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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