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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.