In the ongoing day to day litigation of long term disability insurance claims more of the usual suspects themes from the purveyors of LTD insurance.  Pre-existing condition exclusion is still alive and well.  Currently battling the insurance carrier's general pre-existing categories of medical conditions or symptoms, such as headaches, as opposed to really looking at a new medical diagnosis.  This particular claim will help to better understand how far an insurance company can go to claim pre-existing condition exclusion for rather general symptoms, as opposed to a closer examination of the diagnosed condition giving rise to the symptom.  As the claim goes forward from the admistrative LTD appeal to the lawsuit, I will update the findings and conclusions to this important aspect of long term disability insurance claims (pre-existing condition exclusions, that is).

Here's one I haven't seen in quite a long time, "contract recision."  It goes like this.  LTD insurance applicant with severely disabling renal disease cannot realistically be denied benefits, although the record requests go on and on for about six months.  Finally, being forced to make a decision on the case the insurer cancels the entire policy, claiming the applicant did not list a hospitalization in the year prior to his qualification for the insurance policy (this in not a pre-existing condition case).  Therefore, the insurance company has the legal right to rescind (cancel) the policy for failure to disclose material information that may have led their underwriting department to reject the insurance application.  Contract law does actually allow for this in certain situations, and as long as the recision occurs within a certain period of time, for example within two years of the issuance of the policy.  The interesting part of this particular case is that the applicant never filled out or signed the application.  It was done following a brief phone call by the sales agent.  The applicant never saw the application and has no memory of even being asked about past hospitalization.  I'll update the progression of this claim.

What else?  As always, more and more "no (or insufficient) objective medical evidence of limitiations and restrictions."  What can you do about this most common reason for denial of long term disability insurance claims?  Do all you can to have your medical providers document your condition, your limitations and your need to be off work due to your medical condition.  All medical records should be sent to the insurance company that have any bearing on your disabling condition.  This is tricky, but anything your employer may be willing to submit to the insurer, noting that with your medical condition you are not able to perform all of the required duties of your job, will be of immense value to your claim.  Employers, however, are extremely reluctant to have any involvement for fear of some type of violation of a myriad of state and federal employment laws.

Otherwise, the year marches forward, although it seems we have traveled back from a very early spring to winter (photo attached of the so much delayed snow at Tahoe).  The work on the highly anticipated (by me) conference room at the Tahoe office (the construction zone also visible in the attached photo) View image continues.  I am ever hopeful that by mid-summer all work will be done, which will include the video conference/phone capability in the new conference room.  It will be nice to be able to video conference with clients and potential clients (and anybody with questions) from the new facilities.  Soon.  Don't hesitate to contact me with any questions, comments or critique.  Happy St. Patrick's Day, Randy Noah

As mentioned above the local economy's pulse is near a flatline (positive note:  there are decided signs of an increase in commercial construction in the South Tahoe area in the last few months).  The fallout from a five year decline in property value that evaporates nearly 50% of property value is hard to grasp.  So "they" say the economy is on a steady march to higher ground.  But at ground zero on Main Street it's still a matter of week to week financial existence, with job and housing insecurity a constant fact of life.  

Editorial Opinion:  It may be time for the Tahoe Basin to begin modeling its future more like Yosemite and Yellowstone than Reno.  Lake Tahoe is a natural wonder and an unoffical National Park.  A very sustainable future for the local population and the stunning environment can result from embracing this reality.... Now back to the regularly scheduled blogging.

This may sound all too familiar to anyone who has found their way to this blog because they have been denied long term disability benefits.  It's the acute suffering and financial need of nearly all of my clients, and people simply calling for advice, that keeps me dedicated to the single practice area of working on behalf of disability insurance applicants.

More on the local environment, economy and long term disability insurance claims and law in coming posts.  Be Happy, Randy Noah

More to report with long term disability insurance denials and ERISA in the next update

The forest near the Angora Ridge, site of the Angora fire.  View image.

Lake Tahoe uncovered in January.  View image.

Glass like ice and brown mountains at 7000 feet.  View image.

Pre-existing condition denials, although entirely new medical conditions lead to disability post employment.  How pre-existing condition denials such as the ones on which I am currently working unfold will be reported in 2012.

Lack of objective medical evidence of disability.  It may be a New Year, but long term disability insurers (most specifically in ERISA cases) never tire of this one. There is perhaps some gathering light in the long, dark night of this LTD denial favorite as more federal courts find "lack of objective medical evidence" is simply a decision to ignore the findings of treating doctors and statements of the actual insured person.  Many courts are growing increasingly skeptical of cursory denial of long term disability insurance claims based on captive medical reviewers.  I'll try to report more on this trend based on my own cases throughout this year.

Here's a thought-to-be-extinct basis for denial brought back in 2012 from the past:  You were able to work on the last day of your employment, and your LTD insurance coverage ended on the day you left work, therefore your claim for disability technically begins the day after you stopped working when you were no longer covered under group LTD insurance.  Gotcha.  We'll see if one particular court in Northern California agrees with Sun Life.

Hope for 2012?  Or the end of the world.  I'll go with the positive viewpoint.  I do see increasing skepticism by the courts at the perfunctory and cursory denials of long term disabiity insurance.  I'll keep trying to fertilize this skepticism and see if it grows any real fruit.

2011 saw some growth in the infant long term disability insurer/administrator as fiduciary reasoning.  There were a few plaintiff-insured victories in court based on this theory, which is a complicated legal theory.  I'll try to monitor the progress of this line of reasoning in 2012, and try to boil the hard to understand theory into a plain language paragraph in a blog post.  It's hopeful, but too early to accurately say if the fiduciary theory is going to improve the odds getting denied long term disability insurance claims reversed and reinstated. 

All in all, 2012 should be a year of steady progress in bringing fair and just results back to long term disability insurance claims.

Where's the snow?  Where's winter?  Not at Lake Tahoe.  I'll post some pictures of a very brown winter wonderland later this month.  One bonus is very rare, thick, glass like ice on the lakes at high elevation in the Sierra Nevadas.  Makes for a unique ice fishing experience.  Regards, Randy Noah

-   A small trend with appellate courts recognizing that insurance company medical reviews by insurance doctors are not reliable or necessarily reasonable.

-  A trend towards increased settlement, or "buy out" offers, to long term disability insurance benefit recipients that are almost reasonable.  The catch:  You need to have an attorney approve the agreement, and the insurance company will only pay $250 for the attorney review.  An interesting approach by Big Insurance to carve out any meaningful legal assistance to LTD claimants, but if a few people in desperate need of financial relief are helped, long live the trend.

- Appellate courts willingness (again) to state that undercover surveilance films are almost always of no meaningful assistance in determining disability, and over reliance on undercover video is reason to reverse an insurance company denial of benefits.

- Hope for homeowners about to lose their homes.  A government program that seems to be working (maybe).  If you are on unemployment and you cannot make your home payments there is a program administered by the states using federal monies that will make mortgage payments (up to a cap) for the time you are on unemployment benefits.  While this has limited application to long term disability insurance benefit claimants (and so many of you are losing your homes), there may be a few who can take advantage of this program.  Any help for even a few disabled workers is welcomed.

- Bargain value wines continue to improve in quality.  And I've noticed wonderful macro brewery Canadian beers going on sale at outstanding prices.  Just in time for the Holidays and keeping the 99% spirits bright!  Cheers, Randy Noah

Unfortunately, this time of year serves to underscore the hardship of so many individuals with work disabilities who have been denied long term disability insurance benefits.  Anecdotal evidence from my practice suggests an ever increasing number of disabled and uninsured are at critical risk for losing their housing, along with health care.  And even more unfortunately, little can be done to lessen the extreme hardships many are enduring.  What I  can do is respond quickly to every client concern, and always be available to talk to clients and explain the claims and federal court appeal process for a long term disability insurance (erisa) case.  A realistic understanding and knowledge of the legal process provides a basis for making many of hard decisions required when  facing a work disability and income crisis. 

Those of you currently involved in a long term disability insurance claim, where benefits have been denied, are gaining an understanding of the grossly uneven playing field on which you find yourself with the insurance company or large corporation.  I have focused on this area of law for some years now, and have wondered how extreme can it get.  Just how far will an insurance company push the very forgiving limits of ERISA?  The blind individual should be able to learn brail within 12 months and be fully fit for sedentary employment.  Really?  How about someone who is dead?  Are they also fit for sedentary employment?  I'll find out and let you know in future posts.  My client, very ill with numerous serious conditions, was on long term disability benefits for some years, and then cut off, since it was reasonsed that she was actually malingering so she could stay home and take care of her children.  Sedentary employment would be well within in her capacity according to the insurance company doctors.  So big insurance company sends her their final benefits denied letter and she dies just days later of medical complications.  More to come on this later. 

If you have any useful advice or resources for disabled people facing eviction or forclosure, please feel free to contact me so I can pass it along to disabled individuals I work with.  Regards, Randy Noah

View image   Rusty, the main office security system

View image  The South Lake Tahoe Office can be a bit drafty

View image  Oh crap, gotta find the snow shovel

View image The neighbors can get ornery

View image Fishing break

This is perhaps the greatest frustration in representing people denied long term disability insurance benefits in the appeal and court process.  What is achingly obvious to me when I get to know a client, their suffering, is not brought out by paperwork alone.  I believe this is why long term disability insurance companies rarely have a claimant actually examined by a doctor.  It is so much easier for an insurance doctor to merely read a medical report and conclude the person is fit to return to work, than to actually see and talk to the person and be able to find they can return to work.  One brief illustration from a case several years ago:  My client was a woman in her late 40's with serious pulmonary and cardiac disease.  She had a hole cut in her throat to assist with breathing, but which made talking difficult and noticeably altered her voice.  Interestingly, the insurance company (they never met this woman, nor did their doctor) denied her appeal, finding she could work sedentary jobs such as being a receptionist where  she would primarily just have to talk on the phone.  When I pointed out the problem with this excellent suggestion, and invited them to meet and have a nice conversation with my client, they agreed benefits probably should be reinstated.  This scenario sounds a bit extreme, but it is not.

Given ERISA rules are not going to be changed soon, what can be done to be heard in court?  You must write your own story and be certain it is in the insurance claim file.  Do not worry about your writing skills.  The honesty and sincerity of your work disability will come through in your own words.  I've seen it countless times. Write about what your physical and/or mental condition has done to your daily life, both at work and at home.  Write about what you could do before the disabling condition, and the difference now.  Write about making it through a single eight hour work day, let alone a forty hour week.  Write about the condition or disease and the number of medications you have to take.  Write about the effect of the medication on your life.  Illustrate your writing with photos.  Perhaps best of all make a video of your statement to send to the insurance company.  Have a spouse, partner or friend conduct a simple interview  where they ask you  to describe what the disease has done to your life both at work and home.  The video is so powerful because now the insurance representative and the judge will see you and hear you describe your life.  Remember, your own staement and/or video may be the only way you will have your day in court.

Comments and questions are welcomed.  Regards, Randy Noah

But to answer the original client inquiry, yes, sometimes I will advise for a set hourly fee on a specific portion of a long term disability insurance dispute.  I do not yet have a "menu" of fees for the portions of an LTD claim set out above, and am not sure if I can develop such a price sheet.  For now I will consider a potential client's request to handle a limited portion of the claim on a case by case basis, and as my time permits.  I recognize that increasingly clients are so financially devastated by the long term disability insurance denials that they have to consider all alternatives to traditional attorney fee models, such as the contingency fee.  Is "unbundling" legal fees the better approach to legal representation?  I'm not sure, but I am sure that obtaining the best result in the most affordable way for people trying to survive extraordinary distress brought on by arbitrary and irresponsible denials of long term disability insurance benefits must remain the ultimate goal.  I'd be happy to respond to your thoughts and comments.  Randy Noah

Most typically mediation takes place anywhere from three to six months after a federal long term disability lawsuit is filed.  For unknown reasons, in my experience mediation is rarely used until a lawsuit is filed.  Maybe it should be.

At the mediation a mediator (usually an experienced attorney with knowledge of long term disability cases and ERISA) acts as a neutral to work with the parties to try to reach an acceptable buyout (lumpsum payment) of the long term disability insurance policy.  There is no formula for how this number is reached, but involves lengthy discussions of the strengths and weaknesses of each side, the risks of winning or losing at trial and the value of finality to the claim.  For the more optimistic a final settlement is seen as a win/win resolution to a lawsuit, while those tilting towards the pessimistic may view the result as lose/lose.  Thus, a compromise.

Given that approximately 95% of all cases, including long term disability insurance cases, either ERISA caes or private individual cases, are going to reach a settlement prior to trial, working with an experienced mediator can be a highly effective and efficient to reach a resolution of a case.  Likewise, it is important to have an attorney representing you who has a great deal of experience with mediations.  Having practiced law (all litigation) for 25 years, I have represented clients in hundreds of mediations and settlement conferences, and recently trained for the role of mediator.  I believe clients are best served by an attorney who thoroughly understands the mediation process and mediation negotiations, given nearly all court cases are going to resolve through this process.

The topic of mediations is worthy of much more discussion, in particular a primer on the mechanics of a mediation, and why mediation produces results.  More on upcoming posts.  Please feel free to ask any questions you may have about the role of mediation in your long term disability insurance claims.  Randy Noah

Also going to post photos to illustrate certain blog entries, but have to master photo sizing first.  Working on it.

And there's the myriad intangibles of life and a law practice in the High Sierra.  There is a certain rush that comes from seeing a black bear up close and personal on the way to the office, even more exciting when on foot or bike.  It has a tendency to focus the mind, a good mental exercise for legal writing.

The six months (or more) of the snow season produces the perfect atmosphere for working in the old log cabin which serves as the office.  A gas furnace and fireplace keep the inside of the cabin warm, while the snow piles up (like 5 feet up) outside.  With a good internet connection, the cabin office provides a world class legal library for research and writing.  No need to go to the gym with five feet of snow to shovel from the drive and walkway.  Yes, a plow service may come in the early morning, but you're on your own after that. 

And then there's a Tahoe summer, which can last 4 or 5 months.  While the call of canoe or mountain bike trail may seem an irresistible impulse, the reality is that beautiful weather and environment allow for the production of inspired work product.  For me, working in an office in a city is a limiting experience.  Working in the mountains is an expanding experience.  Long term disabiity cases require a degree of creativity, due to the exasperating limitations imposed on most cases by ERISA.  A place like Tahoe allows for that creativity, which is hardly a novel observation, given the extraordinary amount of creative talent drawn to the region.

In the not too distant past (like when I started practicing law 25 years ago) it would be nearly impossible to effectively work with clients from such a remote base.  Now, given the technological revolution, there is almost no barrier imposed by the distance between myself and the client, who could be located anywhere in California, or the United States.  With the addition of video conferencing and the new conference room, to be completed within a few months, the value of "face to face" contact with clients and attorneys will be again added back into the law practice.  Already communication via email (and the good old phone) is instantaneous with almost every client.  The days of the need to be within thirty miles of the client, and court, are now firmly part of the past.

I invite anybody denied long term disability insurance benefits to schedule an appointment at my Tahoe office.  But if that is not practical, do not hesitate to email, call, skype, or soon, video conference.  Randy Noah