Firm News Archives - Page 17 of 76

When the Clock is Ticking: The Interplay of the Contractual Limitations Period and the Statute of Limitations in a Disability Insurance Case

The Employee Retirement Income Security Act of 1974, otherwise known as ERISA, governs most employer-sponsored benefit plans, including short and long-term disability benefits, life benefits, accidental death and dismemberment benefits and others. ERISA was enacted to protect employer-sponsored benefits provided to employees. As such, ERISA requires that the plan administrator, typically the insurer or employer, adhere to strict standards and deadlines. However, while ERISA does set strict internal deadlines for the appeals process, it does not specify a time limit to bring a lawsuit for wrongfully denied benefits. In this article, we discuss the statute of limitations and the contractual limitations periods in ERISA benefits cases and a relatively recent and plaintiff-friendly case decided by District Court judge Michael Fitzgerald out of the Central District of California.

What is a Statute of Limitations?

A statute of limitations refers to the amount of time a party has to initiate a lawsuit based on a certain harm or injury. The statute of limitations that governs a claim varies depending on the type of relief a party seeks, as well as where the relief is sought. For example, California Code of Civil Procedure Section 339 sets the relevant statute of limitations for filing an insurance bad faith action at two years. Other states provide for a different statute of limitations.

What is the Statute of Limitations for an ERISA Benefits Claim under Section 502?

A participant in an employer-sponsored benefit plan covered by ERISA may bring a civil action under section 502(a)(1)(B) to recover benefits due under the terms of the plan. While courts have generally required that a participant exhaust the plan’s administrative remedies before filing a lawsuit to recover benefits, ERISA does not specify a statute of limitations for filing suit under section 502(a)(1)(B). Because ERISA does not establish a time limit for such claims, the courts typically fill the gap by applying the “most analogous” state statute of limitations. In the Ninth Circuit, the “most analogous” statute of limitations is the state’s contract limitations period. In California, that is the four-year statute of limitations for written contracts established by California Code of Civil Procedure Section 337.

Heimeshoff v. Hartford Life & Accident Insurance Co.

In Heimeshoff v. Hartford Life & Accident Insurance Co., 134 S.Ct. 604, 611(2013), the United States Supreme Court found that a contractual statute of limitations period will be enforceable so long as it is (1) reasonable or not “unreasonably short” and (2) it is not contrary to controlling state statute. To determine whether a given plan’s statute of limitations is reasonable depends on the specific factual circumstances of the action. In Heimeshoff, the Court found the time limit reasonable because it gave the participant a year to file suit from the date the insurer denied the claim on appeal. However, because ERISA requires that a claimant exhaust her administrative remedies before she files a lawsuit, in some cases, the time it takes to complete that internal review process may prevent a participant from bringing a Section 502(a)(1)(B) action within the contractual limitations period. But, in that event, a court may consider an equitable doctrine that would otherwise allow the participant to proceed.

As to the second question, regarding a controlling statute to the contrary, a United States District Court for the Central District of California recently discussed this issue and the application of California statutes in Gray v. United of Omaha Life Ins. Co., 251 F.Supp.3d 1317 (C.D. Cal. 2017). In an opinion very favorable to ERISA disability plaintiffs, the court discussed the proper analysis of the statute of limitations and the contractual limitations period in detail. In determining whether an ERISA claim is timely, one must first look to whether it violates the controlling statute of limitations and second, whether it violates the contractual limitations period.

In its analysis of the applicable statute of limitations, the court found the four-year statute of limitations controlled and begins to accrue at the date of denial on appeal. In other words, a plaintiff would have four years from the date of the denial on appeal to file a lawsuit under ERISA.

In its analysis of the contractual limitations period applicable, the court first looked to Hemeshoff, finding that it must give effect to the plan’s contractual limitation provision unless unreasonable or prevented by a controlling statute. The Group Policy at issue contained the following contractual limitations provision: “No legal action can be brought until at least 60 days after [United has] been given written proof of loss. No legal action can be brought more than two years after the date written proof of loss is required.” Both parties agreed that California Insurance Code section 10350.11 must be read into the contract to extend the limitations term to three years after the date written proof of loss is required. Next, the court compared the Group Policy’s applicable limitations period to provisions of the California Insurance Code to determine which was more favorable (the more favorable provision would control). The applicable Group Policy terms set the time to file suit as, at most, four years and 180 days from the first date of disability. In comparison, the California Insurance Code section 10350.7 set the time as “90 days after the termination of the period for which the insurer is liable.” Siding with the majority of jurisdictions that had interpreted the model language after which section 10350.7 was taken, it interpreted “the insurer is liable” to include an entire, ongoing period of disability, because the court found the latter provision more favorable, and thus read it into the Group Policy.

In sum, the application of the contractual limitations period and the statute of limitations period can be complicated and understanding the interplay of these important limitations periods is critical when an insurer challenges the timing of the filing of an action against it.

Does ERISA Apply to County and City of Los Angeles Employee Disability Benefit Plans? Why You Should Care

Do you have a long-term disability claim with the County of Los Angeles, City of Los Angeles or another Los Angeles government organization? If so, you might be wondering: do the limited remedies available under a federal law called the Employee Retirement Income Security Act of 1974 (“ERISA”) apply to your claim? It is crucial that you determine whether the specific Los Angeles or County of Los Angeles employee welfare benefit plan at issue is governed by California’s insurance bad faith laws, ERISA, or the Los Angeles County Code. The answer will dramatically affect your recoverable damages.

ERISA applies to most employer-sponsored disability, life, health, retirement and many other employee benefit plans. ERISA exempts only two types of employer plans (meaning that ERISA does not apply to them):

Government plans (see 29 U.S.C. § 1003); and
Church plans, unless the church employer elects under 26 U.S.C. section 410(d) to be subject to ERISA.

While the general rule of thumb is that a government plan is exempt from ERISA and therefore, by default, subject to California’s bad faith laws, that is not always the case. Be careful. This is a complex issue and likely requires retaining an experienced ERISA disability lawyer.

ERISA defines a government plan as, “a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). ERISA does not define “political subdivision,” “agency,” or “instrumentality.” Federal courts have adopted complex tests to interpret these statutory terms. Some employers that look like government entities may not meet the tests and, therefore, are subject to ERISA (not exempt from it). Moreover, plans that involve both public and private employers may result in ERISA application to the entire plan, even as applied to the plan participant’s government employees. See, e.g., South Cent. Indiana Sch. Trust v. Poyner, 2007 WL 3102149, at *5 (S.D. Ind. Oct. 19, 2007).

Which law applies to the plan dictates the types of damages you can recover for an incorrectly denied claim. And there is a big difference, so, this is a critically important issue you do not want to overlook. If the plan is governed by California bad faith law (which is generally the case for government plans), the potential damages for a long-term disability claim denied in bad faith are by far the most expansive. They include: (1) the employee’s past-due disability benefits; (2) prejudgment interest on those benefits at the California rate of 10% per annum; (3) future disability benefits that will become due under the plan; (4) attorneys’ fees incurred to recover the employee’s disability benefits; (5) compensation for the emotional distress caused to the employee by the unreasonable denial or delay in paying the benefits; (6) all other damages proximately caused by the bad faith conduct; and (7) punitive damages in the case of oppressive, malicious or fraudulent misconduct.

Under an ERISA plan, the damages for an incorrectly denied claim are far more limited: (1) the employee’s past-due disability benefits through the date of the ERISA trial; (2) prejudgment interest on those benefits, generally limited to the federal rate (a very low rate); and (3) attorneys’ fees incurred in the ERISA action (but not pre-litigation attorneys’ fees incurred for the employee’s administrative appeal). The employee cannot recover future disability benefits, emotional distress, any other type of “tort” damage, nor punitive damages.

Los Angeles County and City Disability Plans
We have represented claimants employed by the County of Los Angeles and the City of Los Angeles (such as LAPD officers) to recover their wrongfully denied long-term disability benefits. We obtained extremely successful results for both County and City employees. See https://mslawllp.com/success-stories/. These County and City employees were not covered by the same disability plan, not even the same type of disability plan. The plans were not subject to the same laws. The City’s plan in our client’s case was exempt from ERISA (and governed by California’s bad faith laws) as a government plan. The insurer argued it was not because its group policy funding the LAPD officers’ benefits was issued to “The RSL Group and Blanket Insurance Trust” rather than the City of Los Angeles. But the insurer paid a handsome settlement including bad faith damages.

Neither ERISA nor California’s bad faith laws applied to the County’s plan in our client’s case. Indeed, some LA County government disability plans are their own distinct animal. The County of Los Angeles’ Long-Term Disability and Survivor Benefit Plan is governed by Chapter 5.38 of the Los Angeles County Code, not ERISA and not bad faith laws. The available damages when the County or its claims administrator, Sedgwick Claims Management Services, incorrectly denies an employee’s long-term disability benefits claim include: the employee’s past-due disability benefits. That’s it! The employee cannot recover prejudgment interest, attorneys’ fees (with one possible exception mentioned below), emotional distress, or any other type of bad faith or punitive damages.

There are other issues peculiar to Los Angeles County’s Long-Term Disability and Survivor Benefit Plan, codified at County Code, Chapter 5.38.

The Plan has an “own position” disability standard for the first 24 months of benefit payments and, thereafter, converts to the standard used by the Social Security Administration to decide if an applicant is disabled.
The employee must exhaust administrative remedies before filing a lawsuit by submitting a written appeal to the claim administrator within 60 days of the benefits denial (unlike ERISA’s 180-day appeal requirement).
If the appeal is denied, the employee must request an evidentiary hearing within 60 days (which is not required for ERISA plans). It takes place before a hearing officer appointed by the County. It is similar to a Social Security disability benefits hearing before an administrative law judge, where witness testimony can be presented. The hearing officer’s decision exhausts administrative remedies.
If the County/Sedgwick’s benefits decision is upheld at the administrative hearing, the employee’s remedy is to file a petition for writ of mandamus in the California Superior Court under California Code of Civil Procedure section 1094.5 asking the trial court to reverse the administrative decision, not a bad faith action.
The trial court on a petition for writ of mandamus reviews the administrative hearing officer’s decision to see if he abused his discretion. The standard to reverse the hearing officer is very difficult per the California Supreme Court, Fukuda v. City of Angels, 20 Cal. 4th 805, 817 (1999) (“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”)
If an employee prevails in the mandamus action and proves that the findings in the administrative proceedings were “the result of arbitrary or capricious action or conduct by a public entity,” he can recover at most $7,500 in attorneys’ fees computed at $100 per hour (far less than in ERISA or bad faith actions where recoverable fees can amount to hundreds of thousands of dollars). See Cal. Government Code § 800.
However, it is unclear whether this section applies to LA County’s self-funded long-term disability Plan since, under section 800(c), the refusal by a public entity “to admit liability pursuant to a contract of insurance shall not be considered arbitrary or capricious action within the meaning of this section.”

Key Take Away
If your claim for disability benefits has been denied by what appears to be a government entity, you should hire an experienced ERISA lawyer to assess your claim and potential damages. Some employers that look like government entities may not be for purposes of ERISA. Whether your employer has a “government plan” in place will dictate the type of damages you can recover for an incorrect benefits decision. Generally, breach of a government disability benefits plan will allow you to recover substantially more damages than a private employer plan, including bad faith and punitive damages in the right case. Your remedies, however, will be limited by ERISA for private-sector employer plans and even further in the case of some LA County plans.

If your claim for short-term disability, long-term disability, life, retirement or health benefits has been denied, you can 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 both ERISA insurance claims and non-ERISA California insurance bad faith claims.

Department of Labor Announces Ninety-Day Delay in Implementing New ERISA Disability Insurance Regulations

Long-term and Short-Term Disability insurance cases dominate ERISA benefits litigation. According to the U.S. Department of Labor (“DOL”), the administrative agency given the authority to regulate employee benefits under, and to enforce the statutory provisions of, the Employee Retirement Income Security Act of 1974 (“ERISA”), disability insurance benefits claims account for almost two thirds of all benefits-related ERISA lawsuits and, based on rough estimates, these disability benefits claims are often denied. To protect disability claimants from having their benefits claims improperly denied, the DOL enforces and promulgates regulations to strengthen the employee protections found in ERISA. As a part of that process, the DOL recently issued a new set of regulations that greatly enhance the protections provided to disability claimants, codified at 29 C.F.R. Section 2560.503-1 and discussed at 81 Fed. Reg. 92316 (“Regulations”). We wrote an article about these Regulations, which you can read here. Importantly, the Regulations give teeth to existing protections, enhancing requirements for independent claims administration, information disclosure and consequences for administrators who fail to comply. Unfortunately, on November 24, 2017, the DOL announced a ninety-day delay in the effective date of the Regulations. Now, instead of applying to disability claims filed on or after January 1, 2018, the Regulations will not take effect until April 1, 2018, unless they are delayed again.

The DOL said that the decision to delay the effective date for the Regulations arose as a result of an executive order issued by President Trump on February 24, 2017 that directed federal agencies to do a regulatory review, and make recommendations, regarding regulations that could be repealed, replaced, or modified in a way that would make them less burdensome. Since then, the DOL said that it received comments from various stakeholders and members of Congress that implementation of the Regulations would increase the costs of administering disability benefit plans by, among other things, imposing new requirements when adjudicating claims, result in more litigation of claims for disability benefits, and make it more difficult for employers to prevail in such litigation and increase the costs of premiums for disability insurance plans.

The DOL’s decision to delay implementation is unfortunate for disability claimants because the Regulations do so much to strengthen the ERISA-provided protections. For example, they inject a regulatory mandate for impartiality and independence of all persons involved in the claims handling process. Often, we see purportedly “independent” medical experts give biased, poorly reasoned opinions in support of a predetermined goal: denial of the claim. While there is already a substantial body of case law that allows claimants to push back on these not-so-independent medical reviews, with these new Regulations, decisions regarding hiring, compensation, termination and promotion cannot be made on the likelihood that someone will support a disability benefits denial.

These new ERISA Regulations also fortify preexisting information disclosure requirements. In an ERISA disability case, the claims administrator gathers the information necessary to evaluate the initial claim. This may involve interviews with the claimants, retrieval of medical records and the “independent” medical reviews described above. The administrator then compiles this information in a claim file, which per ERISA, must be provided to disability claimants free of charge upon request. These new Regulations strengthen this requirement by making claims administrators provide any new evidence gathered during the review on appeal, as it is considered. This allows the claimant an opportunity to challenge additional information as part of the appeal process and build an equally compelling administrative record that fairly considers both sides.

As for information disclosure in denial letters, the Regulations also require that an ERISA disability claims administrator sufficiently state its denial and expressly address opinions to the contrary. Through these enhanced protections, an administrator may no longer ignore or dismiss conflicting findings of disability, including those from its own experts. For example, if the claims administrator disagrees with a finding of disability by the Social Security Administration or the plan participant’s treating physician, then it must rationally explain and support its opposite conclusion.

Finally, the Regulations incentivize compliance with these important procedural protections by formally acknowledging the legal consequences for failure to comply. Under these new DOL Regulations, a claimant may demand a written explanation of any asserted violation, which the administrator must provide within ten days. Further, when a claim is “deemed denied” because the administrator fails to render a decision within the applicable time-frame, a claimant will have exhausted his or her administrative remedies and can file a lawsuit under a de novo standard of review. A de novo standard of review is much more beneficial for the claimant because the court gives no deference to the administrator’s decision to deny benefits.

With these Regulations, the DOL took a strong stance in protecting disability claimants from wrongful denials by attempting to minimize conflicts of interest, promote an open and robust discussion of the claim and ensure that administrators strictly comply with procedural protections. Hopefully, the DOL will not decide to rescind, modify or further delay implementation of these Regulations, which now will apply to disability claims filed on or after April 1, 2018.

Top 8 Tips for When You Take Your Insurer to Court

If you have a claim that has been wrongfully denied or are currently in the claims handling process, it is important to always keep in mind the potential impact of your conduct on future litigation. When dealing with a sophisticated insurance company, you want to put your best claim forward and be prepared for the potential need to file a lawsuit. In this article, we discuss our top eight tips for when you take your insurer to court, from the importance of hiring an attorney with relevant experience to preparing for the long haul that is litigation against an insurance company.

1. Hire an attorney with experience in insurance litigation who actually goes to trial.
This may seem like a given, but insurance law is a complex and requires an experienced insurance litigation attorney to understand its nuances. Even at the outset, before litigation begins, fundamental legal questions dictate an insurer’s conduct. These legal questions should also alter the way you, as the insured or plan participant, approach the matter. For example, if you receive long-term disability benefits through your employer, your claim may be governed by the stringent, pre-litigation procedures of the Employee Retirement Income Security Act of 1974, otherwise known as “ERISA.” ERISA requires that you exhaust an administrative process, but it also affects the amount of money at stake, which you will have to consider before filing suit.

An experienced insurance attorney understands these nuances and importantly, how it alters an insurer’s approach to the matter. And, look for an attorney who actually goes to trial and does not settle all of his or her cases. We know many attorneys who handle life, health and disability insurance claims who claim to have a big reputation, but who never go to trial. If your attorney has a reputation for being afraid of trial, this will likely greatly affect the recovery you get. Insurers are in the business of assessing risk and they do this with your claim and your counsel. If you have an attorney who is willing to go to trial, the insurer will assess the risk much more favorably, impacting your recovery through settlement. Having an experienced advocate on your side early on the claim process can significantly impact the likelihood of success and help you understand the status of your claim. Let the insurer know you mean business, do your research and hire an experienced attorney with a proven track record, and it can make all the difference.

2. If you feel the insurer wrongfully denied your claim, seriously consider legal recourse.
People buy insurance for a variety of reasons, but typically, an individual or entity purchases insurance to protect itself from an unknown, future risk. You pay a premium for that protection against uncertainty, and share that risk across a pool of other, similarly situated insureds. Ideally, you avoid the future risk entirely, but in the unfortunate circumstance that you do not, you understandably expect your insurer to pay as promised. In other words, you expect the insurer to provide the insurance you paid premiums on for years, not delay and then wrongfully and in bad faith deny your claim.

If your benefits were not paid despite your cooperation throughout the process, your claim may have been wrongfully denied. If so, do not be afraid to seriously consider legal options and pursue those benefits. The insurer certainly consulted with legal counsel in drafting the insurance policy and structuring its claims handling process; do not be afraid to protect the benefits you paid for and do the same.

3. Meticulously document your communications with the insurer.
You must meticulously document all of your communications with the insurer and if you have a plan through your employer, this should also include all conversations with your employer. For every communication, get a name, telephone number, and what you discussed.

This is important because you want to be able to easily refer to an accurate timeline of events. Further, you can be absolutely sure that even if you are not documenting communications meticulously, your insurer is doing so. Insurers record, log and summarize every communication in your “claim file” in a detailed, organized manner. At the end of the day, if you remember a communication or conversation differently (or do not remember it at all), it will be difficult to support without a record of your own.

4. Meticulously document details regarding your claim.
Same goes for all documents sent to and received by the insurer or employer in support of your claim. This does not just include the letters from the insurer and your letters in response, it should also include any enclosures you send with the letters, a copy of any claim forms you filled out, etc. Keep a chronology of all actions you take concerning your claim.

This applies to everything the insurer receives regarding your claim. Often, the insurer needs medical records or other evidentiary support, such as pictures, x-rays, or other materials. Although the insurer will likely independently seek these records, keep a copy for your own records as well.

5. Prepare your case for appeal or litigation.
Preparing for a fight with your insurer is critically important. Keep copies of everything pertaining to your claim and maintain a back copy, so that if one set is ruined by calamity, at least you will have another backup (best if it’s electronic). Unless your case is governed by ERISA, this may be your only record of events until the insurer’s copy is subject to discovery. If the benefits at issue are very important to you, then you must make failsafe record keeping a priority. Organize your file and make it accessible for your attorney. Be available to discuss all aspects of your claim with your attorney. If you wish to claim damages beyond what your policy benefits provide, gather the evidence and present it in a compelling and organized manner for your attorney.

6. Be honest, straightforward, precise and nice.
When an insurer asks you a question, be honest, straightforward and precise in your answer. If you overstate your claim, it can be difficult to overcome later. For example, in disability insurance claims insurers often ask the insured to fill out a claim form that indicates the limitations and restrictions as recommended by your physician. Often, the form itself invites confusion, but for the sake of argument, let’s assume the form asks whether you can walk or drive. If your ability to walk is limited to two fifteen-minute intervals for a total of thirty-minutes in an eight-hour work day, say that. If you can drive only occasionally for 10 minutes a day, do not state you do not and cannot drive. Be precise.

Also remember to be nice, but firm. In other words, be polite even when the situation is incredibly frustrating, because everything is recorded and could potentially be focused upon in front of a jury. If you get angry, scream profanities and personal insults at the employee handling the claim, and threaten a lawsuit using legal terms you do not understand, a jury will likely find you less sympathetic. If you do become frustrated (you likely will), simply remind the insurer that you did everything asked of you, you paid your premiums, you submitted timely claim forms, you supported your claim and now it is time for them to live up to their side of the bargain. If you are stressed, calmly explain the importance of the benefits to you and your family and the financial stress you have endured as a result of the delay.

7. Watch it on social media!
We discuss this in detail in another blog, which you can read in full, here, but, if an insurer wants to know whether you are acting consistently with your condition of chronic fatigue, an inexpensive way for them to find out is by checking your social media. This can be problematic for two reasons: social media evidence can be easily misconstrued in the insurer’s favor and it may raise problems regarding attorney-client confidentiality. As to the former, if you say that you suffer from chronic fatigue, but then post videos to social media of you running a marathon, nobody is going to believe you. Of course, occasional running may be helpful for your condition, and you may have only been able to walk a third of a mile, but taken out of context, it will not be viewed favorably.

8. Be prepared for the long haul, including going to trial if necessary.
If an insurer denied your claim, you must be prepared for the long haul. Insurance companies are sophisticated enterprises that deal in the business of risk, and litigation suits them. They also have the resources to sustain litigation in the long-term, and depending on the circumstances of your case, this may be used to their advantage.

Accordingly, once you make the decision to sue an insurer, do so with the understanding that you may not see the wrongfully denied benefit(s) for years, (if ever).

The McKennon Law Group PC periodically publishes articles on its Insurance Litigation and Disability Insurance News blogs that deal with frequently asked questions in insurance bad faith, life insurance, long-term disability insurance, annuities, accidental death insurance, ERISA and other areas of law. To speak to a highly skilled Los Angeles long-term disability insurance lawyer at the McKennon Law Group PC, call (714)274-2413 for a free consultation or go to our website at www.mckennonlawgroup.com and complete our free consultation form today.

Court Reinstates Disability Benefits Because Insurer’s Vocational Expert Ignored Treating Physicians’ Opinions

When an insured becomes disabled and incapable of performing the duties of his or her occupation, long-term disability benefits can provide a much-needed form of substitute income. Given the potential importance of these disability insurance benefits, playing an active role in the claims handling process is integral to the success or failure of an insured’s claim. In marshaling medical evidence in support of a long-term disability, insureds often rely on the opinions of their treating physicians and rightfully so, as the support of a treating physician can make or break a claim. However, the support of treating physicians does not equate to automatic approval of benefits. Typically, an insurer will hire its own medical or vocational expert to evaluate a claim. Often, these experts reach an opposite conclusion, finding that the insured can perform the material duties of his or her own occupation and is not disabled within the meaning of the plan.

Recently, the District Court for the Eastern District of Michigan, in Julie Sun v. United of Omaha Life Ins. Co., 2:16-cv-11339-VAR-RSW, 2017 WL 3050477 (E.D. Mich. July 19, 2017), granted plaintiff’s motion for summary judgment, finding the plaintiff was disabled despite the insurer’s reliance on a vocational expert’s opinion in support of its denial. In this plaintiff-friendly opinion, the court openly criticizes the insurer’s “cherry picking” of evidence and failure to give the opinions of plaintiff’s treating physicians due consideration.

In Julie Sun, Ms. Sun filed a lawsuit under the Employee Retirement Income Security Act of 1974 (“ERISA”) to enforce and clarify her rights under a long-term disability plan issued to her employer by United of Omaha Life Insurance Company (“United”). Prior to her disability, Sun worked as a registered nurse caring for quadriplegic patients. Unlike most sedentary positions, her position demanded a significant level of physical exertion. Ms. Sun’s occupation required that she exert at a “medium” level, which included the ability to lift a maximum of fifty pounds and frequently lift or carry up to twenty-five pounds. Her specific position also required that she be able to operate a “hoyer lift” to move patients, which involved pushing, pulling and lifting about thirty pounds. In addition to assisting patients with daily care activities, such as bathing or dressing, she was also responsible for driving her patients to and from various appointments and other personal errands.

In December 2010, Ms. Sun injured her foot. As a result of her injury and other disabling conditions, she could no longer perform the duties of her occupation as a registered nurse. Unfortunately, Ms. Sun’s foot never healed, and she did not return to work.

After paying Ms. Sun’s long-term disability benefits for some time, United terminated her benefits effective April 6, 2013. In terminating her benefits, United relied on two reviews: a medical review conducted by a Medical Consultant and a Transferable Skills Analysis conducted by a vocational expert. Ultimately, United determined that “the medical documentation fails to substantiate a condition or conditions that would render [Ms. Sun] disabled from performing a Gainful Occupation of a sedentary strength demand.”

The court, however, did not find United’s analysis convincing, noting that the vocational report was “not supported by a reasoned explanation based on the evidence.” Particularly troubling were “United’s findings that Sun can sit for 6 hours in an 8-hour workday and that she can lift less than 10 pounds frequently.” The court found that these statements directly contradicted the reports provided by two of Ms. Sun’s treating physicians, which together supported disability from even sedentary or light work on a sustained basis. On appeal, United’s analysis did not improve, merely restating its position that its “review of the file does not find support for restrictions or limitations which would prevent [Ms. Sun] from performing the material duties of a sedentary occupation from April 6, 2013, and ongoing.”

Contrary to United’s findings, the court concluded that the administrative record did support Ms. Sun’s disability. The court criticized United’s conduct, including the way it “cherry-picked” the opinion of its own, non-examining vocational consultant and failed to give the opinions of Ms. Sun’s treating doctors due consideration. In its opposition to Ms. Sun’s motion for summary judgment, United further argued that its denial was based in part on Ms. Sun’s expected medical improvement. The court found this rationale similarly unconvincing. Although United may have based its termination on “aspirational language in medical reports” it did so while ignoring “ample evidence of disability based on examinations and findings.” Accordingly, the court granted summary judgment in favor of Ms. Sun, finding United’s denial arbitrary and capricious and Ms. Sun disabled within the meaning of the plan.

If your claim for retirement, health, life, short-term disability or long-term disability benefits has been denied, you can 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.

Robert McKennon and Stephanie Talavera Publish Article in the Los Angeles Daily Journal: “Ruling Clears Up Attorney Fees in ERISA Cases”

Unlike a state law claim for benefits under an individual insurance policy, an ERISA claim generally limits recovery to benefits due under the plan: prejudgment interest, declaratory or equitable (non-monetary) relief and attorneys’ fees. Accordingly, looming attorneys’ fees serve as an important financial disincentive for an ERISA plan administrator’s misconduct. In today’s edition of the Los Angeles Daily Journal, Robert J. McKennon and Stephanie L. Talavera of the McKennon Law Group PC discuss the importance of ERISA attorneys’ fees and how a recent case positively impacts the ability to recover those fees. In a column entitled “Ruling Clears Up Attorney Fees in ERISA Cases,” we evaluate the effect of the new Ninth Circuit Court of Appeals case, Micha v. Sun Life Assurance of Canada, Inc., 2017 DJDAR 10411 (Nov.1, 2017) and explain how the decision provides ERISA plan participants, beneficiaries and fiduciaries with a solid foundation for recovery of certain attorneys’ fees in the future.

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