Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added).

So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms?

Here’s a new case that highlights that the limitation still

You already know that many ERISA plans contain discretionary language, which calls for a court to review the ERISA claim denial under an abuse of discretion standard.

But many times a structural “conflict of interest” can occur where the plan administrator has the “dual role” of administering and funding the plan benefit. Courts typically look

ERISA plans and related disability or health policies contain language granting the right to reimbursement of overpayments made to the claimant. Overpayments usually occur when the claimant receives lump sum Social Security benefits, or the claimant receives a tort settlement.

Can the claimant oppose repaying the overpayment by asserting equitable defenses? Maybe.

Here’s

Does an insurer’s litigation history dating back 10 years justify overbroad discovery in an ERISA case? It might… (See below for a strategy to combat this from occurring in your cases).

Also, in each case you should reassess whether or not to argue for the arbitrary and capricious standard. Consider the adverse effects of pushing

Video surveillance can be an effective tool in assessing the level of activity of the disabled claimant. But make sure the video surveillance is performed correctly, and use it properly.

Here’s the case of Eaton v. Reliance Standard Life Insurance, 2018 WL 3639837 (W.D. Tennessee July 31, 2018)(claim denial affirmed where independent physician

You know that employer disability policies define “disability” as the inability to perform each of the material duties of the employee’s “regular occupation.”

But what happens when the policy does not define the term “regular occupation”?

And…what if the employer’s job description is different from the Dictionary of Occupational Titles, which provides a

You know that in ERISA claims where the court is applying the abuse of discretion standard, the court may allow “conflict discovery.” This might include discovery of claims manuals, for example.

But even if the court allows conflict discovery, the court likely may still prohibit Plaintiff from supplementing the administrative record with this discovery

As you know, on April 1, 2018 new regulations from the U.S. Department of Labor’s governing Employee Retirement Income Security Act of 1974 (ERISA) disability benefit claims became effective.

How will these new regulations affect litigation? New issues will develop new analysis, but in our continuing effort to flag new litigation issues, here are two