, was disabled, and even paid short and long term disability benefits for 5 months, that is must show some significant medical change to terminate her benefits.
The Court then presumes Prudential relied on a significant change in the circumstances of her condition in order to recant its previous approvals and expects Prudential to provide some evidence of Gallegos’ medical progression at the time of its termination of LTD benefits. See Bledsoe v. Metropolitan Life Ins., 90 F. Supp. 3d 901, 910 (2015). However, a review of the record reveals no such significant change. See Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 871 (9th Cir. 2008) (noting that the defendant failed to “explain why further degeneration is necessary to sustain a finding that [claimant] is disabled” after defendant had been paying the claimant long-term disability benefits for a year”); Schramm v. CNA Fin. Corp. Insured Grp. Ben. Program, 718 F. Supp. 2d 1151, 1164 (N.D. Cal. 2010) (“Although Defendant did not need to prove a material improvement in Plaintiff's condition to defeat her entitlement to benefits, her lack of consistent, marked progress is probative of her continuing disability.”). Accordingly, Prudential’s prior finding of disability weighs in favor of finding disability.
The plaintiff underwent a functional capacity exam. The exam consisted of the plaintiff reporting subjective complaints, but also observations and test by the examiner. Prudential argued the Court should ignore the results of this exam because it was entirely based on self-reported complaints of pain. The Court did not find this to be true. There were observations by the examiner, pinch and grip tests. The examiner noted the plaintiff was giving full physical effort.
In addition, the court noted it rejects attempts to ignore self-reported symptoms. Thus, even self-reported complaints of pain and symptoms must be considered.
In addition, courts have rejected attempts to ignore self-reported symptoms such as that of Prudential’s here. See, e.g., Gilmore v. Liberty Life Assurance Co. of Boston, 2014 WL 1652048, at *6 (N.D. Cal. Apr. 24, 2014) (overturning denial where administrator’s doctors noted “plaintiff’s reports of pain” but “disregarded those self-reports”); Stout v. Hartford Life and Acc. Ins. Co., 58 F. Supp. 3d 1020, 1030 (N.D. Cal. 2013) (overturning denial where administrator’s doctors ignored “cumulative effect” of side-effects including musculoskeletal pain); Moody v. Liberty Life Assur. Co. of Boston, 595 F. Supp. 2d 1090, 1099 (N.D. Cal. 2009) (overturning denial where administrator’s doctors ignored “severe neck, arm, and back pain” that had been consistent “over a long period of time”). Accordingly, the opinions of Gallegos’ treating doctors and the functional capacity evaluations support that Gallegos was “more likely than not” disabled under the terms of the Jazz Pharmaceuticals Long- Term Disability Plan.
The court held the sporadic nature of lupus flare ups can prevent a person from being able to work consistently. A claimant may be stable at any given time, but a flare up can knock that person out, sometimes for a few weeks. A full time employer just can't have that sort of unpredictability and inconsistent attendance.
While I did not handle this case, and this is just a summary of the case, if your benefits were denied or terminated, give us a call immediately. Once your benefits are denied or terminated, and they send you a letter, the clock starts ticking and you only have a few months to file an appeal. If you don't file the appeal on time, your rights may be lost forever.
This case is called Gallegos vs Prudential and is linked below.
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The 9th Circuit Court of Appeals, which covers California, delivered a great opinion for disabled workers wrongfully denied long term disability benefits from their insurer.
This case involves Boeing, and Aetna Life Insurance Company. A few years ago, all of the LTD insurers reserved "discretionary" authority for themselves. Discretion in LTD policies, in my opinion, amounts to highway robbery. The insurance company sells you a long term disability policy, supposedly to protect you should you become disabled and can no longer work.
So they sell you this policy, but in the language they reserve for themselves "discretion." Meaning, they get to decide whether you are disabled or not. And courts respected this discretion. The insurance company would only lose if they abused this discretion.
I won't get into how an insurer can abuse their discretion, as it's a lengthy, unclear and complex topic. Just know, that in California, discretion for LTD policies is effectively dead. California passed a law in 2012, stating any discretion clause in a policy, contract, certificate, or agreement offered, issued, delivered, or renewed after that date, will be void.
The insurer argued this new law didn't apply to their policy, because the language in the agreement existed before 2012, and was not renewed or modified since. The Court disagreed, and stated under California law, a policy is "renewed" if it continues to be in force beyond it's anniversary date. In essence, all policies renew every year in its existence.
As we have quoted above, § 10110.6 voids any “provision that reserves discretionary authority to the insurer, or an agent of the insurer.” Cal. Ins. Code § 10110.6(a). The statute applies to any “policy, contract, certificate, or agreement offered, issued, delivered, or renewed.” Id. “‘[R]enewed’ means continued in force on or after the policy’s anniversary date.” Id. § 10110.6(b). Thus, for § 10110.6 to void the discretionary clauses in question, “a policy, contract, certificate, or agreement” must have been “offered, issued, delivered, or renewed” after the statute’s effective date of January 1, 2012. See Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 927 (9th Cir. 2012) (“The law in effect at the time of renewal of a policy governs the policy . . . .”).
Boeing argues, and the district court agreed, that § 10110.6 did not apply to Orzechowski’s claim because its Master Plan was dated January 1, 2011.3 There is no dispute that Boeing’s Policy—which is different from its Plan—had an anniversary date of January 1, 2012, and renewed accordingly. We think this is sufficient to invoke the statute. The statute makes clear that it applies when the “policy” renews. When the definition of “renewed” found in § 10110.6(b) is inserted into section (a), the statute reads:
If a policy, contract, certificate, or agreement
offered, issued, delivered, or [continued in
force on or after the policy’s anniversary
date], . . . contains a provision that reserves
discretionary authority to the insurer . . . that
provision is void and unenforceable.Cal. Ins. Code § 10110.6(a). A document (not just a policy, but also the contract, certificate, or agreement) is “renewed” if it “continue[s] in force on or after the policy’s anniversary date.” Id. § 10110.6(b). Boeing’s Policy here “renewed” when it continued in force beyond its anniversary date of January 1, 2012 and, accordingly, the Master Plan similarly “renewed” when it continued in force beyond the Policy’s anniversary date.
Boeing argues that § 10110.6(b) must refer only to insurance policies and not other plan documents. Thus, claims Boeing, the discretionary clause in the Master Plan survives and applies to Orzechowski’s claim. This is a variation on the prior argument that ERISA’s saving clause applies only to insurance companies, and not to insurance provided or funded by other companies. The argument fares no better the second time. By its terms, § 10110.6 covers not only “policies” that provide or fund disability insurance coverage but also “contracts, certificates, or agreements” that “fund” disability insurance coverage. “An ERISA plan is a contract,” Harlick v. Blue Shield of Ca., 686 F.3d 699, 708 (9th Cir. 2012), and thus the Master Plan falls under § 10110.6.
This is a great decision for disabled workers living in California. Discretion is unfair, morally and ethically wrong. And California did the right thing protecting its residents.
While I did not handle this case, and this is just a summary of a disability case, if Unum or any other company denied or terminated your benefits, call us right now, or complete the contact form on my website.
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A Federal Court in an ERISA Long Term Disability denial case doesn't believe an alleged phone call between a doctor hired by the LTD insurance company, and the treating doctor actually happened in the way their doctor claims it did.
The disabled worker, claimant Nancy Hart, was receiving disability benefits for 8 years, before it was terminated by Unum. Unum then terminated her benefits claiming she no longer met the definition of disability. The court disagreed, and decided she was disabled, that Unum improperly terminated her long term disability benefits, and that they owed her past benefits and future.
Courts consider past findings of disability or past payments of disability benefits to weigh against the insurer unless something new and significant changes their decision.
What this means is, if you were previously found disabled, and/or were receiving benefits for the disability, your insurer needs to provide something new and significant in order to justify terminating your benefits.
This significant change can't just merely be a stabilization of your condition. In other words, let's say your spine/back was degenerative, and you were found to be disabled. New tests and exams reveal the degeneration halted, but it did not improve. This is not significant enough to justify a termination of your benefits.
The doctor hired by the LTD insurance company alleged he called the claimant's doctor, and in that phone call he asked the claimant's treating doctor if she “felt Ms. Hart was medically precluded from engaging in full time primarily seated work activities."
The insurance company's doctor then alleged the treating doctor said "“she did not know and had no opinion.” The insurance company's doctor further alleged the treating doctor then recommended an independent medical exam, and without that, she would no opinion on the claimant's disability and ability to work.
The court found this report lacked credibility. The report of her statements contradicted years of her treatment reports, notes and findings.
Insurance companies regularly hire their own doctors to examine their claimants. Then they perform what is called an "Independent Medical Exam" which is anything independent. Their doctors will regularly spin any evidence and findings, as well ignoring compelling medical evidence to support the insurance company's position.
In this case, their doctor noted limitations in what the claimant Hart could endure. More significantly, the doctor seemed to ignore or insufficiently consider prior MRI's which support the claimant's disability.
The 9th Circuit, which covers California, states your subjective complaints of pain must be considered and not ignored. The court was not convinced a 25 minute examination by an insurance company doctor can negate years of reports of pain by the claimant.
The insurance company hired several doctors to work for them. Two of them only reviewed files, and never examined the claimant. Their opinions are accorded less weight because of this.
While I did not handle this case, and this is just a summary of a disability case, if Unum or any other company denied or terminated your benefits, call us right now, or complete the contact form on my website.
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According to a new report in the Journal of Pediatrics, up to "43 Percent Of Kids Killed In Car Crashes Aren’t Properly Restrained." Some estimate as many as 95% of families install their newborn's car seats improperly. 75% of families face their childrens' car seats the wrong way, and many older kids aren't using booster seats as recommended.
The report from The Journal of Pediatrics presented several factors that may increase the likelihood of the death of a child in a motor vehicle accident in the US based on data from the National Highway Traffic Safety Administration.
The report looked at 18,116 kids under 15 involved in fatal crashes from 2010 to 2014. Of those 18,116 kids, nearly 16% of them died in that crash. 43% of those kids who died in the accident were improperly restrained, or even worse, not restrained at all. 13% of those kids who died were improperly seated in the front seat.
There were major regional differences. 52% of the children involved in fatal crashes were from the south, 19% in the midwest, 7.5% in the Northeast, and 21% in the west.
In 2011 American Academy of Pediatrics recommended toddlers stay rear-facing until the age of 2, or until they exceed the height and weight limit for their seat.
In California:
When should you move your child to a booster seat? There is no specific law on graduating children from a car seat to a booster seat. It is recommended you wait as long as possible to do so.
According to the CHP, your children is ready for a booster seat when they outgrow their forward facing car seat, typically between 40-65 pounds. Read your car seat manual to determine the weight and height limits, but keep your child in the car seat for as long as possible.
Safety belts are designed for 165 lb male adults, so they are not properly fitted for your child. The booster seat helps position the children higher, but also the seat belt lower. It is important to use a booster seat when your child outgrows their car seat.
In the United States, unintentional injury is the most common cause of pediatric death, and motor vehicle crashes are the leading cause of injury. If your child is injured in an accident, give our office a call right now, or fill out our online contact form.
I probably don't even have to tell you that getting a reasonable offer from the insurance companies on your own is tough. The insurance companies aren't in the business of paying out as much as they can.
On the contrary, they're out to pay as little as they can. If they can get you to accept $1,000 when you might win $10,000 or more from a jury, that's a huge win for them. They have endless amounts of data from many trials and settlements. They have a good idea what you would win in a jury trial (although there are always surprises). They also know that if they can get you to accept a lower amount in settlement, they'll have great numbers to tell their supervisors and managers.
So if you're in a car accident what can you do? You can be extra cautious when dealing with any insurance adjusters. That includes your own adjusters. They also have a job to do. And that job may include opposing you, if you end up filing an uninsured motorist claim! So they will look to add "arrows to their quiver." This means if they come across any information that can be used against you, they will file it away and pull it out if necessary.
So be extra careful when any insurance adjuster contacts you. Don't agree to give out a statement to the other driver. You may have to give your own insurance company a statement, depending on the terms of your policy. But you don't have to give it right away. You can ask if a written statement or questions can be submitted instead. Finally, yes you're on law firm website, so you are doing the right thing by seeking legal information and/or advice.
On smaller cases, where total case value is $5,000-6,000, hiring a lawyer might not add value to the case. We are talking about cases where the property damage isn't substantial, and there was minimal care, such as chiropractic and/or physical therapy only.
In that situation maybe you don't need to hire a lawyer. If the adjuster offers you enough to satisfy you, then you don't have to pay the lawyer a significant portion of your settlement.
But that situation is rare, and more often than not, they're trying to reduce the settlement they'll have to pay out.
Slow down. Don't tell them much. Speak to a lawyer about your case. Most lawyers offer a free consultation so it doesn't hurt to give one a call.
Not necessarily. Having a preexisting injury isn't going to destroy your case. When someone causes your injuries, due to their own negligence, they are responsible for the damage they cause.
So long as the most recent accident caused your injuries, and you can show this, you are entitled to full and fair compensation.
Now, your prior injuries and preexisting conditions are important to your case. You need to disclose all of your injuries to your attorney, whether they happened right before the most recent accident or 20 years ago.
Preexisting conditions need to be disclosed so that an analysis can be done. We need to determine if your present symptoms are caused by the most recent accident. Maybe it is a mix of existing symptoms that are made worse by the most recent accident.
Also, preexisting conditions can make your case better. Prior injuries make you more susceptible to injury to those sections of your body. If you already have back problems, and get hit by another car or fall down, your back might be in worse shape than someone else who didn't have any existing injuries there.
It's only fair to analyze your case in this manner. If the negligent person who caused your injuries was only responsible for 50% or 70% of your present injuries, then that is how much they should be responsible for. Also, if your prior injuries made it easier for you to suffer greater injuries, then the defendant should be responsible for that.
So, it is important that you are not afraid to tell your doctors and attorney about any prior injuries, accidents or conditions you have. If your pain or symptoms are worse after an accident than before, than it'll be shown that the defendant caused you injury, and owes you full and fair compensation.
California has two relevant jury instructions on pre-existing conditions.
[Name of plaintiff] is not entitled to damages for any physical or emotional condition that [he/she] had before [name of defendant]'s conduct occurred. However, if [name of plaintiff] had a physical or emotional condition that was made worse by [name of defendant]'s wrongful conduct, you must award damages that will reasonably and fairly compensate [him/her] for the effect on that condition.
Sources and Authority
"A tortfeasor may be held responsible where the effect of his negligence is to aggravate a preexisting condition or disease." (Hastie v. Handeland (1969) 274 Cal.App.2d 599, 604 [79 Cal.Rptr. 268], internal citations omitted.)
"Plaintiff may recover to the full extent that his condition has worsened as a result of defendant's tortious act." (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal citations omitted, overruled on another ground in Soule v. General Motors (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
"It is by no means self-evident that an act which precipitates a flare-up of a pre-existing condition should be considered a 'cause which, in natural and continuous sequence, produces the injury.' Thus, general instructions on proximate cause were not sufficient to inform the jury on the more specific issue of aggravation of pre-existing conditions." (Ng, supra, 75 Cal.App.3d at p. 256.)
"[An instruction on preexisting condition] is proper only where the injured is the claimant seeking compensation for his injuries. That is not the case here in a wrongful death action." (Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 358 [168 Cal.Rptr. 571].)
You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.
Sources and Authority
"That a plaintiff without such a [preexisting] condition would probably have suffered less injury or no injury does not exonerate a defendant from liability." (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal citations omitted, overruled on another ground in Soule v. General Motors (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
"The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability." (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.)
As you see, even if you have pre-existing injuries, or you were more susceptible to injury, you can still recover fair compensation from the person who caused your injuries.
But your attorney needs to know about these issues before the defendants and their attorneys do. We can usually deal with pre-existing issues as long as we know about it.
So you must absolutely tell your personal injury attorney about any possible issues.
Seat belts are extremely effective in reducing injuries and the severity of those injuries passengers suffer in car accidents. Despite this, many people choose not to buckle up. There are many reasons that show why this is a terrible idea. First, the stats.
So, the evidence shows, it's a good idea to wear your seat belt.
But that's not all. There is a legal reason to wear your seat belt - and I'm not talking about getting a ticket for not wearing your seat belt. If you are injured in an accident caused by someone else, and you were not wearing a seatbelt, the other side will try to use that against you.
In other words, they will claim that your injuries were partially caused by you. Yes, you were partially at fault for your injuries, because you did not wear a seat belt as is required by law. In California, this is known as the seatbelt defense. You can read about it here in California's jury instructions. If they can prove:
So you see, it isn't just a good idea to wear a seat belt. It is imperative that you do so. You must wear a seatbelt on every trip, no matter how short. Even if you're going across the street. Especially if you cross an intersection, where many serious accidents occur.
So you must wear a seatbelt on every trip, no matter how short. Also, require everyone in your car to wear one before you even put the car in gear.
