In Back v Hartford I had submitted a limited number of questions to Hartford Insurance Company to try and investigate any potential bias on the part of Hartford and the doctors it hired to review the records. Hartford objected and refused to answer a single question. We filed a motion to compel which the Court granted with one small exception.

The Plaintiff in this case has shown, pursuant to Rule 26(b)(1), that the
information she seeks is relevant to her claim that the Defendant’s decision to terminate her LTD benefits was procedurally deficient, and “appears reasonably calculated to lead to the discovery of admissible evidence.” Moreover, with one exception discussed below, her discovery requests are narrowly tailored to the extent that any burden or expense to the Defendant does not outweigh their likely benefit. See Rule 26(b)(2)(C).

First, Plaintiff has shown an apparent conflict of interest arising out of Defendant’s
dual role as both payor of benefits and plan administrator. “The need for discovery
increases where the insurance company serves as plan administrator as well as payor of benefits.” Meyers, supra, 581 F.Supp.2d at 914. See also Glenn, supra.

Secondly, the effect of this conflict is illuminated by the short shrift the Defendant gave to Plaintiff’s receipt of Social Security Disability benefits. It is true that “an ERISA plan administrator is not bound by an SSA disability determination when reviewing a claim for benefits under an ERISA plan.” Whitaker v. Hartford Life and Acc. Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005); Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832-33, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003)(Unlike the rule in Social Security disability cases, treating physicians are not given deference in ERISA review). However, “[t]his is not to say . . . that the SSA determination is meaningless and should be entirely disregarded.” Calvert v. Firstar Finance, Inc., 409 F.3d 286, 294 (6th Cir. 2005). In DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440 (6th Cir. 2009), the Sixth Circuit set forth a three-part inquiry for assessing the effect of Social Security Disability payments:

“‘[i]f the plan administrator (1) encourages the applicant to apply for Social
Security disability payments; (2) financially benefits from the applicant's
receipt of Social Security; and then (3) fails to explain why it is taking a
position different from the SSA on the question of disability, the reviewing
court should weigh this in favor of a finding that the decision was arbitrary
and capricious.’” Id., 558 F.3d at 446 (citing Bennett v. Kemper Nat'l Servs., 514 F.3d 547, 554 (6th Cir.2008).

As to the third factor, Defendant did not adequately explain why it was taking a
position contrary to the SSA’s determination that Plaintiff was disabled from all work. In
fact, in their original 8-page termination letter of November 10, 2008, Defendant did not even mention the Social Security decision.

In support of her claim of conflict of interest and bias, the Plaintiff has also raised
a claim of financial bias on the part of Defendant’s reviewing physicians to justify further inquiry. Exhibit A to her reply brief [Docket #21] shows, for example, that Dr. Syrjamaki is affiliated with Reliable Review Services, which proclaims a vision “to provide employers, third party administrators and disability insurers with professional case review resources focused on the disability industry.” RRS also states in its literature that it is “focused exclusively on meeting the needs of the disability industry,” and boasts of a nationwide clientele. Exhibit A also contains promotional material from another medical review company that Defendant used in this case, MCMC, which claims to perform over 50,000 independent medical reviews (i.e., file reviews) and 18,000 IMEs annually.2 MCMC states that it “provides assistance in resolving disability claims questions in a effort to manage risk, control claim costs and increase productivity.” (Emphasis added).

The medical review companies used in this case derive a tremendous financial
benefit in service to the insurance industry. The degree to which those benefits lead to
bias in their disability opinions is fair game for discovery.

Thus, Plaintiff has presented much more that “a mere allegation” of bias. Indeed,
even under the “predicate showing” test of Likas and Putney, Plaintiff has more than met her burden of justifying the need for discovery. As the Myers court noted, “discovery into alleged procedural defects must be strictly and carefully circumscribed to the needs of the particular case.” 581 F.Supp.2d at 914. Further, Rule 26(b)(2)(C) directs the court to weigh the potential benefit of discovery against its cost and burden to the producing party. With these precepts in mind, I find that with the exception of Interrogatory No. 2, Plaintiff’s discovery requests are sufficiently and narrowly focused on the relevant issues of bias and conflict of interest.

On October 9, 2006, Randy Alderman was part of a crew of six men working on a homesite in a new subdivision, adjacent to some power lines. As the crane lowered one of the forms onto the foundation, it contacted a power line. A jolt of electric current flowed through the crane and down the chain to the form and the metal "whaler" plaintiff was using to control the form from the ground. Plaintiff was knocked unconscious and his hands and feet were severely burned, requiring skin grafts.

Justice Young reversed the Court of Appeals decision and threw out Randy's case. Why? Because "The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers." I guess in Justice Young's world since only 6 people were at risk of electrocution and only one guy actually got electrocuted its no big deal. I suspect that Randy Alderman and his family might disagree.

Who benefited from this decision? Defendant J.C. Development LLC and its liability insurance company.

Who was harmed by this decision. The worker- Randy Alderman.
Who is going to pay Randy's medical bills now??? Not the insurance company or corporate defendant that's for sure.

This is just the latest in a long string of decisions that Justice Young has decided giving a free pass to the insurance companies and corporate interests.

A recent decision issued by the US District Court in Detroit illustrates perfectly the subtle shift now taking place where the Court allowed plaintiff to actually depose the two physicians relied upon by the Standard Insurance Company to deny plaintiff's claim for long term disability benefits.

Plaintiff's counsel discovered that one of the physicians, Dr. Dickerson had been used over and over again to terminate disability benefit claims. A simple search of the case law provided at least a dozen other cases in which Standard used this expert. Counsel for plaintiff astutely asked:

Is Dr. Dickerson's extensive association with Standard the result of him being designated an “approved physician” by the insurer's management team? Is it because all or nearly all of his opinions favor Standard instead of the disabled person? Or is it because he is a “consultant physician” for Oregon Medical Evaluations, Inc. (OEM) which provides “services for insurance claims professionals, self-insured groups, attorneys and workers compensation programs.”? The answers to these and other questions such as percentage of income obtained or percentage of professional time spent in “consulting “for Standard and others are impossible to ascertain without formal discovery.

Plaintiff's counsel also interestingly discovered that the second physician relied upon by Standard, Dr. Shirley Ingram:

From what can be ascertained from this information, Dr. Ingram has taken two remedial medical programs in the four-year period from 2003 to 2007. She was not practicing clinical medicine or seeing patients during the relevant period that Ms. McCandless was claiming benefits, 2005 thru 2007. Yet, Standard believes that she was the best physician to review Ms. McCandless’s claim.

The court agreed that this information merited further discovery to find out why the Standard relied upon these two experts in denying plaintiff's claim for long term disability benefits rather than her treating physicians who all supported her claim for disability benefits.

Our client, James Hawthorne was rear ended by a semi-truck owned and operated by a Kentucky based Trucking company. Mr. Hawthorne hired our firm to pursue a claim against the at-fault driver when he was unable to return to work due to a serious neck injury (due to whiplash).

SMDA filed a lawsuit against the trucking company in the Wayne County Circuit Court. Despite being served with the complaint by the local sheriff, the trucking comapny failed to appear in the case and was defaulted. Despite receiving notice of the default, the Trucking company again failed to appear in the case and a default judgment ($942,000) was entered by the Court.

The Court then granted SMDA's motion for judgment finding that Plaintiff had established every element required by the MCS90 endorsement and entered a judgment for Plaintiff.

SMDA is available to handle any trucking accident cases or assist in any trucking accident claims that may involve the MCS90 endorsement.

What is discovery and why is it important?

Prior to the MetLife v Glenn decision Courts generally accepted the Long Term Disability Insurance Companies argument that no discovery was needed or allowed in ERISA cases. That appears to have started to changed.

In Geer v Hartford Life and Accident Co. the Court rejected Hartford's motion for a blanket protective order preventing all discovery. Instead, the Court determined that "discovery should be allowed where a plaintiff has provided sufficient initial facts suggesting a likelihood that probative evidence of bias or procedural deprivation would be developed." The Court found most most persuasive Plaintiff's argument questioning the independence of the file reviewer (doctor) where Plaintiff presented evidence that Hartford had hired the same file reviewer 34 times in the past.

The Defendant's appealed this decision to the Michigan Supreme Court. The Supreme Court decided that the Court of Appeals got it right and upheld the decision.Justice Robert Young (who is up for re-election in 2010) strongly disagreed.

To support his position, Justice Young relies on antiquated views expressed by the court almost 50 years ago when discussing loss of consortium. The simple fact is that the economic value of child-rearing is not hard to quantify because we know precisely how much it would cost to replace the parent who typically provides those necessary services. Obviously, we cannot replace the love the parent provides the child at the same time that he or she performs those services, but we can ensure that the child's basic needs are not ignored.

We can ensure that the child gets to the after-school events and the doctor's office and eats a nutritious meal, but, of course, it costs money to make that happen. Regardless, Justice Young would deny the child any recovery for the economic value of those services because he is afraid that it will undermine the sanctity of the parent-child relationship.

Justice young ignores the fact that in this particular case, the parent-child relationship has ended, because of allegedly botched medical care, and thus, economic damages are likely the only way to ensure that such essential services continue to be provided for the child who has lost a parent.

To that child, Justice Young offers only words about his concerns that such compensation will "devalue" familial relationships. Words, however, will not ensure that a child with no mother, as in this case, is taken to the doctor's office promptly or that the child participates in school activities or sports. By the same token, words in the form of a legal rule awarding compensation for such services will not "devalue" anything -- parents will still love their children -- and when a parent is killed, child care (and the money to pay for such care) will still be required. in the end, the parent-child relationship will be no worse for having such a rule, which simply recognizes what President Obama might call the "real-life" consequences of judicial decisions.

Young's dissent is not totally shocking as he has simply continued a long line of anti-family, pro insurance decisions. Young came to the court having left his job as counsel for insurance giant AAA. By virtue of this decision (and a long list of many others) I will bet that Young guarantees the support (and contributions) from the powerful and monied Insurance and Business lobby.

Referring to the industry's objection to changing its business, Potter said he "worries 'that the industry's charm offensive, which is the most visible part of duplicitous and well-financed PR and lobbying campaigns, may well shape'" insurance reform in a way that is more beneficial to Wall Street than to "average Americans."

This "charm offensive" reminds me of those terrific Allstate commericals where the good looking gentleman says "Your in good hands with Allstate" after some vaguely disturbing scenario is played out in the background. Man, who wouldn't want to be in Allstate's hands. Unfortunately, when it comes time to pay a claim many of my client's feel like Allstate laced up some boxing gloves to cover those "good hands."

ABC news provides details of Mr. Potters testimony here.

There were a number of very interesting and useful sessions dealing with the Supreme Court's Metlife v Glenn decision and how it is impacting cases across the country as well as various other in depth discussions on a number of relevant issues. The last day we had a panel of a half-dozen federal court judges discuss their view's of these cases.

According to the sworn testimony of a representative of State Farm Insurance it appears that the company paid millions of dollars to a consulting firm to analyze and modify its claims handling practices in the mid 90s. According to the recent testimony of former State Farm employee Robert Butler in the case of Armisted v. State Farm (No. 2:07-cv-10259, Hon. Arthur J. Tarnow) in the US District Court in Detroit, State Farm implemented the ACE program. An integral part of this program was to “capture opportunities.” Those “opportunities” happened to include the indemnity payments made to people who were insured by State Farm in Michigan when they were injured in a car accident. State Farm determined that there was the opportunity to capture millions of dollars annually in payments for PIP benefits.

Mr. Butler confirmed during his testimony that State Farm determined that it was settling too many cases. Accordingly, it appears to this writer that State Farm then decided that more claims should be forced into litigation in order for State Farm to “capture” the potential “opportunities.” In Michigan alone State Farm concluded the potential “opportunity” included about $30 million dollars a year in indemnity payments. Mr. Butler confirmed that the ACE program was a nationwide initiative.

The secret internal documents that State Farm was forced to produce in the litigation included a description of tactics to cause delays in paying claims, and hidden agenda tactics including the “surprise”, the “silence”, the “fake out”, the “go for broke”, and also the use of “absent authority tactics” to “pass the buck"- an effective technique to say you have no authority to deal with a claim.

This is another prime example of an insurance company putting the bottom line over the importance of the little people who may be injured and in need of benefits.

This is critically important because up to this point in time Court's were forced to review these cases using the very deferential "arbitrary and capricious" standard of review. In non lawyer speak, the court did not review the evidence to determine if the insurance company made the correct decision. Instead, the court was forced to determine whether there was any reasonable basis for the decision. The practical effect of this limited standard of review was to make it exceedingly difficult for a claimant to win. After all, if the insurance company hires a qualified doctor to review the claim and that doctor says the claimant is not disabled then there is a reasonable basis for the claims decision. (And oh by the way, never mind that we use that same doctor over and over and over and pay him and the reviewing company that he works for hundreds of thousands of dollars a year. they can be fair an impartial. yeah right.)

Now, the courts will review these claims de novo. In other words, the Court will be empowered to determine whether or not the correct decision was made-Whether or not the claimant meets the policies definition of disability. This is really huge.