Alan C. Olson
Top rated Employment & Labor attorney in New Berlin, Wisconsin
Alan C. Olson & Associates, s.c.
Practice Areas: Employment & Labor; view more
Licensed in Wisconsin since: 1989
Education: Marquette University Law School
Selected to Super Lawyers: 2014 - 2023 Call today:
262-785-9606
Alan C. Olson & Associates, s.c.
2880 S Moorland RdNew Berlin, WI 53151 Visit website
Details
Alan C. Olson is the principal attorney at Alan C. Olson & Associates, located in New Berlin, Wisconsin. Serving clients throughout Waukesha County and across the state, he focuses his practice primarily on labor and employment law, exclusively representing employees. Mr. Olson has particular experience in cases involving wrongful termination, whether resulting from illegal retaliation or otherwise, and he has successfully argued many of such matters before the state's highest court.
Mr. Olson also has a whistleblower/qui tam practice, where he has sued many large companies who have defrauded the state or federal government and who have retaliated against the employee who brought the matter to the government's attention. In addition, he helps clients who have become disabled obtain their rightful long-term benefits from disability insurance providers that have in many cases denied their claims in bad faith.
The successful results that Mr. Olson has been able to obtain on behalf of his clients have not gone unnoticed by his fellow professionals. In addition to being named to The Best Lawyers in America, he has received an AV Preeminent* peer review rating through Martindale-Hubbell and a 10.0 "Superb" peer review rating through Avvo. Mr. Olson has also been selected as Senior Fellow of the Litigation Counsel of America.**
Mr. Olson received a Bachelor of Science with distinction from the University of Wisconsin-Madison in 1985, and in 1989 he was awarded his Juris Doctor by Marquette University Law School. He has been in private practice since 1990, and he is admitted to practice in Wisconsin and before the U.S. District Courts for the Eastern and Western Districts of Wisconsin and the Supreme Court of the United States. Mr. Olson's professional memberships include the American Association for Justice and the Labor & Employment Law Section of the State Bar of Wisconsin. Mr. Olson also also serves on the Employment Law Panel of the American Arbitration Association.
*AV®, AV Preeminent®, Martindale-Hubbell Distinguished and Martindale-Hubbell Notable are certification marks used under license in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® Peer Review Rating™ fall into two categories – legal ability and general ethical standards.
**Litigation Counsel of America is a trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellowship in the LCA is highly selective and by invitation only. Fellows are selected based upon excellence and accomplishment in litigation, both at the trial and appellate levels, and superior ethical reputation.
Practice areas
Employment & Labor: EmployeeFocus areas
Employment Law - Employee, Labor Law, Sexual Harassment, Wage & Hour Laws, Whistleblower
- 100% Employment & Labor: Employee
First Admitted: 1989, Wisconsin
Professional Webpage: http://employee-advocates.com/alan-c-olson/
Bar/Professional Activity:
- National Employment Lawyers Association
- Employment Law Panel of the American Arbitration Association
- U.S. Supreme Court
- In February 2015, I became a Fellow of The Litigation Counsel of America (LCA), which is an invitation-only trial lawyer honorary society limited to 3,500 Fellows, representing less than one-half of one percent of American lawyers. Fellows are selected and invited into Fellowship after being evaluated for effectiveness and accomplishment in litigation and trial work, along with ethical reputation.
- U.S. District Court Eastern District of Wisconsin
- U.S. District Court Western District of Wisconsin
- American Association for Justice
- Milwaukee Bar Association Co-Chair Labor and Employment Law Continuing Legal Education Section, 2015
- Wisconsin Employment Lawyers Association
- Wisconsin Bar Association Board Member Labor and Employment Law Section, 2017
Educational Background:
- University of Wisconsin - Madison, Bachelors of Science, Honors: With Distinction
Representative Clients:
- Representative Opponents
Videos:
- Practices we use to pursue our clients' long-term disability benefits despite abusive practices by insurance carrier., Abusive Practices by Insurance Carriers.
- Resources to Fight Large Insurance Companies, 2013
- Supreme Court Argument, 2010
- Employment Law Case Evaluation, 2013
- Wisconsin Supreme Court Argument, 2012
- www.youtube.com/watch?v=H5kfVXGMYvw&feature=player_embedded&list=PLC64CAF62C00F2E22
- Client Focus Across Vocations, 2013
Special Licenses/Certifications:
- Juris Doctorate, Marquette University Law School, 1989
- Mr. Olson serves as a mediator and arbitrator on the Employment Panel of the American Arbitration Association., 2022
Scholarly Lectures/Writings:
- Identification of Employer Vulnerabilities and Development of Fix Strategies., Presenter, Avoiding Hiring/Firing Pitfalls, Association Of Accountants, 2007
- This article highlighted the advantages of retaining a boutique law firms like Alan Olson & Associates, specializing in employment law., Opinion Expert, Better, Not Bigger, MKE Lifestyle magazine, Legal, 2019
- This presentation addressed Qui Tam suits in the context of the Lance Armstrong case in which the DOJ recently intervened., Presenter, FALSE CLAIMS ACT-Cardboard Boots, Steroids and Super Rogues, Labor And Employment Law Association, 2013
- Wisconsin employment benefits and employment rights under the American Recovery and Reinvestment Act of 2009, Presenter, American Recovery and Reinvestment Act of 2009 -- Inside The Treasure Chest, 2009
- Wisconsin Law Journal, 2014
- Attorney Presenter, Milwaukee Bar Association, Attorneys And Legal Professionals, 2015
- Metal Recycler on Hook for Bias Against Worker With Autistic Son, https://www.bna.com/metal-recycler-hook-n73014449534/, Employment Law, Mom Wins Right To Take FMLA Leave To Care For With Autistic Son, 2017
- Mom Wins Right To Take FMLA Leave To Care For With Autistic Son, Metal Recycler on Hook for Bias Against Worker With Autistic Son, Mom Wins Right To Take FMLA Leave To Care For With Autistic Son, Employment Law, Construction, Health, Manufacturing, Accounting, Banking, Finance, Sports, Travel, Real Estate, Retail, 2017
- Request for autistic son led to firing, Chicago Daily Law Bulletin, 2017
- Attorney, www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=26015, State Bar of Wisconsin, 2017
- During this radio broadcast Attorney Olson answered questions by Mitch Nelles, about critical issues in the protection of employee rights and important legal trends in employee benefits, leave, pay, whistleblowing, retaliation and discrimination., Speaker, Ask The Expert, iHeart Radio 920, 2018
- HR professionals attended this Webinar to understand the circumstances under which they may be personally exposed to a legal claim. By understanding which state and federal laws allow for personal liability, the HR professional were better equipped to draft better policies, follow better procedures and take better precautions. In addition to reviewing the technical aspects of the law which impute personal liability, attendees of this program understood the practical aspects of how to avoid liability. Finally, the program provided the do’s and don’ts in responding to and defending against a personal suit., Speaker, Human Resource Personal Liability, Lorman, Banking, Accounting, Energy, IT, Transportation, Construction, Real Estate, Health, Leisure, 2022
Honors/Awards:
- Outstanding Pro Bono Law Firm Participation Award, Legal Action of Wisconsin, 2010
- Leading Lawyer, AVVO- M Magazine, 2012
- Pro Bono Honor Society 2013, State Bar of Wisconsin, 2014
- The Best Lawyers In America – Employment Litigation**, The Best Lawyers in America, Best Lawyers, 2017
- Peer Review Rated AV® Preeminent, Employment Law, Employment Benefits, Martindale Hubbell, 2017
- , Senior Fellow, Litigation Counsel of America, 2018
- Litigation- Labor & Employment, Best Lawyers
Pro bono/Community Service:
- Outstanding Pro Bono Law Firm Participation Award, 2010
- The Leukemia and Lymphoma Society
- National Fibromyalgia Association
- Highschool Mock Trial Judge; MS Society; Arthritis Foundation
- Volunteer Lawyers Project
- National MS Society
- Mock Trial High School Competition
- The Arthritis Foundation
Verdicts/Settlements:
- In this Qui Tam suit, Rouse ex rel. United States v. Odyssey Healthcare, Mr. Olson's client recovered the largest dollar amount of any medicare fraud case in Wisconsin on behalf of the US government. ($30M)., 2013
- In Kaiser v. United of Omaha Life Ins. Co., Mr. Olson recovered substantial ERISA disability benefits, attorney fees and costs as a result of federal court litigation., 2016
- In Theresa Noble v. T-Lon Products, Mr. Olson successfully tried this FMLA case to win his client's loss of pay, benefits, interest and attorney fees., 2017
- In Mowery v. Metro. Life Ins. Co., Mr. Olson litigated his client's ERISA claims in federal court to recover his client's disability benefits and attorney fees., 2017
- In Wink v. Miller Compressing, the Seventh Circuit affirmed the jury's conclusion that Wink's superiors were angry with her for requesting to be allowed to stay home (albeit working part of the day) two days a week, though she'd been doing that since February to the satisfaction of the employer. Hence the HR Manager's phony line that FMLA can't be used to authorize leave to take care of a very sick child even when obtaining day care for the child is difficult or even impossible because of the child's particular ailment—autism that in this case manifested itself at times in violent behavior. The Wink Court held that FMLA is explicit that an eligible employee (which Wink is conceded to have been) is entitled to take up to 12 workweeks of unpaid leave per year in order to care for a family member with a serious health condition, including a child with such a condition. The Seventh Circuit also found that the district court's reduction of Wink's attorney fees by 20% was improper., 2017
- In Alberth v. Southern Lakes Plumbing & Heating Inc., Mr. Olson successfully tried this ERISA case in federal court to recover from his client's former employer substantial retirement benefits, attorney fees and statutory penalties. , 2021
- Pursuant to a confidential settlement, Mr. Olson resolved three years of litigation in federal court regarding violations of his client's claims against a former employer for disability discrimination, FMLA interference and retaliation. , 2022
- In Leslie Meganck vs. Ascension Columbia St. Mary's, Mr. Olson successfully tried this disability discrimination case, resulting in an award of lost pay, benefits, attorney fees and interest to his client., 2022
White Papers:
- With the help of ordinary citizens and employees, the Department of Justice (“DOJ”) is gunning for companies that cheat the government. The DOJ then shares the booty with the individual who brought the fraud to light. The False Claims Act, referred to in the old days as “Lincoln’s Law”, was enacted in 1863 and continues today as the government’s primary litigation tool for recovering losses resulting from fraud. This article describes the steps involved in bringing a whistleblower claim and the hard-earned remedies available to the whistleblower for their help to our government. What is a false claim? Generally a False Claim is any fraudulent attempt to gain taxpayer funds. The term “claim” means any request or demand, whether under a contract or otherwise, for money or property that is presented to an officer, employee, or agent of the United States. The types of fraud are as varied and far spanning as a deceitful human mind can imagine. Schemes to defraud the government include pharmaceuticals; Medicare; military equipment; and the commodities sold to assorted government agencies— among many others. False Claims Act anti-retaliation protection for employees Employees who blow the whistle on their employers are protected from retaliation under the False Claims Act. To invoke protection, the whistleblower must engage in protected activity. Protected activity equates to the employee, having a reasonable belief of fraud, investigates the fraud, and is discharged for reporting the employer’s fraud. Whistleblower employees who are retaliated against may recover make-whole remedies, including double the employee’s loss of back-pay, reinstatement, attorney fees and interest. The reinstatement remedy is often a concern raised by my clients. After all, who would want to go back to work for a company that engaged in fraud and then retaliated against them for reporting it? This would be the antithesis of a good employment relationship founded on trust and honesty. Point well taken but the employer must be held to the fire and forced to compensate the whistleblower in lieu of reinstatement. Whistleblower employees are also protected from constructive discharge, which is a situation where the employer creates intolerable working conditions, forcing the employee to quit. For example, even if the employer refrains from telling the whistleblower “you’re fired!” management may make the workplace a living hell by imposing impossible tasks, aggressive behavior, harassing statements, and exclusionary tactics. An employee who quits under such intolerable conditions may recover for retaliatory discharge. The whistleblower Complaint process A whistleblower may file a formal Complaint in any federal court where the defendant can be found. It is important for the whistleblower’s attorney to pick the forum most favorable to the case. The Complaint filing deadline is 6 years from the date that the whistleblower learned of the fraud. In retaliation cases, the whistleblower must file the Complaint within 3 years of the retaliation. The Complaint must describe the specific facts, including dates and the detailed events of fraud. The Complaint is filed under seal by the clerk of court and served on the DOJ. The whistleblower then serves the DOJ with a Disclosure Statement, which contains substantially all material evidence and information in the possession of the whistleblower. The Disclosure Statement must contain the following categories of information: Legal theories (keep separate) Facts Witnesses Copies/location of documents This information is designed to assist the DOJ’s investigation. In addition, a US Attorney may ask to interview the whistleblower and the whistleblower’s attorney personally for purposes of clarifying facts and assessing the whistleblower’s credibility. This is an opportunity for the whistleblower to explain details of the case to the US Attorney who will later decide whether to recommend spending the government’s resources to intervene and take over prosecution of the case. The defendant is not served for at least 60 days while the DOJ investigates the merits of the Complaint. The DOJ has a 60-day deadline to decide whether to intervene in the whistleblower’s case but may seek numerous extensions before intervening. The reason for these extensions is that the DOJ needs time to investigate what are usually complex factual patterns and intricate legal issues. The government remains a party in interest even after declining to intervene. The government intervenes in only 20% of FCA cases. If the DOJ does intervene, it may limit the whistleblower’s involvement in the litigation; pressure the whistleblower to settle the suit; and negotiate the lowest share possible to the whistleblower. The whistleblower’s personal attorney will engage in what is often intense negotiation with the US Attorney over these important matters. What constitutes a knowing intent to defraud? Under the False Claims Act, the term “knowing intent to defraud” means that a person has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the truth or falsity of the information. Proof of specific intent to defraud is not required. An example of “recklessly disregarding the truth” would be a manager allowing invoices to go out to the government, knowing there is an overcharge inherent to the billing system, but failing to check the invoices manually for accuracy. Substantial remedies available to the government and whistleblower Under the False Claims Act, the government may recover triple the amount of its actual damages, e.g., $10M damages = $30M remedies. (The award may be reduced to double damages if the defrauding party cooperates with the government.) In addition, penalties of $5,500 to $11,000 per violation may be ordered. DOJ Sharing Guidelines The following are several items that the DOJ will consider for a possible increase in the percentage shared with the whistleblower: The whistleblower reported the fraud promptly. When he learned of the fraud, the whistleblower tried to stop the fraud or reported it to a supervisor or the government. The suit filing, or the ensuing investigation, caused the offender to halt the fraudulent practices. The complaint warned the government of a significant safety issue. The complaint exposed a nationwide practice. The whistleblower provided extensive, first-hand details of the fraud to the government. The government had no knowledge of the fraud. The whistleblower provided substantial assistance during the investigation and/or pretrial phases of the case. At his deposition and/or trial, the whistleblower was an excellent, credible witness. The whistleblower's counsel provided substantial assistance to the government. The whistleblower and his counsel supported and cooperated with the government during the entire proceeding. The case went to trial. The FCA recovery was relatively small. The filing of the complaint had a substantial adverse impact on the whistleblower. The following are several items that the DOJ will consider for a possible decrease in the percentage shared with the whistleblower: The whistleblower participated in the fraud. The whistleblower substantially delayed in reporting the fraud or filing the complaint. The whistleblower, or whistleblower's counsel, violated FCA procedures: (a) complaint served on defendant or not filed under seal; (b) the whistleblower publicized the case while it was under seal; (c) statement of material facts and evidence not provided. The whistleblower had little knowledge of the fraud or only suspicions. The whistleblower's knowledge was based primarily on public information. The whistleblower learned of the fraud in the course of his government employment. The government already knew of the fraud. The whistleblower, or whistleblower's counsel, did not provide any help after filing the complaint, hampered the government's efforts in developing the case, or unreasonably opposed the government's positions in litigation. The case required a substantial effort by the government to develop the facts to win the lawsuit. The case settled shortly after the complaint was filed or with little need for discovery. The FCA recovery was relatively large. The average whistleblower award is 16% when intervention occurs and only 20% when there is no intervention. In my view, any citizen or employee who has the hutzpah to stand up against their employer to fight fraud deserves every penny of the whistleblower award. As taxpayers we all pay the price for fraud against the government, so the bounty paid to the whistleblower is an important and well-earned incentive. Through the whistleblower program we recover billions of dollars from dishonest corporations and give it back to its rightful owners— U.S. citizens. Alan C. Olson , Whistleblower Retaliation, 2014
- Pitfalls, Pratfalls and Pearls of ERISA-LTD Litigation Alan C. Olson[email protected]April 22, 2015 I. Long-term disability plans under ERISAA. ERISA covers private employer-sponsored plans The Employee Retirement Income Security Act of 1974 (ERISA) covers long-term disability benefit plans that are provided to the employee through a private employer. 29 U.S.C. § 1002(1) (statutorily defining welfare benefits to include claims for health, life, and disability insurance, regardless of whether self-funded or insured).B. ERISA does not apply to individual, government and church plans (b) The provisions of ERISA shall not apply to any employee benefit plan if-- (1) such plan is a governmental plan (as defined in section 1002(32) of this title); (2) such plan is a church plan (as defined in section 1002(33) of this title) with respect to which no election has been made under section 410(d) of Title 26; (3) such plan is maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws; (4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or (5) such plan is an excess benefit plan (as defined in section 1002(36) of this title) and is unfunded. 29 U.S.C. § 1003. II. Summary Plan Document and Plan Document The terms of LTD coverage are contained in a plan document (policy or PD) and a summary plan description (SPD). The SPD provides a detailed overview of the plan – how it works, what benefits it provides, and how to file a claim for benefits. It also describes the claimant’s rights and responsibilities under ERISA. For some single-employer collectively bargained plans, you should also check the collective bargaining agreement’s claim filing, grievance, and appeal procedures as they may apply to claims for health and disability benefits.A. Conflicting terms between SPD and PD As long as an SPD satisfies ERISA's requirement that it is accurate and sufficiently comprehensive to reasonably apprise plan participants of their rights and obligations, see 29 U.S.C. § 1022, a participant or beneficiary may rely on an SPD and estop a plan administrator from denying coverage for terms found in the underlying policy only if there is a direct conflict between an SPD and the underlying policy. Mers v. Marriott Int'l Grp. Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1024 (7th Cir. 1998). Silence in an SPD does not override specific provisions in the underlying plan. Id. at 1023.B. Total Disability defined by PlanThe typical long-term disability Plan defines Total Disability as: The complete inability of an Employee, because of injury, illness, or childbirth to perform the duties of his or her occupation. During a period of Total Disability, the Employee must be under the care of a qualified licensed physician other than an immediate family member. C. Elimination Period Most LTD plans provide for an "elimination period" of 90 or 180 days during which the claimant is not yet eligible to receive benefits even though disabled. This time period often coincides with the length of the claimant’s short-term disability policy. LTD applicants generally must use up all of their sick time and short-term disability benefits before they file for LTD benefits. D. Own Occupation and Any Occupation clauses Disability claims generally fall into two broad categories: own occupation and any occupation. Most long-term disability group policies provide benefits under an "own occupation" clause for the first two years of disability, and thereafter, provide benefits under an "any occupation" clause. This is one of the first and most important issues an ERISA LTD practitioner should confirm by checking the policy. 1. Own Occupation disability An own occupation policy typically requires that the insured be unable to perform the material and substantial duties of his or her particular occupation to be considered "totally disabled." When considering the claimant's own occupation, most plans direct that we must look at how the job is performed in the national economy, i.e., what are the essential functions of the job and what is the physical rating of the job per the Dictionary of Occupational Titles (DOT). The disability need not render the claimant totally helpless; rather the claimant must be rendered unable to perform the material and substantial duties of his or her particular occupation. Cheney v. Standard Ins. Co., No. 13 C 4269, 2014 WL 4259861, *12 (N.D. Ill. Aug. 28, 2014)(Whether plaintiff can find other, less demanding, work as a lawyer is not the question.)2. Any Occupation disabilityAn "any occupation" standard typically defines disability in terms of the claimant's inability to engage in any gainful occupation that the insured is reasonably suited for based on his or her education, work experience, and other individualized factors. When considering any occupation, the analysis begins with the DOT regulations to determine the job titles that the plan alleges the plaintiff can perform, and then to determine whether the claimant could earn enough to exceed the plan earnings limitation, they look to the claimant's geographic region to find the number of jobs and the pay rates. Claims under the any occupation standard typically involve an analysis of the claimant's employability. Analysis of these claims necessarily focuses on claimant's education and work experience. The insurer, for example, can consider the claimant's salary history, as well as a wage analysis of other available occupations, in order to determine what other gainful occupation he or she might reasonably be expected to engage in. Performance of any occupation may include workplace accommodations, which may be legitimate grounds for denying benefits. Unless the plain language of the policy is to the contrary, courts generally hold that if an insured is capable of part-time work, then they are not unable to perform any occupation and are not totally disabled under the any occupation standard. In many cases, the definition of any occupation includes the phrase "gainful" under which the insurer must determine whether or not a claimant can be gainfully employed. A typical definition of "gainful occupation" is: "an occupation, including self-employment, that is or can be expected to provide you with an income equal to at least 60% of your indexed monthly earnings." Under this definition, the focus of the analysis is that LTD benefits may be awarded only if the disability prevents the claimant from obtaining work, which would enable the individual to earn 60% of their former salary.Practice Tip: For about $500 a vocational expert will provide a written analysis of whether your client could be gainfully occupied based on abilities, skills and education, as well as an assessment of the labor market in the claimant's geographic region. III. The administrative claim processA. Claim review deadlines If the claim is denied, the plan administrator must send a notice, either in writing or electronically, with a detailed explanation of why the claim was denied and a description of the appeal process. In addition, the plan must include the plan rules, guidelines, or exclusions (such as medical necessity or experimental treatment exclusions) used in the decision or provide the claimant with instructions on how to request a copy from the plan. The notice may also include a specific request for the claimant to provide the plan with additional information for purposes of appealing the denial. Disability claims must be reviewed within a reasonable period of time, but not later 45 days, with one 45–day extension available for “special circumstances (such as the need to have records go to a specialist).” 29 CFR § 2560.503–1(i)(1)(i). If the plan determines special circumstances exist and an extension is needed, the plan may take up to an additional 45 days to decide the appeal. 29 CFR § 2560.503–1(i)(3)(i). However, before taking the extension, the plan must notify the claimant in writing during the first 45-day period explaining the special circumstances, and the date by which the plan expects to make the decision. The plan's time for resolving an appeal can be tolled again if the participant fails to submit necessary information. 29 CFR § 2560.503–1(i)(4). In the ordinary course, the regulations contemplate an internal review process lasting about one year. If the plan fails to meet its own deadlines under these procedures, the participant “shall be deemed to have exhausted the administrative remedies.” 29 CFR § 2560.503–1(l ). Upon exhaustion of the internal review process, the participant is entitled to proceed immediately to judicial review, the second tier of ERISA's remedial scheme.A. Administrative appeal of denied claim Following denial, the plan must provide the participant with “at least 180 days ... within which to appeal the determination.” 29 CFR §§ 2560.503–1(h)(3)(i), (h)(4). The plan must provide claimants, on request and free of charge, copies of documents, records, and other information relevant to the claim for benefits. The plan also must identify, on request, any medical or vocational expert whose advice was obtained by the plan.Practice Tip: At the time of appeal, notify the carrier that you are appealing the denial but will not be able to provide additional information until the claimant’s records are reviewed and the carrier provides a copy of the administrative record. The carrier will normally allow additional time to supply medical information if necessity is demonstrated. The initial 180 day period (and any extension) is a crucial time to gather and organize medical records, arrange for a medical examination of the claimant, have the claimant undergo a functional capacity assessment, and retain an expert to perform a vocational analysis regarding the client's background, training, and education as it relates to his or her performance of occupations. B. Review on appeal must be independent On appeal, the claim must be reviewed by someone new who looks at all of the information submitted and consults with qualified medical professionals if a medical judgment is involved. This reviewer cannot be a subordinate of the person who made the initial decision and must give no consideration to that decision.C. SSDI eligibility as evidence of disability In Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 118 (2008), the Supreme Court addressed the questionable nature of a Plan ignoring an SSA decision, stating: In particular, the court found questionable the fact that MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (the remainder going to the lawyers it recommended), and then ignored the agency's finding in concluding that Glenn could in fact do sedentary work. This course of events was not only an important factor in its own right (because it suggested procedural unreasonableness), but also would have justified the court in giving more weight to the conflict (because MetLife's seemingly inconsistent positions were both financially advantageous). And the court furthermore observed that MetLife had emphasized a certain medical report that favored a denial of benefits, had deemphasized certain other reports that suggested a contrary conclusion, and had failed to provide its independent vocational and medical experts with all of the relevant evidence. (internal citation omitted); See also Holmstrom v. Metropolitan Life Ins. Co., 615 F.3d 758, 772-773 (7th Cir. 2010). Social Security defines “disabled”: as the: inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.] 42 U.S.C. § 423(d)(1)(A). Furthermore, when making disability determinations, the SSA considers the “applicant’s age, education, and experience, and includes any kind of substantial gainful work which exists in the national economy, regardless of whether any jobs or vacancies exist in the immediate area in which the applicant lives.” See, Rayborne v. Cigna Life Ins. Co. of North America, Case No. 07 C 3205, *19 (7th Cir. 2012). As the court explained in White v. Airline Pilots Ass'n, Intern., 364 F. Supp. 2d 747, 768 (N.D.Ill.2005), an inability to perform one's own job is one of the five steps necessary to prove entitlement to Social Security benefits, thus the award of Social Security benefits by an impartial Administrative Law Judge is instructive. Only after the Administrative Law Judge has concluded that the claimant cannot perform her own occupation does he consider whether the claimant can perform any occupation. Id. It is likely more difficult for a claimant to prove that she is disabled from any occupation than to prove that she is disabled from her own. Although the social security determination of disability is not binding on this court, it corroborates the conclusion that plaintiff was disabled from performing her regular occupation. See La Barge, 2001 WL 109527 at *8 (“The findings of the Social Security Administration is compelling evidence of [the claimant's] disability.”).Practice Tip: If the Plan defines Total Disability as unable to perform a job based on education, training and experience, you may argue that this same language and standard is used by the Social Security Administration in their analysis of disability. Failure to consider the Social Security Administration’s finding of disability may be evidence of arbitrary decision-making. Holmstrom supra at 772-773 citing Glenn supra 128 S.Ct. at 2352.D. Using a vocational expert to challenge any-occ decision A vocational expert will provide an independent assessment on whether the claimant is prohibited from earning a living because of a mental or physical condition. Before coming to a conclusion, a vocational expert will thoroughly examine objective evidence provided by physicians, insurance companies and employers, including medical records, with an eye for whether that information is correct. Should the vocational expert think there is a mistake in the information, he or she must further assess the situation. The vocational expert will also take into account the claimant’s education level, work training and professional experience. After a vocational expert completes their independent assessment, they will create a written report.Practice Tip: Provide your vocational expert with a list of open-ended questions that connect the claimant’s vocational opportunities with the specific definition of Total Disability set forth in the Plan. (For a sample letter please email me: [email protected])E. Medical examination versus functional capacity evaluation Functional Capacity Evaluations are frequently used in the evaluation of a disability claim. An FCE tests a claimant's ability to perform a series of tasks, which would simulate the claimant's usual and customary job duties, to determine the extent to which the claimant is able to perform these tasks on a regular basis. It consists of a series of tasks designed to estimate the physical limitations of the claimant and to determine whether the claimant might be malingering. The evaluation can take several hours, or it could take two or three days. A well-conducted FCE provides objective clinical evidence on whether the claimant is physically capable of performing the usual and customary duties of his occupation. It is also designed to determine whether the claimant is putting forth his maximum effort in performing the tasks of the exam, and thus can provide evidence on whether the claimant is exaggerating his symptoms. The Seventh Circuit Court of Appeals and other federal courts have been clear that a review process where the insurance company fails to determine what an applicant's job duties entailed is neither full nor fair. See Quinn v. Blue Cross & Blue Shield Assn., 161 F.3d 472, 476-77 (7th Cir.1998); Hillock v. Cont'l Cas. Co., 2004 WL 434217, *5 (N.D.Ill. March 2, 2004); White v. Airline Pilots Ass'n, Intern., 364 F.Supp. 2d 747, 762 (ND Ill 2005).1. Is a claimant required to attend an FCE? Insurance contracts typically provide an insurer the right to seek a medical examination of a person claiming entitlement to long-term disability benefits. A typical contract will often read as follows: "As often as is reasonable, we have the right to have the insured examined by a physician of our choice." Many insurers have read this language broadly in seeking to have claimants undergo Functional Capacity Evaluations. These FCE's are dramatically different from a medical examination, in that they typically force a claimant to undertake rigorous physical activity for a sustained period of time, engaging in functions such as pushing, pulling, climbing, bending, reaching and other activities. Often, this type of testing is performed by a physical therapist, rather than a doctor. A claimant who undergoes such testing will likely find themselves suffering substantial exacerbations of their medical condition following this testing.Practice Tip: Some insurance contracts do not specifically require a claimant to undergo an FCE. Where the contract was written by the insurer, and is vague or ambiguous, make an argument that the provision does not properly require such testing, and is inappropriate. 2. Other FCE concerns Other concerns raised about FCEs include the inherent lack of safety and the lack of reliability to the results. As noted above, many FCEs require claimants to undertake vigorous physical tasks, which lead to the exacerbation of their conditions. The FCE provider is not the treating doctor and is not concerned about post-testing impact upon the claimant. If the claimant is injured in an FCE, the insurer will not readily accept liability for any injuries, and liability may not even be able to be imposed upon the provider. Regarding the reliability of the results, the insurer often attempts to use these test results to extrapolate the claimant’s full time functionality, even though the FCE was short in duration, and ignoring the post-testing impact upon the claimant. Finally, the FCE may not be proper if by design it will not yield probative results.Practice Tip: We typically arrange for our client to undergo a one day test with an examination by our client's treating doctor the next day, to make a record of physical setbacks and limitations caused by the client's exertion during the testing. This is particularly important for our clients who suffer from CFS, fibromyalgia, lymes disease, MS, certain back conditions, and other pain syndromes.3. Witness and videotaping issues Often, claimants are counseled to attend either an IME or FCE with a witness and/or to videotape the examination/evaluation. The logic behind this approach is to help to ensure that the process has integrity, so that the true results of any examination or evaluation are accurately depicted. However, many insurers argue that witnesses and videotaping are not permitted. As reported by the New York Times recently, "Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker's back. 'Mild spasm bilaterally,' he said softly. He pressed his fingers gingerly against the side of the man's neck. 'The left cervical is tender,' he said, 'even to light palpation.'" As he moved about a scuffed Brooklyn office, he called out test results indicative of an injured man. His words were captured on videotape. Yet the report Dr. Samuels later submitted cleared the claimant for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.F. Testing for psychological and neuropsychological conditions There are several conditions, beyond the easily identified depression and anxiety impairments, where insurers have become more aggressive in pursuing psychological and neuropsychological testing. These conditions include Fibromyalgia, Chronic Fatigue Syndrome, Lyme Disease, Chemical Sensitivity, Migraines, and even orthopedic impairments.Practice Tip: Many claimants who suffer with Chronic Fatigue Syndrome (CFS), fibromyalgia, lyme, and migraines, have cognitive difficulties (and not simply depression). A battery of neuropsychological tests can help to identify how or where the individual is suffering cognitively, and effective utilization of such testing can help prove the impairment.1. Malingering and somatoform diagnoses Insurance company hired doctors often ascribe a diagnosis of either malingering or somatoform disorder, in an effort to impugn the credibility of the claimant. In such testing, the examiner normally familiarizes himself with the claimant's personal and family background and his education and employment history. He will then conduct a face to face examination of the claimant, which may take several hours, inquiring into all aspects of the claimant's life, essentially taking and recording the claimant's "life story." Once this psychiatric examination is completed, the claimant would then be referred to a forensic psychologist for psychological testing. Reliable and valid "self-report" personality tests have been opined as the best way to assess a claimant with a psychological condition, or conditions such as fibromyalgia or chronic fatigue syndrome. These would include the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Personality Assessment Inventory (PAI) and the Rorschach Inkblot Test (Rorschach). The obvious purpose of these tests with disability claimants is to assess the accuracy and validity of the claimant's self-reported symptoms and limitations, and the extent to which the claimant may be malingering. Statistical findings from the MMPI-2 or the PAI may indicate that the claimant's self-reported symptoms and claimed limitations are being exaggerated, which would suggest malingering. To investigate this possible malingering further, the forensic psychologist would then turn to the Rorschach test. According to one authority, the Rorschach is as reliable and valid as any of the personality tests that psychologists typically use. It is designed to provide insight into the underlying cause of the claimant's complaints. One of its most important features is that a claimant will have great difficulty trying to figure out how to provide the "right" answers which will support his claim of disability. Thus, it serves as a means to cross-validate the results from the MMPI-2 and the PAI, while also serving as an informal "lie detector test" to further confirm the accuracy and validity of the claimant's complaints. Another test for psychological or neuropsychological dysfunction are the Test of Memory Malingering (TOMM) and the Word Memory Test (WMT) which are also considered to be reliable and valid measures of assessing the reasonableness of the correlation between a claimant's performance on neurocognitive testing and his subjective complaint of disability.2. Issues Regarding MMPI-2 Fake Bad Scale (FBS) One area of particular concern has been the reliance (and perhaps over reliance) upon the results of a particular aspect of the Minnesota Multiphasic Personality Inventory (MMPI-2), known as the Fake Bad Scale (FBS). Numerous flaws exist in the original methodology and conclusions underlying the development of the FBS for purposes of establishing malingering. These include (1) inadequate description of the item selection procedures; (2) lack of independent and empirical verification of the rationally selected items; (3) no description of the criteria used to determine personal injury claimants who appeared 'notably credible'; (4) no description of any sound procedure used to determine those 'who appeared clearly to be malingering'; (5) no information about the population from which the subjects were selected; (6) use of small sample sizes that can lead to unstable findings; (7) lack of descriptive information, other than mean age and gender of the samples; (8) failure to consider gender differences in responding to the selected items; (9) use of weighted estimates to calculate the mean scores of the normative sample and psychiatric inpatients that did not allow presentation of Sds (standard deviations). One recent court order struck the use of the FBS where the Court opined that "[t]he preponderance of the evidence does not support [the] contention that the FBS is now generally accepted in the psychology community." The Court concluded that the FBS is "very subjective and dependent upon the interpretation of the person using or interpreting the circumstances and there is a high degree of probability for false positives." There is also an acknowledged bias against women and those with demonstrated serious injuries which makes the FBS unreliable. According to the creator of the FBS, Dr. Lees-Haley, the FBS was designed for personal injury claimants, and thus, lacks any degree of reliability in the disability insurance context. Thus, where an insurer's claim determination relies upon the results of the FBS, it will be challenged by lawyers from an evidentiary standpoint.Practice Tip: When an insurer is considering a claim of disability based on mental or nervous conditions such as depression, anxiety or post-traumatic stress disorder (PTSD), it is almost mandatory that reliable psychiatric evaluation and psychological testing be considered to determine the extent to which the claimant's subjective complaints are supported by objective testing. 3. When objective evidence is not available In situations when conclusive objective evidence is unavailable, a claim may still be validated through the use of subjective evidence. Subjective evidence includes physician observations, self reports, friend and family observations. Chronic fatigue syndrome, like fibromyalgia, poses unique issues for plan administrators, since for both conditions, “[i]ts cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective.” Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007), citing Hawkins v. First Union Corp. Long–Term Disability Plan, 326 F.3d 914, 916 (7th Cir. 2003); McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 562 (7th Cir.2000).IV. Pain disorders Many claimants who suffer with Chronic Fatigue Syndrome (CFS), fibromyalgia, lyme, and migraines, have cognitive difficulties (and not simply depression). Neuropsychological testing may help to identify how or where a claimant is suffering cognitively, and effective utilization of such testing can help us demonstrate our client's impairment. One challenge associated with such testing is that often, the individual’s baseline intelligence cannot be fully appreciated, potentially leaving a gap where one's functioning is "average" or comparable with age based controls. The issue would be to contrast pre-morbid functioning (particularly where one was at a high level) against current abilities, or deficits. There is a subjective element to interpreting the results, such that when considering the raw data, two medical professionals can arrive at different conclusions based upon the same evidence. As held in Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 647 (7th Cir. 2007), “[w]e have drawn inferences from the fact that trained medical professionals responded to a claimant's call for help in the past, commenting on ‘the improbability that [plaintiff] is a good enough actress to fool a host of doctors and emergency-room personnel into thinking she suffers extreme pain; and the (perhaps lesser) improbability that this host of medical workers would prescribe drugs and other treatment for her if they thought she were faking her symptoms.’” Id. citing Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). “Taken in the light most favorable to the plaintiff, the evidence of Diaz's repeated attempts to seek treatment for his condition supports an inference that his pain, though hard to explain by reference to physical symptoms, was disabling.” Id. In Majeski v. Metropolitan Life Insurance Co., 590 F.3d 478 (7th Cir. 2009), the disability claimant's physical therapist performed a functional capacity evaluation in which she determined that the claimant, whose work involved typing, could perform the task only for a very short period without experiencing pain. 590 F.3d at 480–481. A record-reviewing physician hired by the defendant, though he acknowledged viewing the treating physician's evaluation, nonetheless opined that there were “minimal objective findings on physical and neurological examination” to support a finding of disability; he directly addressed neither the treating physician's functional capacity finding nor his conclusion that the claimant was unable to perform her occupation Id. at 481. The defendant's physician also failed to address a FCE questionnaire filled out by another treating physician, which had also endorsed the view that the claimant had a limited functional capacity—apparently because the company had not forwarded the documents to him. Id. The defendant, MetLife, relied instead on the opinion of its retained physician in denying the disability claim. “By ignoring [plaintiff's] key medical evidence,” the Seventh Circuit reasoned, “Metlife can hardly be said to have afforded her an opportunity for full and fair review, and its failure to address that evidence in its determination surely constitutes an absence of reasoning.” Id. at 484.A. Fibromyalgia By “tender points,” the Plan is referring to the diagnostic test for fibromyalgia, under which a patient is considered to have fibromyalgia if they have tenderness in 11 or more of the 18 trigger locations on the body. Hawkins v. First Union Corp. Long–Term Disability Plan, 326 F.3d 914, 916 (7th Cir.2003). However, this test can only detect the presence of fibromyalgia, not its severity. Id. (“The disease itself can be diagnosed more or less objectively by the 18–point test ..., but the amount of pain and fatigue that a particular case of it produces cannot be.”); see also Jacobson v. SLM Corp. Welfare Benefit Plan, 1:08–cv–267, 2009 WL 2841086, at *8 (S.D.Ind. Sept. 1, 2009) (Hamilton, J.) (“The tender point test injects some objectivity into the diagnosis of fibromyalgia, but the amount of pain caused by the disease can be measured only subjectively.”). Because the disabling symptom of fibromyalgia is typically pain, which is inherently subjective, whether fibromyalgia is disabling can only be determined by measuring the extent of a patient's physical limitations, not by a diagnostic or laboratory test. Hawkins, 326 F.3d at 919; Speciale v. Blue Cross & Blue Shield Ass'n, 538 F.3d 615, 622 (7th Cir. 2008). Thus, while it is true that the tender points test itself would not support functional limitations, that test is neither meant nor able to assess the extent of a patient's physical limitations, so this reason provides no basis on which to conclude that a claimant’s fibromyalgia is not disabling.4. Final denial of appeal. Once the final decision on the claim is made, the plan must send a written explanation of the decision. The notice must be in plain language that can be understood by participants in the plan. It must include all the specific reasons for the denial of the claim on appeal, refer the claimant to the plan provisions on which the decision is based, tell the claimant if the plan has any additional voluntary levels of appeal, explain the claimant’s right to receive documents that are relevant to the benefit claim free of charge, and describe the claimant’s rights to seek judicial review of the plan’s decision.V. Judicial review of Plan’s decision Congress authorized aggrieved participants in employee benefit plans and their beneficiaries the right to institute a civil action “to recover benefits due . . . under the terms of [a] plan, to reinforce . . . rights under the terms of the plan, or to clarify . . . rights to future benefits under the terms of the plan.” 29 USC § 1132(a)(1)(B). A. Statute of Limitations may be contracted by parties to policy ERISA § 502(a)(1)(B) does not specify a statute of limitations. We must give effect to the Plan's limitations provision unless we determine either that the period is unreasonably short, or that a “controlling statute” prevents the limitations provision from taking effect. Heimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 612, 187 L. Ed. 2d 529 (2013). The Heimeshoff Court reasoned that the cases in which internal review leaves participants with less than one year to file suit are rare and there are only a handful of cases that are actually time barred as a result of this 3–year limitations provision. Id. at 615. One such time-barred case was Abena v. Metropolitan Life Ins. Co., 544 F.3d 880 (7th Cir. 2008), where the barrier fell on a participant who had not diligently pursued his rights. Id. at 884. (by his own admission, there was “no reason” plaintiff could not have filed suit during the remaining seven months of limitations period). The Heimeshoff Court further rationalized its decision on the basis that, even in the rare cases where internal review prevents participants from bringing § 502(a)(1)(B) actions within the contractual period, courts are well equipped to apply traditional doctrines that may nevertheless allow participants to proceed. If the administrator's conduct causes a participant to miss the deadline for judicial review, waiver or estoppel may prevent the administrator from invoking the limitations provision as a defense. Id. To the extent the participant has diligently pursued both internal review and judicial review but was prevented from filing suit by extraordinary circumstances, equitable tolling may apply. Heimeshoff supra, 134 S. Ct. at 616, citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (limitations defenses “in lawsuits between private litigants are customarily subject to ‘equitable tolling’ ”).B. Standard of review1. De novo standard of review The Seventh Circuit explained the de novo process in Krolnik v. PrudentialInsurance Co. of America: Firestone holds that “de novo review” is the norm in litigation under ERISA. Cases such as this show that “de novo review” is a misleading phrase. The law Latin could be replaced by an English word, such as “independent.” And the word “review” simply has to go. For what Firestone requires is not “review” of any kind; it is an independent decision rather than “review” that Firestone contemplates. 570 F.3d 841 (7th Cir. 2009). The Krolnik Court repeatedly wrote that litigation under ERISA by plan participants seeking benefits should be conducted just like contract litigation, for the plan and any insurance policy are contracts. In a contract suit the judge does not “review” either party’s decision. Instead the court takes evidence (if there is a dispute about a material fact) and makes an independent decision about how the language of the contract applies to those facts. Id. at 843. 2. Arbitrary and capricious standard of review Judicial review of an ERISA administrator's benefits determination is de novo unless the plan grants the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766-67 (7th Cir. 2010), citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When the administrator has such discretionary authority, as the vast majority now do, the court applies a more deferential standard, seeking to determine only whether the administrator's decision was “arbitrary and capricious.” Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008); Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860–61 (7th Cir.2009). Review under this deferential standard is not a rubber stamp, however, and “we will not uphold a termination when there is an absence of reasoning in the record to support it.” Hackett v. Xerox Corp. Long–Term Disability Income Plan, 315 F.3d 771, 774–75 (7th Cir. 2003). 3. Conflict of interest An administrator's conflict of interest is a key consideration under this deferential standard. “In conducting this review, we remain cognizant of the conflict of interest that exists when the administrator has both the discretionary authority to determine eligibility for benefits and the obligation to pay benefits when due.” Jenkins, 564 F.3d at 861, citing Glenn, 128 S.Ct. at 2346. In such cases, the conflict of interest is “weighed as a factor in determining whether there is an abuse of discretion.” See Glenn, 128 S.Ct. at 2350. C. Limitations on discovery in ERISA litigation Glenn’s finding of the existence of a conflict of interest and its command that “conflicts are but one factor among many that a reviewing judge must take into account” has opened the door to claimants’ pursuit of discovery aimed at demonstrating that the inherent conflict has infected the claim decision, which could prove decisive in a court’s evaluation of the propriety of the claim determination. Mark D. DeBofsky, A Critical Appraisal of the Current State of ERISA Civil Procedure – An Examination of How The Courts Treat “Civil Actions” Brought Under the Employee Retirement Income Security Act, 18 Em. Rts. & Emp. Pol'y J. 220 [2014]. D. Remedies on Summary Judgment 1. Reinstatement of benefits Retroactive reinstatement of benefits is a proper remedy in cases where the evidence is “so clear cut that it would be unreasonable for the plan administrator to deny the application for benefits on any ground.” Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir.1996). 2. Remand for administrative review “[W]hen a court or agency fails to make adequate findings or fails to provide an adequate reasoning, the proper remedy in an ERISA case ... is to remand for further findings or explanations....” Quinn v. Blue Cross & Blue Shield Assoc., 161 F.3d 472, 477 (7th Cir.1998). 3. Recovery of attorney fees by prevailing plaintiff Section 1132(g)(1) provides simply, “... [i]n any action under this title by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.” This fee-shifting provision is unusual because it does not specify that prevailing plaintiffs may be awarded attorney's fees, but instead states that attorney's fees may be awarded to either party. The Seventh Circuit has interpreted the provision to mean that although winning defendants may, in rare cases, collect fees from losing plaintiffs, the ERISA fee-shifting statute primarily benefits winning plaintiffs. Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 563-64 (7th Cir. 1994). In crafting ERISA's remedial scheme, Congress chose to provide for a private right of action, empowering plan participants and beneficiaries to act as “private attorneys general” to vindicate the Act's regulatory objectives. See Marquardt v. N. Am. Car Corp., 652 F.2d 715, 720 n. 6 (7th Cir.1981). In Hardt v. Reliance Standard Life Insurance Co., the Supreme Court interpreted ERISA's fee shifting provision, holding that a court may award fees to an ERISA litigant if she has achieved “some degree of success on the merits.” 560 U.S. 242, 130 S.Ct. 2149, 2157–58, 176 L.Ed.2d 998 (2010). This ruling supplanted the Seventh Circuit's “prevailing party” standard for awarding fees in ERISA cases. Id., Pitfalls, Pratfalls and Pearls of ERISA-LTD Litigation, Attorneys, 2015
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