Disability Attorney Tools – Glenn Adds Power to Motion to Compel Discovery
August 30th, 2010 | 
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This is the yardstick most commonly applied against disability insurance plans to evaluate a disability claimant’s suit against a disability insurance company. There are other standards, but under the Employee Retirement Income Security Act passed by congress in 1974, if an insurance plan gives discretionary power to the insurance company that issued the plan along with the right to interpret what the language in the plan, the arbitrary and capricious standard is the one mandated.
There is one feature of the arbitrary and capricious standard that makes proving the wrongness of a disability denial more challenging – the disability attorney has to prove that the disability insurance plan made an unreasonable decision in light of the facts in his/her client’s insurance claim file, also known as the administrative record. If the Court finds that the decision made by the disability insurance company seemed reasonable, the denial is upheld.
Glenn opens an important door for disability attorneys.
This is where Glenn has stepped in to make a difference. This court ruling has given Judges the mandate to consider the inherent conflict of interest that exists within a disability insurance company when it both holds the purse and decides who gets to dip into the purse. This mandate has generated the need to allow the Court to consider information from outside the administrative record. Thus the power of the Motion to Compel.
The Motion to Compel is a disability attorney’s tool for gathering evidence into whether the structural conflict of interest played a role in the insurance company’s decision to deny a short-term or long-term disability claimant. But before the Court will actually compel a disability insurance company to provide information to a claimant’s disability attorney, that disability lawyer must do more than make accusations. That attorney must point to actions taken by the company that suggest a need to explore the conflict of interest.
For example, a disability attorney may point to procedural irregularities in the record. An insurance company may have hired physician consultants. Their relationship to the company may reflect its own conflict of interest. The employee(s) who handled the claim could have been rewarded for denying claims. Training procedures could color who a disability claims handler considers disabled versus not disabled.
In order to discover these facts, a disability attorney can first seek the information directly from the disability insurance plan. This is done through interrogatories (questions the disability attorney wants answered) and document requests. If the company refuses to provide the requested information, the disability attorney should then file a Motion to Compel with the Court. In fact, this should be expected. Disability insurance companies are reticent to reveal anything that might harm their deferential position before the Court.
When a Motion to Compel comes before the Court, it must first determine whether a disability claimant’s suit comes under the arbitrary and capricious standard. If it does, the Court must consider whether there is any evidence of malice or of self-dealing in the administrative record. The Court will also look at a disability insurance plan’s claims-granting history. These factors will impact just how important discovering the level to which the conflict of interest goes in the decision making process becomes.
A disability attorney must keep requests for discovery targeted.
A disability attorney must be able to present a clear reason for why discovery is necessary. If the requests are too broad, the Court may look unfavorably upon the requests. Keeping the requests direct and clearly purposed is vital. The following reasons for seeking information have been met favorably in Courts across the U.S.
1)Discovery into financial incentives for employees or consultants involved in the benefit decision process.
2)Discovery into a disability insurance company’s general approval and termination rates for long-term disability claims.
3)Discovery into a disability insurance company’s specific long-term approval and termination rates for long-term disability claims involving a client’s specific medical issue.
4)Discovery into any steps a disability insurance company has established to reduce the bias of decision makers and to promote accurate disability benefit determinations.
5)Discovery into any factors or evidence which a disability insurance company may have used to make its decision, which the administrative record does not include.
Additional factors must also be considered. It is vital that the requests for discovery are limited to the time frame in which a disability attorney’s client’s claim was being processed. Discovery cannot create more expense than the potential benefit produced by the discovery.
Once the Court determines that discovery is necessary, a disability attorney has to expect the Court to evaluate every interrogatory and every document request. Not every request for information will be validated by the Court.
However, if the disability attorney limits the scope of information sought appropriately, the Court will be more friendly to compelling the disability insurance company to provide the requested information.
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