Links:
Mark Debofsky -
http://ddbchicago.com/articlesandarchives.htmBrian S King -
http://www.erisa-claims.com/blog/index.cfmStephen Rosenberg -
http://www.bostonerisalaw.com/Roy F Harmon -
http://healthplanlaw.com/?cat=3
- Here are some ERISA cases that reached a courtroom where the
judge tossed out the vocational analysis. Keep in mind that most cases
settle after the insurer uses biased TSA's to force the claimant to
hire a lawyer and file a complaint. Thousands of disability
claims are being manipulated through the vocational assessment
(transferable skills analysis). When is the CRCC going to stop this
madness and institute some standards? It is ironic that a profession
charged with helping individuals with disabilities allows itself to
take part in the destruction of the very same people.
Creech v. Unum ProvidentThe
Sixth Circuit Court of Appeals analysis of a transferable skills
analysis. Note the similarity of games relating to SVP - Specific
Vocational Preparation and GED as illustrated in Case Study Number One
on this website.
Havens v. Continental Casualty Co. (CNA)The Third Circuit Court Appeals reverses District Court and slams the transferable skills analysis.
Rappa v. Connecticut General Life Insurance Co. (CGLIC)The
TSA's conclusion that claimant can do certain sedentary jobs because he
can sit for up to 30 mins at a time does not provide CGLIC with
sufficient basis on which to deny benefits.
Spangler v. Met Life The report by the vocational consultant was an inaccurate and incomplete representation of claimants ability to work.
Barnes v. Bellsouth CorpCourt
rejected a transferable skills analysis on the ground that it
identified positions for which the insured no experience or skills
Robinson v. Aetna (5th Circuit - 2006)The
Fifth Circuit rejected the insurers reliance on an unidentified
vocational consultant who said driving was not a material duty of
working as a sales representative.
Wood v Xerox & Prudential (N D Cal - 2006)Court rejects multiple omissions in multiple transferable skills analysis reports.
Whealen v. Hartford LifeCourt
rejects the vocational assessment due to incorrect wage data and jobs
that the insured had no training or experience. The vocational
"expert" completely dismissed the treating physician's diagnosis.
Rosen v Provident E.D. Pa 2003Consultant failed to address inability to drive or sit long periods.
Dorsey v Provident E.D. Pa 2001Vocational
Rehabilitation Consultant never even reviewed actual job description.
Job required traveling yet consultant never addressed the issue.
Purnell v Unum De 2003Vocational Consultant never compared restrictions and limitations on sitting with the definition of sedentary
Ott v Litton et al Pa M.D. 2004Court finds vocational analysis is flawed. The three jobs are unreasonable.
Glenn v Met Life (6th Circuit Court of Appeals)Occupational Analyst was not supplied with full information.
(Note: This case may be heard by the US Supreme Court)
Gilchrest v UnumFindings of rehabilitation consultant are arbitrary and capricious
Minix v Liberty LifeThe TSA has questionable conclusions. The TSA is not useful in determining disability.
Force v AmeritechCourt determines the Transferable Skills Analysis is invalid.
Deleon v CoreThe vocational expert hired by defendents relied on information not supported by the record and is not adequate evidence
Guthrie v National RuralAppeal Court finds five occupations put forth by vocational expert to be unreasonable.
Wilson v Life Insurance Company of North America LINAThe TSA prepared by LINA is superficial. The TSA was based on a review of documents cryptically described.
Krizek v CIGNACourt finds insured may be disabled despite TSA which identified alternative occupations.
Blakely v Continental CasualtyThe vocational assessment lacks any indicia of objectivity
Ravesloot v BaxterThe
vocational assessment found five jobs but did not discuss what the jobs
actually entailed. Claim decision is arbitrary when it doesn't provide
any evidence the insured could actually perform the new job.
Urso v PrudentialFinding that insured could perform any of five occupations was improper
Critchfield v Continental Casualty (Sixth Circuit)Medical evidence did not support the vocational specialist's conclusions that insured could work.
Evans v Unum ProvidentInsurers vocational analysis ignores unrefuted evidence. There is no discussion of the mental aspects of the position.
Cook v Liberty LifeCourt disagrees with vocational assessment indicating insured could work at her own or any occupation.
Curtin v UnumThe transferable skills analysis provides no support for the conclusion insured is employable.
Reading Material if you can find on the internet:
- The
impact of vocational evidence in ERISA lawsuits and the court's
reliance on the opinions of vocational experts -Stephanie Sleister
(Journal of Vocational Rehabilitation,2005)
ERISA issues related to Medical Directors of the Insurance Industry:The
Insurance Industry employs physicians in the position of Medical
Director. These Medical Directors sometimes make decisions that impact
the vocational analysis or transferable skills analysis. The Council
on Ethical and Judicial Affairs (CEJA) of the American Medical
Association (AMA) wrote a report that has been incorporated into the
AMA's Code of Ethics entitled
"Ethical Obligations of Medical Directors" (listed under June 1999 reports). Here are some highlights:
- Assuming a title or position that removes the
physician from direct patient-physician relationships does not override
professional ethical obligations…Whenever physicians employ professional
knowledge and values gained through medical training and practice, and in so
doing affect individual or group patient care, they are functioning within the
professional sphere of physicians and must uphold ethical obligations,
including those articulated by the AMA’s Code of Medical Ethics.
- Physicians
who are employed as medical directors shall hold an unlimited current
license to practice medicine in one of the States served by the managed
care organization, and where that Medical Director will be making
clinical decisions be involved in peer review that Medical Director
should have a current license in each applicable State.
The American Medical Association also states:
- When physicians provide expert
opinions, they should have recent and substantive experience and knowledge in
the particular area, maintain objectivity and reflect current scientific
thought and standards of care.
Statute of limitations and
ERISA:
The Claim Procedure Rules incorporated into 29 CFR 2560.503-1 include a
provision to extend any applicable statute of limitation during any voluntary
appeal level that the Insurer offers the claimant:
- The plan agrees that any
statute of limitations or other defense based on timeliness is tolled
during the time that any such voluntary appeal is pending
Subsidiaries of Disability Insurance Carriers:
The Insurance Industry employs a very large number of Rehabilitation
Counselors through their subsidiaries. If a Rehabilitation Counselor
performs a transferable skills analysis in a case they should reveal the
conflict of interest-
- Intracorp - Cigna (CGLIC & LINA)
- Cascade Disability Management - Liberty Mutual
- Broadspire - Aetna
- Matrix Absence Management - Reliance Standard thru parent Delphi
Note: Genex was sold off by Unum
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