Litigating Disability Insurance Claims

Thursday, January 26 to Friday, January 27, 2012

Flatotel, New York, NY

7:15 Continental Breakfast and Registration

8:00 Co-Chairs’ Welcoming Remarks

William D. Hittler
Nilan Johnson Lewis, P.A.   

Robert K. Scott
Law Offices of Robert K. Scott

8:05  Insurers In-House Roundtable: Counsel and Claims Examiner Insights  on New & Emerging Issues in Disability Insurance Claims


Gordon Jermane
Assistant Vice President & Counsel
Manulife Financial

Danlias F. Howe
Vice President
Assistant    General    Counsel
Universal    American    Corp.

Colleen A. DeNoto
Vice President
Corporate Counsel
The Prudential Insurance Company of America

Sean D. Quinn
Vice President
Counsel
Guardian Life Insurance Company of America

Peter M. Kelly
Chief Employee Benefits Counsel
Blue Cross Blue Shield Association

Mark C. Taylor, MS, CCM, CDMS
Director, Claims/Consulting
RGA Reinsurance Company


R. Eric Powers, III   
Vice President
Associate General Counsel  
Corporate and    Assistant Corporate Secretary
Crawford & Company

Anne J. Farina
Assistant Vice President and Senior Counsel
Sun Life Financial

Christina McNally
Senior Counsel
CIGNA Corporation

Sue A. Sperry
Litigation Counsel
Assurant Employee    Benefits   

Daniel Gallagher
Assistant General Counsel
Ace INA Holdings, Inc.

Nell Walker
Associate Chief Counsel   
CIGNA Legal & Public Affairs


Adrienne Publicover
Partner
Wilson Elser Moskowitz Edelman & Dicker LLP

In this valuable panel, hear from in-house counsel on the front lines at    the leading carriers. Gain perspective on claims management,    interpretation of current case law, and what they expect from outside    counsel. Join a great discussion with plenty of opportunities for Q&A.   

Topics include:

• Best practices in claims investigations and decisions, and claims examiner review
• Settlement strategy
• The use of social media as an investigative tool
• Determining cause of disability: accident v. sickness?
• Difficulties in disability claims that involve mental health issues and subjective impairments
• Dealing with your insured after a coverage dispute
• Waiver of Insurer’s Rights
• And much more

10:05  Morning Coffee Break

10:15 ​Discovery Scope & Limitations “360”: Key Strategies to Make Discovery Useful and Meaningful to Your Casend How to Tailor and Narrow Broad Requests

Theodore Glockner
Counsel
Guardian Life Insurance Company of America

Kimberly J. Ruppel
Member
Dickinson Wright PLLC

Susan C. Lonowski
Member
Frost Brown Todd LLC

Jason Newfield
Partner
Frankel & Newfield, PC

MetLife:

• How has the Supreme Court’s ruling trickled down to the lower courts?
• Understanding the extent of discovery that courts are allowing
post-MetLife
• Making MetLife as expansive for Plaintiffs and as limiting as Defendants
would like it to be
• What to do about the lack of uniformity in circuit court decisions: making
sense of the different approaches throughout the country
• Seeking a clear guideline to obtaining discovery: Ways to resolve the lack
of a clear guideline; Taking the risk of fighting discovery requests when
it can result in bad opinions
• The pros and cons of denying discovery requests
Conflict of Discovery
• How is the insurer walling off balancing the role of paying out the claim
versus the role as reviewer of the claim?
• Understanding the role of the insurer as a fiduciary: What are the duties
owed to the claimant?; Defining the limits to the role of the insurer as the
fiduciary; Whether the insurer has an inherent conflict
• Complying with ERISA and best practices in order to ensure a full and fair
review of the claim
• Successful ways to respond to Plaintiff ’s assertion of conflict of interest:
How do insurers prepare for the arguments being made?
• What do Plaintiff ’s need to show to secure discovery on conflict?: Whether
Plaintiffs are entitled to discovery and whether Plaintiffs need to show
potential good cause to secure discovery
Conflict Affidavit
• How are conflict affidavits addressing the issue of conflict discovery raised
in MetLife?
• Drafting the conflict affidavit to avoid unnecessary discovery requests
down the road
• Going beyond the assertion that denial was not motivated by financial
pressures and the bottom line
• An in-depth look at why conflict affidavits are more prevalent now more
than ever
• Providing original documents utilizing in the decision making process
• When and how to utilize conflict affidavits
Discovery Requests
• Identifying the key issues of discovery at the beginning stages of litigation
• What is the plaintiff requesting and how can the insurer properly respond
to it?: Narrowing overly broad requests; Tailoring discovery requests that
will lead to effective management of the case; Avoiding vague discovery
requests and casting the net too wide; Scheduling a Rule 26 administrative
hearing early on to outline discovery and define its scope
• Managing discovery: Managing overly broad requests; Engaging in
meaningful discussions from the beginning from both sides of the aisle
• Making sense of the discovery you do receive and ways to make
it meaningful and viable
• Utilizing discovery requests to “supplement” the claim
• Motion practice: How to attempt to resolve discovery disputes;
Determining the appropriate issues and the discovery motions to file;
Determining the necessity for filing a motion to compel; Utilizing the
Rule 30b(6) deposition to your advantage
Entire Documents v. Claim File
• Whether the insurer is required to produce documents utilized in which
the claim decision is based: Engaging in meaningful discussion to obtain
the relevant information; Filing a motion to compel discovery
• Determining the contents of the administrative record and assessing the
claims of privilege: Whether internal communications, memorandums
and policies are protected and confidential
• Burden of proof on the claimant: Ways to satisfy the insurer’s request for
the claimant’s medical evidence, records, diagnostic tests, etc.; Identifying
what information is relevant and necessary

Penalties for Failure to Produce Documents

• Complying with the $150/day penalty under ERISA
• Defining the parameters of the penalty: Whether the penalty applies to the
basic skeleton of the policy or on all grounds on which the denial is based;
What are “plan documents”?
• Addressing the demand for full disclosure

11:45 Innovative Pre-Trial Strategies for Disability Insurance Claims: Settlement, Mediation, Attorney’s Fees and More

Mala Rafik
Managing Partner
Rosenfeld Rafik & Sullivan, P.C.

Lee W. Marcus
Founding Member
Marcus & Myers, P.A.

Eric L. Buchanan
President/Owner
Eric Buchanan & Associates, PLLC

Mediation:
• Utilizing mediation as a viable tool to help get claims resolved quickly
• Combating the problem when the insured lacks the knowledge
of the mediation process
• Explaining the mediation process from the beginning
Settlement
• Defining the scope of the confidentiality of settlement agreements
• Understanding why cases are not settled unless the claimant gets
contractual benefits, litigation costs and punitive damages
Attorney’s Fees: ERISA
• Whether the prevailing party will recover attorney’s fees
• Whether the courts are creating an overly broad definition of the phrase
“success on the merits”: How successful are plaintiffs in recovering
attorneys fees post-Reliance?; Recovery of attorney’s fees based on
successful mediation, settlement, voluntary restatement of the claim
by the insurer, etc.
• Addressing the issue of whether the courts are using attorney’s fees
as a punitive measure
Attorney’s Fees: Non ERISA
• How do we deal with fee multipliers?: Addressing Plaintiff ’s entitlement
to 2 ½ x the attorney’s fees recovered
• Recovering attorney’s fees even in the absence of a jury trial: Recovering
in settlement, mediation or other alternative methods

1:00 Networking Luncheon for Speakers and Delegates

2:00 The Current Role of the IME’s Evaluation, the Treating Physician’s Opinion, the FCE, and Medical Recordsin the Disability Claims Process

Mark I. Levy MD, DLFAPA
Medical Director
Distinguished Life Fellow, American Psychiatric Association
Diplomate American Board of Psychiatry and Neurology
with Added Qualifications in Forensic Psychiatry
Assistant Clinical Professor Psychiatry, UCSF

Richard Kaplan, MD
Founding Partner
Uniontown Medical Rehabilitation, P.C.

Richard N. Bien
Partner
Lathrop & Gage LLP

Battle of the Exerts:
• Changing the perception of bias of the IME: Evaluating the practice of
rotating IME’s to ensure independent review of the medical record; How
are IME’s selected?; Combating the issue when insurers are utilizing the
same IME repeatedly; Distinguishing between the in house IME and
the retainer IME; Responding to the argument that the wrong IME’s are
chosen for the particular claimant; What are the limitations of a medical
records review only vs. a complete IME?; What are the differences in
mission, method and ethical duty of the treating physician vs. the IME?
• Evaluating whether the paper review of the medical record is effective
• Placing value on the opinion of the treating physician: How effective is an
in person evaluation? A telephone evaluation?; Whether the daily life of the
claimant is overlooked in the examination process; Whether the treating
physician should take a proactive approach and consult with the IME
• Evaluating the role of third party vendors: Addressing lawsuits against
third party vendors; Whether the insurer owes a duty of care to hire
the appropriate vendor

Medical Evidence:
• Whether the medical record is reliable: Whether the treating physician
is biased and favors the patient
• Whether the in-person physical exam is sufficient and adequate
• How much can a claimant manipulate the result due to lack of effort?
Maximum effort?
• Placing weight and value on the FCE
• Implementing strategies to obtain objective medical evidence timely and
effectively: Burden of proof on the claimant to provide objective medical
evidence; Evaluating whether filing motions to compel discovery is a
successful strategy when the claimant resists IME’s and fails to provide
adequate medical evidence
• Two is company: three’s a crowd: the role of electronic recording of
psychiatric IME interviews
Discovery in IME and Peer Review
• Responding to discovery requests when the Plaintiff is resisting
the IME and Peer Review evaluation
• Appropriately outlining the review process and identifying the materials
utilized in the decision making process
• Evaluating the role of Declarations by the IME to support a Motion
to Compel a Mental Exam
• Calculating the amount paid to a vendor: Learning how to draw the line
when plaintiffs are asking for burdensome calculations
• Providing the credentials of the IME’s: Identifying what is relevant;
Highlighting the appropriate credentials; Ways to appropriately critique
the credentials of the IME: what to look for and ways to address the
inadequacies; Whether specialized medical knowledge is a necessary
component of the IME’s credentials
• Ways to protect confidential information in the claim file: Whether
redaction is necessary; and if so, how much?
• Whether the courts should get involved in the vendor selection process
• Rotating vendors to avoid the appearance of bias and to ensure an
independent review of the claim
• The denial factor: How many claims were reviewed and denied?;
Whether repetitive denial leads to an appearance of bias; Ways to utilize
claim denial information

3:15 Afternoon Refreshment Break

3:25 The Restrictions and Limitations Between the Own Occupation and the Any Occupation Standard

Scott M. Riemer
Partner
Riemer & Associates, LLC

Lisa Bondurant
Smith Moore Leatherwood LLP

• What is the standard to determine whether the claimant can return
to work?
• Proving the inability to return to work for the first 2 years
• Proving the inability to work in another occupation for the next
several years
• Whether the claimant is constrained by financial pressures and returns
to work disabled
• Defining any occupation: What does it mean?; What are the standards
used to define any occupation?; Whether the insured is protected under
the any occupation standard
• Determining whether the claimant is unable to perform all duties or just
one duty
• Tightening clauses in the policy and defining exactly the specific material
duties of a claimant’s occupation: Identifying terms that are ambiguous;
Writing a clause that the occupation is based on the national economy;
Determining how the claimant’s employer is performing in the national
economy; Whether utilizing the national economy standard restricts the
claimant’s rights
• Comparing the differences of the occupation in a rural area versus a
metropolitan area: Whether geography makes a difference; Evaluating the
disability based on the ability to carry out duties of the occupation in a
different environment
• Adding in additional factors to the evaluation process: Whether using
technology affects whether the claimant is able to perform his/her job in
another environment; Whether the economy affects the ability to obtain
another occupation
• What exactly are the occupational duties of a claimant?: What are
insurers looking for?; What are the material and substantial duties of
an occupation?; How are the duties defined?; Evaluating the factors to
determine whether the material and substantial duties of an occupation
can be performed
• Weighing the value of the opinion of the vocational expert: Documenting
the occupation of the claimant; What factors come into play in the
vocational rehabilitation expert evaluation?
• Restriction v. Limitation: Identifying when the claimant is a risk to oneself
or someone else and when the claimant is limited and loses their ability to
perform their job
• Analyzing own occupation and any occupation issues under ERISA
• Analyzing own occupation and any occupation issues under individual
policies governed by state law

4:30 Subjective Disorders: Presenting Objective Proof for Fibromyalgia, Chronic Fatigue Syndrome, Chronic Painand Mental Illness

Stephen H. Broer
Counsel
Guardian Life Insurance Company of America

William D. Hittler
Shareholder

Nilan Johnson Lewis, P.A.
Henry Conroe, MD
Psychiatrist

George J. Carnevale, Ph.D.
Clinical Neuropsychologist
Vice President
Rehabilitation Specialists Assistant Professor,
Department of Physical Medicine and Rehabilitation,
UMDNJ-NJ Medical School

Mental Illness:
• How does a physical problem in the brain chemistry translate into
a mental symptom?
• Evaluating the medical experts that are key to mental illness claims:
Addressing what differentiates a poorly done IME and a well done
psychiatric IME – What can be done to improve the quality of these
IME’s?; Giving value to the treating physician’s advice and evaluating their
role as the claimant’s advocate; Evaluating the role of the unbiased IME
and how this can be achieved
• Capping benefits at 24 months
• Why are more carriers adding a subjective clause in the policy?
• What are the limitations to the mental illness claims?
• Interpreting the co-morbid condition: When the mental illness arises out
of the physical illness; How will the insurer classify co-morbid conditions?
• Posing a challenge least amenable to hard science: Measuring the
conditions of mental illness and the role of psychological testing
• Dealing with the temporarily issue: What to do when the claimant returns
to work after being temporary disabled and how to facilitate the transition
Fibromyalgia, Chronic Fatigue Syndrome, Chronic Pain
• What is the objective medical evidence needed to prove subjective
conditions?
• Balancing the objective proof versus the subjective disorder: Requiring
an FCE when the pain is subjective
• Distinguishing one claimant’s ability to work with these conditions
and another claimant’s inability to work with these condition
• Dealing with judges who are not medically savvy: Presenting complex
medical evidence in a practical way; Complying with the court’s request
for objective proof
• What are the effective strategies to proving these difficult subjective
disorders?
• Adding pain doctors into the mix: Whether the care/treatment from
pain doctors are appropriate
• Claimant’s taking the proactive approach in proving their subjective
disorder: Proving disability for a certain time period; What does an IME
show years later in the claim?; Requiring an IME to visit a claimant
for an in-person evaluation; Emphasizing the in-person evaluation
• Whether the insurers should be required to do an IME early in
the process

5:45 Conference Adjourns


7:30 Continental Breakfast

8:00 The View From the Bench

The Honorable Warren Eginton
United States District Court
District of Connecticut

The Honorable John C. Coughenour
United States District Court
Western District of Washington

The Honorable James L. Robart
United States District Court
Western District of Washington

The Honorable Irene M. Keeley
United States District Court
Northern District of West Virginia

The Honorable Eric F. Melgren
United States District Court
District of Kansas

The Honorable Catherine C. Blake
United States District Court
District of Maryland

The Honorable Nannette A. Baker
United States District Court
Eastern District of Missouri

Moderator:

Pamela Atkins
Principal Owner
Atkins & Associates, LLC

The judges’ panel was very highly-rated at last year’s conference-don’t miss it
this year! Top jurists who have presided over disability and ERISA and other
insurance litigation matters will provide attendees with candid, practical insights
on these and other topics:

• Survey of the individual disability and ERISA landscape
• Methods and process utilized in deciding cases early
• Novel approaches to trial and case management
• Key do’s and dont’s for counsel
• Trends and developments in 2012 and beyond

9:30 Morning Coffee Break

9:40 Bad Faith: The New Wave of Claims and How to Ensure Proper Methods Are Embedded in Your Corporate Practices

Eric Fitzgerald
Shareholder
Marshall, Dennehey, Warner, Coleman & Goggin

David A. Bryant
Member
Daley DeBofsky & Bryant

Bad Faith Claims:
• What are the new causes of action?
• How to plead and respond to bad faith complaints
o Establishing proof of repetitive practices
o Responding to failure to remedy prior practices

• Affirmative Defenses
o Pleading or waiving attorney client privilege
o Indentifying the appropriate counterclaims

• Ensuring proper methods are embedded in the corporate practice
to avoid bad faith litigation later
• What to do when the insurer fails to follow up on corporate practices
• What does a pattern of bad practices reveal?
Scope of Discovery
• Preparing and deposing the 30(b)(6) witness
• Expanding the scope of documents with written discovery and the
bad faith count
• How to avoid the “smoking gun” documents in the claim file
• Other institutional practices which can help or hurt you
Calculating Benefits
• Whether calculation of benefits is a recipe for bad faith
Damages
• Recovering additional damages to include punitive damages in certain
jurisdictions
• Defining the scope of extra-contractual relief
• Proving and recovering attorney’s fees
• Defining the scope of compensatory damages

10:40 Deferential or De Novo Standard of Review:
How to Determine What the Plan Affords

Bryan D. Bolton
Funk & Bolton, P.A.

Nancy Pridgen
Partner
Monnolly, Pridgen, Colon-Machargo & Ellenberg, LLC

James A. Keller
Partner
Saul Ewing LLP

• Weighing in on the movement by state commissioners or legislatures
to prohibit discretionary clauses in the disability: What states and
what limitations exist?; How are the prohibitions phrased?; What are
the ramifications?; Whether ERISA should pre-empt these provisions;
Whether this will encourage multi-state employers to carefully select state
of issuance for group LTD; Whether this will encourage more self-funded
disability plans; If plan, as opposed to policy, retains discretion, whether
an employer delegates discretion to an insurer; Whether the claimant has
full fledged discovery; What are the effects on litigation if the discretionary
clauses are eliminated?; What is the effect of the insurer explicitly telling
the insured what is needed (medical records, diagnostic tests, etc.)
• Limitations, burdens and benefits to a de novo review: How effective is a
paper review of the record?; Responding to Plaintiff ’s argument that the
court should not rely solely on the administrative record; Whether the
administrative record is still the key document; How valid is Plaintiff ’s
argument that the insurer overlooked something in the claims process?;
Whether de novo review eliminates conflict of interest in discovery; The
risks to expanding discovery beyond the record in de novo review; The
implication of summary judgment on a de novo review; Judicial review v.
legislative intent
• Whether we are moving away from prompt review: Full and fair review
by whom?
• Determining when the insurer should have deferential standard of review
• What language in the policy or plan gives deference?: Satisfactory proof v.
safe harbor; What are the current trends?
• What should the policy say?: Whether insurers should change the language
of the policy or remain static
• Making sense of different circuit courts’ decisions: Interpreting specific
language to give or take away discretion; What policy language do the
courts agree is sufficient to confer discretion?; Whether the erosion of
discretion will lead to more trials; Remand v. Judicial Review; What
information outside the administrative record might a court consider?
• What is the impact of attorney involvement during claim review?
• Reviewing whether the insurer acted in an arbitrary and capricious way:
Evaluating the impact if the insurer overlooks something in the claims
process
• Identifying the appropriate standard of review to determine the scope
of discovery

11:40 Non-ERISA: An In Depth Look at the Emerging Topics in IDI and LTD Claims

Robert K. Scott
Managing Partner
Law Offices of Robert K. Scott

Mary Fuller
President
Disability Claims Consulting

IDI:
• Evaluating the aftermath of policies drafted in the 1980’s and 1990’s
• Reviewing the difficulties posed in claims management 20 years later
• Handling claims 20 years later when these claims are proving a negative
income
• Requiring a sophisticated level of claims analysis for insurers
• Dealing with financial pressures filtering in claims decisions
• Difficulties posed when claims are mishandled
• Ways to make sure a thorough and unbiased investigation of the claims
is completed
• Responding to the argument that IDI policies should be treated similarly
to ERISA policies

LTD:
• Utilizing surveillance and understanding its limitations
o Whether Private Investigators are effective
o Responding to claimant’s argument that a surveillance for one particular
day is not reflective of his/her disability on another day/week
o How to combat the claimant that forces himself/herself to be housebound
o How to accurately capture a disabled claimant
o Ways to eliminate misuse of surveillance

• Burden of proof on the claimant to disclose all the facts
• Whether insurers are ignoring information claimants provide
• Spotlight on miscellaneous hot topics

12:40 Calculating Offsets and Identifying When to Seek Refund of Overpayment

Michael J. Hannan, III
Partner
The Weathington Firm, P.C.

ERISA
• Defining the multi-step process in recovering overpayment of funds

o Analyzing and interpreting offsets pre-Great West v. Knudson
o Interpreting constructive trust in Great West v. Knudson
o Reviewing the decision in Sereboff where no tracing of funds was required
o Defining “other equitable relief ” in Section 502(a)(3) of ERISA
o Establishing the insurer is a planned fiduciary and have standing
to bring suit
o Convincing the insured and the court that the fund sought is the
overpayment itself and not the insured’s general assets
o What to do when the claimant is judgment proof
o Recouping ongoing net benefits to satisfy debt in the interim
o Difficulties posed when asserting unjust enrichment
o Determining whether there is a payment agreement
o Battling with the obstacles to claim benefits in overpayment

Non-ERISA:
• What are the available state remedies?
• Analyzing legal/equitable relief
• Interpreting and analyzing cases that allow/disallow recovery
• Understanding how the courts have responded to over payment and recovery
• How SSA anti-assignment provision affects state law claims
• Emphasizing the need for constructive trust
• Recovering interest and fees
• Recouping ongoing net benefits to satisfy debt in the interim

1:25 Main Conference Ends – Lunch for Master Class B Participants

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Location:
Flatotel
New York, NY