10 Trial Lawyer • Spring 2023 representation, a strong appeal might have included: • All pertinent medical records, including those documenting Liz’s long history of back pain and treatment and supportive letters by Liz’s medical providers. See, e.g., Dykman v. Life Ins. Co. of N. Am., No. 3:20-cv-01547-IM, 2021 U.S. Dist. LEXIS 216616, at *22-23 (D. Or. Nov. 8, 2021) (“The health care professionals who have personally examined and treated Dykman support disability…This evidence alone is persuasive evidence that Dykman is totally disabled.” (citing Salomaa, 642 F.3d at 676-79)). • A functional capacity evaluation (“FCE”). See, e.g., Sterio v. HM Life, 369 F. App'x 801, 804 (9th Cir. 2010)(citing limitations found on FCE that were consistent with the treating physicians’ conclusions that Sterio was “permanently disabled,” and noting that the insurer “failed to credit this reliable medical evidence.”) • Statements by work colleagues, family members and friends attesting to Liz’s presentation and increasing functional problems at work and home. See.e.g., Dykman, 2021 U.S. Dist. LEXIS 216616, at *29-30 (“... at no point did LINA address Dykman’s…mother’s statement documenting how MS affected Dykman over the years.”); Coleman-Fire v. Standard Ins. Co., No. 3:18-cv00180-SB, 2019 U.S. Dist. LEXIS 76726, at *35 (D. Or. May 7, 2019) (“the statements provided by plaintiff's legal secretary supports a finding that plaintiff is unable to work as an associate attorney…”); Rabbat v. Standard Ins. Co., 894 F. Supp. 2d 1311, 1323 (D. Or. 2012) (finding a supervisor’s statements to be persuasive evidence of disability). • Symptom logs supporting the claim and/or rebutting the administrator’s assertions. See, Abrams v. Unum Life Ins. Co. of Am., No. C21-0980 TSZ, 2022 U.S. Dist. LEXIS 231950, at *7 (W.D. Wash. Dec. 27, 2022) (citing “logs/photos/videos of elevated temperature readings in the fall and winter of 2020-21…” submitted on appeal and “three supplemental letters…with additional…temperature recording…” as supporting disability and rebutting insurer’s assertions that temperatures were normal at office visits); Olis v. Unum Life Ins. Co. of Am., No. 8:19-cv-01347-JVSDFM, 2020 U.S. Dist. LEXIS 137728, at *40-41 (C.D. Cal. July 27, 2020)(citing documentation of plaintiff’s “symptoms (some of which were recorded in a log of symptoms)” that “consistently indicated requiring eye breaks lasting two to three hours.”). • Relevant medical literature. See, Dykman, 2021 U.S. Dist. LEXIS 216616, at *29 (insurer’s consultant “does not address the medical literature that ‘the progression of physical and cognitive disability in MS may occur in the absence of clinical exacerbations,’ which resembles Dykman’s progressing visual issues, fatigue, and cognitive issues without an MS relapse.”); Coleman-Fire, 2019 U.S. Dist. LEXIS 76726, at *34 (Medical literature submitted with ERISA appeal were consistent with treating “concussion specialist’s” conclusion that plaintiff is among the PCS patients whose symptoms persist and render them disabled.”); Abrams, 2022 U.S. Dist. LEXIS 231950, at *7. The late Hon. William M. Acker, Jr., United States district judge for the Northern District of Alabama, addressed the problems with ERISA in several judicial decisions and became an activist for reform from the bench. In one article he lamented: In Florence Nightingale Nursing Service, Inc. v. Blue Cross and Blue Shield[, 832 F. Supp. 1456, (N.D. Ala. 1993), aff'd, 41 F.2d 1476 (11th Cir. 1995)], I started my opinion with these three sentences: A hyperbolic wag is reputed to have said that E.R.I.S.A. stands for “Everything Ridiculous Imagined Since Adam.” This court does not take so dim a view of the Employee Retirement Income Security Act of 1974. Instead, this court is willing to believe that ERISA has lurking somewhere in it a redeeming feature. Since writing Florence Nightingale, I have changed my mind. ERISA 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 M. Acker, Jr., “Can the Courts Rescue ERISA?,” 29 Cumb.L.Rev. 285 (1998-1999). Unfortunately, ERISA claim administrators and insurers are not required to advise ERISA claimants what they are up against by explaining the judicial process. Nor are they expressly forbidden from downplaying the importance of the ERISA appeal process. Unfortunately, unless Congress addresses the serious defects in the highly privatized ERISA claim and review process — through which most employee benefit claims are decided in the United States — the odds for claimants like Liz are unlikely to improve significantly. Megan Glor specializes in representing individuals in disability, health and other benefit claims through both ERISA-governed benefit plans and individual policies. She is the owner of the firm Megan E. Glor Attorneys at Law, 707 NE Knott St., Ste. 101, Portland, OR 97212. She can be reached at megan@meganglor.com and 503-751-2064. Employee Benefit Claims Continued from p 8
RkJQdWJsaXNoZXIy MTY1NDIzOQ==