Take a look at our June newsletter!
For The Ambitious Advocate BRIEF RECESS
JUNE 2023
FROM THE LAW OFFICES OF J. PRICE MCNAMARA
MAYBE THE WORST LAW EVER?
ERISA stinks, federal judges across the country agree.
we do, understanding why ERISA is “beyond redemption” can be tricky.
only then can the claimant file a lawsuit, which must be filed in federal court.
What’s so different about an ERISA LTD insurance case? The process starts when someone files an initial application or claim for LTD insurance benefits, usually without attorney assistance, and receives a written denial of their claim by the insurance company. It’s important to note that LTD insurance policies purchased by individuals, independent of their employment, are not governed by ERISA. For individual Long-Term Disability Insurance policies not governed by ERISA, the claimant can go directly to state court and file a lawsuit if the insurer denies the claim — typical litigation. However, if ERISA governs the claim, as most are, a mandatory administrative appeal process is required by ERISA before a claimant can file suit to challenge a denial of benefits. The claimant must file the administrative appeal with the same insurance company that denied the claim. Then, that same insurance company, which also must pay benefits if it reverses itself, decides whether or not to reverse itself and pay benefits — crazy but true. Missing an administrative appeal deadline (180 days from the date of the written denial) is as fatal to a claim as passing a statute of limitations with very few exceptions. Missing it means the claim is over, and the denial cannot be challenged. If the Long-Term Disability Insurance company again denies benefits following a timely administrative appeal (a common outcome),
An ERISA federal court lawsuit is different, too.
All over the books, you can see their frustration at feeling congressionally bound to render unfair judgments:
An ERISA LTD insurance claim lawsuit in federal court is different from others. It doesn’t follow the typical federal procedural path. Most federal district courts use special scheduling orders tailored specifically to the unique way ERISA cases reach court resolution. ERISA has its own statutory venue rules. Discovery is restricted, almost nonexistent really. The parties have no right to a jury trial. No witness testimony is presented. You never get to cross-examine the insurance company’s medical experts. The only “trial” is a trial on briefs referencing the administrative record filed with the court, either on cross-motions for summary judgment or simply motions for judgment on the administrative record. The court reviews a denial under ERISA’s “abuse of discretion” standard, requiring it to give great deference to the financially conflicted insurance company’s decision. Under that standard, the insurer 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). Thus, if the insurer has one bogus “medical expert” review medical records and conclude that the claimant can work, the court will usually
“Caveat Emptor! … [T]he world should take notice, that when you buy [long-term disability insurance governed by ERISA], you are purchasing an invitation to a legal ritual in which 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.” –Judge Elsen from the W.D. Mich. In Loucks v. Liberty Life Assur. Co. of Boston, 337 F.Supp.2d990; (WD MI. 2004). “Occasionally, a statute comes along that is so poorly contemplated by the draftspersons that it cannot be saved by judicial interpretation, innovation, or manipulation. It becomes a litigant’s plaything and a judge’s nightmare. ERISA falls into this category…. stands for ‘Everything Ridiculous Imagined Since Adam.’… is beyond redemption. No matter how hard the courts have tried, and they have not tried hard enough, they have not been able to elucidate ERISA in ways that will accomplish the purposes Congress claimed to have in mind.” –William Acker, Jr. Judge, USDC, N.D. AL “Can the Courts Rescue ERISA,” 29 Cumb.L.Rev. 285, 285-86 (1999). As you can see, even the judges presiding over these cases think ERISA stinks. But you may be wondering, what about it stinks so much? If you don’t work with ERISA daily like
uphold a denial even if multiple treating physicians find the claimant disabled.
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FISHING GRAND ISLE L
R
“Kawaii” is the Japanese word for “cute,” which apparently alters our brains more than we thought! During The Power of Kawaii study, Hiroshima University researched the effects of viewing images of cute animals, and what they discovered was shocking. Researchers found that these adorable animals can help us improve our concentration, especially on detail-oriented tasks. Participants who viewed images of puppies and kittens could accomplish tasks with greater care and attention than those shown other pictures. How did they measure concentration, and why cute animals? What method was used in the initial experiment? In the first experiment, researchers split a group of 48 participants and had each person play a surgery game similar to “Operation.” Using tiny tweezers, the participants had to grasp small objects without touching the edges. Afterward, one group observed images of puppies and kittens, and the other viewed photos of adult dogs and cats. After viewing the pictures, both groups played the game again. The result? The first group had a significant improvement when playing the game. They approached the game more deliberately and at a slower pace to carefully remove the objects without touching the edges. Meanwhile, the second group showed no difference in their performance. Why do these cute images affect us? After more experiments with increased difficulty, the researchers concluded that the sweet animals made a noticeable impact on our brains. Participants showed higher levels of focus, concentration, and carefulness both mentally and behaviorally. Puppy Power Is Scientifically Proven HOW DO CUTE IMAGES AFFECT YOUR MIND?
THE FAMIL
?
June is an exciting time on the Louisiana Gulf Coast. For my family, it means the kids’ school obligations are about to end — for a couple of months anyway — and we get to start doing lots of fishing! Actually, the school obligations part is no longer an issue — they’ve graduated and are working now. But the fishing part continues! Growing up, my uncle had a camp on the beach in Grand Isle. We spent many summer days there beachcombing, surf fishing, crabbing, and catching shrimp with cast nets. At night we cooked and ate the best fresh seafood ever while stinging with sunburn. Then we’d fire up the Coleman lanterns and go flounder-gigging on the shallow sandbars if it was nice and calm. My earliest memories come from those trips, and I’ve always wanted to show my kids the beauty and wonders of coastal Louisiana. Luckily, my wife Susan loves fishing too, and I actually proposed to her on a fishing trip. She said yes, so we’ve spent our lives fishing Grand Isle with the kids, and now they’re Grand Isle junkies too! So, the Grand Isle fishing tradition continues. Summer days are filled with Speckled Trout, Redfish, Wahoo, Mahi-Mahi, Amberjack, fresh seafood meals you can’t beat, and a good sunburn.
If you’ve never been, or it’s been a while, you need to check it out!
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 reasoning may be that seeing baby animals triggers our nurturing side and, in turn, makes us more careful and alert. We sense something needing protection, care, and focus. At a subconscious level, you likely will become more
cautious in how you think and behave after looking at pictures of baby animals. So, the next time you need to do something tedious or detail- oriented, prep yourself with a cute puppies and kittens slideshow to ensure you get the job done right!
ERISA is all we do!
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LOUISIANA
Our client, a Texas ER physician, fought to continue working as long as he could after major cervical and thoracic spine issues that ultimately required the fusion of levels C2–T3 vertebrae. His job duties in the ER required quick thinking and rigorous physical action, performing orthopedic dislocation reductions, intubation, and lumbar punctures as well as placing central lines. He also regularly encountered combative, intoxicated, and drug-altered patients. His post-laminectomy syndrome pain and medication regimen took their toll. He began to falter physically and mentally until it became impossible for him to perform his job safely. Unrepresented, he filed for long-term disability insurance benefits with Prudential after years of premium payments. He explained to Prudential that his pain and increasingly limited mobility endangered his patients. His treating surgeon said he had become “increasingly reliant on a chronic pain regimen including opioids and other controlled substances to function in even the most basic manner” and suffered slow, clouded, and unreliable thinking. He figured there was no way in the world he’d be denied. Everything he submitted was the absolute truth. Prudential Would Would You Want an ER Physician on Opioids in Charge of Your Family?
Test your fish identification and weight-guessing skills by guessing which photo is of a Wahoo and the weight of the fish to win a $25 Amazon gift card! Just email us at briefrecess@jpricemcnamara.com with the subject heading “Contest” with the photo number of the Wahoo and your guess of its weight. We’ll announce the three closest guesses as winners in our next issue of Brief Recess. LY TRADITION CONTINUES!
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But most important and most pertinent to the impact of the administrative appeal, the federal judge in an ERISA case cannot consider any evidence that was not made part of the administrative record during the administrative appeal process before the suit is filed. This means the administrative appeal is your only chance to gather, create, and build the best evidence to support your case later in court. The evidence you submit during the administrative appeal process becomes part of that record that the court can later consider. Whatever case you build (or don’t) is carved in stone before you ever file suit. The insurance companies and their attorneys know this. So they load the administrative record with evidence and reports of their own consulting “experts” favorable to their position in denying the claim. Most claimants and attorneys don’t know this and file “administrative appeals” without supporting evidence beyond medical records. Filing an administrative appeal this way does nothing to help the claim, and it’s precisely what the insurance company hopes a claimant will do. If the insurer denies the claim again, it wastes the claimant’s best and only opportunity to build the best case for reversal, either on administrative appeal or in court. So, build that appeal record like it’s your only chance — because it is. And as always, feel free to give us a call if you need a little help!
Prudential had its physician review his medical records. Without bothering to meet with our client, Prudential’s physician decided that he could continue his full-time duties as an ER physician. Prudential credited its record reviewer’s opinions over our client and his treating providers’ opinions, denying the claim. We filed his ERISA-mandated pre-litigation appeal, loading the administrative record with better objective and opinion evidence of his disability. We also included a more detailed sworn testimony from our client, explaining exactly how his restrictions would endanger patients under different scenarios. Prudential reversed its denial, and they will now pay our client monthly through retirement age. Unfortunately, this case is nothing new. When insurers like Prudential deny long-term disability claims, they hope their insured will “appeal” by arguing disagreement with the denial. They know ERISA law prohibits the court from considering any evidence not submitted with the appeal before filing suit (most people don’t realize this until it’s too late). Loading the administrative record with the best evidence before filing a lawsuit is critical to getting claim denials like these reversed.
(225) 201-8311 3
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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Judges Agree — ERISA Stinks!
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Cute Puppies = Concentration
Can You Guess the Weight of This Fish?
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Reversed on Appeal: ER Physician’s Denial of Long-Term Disability Benefits
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A Furry Hero in Mexico
RESCUE DOG’S LEGACY LIVES ON Dressed in protective goggles, blue booties, HOW THE WORLD FELL FOR FRIDA
While the nation was devastated by the disaster, this smiley rescue pup brought worldwide attention to the tragedy. Frida’s dedication (and impeccable style) quickly made her an internet celebrity, and soon, murals of the lifesaving canine graced the walls of Mexico City. Even Captain America, aka Chris Evans, gave Frida a shoutout on Twitter, adding, “What did we do to deserve dogs?” The hero dog then traveled the world, helping countries suffering from the aftermath of disastrous earthquakes. Frida saved lives in Haiti and Ecuador before retiring from her position in 2019 at 10 years old to live the rest of her days in comfort and love. Sadly, the Mexican Navy announced Frida’s passing in November 2022 due to old age. She was 13 years old. In her honor, a magnificent bronze statue of Frida, clad in goggles and boots, stands in front of the Mexican Navy office in Mexico City. On the day of her death, the Mexican Navy changed their Twitter banner to an illustration of Frida and spread the hashtag “#HastaSiempreFrida.” Frida will always be remembered for her lifesaving work and the hope she embodied for the entire world.
and a matching vest, this incredible rescue dog became a symbol of hope in Mexico. Frida, a cheerful yellow Labrador retriever, was a devoted member of the Mexican Navy
known for her search and rescue skills. Trained to find people trapped under rubble after earthquakes, Frida always worked hard to save lives.
Frida became a national hero when a devastating earthquake hit Mexico City in 2017. The 7.1 magnitude earthquake took more than 300 lives and injured many more. While sifting through dangerous debris and aftershocks, Frida saved 12 people after finding them alive while uncovering more than 40 bodies during her lifesaving career.
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