New York Disability Lawyer & Attorney : Turley, Redmond & Rosasco : Brooklyn, Queens, Long Island, Nassau, Suffolk, Bronx, Staten Island

    The decision all ERISA long term disability attorneys around the country have been waiting for, Metropolitan Life Insurance v. Glenn, 554 U.S. ____ (2008) , finally came down from the U.S. Supreme Court this morning .  Click here for the full decision.

The issues in MetLife v Glenn were whether MetLife, as a plan administrator,  had a "conflict of interest"  by being both the decision-maker and payer of claims, and if a conflict existed, what "standard of judicial review" should be used by the courts when a beneficiary appeals a denial of ERISA long term disability benefits. The Court held:

Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket.  We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.  See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

Many claimant ERISA long term disability lawyers had been hoping for a de novo standard or review when a conflict existed.  The Court clearly rejected this standard in favor of a quite vague "factor test"  in deciding whether a plan administrator "abused its discretion" based upon the facts of a particular case. 

While better scholars than myself will surely be able to dissect and analyze this decision in more detail in the coming days and weeks, it seems clear that: 1) this is generally a good decision for ERISA long term disability claimants and 2) ERISA long term disability lawyers and courts will be struggling to apply the Supreme Court's intentionally vague "factor test"  for years to come.

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I'm off to Boston this week to attend the premier LTD Litigation conference in the country.  See the conference schedule here for some of the cutting edge ERISA and medical issues we will be discussing. Some of the best long term disability lawyers in the country will be speaking on trial techniques, mediation of claims and recent case law.  I can always learn more. It should be a winner!  

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I'm off to Miami Beach (yes - a conference in Miami in June!) tomorrow for the semi-annual NOSSCR Social Security Disability Law conference through Friday.  In between my responsibilities representing the Second Circuit on the Board of Directors of NOSSCR, I plan to take advantage of some of the great seminars NOSSCR always offers.  Every Social Security Disability attorney should try to attend this conference at least once a year to keep their knowledge and skills "cutting edge".   In addition, it gives me a chance to talk with some of the real "thought leaders" in disability law.

Seminars this year include "Chronic Fatigue Syndrome - Unraveling the Mystery", "Psychiatric Testing for Mental Illness & Traumatic Brain Injury (TBI)", "Ethics and Professionalism" and the inter-relationship of Social Security disability claims with ERISA long term disability claims. It should be a great conference.

It will also give me a chance to have dinner with my dad, Ed Rosasco, who retired a few years ago as President & CEO of Mercy Hospital in Miami.  He is now doing health care consulting and sits on the boards of several hospitals and charities in the South Florida area.   I hope to see my colleagues from around the country at the conference - or at the pool!

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There are literally thousands of former Nassau County workers who are currently receiving lifetime workers' compensation payments (pensions) for life due to on- the- job injuries.  I know - I have represented a large number of these unfortunate individuals.  These payments are overwhelmingly for workers who have been classified as having "permanent partial disabilities" and are destined to live the rest of their life in pain.

According to a Newsday article yesterday, Nassau County is now proposing a $55 million taxpayer funded bond to "sell" these claims to private insurers who would then try to convince the injured worker to settle the claim in a one-time "buy-out".   Is this good for the injured former Nassau workers?  For many of them, it is not a good deal at all unless they are paid "full value" for their settlement. It also may not be a good deal for the taxpayer. (See the excellent WorkersComp Insider post here) .

Our office recently negotiated a lump sum buy-out (often times called a Section 32 settlement) for a Nassau municipal worker for $650,000.00.  We thought this was a fair settlement given that the worker was going to lose both weekly non-taxable cash benefits and medical care for the rest of his life.  Unfortunately, you can bet that the insurance companies "bidding" for the Nassau County claims have no intention of paying fair settlement value to former Nassau employees.

The vast majority of lump sum buy-out offers are grossly unfair to the injured worker and are simply a device for insurance companies to dump claims and invest the excess profits.  The claimant needs a skilled NY workers compensation lawyer to negotiate a fair settlement. So what is amount fair?  First and foremost, for anyone who is likely to need major medical intervention in the near future, such as surgery, no amount of money may be the answer.  Remember, once the injured worker accepts the cash buy-out, he must pay for future medical care, including surgery, on his own.  Any settlement offer in a case like this would have to also "buy-out" the potential future cost of surgery, medications, physical therapy, etc.

Anyone considering a buy-out of a permanent partial disability claim should ask their workers compensation lawyer to do a "present value calculation" of what their future cash AND medical benefits are worth.  This present value calculation, which is the standard for settling long term disability claims, can be drastically impacted by current interest rates.  For instance, today I am using an interest rate tied to the ten year treasury bill rate (3.58% as of 4/08/08) to determine present value for the purposes of settling my cases.  When interest rates go back up, present value settlement offers will go down, so historically, now is a good time to get maximum value when deciding to settle a New York workers' compensation claim.   In addition, if you receive Social Security Disability in New York, you may need a Medicare Set-Aside agreement.

There are many present value calculators on the Internet which can help you determine a fair settlement proposal.  As my third grade math teacher instructed, I like to show my client's the "work", not just the answer, which I do on a Microsoft Excel spreadsheet.  Of course, settlement of any workers compensation claim is as much "art" as  arithmetic, but the math is always the starting point. 

It remains to be seen whether Nassau County dumps its old workers' compensation claims in the hands Warren Buffet and Berkshire Hathaway to settle with permanently disabled workers.  If it does and you are an injured worker approached for a buy-out of your claim, ask a lot of questions of your Nassau workers compensation lawyer.  You don't want to leave any money on the table, and Warren Buffet has enough money. 

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The  New York Mercantile Exchange (NYMEX) is right around the corner from our Wall Street office.  Last July, a very successful Commodity Broker called our office for legal representation in his appeal of a denial of his ERISA long term disability claim against The Guardian Insurance Company.  His long term disability policy was supposed to pay him $10,000.00 per month. He been out of work for 14 months prior to coming to our office and The Guardian, like most LTD insurance companies, was dragging their feet. 

After the client retained our office, we quickly realized that the "stated" reason for The Guardian denial was based on a incorrect analysis of his prior occupation.  An accurate description of the "material and substantial duties" of a long term disability client's job is one of the most important, yet often overlooked, keys to winning individual disability income claims. 

After obtaining the Guardian's entire claims folder (to which all claimant's are entitled under ERISA- see our Disability Law Library), we determined that The Guardian's own vocational expert had incorrectly defined his "occupation" as involving primarily "electronic trading". In fact, he was the classic, active "floor trader" you might envision on the floor of any financial exchange.  We immediately retained  a well known vocational expert to write a 12 page report rebutting Guardian's expert and detailing his actual job duties and work environment.  Our expert even did a field visit to the Mercantile Exchange "trading pit" and interviewed our clients co-workers and boss.  Finally, thinking outside the box and working together with our client,  we obtained a key letter from a top Mercantile Exchange official backing up our occupational analysis. 

After doing the necessary prep work and laying an unshakable foundation, we then wrote an extensive legal brief seeking a reversal of Guardian's initial long term disability denial.   To Guardian's credit, their Appeal's Committee issued a stunningly quick reversal within two weeks.  Our client's nearly 18 month odyssey without long term disability income was over.  They immediately released a check to him for over $150,000 in retroactive benefits and he continues to collect his $10,000 per month benefit today.  To avoid the stress of ongoing disability claim reviews in the future, we are now in the process of negotiating a complete "buy out" settlement of our client's long term disability claim.

The key to winning this long term disability claim was not just writing a legal appeal (which many lawyers can do), but was developing evidence for our client which gave the Guardian a rational basis to reverse their prior decision.  Smart lawyers don't win appeals just by telling insurance companies "you are wrong, you made a mistake" (even when they did).  After all, what human being wants to admit they were 'wrong".  You must give them additional evidence, like we did in this case, to reconsider their original decision.

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ABC News published an important article today highlighting the sharp rise in immigrant worker deaths on construction sites in the New York City area.  This problem, which I addressed in a prior post recently, is reaching epidemic proportions. 

As detailed in the article, just the other day a Ukrainian immigrant was decapitated after plunging 42 stories while working on a construction site on a Donald Trump Hotel in lower Manhattan.  Under the current New York Workers' Compensation law, the most his widow and children can collect for his death is $500 per week, plus payment of only $6000 toward his funeral bill. 

I told the reporter the story of one of my clients (an undocumented worker) who was severely injured last November when a brick wall fell on him while working on a construction site in Queens.  Despite multiple surgeries and being an inpatient at Jamaica Hospital for over a week, he still has not received his first workers' compensation check.  This is not unusual in cases where unscrupulous employers are paying immigrant workers "off-the-books" and not reporting their wages to the workers' compensation insurance company to save on premiums.  Workers' compensation lawyers like myself see sad cases like these every day.

Thanks to Susan Donaldson James  and ABC News for reporting on this growing tragedy.  Unfortunately, in the current political climate, it is questionable whether the federal government has any desire to address the safety of undocumented workers on construction sites??? 

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Last night the CBS Evening News with Katie Couric unveiled the first of two special reports on the Social Security Disability claim backlog.  My friend and fellow Social Security Disability lawyer, John Hogan, was interviewed and spoke of the 2 1/2 year wait for a hearing in the Atlanta area!  When you see the disabled claimant's profiled in this report, you will realize how cruel and unacceptable such waits are. 

I suppose that we should be thankful that the hearing wait in the New York metropolitan region is only 18 months!???  But it is hard to feel this way when you see clients losing their homes while they wait for the disability benefits they paid for and deserve.  Sadly, some of my clients have died before they get their hearings.  Hopefully, Congress will listen to this report and fund Social Security properly so that future claims can be expedited. Catch Part 2 of the CBS special report tonight at 6:30 pm EST by clicking here.  Thanks for your concern, Katie!

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Happy New Year to all the readers of the New York Disability Law Blog!  Over the course of 2007, we are pleased to report that our firm has once again helped thousands of injured and disabled claimants successfully win the benefits they deserve.

Our blog has  tried to provide timely and helpful information to all those struggling with a variety of disability claims, including long term disability insurance claims, Social Security disability claims,  workers' compensation claims and VA disability claims.  Since its inception in March 2005, our blog's readership has steadily grown and we have become a frequent resource to reporters and other media professionals on disability claim matters. 

We look forward to another year of fighting the good fight for our clients and friends. We wish you and your families a healthy and happy 2008!

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"This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy..."  - Charles Dickens, A Christmas Carol (1843).

At this festive time of year, when so many of us have more worldly goods than we truly need, let us not forget those among us who are not working due to accidents or disease.  The attorneys at Turley, Redmond & Rosasco have dedicated our professional lives to to lifting up and providing for injured and disabled claimants with ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims.  May the year 2008 bring happier and healthier days to the clients we serve.  Merry Christmas!

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