Take a look at our February newsletter!
For The Ambitious Advocate BRIEF RECESS
FEBRUARY 2023
FROM THE LAW OFFICES OF J. PRICE MCNAMARA
Wendy’s Hamburgers and Daiquiris on a Roof CELEBRATING 30 YEARS WITH MY WIFE SUSAN
Every year, millions of couples celebrate their love for one another in February. They write lovely cards, go to a special restaurant, or lavish each other with gifts. However, my wife Susan and I don’t have any special Valentine’s Day traditions — because February is our anniversary month! While other couples celebrate a holiday, Susan and I will celebrate being married for 30 years . So to honor three decades together, I’d like to share the story of how Susan and I met. It all started at Wendy’s. Yes, you read that right: Wendy’s — the hamburger joint. During this period of my life, I spent most of my time studying for the bar exam. And by a lot of time, I mean so much time that I had to grab quick meals at fast-food restaurants like Wendy’s. I also spent so much time studying that I carried around a huge blue binder to study on the go, like while waiting in line at Wendy’s. So, one day I was in line with my blue binder, reviewing my notes, when I noticed a woman my age who also was studying out of a binder in the Wendy’s line. I walked over to her and said, “You must be in law school if you’re studying in line at Wendy’s.” That woman was Susan. She turned to me and said, “No, I’m actually studying for medical school.” We each got our fast-food meals and took a seat at a table. We started chatting, and she told me she had a friend from her hometown of Baton Rouge who was looking for an apartment in the New Orleans area that allowed dogs. At the time, my sister owned a “shotgun double” house and was looking to rent out one side. My sister was perfectly fine with a dog living there; the place even had a backyard the dog could use. Susan gave me her number to pass along to my sister. Later that night, I called Susan, and we talked about everything besides my sister’s house for rent. We talked about school and our lives. It was a wonderful conversation.
From that point on, Susan and I became fast friends. We developed a ritual of calling each other around 10 p.m. because we knew we both would be studying during that time. We’d call and say, “Hey, stop studying and let’s go get a daiquiri.” So that’s what we did. We’d get daiquiris and sit on the roof of the daiquiri joint until midnight, just talking and enjoying each other’s company.
After hanging out like this a few times, we started officially dating. A year later, I proposed to Susan on a pier before we left on a fishing trip.
Susan and I were married in 1993, and we have three wonderful children. We lived in New Orleans until 2005, when Hurricane Katrina hit Louisiana, and we relocated to my wife’s hometown of Baton Rouge. It’s been absolutely wonderful living here, and we raised our children, started new jobs, and began a new life together in this city. Fast forward to present day, our oldest is in her residency for med school and is recently married. Our middle son is in law school, and our youngest son is in the engineering program at LSU. Susan and I are planning our “30‑Year Bucket List Trip” this February to Peru. We’re also still best friends. That’s always been critical for us. We started as close friends, and 30 years later, that hasn’t changed. We always spend time together because we genuinely enjoy each other’s company and are never far apart. So, this month, celebrate your partner and your love for them, but don’t stop at Valentine’s Day. Love them every day, and don’t take that love for granted. Time will go by faster than you think!
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Court Slams CIGNA for
Back in the 1980s and ’90s, almost every sports movie included a training montage — and no montage was complete without a giant paper calendar hanging on the hero’s wall. As time ticked by and the big game or contest approached, the hero crossed the days out one by one. Each square was a success, and it was another day of training down! It sounds silly, but according to habit expert and “Atomic Habits” author James Clear, that giant calendar isn’t just movie magic. It actually works! For some people, tracking their habits — literally writing down their successes and failures in order to keep a record — is an effective way to build and stick with new routines, like New Year’s resolutions. THE EASY WAY TO STAY MOTIVATED Yes, Habit Tracking Actually Works!
CLIENT WAS DEN
My client’s life changed forever on a pleasant afternoon drive with her husband. He was driving and, in a moment of distraction, had continued driving a straight path when the road curved, sending them into an oncoming truck’s path. It was a miracle my client survived the fiery crash at all. Tragically, her husband died in the hospital. While no great consolation, at least her late husband had paid for accidental death and dismemberment insurance with CIGNA to protect her. At least, she thought, she would be okay financially. But citing its intoxication exclusion, CIGNA denied the claim, explaining that his blood and urine samples proved he was intoxicated and that the accident report said he was “impaired.” CIGNA didn’t bother to tell her that its toxicologist hired to review that evidence said it COULD NOT support impairment. CIGNA persisted in its denial on “administrative appeal,” never disclosing its toxicologist’s report. After we filed suit in federal court, CIGNA produced its toxicologist’s report buried in 1,000 pages of legal documents. At trial, to my client’s dismay, the district court judge ruled in favor of CIGNA, citing ERISA law. But the U.S. Fifth Circuit unanimously reversed and ruled for our client.
In his book, Clear writes that habit tracking works because it makes a particular behavior “obvious, attractive, and satisfying.” Tracking our habits in a visible place (like a calendar
on the wall) reminds us to keep our “streak” of good behavior alive and holds us accountable if we mess up. It also just feels good to cross a square off of the calendar.
Does your office turn away calls about “long-term disability insurance” claim denials because you don’t handle administrative appeals or “ERISA litigation” in federal court? We want to hear from you! We happily share fees on referred ERISA long-term disability, life insurance, and accidental death insurance denial cases. Send us an email at briefrecess@jpricemcnamara.com or call (225) 201-8311 to start the referral process! WE VALUE YOUR REFERRALS!
“The most effective form of motivation is progress,” Clear explains. “When we get a signal that we are moving forward, we become more motivated to continue down that path. In this way, habit tracking can have an additive effect on motivation. Every small win feeds your desire.” You don’t need to use a ’90s calendar to track your habits in 2022. Instead, Clear recommends leveraging technology to make tracking as easy as possible. If you want to build better spending habits, put your credit card statements (which track your spending automatically) front and center. If you want to take more steps each day, buy a Fitbit so you don’t have to count them. That said, if you go the pen-and-paper route — or prefer an Excel spreadsheet — Clear suggests tracking your habit immediately after you finish it. That way, you’ll associate your positive behavior with the rush of satisfaction you get from checking a day off the calendar.
ERISA is all we do!
To learn more about Clear’s methods and download his free Habit Tracker Template, visit AtomicHabits.com/tracker .
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r Withholding Evidence
NIED ‘FAIR REVIEW’
This is how the court explained its decision:
MAYBE THE WORST LAW EVER?
“LINA did not provide [its toxicologist’s] report to White … Importantly, although the letters of denial relied entirely on the toxicology results, the death certificate, and the amended collision report (which included the DWI citation), neither of LINA’s denials of coverage mentioned [the toxicologist’s] report … For the first time, White discovered [the] report in the documents LINA filed with the court … Thus, we consider LINA’s actual withholding of [the] report from White. White argues that LINA’s failure to provide her with [the] report, despite her written request for “any and all documents …” violated ERISA’s procedural rules and thus denied White a “full and fair review.” … Contrary to LINA’s assertions, [the] report undermines LINA’s position that intoxication or drug abuse was the cause of ... death. Further, this opinion comes from the report of LINA’s very own expert. As such, without [the] report, during the administrative process White was unable to meaningfully challenge LINA’s finding that [Decedent’s] death was caused by intoxication or drug abuse. We therefore conclude that LINA did not substantially comply with ERISA’s procedural requirements and, consequently, denied White a “full and fair review …”
Even federal judges will tell you that ERISA is messed up.
“Caveat Emptor! … [T]he world should take notice … you will be perfunctorily examined by expert physicians whose objective it is to find you not disabled, you will be determined not disabled by the insurance company principally because of the opinions of the unfriendly experts, and you will be denied benefits.” (Loucks v. Liberty Life Assur. Co. of Boston, 337 F.Supp.2d 990 [W.D. MI. 2004]). What LTD claims are governed by ERISA? Federal ERISA (Employee Retirement Income Security Act of 1974) law, with few exceptions, governs all claims for employment-based long-term disability (LTD) benefits plans. What is so different about an ERISA LTD insurance case? Almost everything. If ERISA governs an LTD claim, a mandatory administrative appeal is required before a claimant can file suit to challenge a benefit denial. The same insurance company that denied the claim decides whether to reverse itself on appeal and pay benefits — strange, but true. If the appeal is denied, the claimant can sue, but only in federal court. Then, the lawsuit is weird. Most federal district courts use special scheduling orders tailored to the unique way ERISA cases are resolved. There is almost no discovery, and the judge can’t consider any evidence that wasn’t made part of the administrative record before the suit was filed. There is no real trial. No witness testimony is presented. You never get to cross- examine the insurance company’s bogus medical experts. The only “trial” at all is a trial on briefs referencing the administrative record filed with the court. The court reviews a denial under ERISA’s deferential “abuse of discretion” standard. Under that standard, the financially conflicted insurer that denies a claim is “not obliged to accept the opinion of [the claimant’s] physicians.” In this “battle of the experts,” the administrator is vested with discretion to choose one side over the other (Foster v. Principal Life Ins. Co., 920 F.3d 298, 307 [5th Cir. 2019]). If the insurer has one bogus medical expert review medical records and conclude that the claimant can work, the court will usually uphold a denial, even if multiple treating physicians find the claimant disabled.
It’s great to see occasions when ERISA law works to the claimant’s benefit. Rare, but great.
Feta Chicken Burgers
Inspired by TasteOfHome.com
Ingredients • 1/4 cup finely chopped cucumber • 1/4 cup reduced-fat mayonnaise • 1/2 cup chopped roasted sweet red pepper • 1 tsp garlic powder • 1/2 tsp Greek seasoning • 1/4 tsp black pepper • 1 1/2 lbs lean ground chicken • 1 cup crumbled feta cheese • 6 whole wheat hamburger buns, split and toasted
Directions 1. Preheat broiler and mix chopped cucumber and mayonnaise. 2. For the burgers, mix the red pepper, garlic powder, Greek seasoning, and black pepper. Add chicken and cheese; mix lightly but thoroughly (the mixture will be sticky). Shape into 6 patties about 1/2-inch thick. 3. Broil burgers, remembering to cook both sides thoroughly. Serve on buns with cucumber sauce. If desired, top with lettuce and tomato. Enjoy!
So the administrative appeal is your only chance to build your best evidence to succeed later in court, and that evidence must be overwhelming to win.
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PRST STD US POSTAGE PAID BOISE, ID PERMIT 411
ERISA INSURANCE J. PRICE MCNAMARA Claim Attorney
10455 Jefferson Hwy. Suite 130 Baton Rouge, LA 70809 (225) 201-8311 WinMyBenefits.com
INSIDE THIS ISSUE
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Celebrating 30 Years With My Wife: Our Story
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Retrain Your Brain With Habit Tracking
Case: We Found CIGNA Had Withheld Key Evidence
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Feta Chicken Burgers
Why ERISA Might Just Be the Worst Law Ever
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The Unlikely Heroics of Cher Ami
The Story of Cher Ami How One Pigeon Saved 194 American Soldiers
Animals have always played a role in military efforts during wartime. Cats were kept aboard naval ships for pest control, horses and camels provided transportation for supplies and soldiers pre-World War II, and dogs are still used to this day for search and rescue efforts as well as mine detection. But one animal profession became obsolete with the advancement of communication technology: messenger. Often used during World War I, many dogs and pigeons became responsible for delivering messages of high importance. Of all the animals used during World War I, one pigeon named Cher Ami defied the odds to save nearly 200 American soldiers.
Whittlesey decided to dispatch messages by pigeon. The first pigeon got shot down almost immediately, so he sent a second pigeon with the message, “Men are suffering. Can support be sent?” That one also got shot. Finally, Whittlesey turned to his last pigeon, Cher Ami, and scribbled down a quick note on onion paper that read, “We are along the road parallel to 276.4. Our own artillery is dropping a barrage directly on us. For heaven’s sake, stop it.” Cher Ami took flight, but even after being shot down by the Germans, the bird defied the odds and actually took flight again! The effective delivery of this message helped save 194 men, but Cher Ami did not escape unharmed. He had been shot through the breast, blinded in one eye, and had a leg hanging only by a tendon. Army medics treated Cher Ami enough so he could travel to America, where he eventually succumbed to his wounds. The bird was then taxidermied and displayed in the Smithsonian, where you can still see him today. So, the next time you’re in Washington, D.C., stop by the “Price of Freedom” exhibit at the National Museum of American History where you can personally see this brave pigeon.
On Oct. 2, 1918, Major Charles Whittlesey got trapped along the side of a hill in Northeastern France with 550 of his men. They ended up
behind enemy lines with no food or ammunition, and — to make matters worse — his battalion started to suffer from friendly fire since allied troops remained unaware of their location. With nowhere to run, Whittlesey tried to send runners to
contact the allies about their predicament. Unfortunately, their enemies consistently intercepted or killed these runners until only 194 men remained.
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