I was quoted in in the Connecticut Law Tribune this week regarding the recent ERISA case of Haddock v. Nationwide Life Insurance Co. in which a class action settlement was approved with a payment of $140 million to class members, and attorneys’ fees of $49,000. The plaintiffs in the case asserted that the company administering their 401k plans based on whether the funds would pay the company fees rather than choosing funds that would have the lowest fees for participants.
Here is a link to the article (free registration required). Here’s the part where I was quoted:
David Rintoul, of Brown, Paindiris, & Scott's Glastonbury office, was not involved in the case but focuses on ERISA issues and authors an ERISA blog. Rintoul explained that this litigation was not between individual investors and Nationwide; instead, the plaintiffs were the executives who ran the corporate 401(k) plans. For instance,
he said if X,Y,Z machine shop had a 401(k) plan and arranged with Nationwide to offer it to employees, Nationwide, in choosing the investment product for the employees, chose which mutual fund which offered to share the most revenue.
"So it's essentially a kickback," said Rintoul. "It creates the appearance Nationwide was choosing who would give it the best deal rather than the fiduciary duty of doing what was best for the plans and ultimately the participants."
Rintoul said the landscape has changed significantly since 2001 when this case began. He said there are more requirements now regarding fee disclosures.
"To some extent, Nationwide addresses an issue [in the settlement] that shouldn't exist anymore," said Rintoul.
While this blog is primarily focused on those with long-term disability benefit claims, my ERISA practice covers all areas of ERISA, including breach of fiduciary duty cases. If you have any potentional breach of fiduciary duty cases under ERISA, please call and I would be happy to discuss it.
Requesting reasonable accommodation can help get LTD benefits, or win an appeal of a denial of LTD benefits. In my prior post, I discussed how exercising your rights under the Americans with Disabilities Act to request reasonable accommodation can help you remain in your job when your medical condition impairs your ability to perform some aspects of your job, but you can still perform the essential functions of your position. In this post, I’ll discuss the effect a request for reasonable accommodation can have on your application for disability insurance benefits under either an ERISA group LTD policy or a private disability policy under Connecticut law.
Applying for reasonable accommodation when you are still working can help you two ways:
- First, under some disability policies, you are not considered disabled if you can so your job with reasonable accommodation. If there is a reasonable accommodation that the insurer believes would allow you to keep doing your job, then you won’t be considered to be disabled. For instance, if the insurer's physician decides you can do your job if you get up and move around every hour, then you won’t be disabled even if you can’t sit all day. If, however, you have tried the reasonable accommodation when you are still working and it didn't work, you will have a basis to refute the insurer’s reasonable accommodation argument.
- Second, doing everything you can to stay in your job, including requesting reasonable accommodation, shows the insurer that you are only applying for LTD benefits because can’t work, not because you don’t want to work. Insurers are always on the watch for claimants who are interested in “secondary gain,” that is, patients who report impairments to get some other benefit from claiming impairments (such as getting LTD benefits) rather than to receive treatment. You have to be particularly careful of this if your medical records contain statements that you hate your job, it is causing you stress, you don’t like your supervisor, or you want to spend more time with you kids. You don’t want to raise issues about your motivation for applying for benefits.
As discussed in the prior post, reasonable accommodation can be complicated, and depends very much on your particular impairments and the actual requirements of your particular position. Having an attorney who knows federal and Connecticut employment laws, and who can handle a Connecticut LTD appeal or a LTD suit in the Connecticut district court can be helpful. Whether you use an attorney or not, asking for reasonable accommodation while you are still working can help you qualify as disabled, and will certainly help show that you aren’t applying for benefits simply to avoid working.
Reasonable accommodation is a right established by the Americans with Disability Act or “ADA.” The ADA says that an employer cannot discriminate against an employee who is able to perform the essential functions of a position with or without reasonable accommodation. There are enough concepts stuffed into that one phrase that multi-volume treatises can, and have, been written about the meaning of each of the words. This post can only give the most basic introduction to the law of this area, but it will give you some idea of how the reasonable accommodation part of this law can help you keep working.
The ADA requires employers to eliminate job functions that are not essential functions of the job or modify the way they are performed, so long as the employee can still perform the essential functions of the position. When an accommodation will be considered “reasonable” depends crucially on the particular job. Eliminating a requirement of lifting a boiler might be reasonable if the workplace has several other employees who can do it instead, but it might not be reasonable if the employee works alone.
Among the types of reasonable accommodations that are helpful to those with cognitive and physical degenerative positions include:
- A later start time if medications or a condition make it difficult to get up in the morning;
- A place to take a nap in the afternoon;
- Communicating with a supervisor by email if oral instructions are difficult to organize;
- Work at home, full-time or part-time, which is one of the most useful accommodations, but one of the hardest ones to get;
- Elimination of travel;
- No required overtime.
Many of these can be difficult to get, especially since many employer still don’t realize how much the ADA requires them to do to accommodate disabilities. For instance, an employer in Fairfield County recently refused working from home as a reasonable accommodation because “then everyone will want it then.” Giving something to someone with a disability that everyone else doesn’t get is the essence of a reasonable accommodation under the ADA. Connecticut
Requesting reasonable accommodation can also put you in a better position when you apply for long-term disability benefits or in appealing a denial of long-term disability benefits. I will discuss the issue in my next post, but make sure you consider the effect on your long-term disability insurance claim or appeal while discussing reasonable accommodation with your employer.
Having a lawyer to negotiate reasonable accommodation can be useful, as a lawyer can remind employers what they are required to do, and advise you about what is possible under federal and Connecticut state law, especially one who can handle the accommodation request in a way to put you in the best position possible in a Connecticut long-term disability claim or Connecticut long-term disability appeal. This blog will discuss other issues involving the ADA and reasonable accommodation, and their effect on long-term disability insurance claims. Make sure you, and your lawyer, keep it in mind as a way for you to keep working for as long as you want to before you have to apply for disability benefits.
Other Posts in the Diagnosis to Disability
Diagnosis to LTD Application: Six Things to Consider
The National MS Society has a great on presentation on dealing with cognitive deficits, that is, difficulties with thinking, remembering and concentrating, in the work place. The presentation is geared to MS, but would also apply to any degenerative cognitive disease, such as Alzheimer's disease, fronto-temporal lobe disorders, Parkinson's, and side effects of opiods and other medications taken for chronic pain.
Cognitive deficits from degenerative diseases can present difficulties with long term disability benefit claims. In the early stages, someone may look physically healthy, but have started to suffer cognitive problems. Your boss may doubt that you are disabled if he sees you working out at the gym after you requested a reduced work schedule due to cognitive issues resulting from fatigue. To address the potential doubts, make sure you tell your doctors about the difficulties you are having with cognitive issues. You consider getting a neuropsychological exam to provide a baseline for neurological function so you can prove that your cognitive difficulties have in fact declined.
One of the most difficult aspects of showing a disability from Chronic Fatigue Syndrome (CFS or ME/CFS) is convincing the insurance company that the condition was properly diagnosed. No definitive medical test exists, leading insurers to deny LTD claims based on CFS because of the lack of objective medical evidence. I discussed some of these issues in an earlier post about the recent proposal that the condition be called Systemic Exertion Intolerance Disease or SEID.
A study recently established that there are differences in the immune system that are associated with CFS. Patients who had been diagnosed for less than three years had significant activation of cytokines, which influence inflammation, and patients who had been diagnosed for more than three years had dampened cytokines activity. Healthy subjects had neither condition.
While the study does not have current clinical significance, it holds out the hope of developing a definitive blood test for CFS. Here is a link to a New York Times article on the study. Here is a link to a Reddit "AMA" with Mady Hornig, who worked on the study. She answers many questions regarding the study and CFS in general.
Diagnosis is important, but as stated repeatedly in this blog, you must focus on the impairment, rather than the diagnosis. See my prior post on this issue. But, getting over the diagnosis hurdle would be a big help for an initial application for long-term disability benefits, and appeal of a LTD denial, or a lawsuit to recover LTD benefits.
Julie Rehmeyer has an Op-Ed piece in the New York Times discussing the hostility of doctors to the Chronic Fatigue Syndrome diagnosis. She discusses comments by physicians to the Institute of Medicine report, discussed in this blog here, demonstrating this hostility. She states that until there are effective treatments of CFS and a definitive diagnostic tests, some doctors will never accept the reality of the diagnosis. The best existing test, the two-day exercise-to-exhaustion challenge, can make CFS much worse for an extended period. She discusses some good developments, like treatment with Rituximabe. She calls for more federal support to find both better diagnostic tests, and more effective treatment.
If some doctors are doubtful about CFS, you can imagine how doubtful insurance companies are about the reality of the condition, and the impairments resulting from it. You must focus on the impairments you suffer from, and specifically how it affects your ability to work. See my blog post on focusing on the impairment, and not the diagnosis.
With conditions like CFS, were diagnosis is not based on something definitive like a blood test, and quantifying how a condition like fatigue or cognitive issues is difficult it can be useful to have a long-term disability lawyer to assist with an appeal or an initial claim.. Connecticut has many excellent physicians experienced with CFS, and a Connecticut long term disability attorney can help in securing the cooperation of the physicians that is crucial to a successful appeal of a denial of LTD benefits. Working together with your doctors and you, we can do much to overcome the hostility of doctors, and disability insurance companies, to the condition.
T
he MS Society has an article reporting on a study of what other medical conditions are commonly associated with MS, called a "comorbid condition" or "comorbidities." The study identified many areas where more research is needed, but its preliminary findings were that the five most prevalent disorders occurring alongside MS were depression, anxiety, high blood pressure, high cholesterol, and chronic lung disease.
Comorbidities can cause issues with applying for long-term disability benefits or in an appeal of an LTD denial. With all claimants suffering from multiple conditions, insurance companies tend to look at each condition in isolation: they will get a report from a psychiatrist that the depression and anxiety is not disabling, a report from a neurologist that the cognitive issues are not disabling, and a report from a neurosurgeon that spinal stenosis is not disabling. The insurer will then conclude that the claimant is not disabled, without ever considering the combined effect of the different conditions. Some of the multi-state settlements with insurers regarding unjustified denials of long-term disability have required that the insurers consider the effect of comorbidities together.
Comorbid physicial and psychological conditions also create a problem if the plan has a limited period to pay disabilities resulting from psychological or nervous conditions. If there is such a limitation, the insurer may argue that the disability is really the result of the depression and not the associated MS, and discontinue benefits after 24 months. As shown by the Connecticut LTD case of Kruk v. Metro. Life Ins. Co., 2013 U.S. Dist. LEXIS 35637, 12 (D. Conn. Mar. 13, 2013), involving lupus and depression, the insurer may be able to deny benefits on this basis.
If you are depending on a combination of conditions to establish disability, or you need to show that you are disabled disregarding a psychiatric condition, you situation is complicated enough that you probably want to have a long-term disability lawyer to represent in the initial appeal of benefits, and certainly in any appeal.
