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In its September 7. 2021 issue, the Los Angeles Daily Journal published an article written by the McKennon Law Group PC’s Robert J. McKennon and Larry J. Caldwell. The article addresses McHugh v. Protective Life Insurance Co., a new case in which the California Supreme Court held that the grace and notice periods in Insurance Code Sections 10113.71 and 10113.72 apply to life insurance policies issued and delivered in California before January 1, 2013, as well as to life insurance policies issued, delivered, or renewed after January 1, 2023. McHugh provides significant new protections against loss of life insurance coverage for the policyholders and beneficiaries on all life insurance policies issued or delivered in California prior to or after January 1, 2013. For a full view of the article, take a look at our blog, here.
Los Angeles Daily Journal Publishes Article by Robert J. McKennon Entitled “Ruling Clarifies who Qualifies as an ERISA Fiduciary”
In the April 21, 2021 issue of the Los Angeles Daily Journal, the Daily Journal published an article entitled “Ruling Clarifies who Qualifies as an ERISA Fiduciary” written by the McKennon Law Group PC’s Managing Shareholder, Robert J. McKennon. The article addresses a recent case by the Ninth Circuit Court of Appeals, Bafford v. Northrop Grumman Corp. The case involved repeated representations by the plan that retirement benefits would be $2000 per month when they were, in fact, only $807 per month. While the court held that the ministerial conduct of a third-party delegee who made incorrect pension calculations pursuant to a formula provided to it and transmitted them to the plaintiffs did not constitute fiduciary actions; it also held that pension plan participants could bring state-law professional negligence and negligent misrepresentation claims against non-fiduciaries who make representations regarding plan benefits. The ruling confirms that such claims against non-fiduciaries engaging in ministerial acts are not preempted by ERISA. The ruling provides an important additional avenue for relief for plan members who are harmed as the result of such repeated gross misrepresentations of plan benefits. For a full view of the article, take a look at our blog, here.
The Current Wave of “Long-Haul” COVID-19 Patients Likely Means an Overwhelmed Social Security Disability System and More Long-Term Disability Claims
Even after the current COVID-19 pandemic is declared to be over, many people – possibly up to 10% or even 15% – of COVID-19 patients may continue to display symptoms of the virus beyond the couple weeks for which most people experience them. With 29 million Americans already contracting COVID-19, the number of people in the U.S. who may suffer from the virus for an elongated span of time is substantial. According to a recent Los Angeles Times article by Michael Hiltzik, the emergence of long-haul COVID-19 cases during this pandemic is likely to result in a drastic increase of long-term disability claims and a corresponding delay in the processing of those claims.
The Social Security disability program currently serves about 9.6 million people, including 8.1 million disabled workers and 1.5 million dependents of those workers. Given the volume of long-term COVID-19 cases which have and continue to present themselves in the U.S., if even a fraction of those affected by COVID-19 attempt to secure disability benefits through Social Security, the system may be utterly overwhelmed. Even at its most efficient, anyone who has applied for benefits will likely describe the process as slow, confusing and frustrating, at the very least. For the system to be inundated with possibly several times as many applicants as the system normally sees may be catastrophic for those with no alternative financial support.
Compounding the problem, access to the already-overburdened system is currently even more limited than it was prior to the pandemic due to the closing of Social Security field offices. While a portion of applicants are eligible to apply for benefits online, the vast majority are not so eligible; and even those eligible for online applications often require assistance to even attempt to navigate through the daunting, complex, labyrinth-like application process.
While the thought of facing the Social Security application process may drive away those who have other means of support, for many Americans, the disability benefits provided through Social Security will be vital to their ability to obtain even the most basic of human needs. Thus, the prospect of having an application take several months or longer to even begin to be reviewed will not dissuade those in dire need from submitting applications. When the field offices begin to re-open, the net result may very well be a backup of applications for which the system could not possibly be prepared, given the glacial pace of the machine on even its best day in non-pandemic circumstances.
Those able to have their applications reviewed will still face an uphill battle: the symptoms of long-haul COVID-19, which include chronic fatigue, nonspecific pain, headaches and “brain fog” are difficult to quantify and do not show up in medical tests, resulting in many denials of benefits based on a lack of tangible evidence regardless of the amount of pain or fatigue applicants actually experience.
While the Social Security Administration claims it evaluates applications based on function over diagnosis and that workers unable to work should receive benefits. It has also created a database of common symptoms of long-haul COVID-19, which will provide some guidance for judges ruling on appeals of benefit denials. But getting to a point where a worker’s appeal is reviewed by a judge can already take months or years, even without a massive back-up of applications.
Only time will tell how well the Social Security Administration handles the issues presented by long-haul COVID-19. If the current state of the system is an indicator, we anticipate long-haul COVID-19 workers applying for disability benefits to experience as much fatigue and headache from the application process as they do from the virus itself.
We believe this issue is not confined to the Social Security Administration. Along with Social Security applications will likely come a corresponding increase of claims for short-term disability and long-term disability benefits by workers through their respective insurance providers. Additionally, we believe that with such an increase in applications, both the Social Security Administration and insurance providers will be motivated to find any justification for denying workers benefits due to the impending surge in applications and the inevitable financial impact payment of so many claims could have for them. Accordingly, we recommend that if you have an individual disability policy or a group disability policy obtained through your employer, you should review your policy terms to determine what benefits, if any, may be available in the case you contract COVID-19 and have a resulting disability.
The experienced attorneys at McKennon Law Group PC have a long and successful track record of representing disability claimants in all aspects of the claim process, from appealing the initial denial of benefits and, if necessary, through each stage of litigation. If you have been denied benefits under an employee benefit plan, contact our office today for a free initial consultation.
The California Department of Insurance Recently Created a Long-Term Care Insurance Task Force, But It Will Not Solve Insurer Claim Denials
According to the California Department of Insurance, most Californians cannot afford nursing home care – at an average cost of $6,000 per month – and are worried about the cost of growing older. Purchasing a long-term care insurance policy is one solution to this dilemma facing an aging California population. Long-term care insurance can be invaluable to elderly persons who can no longer care for themselves. These insurance policies typically cover nursing home costs and in-home care at your own residence if you are unable to care for yourself. But even if you are one of the lucky few that has LTC insurance, unfortunately, we regularly see long-term care insurers that do not honor their policy obligations.
The California legislature recently created a Long-Term Care Insurance Task Force within the Department of Insurance. California Insurance Commissioner Ricardo Lara just appointed six members to the Task Force with preeminent credentials. The Task Force will explore how to design a statewide affordable long-term care insurance program including whether an increase in payroll taxes might allow for the program to be publicly subsidized. An article on the Task Force is copied below. You can learn more about the Task Force at http://www.insurance.ca.gov/0500-about-us/03-appointments/ltcitf.cfm#about.
Hopefully, the Task Force will result in long-term care insurers honoring their contract obligations more frequently. That is doubtful in our opinion. That is not the goal of the Task Force. Moreover, insurers are in the business of making money. To do that successfully, an insurer must take your premiums and pay out as little in claims as possible. In our experience, Department of Insurance actions usually do not change an insurer’s conduct in a particular claim.
So, what should you do if your long-term care insurer wrongfully denies your claim? Relying on this new Task Force will not change your claim denial, and the Task Force is not even scheduled to create a potentially publicly subsidized long-term care insurance program for several years. You should hire an experienced California insurance bad faith or ERISA lawyer to represent you. If your claim for long-term care, long-term disability, life, accidental death, 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.
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McKennon Law Group PC Founding Partner, Robert J. McKennon, Receives 2021 “Super Lawyer” Designation and Receives Rare 10-Year “Super Lawyer” Designation
McKennon Law Group PC is proud to announce that its founding partner, Robert J. McKennon, has been recognized as one of Southern California’s “Super Lawyers” for Insurance Coverage and appeared in the 2021 edition of Southern California Super Lawyers magazine. Mr. McKennon has been recognized as a “Super Lawyer” for 11 years in a row, and in 2020 received a special designation as a 10-Year “Super Lawyer,” a rare designation achieved by less than 1% of attorneys.
Each year, Super Lawyers magazine, which is published in all 50 states and reaches more than 14 million readers, names attorneys in each state who attain a high degree of peer recognition and professional achievement. The Super Lawyer designation is given to less than 5% of lawyers nationally after being nominated and voted on by their peers. Mr. McKennon has received this Southern California Super Lawyer designation every year from 2011 through 2021.
Mr. McKennon and his firm have also received numerous other awards and recognitions (click here).
Los Angeles Daily Journal Publishes Article on January 4, 2021 by Robert McKennon Entitled “ERISA Ruling Expands Protection for Employees, Beneficiaries”
In the January 4, 2021 issue of the Los Angeles Daily Journal, the Daily Journal published an article written by the McKennon Law Group PC’s Robert J. McKennon entitled “ERISA Ruling Expands Protection for Employees, Beneficiaries.” The article addresses a recent case by the Ninth Circuit Court of Appeals, Beverly Oaks Physicians Surgical Center, LLC v. Blue Cross and Blue Shield of Illinois, which found that while anti-assignment provisions in ERISA matters are valid and enforceable, plan administrators can waive the right to assert and enforce these provisions when their actions are inconsistent with the provision or they are aware that the claimant is acting as an assignee. This opinion will greatly benefit employees who have medical insurance and sign agreements with their medical providers to assign their rights to collect payment from their health insurers. The Ninth Circuit’s opinion will be not only useful for claimants/employees who have health insurance claims, but also those who have disability, life or other employee benefit claims as the decision in Beverly Oaks will serve to prevent employers and insurers from making misrepresentations regarding ERISA plan terms and/or taking actions inconsistent that which they had previously represented.
