Florida Insurance Law Blog : Florida Insurance Lawyer & Attorney : Mark Nation Law Firm : Orlando, Longwood, Gainesville

You are much more likely to become disabled during your work life than to die during your work life. Thus, disability insurance is very important to protect you and your family from financial ruin in the event of a disability. But, what happens when you insurance company denies your disability claim?

Short-term disability (STD) policies usually pay you for a short period of time, say six months, to help you during short-term illnesses or accidents. Long-term disability (LTD) policies provide coverage for longer periods. Policies vary, but a typical LTD will pay you for the entire period of disability or until a particular age, say 62 or 65.

There are two types of disability policies – “own-occupation” and “any-occupation.” Own-occupation policies generally define disability as the inability to perform the material duties of your own occupation at the time you become disabled. Any-occupation policies generally define disability as the inability to perform any occupation.

Florida law requires a disability policy to be an own-occupation policy for at least the first 12 months of disability. After 12 months, if it was designed to be an any-occupation policy, it will become so.

Many insurance companies have tried to equate the term “totally disabled” with “totally helpless.” In effect, they will argue that you are not totally disabled unless you are totally helpless. In Florida, you will be considered totally disabled under an own-occupation policy if you are unable to perform the material and substantial duties of your regular occupation. Under an any-occupation policy, you will be considered totally disabled if you are unable to perform any work or occupation for which you are reasonably qualified or trained. These are minimum standards in Florida. An insurance company can write a policy that is more favorable to the insured, but not less favorable.

Suppose an insurance company denied a disability claim by asserting that there is some menial job you can do. Courts have determined this is not sufficient grounds for the insurance company to deny your claim. The court will take into consideration the wages you earned before your disability in comparison with the wages of the job the insurance company is proposing that you can now do. Courts have said that even if you can perform some job, you should be entitled to recover disability benefits if you cannot earn a wage that approaches “the dignity of a livelihood.”

One court has recognized that: “Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental incapacity. Although the achievements of disabled persons have been remarkable, we will not adopt a strict, literal construction of such a provision which would deny benefits to the disabled if he should engage in some minimal occupation, such as selling peanuts or pencils, which would yield only a pittance. The insured is not to be deemed “able” merely because it is shown that he could perform some task.”

If your insurance company denies your claim or terminates your benefits, you immediately should contact an attorney who handles disability claims. Such an attorney should agree to review your case for free. Most importantly, a Florida statute requires the insurance company to pay your fees and costs if you are successful against your insurance company. This statute is a powerful tool in leveling the playing field between you and the insurance industry.
 

At The Nation Law Firm I will look at any disability claim denial for free.  If I file a lawsuit, it will be on a contingency fee basis, and in many cases, I am able to force the insurance company to pay our hourly fees and costs.  The insured never has to pay our fees and costs out of pocket. 

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Recently, we prevailed in federal court on a contract interpretation issue under an ERISA short term disability insurance policy. 

Due to an illness, our client could not perform some of the essential duties of her job. She could perform some of her duties, she just couldn’t perform them all. Our client filed a claim for STD benefits under her ERISA plan. The insurance company denied the claim, asserting that she could still perform some of the material duties of her job, and therefore she did not meet the definition of “disabled” under the insurance policy.

We filed suit in federal court. On summary judgment, the Court found agreed that an insured could be entitled to disability benefits if she could show that she was disabled from only one of the essential duties of her occupation. Plaintiff cited Lain v. UNUM Life Insurance Company of America, 279 F.3d 337 (5th Cir. 2002), abrogation recognized on other grounds, Holland v. International Paper Co. Retirement Plan, 576 F.3d 240 (5th Cir. 2009) in support of her position.

The AT&T Plan at issue defined disability as follows:

“Total Disability” or “Totally Disabled” for short-term disability means that because of Illness or Injury, you are unable to perform all of the essential functions of your job or another available job assigned by your Participating Company with the same full-time or part-time classification for which you are qualified.

The Court found the phrase “all of the essential functions” ambiguous. The Court rejected the Defendants’ argument that if plaintiff could do one of the essential duties of her job, then she was not disabled. Instead, the Court found that if, for example, there were 10 material duties of her occupation, if she was unable to do even one of those duties, then she would be disabled as defined by the Plan.

Litigation continues.  In cases like this we, represent the policy holder on a contingency fee basis.  There are no fees or costs unless we win, and if we do win we will attempt to force the insurance company or plan administrator to pay our fees and costs under 29 U.S.C. Section 1132(g). 

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Life Insurance Company of North America (“LINA”) was recently ordered to continue paying disability benefits under an ERISA governed Plan. In that case, the our client was employed by UBS as a senior sales brokerage assistant earning over $100,000.00 a year. She left work as a result of a heart condition and fibromyalgia which caused severe pain, fatigue and shortness of breath. LINA approved her claim in 2005 and began paying benefits. Benefits were terminated in 2007 based on LINA’s finding that our client was not disabled from performing her own sedentary occupation.

In its denial, LINA demanded that its insured provide it with “objective” medical evidence of disability.

Under the applicable ERISA standard of Review, the Court found that it was unreasonable for LINA to require “objective” medical evidence. The Court found that LINA was required to engage in a meaningful dialogue with the claimant to advise precisely what evidence was necessary in order to support the claim. With respect to fibromyalgia, a condition characterized primarily by subjective complaints, it was noted that were no objective tests to measure plaintiff’s inability to function due to pain. In fact, the Court found that LINA’s request for objective medical evidence was a request for evidence that was not available.

The Court also criticized LINA’s attempt to terminate benefits when there had been no change in the our client’s condition. It noted that her cardiac condition had remained essentially static during the time benefits were paid and that LINA could not explain why benefits should be terminated in 2007 when there had been no change in her condition.
 

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Our client was insured under a self-funded long term disability plan which was administered by Aetna Life Insurance Company. Our client filed an LTD claim based on his anxiety, panic disorder and agoraphobia. Aetna initially approved the claim, but later terminated benefits and denied the claim.

We filed suit in Federal Court and the judge found that Aetna’s decision denying the LTD benefits was “arbitrary and capricious.” In its decision, the Court noted that our client had been approved for Social Security Disability benefits. Yet, Aetna did not consider the Administrative Law Judge’s findings when it terminated LTD benefits. This is in spite of the fact that the Plan requires its insureds to file for Social Security Disability, and also allows the Plan to take an offset for Social Security Disability benefits.

Further, the Court also found that Aetna had failed to advise the claimant that he should submit the Social Security records as evidence in support of his disability claim.

Finally, the Court found that Aetna acted arbitrarily because of its failure to have its own medical reviewers physically examine Mr. Roush as opposed to simply reviewing medical records. The Plan specifically allowed Aetna to require a physical examination.

As a result, the Court awarded benefits and remanded the matter to Aetna to continue paying long term disability benefits.

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The Nation Law Firm recently filed an administrative appeal for certain disability benefits under the terms of the Harris Corporation Disability Plan. Plaintiff was successful in this appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal under an ERISA plan against Principal Life Insurance Company. Plaintiff prevailed in the appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal on behalf of a claimant. Benefits were sought from the Life Insurance Company of North America. Plaintiff prevailed and benefits were reinstated.

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We recently filed a lawsuit seeking certain short term disability benefits under the terms of the Federal Express Short Term Disability Plan. Litigation continues.

 We also recently filed suit seeking short term disability benefits under the terms of the Blue Cross and Blue Shield of Florida Short Term Disability Plan. Plaintiff was an employee of Blue Cross and Blue Shield of Florida. Litigation continues.

 In another case, we filed suit seeking long term disability benefits under an ERISA governed plan. Suit was filed against Connecticut General Life Insurance Company.

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The Nation Law Firm recently filed a complaint seeking disability benefits on behalf of a pastor who became disabled. Suit was filed against Unum Life Insurance Company of America. Although the matter was not governed by ERISA, the case was removed to federal court allegedly based on diversity. Plaintiff is seeking to remand the case arguing that the court does not have jurisdiction based on the amount in controversy at the time the complaint was filed.

In another case, we filed suit on behalf of a plaintiff seeking benefits under the National Rural Electric Cooperative Association Group Benefits Program. Plaintiff is seeking long term disability benefits pursuant to the terms of the plan. Litigation continues.

We also recently filed suit for disability benefits payable under the terms of an individual disability policy. Plaintiff became disabled and MetLife, the insurer, argues that benefits are not payable based on plaintiff’s medical condition. Plaintiff suffered from rheumatoid arthritis and other conditions.

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I filed suit today against Standard Insurance Company on behalf of a former firefighter whose LTD benefits were recently terminated.  After paying LTD benefits for two years, the insurer has advised my client that they are cutting off the benefits.  As with most of these cases, if I win, the insurance company must pay all or my fees and costs, and if I lose, I'll work for free. 

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In Holmstrom v. Metropolitan Life Insurance Company, 2009 WL 901127 (N.D. Ill. March 31, 2009), Holmstrom sued Metropolitan for terminating her long term disability payments.  Metropolitan counterclaimed seeking reimbursement from Holmstrom for an overpayment of LTD benefits which occurred when Holmstrom received a payment for back benefits from social security disability.  (The Metropolitan plan contained a provision that reduced the monthly LTD payments by the amount received from social security disability). 

The only way Metropolitan would be allowed to proceed on its counterclaim is if its claim was equitable in nature.  If Metropolitan's claim was not equitable in nature, then the court would not have jurisdiction.  In a lengthy analysis, and based on the Supreme Court's determination in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), the Illinois district court determined that Metropolitan's claim was equitable in nature and granted summary judgment for Metropolitan on its counterclaim.

Holmstrom also argued, unsuccessfully, that Metropolitan did not assist her in obtaining the social security disability benefits, and therefore, Metropolitan waived its right to claim the overpayment.  While recognizing the potential viability of such a claim, the court stated that Holmstrom could not rely on such an argument where the LTD plan did not require the administrator to assist the beneficiary in seeking social security disability benefits. 

When evaluating a request by an LTD carrier for reimbursement, a careful analysis of whether the claim is actually "equitable" is foundational.  This case, along with Sereboff are essential starting points in that analysis. 

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We recently filed suit against Hartford Life and Accident Insurance Company for denying our client's claim for Long Term Disability benefits. 

Our client was a salesman working for a chemical company.  He suffered from intractable pain, and applied for and received short term disability benefits.  He then received long term disability benefits for 24 months.  Then, suddenly, his disability benefits were terminated based on Hartford's finding that even though he was disabled from his own occupation, he was not disabled from all occupations. 

Contrary to Hartford's opinion, the medical evidence supports the fact that our client is unable to work at any occupation. 

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Our client's Long Term Disability claim was denied by Hartford.  At the time he became disabled, our client worked as a cruise ship engineer working for Disney Worldwide Services, Inc. He suffered from a severe stomach condition and was unable to work. Litigation continues.

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