TOV Injury and Safety Blog

Court upholds insurer's second-guessing of doctor's long-term disability

David B. Cox was awarded long-term disability insurance and Social Security disability after suffering an event which his neurologist described as a stroke.  After paying benefits for two years, the ERISA insurer, Standard Insurance Company, "reevaluated" Cox's disability and determined that he could return to the practice of Family Medicine.  Cox filed an administrative appeal, which was denied, and then filed suit in Federal Court to challenge the decision.

ADA standards and regulations set to change

On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st.  According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability."  The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations.  From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job.  The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.

Sixth Circuit addresses statute of limitations issues under ERISA

In Rice v. Jefferson Pilot Financial Insurance Co., the Sixth Circuit upheld the dismissal of a disability suit brought by a floor covering installer who suffered from depression and chronic fatigue syndrome.  The installer, Jerry Rice, was deemed disabled by the Social Security Administration, but his claim for disability benefits under his employer's ERISA contract was denied by the insurer.  When he subsequently sued, the lawsuit was dismissed in response to Jefferson Pilot's argument that Rice did not comply with the three-year statute of limitations expressly incorporated into the disability insurance contract. 

Doctor's ERISA disability benefits reinstated

Lois Kramer practiced as an O.B. Gyn specialist in the Henry Ford Health System before developing severe and chronic neck pain.  She underwent physical therapy and surgery and was prescribed narcotic pain medications and sleep aids in the course of several years of treatment.  Eventually, she and her peers at Henry Ford concluded that she was no longer able to practice her occupation safely, and she applied for disability benefits under policies purchased from the predecessors of the UNUM Life Insurance Company.  Unum paid the benefits for several years before determining that her entitlement to benefits should be revoked.  Kramer filed suit and the Federal District Court of the Eastern District of Michigan held that she was entitled to benefits under one of her two policies, but not under the other:  the Sixth Circuit heard her appeal and granted benefits under both policies.

Michigan Blue Cross agrees to provide limited benefits to autistic insureds

On June 20, 2009, Blue Cross Blue Shield of Michigan agreed to pay one million dollars to settle a class action brought by 100 Michigan families.  The families had argued that the health insurer should be providing coverage for behavioral therapy to young children diagnosed with autism.  Most private Michigan health insurers do not provide coverage for autism, however, BCBS announced in May that it would provide limited coverage for intensive early intervention.

Expenses for care of catastrophically injured Michigan no fault victims

Attorneys and the families of catastrophically injured no fault victims continue to watch the Michigan Supreme Court to see what will happen with PIP expenses in the situation where the families avoid institutionalization.  From 1974 until a few years ago, the Supreme Court took the position that families could be fully compensated for keeping a catastrophically-injured loved one out of an institution by providing care for him or her.  The Court held that if an expense was payable to an institution, it would be payable to the family, as well. 

Previously injured man cannot have suffered a serious impairment

Three of the more conservative Judges on Michigan's Court of Appeals recently held that a previously disabled man could not suffer a "serious impairment of bodily function" as a matter of law.  Theon Crumpler had suffered a head injury in a motor vehicle collision in 1986 and required 24-hour attendant care because of his difficulty walking and his need for help with the requirements of daily living.  When he suffered additional injuries in a 2001 accident, the Court held that his difficulties with seizures, with standing or with negotiating stairs,  and with fine motor tasks, were not adequate to constitute a "serious impairment" of his already disabled life.  The judges said that his already-humbled life was not "materially altered".  That might depend on the perspective from which it was viewed, we suspect.  In any event, the jury was not allowed to make that decision.

Can a companion accompany you to a so-called "independent medical examination"

Michigan auto injury victims are currently placed in a quandary if their no fault insurer wants them to attend an IME and the victim would like to impose some reasonable conditions on his or her attendance.  Up until 2007, it was believed that injury victims enjoyed the right to secure a court's intervention and supervision to assure that so-called independent medical examinations were conducted reasonably and with proper controls.    Those rules still apply to "independent" examinations sought in the context of all other (non-no fault) circumstances. 

Michigan courts have regularly required that the exam be conducted by a specialist reasonably close to the victim or that mileage or overnight expenses be paid.  Other conditions we have seen imposed included a limit on the number or frequency of the examinations, and the right to have a companion accompany the victim or to have the victim's attorney observe the examination, for example.

Defendant cannot avail itself of unfair arbitration provision without evidence of victim's intent

One of the Federal District Judges serving in the Eastern District of Michigan had occasion this month to address a controversy regarding an alleged binding arbitration agreement.  In Estate of Vunies High v. Capital Senior Living, Judge David Lawson wrote an excellent opinion addressing the issues involved in a contract of adhesion attempting to deny residents of an assisted living facility of their right to a jury trial.

Searching for information on good doctors and particular diseases and conditions

The New York Times recently published an excellent article helping to direct readers to better information on doctors, institutions and particular diseases and conditions.  The article was authored by Pauline Chen, M.D., and titled "In Search of a Good Doctor".  Among her suggestions:

Dismissal of "serious impairment" claim upheld on appeal

The Saginaw case brought by Julie Garcia against the driver who injured her, Dale Doyle, was dismissed in the trial court.  The Court of Appeals upheld the dismissal, finding that Ms. Garcia did not satisfy the Taylor Supreme Court's Kreiner standard of "serious impairment".  Ms. Garcia suffered a fracture of her seventh cervical vertebra.

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

"Independent" roofer's right to collect workers compensation

An insurer recently lost another round in the ubiquitous battle over whether an employee can be defined as an independent contractor and denied the right to collect workers compensation.  Many employers, some as large as FedEx, attempt to treat their employees as independent contractors in an effort to minimize employee benefits and expenses. 

Can a doctor who has been sued insist on a private meeting with the Plaintiff's physican?

There has been significant disagreement among authorities in Michigan over the interaction of the HIPAA privacy regulations and Michigan's statutory waiver of the physician-patient privilege that occurs when an injury victim files a civil action. Insurers for doctors, in particular, have been very aggressive in seeking the right to conduct private interviews with the other physicians who treated an alleged victim of malpractice.

Can an involuntary commitment be false imprisonment if it is not malpractice?

In Ziegler v. Desiree Aukerman and W.A. Foote Memorial, the Court decisively answered that question "No".  After Ziegler was involuntarily committed as a suicide risk, she sued the hospital and a cooperating police officer for false imprisonment.  She did not comply with the requirements necessary to establish a medical malpractice claim, alleging that her claim was a separate, independent cause of action.  The Court properly rejected that theory, noting that the proper practice of medicine may result in an involuntary commitment, and that in order to constitute an assault or a wrongful detention, the commitment must be professionally negligent.

Senate passes bill that would restore the ADA

The Americans with Disabilities Act was passed in 1990 to discourage discrimination against employees with disabilities.  Unfortunately, the law itself was severely handicapped by a series of conservative Supreme Court rulings that denied ADA protection to any condition that could theoretically be controlled by medication.  Thus, if an employer discriminated against employees with a conditions such as diabetes, epilepsy or mild to moderate psychiatric or psychological disorders, the employee was powerless to respond.  This bill, like the bill passed earlier in the House on a vote of 402 to 17, would restore the protections which the Congress intended, but which the conservative Supreme Court refused to recognize.

Sixth Circuit addresses Hartford's conduct in discontinuing benefits

In Gaeth v. Hartford Life Insurance Co., the Sixth Circuit reversed an award of attorneys fees to Mr. Gaeth.  The trial court had held that Hartford acted arbitrarily and capriciously in denying Gaeth's long-term disability payments based only on ten minutes of surveillance per day and without reviewing his current medical records.  The appellate court agreed with this decision, however, it reversed the trial court's award of attorney fees, finding that Gaeth's action--even though it might deter similar conduct by Hartford in the future--did not qualify as one having a "common benefit" under ERISA laws.  Therefore, no award of fees could be supported unless and until Gaeth proves that he remains disabled under the definitions in the policy.

Efforts to create a joint registry continue to fail

Last year, in the U.S. alone, nearly one million knees and joints were implanted in patients. Worldwide, the U.S. is the number one manufacturer and the number one user of joint implants.  Unlike other countries, however, we have no joint registry and there is no organized follow-up of implant patients.  As a result, Medicare, Medicaid, private insurers and individual patients literally spend millions of dollars on defective implants that are not identified on a timely  basis.   

Flaws in Federal ERISA law

The Associated Press carried an article today, discussing some of the problems with ERISA rules promulgated by the Federal government.  It provided one particularly heart-wrenching example.  A thirty year-old cancer victim's young family was denied his insurance benefits after his employer changed insurers during his disability period.  Under the new insurer's plan, disabled workers were required to report to work for one day to maintain coverage.  The worker, Thomas Armschwand, was suffering from cardiac cancer and on disability, but could have worked one day:  unfortunately, no one told him he needed to and when he died, his family was denied more than a quarter million dollars of coverage.  Because the plan was ERISA-sponsored, he could not sue either the insurer or the human resources people who had reassured him that he was covered without advising him of the "one-day work" requirement.

Engler majority's constipated "standing" requirement precludes Allstate from over-reaching

Last year in an environmental case, the Engler majority of the Supreme Court pronounced a new and restrictive rule that precluded many interested persons from bringing disputes before the courts.  It restricted the number of people who have "standing" to challenge a wrong.  This misguided holding had one unexpected advantage last week, when it deprived Allstate Insurance Company of the right to avoid paying Personal Injury Protection benefits to a Physical Therapy provider.

Victory for employee in overturning insurer's denial of long-term disability

In Degennaro v. Liberty Life Assurance, Judge Robert Jonker of the Western District of Michigan overturned Liberty's denial of long term disability (LTD) to Ms. Degennaro.  She worked for Spectrum Health and had a number of serious medical problems.  Because her LTD policy was provided through her employment, the terms of the policy were governed by Federal ERISA law.  Liberty had granted her LTD benefits in 2004, however, in a manner typical of insurers, it tested her persistence and resources by "reevaluating" and denying her benefits in 2006.  She fought, and in 2008, the Court ruled that Liberty's decision was arbitrary and capricious.  It did not reinstate her benefits immediately, however.

Back injuries, degenerating spinal conditions and no fault

  People who suffer back injuries superimposed on pre-existing degenerative back problems are faced with many problems in seeking medical expense coverage and fair compensation.  Morrison v. State Farm helps to elucidate some of the issues.

Michigan's Supreme Court won't protect insurers from fraud

   While the activist majority of Michigan's Supreme Court will stretch a long way to protect the insurers and Chamber of Commerce who secured their appointment to the Court, they ruled on June 25 that they would not protect insurers from outright fraud claims.  The majority had earlier reversed 19 years of no fault law to require that suit on no fault PIP benefits be brought within one year of the date of any expense or service.  Sharon Strozewski sued AAA alleging that the Auto Club had defrauded her of proper benefits for caring for her two severely disabled children; this week the Court held that if she proved all of the elements of fraud, she could win her case, despite the one-year limitation, because actual fraud has a longer statute of limitations.

No violation of the ADA where MS patient-employee can no longer drive and driving is an "essential function"

  In Blank v. Pathways Community Mental Health, the Court upheld the Plaintiff's dismissal from her position as a life skills technician, after she was diagnosed with Multiple Sclerosis.  The Employer and the Court relied heavily upon her Job Description which provided that the ability to drive to client homes and to provide transportation was an "essential functon" within her job.  Under existing definitions of the ADA and Michigan's Handicapper Civil Rights Act, the employer is not obligated to accommodate by finding the disabled employee a new job or re-defining an existing job.

Potential new regulations under the Americans with Disabilities Act

Noting that all of us are, for the most part, merely temporarily "abled", the Federal government has proposed sweeping new regulations pursuant to the ADA.They were published in the Federal Register on Tuesday, allowing 60 days for public comment.  As one might imagine, the Chamber of Commerce has attempted to exercise its muscle to negate the regulations, despite straightforward exemptions and reservations applicable to small businesses.  The Bush Administration has inserted a "safe harbor" provision so that small businesses will be exempted from the improvements if they spent one percent of their gross revenue in the prior year removing obstacles.

Today, the Census Bureau reports that 51 million Americans have a disability, and two-thirds of those are severe impairments.  That number and proportion will increase as the population ages.  By 2010, the government estimates that two percent of the population will be utilizing mobility devices.  As the population continues to age, the number of people who are challenged by hearing problems or mobility limitations will increase significantly.

The rules also confirm access for guide dogs and other service animals in public places, but also define the circumstances under which access may be denied.  They confirm access for mobility devices but also allow malls, amusement parks and shopping centers to impose reasonable restrictions on Segways, golf carts and the like.