Author: susansachs

If you are an attorney practicing in the area of ERISA disability litigation,(or even if you are not an attorney) you may want to read the recent decision by the First Circuit in McDonough v. Aetna Life Ins. Co., 2015 WL 1684079 (April 15, 2015)  It is instructive in several respects.  First, the case illustrates a common situation that insurers use to deny or terminate benefits.  Second, and more importantly,  the court clarified the insurer’s obligation when it evaluates a claimant’s “own occupation.”

The claimant, Joseph McDonough, worked in a high-level, high-pressure position as a Senior Analyst III, in the information technology department of Biogen, Inc.   In that position he provided support to the server infrastructure of this global company.

Aetna began paying the claimant long-term disability (LTD) benefits after he suffered from stroke-like symptoms of right-sided numbness, dizziness, blurred vision and loss of balance. He also suffered from frequent panic attacks, anxiety and sleeplessness.

Aetna terminated his LTD benefits after it received a report from his physician that said he had a “sedentary level of functionality” and could work 8 hours a day.  In terminating his benefits, Aetna ignored highly contradictory reports from his mental health care providers.  Aetna’s action was typical of many long term disability insurers.  They will cherry pick one comment from a treating physician, take it out of context and use it to terminate or deny benefits.

I see this often in the clients that I represent in appeals.  For example, one client who was getting short term disability benefits due to chronic fatigue syndrome, decided to try riding his bike.  Before the onset of his CFS, he used to ride over 100 miles per week.  He went on a 20 minute bike ride and then needed an entire day to recover.  He reported this to his physician who duly noted it in his office notes.  As soon as the insurer, Unum, saw the office note, it terminated his benefits despite there being no change in my client’s medical condition.  It goes without saying that Unum also denied his application for long-term disability benefits because of the bike ride.  We are awaiting a decision on that internal appeal.

In the McDonough case, the claimant lost his internal appeal and lost in the U.S. District Court (Woodlock, J.) which granted summary judgment to the insurer, Aetna.  The claimant then appealed to the First Circuit.

The First Circuit criticized Aetna and its so-called independent reviewers for their failure to compare the claimant’s “symptoms or impairments to any description of the physical or cognitive demands of his own occupation . . . .”  The court called Aetna’s internal assessment  “little more than a waif in the wilderness.”   It noted that “while the record is rife with accounts of the [claimant’s] medical and psychological symptoms, Aetna never took the obligatory step of assessing whether and to what extent (if at all) the appellant’s impairments compromised his ability to carry out the material duties of his own occupation as normally performed in the national economy.”

The analysis that Aetna performed, or rather failed to perform, is fairly typical of long-term disability insurers, especially when the claimant has a job that requires a high level of cognitive function and executive decision making.  Too often, the insurer’s analysis focuses on whether the claimant can sit upright for 8 hours and ignores the impact of fatigue and pain on his or her ability to make decisions, develop strategic plans and organize information.  The opinion in McDonough v. Aetna should be cited by practitioners in their internal appeals and in lawsuits brought in the U.S. District Courts.

Unfortunately for Joseph McDonough, the First Circuit remanded the case back to the District Court for it to remit back to Aetna for further evaluation.  We still do not know the final outcome.

By Susan Sachs, Esq.

 

 

 

Workplace bullying is a common occurrence in the United States.  It can be found in all types of workplaces, such as schools, hospitals, nonprofits organizations, government, restaurants, and corporate offices.  No workplace is immune.   Perpetrators and victims come from all walks of life — doctors, nurses, managers, school teachers, minimum wage earners, lawyers.   No one is immune from being bullied.

I frequently receive telephone calls from persons who say they are being bullied at work and want to know what they can do about it.  All too often there will not be a legal remedy because bullying is not illegal in any state.  Bullying does not violate any State or Federal laws.

It is important to note that bullying is different from harassment or discrimination for which there may be a remedy.    It is illegal under both Massachusetts and federal law for an employer to take any adverse actions against you based on certain protected categories, such as gender, ethnicity, religion, national origin, age and handicap.  The employer must also protect you from other employees who harass you or create a hostile work environment based on your membership in one of these categories.  An attorney specializing in employment law can help you distinguish the difference.

The common denominators of all workplace bullying are that the conduct is repeated towards the victim and that the victim is harmed.

Bullying has been defined by the Workplace Bullying Institute as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators.  It is abusive conduct that is:

            ▪ Threatening, humiliating or intimidating, or

            ▪ work interference – – sabotage – that prevents work from getting done, or

            ▪ verbal abuse.”

If you are being bullied at work, you should report it immediately to your supervisor.  If your supervisor is the bully, report the behavior immediately to the Human Resources Department.  Report every incident and do this in writing or in some way that creates a record, such as email.  You should also be keeping a journal account of every instance of bullying, the dates, time and names of anyone else who was present.  Keep this at home, not at work or on a work computer.

The purpose of reporting and recording the bullying is three-fold.  First and most importantly, you may be able to put a stop to it by reporting it.   Sadly, in many instances supervisors and HR do nothing or very little to stop workplace bullying.  They may disbelieve you, think you are being “too sensitive” or simply not understand the detrimental impact of bullying. If this happens, you are doubly victimized, once by the bully and again by the people who fail to protect you.

The second reason to report and make a record of the bullying is so that you may quit your job if necessary and still collect unemployment benefits.  Normally, if a person voluntarily quits, they are disqualified from getting unemployment benefits.  However, there is an exception if you leave your job for “good cause” attributable to the employer or for an “urgent, compelling and necessitous reason.”   Being the victim of bullying and the ensuing emotional and physical distress can be considered reasons for quitting a job and still qualifying for unemployment.  But before you take that action, you need to have given the employer a chance to remedy the situation and the behavior that you were subjected to needs to fit into one of the definitions of bullying.   If you have kept a record of the bullying, it may help prove your entitlement to unemployment benefits.

If you quit your job because of workplace bullying you might still be disqualified initially from getting UI benefits because of what your employer tells the unemployment office.  In that situation, you will need to appeal and attend a hearing.  The record that you have kept of the bullying will help you remember and testify appropriately.    I recommend that you retain an attorney to help with the appeal.  Generally, you do not need an attorney for the initial application for benefits.

Third, if you report the bullying and keep a record of what is happening to you, it may help an attorney decide whether the conduct was unlawful and thus actionable.

Unfortunately, an attorney will not usually be able to get you relief from the bullying.  More often than not, you may need the help of a mental health professional or physician.  Workplace bullying can cause any number of health related disorders, such as anxiety, insomnia, and depression.  I usually advise clients to find another job if at all possible, rather than stay in a job where they are being bullied, because of the enormous toll that bullying can take on the client’s health and relationships.

This website hash information and advice about workplace bullying:

www.workplacebullying.org

 

The Case of the Disappearing Life Insurance Policy

A client, K, came to me because he was notified that his $200,000.00 life insurance policy had lapsed.  He had paid the premiums, on time, for the past 30 years and could not understand what had happened.  K and his wife spent months making telephone calls and getting nowhere.  Finally, the company told him he had to reapply, but by the time he reapplied he had been diagnosed with a terminal illness and was turned down.

I got involved and started researching the company he originally bought the insurance from.  I found a tangled web of buy-outs and spin-offs.   His original insurance company was bought out by another company that was bought out by a financial services company who spun off the life insurance business.  During these transitions, there had been two different third party administrators and many policies had been inadvertently dropped.

My emails and telephone calls were never answered.   I sent demand letters, pursuant to the Massachusetts Consumer Protection Statute, M.G.L. c. 93A, to all of the companies involved, informing them that my next step would be a lawsuit.  As a result of my demand letters, my client’s $200,000.00 policy was reinstated and the company paid my legal fees.  I did not have to sue them.

On a side note:  I tried to get the Massachusetts Insurance Commission involved because there are undoubtedly many others that this has happened to given the huge fiasco that was created by the multiple turnovers of data and policies.   The Commission was not interested.

Insurance companies make mistakes and bad decisions that are unjust and hurt people.   But an attorney’s persistence can get them to do the right thing.





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