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©2008 Bernard A. Kansky, Esq., All Rights Reserved

The questions and answers set forth in this column are an expression and exchange of ideas of a general nature. The interpretation of laws, rules and regulations vary from time to time and are based on the particular facts of a specific set of circumstances at any given time. The law is fluid and often does change from day to day. If you have specific questions, it is essential that you consult with our own attorney or leave a message for me along with your telephone number at my office at 607-227-2020 or via FAX at 617-227-5717,

Q. I have heard CFIDS Claimants say that even though dealing with an insurance company on the issue of denial or discontinuance of long-term disability benefit plan, during the review and appeal process and before the appeal to the insurance company is concluded, any request for documents should be made not only to the insurance company and its adjuster(s) with whom you are dealing but also to the designated administrator(s) of the plan. If true, what would be the reason for this and how can I find out the names and addresses of the the "formal," administrators of the plan.

A. It is imperative when seeking documents from your employee welfare benefit plan for disability retirement, i.e., ERISA long-term disability benefits that for any documents you desire, demand be made in writing by certified mail return receipt requested to not only the insurance company and its adjusters, but also to the persons and entities actually listed as the administrators of the plan, whose names are usually never highly visible and usually buried within the small print of the plan documents.The reason for making demand upon the actual plan administrators is that if demand is made and the materials not forthcoming within thirty (30) days after the date of the certified mail return receipt requested demand, then you will have a valid right to seek sanctions of up to a $110. per day after thirty (30) days have elapsed from the date of your certified demand for any and all such proper documents which the administrators of the plan failed to produce. If demand is made only against the insurance company, and if the insurance company is not an administrator, which is the status more often than not, then you will not be entitled to effectively seek such sanctions or have them awarded by the court, once litigation commences.

By way of example, the type of documents you might request in addition to anything else specific to your case, includes but is not limited to the non-examining, book-reporting physicians and their past experience in treating totally disabled CFIDS patients in private practice, (which almost all of these "book reporting," "non-examining," "non-interviewing," physicians who write opinions negative to your claim for disability have never done) as well as obtaining copies of the amount of their bills for reviewing and preparing their negative reports for your claim,as well as records as to how many other claimants they have evaluated for this insurance company and this ERISA plan, and most importantly, which documents did the insurance carrier and/or the administrator forward to these physicians for their review of your claim. Many times the insurance carriers have one of their "favorite,"book reporting physician prepare a report negative to your claim and then circulate that negative report to one or two other physicians, vocational experts and/or psychologists to consider and review in writing their own reports also negative to your claim.

Therefore, it is most important when demanding documents from the plan that the demand is made early on in the review before the first negative decision and then repeatedly if necessary as other health care professionals working for the insurance company and the plan write additional and confirmatory reports negative to your claim; and that you find out the name and office address of all plan administrators who are not employed by the insurance company that you are dealing with and send them separate certified mail, return receipt requested, demand for documents which would shed light on the potential prejudice and bias inherent in most ERISA review and internal appeal processes, such as indicated above, so that you would be entitled to seek and collect those sanctions if the administrators of the plan fail to timely produce the documents properly demanded.

Q. The insurance company which reviewed my claim for long-term disability benefits, continuously denied my claim and ultimately denied my benefits at the final internal appeal level. In the insurance company's final denial letter, it.made reference to my right to file suit in court if I was not satisfied with its decision. If I file suit in court, is there anything in particular which I or my attorney should be aware of.

A.There are many things to be aware of and that is one of the reasons why a CFIDS claimant is advised to hire an attorney who is very experienced in CFIDS/ERISA claims as soon as there is any indication that the insurance company and or the plan is doing a full scale review of your claim and hiring such an attorney should be done instantly at the outset of any such review.

The attorney should be well versed and have specific experience in ERISA claims because they are handled so differently than most other insurance claims. First and foremost, most of the courts which will be reviewing the claim do so on the basis of a judicial review, which means that customarily, the decision of the courts is based upon the Administrative Record created from the time you applied for benefits until the insurance company's final letter of denial on your final insurance appeal. For the most part, the Judicial Review is a paper review of the Administrative Record (which is created and maintained by the insurance company and the plan), subject not only to the usual rules of civil procedure, but also subject to and in combination with the separate local rules of your particular court. In addition, it is most important for you or your attorney to be familiar with the past record of the Judge who will decide your case on Judicial Review. Unlike other cases which are heard and decided by a jury, or by a judge hearing live testimony, the ERISA cases are decided by the Judge who is assigned to the case or by a Magistrate Judge designated by that Judge whose review is generally limited to the documents maintained in the Administrative Record. Brand new, updated evidence is not generally allowed. Unfortunately there are many judges in the system who do not believe that CFIDS can be such a debilitating and totally disabling disease and do not take such claims seriously. Further, inasmuch as live testimony is not usually allowed for a case decided upon Judicial Review, those judges never get to see just how sick, debilitated and disabled a CFIDS claimant can be. And worst of all, there may still be some judges sitting on the bench who are so biased, even if subconsciously, in usually finding in favor of the government, the institutions and the corporate parties, such as the insurance companies and corporate ERISA plans, that even though they have been appointed to and sitting on the bench for many years, they may have never rendered a judgment in favor of an individual or claimant including but not limited to the CFIDS claimant.

Therefore, it is important to check the past record and history of any judge deciding your case to determine whether or not he or she has such a tendency, i.e. an ingrained even subconscious bias to almost always find in favor of the larger entities or the Government as opposed to the individuals, i.e. the "little guys." In this day and age of internet legal research, such research as to your assigned judge's past performance can be accomplished very easily and it would be worth it if such bias on the part of your assigned judge was uncovered to have your attorney ask the judge to recuse himself or herself from your case in a most discreet but effective manner.

If any questions, be sure to contact your own attorney or if not represented, contact Attorney Bernard A. Kansky, Esq. at (617) 227-2020 or e-mail to:

The National CFIDS Foundation * 103 Aletha Rd, Needham Ma 02492 * (781) 449-3535 Fax (781) 449-8606