There are two dirty little secrets that insurance providers use to bilk the American public out of millions of dollars, while keeping their CEOs driving Mercedes Benzes and living in million dollar mansions. The first is that some legislators are addicted to insurance money and, to protect this source of campaign revenue, will pass ill conceived laws. These laws often have the effect of creating legal barriers to lawsuit that the rest of us do not enjoy and are another form of corporate welfare. The second is that there are professional medical experts who call themselves "Independent Medical Examiners," who, when provided with a small fee (usually $500 to $2,500) will, regardless of the honest facts, contrive a medical opinion supporting an insurance companies’ denial of benefits. It is well known that these "Medical Examiners," (who are accountable to no one but the insurance industry that pays them), pump out millions of questionable, misleading and sometimes patently false medical reports.
ERISA (Employment Retirement Income Security Act) is an example of one of these ill conceived laws that the insurance industry has muscled through the U.S. Legislature. ERISA allows the insurance industry to use with impunity these questionable medical examinations to deny disability benefit due to thousands of disabled American workers. How does this work and why should you care?
If, under ERISA, you had to prove that the world was round to obtain disability benefits, all the insurance company would have to do to defeat your application would be to find one or two credentialed persons, no matter how disreputable, corrupt, or scientifically questionable, to render an opinion that the world was flat. Once it had done this it would win, ipso facto, closed case, chop chop, over, done, no more questions asked, go suck on a raw lemon--the world is flat and you don’t get benefits, period, despite any and all evidence to the contrary! This is so because under ERISA you could not take the issue to court. If you did, unless you were lucky enough to draw a Judge who championed justice over systemic idiocy, the typical I’ve-got-my-eyes-on-a-Supreme-Court-nomination Federal Court Judge would have to side with the insurance company and declare the world to be flat. Why? Because ERISA requires the Judge to do so.
Case in point. Betty Roach worked for Bank One for 18 years and paid premiums to Prudential for disability benefits. She became chronically and seriously ill and had to leave her work. She presented extensive medical evidence to Prudential demonstrating her disability. Her own doctors (who are accountable to their Medical Associations and their patients to provide competent care or go out of business) and an Administrative Law Judge for the Social Security Administration found her to be completely disabled. Even her Bank One co-workers corroborated her pleas for disability. Despite this, Prudential denied her benefits.
For backing, Prudential purchased two medical evaluations from two doctors well known for supporting insurance company denials. Interestingly, its alleged experts, instead of listening to Ms. Roach’s complaints of severe pain, condemned her for complaining about it. Later, Ms. Roach’s own doctor found through objective neurological testing that she had severe nerve damage to the nerves in her arms, wrists and hands.
With no other recourse, Ms. Roach sued Prudential for her benefits. Prudential moved to dismiss the case under ERISA’s provisions that bar Ms. Roach from presenting her evidence of disability at trial. Federal District Court Judge Dee Benson, in reviewing Prudential’s request to dismiss the case stated, ". . . I may be tempted in a case like this to find that [Ms. Roach] in my view is disabled, candidly. It seems like there is a pretty good case here to be made for her disability, but in light of this standard . . . my job is only to see if there was some rational basis to support this even if I don’t agree with it. . . . [I]t seems like this system is harsher than our judicial system . . . [I]t would be nice in an ideal world if someone could go back to Prudential and say do you want to take another look at this? I don’t think she is faking it here."
So, although Judge Benson honestly believed Ms. Roach was disabled and that it was harsh and unfair, under ERISA, he had to confirm Prudential’s denial of benefits. One may question, "But the Judge did say Prudential had to have ‘some rational basis,’ and using the flat world analysis it is not rational by today’s standards to state that the world is flat." This is true, but ERISA bars Ms. Roach from presenting any evidence in court showing that by "today’s standards", just as it is irrational to state that the world is flat, it would be equally irrational to state that Prudential’s purchased doctors’ opinions are irrational. In essence, just as it is rational for an uneducated man to declare the world flat, under ERISA, no matter how baseless, erroneous or even fraudulent, these purchased medical opinions become by law irrefutable because the courts cannot be educated to the contrary. Hence, using the flat-world analysis, under ERISA, despite all the evidence to the contrary, it would be legally rational for a U.S. Court to decree the world to be flat.
Prudential’s own attorney, Mr. Jon C. Martinson, of Fabian & Clendenin, stated, "[W]e need to remember that under [ERISA’s] arbitrary and capricious standard the Court affords the administrator’s discretion in their review based on the administrative record. We are not here to determine whether [Ms. Roach] was disabled under our understanding. . . . I don’t think any of us does not sympathize with [Ms. Roach]. . . The law requires us to make a counterintuitive decision in this case. . . It is not our call and it is not the District Court’s call and it is not the Tenth Circuit’s call. . . . [T]he way [ERISA] is now we’re going to have to trade unfortunate and hopefully rare situations like this for overall efficiency."
In Plain English Prudential’s attorney, Mr. Martinson, stated that since Prudential’s denial was "rational", however scurrilous, doubtful, or "counterintuitive", under ERISA the Court had to confirm Prudential’s denial of benefits. He further stated that, under ERISA, it was and is irrelevant that Mr. Martinson, Judge Benson, and the Court of Appeals all knew and know that Ms. Roach was and is disabled. Consequently, under ERISA, despite Ms. Roach’s, "unfortunate and hopefully rare" plight, the Judge was required, "for overall efficiency", "to make a counterintuitive", or in other words, a completely wrong, decision.
So why should you care? Ms. Roach, by purchasing disability through her labor at Bank One, tried to do the right thing so that if she became disabled she could be independent. Currently, she receives $900 a month from Social Security. Without the additional disability income from Prudential, she is unable to even subsist and is about a year away from homelessness, about one year away from joining what Prudential knows to be a politically insignificant and powerless group of people. Knowing this, Prudential, its attorneys, the U.S. Congress, and the Federal Courts "for overall efficiency" do not give a hoot about this "unfortunate" group of people. However, you should, because we as a humane society have long since abandoned the creed that those who cannot work must be turned loose on the ice flows of life with a single blanket to drift away and die.
Prudential is banking on this. It is hoping that instead of taking action to change laws like ERISA, that the detrimental and rippling effects of Ms. Roach’s plight and that of millions of others will be felt by all of us who truly care and we, instead of Prudential’s CEO’s, will pick up the tab so that Prudential’s CEO’s will be able to keep Ms. Roach’s premiums to make their Mercedes payment next month. History has shown that, in the name of "overall efficiency," it is the nature of the powerful to slowly but surely erode our civil rights. Today it is Ms. Roach, tomorrow it will be you.
There has been and presently are cries to reform our system of civil justice. Most of these reform efforts start off with the principled goal to make our system of justice fairer for all of us but usually end up being highjacked by the powerful, again in the name of "overall efficiency," to take away or limit your rights to seek redress in the courts--the only place where there is an honest effort (not always achieved) to level the playing field between the powerful and the meek. Such is the case under ERISA. Beware of these attempts or you, like Ms. Roach, may find yourselves spreading your flat bedroll, under a flat overpass, beside a flat highway, filled with Prudential-CEO-driven Mercedes, roaring by on their way to the flat courts in your very, very flat world.
Loren M. Lambert
© May 20, 2002
No comments:
Post a Comment