Frankel & Newfield, P.C.

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March 2011 Archives

UNUM Abused Discretion in Terminating Claim

A Federal District Court judge has found UNUM to have abused its discretion in terminating long term disability insurance benefits to a claimant, who was on a disability claim for orthopedic difficulties following a motor vehicle accident. The Court determined that UNUM failed to adequately consider the nature of the claimant's occupational duties, instead simply focusing upon the physical demand requirements of a generalized occupational class. This is a common technique employed by long term disability insurance companies, who focus only upon a physical functional capacity to perform work generally, rather than appreciating the actual work requirements, or considering the non-physical, cognitive requirements of a particular occupation.

Another Horror Story of Abuse of Discretion Standard of Review

One of the most challenging aspects of disability insurance claim litigation is that the case can literally turn based upon what legal standard a court chooses to apply. These cases often would be claimant victories if a Judge was decided the case on a de novo standard of review (meaning a full review of the evidence), as opposed to the abuse of discretion or arbitrary and capricious standard (which adjudicates whether the decision is supported by substantial evidence or was erroneous as a matter of law).

Why Do Courts Reward Insurers who Fail to Comply with ERISA?

One of the more frustrating aspects of ERISA disability insurance practice is where insurers are not taken to task more forcefully where they fail to comply with ERISA and the regulations governing ERISA disability claim. As one example, an insurer is obligated to issue a benefit determination on an appeal of a claimant's adverse benefit determination (a claim denial or claim termination) within a proscribed period of time. This time frame is usually within 45 days, with the potential for a second 45 days if the insurer identifies special circumstances.

Science, politics and insurance companies make terrible bedfellows: Chronic Fatigue Syndrome and Long Term Disability Insurance

Two years ago, a study found a link between XMRV, a retrovirus, and Chronic Fatigue Syndrome. A recent article in the Wall Street Journal examines the conflict that exists when patients become advocates, pressing government officials and campaigning to press scientists and governments to get busy on researching a cure. Scientists are warning that in some instances, patient advocates rushing research can backfire.

Court Reinstates Hartford Life Claimant

An Ohio Federal Court recently ordered a claimant to be reinstated to active benefits, where she suffered from dumping syndrome, and chronic fatigue, following treatment for cancer. Hartford had terminated her claim at the transition of disability from own occupation to any occupation benefits.

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