Wednesday, March 26, 2014

2014 Conference -- ERISA, Disability and Tort

ERISA -- Everything Rotten Imaginable Since Adam
- Federal Court
- no jury
- no experts
- no testimony
- absence of discretion review assumes deference of employer -- he's had judges tell him "I believe this person is disabled but I have to give deference to the employer, so there's nothing I can do."
- no depositions or written discovery
- must exhaust internal remedies first before filing, and the company can start a statute of limitations on you without your knowledge
 
29 CFR 2560.503-1(G)
 
You only get one appeal -- don't write that "I appeal" letter until you have a lawyer, because that letter starts the clock
 
3 best items of evidence for CFS
CPET -- cardiopulmonary exercise test -- Day 2 will be worse than Day 1, which is unique to CFS/fibro
neuropsych testing -- cognitive problems that are not the result of a mental health issue ["Osler's Web" has a good description of the pattern that Sheila Bastien found -- with depression, results would be lower across the board, but with CFS there's a specific pattern, not every score is lower]
tilt table test
 
doctors do not know what "disabled" means -- bedridden? -- so ask them to say that you cannot work 8 hours a day, 5 days a week, week in/week out, or that you can't be productive at work
 
genetics + trigger (infection, trauma, emotional distress)
 
15-20% of whiplash cases result in fibro
 
Speaker is S. Krafchick, MPH, JD -- he is willing to work on cases in all states
(206) 374-7370           Fax (206) 374-7377
Krafchick Law Firm
100 West Harrison Street, South Tower, Suite 300
Seattle WA 98119
 
Q&A
they will try to argue psych exclusion -- you counter that the physical problems disable you regardless of psych problems
 
If they claim they exclude psych, self-reported conditions, CFS, complain to the Department of Labor and Department of Insurance
 
does your policy say "total disability"?  Partial disability may have an 80% cut-off  (i.e., won't pay if you can work 32 hours a week, or 4 days a week, but will pay if you can work less than that)
 
 

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