Blog - ERISA and Disability Rights and Benefits - Alabama - The Martin Law Group, LLC

A recent case demonstrates the need to be careful with what is on your tax returns and the information reported to a long-term disability insurer. This case also underscores the necessity of having counsel during the claim process to make sure that red flags are avoided on claimant questionnaires. A strong claim record makes a strong case.

In the recent case, Pavia v. NCAA, NO. 3:24-cv-01336, M.D. TN, Nashville Division, (December 18, 2024), the District Court granted a preliminary injunction to the Vanderbilt quarterback Diego Pavia allowing him to play football in 2025 to 2026. And so, we will see how Pavia leverages his employment opportunity. One thing is certain and that is he will likely enjoy a very handsome paycheck.

Those words, “is it time yet?” we hear frequently around the holiday season. For example, we hear that with children anxious to leave their beds and open presents on Christmas morning.  We hear that with children anxious to start a holiday celebration such as Hannukah. The same difficulty with patience is heard from kids during a long drive to an exciting destination with the words “are we there yet?” These comments also capture the impatience of attorneys who see unfairness in the law toward health claim clients. They see outrageous unfairness but pleas for changes in the law are ignored. With the death of an insurance executive again I ask again, “Is it time yet?”

When it comes to ERISA and subrogation claims, the subtleties of ERISA may lead to presumptions. That key is to carefully read exactly what the plan/policy says. Presumptions may cause an overlooking of rights.

The case is Hornady, et al v. Outokumpu Stainless USA, LLC, 2024 WL 4471161 (11th Cir. October 11, 2024), involved more than discovery games. Games were also played with the Fair Labor Standards Act (FLSA). This article will discuss some mentioned in the case which may assist in identifying wrongs when reviewing an FLSA matter.

You may recall from 2021, a nearly 100 page Fair Labor Standards Act (FLSA) case opinion from Judge Beaverstock in the Southern District of Alabama sanctioning defendants with a default judgment for refusing to cooperate with discovery.  Of course an appeal of the $13.1 million default judgment followed and now the 11th Circuit has affirmed that decision for the most part and remanded on the statute of limitations issue. The case is Hornady, et al v. Outokumpu Stainless USA, LLC, 2024 WL 4471161 (11th Cir. October 11, 2024). 

In Baptist Homes, Inc. v. City of Madison, Civil Action 3:24-CV-92-KHJ-MTP (S.D. Miss. Oct. 2, 2024), the district court said an entity can assert a claim under the Americans With Disabilities Act (ADA). Baptist Homes is a nonprofit that provides support for those with intellectual developmental or other disabilities.

Accidental death insurance is very commonly offered in the workplace. It is usually "dirt cheap" but there may be a reason for that. The coverage may frequently be illusory, especially if there is language in the plan or policy which excludes coverage for any pre-accident condition which "contrib...

The case Roche v. TECO Energy, Inc., No. 8:23-CV-1571-CEH-CPT, 2024 WL 3966067 (M.D. Fla. Aug. 28, 2024) portrayed ERISA yet again as one of the most “snakey” statutes.  Mr. Roche had worked for years at a power company and was counting on his pension for retirement. He read his summary plan desc...

Remember this article from January 23, 2024? Do Non-Compete Agreements Really Reduce Workers' Wages, Stifle New Businesses and New Ideas, Exploit Workers and Hinder Economic Liberty? The FTC had put out a fact sheet to pave the way for its rule change anticipated a few months later in April. Then...

Many people have the impression that it is illegal to be terminated while out on disability. That is not exactly the case in non-union employment in Alabama, Georgia, and Florida.  An employee can be fired for any reason (unless protected by other law) and the employee can quit for any reason. S...

Can the Military Discriminate? Intuitively, one would assume that the military cannot discriminate if a private employer could not under 42 U.S.C. § 2000e-2 (Title VII).  However, the definition of an employer at 42 U.S.C. § 2000e (b) does not apply as it excludes the United States. Another prov...

When you no longer can work due to a physical or mental conditions, it is disheartening when the insurance company, which may have received disability premiums for years, refuses to pay your claim or terminates it after paying a while.   Since you cannot work, you lack resources to hire an attorn...

Many people are covered by accidental death insurance in the workplace. A claim on such a policy will often be refused...one has to wonder how far courts will take this opinion.

Last time, we discussed the need to utilize the class-action in the employment context, and we went over the four basic prerequisites. This time, we will look at the three paths to success for class-action in the employment law context.   The first path has two parts – an A and B part. Both opt...

Can a class action arise in the employment law context? Indeed, it can. It is not uncommon, in fact, when there is a breach of fiduciary duty, which impacts a large number of people in the ERISA context. For example, if there is a failure to provide pension benefit statements to all pension parti...

Many claimants wonder can an insurance company rely on a nurse to overrule a physician opinion? This is a matter that needs to be changed. What should occur given that there are deadlines with claim decisions is that past benefits should be paid and Unum should be permitted to evaluate the claim going forward. Otherwise, the minimum standards of a full and fair review under the claim procedure and the plan in question, is still not satisfied as the decision is being made out of time.

If you are sick or injured and not able to function, is the fact that you are not getting better a reason to find you can return to full-time employment? Unum thinks so. Ms. Proctor was a telephone call center supervisor, when the vehicle she was driving was struck from the rear by another vehicle driving about 50 miles an hour. She thought she was fine at the accident scene, but later she developed a headache and began to experience dizziness. This led to difficulty with concentrating and completing paperwork and eventually her vision was blurry. The court found that de novo review was the correct standard to use. Under that standard, the court ruled for Ms. Proctor and ordered past due benefits paid with interest, and awarded attorney’s fees and costs, and ongoing consideration of the claim. One has to wonder if the outcome would be the same under the arbitrary and capricious standard of review.

Our last post discussed whether an employer providing false information caused an actionable claim under state law. An example was provided where it was actionable. However, if federal law applies can a claim arise? 

Many potential clients (PCs) strongly believe that because of pregnancy and adverse action taken against her necessarily means she has a good case. She may well doubt your resolve.  A good checklist can help sift this. So what exactly makes a good pregnancy discrimination case? There are a number of hoops to jump through in order to demonstrate a good case that will survive a motion for summary judgment.  This provide a checklist and starting point in your PC interview. If you have thoughts to add to this by all means please share!

Yes, according to the recently decided Akridge v. Alfa Ins. Cos., No. 22-12045, at *37 (11th Cir. Feb. 16, 2024). It all has to do with the causation test used. Race, gender, sex and other forms of Title VII discrimination use a motivating factor causation test. Age discrimination does as well. However, under the Americans with Disabilities Act (ADA), the ‘but-for” causation test is used, which is harder to meet. That result hardly seems fair, but it is the law in the 11th Circuit.

Recently a question was posed to me as to how the "No Surprises Act" (NSA) worked with a medical benefit claim. More specifically and importantly, what happens if the health insurance company and an out of network emergency provider, like an ambulance service, disagree on the insurer’s payment? If the provider refused to accept that health insurer payment along with the patient’s co-pay or deductible as payment in full, is the patient on the hook for the balance so to speak? So there is a way to keep out of the middle… but it will require that all parties know the rules. Timely decisions by medical plans, providers who know the rules, and a patient who is either unconscious or unaware of the care or savvy enough not to consent.  

Recently, the National Labor Relations Board adopted a new rule regarding handbooks and other workplace rules. The NLRB has passed by enforcing Section 7 of the National Labor Relations Act. That section guarantees the right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their choosing; "and to engage in other concerted activities for the purpose of … other mutual aid or protection." 29 U.S.C. § 157. Many attorneys assume this Act only applies to disputes between unions and companies. The NLRB does not see it that way.The concern raised by many on the employer side of employment law is that the mere possibility that a rule could be construed to interfere with protected activity is enough, even if it is clear there was no such intent. If your firm has a handbook, it may be wise to review it, looking for any possible angle from which a provision might interfere with an employee seeking "mutual aid or protection.” Many claims alleging wrongful termination could be turned into an NLRB matter.

If you are sick or injured and not able to function, is the fact that you are not getting better a reason to find you can return to full-time employment? Unum thinks so. Ms. Proctor was a telephone call center supervisor, when the vehicle she was driving was struck from the rear by another vehicle driving about 50 miles an hour. She thought she was fine at the accident scene, but later she developed a headache and began to experience dizziness. This led to difficulty with concentrating and completing paperwork and eventually her vision was blurry.The court found that de novo review was the correct standard to use. Under that standard, the court ruled for Ms. Proctor and ordered past due benefits paid with interest, and awarded attorney’s fees and costs, and ongoing consideration of the claim. One has to wonder if the outcome would be the same under the arbitrary and capricious standard of review.  

A recent case known as Laake v. Western &Southern Financial Group Co. Flexible Benefits Plan, et al. in the 6th Circuit, illustrated what a maximum recovery in an ERISA case looks like. Sherry Laake was unable to work due to an undifferentiated inflammatory arthritis (most consistent with seronegative rheumatoid arthritis), significant osteoporosis, chronic pain, chronic fatigue, chronic recurrent pulmonary/sinus symptoms, recurrent abdominal pain/vomiting, and IgG subclass deficiency. Suffice it to say, she was in daily pain, constantly tired, and frequently ill. Western & Southern Financial Group Co. (WS) allowed her claim to be paid for the first 24 months, but then denied her claim contending an exclusion barred further payment on the claim.Altogether the maximum recovery then is past benefits, fees and costs, the right to an ongoing review of the claim for future benefits, and then statutory penalties. This was all affirmed on appeal to the 6th Circuit.  So for all she had been through … waiting on benefits for years, going to district court twice and then an appeal … is that enough?  That is all there is under the law unless a breach of fiduciary duty claim arose separately. And that only affords equitable relief. Is it time for our lawmakers to bring more fairness into the arena of ERISA?