In the September 8, 2016 edition of the Los Angeles Daily Journal, Robert McKennon of the McKennon Law Group published an article regarding the use of so-called “independent” physicians used by insurance companies as a pretense to deny valid claims. In the article entitled “9th: ‘Independent’ Physicians may Favor Insurers,” Mr. McKennon summarized the recent U.S. Court of Appeals for the Ninth Circuit case, Demer v. IBM Corporation LTD Pan, 2016 DJDAR 8929 (9th Cir. Aug. 29, 2016), in which the Court noted that insurance companies frequently pay doctors a substantial amount of money to review files, and therefore their opinions are likely biased in favor of the insurance company that pays them.
The article is posted below with the permission of the Los Angeles Daily Journal.
A disturbing trend that has developed across the country in recent years is that, while the number of workers/employees suffering from long-term illnesses or injuries has increased, the number of employers who provide long-term disability insurance has dropped dramatically. As of May 2014, the total number of Social Security disability beneficiaries in the United States hit an all-time high of about 11 million beneficiaries. However, fewer employees are covered with long term disability coverage. The number of U.S. workers with long-term disability coverage decreased 6% from 2009-2013. Below are just a few of the worrying statistics. From 2009-2013 nationwide:
- The number of employers offering long-term disability coverage decreased from 220,000 to 213,000;
- The number of employees who have long-term disability coverage decreased from 34 million to 32.1 million (6% decline); but,
- The number of employees in the U.S. workforce has increased by 6.6 million.
More and more employers are opting to drop their standard disability insurance plans for optional employee-paid plans. Additionally, more companies are implementing “defined benefit plans,” which allocate a certain amount of funds for each worker to use for all insurance coverage. This often has the effect of forcing workers to forgo some types of coverage, such as long-term disability insurance, because the funds provided are not sufficient to cover all types of insurance.
Why Is It Important To Exhaust Your Administrative Remedies Under ERISA When Your Insurer Denies Your Disability Insurance Claim?June 16, 2014 Robert McKennon
The Employee Retirement Income Security Act of 1974 (“ERISA”) provides an exclusive remedial scheme for insureds who have been denied benefits. 29 USC section 1001 et seq. Under ERISA, a plan participant may sue “to recover benefits due to him under the terms of their plan, to enforce their rights under the terms of the plan, or to clarify their rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). However, before plan participants can pursue a lawsuit against the plan/plan administrator for benefits, attorneys’ fees and costs, they must first pursue their ERISA appeal rights under the doctrine of exhaustion of administrative remedies. 29 USC section 1133. If they do not do so, they may lose all of their rights to pursue an appeal or litigation of a disability, life or health insurance claim denial.
In MLG Case, the San Francisco Superior Court Rules that Plaintiff Therabotanics May Pursue Claims Against Sephora and Solazyme For Interference With Contract and Unfair CompetitionFebruary 21, 2013 Robert McKennon
McKennon Law Group recently filed a case on behalf of Therabotanics, LLC, a subsidiary of Ideal Living, for breach of contract, unfair competition, misappropriation of trade secrets, harmful interference with contract, and conversion of assets against Sephora, USA, Inc. and Solazyme, Inc. Therabotanics and Solazyme had entered into an exclusive agreement for a joint venture to sell a line of algae-based skin care products through a television infomercial. The exclusive agreement contained a carve-out that allowed Solazyme to sell a “premium” product with other distributors, but at a higher price and under a specific name.
Very recently, California Insurance Commissioner Dave Jones issued a bulletin advising consumers about the importance of understanding their options when considering disability income insurance. Here is what he had to say:
MCKENNON LAW GROUP PC OBTAINS $3.93 MILLION DAMAGE AWARD FOR CLIENTS IN BUSINESS DISPUTE OVER INTELLECTUAL PROPERTY AND LICENSING RIGHTSNovember 09, 2011 Robert McKennon
In January 2010, McKennon Law Group PC was approached by weight loss supplement company TriPharma, LLC, about a dispute involving its exclusive rights to advertise, market and sell a revolutionary patented and clinically studied weight loss product that was manufactured by San Diego based company Imagenetix, Inc. TriPharma discovered Imagenetix’s multiple breaches of its exclusive license agreement with Imagenetix which had all but destroyed its ability to sell its weight loss product, destroyed much of the goodwill built up for the product, and was threatening to destroy the years of hard work put in developing TriPharma’s one-of-a-kind weight loss beverage, which was due to hit the stores in a few short months. Shortly thereafter, Imagenetix wrongfully terminated TriPharma’s exclusive license and began to sell product directly to TriPharma’s customers.
The attorneys at McKennon Law Group PC LLP took immediate action and filed lawsuits in federal court against the companies which were infringing on TriPharma’s exclusive license through product sales of their own, and filed claims in JAMS arbitration against Imagenetix for, among other things, fraud, breach of contract, and injunctive relief, seeking damages as well as reinstatement of the exclusive license agreement
Why Does The Pollution Exclusion in California Insurance Policies Exclude Asbestos Building Contamination But Not Pesticide Building Contamination?August 22, 2011 Eric Schindler
According to a recent California appellate court decision, a contractor’s negligent release of asbestos fibers during the removal of asbestos-containing acoustical spray in a condominium complex is excluded by the pollution exclusion in a homeowner association’s property and liability policy, despite a 2003 California Supreme Court ruling that a contractor’s negligent spraying of pesticide in an apartment complex is not excluded by a similar pollution exclusion in an apartment owner’s policy. The Villa Los Alamos Homeowners Association v. State Farm General Insurance Company, __ Cal. App. 4th __, 2011 WL 3586475 (August 17, 2011). How can that be?
The collection of ZIP codes by retailers may now be prohibited following the recent California Supreme Court decision in Pineda vs. William Sonoma, __ Cal. 4th__ (February 10, 2011). Writing for a unanimous court, Justice Morena found that ZIP codes are “personal identification information” for the purposes of the Song-Beverly Credit Card Act (“Credit Card Act “). Under the Credit Card Act, personal identification information may not be recorded nor required of a customer in order to make an in-store purchase using a credit card.
Initially passed in 1990, the Credit Card Act was enacted “to address the misuse of personal identification information for, inter alia, marketing purposes.” It prohibits retailers from asking customers for their personal identification information and recording it during credit card transactions. Specifically, section 1747.08(a) provides that no firm shall “[r]equest, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the . . . firm . . . accepting the credit card writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.” Since its initial passage, there have been multiple class action lawsuits against retailers violating this statute. As recently as 2008, California 4th District Court of Appeals addressed this specific issue in Party City Corp. v. Superior Court, 169 Cal.App.4th 497 (2008) where it held that ZIP codes were too general to be covered by the Credit Card Act because they pertain to a group of individuals, not a specific individual.
Not to be deterred, Jessica Pineda brought a class action against Williams-Sonoma for violations of the Credit Card Act “and Business and Professions Code section 17200 et seq. Her lawsuit was based on a 2008 visit to a Williams-Sonoma Store in California. While making her purchase, the cashier asked for her zip code, but did not tell her what the information would be used for. Thinking the information was necessary to complete the transaction, Pineda provided the information. Later, using specialized computer software, Williams-Sonoma conducted a “reverse lookup” and was able to determine Pineda’s previously unknown mailing address by matching her name and zip code in a third-party database. This information was then stored in Williams-Sonoma’s own database for use in direct-mail marketing campaigns. Aware of the court’s prior holding in Party City, Pineda pursued her class action on the grounds that an essential element was missing from the prior cases. Namely, allegations that Williams=Sonoma actually use of the acquired ZIP code. Rather than rule that harm was a required element, the court instead overruled Party City altogether.
The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act Summary and Implementation TimelinesMarch 29, 2010 Robert McKennon
Eric M. Peterson from the law firm of Dorsey & Whitney LLP has done a nice job summarizing the recently enacted Patient Protection and Affordable Care Act. Peterson’s article, ‘Health Care Reform is Here’ is set forth verbatim immediately below, followed by the Democratic Policy Committee‘s implementation timeline for both Acts.
Health Reform and Reconciliation Bills Passed by the House Senate to Consider Reconciliation Bill The House passed both H.R. 3590, the Patient Protection and Affordable Care Act (the Affordable Care Act), and H.R. 4872, the Health Care and Education Reconciliation Act of 2010 (the Reconciliation Act) on Sunday, March 21, 2010. The President signed the Affordable Care Act on Tuesday, March 23, 2010.