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
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
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
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
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
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
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
What happens when an independent, unsolicited source provides evidence that a disability claimant may be committing fraud? Can you consider emails hacked from a computer? What must the claim administrator do to evaluate the...more
An Insurance Commissioner’s non-binding opinion banning discretionary language in an ERISA governed plan has no effect.
Here’s the case of Frazier v. Life Insurance Company of North America, __ F.3d __ (6th Cir. August...more
Where do you litigate an ERISA disability claim governed by a collective bargaining agreement?
It has to be sent to arbitration, not to federal court, if the Railway Labor Act applies....more
Does telling a claimant that you “will be happy to reconsider the claim” waive a contractual limitations provision? No.
Here is a great new case that highlights virtually every argument that could be used to trump...more
How do you handle a claim supported only by “subjective” evidence?
Can you reject the claim outright? No. You must weigh the subjective evidence. That’s a key point highlighted in a recent case....more
Companies are getting a big surprise these days: Employees are leaving with their LinkedIn accounts and the company’s proprietary list of business contacts. LinkedIn is a well-known, business-oriented social media website...more
You know that many ERISA governed plans provide basic life insurance benefits.
But what happens when the plan offers employees the choice to purchase supplemental life insurance? If the employee pays the entire premium...more
In Judge v. Metropolitan Life Insurance Company [PDF], 710 F.3d 651 (6th Cir. 2013), the Sixth Circuit rejected plaintiff’s proposed bright-line rule requiring plan administrators to obtain vocational evidence and an IME...more
You already know that an employee benefit plan qualified as a “government plan” is exempt from ERISA’s framework....more
You already know that an individual disability policy may nevertheless be governed by ERISA, even when the employee pays her own premium. This can occur when the employees benefit from a rate structure or premium discount...more
Will Rogers once said, “Everything is funny as long as it is happening to somebody else.” Employee wage and hour class actions and government audits are never funny. Just ask the president of a sheetrock company sentenced in...more
The U.S. Supreme Court yesterday strengthened the ability of employer health insurance plans to recoup payments for medical expenses paid for an injured plan participant who later sues to recover damages from a third...more
The claimant seeking long term disability benefits under your ERISA Plan was found to be disabled by the Social Security Administration....more
What does “full and fair” review during an ERISA appeal mean?
Before the appeal decision is made, does the administrator have to disclose to the claimant medical opinions obtained during an appeal? Not if that opinion...more
Originally published in Westlaw in March 25, 2013.
What happens when the claimant refuses to seek and accept medical care that might enable the claimant to return to work?
Does the claimant have a duty to seek...more
That subrogation claim you have might be governed by ERISA, at least in some circuits…
Here’s the case of Thurber v. Aetna Life Insurance Company, __F.3d__ (2nd Cir. March 13, 2013) (Insurer’s counterclaim for return...more
Yesterday, Jordan Weissman’s excellent article, “Disability Insurance: America’s $124 Billion Secret Welfare Program,” published March 25, 2013 in The Atlantic, explains how the number of former workers enrolled in Social...more
You know already that a plan administrator can be liable for statutory penalties under ERISA for failing to provide requested plan documents....more