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

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?  

 There are standards as to what is fair, and the rules are not so difficult that an ERISA decision-maker should fail to follow them. The rules on appeal are slightly different but remain critical as a failure to follow them may allow a plan participant to demand de novo review in litigation.  The judge would be deciding the claim the same as for an ordinary breach of contract case. Thus, saith the Secretary of the Department of Labor.  If decision-makers closely follow these commandments, there would be far less litigation.  Just like there would be far fewer problems in the world if everyone followed the ten Commandments.

The landscape on ERISA[1]  subrogation and reimbursement of health and disability benefits paid is ever changing. Now there is a trend toward much more aggressive assertion of ERISA subrogation claims. The question arises that if your or your client refuses to honor the subrogation claim can you be sued as the attorney? One Court has said “yes”. When plans are ignored in this circumstance, they tend to act very aggressively. Ignoring the plan or asserting that there were no claims asserted for medical expenses do not win the day for either the lawyer or the plaintiff, generally. If the plan document disclaims the make whole rule and the common fund doctrine and has the “first dollar out” language for any recovery that is typically good enough, regardless as to whether there are claims asserted for medical expenses. If one proceeds that is with peril as counsel can be included when matters turn more aggressive.

An individual must be qualified in order to assert an ADA claim. The term qualified means that she is able to work with or without a reasonable accommodation. If an assertion is made in other litigation or ministry of matters, such as the Social Security proceeding that the person is disabled, then an explanation is necessary or the claim is due to be dismissed. The term qualified means that she is able to work with or without a reasonable accommodation. If an assertion is made in other litigation or ministry of matters, such as the Social Security proceeding that the person is disabled, then an explanation is necessary or the claim is due to be dismissed. 

Recent changes in the law relating to pregnancy were tucked away in the $1.7 trillion package recently passed and made law. The Pregnant Workers Fairness Act is in the package. It tracks the Americans with Disabilities Act (ADA) and adds protections for pregnant applicants and employees. This applies to employers with 15 or more employees. It requires reasonable accommodations for known limitations arising out of pregnancy, childbirth, or related medical conditions. It also adds the “interactive process” to assist in determining those accommodations. That “interactive process” means that employers and employees with pregnancy related disabilities, who request accommodations, must work together to come up with accommodations. To invoke the act, the employee must give notice to an employer of 50 or more of non-compliance, and that triggers 10 days to comply. Failure to comply may again open up a claim against the employer.

Migraine headaches are a big problem. The Mayo Clinic reports that this condition is the second leading cause of disability worldwide. The Mayo Clinic’s neurologists further confirmed that the disabling symptoms are not just the pain, but also sensitivity to light and sound as well as nausea and vomiting. People who experience migraine headaches know how severe and disabling such a headache can be. On the other hand, some people who have migraine headaches are able to continue to function most part, and work. The headache is not so severe. That presents a problem for employers, insurance companies, and courts. Who is experiencing symptoms so severe as to preclude work?

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), protects a qualified individual from discrimination by private employer. There are two basic parts to prove a claim for discrimination. The focus of this post, however, is on whether you can legitimately pursue an ADA claim and a Social Security disability claim at the same time. As to Social Security disability benefits you must prove your inability to work. It is possible to thread the needle, but it will involve a unique circumstance and you must be ready to explain the inconsistencies.

You may recall my post back in September about a Fifth Circuit case overruling a district court. Now for the end of the story. Mr. Hewitt was a supervisor working on an offshore oil rig. He received good pay (over $200,000 a year), but he was paid on a daily rate rather than a weekly, biweekly, monthly, or annual rate. Accordingly, he filed suit (above a putative class action) for overtime pay, but the district court ruled against him. Many employers had their eyes on this case. Some may now be scrambling to adjust their methods of payment. Others may be “asleep at the wheel,” and a class action may be looming. While employers can use many “creative” arrangements to avoid overtime, the daily rate salary is difficult to pass muster.