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

Can Unum's Nurse Overrule My Doctor to Deny My Claim?

Posted by David P. Martin | May 17, 2024 | 0 Comments

Many claimants wonder can an insurance company rely on a nurse to overrule a physician opinion? This is a matter that needs to be changed. What should occur given that there are deadlines with claim decisions is that past benefits should be paid and Unum should be permitted to evaluate the claim going forward. Otherwise, the minimum standards of a full and fair review under the claim procedure and the plan in question, is still not satisfied as the decision is being made out of time.

Slow Improvement Means Not Disabled

Posted by David P. Martin | May 02, 2024 | 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.

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.

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.

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