New DOL rules may change that, however, because they affirmatively require an impartial and independent review process.
As set out in the Federal Register, the new rule has seven major provisions. Many of them are fairly procedural and seem to restate existing rules about specific descriptions of the reason for claim denial, timing and access to appeals. One provision, however, jumps out:
"Claims and appeals must be adjudicated in a manner designed to ensure independence and impartiality of the persons involved in making the benefit determination."
Two questions come to mind: (1) does this shift the burden of proof to the plan to prove that its review process is impartial (rather than forcing a disability claimant to prove that the review was unfair); and (2) what kind of evidence can be used to show reviewer bias.
What the changes mean and how important they may be, will not really be clear until some litigation happens. In the meantime, however, the armies of lawyers and consultants who represent large benefit plans like Unum have been racking up the hours producing helpful client memos full of defensive strategies.
That idea works both ways.
Action items for Unum plaintiffs (and their lawyers)
Here is a smattering of offensive strategies for Unum lawsuit plaintiffs:
- The new rules will be effective on April 1, 2018 for claims filed beginning on April 2, 2018. Where possible, claimants may want to consider delaying filing a claim until that date.
- Follow the money. In-house medical reviewers are likely compensated through some combination of salary, bonuses and promotion. Third party reviewers will be working under contract. Plaintiffs should be prepared to help their lawyers get copies of any written agreements that define the terms of compensation. Ultimately, it may be necessary to develop a statistical case to show that those who reject medical evidence are treated more favorably.
- Plaintiffs should be prepared for a paper fight. Attorneys know that sometimes the best way to induce a settlement is to make the burden of repeated document requests worse than the cost of paying a claim. Insurance companies have been playing this game for years, of course, with repeated requests for medical records, etc., but it works both ways.
- Pick off stragglers. Some plans will be slow to adopt defensive plan and contract language. That situation will not continue forever, but it is worth investigating in the first few months after new rules become effective. Some of these provisions may be a matter of state, as well as federal law.
READ MORE UNUM LEGAL NEWS
The new DOL rules may, at long last, be good news for plaintiffs in long term disability denial cases. Whether that turns out to be true may depend on proactive efforts by attorneys and plaintiffs at the outset, when the rules are still taking shape through litigation.