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

Our last post discussed whether an employer providing false information caused an actionable claim under state law. An example was provided where it was actionable. However, if federal law applies can a claim arise? 

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.

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.