McKennon Law Group PC founding partner Robert J. McKennon was awarded the designation of 2014 “Top Rated Lawyer in Labor and Employment” by American Lawyer Media and Martindale Hubbell, leading providers of news and rating information to the legal industry. Mr. McKennon received this top award for his and his firm’s work representing ERISA plan participants/insureds in disability insurance, life insurance and health insurance litigation.
A common justification for denying a claim for long-term disability insurance benefits or short-term disability insurance benefits is that the claimant is capable of returning to work in another job. However, insurers / ERISA administrators are not allowed to deny a claim just because an insured might be capable of returning to any job, rather the identified job must be based on the insured’s education, training and experience. Further, the occupation must be “gainful,” which usually means that it pays the insured at least 50%-60% of his or her pre-disability income. In Kennard v. Means Industries, Inc., 2014 U.S. App. LEXIS 2846 (6th Cir. Feb. 13, 2014), the Sixth Circuit imposed another important requirement — the insurer must prove that the theoretical job actually exists.
During an accident, Kyle Kennard inhaled fumes from a chemical spill, which severely injured his lungs and rendered him ultra-sensitive to noxious fumes. Following the accident, Kennard’s treating physician found that for the rest of his life, Kennard would be limited to working in a “clean-air environment.” Kennard was awarded disability benefits by the Social Security Administration, and then applied for disability insurance benefits under his employer’s ERISA-governed employee welfare benefit plan.
Pursuant to the terms of the Plan, Kennard was required to submit to an examination by a physician chosen by the Claim Administrator. Following an examination, the physician found that Kennard was employable “as long as he could be guaranteed that he would be placed in an absolute clean air environment with absolutely no noxious fumes or inhalants, as he is extremely sensitive to this.” Given this finding, the ERISA administrator denied Kennard’s claim for disability insurance benefits on the grounds that he was capable of sedentary work in a clean-air environment. The district court ruled that this decision was not arbitrary and capricious, but the Sixth Circuit reversed that ruling.
In finding that the denial of Kennard’s claim for long-term disability insurance benefits was improper, the court noted that “a valid denial of benefits premised on Dr. Levinson’s opinion would need to include evidence of the existence of absolute-clean-air jobs available to Kennard,” and noted that the SSA found that there are no jobs in the national economy that Kennard could perform. To support the denial decision, the administrator was required to identify a job he could perform “in terms of a real American workplace,” and present evidence of jobs available to the claimant. Because the ERISA administrator offered no evidence of the existence of the job used as the basis for the denial, the court found that the denial decision was improper.
In other words, if an insurer denies a claim for benefits after finding that the claimant can perform a particular job, there must be evidence that the job exists. It is improper to deny a claim based on a job that only hypothetically exists.
At McKennon Law Group, we have a regional and national reputation for handling bad faith insurance claim cases. That reputation is built on a consistent history of securing outstanding settlements and verdicts at trial, which we’ve achieved through our commitment to aggressive advocacy for our clients.
Under California law, all insurance contracts contain an implied covenant of good faith and fair dealing, which means that both parties involved must act fairly and reasonably. Specifically, this means behaving in a way that does not unreasonably seek to negate the benefits owed under the contract. For example, if an insurance company attempts to withhold or delay benefits owed from you without just cause, they can be penalized under law. You have the right to recover not only the policy benefits owed to you, but also additional damages and fees. This may include emotional distress damages, punitive damages, consequential damages, pre-judgement interest and attorney’s fees.
If you think that the actions of your insurance company may have been in bad faith, there are options for getting the benefits due to you. We have almost 30 years of experience litigating and resolving bad faith insurance cases, many of which may be very similar to the situation you are in. We have been nationally recognized for our accomplishments, chaired several seminars and published several articles regarding bad faith claim matters. We are truly experts in our field and we are the best attorneys in California to handle your bad faith insurance claim case.
McKennon Law Group offers free consultations to all our new clients. This gives us a chance to learn more about your case and answer your questions without any financial pressure. Contact us today to learn how our Los Angeles attorneys can help you with your bad faith insurance case.
McKennon Law Group PC founding partner Robert J. McKennon was awarded the designation of 2014 “Top Rated Lawyer in Litigation” by American Lawyer Media and Martindale Hubbell, leading providers of news and rating information to the legal industry.
When reviewing a claim for disability insurance, insurers and other claim administrators often rely on the opinions of paid physicians to support their improper denial decisions. For example, a disability insurance company will hire a doctor to conduct a “paper review” – that is, reviewing an insured’s medical records, without actually examining the insured – and then offer an opinion on the insured’s ability to return to work. If the “paper reviewer” opines that the insured is capable of returning to work, the insurance company will then rely on that opinion to deny the claim for benefits; even if the insured’s own treating physicians repeatedly state that the insured is disabled. However, in Oldoerp v. Wells Fargo & Co. Long Term Disability Plan, 2014 U.S. Dist. LEXIS 9847, 2014 WL 294641 (N.D. Cal. Jan. 27, 2014), the court held that with a psychological disability, a treating mental health professional’s observations are “more persuasive” than a paper reviewer’s opinion. This opinon is beneficial for policyholder/insureds, espeically in ERISA cases, because insurers will have a harder time using the opinions of paid, so-called “experts” who do not examine the insured to support their improper claim decisions.
In 2007, Kerilei Oldoerp was forced to stop working after experiencing a host of symptoms, including pain, fatigue and depression. Eventually, Oldoerp was diagnosed with a variety of conditions, including depression, chronic fatigue syndrome, fibromyalgia, generalized anxiety, panic disorder and Bartonella. Oldoerp made a claim for short-term disability (“STD”) benefits, and then long-term disability (“LTD”) benefits. MetLife, the claim administrator, approved her STD claim, and also paid her LTD benefits for one month before denying the claim, and forcing Oldoerp to bring an ERISA lawsuit to recover the disability benefits to which she was rightfully entitled.
In Oldoerp, the District Court originally upheld MetLife’s claim decision, ruling that its decision to deny benefits was not an abuse of discretion. However, on appeal, the Ninth Circuit, following CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011), overturned that ruling because the discretionary language was contained in a summary plan description, but not the acutal plan. On remand, applying the de novo standard of review, the district court ruled in Oldoerp’s favor, finding that “Oldoerp, more likely than not, was disabled under the plan’s[IC1] terms beginning in August 2007,” and that her disability persisted after February 13, 2008, the date MetLife determined she was capable of returning to work.
In reaching this ruling, the District Court reviewed the medical evidence in the Administrative Record, as well as Oldoerp’s Social Security Disability Insurance file, after finding that it was “necessary . . . for an adequate de novo review.” First, noting that MetLife had previously approved Oldoerp’s LTD claim, in order to find that Oldoerp was not longer disabled, “one would expect the [evidence] to show an improvement, not [simply] a lack of degeneration.” However, the record did not reveal that Oldoerp’s condition improved. Rather, the records of Dr. Becky Simonelic, a psychologist who “treated Oldoerp longer and more often than any other medical professional in the record,” showed that Oldoerp’s condition had actually “deteriorated without significant improvement.”
In defending the denial decision, MetLife relied on psychologist Marcus J. Goldman, its paid physician who did not examine Oldoerp, but, after conducting a “paper review” opined that she failed to demonstrate psychiatric functional limitations after November 2007. The Court found Dr. Goldman’s conclusions to be “minimally persuasive.” First, while Dr. Goldman criticized the “subjective evidence” used to support Oldoerp’s disablity, the Court noted that an insured is “entitled to rely on credible subjective evidence in support of her claim,” especially when “the record lacks persuasive objective evidence to rebut the credible evidence” supporting the disability. In addition, the court noted that while Dr. Simonelic “consistently observed Oldoerp throughout the pendency of her claim, Goldman never examined Oldoerp,” and explained that “[w]hile an ERISA plan administrator need not provide in-person medical evaluations of its claimants, Simonelic’s in-person observations are more persuasive than Goldman’s paper review.” The Court also noted that “in-person examinations can prove more conducive to an accurate assessment of a claimant’s condition.”
Based on Dr. Simonelic’s opinions, and the other medical evidence in the record, the Court ruled that Oldoerp was entitled to a reinstatement of her LTD benefits. This opinion is very good for insureds. In addition, to holding that the opinions of a doctor who only conducted a “paper review” was only minimally persuasive in the face of a contradictory opinion by a treating physician, the Court also ruled that a Social Secuity Disability Insurance file was necessary for a full de novo review (following Mongeluzo v. Baxter Travenol Long Term Disability Ben.[IC2] Plan, 46 F.3d 938, 943 (9th Cir. 1995)) and that a disability claim can be supported by subjective evidence, especially where there is no contrary objective evidence.
The February 10, 2014 edition of the Los Angeles Daily Journal featured Robert McKennon’s article entitled: “Policyholder Wins Handed Down in Insurance Decisions.” In it, Mr. McKennon discusses six insurance decisions handed down in California and federal courts in 2013 that were favorable to policyholders.
The article includes a discussion of Zhang v. California Insurance Co., 57 Cal. 4th 364 (2013), which empowered policyholders to pursue Unfair Competition Law claims against insurers, as well as Rochow v. Life Insurance Company of North America, 737 F.3d 415 (6th Cir. 2013), in which the 6th U.S. Circuit Court of Appeals affirmed a large disgorgement of profits award in long-term disability case governed by the Employee Retirement Income Security Act of 1974 (ERISA). Also discussed are Barnes v. Western Heritage Insurance Co., 217 Cal. App. 4th 249 (2013), Nickerson v. Stonebridge Life Insurance Co., 219 Cal. App. 4th 188 (2013), Aguilar v. Gostischef, 220 Cal. App. 4th 475 (2013) and American Safety Indemnity Co. v. Admiral Insurance Co., 220 Cal. App. 4th 1 (2013). The article is posted here with the permission of the Daily Journal.