This month's Friday Five covers three cases that address issues that can be critical for LTD insurers litigating matters in federal court, specifically issues related to injunctions, statutes of limitations and ERISA preemption. Also covered are two cases dealing with the often thorny issue of claims based on pain diagnoses.

1. Does a claim administrator have options if a claimant inappropriately attacks the insurer and its employees? The claimant was pursuing an LTD claim with his employer’s insurer, Symetra. Apparently displeased with the treatment of his claim, the claimant set up a website "symetralifeinsurancecompany.com" that, among other things, provided the name, home address, and contact information of many Symetra employees and their families. Symetra sought and received a temporary restraining order directing the claimant to either take down the website, or remove all trademarks, logos or designs that would give the impression that the site was affiliated with Symetra. Symetra Life Ins. Co. v. Emerson, No. 2:18-cv-00492-JDL, 2018 WL 6338723 (D. Maine Dec. 4, 2018).
2. If an LTD benefits claim is denied but a similar claim is then granted years later, can a claimant attempt to make the decision retroactive to the first denial? The plaintiff, a physician specializing in cranial osteopathy, had an LTD policy that provided lifetime monthly benefits if she was disabled prior to age 60, but benefits only to age 65 if she became disabled after age 60. The plaintiff submitted a claim prior to age 60, which was denied. About four years later, the plaintiff submitted another claim after age 60, which was granted. The plaintiff then filed a lawsuit against AXA arguing that the original claim with lifetime benefits should have been granted. AXA moved to dismiss the claim based on the statute of limitations, and the court agreed, dismissing the complaint. Hong v. AXA Equitable Life Ins. Co., No. 18-cv-04039-JST, 2018 WL 6331012 (N.D. Cal. Dec. 4, 2018).
3. Can a claimant demonstrate entitlement to benefits due to back pain where there are not objective findings to support diagnoses related to pain? The plaintiff was a corporate tax director who ceased work due to recurring back pain. He filed a claim for LTD benefits, which Sun Life denied, reasoning that the medical evidence did not support a finding that he was precluded from performing his job duties. The plaintiff appealed, and following a "paper only review" Sun Life affirmed the decision. Performing a de novo review of the claim, the court found in favor of the plaintiff. The court ruled that Sun Life inappropriately insisted on objective findings related to pain and inappropriately favored the opinions of its experts over those who actually treated the plaintiff. Holmgren v. Sun Life & Health Ins. Co., No. 17-cv-03028-YGR, 2018 WL 6336043 (N.D. Cal. Dec. 5, 2018).
4. Can a claimant demonstrate entitlement to benefits due to pain where the insurer does not interview the plaintiff or seek an IME? The plaintiff was a trial attorney who received LTD benefits after he suffered a heart attack and underwent quadruple bypass surgery. Unum terminated the plaintiff’s benefits after it determined that he recovered sufficiently, and denied the plaintiff’s appeal. On de novo review, the court reinstated the plaintiff’s benefits, ruling that the plaintiff established by a preponderance of evidence that he continued to suffer from pain related to cardiac surgery. Unum had obtained opinions from four physicians, but the court criticized Unum for not seeking an interview with the plaintiff or conducting an independent medical examination. Dewsnup v. Unum Life Ins. Co. of Am., No. 2:17-cv-00126-TC, 2018 WL 6478886 (D. Utah Dec. 10, 2018).
5. Is any state complaint that implicates ERISA benefits removable to federal court? ERISA claims usually can be removed to federal court. However, there are instances where the claims cannot be removed. The plaintiff received STD benefits under a group disability plan after she was hurt in an auto accident. When the plaintiff settled a negligence lawsuit against the tortfeasor in the auto accident, the STD insurer made a subrogation demand to the plaintiff for repayment of the STD benefits. The plaintiff filed a claim against the STD insurer in state court under a state unfair trade practices act and fair credit act, and the STD insurer removed the case to federal court. In granting a motion to remand, the federal court ruled that the claims under state laws regulating insurance were not preempted by ERISA and therefore could not be removed. Wingo v. Trover Solutions, Inc., No. 3:18-cv-01930, 2018 WL 6602205 (M.D. Pa. Dec. 17, 2018).