Category Archives: Blog

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.

Another Bad Erisa Case, Deferential Standard for Sedgwick and Sun Trust

In the recent decision of Foster v. Sedgwick Claims Management Services, the Circuit Court of the District of Columbia recently affirmed a finding that Sedgwick, the plan administrator for a Sun Trust plan, had complete and sole discretion in determining whether or not an employee’s medical evidence qualifies as disabling as defined by the plan. A Sun Trust employee, Kelly Foster, elected a long-term disability plan, upon hire. The long-term disability plan was self-funded by Sun Trust, and administered by Sedgwick. Foster was denied benefits and brought suit after exhausting her administrative remedies.

The Court applied a deferential standard of review in examining Sedgwick’s claim denials. Sun Trust’s plan explicitly granted broad discretion to Sedgwick to interpret the terms of Foster’s LTD plan. Under a deferential standard of review, claims administrators like Sedgwick are not constrained to limitations of a well reasoned decision for termination of benefits. Rather, as long as the plan was interpreted in a reasonable manner the Court will give great deference to a plan administrator’s decision and will decline to find a wrongful denial. Unfortunately, the ERISA statute provides insurance companies and their paid administrators this type of discretion making it more difficult for claimants to receive their long term disability benefits.

Hernia Mesh Lawsuits

Over the last decade, hundreds of thousands of people have been injured nationwide by hernia mesh products. Although medical device companies have tried to keep these injuries quiet, the word has finally gotten out. Hernia meshes are dangerous and lawsuits are now being filed nationwide. Additionally, options such as sutures or even the patient’s own tissue can be utilized to repair a hernia defect.
Many of the newer hernia meshes have been associated with high rates of infection. Some newer hernia meshes are coated with gels that promote the growth of bacteria. Additionally, these coated hernia meshes are extremely difficult to adequately sterilize. Once a hernia mesh has become infected, it is nearly impossible to permanently cure the infection. Long-term antibiotics will only temporary suppress the infection in a majority of patients. Eventually, mesh removal is necessary to rid the infection.

Defective Hernia Meshes

Our hernia mesh attorneys are currently investigating the following dangerous hernia meshes:
• C-Qur: Hernia mesh coated with fish oil. Lawsuits are mounting against Atrium and its parent company Getinge Group.
• Physiomesh: A coated mesh pulled from the market by Ethicon, a subsidiary of Johnson & Johnson.
• 3DMax: Used to repair inguinal (groin) hernias. Frequently results in debilitating lower extremity pain.
• PerFix Plug: Like the 3DMax, it is used to repair inguinal hernias and can cause extreme pain.
• Ventralex ST: Mesh coated in a polyglycolic acid and manufactured by Davol, a subsidiary of CR Bard.

Hernia Mesh Injuries

Various types of hernia mesh have been associated with a wide range of injuries. Below are some of the most common hernia mesh injuries that our lawyers have observed:
• Bowel Obstruction and Perforation
• Infection and Non-healing Wounds
• Abdominal and Testicular Pain
• Testicle Removal
• Inability to Walk
• Unexplained Rash
• Subsequent Surgeries
• Death

Hernia Mesh Removal

Removing a defective hernia mesh is much more difficult than implanting a hernia mesh. Once implanted, many hernia meshes will adhere to the patient’s bowel. As a result, it can be very difficult and time-consuming to remove the mesh from the bowel. In many instances, portions of the patient’s bowel must be removed along with the mesh. Be sure to consult a skilled hernia mesh removal surgeon prior to having any mesh removed.

Hernia Mesh Lawsuit

Contact Burke Harvey if you or a loved one have been injured by hernia mesh. For more information on the hernia mesh lawsuit, call (888) 930-9091 to speak to an attorney now.

Millions in Nursing Homes Regain Their Right to Go to Court

Close up Wooden Law Gavel on the TableLast week, an agency within the United States Department of Health and Human Services issued a rule barring any nursing home that receives federal funding from requiring residents to resolve any disputes in arbitration rather than in court. Arbitration is a private alternative dispute resolution system where claims of elder abuse, sexual harassment and even wrongful death in nursing homes are often resolved. This new rule requiring federally aided institutions to bring such claims to court promises to deliver major new protections for nursing home residents. To justify the practice of settlement in arbitration, the nursing home industry has said that this option offers a less costly alternative to court. The industry has long held that allowing more lawsuits could drive up costs and force some homes to close.

However, some government officials and attorneys in elder care have a much different perspective. They contend that arbitration potentially hides embarrassing practices and claims, making the corporation’s image the priority. Patterns of complaints or wrongdoing stay concealed from prospective residents and their families. Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of the public view. Residents are often coming to nursing homes under such stressful circumstances that they are especially susceptible to being unaware of the implications of such agreements.

With this new rule, millions of elderly Americans will regain the fundamental right to their day in court. This rule could be challenged in court; absent of those challenges, the rule should go into effect by November.

If you would like to learn more about the nursing home rule or your rights as it relates to pursuing legal action against such an institution, the attorneys at Burke Harvey are here to help.