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

What Makes a Good Pregnancy Discrimination Case

Posted by David P. Martin | Apr 18, 2024 | 0 Comments

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!

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.  

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.

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.

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