McKennon Law Group, Author at McKennon Law Group

Pain is a highly subjective, personal phenomenon. Only the person suffering from pain can adequately describe that pain and how that person is affected by the pain. And we know that one person may be capable of tolerating a completely different threshold of pain when compared to another person. Similarly, reports of fatigue vary widely from person to person. Because of the nature of pain, fatigue and other such disabling symptoms, determining whether subjective complaints render an individual disabled for the purposes of long-term disability benefits necessarily relies on the individual claimant’s personal statement/description. Put another way, the individual must explain what he or she goes through firsthand. Not only does this aid in the insurer’s understanding of the insured’s disability, it also serves as a powerful, compelling statement of what the disabled individual has been through, in his or her own words.

In a recent long-term disability insurance case governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), Kibel v. Aetna Life Ins. Co., 2018 WL 832870 (9th Cir. Feb. 13, 2018), the Ninth Circuit emphasized the importance of a claimant’s personal statement regarding the subjective symptoms that she suffered, such as pain, fatigue and other such complaints. In this article, we discuss Kibel, and the value of a disability claimant’s personal statement. From a practical perspective, we outline some of the key features that every disability claimant’s personal statement should include, as well as further support in the form of corroborating statements from colleagues, friends and family members who have witnessed the disabling symptoms firsthand.

Kibel v. Aetna, 2018 WL 832870 (9th Cir. Feb. 13, 2018)
In Kibel v. Aetna, Plaintiff-Appellant Margueritte Kibel (“Kibel”) appealed from the district court’s judgment in favor of Defendant-Appellee Aetna Life Insurance Company (“Aetna”). The district court concluded that Aetna properly denied Kibel’s claim for long-term disability benefits. In doing so, it determined Kibel not totally disabled under her employer-sponsored long-term disability plan. On appeal, the Ninth Circuit reversed and remanded, finding that Kibel met her burden; she adequately proved that her multiple sclerosis (“MS”) prevented her from performing the duties of her occupation as a Relationship Manager at City National Bank from February 20, 2013 forward.

Like many plans, Aetna’s long-term disability plan provided the following definition of “Total Disability:”

[Y]ou will be deemed to be totally disabled on any day if, as a result of disease or injury, you are unable to perform with reasonable continuity the substantial and material acts necessary to pursue your own occupation and you are not working in your own occupation.

Applying that definition, the Ninth Circuit first underscored the client-centered nature of Kibel’s position. Her job placed a heavy emphasis on client development and management, requiring her to devote approximately sixty-five percent of her time to outside sales and finding, identifying and developing new clients while cultivating strong partnerships with centers of influence in and around the community.

Unlike Aetna and the district court, the Ninth Circuit placed little weight on the physician’s “labels” of Kibel as “healthy,” “doing ok,” and “normal.” Instead, the Court focused on the history and practical effects of Kibel’s condition, in particular, her fatigue. For example, in 2011 Kibel collapsed twice: first with clients and a second time with her supervisor. Following those incidents and her confirming diagnosis of MS, Kibel attempted to return to work several times to no avail.

Ultimately, the Kibel Court found that “the district court and Aetna clearly erred in failing to consider the personal statement that Kibel submitted explaining that her fatigue did, in fact, render her totally disabled.” In her personal statement, Kibel described her fatigue as “an overpowering feeling of extreme tiredness, exhaustion, [and] weakness[.]” In this personal statement, Kibel further explained how it left her “completely drained” and caused “a complete slowdown of [her] brain and body[.]” The Court found that, this evidence in the form of Kibel’s own personal statement, when appropriately considered, further supported a finding that Kibel’s condition prevented her from performing the duties of her occupation. For that reason, the Ninth Circuit reversed and remanded, instructing “the district court to direct an award of benefits to Kibel[.]”

The Kibel court relied on Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 904–07 (9th Cir. 2016) for the rule that a district court and disability insurer must “consider a claimant’s subjective account of pain” when deciding whether she is disabled. Id. at *2.

As detailed above, a personal statement can be the difference between a denial and an award of long-term disability benefits; it was for Kibel. With this in mind, personal statements must be relevant to the circumstances and should include the following information: 1) a detailed description of the duties of your occupation as you performed them, 2) a detailed discussion of the history of your condition, 3) a detailed discussion of your symptoms and 4) how those symptoms, such as pain and fatigue, impact your ability to perform the duties of your occupation; 5) how your disability has also impacted your overall quality of life and 6) a discussion of the things you could previously do but can no longer do. It is also important that you write your own personal statement. It should sound authentic and the best way to achieve that is by writing it in your own words. Moreover, because personal testimony is a form of proof that typically raises credibility issues, it is likewise important that you gather corroborating statements from colleagues, friends and family. Like the disability claimant’s personal statement, these corroborating statements should discuss each person’s firsthand account of your decline as the result of your condition.

A positive for ERISA disability claimants, the Ninth Circuit’s ruling in Kibel has wider applicability than just ERISA cases. Because most long-term disability insurance policies do not define disability materially differently between ERISA and Non-ERISA policies, personal statements can be valuable whether you have an individual disability insurance policy governed by state insurance bad faith laws or an ERISA-governed group policy.

Robert J. McKennon, founding shareholder of McKennon Law Group PC, shared his comment for an article discussing important clauses in insurance policies entitled “Does Suicide Invalid an Insurance Claim? It All Depends on the Language in the Policy.” The author of the article, Trevor Kupfer, requested Mr. McKennon’s expertise as to several important clauses in insurance policies, including incontestability clauses, suicide clauses and accidental death and dismemberment clauses. Mr. McKennon is quoted extensively in the article and he discusses some of his cases dealing with the issue of suicide vs. accident. On February 2, 2018, the article was published to the “Super Lawyers” website, a ratings service that recognizes prominent lawyers for high levels of professional achievement. Mr. McKennon, an attorney who has practiced for over 30 years and mostly represents policyholders in life, health and disability insurance matters, has been a recognized Super Lawyer every year since 2011. The article appears in full below, reprinted with the permission of Super Lawyers.

DOES SUICIDE INVALIDATE AN INSURANCE CLAIM?

It all depends on the language in the policy
By Trevor Kupfer

There are two prevalent misconceptions about life insurance and suicide. One is informed by stories like It’s a Wonderful Life, Death of a Salesman and Bulworth, where the down-on-his-luck protagonist considers the insurance benefit to their loved ones if they commit suicide. The other is quite the opposite: that if you commit suicide, your insurance policy is void. So which is it?

“It all depends on the language of the policy,” says Robert J. McKennon, an insurance and employee benefits attorney at McKennon Law Group in Newport Beach. “It’s one of the first things I look at.”

Insurance policies are like any contract: It’s all about what’s in the fine print.

The Suicide Clause

Some life insurance policies may pay benefits regardless of suicide, others may require a certain amount of time to pass after finalizing the policy, and “a number of life insurance policies have exclusions for suicide or self-inflicted injury,” McKennon says.

But even if a policy has a “suicide clause,” the law says that the language must be plain, clear, and conspicuous. “That’s a grey area,” McKennon says. Several cases have set precedent on what it means to be conspicuous, but it ultimately depends on what a judge decides. “And if the court thinks it’s not clear and conspicuous, the clause is not enforceable.”

The Incontestability Clause

McKennon has handled several cases that deal with incontestability. This common policy clause allows an insurance company to argue that the policyholder provided inaccurate information, thus voiding the contract. The clause often contains a provision stating that the policy becomes incontestable after a period of time.

Depending on the terminology of the clause, however, it may make an exception for fraud. “That someone intentionally withheld information,” McKennon explains, “like a past history of mental illness or prior suicide attempts.” Failing to provide such information puts a policyholder at risk of fraud, and therefore no benefits.

Accidents & the Burden of Proof

In theory (and certainly in the movies), one could go from insurance company to insurance company taking out life insurance policies, and lying the entire time. Then, in the event of their death, if the insurance company doesn’t contest anything, their beneficiaries will receive the benefits.

In fact, 99 percent of all life insurance claims are paid in full, according to the American Council of Life Insurers. However, that doesn’t mean some don’t encounter denials, appeals, and legal fights that delay said payment. One doesn’t have to look far to find examples.

A famous one from 2011 involved a Montana man who was battling cancer when he died in a car accident. Shortly after, his life insurance claim was denied when the company argued it was suicide. A more recent example was a client of McKennon’s.

“She was standing outside the shower, slipped and fell, and her neck wrapped around the cord for the handheld part of the shower, in its holster. She lost consciousness and ended up dying a few days later,” he says. “The insurance company investigated and concluded it was a suicide. We said, ‘No, it was an accident.’ They decided we were correct on appeal, and paid the claim, and now we’re suing on the grounds of bad faith.”

The key in McKennon’s shower case was expert testimony that it was an accident. The burden of proof in such cases is an interesting wrinkle, he notes. If a policy excludes suicide, the insurance company has to prove it was suicide. “That can make the difference in your case. If the answer isn’t clear and can go either way, the party with the burden of proof could lose, and the insurance company always has the burden with respect to an exclusion in the policy,” he adds.

Seeking Help

As with anything, each case depends on the circumstances and verbiage in the policy. Insurance attorneys deal with this on a regular basis, and it’s always advisable to seek reputable legal advice in the event of a claim denial.

On February 2, 2018, Robert J. McKennon, founding shareholder of McKennon Law Group PC, shared his insurance expertise with Trevor Kupfer of Super Lawyers for an article on important clauses in insurance policies entitled “Does Suicide Invalid an Insurance Claim? It All Depends on the Language in the Policy.” “Super Lawyers,” one of the most important and prestigious ratings services in the United States, that recognizes the top 5% of outstanding lawyers, published the article on its website. Mr. McKennon, an attorney who has practiced for over 30 years and mostly represents policyholders in life, health and disability insurance matters, has been a recognized Super Lawyer every year since 2011. He is an expert in insurance coverage and ERISA litigation. In this article he commented on clauses that regularly appear in life and accident insurance policies, such as suicide clauses, incontestability clauses, and accidental death clauses. The article can be found here.

Accidental Death & Dismemberment (AD&D) insurance pays the insured and his or her beneficiaries a set amount of money if the insured’s death or dismemberment is the direct result of an “accident.” In the event of a death caused by an accident or an accident that results in the insured losing his or her eyesight, speech, hearing, or a limb, AD&D will pay the insured or his or her beneficiaries a specified amount. The term “accident” has been given many different meanings in insurance policies and has been heavily litigated throughout history. Courts have encountered significant difficulty attempting to determine when an event is an “accident” for insurance law purposes. While the definition of the term “accident” will vary based upon the specific provisions contained in the policy at issue, the following recent court decisions demonstrate the issues that can complicate the determination of whether a death or insuring event is accidental.

In Prather v. Sun Life & Health Ins. Co., 843 F.3d 733 (7th Cir. 2016), a case decided under ERISA, the insurance policy at issue limited coverage to “bodily injuries that result directly from an accident independently of all other causes.” An insured tore his Achilles tendon while playing basketball, and underwent surgery to repair his tendon. Despite the otherwise successful surgery, the insured collapsed at work and died shortly thereafter due to a blood clot that broke loose from his injured leg and traveled to his lung causing cardiac arrest. Sun Life argued that the insured’s cardiac arrest and ensuing death were not entirely consequences of his accident causing his Achilles tendon to tear, but was a consequence of the surgery he underwent. The court was not persuaded by Sun Life’s argument, instead determining that Sun Life failed to make any plausible showing that the surgery, rather than the accident that necessitated the surgery, caused the insured’s death. Even though a beneficiary has the burden to prove a death was accidental, the court explained that a beneficiary is not required to disprove any possible alternative cause of death, even when a policy requires a death result from an accident “independently of all other causes,” as such a requirement would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death.

In McDonald v. Onebeacon Am. Ins. Co., 2015 WL 11439080 (N.D. Ga. 2015), the insured, a truck driver, was found unresponsive in his truck shortly after an accident, and he died later that day. The truck driver was massively overweight and suffered from an enlarged heart and other coronary issues, and an examining doctor concluded that heart disease and resulting arrhythmia were the cause of his death. The policy insuring the truck driver defined an “accident” as “a sudden, unexpected, specific and abrupt event that occurs by chance at an identifiable time and place.” The court denied the insurer’s motion for summary judgment in part, finding that even though the truck driver’s heart condition was quite possibly the only cause of his death and his crash, his heart episode could fall within the policy’s broad definition of an accident. The court reasoned that the truck driver’s heart episode, occurring at the moment he crashed his vehicle, was a sudden and specific event that appears to have been unexpected and independent of all other causes.

In Wichita Fireman’s Relief Ass’n v. Kansas City Life Ins. Co., 609 Fed. Appx. 530 (10th Cir. 2015), the chordal structures in a fireman’s heart ruptured while he was fighting a condominium fire. After the fire, the fireman underwent surgery revealing a damaged mitral valve and the three torn chordal structures. The fireman died shortly after surgery. The policy at issue provided benefits for a loss resulting “directly and independently of all other causes from accidental bodily injury.” The policy also excluded coverage for a loss resulting from “bodily or mental illness or disease of any kind, or medical or surgical treatment of the illness or disease.” The Wichita Fireman’s Relief Association argued that the fireman’s death was brought on by extreme physical exertion during the fire, and the insurance company argued that the fireman’s death was instead the product of chronic mitral valve disease. The appellate court found there were issues of material fact as to whether the fireman’s heart injury, brought upon by extreme exertion in fighting the fire, constituted accidental bodily injury. The court found that the rupture of the chordal structures within the firefighter’s heart could be found by a jury to be unexpected and unforeseen, even though the strenuous conditions were within his line of duty.

Given the varied interpretations that can apply to provisions within insurance policies covering accidental deaths, and the considerable difficulty courts have encountered when trying to determine what is an accident” for insurance purposes, having an experienced attorney matters to the success of your accidental death claim. If your claim for health, life, short-term disability, long-term disability, or AD&D insurance has been denied, call (949)387-9595 for a free consultation with the attorneys of the McKennon Law Group PC, several of whom previously represented insurance companies and are exceptionally experienced in handling ERISA and Non-ERISA insurance claims.

Newport Beach, CA (February 2018) — Newport Beach attorney Robert J. McKennon achieves Top 100 Insurance Lawyers in California and Super Lawyer status, and McKennon Law Group PC named Insurance Litigation Law Firm of the Year.

Bad Faith Insurance and ERISA litigation attorney Robert J. McKennon, founder of McKennon Law Group PC, which represents policyholders in their insurance disputes with insurers, was recently named a 2018 Southern California Super Lawyer – Insurance Coverage. McKennon also received Top 100 Insurance Lawyers in the State of California for 2018 recognition by the American Society of Legal Advocates, which he has received every year since 2013.

“After representing insurance companies for 24 years and now representing policyholders against them, it is a great honor to be recognized individually and as a law firm for the strong commitment to our clients in getting their life, medical and disability insurance claims paid,” said McKennon.

McKennon appeared in the January 2018 edition of Southern California Super Lawyers magazine. McKennon has received this prestigious designation every year since 2011. McKennon was voted by his peers for this award and was recognized for his excellence in representing his life, health and disability policyholder clients. The Super Lawyer designation is given to less than 5% of lawyers nationally after being nominated and voted on by their peers.

Furthermore, Lawyers Worldwide Awards Magazine recently named McKennon Law Group PC as “Insurance Litigation Law Firm of the Year – California” and “Insurance Litigation Law Firm of the Year – USA” for 2017. McKennon Law Group PC was voted by its peers for these awards and it was recognized for excellence in representing its life, health and disability policyholder clients against the biggest insurers in the world.

About Robert J. McKennon, McKennon Law Group PC
Robert J. McKennon represents individuals and corporations against insurers in insurance litigation matters throughout California and nationally in state and federal courts. He has an AV Preeminent rating from Martindale-Hubbell and a “Superb” Avvo rating. Practice areas of McKennon Law Group PC include bad faith insurance, disability insurance, life insurance, ERISA/employee benefits, health insurance, long-term care, property and casualty insurance, directors and officers liability insurance, professional liability insurance, and insurance agent and broker liability. McKennon Law Group PC publishes a widely read Insurance Blog at https://mslawllp.com/category/insurance-blog/. For more information, please call (949) 387-9595, or visit the firm’s website at www.mslawllp.com.

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On our blog, we frequently discuss the improper tactics insurers use to deny legitimate claims for life, health, disability and other forms of insurance. For our latest article on the pervasive problem in health insurance claims denials, see https://mslawllp.com/la-times-report-pervasive-problem-of-improper-health-insurance-denials/. Mckennon Law Group PC has had much experience litigating against health insurers who deny legitimate medical claims. We know this is a rampant problem. So, it was not shocking to us that at least one very large health insurer, Aetna, took highly improper actions to deny medical insurance claims.

On February 12, 2018, the California Department of Insurance (“CDI”) issued a press release confirming its investigation of Aetna, one of the largest health insurance providers in the U.S. California Insurance Commissioner Dave Jones directed an investigation into Aetna’s claims handling practices for potential misconduct. Specifically, Aetna’s determinations to deny coverage without a physician’s review of the medical records. The Commissioner expressed his concern over Aetna’s reviewing practices as follows:

I have directed the California Department of Insurance to open an investigation of allegations regarding Aetna’s practices in denying claims and requests for prior authorization for care. The department is also investigating Aetna’s utilization review process. If a health insurer is making decisions to deny coverage without a physician ever reviewing medical records that is a significant concern and could be a violation of the law. The department is seeking more information from Aetna about their claims denial process and I would encourage any Californians who are concerned that they might have been affected to contact the California Department of Insurance at 1-800-927-4357.

CDI’s announcement follows from a report on the topic by CNN, focusing on several troubling admissions made by Aetna’s former medical director for southern California, Dr. Jay Ken Iinuma. Reportedly, Dr. Iinuma admitted that he did not review patients’ medical records firsthand. As a matter of practice, he instead relied on nurses’ secondhand reporting of pertinent information in the medical records.

These admissions appear during the former medical director’s video-taped deposition in an ongoing lawsuit for breach of insurance contract and bad faith. In the lawsuit, Plaintiff Gillen Washington alleges that his health insurer, Aetna, improperly denied preauthorization coverage of his monthly infusion of intravenous immunoglobulin, an otherwise regular treatment for his rare immune disorder. Although Dr. Iinuma authorized the denial as not medically necessary, the deposition transcript revealed his limited knowledge of Washington’s rare disease and its necessary treatment.

Whereas CNN described Dr. Iinuma’s admissions as “stunning,” the use of underqualified consultants to support a denial of coverage is more common than some might think. At the McKennon Law Group PC, we frequently see improper claims denials supported in this manner, through a nurse consultant’s review of the medical records and not a physician’s review of the same. Even more shocking, the insurer often relies on the unqualified consultant’s opinion over that of the insured’s treating physician. We regularly see this in the handling of long-term disability insurance claims, short-term disability insurance claims and health insurance claims.

Similarly, an insurer may attempt to support an improper denial of coverage by using a non-specialist physician. This can be problematic in instances like the above because, as Dr. Iinuma also admitted in his deposition, he had little experience treating those with the rare immunological disorder Washington suffers from, and thus, he knew little about its necessary treatment. We can also surmise that the Aetna nurse who had reviewed his medical records also had little experience treating those with immunological disorders. Yet, he still authorized denial of coverage for the treatment as not medically necessary. More troubling still, lurking behind these issues of qualification are issues of bias. Often, the unqualified consultants work on-site, essentially acting as employees of the insurer, which in turn, renders them more likely to provide an opinion in favor of a claim denial.

Having an experienced long-term disability, individual disability, health and life insurance attorney matters to the success of your insurance claim, particularly where the denial of coverage relies on the opinion of an unqualified consultant or non-specialist peer review physician. If your claim for health, life, short-term disability or long-term disability insurance has been denied, call (949)387-9595 for a free consultation with the attorneys of the McKennon Law Group PC, several of whom previously represented insurance companies and are exceptionally experienced in handling ERISA and Non-ERISA disability and medical insurance claims.

How to Fight ERISA Long-Term Disability Claims Denials: The Use of Personal Statements

DOES SUICIDE INVALIDATE AN INSURANCE CLAIM?

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