Blog | ERISA and Disability Rights and Benefits | Alabama | The Martin Law Firm, LLC

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.

Salim’s case was strong. Dr. Fuller had gone to bat for him during the claim process. Many physicians struggle to find time to help a claimant like this, but Dr. Fuller found the time. Blue Cross and other insurers can be held accountable, but it takes a strong effort during the claim process to accomplish that. May you never find yourself in the unenviable position of Mr. Salim. But if you do, in this war, the battle is won during the claim process and with a pointed challenge to the precise medical standards relied on to deny the claim.

A client comes to you with a disability claim on a policy from her workplace. Her initial claim was denied by a letter dated March 31, 2022. That letter provided a 180-day deadline to challenge the decision denying the claim. That deadline passed over six months ago. Can a late challenge be submitted? Is there time to do anything to help this poor lady? You have heard it is critical to make a strong claim record, so you are not optimistic. So … as to ERISA-governed disability claims denied before May 11, 2023, there is more time than many insurers and plans have indicated in denial letters. Some get it right and at least paste the technical language above in their letter denying the claim. (Any claimant who can decipher that is well above average!) Regardless, for any claimant denied benefits after March 1, 2020, and until May 11, 2023 … there is still time.

They just might be if they implicate the National Labor Relations Act. The National Labor Relations Board (“NLRB”) recently released a decision on February 21, 2023, finding by a 3 to 1 vote that such clauses violate section 7 of the National Labor Relations Act per se. Previously, such clauses w...

The Uniformed Services Employment and Reemployment Rights Act of 1994 “ 38 U.S.C. §4301 et seq, commonly called USERRA, provides broad protection for service members and private jobs to reclaim their jobs upon return. In fact, generally speaking, the veteran must not be penalized in any way for a...

Dr. Zall was a dentist insured by a long-term disability policy through Standard Insurance Company. As we all know, dentists spend a lot of time bent over, using their arms and hands to look into people's mouths and perform various procedures and examinations. They do this all day, every working ...

Words can intimidate. A Cash Balance Pension Plan sounds both intimidating and boring all at once. But should we be content to ignore confusing or not well-known terms? Not if the matter is critical to our future. Retirement plans are important vehicles for American workers. We need money availab...

Whenever a downturn in financial investments occurs, and it continues for an extended time frame, you can rest assured that pension or retirement plans will be among those experiencing difficulties. When that occurs, pension plans look for ways to save the plan money and protect assets for those ...

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 app...

The Federal Trade Commission thinks so. Included with this post is a fact sheet documenting the commission's reasons for the proposed rule. What will be the impact of this rule? Will employers more readily shield sensitive information from employees? On the other hand, when an employee is termina...

The Associated Press recently reported, “Two women who lost their jobs at Twitter when billionaire Elon Musk took over are suing the company in federal court, claiming that last month's abrupt mass layoffs disproportionately affected female employees. … Days after the world's richest man bought t...

It has been reported that Twitter “has begun laying off employees under its new owner, Elon Musk,” in a decision that could impact “up to 3,700 people.” Reuters noted that the “federal Worker Adjustment and Retraining Notification (WARN) Act requires businesses with 100 or more employees to provi...

Usually, we shy away from doing things to the point of exhaustion. However, in some areas of the law, you have to exhaust all procedural processes, or the merits of your case will not matter. Employment law, including ERISA, is a prime example.  Ms. Moore was a long-time employee of Verizon, goi...

“If You Fail to Plan, You Are Planning to Fail” — Benjamin Franklin.  It may also be true with ERISA cases, especially subrogation and reimbursement claims, that “If you don't have the plan, you have planned to fail.” Sure, you might get lucky, but then you might also win the lottery. Lori Freit...

Alabama Clarke-Figures Equal Pay Act at Ala. Code § 25-1-30 requires that an employer (inclusive of public employers) cannot pay persons performing the same work different rates of pay when they have the same skill, effort, education, experience, responsibility, and performance conditions, Men an...

More than a few times, I have explained the unfairness of discretionary clauses. On the other hand, the benefits of a de novo review are well entrenched in the 11th Circuit law. A recent case, Harris v. The Lincoln National Life Insurance Company, No. 21-13186 (11th Cir. July 29, 2022), affirms a...

If you are sick or have been injured is there a timeline for your improvement? Can you be terminated from your employment for not improving based on the companies expectations? Unum Insurance Company thinks so. Ms. Proctor was a telephone call center supervisor when the vehicle she was driving wa...

I am David Martin with the Martin Law group. We help people with disability policy claims and ERISA claims. This and other videos are posted to help you understand your policy. I post a new term every Thursday. Subscribe to get the Edge in understanding your policy.  Today let's talk about the c...