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

Is it Harder to Prove Disability Discrimination Than Race Age or Gender Discrimination

Posted by David P. Martin | Apr 11, 2024 | 0 Comments

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.

Surprise Medical Bills- Stuck in the Middle

Posted by David P. Martin | Apr 04, 2024 | 0 Comments

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.  

Is Your Handbook Illegal?

Posted by David P. Martin | Mar 28, 2024 | 0 Comments

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.

Your Improvement is Too Slow So You Are Not Disabled?

Posted by David P. Martin | Dec 08, 2023 | 0 Comments

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.  

The Most You Can Recover in an ERISA Case

Posted by David P. Martin | Dec 01, 2023 | 0 Comments

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?  

Was My ERISA Appeal for Benefits Fairly Denied? - The 15 Commandments to Check

Posted by David P. Martin | Nov 24, 2023 | 0 Comments

 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.

Can I Get Sued on a ERISA Subrogation Claim Against My Client's Auto Accident Case?

Posted by David P. Martin | Nov 17, 2023 | 0 Comments

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.

Are Threats Enough for an ADA Retaliation Claim?

Posted by David P. Martin | Nov 07, 2023 | 0 Comments

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. 

Pregnancy Discrimination Expanded

Posted by David P. Martin | Nov 03, 2023 | 0 Comments

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.

Can Migraine Headaches Disable from Working a Full-Time Job?

Posted by David P. Martin | Sep 28, 2023 | 0 Comments

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?

Can I Make an Americans with Disabilities Act Claim and a Social Security Disability Claim?

Posted by David P. Martin | Jun 26, 2023 | 0 Comments

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.

No Daily Salaries Please

Posted by David P. Martin | Jun 19, 2023 | 0 Comments

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.

Blue Cross’ War on Proton Therapy - Not Medically Necessary?

Posted by David P. Martin | Jun 12, 2023 | 0 Comments

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.

Is It Too Late to Appeal My ERISA Disability Claim?

Posted by David P. Martin | Jun 05, 2023 | 0 Comments

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.

Does USERRA Apply to State Employees?

Posted by David P. Martin | May 23, 2023 | 0 Comments

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...

Red Flags to Watch on Retirement Claims

Posted by David P. Martin | Apr 18, 2023 | 0 Comments

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 ...

Pregnancy Discrimination Expanded

Posted by David P. Martin | Apr 18, 2023 | 0 Comments

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...

Do Noncompete Agreements Really Reduce Workers’ Wages, Stifle New Businesses And New Ideas, Exploit Workers And Hinder Economic Liberty?

Posted by David P. Martin | Apr 18, 2023 | 0 Comments

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...

Discrimination Without Intent- Disparate Impact

Posted by David P. Martin | Apr 18, 2023 | 0 Comments

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...

Is Twitter Breaking the Law with Mass Layoffs?

Posted by David P. Martin | Mar 08, 2023 | 0 Comments

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...

If You Aren’t Exhausted, You Ruined Your Case

Posted by David P. Martin | Mar 08, 2023 | 0 Comments

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...

Failure to Have the Plan May Be a Plan to Fail

Posted by David P. Martin | Mar 08, 2023 | 0 Comments

“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...

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