Legal Report

At a recent PBA meeting, one of the delegates suggested that the members might be interested in knowing the names of all the Police Surgeons and their areas of specialty. I called Chief Police Surgeon John J. Asheld and he was most cooperative in providing the information: Chief Police Surgeon, Dr. John J. Asheld, Board-certified in Internal Medicine; Police Surgeon, Dr. William R. Basta, Board-certified in Pulmonary Medicine; Police Surgeon, Dr. Leonard J. Infranca, Board-certified in Orthopedics; Police Surgeon, Dr. Scott Rankin, Board-certified in Internal Medicine; Police Surgeon, Dr. Joseph C. Serletti, Board-certified in Orthopedics; Police Surgeon, Dr. Byron M. Treitler, Board-certified in General Surgery; Police Surgeon, Dr. Raymond J. Voulo, Board-certified in Family Practice; Police Surgeon, Dr. Sonia M. Wornum, Board-certified in Cardiology; Police Surgeon, Dr. Robert Klugman, Board-certified in Psychiatry.

Dr. Asheld was also very helpful in another matter. In the recent past, two cops suffered heart attacks while in the performance of duty: one cop had a heart attack right after chasing after some perps; and, the other cop had a heart attack while he was pushing a large sailboat away from a Marine Bureau boat, to avoid injury to his partner and damage to the police boat. Ultimately, both of these cops did get line of duty status for their heart attacks. I believe that in the future, if a cop has a heart attack under similar circumstances, there will be no need for Medical Review, as the office of the Chief Police Surgeon will find the matter to be line of duty right away. I feel this way not only because the casual connection is obvious, but also because Dr. Asheld referred me to a recent case out of the 2nd Appellate Division dealing with a lieutenant in the sheriff's department who suffered a heart attack while at home. The lieutenant claimed his heart attack was line of duty because, although he was at home, he was serving as the "on-call," command officer for the sheriff's department.

In denying line of duty status for this heart attack suffered while the lieutenant was at home, the Court noted that he claimed that the stress level he experienced at work was directly responsible for causing the heart attack. According to the court, "To receive General Municipal Law Sec. 207-c disability benefits, 'a covered municipal employee need only prove a 'direct causal relationship between job duties and the resulting illness or injury.' The word 'duties' in Section 207-c encompasses the full range of a covered employee's job duties" (citations are omitted). HOWEVER, MERELY TAKING ILL WHILE AT WORK IS NOT ENOUGH. THE LIEUTENANT ALSO HAD TO SHOW A CAUSAL CONNECTION BETWEEN THE PERFORMANCE OF HIS DUTIES AND THE HEART ATTACK" (citations are omitted; emphasis is added).

Further, the Court observed that "Other than the 'mere fortuity of timing' that the heart attack occurred while [the Lieutenant] was on call, there is nothing in the record to causally connect the illness to his job duties on that day" (citations are omitted). As to the claim that work related stress caused the heart attack, the Court dismissed this argument on the basis that there was no substantial evidence to support the allegation.

Applying the Court's rationale to the recent cases of cops who had heart attacks while at work after chasing some bad guys and while pushing a sailboat away from the police boat in heavy seas and high winds, it is clear that there was "a direct causal relationship between job duties and the resulting illness or injury", i.e., the heart attack.

Knowing that the Chief Police Surgeon has reviewed this decision is an extremely good thing. It brings medicine and law that much closer, because establishing causal relationship is, after all, a legal requirement and not a medical one. Doctors are interested in treating people and getting them better; lawyers are interested in causal relationship because very significant benefits hinge on the cause of an injury, illness or disability.

Aba Heiman, Esq., a member of my firm, has great expertise in the area of litigating private disability and ERISA claims. While cops receive their disability retirement from the NYS Police and Fire Retirement System if they are no longer able to work, folks in the private sector have private or group policies that provide a disability benefit if disability makes them unable to work. And, if you think the Retirement System is tough and stingy and hard nosed and reluctant to pay out benefits, then just ask Aba about how tough it is when dealing with private disability insurance carriers. I hope you will bring this part of the Legal Report to the attention of your wives, husbands, children and friends who work in the private sector. Aba has contributed the following to this month's Legal Report:

Why Lawyers Were Invented:
Disability Insurance Company Abuses Revealed
By Aba Heiman, Esq.
Fusco, Brandenstein & Rada, P.C.

While it's certainly true that many disability claims are honored and that some claimants don't deserve benefits because they can work, it is equally true that the courts are finding that disability insurance companies are arbitrarily and capriciously denying deserving claims.

Take the recent case of Zanny v. Kellogg Co., No. 05-CV-74, 2006 WL 1851236 (W.D.Mich. June 30, 2006), where Metropolitan Life Insurance Company was the group disability insurer for Kellogg employees, and plaintiff Zanny applied for disability benefits. The federal court declared:

• This record is an open indictment of MetLife's practices and treatment of the mentally-ill and long-term disability benefits. In this case, MetLife regularly reviewed the client's file with an open intention to deny benefits despite the profound and compelling evidence of serious and prolonged mental illness.

In Stith v. Prudential Ins. Co. of America, No. 03-CV-4950, 2005 WL 336301 (D.N.J. Feb. 14, 2005), the federal court concluded:

• In the present case, there is almost nothing in the record supporting Prudential's denial of benefits.

Some federal courts openly express anger at the way the disabled are treated. Here's an excerpt from Hines v. UNUM Life Ins. Co. Of America, 110 F.Supp.2d 458 (W.D.Va. 2000):

• UNUM swept aside all of this medical evidence in favor of nothing more than the above mentioned test results and a videotape. Any reasonable person would agree that this action reeks of partiality and UNUM's attempt to hide behind the veil of administrative discretion cowers in the glare of the ire of this Court. Accordingly, the court will review the record before it in a manner produced to offset an obvious effort by UNUM to protect its own self interests.

Claimants expect assistance and service from insurance companies when making disability claims, but courts have seen that insurers are often no help at all, as in the case of Gaither v. Aetna Life Ins. Co., 388 F.3d 759 (10th Cir. 2004):

• Aetna rejected that claim without a substantial basis for doing so, without following up on obvious leads, and apparently without specifically considering the claim at all.

You might notice that these cases are just a sampling of outrageous practices by disability insurers, each example noting a different insurance company, all of which are likely to be familiar names. In other words, the companies you thought you could trust are stabbing many of the disabled in the back. Perhaps the more skeptical among you had concluded, long before reading this, that insurance companies don't like to pay claims. There may also be those among you who are confident that the vast majority of disability claims are approved, and that pointing to specific instances where courts have disagreed with determinations by disability insurers is neither cause for concern nor reforms. Yet what is less generally understood is the reason disability insurers, especially in the context of group disability insurance benefits, are not particularly concerned with occasional reversals in the federal courts

Group long term disability benefits which are provided to employees in private industry are governed by federal legislation called "ERISA" (the Employee Retirement Income Security Act of 1974). Under ERISA, if the employer's long term disability benefit plan, which typically includes a group disability insurance policy through an insurance company, contains language conferring discretionary authority upon the insurance company to construe the terms of the plan and to determine entitlement to benefits, then a plaintiff will not prevail in federal court unless it can be shown that the determination to deny benefits was "arbitrary and capricious."Naturally, the disability insurance companies draft the plans and the policies and make sure they put in language giving themselves discretionary authority. When the insurer has such discretionary authority, it is not enough to show that a preponderance of the evidence favors a determination that the claimant is disabled. For example, a claimant may have four treating doctors who believe he or she is disabled, but a single, non-examining physician reviewing the claim for the insurance company may conclude there's no disability. If the explanation considers all the evidence, is not irrational, and seems arguably reasonable, it will be upheld by the courts. The Supreme Court of the United States concluded this unfair scheme should be the law of the land in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965 (2003). The Supreme Court's rationale was that there was no regulatory authority within ERISA that required deference to treating physicians, or even examining physicians. In an earlier decision, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court allowed the federal courts to defer to the decisions of ERISA plan administrators (including disability insurance companies), unless they were "arbitrary and capricious," because they reasoned that the legislative history and language of ERISA was modeled after the law of Trusts and Estates, where trustees with discretionary authority enjoyed the same privilege. Some courts, see Wallace v. Reliance Standard Life Ins. Co., 318 F.3d 723, 724 (7th Cir. 2003); cert. denied 71 U.S.L.W. 3789 (June 23, 2003), have questioned the wisdom of treating disability insurance companies like fiduciaries:

• Yet why is Reliance a fiduciary when implementing a contract of insurance? It has promised a particular set of benefits, to be sure, and must act with care in fulfilling its promises, but it did not undertake to evaluate all claims with a thumb on the scale in the participant's favor. Indeed a genuine fiduciary would go to bat for Wallace as an advocate; but this is not the role Reliance undertook to perform.

While federal courts recognize that there is an inherent conflict of interests where a disability insurer both determines entitlement and pays claims out of its own pocket, they nevertheless defer to the adverse determination by the disability insurer unless the claimant can prove such conflict of interest was manifested in the processing of his or her claim, see Sullivan v. LTV Aerospace, 82 F.3d 1251 (2d Cir. 1996), as if such smoking guns are plainly visible in the denial letters and insurance company records.

ERISA often spells big trouble for disabled Americans who were counting on getting insurance benefits to replace lost wages and supplement whatever they might otherwise receive from Workers' Compensation or Social Security disability benefits. While it may be true that you don't necessarily need an attorney to go to court, those concerned about having their vital interests handled professionally will often consult with a qualified attorney for assistance and advice. In our view, it is also more prudent to consult with an attorney before the claim is submitted, rather than mailing in forms and keeping your fingers crossed. Claims are often more difficult than simply completing insurance company forms and submitting records from doctors. Following an initial denial of the claim, administrative appeals are an ERISA claimant's last chance to supplement the record and perfect the claim, because once there's an adverse final administrative determination, there are no other forms of legal recourse besides settlement or litigation in the federal courts

If you care to read the Legal Report about two weeks before it appears in the PBA Newsletter, you can access it online at our website, www.fbrlaw.com. Click on the button that says, "Police Disability," and you will then see, on the right side, a column listing the Legal Report. Just click on the date you want to read.