The claim process is the procedure that all parties are supposed to follow. That can involve notice, claim, proof of loss, time limits, and the appeals or reviews. There can also be reviews as to pre-existing conditions, prior coverage, and work status. Not only is proving disability important, b...
This chapter discusses the schedule of benefits, waiting period, elimination period, maximum benefit period, coverage ends, and mental illness limitations.
This chapter discusses how insurance companies define disability in their policies and reviews three critical definitions: own occupation, any occupation, and residual (or partial) disability.
I often hear people who are receiving a pension or Social Security benefit proclaim that their long-term disability insurance company cannot touch their pension or Social Security benefit. Sometimes I have heard this from lawyers as well. While it is true that there is an anti-lien statute barrin...
My purpose with this book is to level the playing field a little bit, so there are fewer surprises if you have a claim. I point out concerns with each term based on decades of experience. This should not be taken as legal advice in your situation and if concerns arise you should seek legal advice right away. However, being aware of concerns in advance does give you insight to avoid mistakes.
Race discrimination cases are alive and well. But what does it take to meet the elements of a race discrimination case? Many cases are dismissed even when it is undisputed that there were racial slurs. It is good to see a win here, but that does not occur without making sure that you meet the elements of a race discrimination case and then pleading various theories fitting the factual circumstances.
When you work and part of your compensation goes toward a retirement benefit, you want to make certain it is protected. Fees and loss of investment earnings are two threats to your 401(k). While earnings and losses understandably fluctuate, fees are more constant and if they are excessive, that is an unwelcome threat. While ERISA remains the reticulated statute with much complexity and interconnectedness, what makes a 401(k) excessive fees case has now been made much simpler. Just plead §1106!
It is critical for attorneys to protect the religious freedom guaranteed in our Constitution and statutes. Under Title VII of the Civil Rights Act of 1964, (42 U.S.C. § 2000e, et seq.), religious discrimination claims generally involve two primary theories: failure to accommodate and disparate treatment. Let’s remember the fragility of the right to religious freedom. Regardless of your own religious belief, if the rights of some are not protected, it may impact your freedom as well. Protecting that right is up to each of us.
We all know that health insurance is very important and in fact many would not receive treatment but for having health insurance in place. Sometimes the medication or treatment may have been provided for years, only for subsequent treatment claims to be denied. Denials can be vague such as “more information needed" or “no medical necessity” despite providing coverage previously. Confusion is the friend of insurers. If a claim is denied, both the insured and the medical provider need to do all necessary to immediately challenge that decision in a timely manner. Further, both the provider and the insured should look for options to make the medication affordable. Sometimes charitable organizations may help temporarily or even a pharmaceutical company interested in good public relations might help in the short term. Far better to live to fight the claim denial!
COBRA, an acronym for the Consolidated Omnibus Reconciliation Act, is about the continuation of group health plan coverage after certain qualifying events, such as termination of employment or reduced hours. There are some basic statutory elements that have to be met for it to apply. If it does apply, and there was a violation of COBRA rights, a court can award equitable relief in connection with the violation as well as exercise discretion to award a statutory penalty up to $110 per day.
As with any case it is important to have both damages and liability in order for a long-term disability claim to be a good case. There are many other twists and turns with ERSIA long term disability. The focus, however, is always on building a strong claim record during the claim process. Don’t tell your client to call you when it is time to file suit. They need counsel before the claim is exhausted. That is where the key work is done.
Age discrimination cases can be very challenging as there are quite a few elements and factual considerations to review in order to have a case under 29 U.S.C. §621 et seq. While under Title VII (e.g. race or gender discrimination) one impermissible motivating factor may be sufficient, (a bad factor mingled with permitted factors), that is insufficient for an age discrimination claim. You must show proof demonstrating that "but for" being age 40 or over, the action would not have been taken.
In the fairly recent case, Smith v. DeJoy, No. 4:23-cv-00593-RDP, 2024 U.S. Dist. LEXIS 227911, at *39-42 (N.D. Ala. Dec. 17, 2024), the court outlined the necessity of following the administrative procedures required of Federal employees making Title VII claims, and also discussed the elements that must be met for a good case. The added requirements of exhaustion are similar to the effort to inform a human resources department or other management of the issues and provide an effort to seek a resolution.
Have you ever reviewed a “medical” authorization an insurance company or plan requested you to sign? The authorization often allows the insurer or plan to obtain your consumer credit report, documents from any governmental agency, documents from your financial institution, and documents from any other person. Sometimes it may waive the attorney-client privilege. It may provide a right to obtain and report information from "the Medical Information Bureau Inc. (“MIB”). That may impact you for years to come. That should give you cause to pause.
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...
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