Category Archives: Blog

The Standard Reversed for Ignoring Medical Evidence and Improper Denial

Marcin v. Reliance Standard Life Ins. Co., No. 16-7125, 2017 WL 2818648 (June 30, 2017).

Affirming the judgement of the district court, the United States Court of Appeals for the District of Columbia held that Reliance Standard Life Insurance Company acted unreasonably when it failed to properly consider the downward progression of one of its insured’s health, as well as her work history. The plaintiff, Jill Marcin, was diagnosed with multiple medical conditions including kidney cancer and anemia. While she treated for these conditions her doctors released her to work on an “as tolerated” basis. Unfortunately, as her diseases progressed, Ms. Marcin attended work less and less frequently. During this time she was never able to work a normal 40-hour week. RLS’s LTD plan treated a finding of “partial disability” the same as “total disability” when they concluded she was able to work 100% of the time since she was working on a part-time basis. While in some instances Ms. Marcin’s treating physicians would note that she was “feeling better,” the overall progression of her conditions was negative. RSL denied Ms. Marcin’s claim for long term disability benefits on the grounds that she was not “totally disabled” under the plan. RSL supported this decision by cherry picking instances from Ms. Marcin’s medical record that stated she was doing better, and by noting that she was cleared to work by her doctors on an “as tolerated” basis. RSL also heavily focused on two paid medical reviews that found Ms. Marcin was able to complete full time work.

The Court of Appeals held that it was unreasonable for RSL to determine that Ms. Marcin was capable of full-time work since her work history clearly showed that she was continuously incapable of completing a normal 40-hour week. The Court noted that RSL’s decision was not supported by the record because it “entirely failed to acknowledge the fact that Ms. Marcin never worked full time” and that her hours declined sharply. RSL completely failed to address the fact that over time Ms. Marcin’s fatigue progressed from “mild” to “extreme,” and the Court deemed this to be further proof of unreasonable conduct. RSL could not claim that Ms. Marcin was capable of full-time work when the record clearly showed she was barely capable of any work.  The Court also took issue with the paid medical reviews relied on by RSL in their denials. One medical review was deemed to be unreliable by the Court because it failed to address Ms. Marcin’s work history, and also failed to dispute the findings of her treating physicians. The review was also deficient in that it completely failed to explain how its “conclusions are rationally related to the medical evidence.” The Court stated “It is hard to mark a review as reliable when the examination is not linked to the overall medical history” and that “the selective description of medical evidence undermines the reliability” of the paid review.

Fourth Circuit Prevents Arbitrary and Baseless Denial of Benefits

Solomon v. Bert Bell/Pete Rozelle NFL Retirement Plan, No. 16-1730, 2017 WL 2695191 (4th Cir. June 23, 2017).

Recently, the 4th Circuit determined that the Bert Bell/Pete Rozelle NFL Retirement Plan and the NFL Player Supplemental Disability Plan abused its discretion when it denied ex-NFL player Jesse Solomon a certain category of long-term disability benefits, because it completely ignored relevant evidence that supported an award of those benefits. Under the plan, NFL players who later become disabled due to their football careers receive benefits if eligible by the plans terms. One provision of the plan provided for graduated payments of disability: if a player became disabled within 15 years of retiring from the NFL, they would receive a higher benefit amount each month. Solomon retired from the NFL in 1995. He originally applied for benefits in 2009 claiming that he was disabled due to orthopedic ailments. After being denied, Solomon applied once again in 2010, however this time he argued that he had cognitive disabilities, and submitted a large amount of new medical information that supported this contention. Eventually the plan granted Solomon benefits, however it determined that he did not qualify for the higher benefit amount, since he was approved based on the 2010 application, which was past the 15 year cut off. Solomon argued that the medical evidence in his 2010 application clearly showed he suffered from cognitive issues that rendered him totally disabled, and that these conditions dated back to 2008. Furthermore the 2009 denial did not address any cognitive disability whatsoever, and only pertained to his physical conditions. The insurance company stated that it did not need to look at the evidence in his second application because the 2009 denial meant Solomon was not totally disabled as of that date. The insurance company also argued that Solomon did not submit contemporaneous medical evidence showing that he was disabled before the 15 year deadline.

The 4th Circuit held that Solomon was not required to submit evidence and prove his disability before the deadline, as the plan only required that he become disabled before the deadline to receive the higher tier of benefits. The Court also took issue with the plan completely ignoring the relevant medical information in Solomon’s 2010 application. The 2010 application contained multiple expert reports that showed Solomon had a cognitive disability before the cutoff date imposed by the plan, and the insurance company completely failed to even acknowledge their existence. Since a fiduciary may only deny benefits based on substantial evidence, it was an abuse of discretion to ignore “relevant evidence supporting an award of benefits,” and fail to “cite any affirmative evidence relevant to brain injuries on which the Board relied,” when denying Solomon’s claim.


Medication and Treatment Plan held to be “objective findings” of disability

In what is sure to be a win for the many who suffer from chronic pain, the Sixth Circuit Court of Appeals held in Corey v. Sedgwick Management Services, Inc.,  that prescriptions and treatment plans can be considered objective findings of an underlying disability. Bruce Corey, a machine operator, has long suffered from “cluster headaches,” which are extremely painful and debilitating. Corey received disability benefits for a short time, but the administrator of his plan, Sedgwick, decided to terminate them based on the common contention that there was a “lack of objective findings contained in the medical documentation.” The Court refuted this argument partly by pointing to the plain language of the plan, which stated that “objective findings include…medications and/or treatment plan,” among other things such as x-rays and physical examinations.

A second review conducted by Sedgwick  resulted in another denial, on the grounds that there was “no objective evidence of disability.” The insurance company claimed that since some insureds are able to work while they are undergoing treatment or taking medication, they  are not objective evidence of an underlying disability. The court noted the problem with this logic is, “an x-ray showing nerve compression suffers from the same defect: it bespeaks the existence of a back condition, but doesn’t demonstrate whether the condition prevents the employee from working. So too with every other example in the plan.” Essentially, it is an improper basis to deny benefits based on a treatment plan’s supposed failure to provide objective findings without giving a  reasonable basis for why the treatment plan itself does not evidence an underlying disability. Likewise, discarding a prescription of medication as a lack of objective evidence that an insured may have the underlying illness or condition that medication is intended to help is improper. The court ultimately held for these reasons medication prescriptions and treatment plans are in fact able to serve as objective medical evidence, especially, as in this case the policy delineates that medication and treat plans can be objective medical evidence of a disability. Finally, the Court also took issue with the fact that in their denial letters the insurance company was only quoting the plain language of the plan and then stating that the evidence did not fulfill their requirements for disability. The Court held that only actual interpretations receive deference from the court, not conclusory denials that require “an attorney to craft a post-hoc explanation.”

The Seventh Circuit Recognizes Fibromyalgia Disabling Based on Subjective Complaints

Recently, in Kennedy v. The Lilly Extended Disability Plan, the Seventh Circuit Court of Appeals upheld the district court’s award of summary judgment for long-term disability benefits to Cathleen Kennedy. Kennedy primarily suffered from the debilitating disease fibromyalgia. The Seventh Circuit affirmed that it was unreasonable for her insurance provider, “Lilly,” to conclude that fibromyalgia did not support Kennedy’s disability based solely on an absence of abnormal test results. Writing for the majority, Judge Posner argued that currently available information, and the evidence provided, shows that fibromyalgia is in fact a disabling disease even if it is often diagnosed based on subjective complaints. The court also noted that it would be “error to demand laboratory data to credit the symptoms of fibromyalgia—the crucial symptoms, pain and fatigue, won’t appear on laboratory tests.” Posner’s holding refutes the contention often advanced by insurance companies, that the subjective complaints of pain described by the insured are not sufficient to demonstrate a disability.

The majority also took issue with the fact that Lilly failed to accurately indicate what new job or type of job Kennedy would be able to perform at, and at what level that potential performance would be. Physician testimony provided that Kennedy, being diagnosed with fibromyalgia, will have to suffer through monthly “flares” of pain, and the court noted that this further hampers the possibility of her ever being able to work a normal schedule. Finally, the majority found the fact that Lilly was both the initial adjudicator and the party responsible for paying the claims was a conflict of interest, which constituted  “another questionable aspect of the case.”

Associate Jessica Hayslip passes Florida State Bar Exam

We are pleased to announce that associate Jessica HayslipJessica Hayslip successfully passed the Florida State Bar Exam. Jessica began her legal career in 2014 at the firm as a law clerk and is licensed to practice law in Alabama as well. Since passing these two Bar exams, Jessica has been practicing ERISA and employment litigation. Jessica has a passion for helping people, so she enjoys getting to know her clients and helping them achieve a positive result. If you or someone you know is looking for representation for an ERISA or employment case arising out of Alabama, please contact us to see how she can help. As with all Burke Harvey attorneys, Jessica will make sure that her clients are fairly represented and completely informed of their legal rights, no matter the type of case.

Click HERE to learn more about Jessica and her personal and professional background.

First Circuit Reversed the Standard on Arbitrary and Capricious Onset Date: Doe v. Standard, 1st Cir. (2017).

The Standard denied benefits to an insured, Doe, whose own occupation was an environmental lawyer. The Standard determined she was able to perform the essential duties of the occupation “lawyer” and did not take into account the difference in job duties between “lawyer” and the “environmental lawyer” specialty. Doe had paid for an “own occupation” policy from The Standard which required them to determine disability based on the duties of an environmental lawyer. The Standard approved her for benefits with an onset date from early 2012 even though Doe claimed that she was disabled from November 2011, which made an astronomical difference in benefit payments due to the pre-disability earnings used to base off her monthly benefits. The First Circuit reversed finding The Standard’s use of the 2012 onset date was arbitrary and capricious since Doe had not been working in her occupation as environmental lawyer since November 2011. The court also found the use of the wrong occupation description of “lawyer” rather than her actual own occupation of environmental lawyer also arbitrary and capricious.

Attorney’s Fees Awarded Against Sun Life, Prather v. Sun Life & Health Ins. Co., 7th Cir. 2017.

Prather, the decedent, injured his Achilles tendon and died from cardiopulmonary arrest due to a blood clot after surgery on his tendon. Prather had an accidental death and dismemberment policy through Sun Life that limited coverage to injuries caused solely from an accident. The District Court granted Sun Life summary judgment for its denial of benefits since complications from the surgery contributed to Prather’s death. The Seventh Circuit entered judgment in favor of the plaintiff due to Sun Life’s failure to offer any evidence that the surgery was the cause of death, rather than the accident. Prather’s widow then moved for attorney’s fees for filing suit under ERISA.

§1132(g)(1) allows reasonable attorneys fees and costs as long as the party “achieved some success on the merits.” The court explained that not only did Prather’s widow have complete success on the merits of her case but that she fulfilled four out of the five factors courts examine in determining fees: (1) the degree of the offending parties culpability; (2) the degree of the ability of the offending parties to satisfy and award of attorney’s fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (5) the relative merits of the parties’ positions. The court awarded a total of $30,380.

Three former nursing home employees have been indicted for the neglect of an 84-year-old patient.

It was recently announced by Alabama Attorney General Steven Marshall that three former employees of a nursing home in Cherokee County have been indicted for neglect. Each woman was charged with one count of elder abuse/neglect in the second degree.

One woman worked as a Licensed Practical Nurse (LPN) and two women as Certified Nursing Assistants (CNAs). All three charted that they had entered the room numerous times throughout the night of September 3, 2016, and the following morning. However, surveillance video showed that none of the three women entered the room for approximately 11 hours.

The resident in their care was confined to bed. When she was finally checked on the next morning, she had suffered more than a hundred ant bites.

If convicted, the three women could face two to 20 years in jail.

Nursing homes undertake a profound duty and make a solemn promise to provide the best care and treatment possible to those entrusted to them. Unfortunately, some nursing homes do not always provide the best care and treatment to their residents. Understanding and recognizing the signs that your loved one may not be receiving the best care is critical in order to keep them from harm.

photo of ebook coverDOWNLOAD OUR FREE eBook on Nursing Home Abuse & Neglect HERE.
This free resource will help you recognize the warning signs of nursing home neglect or abuse and how to properly take action if you suspect your loved one is being harmed. This booklet will discuss in detail the warning signs and symptoms of the more common kinds of abuse and neglect in nursing home or other long-term care facilities.

The lawyers at Burke Harvey have represented nursing home residents and their families for years and have litigated many of these cases in state and federal courts and in arbitration proceedings. We stand ready to assist you.  Please give us a call or click on the Live Chat button below to connect with one of our attorneys now.

CNN Investigations reveal widespread nursing home abuse

Nursing homes undertake a profound duty and make a solemn promise to provide the best care and treatment to those entrusted to them.  Unfortunately, some nursing homes do not always provide the best care and treatment to their residents.  It can come as a shock to a family to find out that those to whom a loved one is entrusted may have actually caused their loved one harm.  When this happens it may be confusing about what to do or how to proceed.

CNN Investigations recently published “this little-discussed issue is more widespread than anyone would imagine.” One family member was quoted saying, “You prepare for a phone call your mother has passed. You don’t prepare for a phone call that your mother has been RAPED.”

READ MORE of the full CNN Investigations report HERE.

At Burke Harvey, we are passionate about protecting our loved ones from suffering abuse, mistreatment or neglect. That is why we have prepared a free eBook to help families identify the signs of nursing home abuse or neglect, and learn what actions they should take if they suspect their loved one is being harmed.

photo of ebook coverClick on the cover image to download this free eBook resource now.

Dollar General sued by former manager

Overtime has long been a point of contention for those in a manager, assistant manager or management trainee position, especially in the fast food and retail industries.

Many lawsuits have complained that, despite their management titles, these employees are working 50+ hours a week, primarily doing the tasks of regular hourly employees. Their title is cited by such employers as the reason they are not paid overtime once they exceed 40 hours weekly.

Under the federal labor law, employees may be exempt from overtime pay provided their primary duties include:

  • Managing the enterprise;
  • They earn a minimum of $455 weekly;
  • They regularly direct the work of at least two or more other full-time employees; AND
  • They have the authority to hire and fire other employees.

A former manager recently brought a lawsuit against an Alabama-based Dollar General. She alleges she routinely worked in excess of 90 hours weekly while primarily performing duties as a cashier, stocking inventory and seeing to the store’s custodial needs, which included cleaning bathrooms and taking out the trash. She also cited harsh and, at times, unsafe working conditions.
If you are currently, or were at one time, an employee of Dollar General (or any other company) and were exempted from overtime, in spite of working longer than 40 hours a week, you may be eligible to compensation.

Please give us a call at (888) 930-9091 to discuss
your rights and your options.