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McKennon Law Group PC founding partner Robert J. McKennon will speak on an MCLE panel for the Orange County Bar Association Insurance Law Section on August 27, 2014 discussing “Recent Developments and Interesting Issues in Life Insurance Law.” Mr. McKennon, an attorney who currently represents insurance claimants after over two decades representing insurers, and Laura K. Kim, an attorney who currently represents insurance companies, agents and brokers in insurance litigation will provide information to help litigators assess the issues associated with life insurance litigation to ensure that counsel for both parties are able to properly represent their clients. The MCLE event is scheduled to take place at the OCBA headquarters from 12:00 PM – 1:30 PM and registered attendees will receive 1.0 hour of MCLE credits
McKennon Law Group PC founding partner Robert J. McKennon will speak on an MCLE panel for the Orange County Bar Association Insurance Law Section on August 27, 2014 discussing “Recent Developments and Interesting Issues in Life Insurance Law.” Mr. McKennon, an attorney who currently represents insurance claimants after over two decades representing insurers, and Laura K. Kim, an attorney who currently represents insurance companies, agents and brokers in insurance litigation, will provide information to help litigators assess the issues associated with life insurance litigation to ensure that counsel for both parties are able to properly represent their clients. The MCLE event is scheduled to take place at the OCBA headquarters from 12:30 PM – 1:30 PM and registered attendees will receive 1.0 hour of MCLE credits.
Disability typically offer their insureds little insight into their claims administration processes. If you are waiting for a decision on your claim, or anticipate filing a disability claim soon, be alert that your insurer will thoroughly investigate your claim and actively search for reasons to deny your claim for disability benefits. In order to recover on your disability claim, your disabling condition must be accurately stated and well-supported. In addition, you need to make sure that, after submitting your claim for benefits, your actions do not present a false picture of your conditions, as insurers will likely seize upon any opportunity to challenge an otherwise valid claim. Here, we focus on surveillance and social media.
Surveillance
Insurers often hire outside investigators to conduct surveillance in the hopes of catching claimants engaging in activities that cast doubt on their disability claims. An insurer may request surveillance prior to approving your claim, or after you have been paid benefits for a while. Sometimes, field investigators will schedule interviews to take place at claimants’ houses, or other agreed upon locations. An investigator may ask to videotape the session or take photos of the claimant. It is also not uncommon that insurers will ask a claimant to attend an independent medical examination or a Functional Capacity Examination and then videotape their claimants as they come and go to these examinations. Other times, insurers will ask a claimant to complete a list of the daily activities and then will dispatch field investigators to secretly videotape claimants performing regular daily activities including driving, grocery shopping, taking out garbage or working out at the gym to see if these activities are consistent with a claimant’s stated activities of daily living. Insurers may view these activities in a vacuum and decide that your limited ability to perform an activity means your condition is not so serious that you cannot work.
For instance, an insurer may point out that its videotape of a claimant driving for thirty minutes suggests the claimant is capable of prolonged sitting and working at a full time sedentary job, or the videotape of a claimant carrying a few grocery items contradicts an alleged back injury. Be wary of engaging in activities or taking actions which may produce evidence to weaken your claim. If an insurer misinterpreted an activity as a basis to deny your claim, you should challenge its decision or hire an experienced attorney to do so on your behalf.
Social Media
Over the past decade, social media has advanced to a point where it is integrated into our lives and savvy insurers embrace this trend by scouring Facebook, Twitter, Linkedin, online dating sites, and other networking sites using only a claimant’s name or email address. Often times, the information found is taken out of context to justify a denial of a valid claim. For example, insurers may find a dating profile which presents an eligible bachelor as athletic, and question the scope of his functional limitations. Similarly, insurers may view vacation pictures on Facebook as contradicting claims of financial or emotional distress, and posed pictures as contradicting the extent of your injuries. Even if posts were made or pictures were taken prior to the onset of a disability, an insurer may overlook the date and fixate on what they find as contradictory to your current restrictions and limitiations. In addition, insurers may utilize any information found to discredit claimants in litigation. After filing a claim, consider terminating your social media accounts or at least locking or privatizing all your social media accounts so that only immediate or close contacts have access to what you post online. Also, be aware of what you are posting so that your insurer cannot use this information to deny your disability insurance claim.
For additional information, please see our FAQs for Can social media impact a claim for disability benefits.
McKennon Law Group PC is very experienced with handling short-term and long-term disability insurance claims and for many years their attorneys actually represented insurance companies. Call us for a free evaluation of your disability insurance claim.
In a victory for insurance consumers and mental health advocates, a recent change to the California Insurance Code mandates that short-term disability insurance policies provide coverage for “severe mental illnesses” as that term is defined in the Insurance Code.
Passed in 2013, and signed in to law by Governor Jerry Brown on October 4, 2013, Assembly Bill No. 402 (“AB 402”) added Section 10144.55 to the Insurance Code, effective July 1, 2014. Section 10144.55 requires that every disability insurance policy with “a short-term limited duration of two years or less,” provide coverage for disabilities caused by severe mental illnesses. Section 10144.55(b) defines “severe mental illnesses” as schizophrenia, schizoaffective disorder, bipolar disorder (manic-depressive illness), major depressive disorders (including postpartum depression), panic disorder, obsessive-compulsive disorder (OCD), pervasive developmental disorder (autism), anorexia nervosa or bulimia nervosa.
AB 402 was introduced by California Assemblymember Tom Ammiano, and passed the California Assembly by a 57-12 vote. When the Bill was being considered by the California Senate Insurance Committee, Assemblymember Ammiano argued that:
[A]ccording to the 2010 United States census, approximately 1.2 million adults live with serious mental illness. Most of these adults continue to work right through their mental illness utilizing sick days on occasion when symptoms are severe. Occasionally, employees may need a longer period of time to adequately recover from a severe mental illness or transition onto a new medication. California State Disability Insurance can pay for a portion of an employee’s salary, but to keep the employee’s income whole, many rely on short term disability income insurance to make up the remaining lost wages and allow an injured person to continue paying mortgage, rent, tuition and car payments, as well as help cover expenses for food, child care and utilities. When these policies exclude coverage for mental illness or injury, these families are left with the decision of working against their doctor’s orders and placing employers and fellow employees at risk or facing often unmanageable financial burdens.
Following the passage of California’s Mental Health Parity Act (“Parity Act”), California already required that health insurance policies provide the same coverage for severe mental illnesses as other health issues. Now, with the passage of AB 402 and the addition of Section 10144.55 to the Insurance Code, California workers with short-term disability policies that are issued, amended or renewed on or after July 1, 2014 will have coverage if a “severe mental illness” temporarily prevents them from returning to work.
Filing a disability claim can be a complex and daunting progress, especially when the claimant suffers from a mental illness. Accordingly, it is absolutely crucial that claimants seek the advice of attorneys who have knowledge and experience in this highly specialized area of law. The attorneys at McKennon Law Group PC specialize in handling and litigating disability insurance claims, including short-term disability insurance claim and mental health claims.
If your disability policy was issued and paid for by your employer, it is likely governed by the Employee Retirement Income Security Act of 1974, commonly referred to as ERISA. ERISA is a complex statute that even scares off many experienced insurance attorneys. If your claim for disability benefits, made under an ERISA plan, is denied, you are not allowed to immediately file a lawsuit to collect your past due benefits. If you do, the court will dismiss your claim. Instead, you are required to appeal that claim decision to the very company that denied your claim in the first instance.
When appealing the denial of a short-term disability or long-term disability claim, many claimants make the mistake of handling the appeal without the assistance of an attorney. This can be a costly mistake, as the appeal is the most important part an ERISA claim because it likely represents a claimant’s final opportunity to present evidence to support his or her claim. Further, claimants who try to handle their own appeal often harm their claim.
One reason for this is that when you appeal the denial of your claim for benefits, the insurance company NEVER TELLS YOU that, if your case goes to trial, you will likely not be allowed to offer new medical records or other evidence to support your claim. Instead, you will be limited to the documents already in the insurance company’s file, called the Administrative Record. Thus, the worst thing you can do is simply tell the insurance company that you disagree with their decision and would like to appeal without offering any new evidence or arguments for disability. Such appeals are doomed to fail. You will need to offer new evidence and/or information, not only to support your appeal, but also to use later in court.
Also, you usually only have 180 days after the denial to appeal the claim. The sooner you contact an attorney to assist you, the sooner that attorney can obtain your file, see what is missing and work with you to ensure that the Administrative Record contains sufficient medical evidence to support your claim. An attorney can also ensure that you file your appeal in a timely manner. A failure to complete your appeal in time could mean that you waived your right to bring a lawsuit challenging the claim decision.
An experienced ERISA attorney can also help identify problems with the insurance company’s decision, and raise those issues with the insurance company. That way, at trial, the Court will see that the insurance company was made aware of its errors, but failed to correct them. In addition, when confronted with the arguments of experienced ERISA attorneys such as those from McKennon Law Group PC, the insurer or administrator will often reverse itself and approve the claim for benefits.
Accordingly, when appealing a claim decision under a short-term disability insurance policy, long-term disability insurance policy or life insurance policy or plan governed by ERISA, the best thing you can do to increase your chances on appeal is to immediately hire an experienced ERISA attorney to help you fight for your benefits.
A disturbing trend that has developed across the country in recent years is that, while the number of workers/employees suffering from long-term illnesses or injuries has increased, the number of employers who provide long-term disability insurance has dropped dramatically. As of May 2014, the total number of Social Security disability beneficiaries in the United States hit an all-time high of about 11 million beneficiaries. However, fewer employees are covered with long term disability coverage. The number of U.S. workers with long-term disability coverage decreased 6% from 2009-2013. Below are just a few of the worrying statistics. From 2009-2013 nationwide:
- The number of employers offering long-term disability coverage decreased from 220,000 to 213,000;
- The number of employees who have long-term disability coverage decreased from 34 million to 32.1 million (6% decline); but,
- The number of employees in the U.S. workforce has increased by 6.6 million.
More and more employers are opting to drop their standard disability insurance plans for optional employee-paid plans. Additionally, more companies are implementing “defined benefit plans,” which allocate a certain amount of funds for each worker to use for all insurance coverage. This often has the effect of forcing workers to forgo some types of coverage, such as long-term disability insurance, because the funds provided are not sufficient to cover all types of insurance.
All of this leaves employees highly exposed to serious financial difficulties if they suffer a disability that renders them unable to work for six months or more. Indeed, studies have found that more than one in four 20-year-olds will become disabled at some point before they retire. As such, it is not only important for employees to obtain disability insurance, but also to ensure that any claims made for disability coverage under those policies are properly handled and paid by the insurer. If you suspect that your claim for disability coverage has been improperly denied, our attorneys can offer you a free and confidential consultation.
The information and statistics above come from Anderson, J. Craig. “Employers Dropping Long-Term Disability Insurance.” 17 July, 2014. Web. 5 Aug. 2014. The article can be found at http://www.pressherald.com/2014/07/17/employers-dropping-long-term-disability-coverage/
