Daily Archives: February 10, 2013

FMLA and Adult Children?

On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition.  You can read the DOL’s guidance for adult children here.

The FMLA allows employees to take leave to care for a son or daughter with a serious health condition.  However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old.  At that point, a parent is entitled to take FMLA leave when all four of the following occur:

(1) the adult child has a disability as defined by the ADA;

(2) the child is incapable of self-care due to that disability;

(3) the child has a serious health condition; and

(4) the child is in need of care due to the serious health condition.

Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave.  The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.

This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.

via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.

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ERISA: Is risk of relapse a disability?

This ERISA long-term disability case brings an interesting question.  Is an individual still disabled even though the disabling event has already passed – just because of the possible risk of relapse?  In other words, if person A had a disability event in 2000, is person A still considered disabled just because of what might or might happen in the future?

In Colby v. Union Sec. Ins. Co., 11-2270, the First Circuit Court of Appeals decided just that.  In this case, the issue was whether the future risk of relapse by an anesthesiologist who had been diagnosed with addition rendered the anesthesiologist disabled for purposes of a long-term disability policy.

The First Circuit Court of Appeals decided this case based on the language of the policy.  Under the policy language, covered “sickness” including mental health issues, including substance abuse, dependence, and addiction.  While in treatment, plaintiff’s doctors consistently held that the risk of relapse was “high” and recommended plaintiff not return to work for a period of 6 months.  Shortly thereafter, plaintiff relapsed.  After the relapse and due to the continuing high risk of relapse, plaintiff’s doctors agreed plaintiff should remain disabled for some period of time after plaintiff’s discharge.

This case arose because the the insurance company maintained that the risk of relapse (regardless of the degree) did not constitute as a disability under the plan.

After looking at the policy language, the First Circuit Court of Appeals disagreed.  There was nothing in the policy that stated that risk of relapse should not be covered as a disability.  The court stated,

To begin, the language of the plan admits of no such categorial bar.  It does not mention risk of relapse, let alone exclude risk of relapse as a potential basis for a finding of disability.

In the words of the Boston ERISA Law Blog:

So there you have it: if you don’t want to cover the currently rehabilitated participant whose risk of relapse means he can’t go back to work, you better write that down somewhere in the plan or the policy.

via Is the Risk of Relapse a Disabling Condition for Purposes of an LTD Policy? : Boston ERISA Law Blog.

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ERISA – changing the reason for denial not allowed

I came across this interesting ERISA cases.  In both cases, the court held that the claims administrator could just not change the reason for denying the benefits.

In both of these cases, the courts ultimately held that the record and the basis for denying benefits were effectively frozen and could not be changed at a later time.

In Rossi v. Precision Drilling Oilfield Servs. Corp. Employee Benefits Plan, 11-50861 (5th Cir. 2013), the Fifth Circuit Court of Appeals held that the claims administrator was not allowed to change the basis for a denial of benefits during the internal appeal.

Initially, the claims administrator denied the benefits because Rossi was not receiving sufficient medical care to be incurring medical expenses.  During the administrative appeal, however, the claims administrator changed his rationale.  The claims administrator denied the benefits because the plan had an exclusion for inpatient care.  The 5th Circuit Court of Appeals reversed summary judgment and remanded the case.

In Sun Life Health Ins., SACV 11-01516, the District Court for the Central District of California held that the claims administrator was not allowed to deny benefits based on factual investigation during the litigation.

In this case, Sun Life granted short-term disability benefits, but denied the plaintiff long-term disability (LTD) benefits.  Sun Life denied the LTD benefits because plaintiff had failed to satisfy the 180 elimination period, and because plaintiff was not employed at the time the medical evidence supported the disability.

During the litigation, Sun Life identified other facts to support its allegation that the claims should be denied.  As a side note, none of the facts raised during the litigation (which never came up during the investigation or appeal) were reviewed by any doctors.

  • First, Sun Life stated that the denial was supported by the fact that plaintiff “did not seek or receive any treatment” prior to the mental-breakdown event.  Sun Life explained that the treatment that plaintiff received after the mental-breakdown event was not his choice.
  • Second, Sun Life stated that plaintiff was unlikely to be disabled because prior to the mental-breakdown, he had gone on a gambling spree.
  • Third, Sun Life stated that after the mental-breakdown but before the hospitalization of plaintiff, plaintiff “appeared to have lived with his family…without incident.”

The district court did two things.  First, it stated that those rationales were inapplicable because they were not raised before and never reviewed by medical professionals.  Second, the court went through the factual rationales and explained why they were unsupported based on the facts.

 

via Don’t Look Back, Something Might Be Gaining On You: Whether a Plan Administrator Can Raise New Bases For Denying a Claim Beyond Those Raised in the Initial Denial of Benefits : Boston ERISA Law Blog.

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