D. Michael Reilly

D. Michael Reilly

Lane Powell PC

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More Disabled Employees But Fewer Employees Covered With Long Term Disability Coverage

Here is a recent news item showing the scope of the employee disability problem. In a nutshell...more

7/25/2014 - Disability Disability Benefits Disability Insurance Employee Benefits

ERISA (1st Cir.): Lack of Cooperation During Functional Capacity Evaluation Bars Disability Claim

But what happens when the claimant refuses to perform tasks requested, or does not try hard enough during the FCE?...more

6/23/2014 - Disability ERISA Functional Capacity Evaluations

Internships: Yea or Nay? A good program will generate benefits, but be sure to do it right.

Steve Jobs and Bill Gates were interns. Best companies use internships to win the war to recruit talent. The website Internships.com indicates that 56 percent of employers plan to hire more interns this year, up 9 percent...more

6/23/2014 - Employer Liability Issues Internships Young Lawyers

ERISA: “Derivative Standing” Allows Medical Provider To Obtain Reimbursement From ERISA Plan

Medical providers often have a patient/ERISA plan participant assign rights under an ERISA health care plan to allow the medical provider to seek payment for medical services provided....more

6/12/2014 - Employee Benefits ERISA Healthcare Standing

ERISA: Self-Funded Benefit Plans May Not Have To Cover Same-Sex Spouses?

You already know that the Defense of Marriage Act (DOMA), which prohibited recognition of same-sex marriages, was declared unconstitutional. United States v. Windsor, 133 S.Ct. 2675 (2013)....more

5/21/2014 - DOMA Employee Benefits ERISA Marriage Same-Sex Marriage SCOTUS US v Windsor

ERISA 8th Circuit: Deciding Who Is The Beneficiary — The Abuse Of Discretion Standard Trumps The Substantial Compliance Doctrine

Sometimes determining the correct beneficiary for ERISA-governed life insurance benefits can present real challenges. Can the deceased’s will prove the deceased’s intent designating the correct beneficiary? It...more

5/15/2014 - Abuse of Discretion Beneficiaries ERISA Life Insurance Summary Plan Description Wills

ERISA – 9th Circuit: Are There Advantages To De Novo Review Versus Arbitrary And Capricious Review?

You already know that plans that contain “discretionary language” should enjoy a more deferential review by the trial court. But when the plan administrator decides and funds the benefit decision, courts view this as a...more

5/9/2014 - de novo standard of review Disability Benefits ERISA Social Security Adminstration Social Security Disability

ERISA: Plans Waive Defenses If Not Asserted In Administrative Process

Does the claim administrator waive the timeliness defense if it failed to deny the claim on that basis during administrative review? YES! Here is a nice case that summarizes the point, and the status of waiver in the...more

4/28/2014 - ERISA Late Claims

ERISA Penalty Claims — How To Handle Them

Are you seeing more ERISA Plaintiffs asserting claims seeking penalties for delayed production of ERISA-related documents? 29 U.S.C. 1132(c)(1) allows the Court to impose penalties of up to $110 per day for delays in...more

4/22/2014 - Document Productions ERISA Penalties Plan Administrators

ERISA: 9th Circuit — Does “Reopening” A Claim, AFTER The Statute of Limitations Has Run, Waive That Defense?

ERISA claims administrators sometimes are asked to “reopen” a claim, after appeal denial, to consider additional information. How does “reopening” a claim affect the statute of limitations defense? If the...more

4/15/2014 - Deloitte ERISA MetLife Reopening Laws Statute of Limitations

ERISA (7th Cir.): Beneficiary and Attorney Who Ignore Subrogation Lien for Medical Bills Paid by ERISA Plan “Better Call Saul”

You have seen this one before: The ERISA plan pays hundreds of thousands of dollars in medical bills and secures an equitable lien. Then, the ERISA plan beneficiary settles a tort claim, but refuses to reimburse the ERISA...more

3/27/2014 - Beneficiaries ERISA Liens Subrogation

ERISA – 2nd Circuit: Reversible Error To Deny Successful Claimant’s Attorney Fees Solely Because There Was No Evidence of Bad...

Can a court deny a successful ERISA claimant’s attorney fees solely because there is no evidence of bad faith? NO....more

3/18/2014 - Attorney's Fees Bad Faith Disability Disability Benefits ERISA Reversible Error

ERISA: 10th Circuit — How to Win Two Frequent Challenges to ERISA Benefit Denials

How do you defeat two arguments frequently used to challenge an ERISA-governed disability claim denial? Argument (1) the rationale for the claim denial changed, or Argument (2) the denial letter failed to tell...more

3/5/2014 - Denial of Benefits Disability Benefits Employee Benefits ERISA

ERISA: 6th Circuit — Failing to Disclose Disability Claim in Bankruptcy NOT Fatal to Disability Lawsuit

What happens when a long term disability claimant declares bankruptcy, and fails to list the long term disability claim in the bankruptcy estate? Is he judicially estopped from bringing the lawsuit alleging wrongful...more

2/7/2014 - Chapter 13 Consumer Bankruptcy Debtors Disability Benefits ERISA Judicial Estoppel

ERISA – 11th Cir. — Social Security Determinations Issued AFTER Initial Claim Denial Must Be Considered?

You already know that a Social Security disability (SSDI) decision should be considered in the context of deciding whether the claimant is disabled under the terms of the disability policy....more

2/5/2014 - Denial of Benefits ERISA Social Security Social Security Disability

ERISA: Court Disregards Three Decades of IRS Letter Rulings – “Church Plan” Exemption Applies Only if Plan Established by “Church”

You already know that a “church plan” is exempt from ERISA, unless the Plan specifically elects to be governed by ERISA under Internal Revenue Code Section 410(d). But what does it take to become a “church plan”?...more

1/14/2014 - Churches ERISA Exemptions IRS Religious Institutions

ERISA: Good News — Supreme Court Enforces Suit Limitations Provision

Are those three year suit limitations provisions in ERISA-governed long term disability plans enforceable? YES! Here’s today’s case, Heimeshoff v Hartford Life & Accident Insurance Co., __ U.S. __ (December 16, 2013)...more

12/18/2013 - Claims Limitations Period ERISA Heimeshoff v. Hartford Life & Accident Insurance Co. SCOTUS

ERISA – 6th Circuit: Reversing Decades of Precedent — Court Orders Disgorgement of Profits in Long Term Disability Case

Wow—You need to know what happened last week in the Sixth Circuit: Disgorgement of profits as a remedy in an ERISA long term disability case? Rochow v. LINA, __ F.3d __, 2013 WL 6333440 (6th Cir. December 6,...more

12/11/2013 - Disability Disgorgement ERISA

ERISA: Incorrect Statements During Claims Process Do Not Render ERISA Inapplicable

PROBLEM: During the claim process your claims administrator mistakenly tells the claimant that the ERISA-governed plan is NOT governed by ERISA. Uh oh. Do you lose ERISA as the governing law over the policy and claim?...more

11/26/2013 - Claims Procedures ERISA

ERISA — 4th Circuit: Clearer Language Now Needed to Confer Discretion

What language is needed in the ERISA plan to confer discretion? The bar was just raised in the 4th Circuit. Here’s the case of Cosey v. Prudential Insurance Company of America, [PDF] __F.3d__ (November 12,...more

11/26/2013 - Disability Employee Benefits ERISA

ERISA — Second Circuit: What does it take to assert an effective exhaustion of remedies defense in ERISA cases?

What does it take to assert an effective exhaustion of remedies defense in ERISA cases? Properly drawn plan documents that expressly impose the duty upon the claimant to exhaust remedies before bringing a lawsuit....more

10/14/2013 - Administrative Remedies ERISA

ERISA — When Will A Court DENY Attorney Fees To A Claimant?

You already know that under ERISA a court may, in its discretion, award reasonable attorney’s fees and costs to a claimant seeking benefits if there is a showing of “some degree of success on the merits.”...more

10/3/2013 - Attorney's Fees ERISA

ERISA – 5th Circuit: Ambiguities In Plan Terms CANNOT Be Construed Against Plan Administrator When Plan Confers Discretion “To...

How will a court construe ambiguities in ERISA plan terms? If the plan confers discretion to the administrator “to interpret plan terms,” ambiguities may NOT be construed against the plan administrator....more

10/1/2013 - Abuse of Discretion Death Benefits ERISA Plan Administrators

How will a court construe ambiguities in ERISA plan terms?

If the plan confers discretion to the administrator “to interpret plan terms”, ambiguities may NOT be construed against the plan administrator. Here’s the case of Porter v. Lowe’s Companies, __ F.3d__ (5th Cir....more

9/30/2013 - Abuse of Discretion Ambiguous Death Benefits ERISA

ERISA: Deference to Claim Decision Should INCREASE When Partial Benefits Granted

Did you know that awarding at least some benefits, rather than denying benefits entirely, helps prove the claims administrator is “unbiased”? Also, when there are sharp conflicting opinions between the claimant’s...more

9/26/2013 - Denial of Benefits Employee Benefits ERISA Penalties Plan Administrators

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