If a person becomes disabled and unable to continue working, the person is usually eligible to file for Social Security disability benefits. Most attorneys know about Social Security disability, and can either help their client with a claim or can refer the claim to a firm that handles Social Security disability.

But, attorneys should also know that when an employee becomes disabled, the employee may have other benefits at work that he or she can claim. Private employers often offer employee benefits to their employees, such as long-term disability benefits, health insurance, dental insurance, life insurance, accidental death and disability insurance, and others. About 28% of employees are covered by long-term disability insurance at work. Long-term disability (LTD) benefits can provide the disabled person an additional income above Social Security benefits.

There is no law that such benefits have to be offered, but if an employer offers them, the employee has a right to pursue such benefits, and if they are denied, the employee has a claim under the Employee Retirement Income Security Act of 1974 (ERISA). ERISA refers to these types of benefits as “welfare benefits” (employers may also offer pension plans to employees, which are treated differently under ERISA as “pension benefits claims).

When a potential client comes in with a disability matter, the attorney should ask if the person has long-term disability insurance at work and should encourage the person to file a claim for LTD benefits.

As the guy on late-night television says: “but wait, there’s more!” If a person is disabled, there may be other benefits the person is eligible for at work. Not all employers do this, but in some cases employers allow a person receiving LTD benefits to also continue to receive other employee benefits. For example, some employers set up their benefits so that if a person is receiving LTD benefits, the person automatically can continue to be covered under the company health insurance plan.

On the other hand, employers may offer other benefits that provide continued coverage to people who are disabled, but the person has to apply for that coverage separately. One common example of this is a life insurance “life-waiver of premium” or (“LWOP”) claim. If an employer offers life insurance with an LWOP provision, then an employee who becomes disabled can file an application with the life insurance company, and, if the employee proves he or she is disabled, then the employee can keep the life insurance coverage in place without paying premiums while the employee is disabled.

So, how do you determine what benefits your client is entitled to? The simple starting place is to ask the plan administrator, who is usually the employer, in writing. Under most ERISA plans, the employer is designated as the Plan Administrator, but some other person may be named [Under ERISA, the plan “administrator” is the person who is named in writing in the plan as the administrator; if no administrator is named, the administrator is deemed to be the plan sponsor (i.e. the employer, or, in the case of a union plan, the union). ERISA § 3(16)(A)(i) and (ii).]. So, the first question an attorney should ask is, “Dear employer, please provide me with copies of all plan documents or other documents describing what benefits an employee may be entitled to if he or she becomes disabled. If you are not the plan administrator for any such plans, please tell me who the plan administrator is and provide me their address so I can request the documents from them.” The second question to ask is, “because my client is disabled, please tell me what actions my client needs to take to file a claim for any benefits he or she may be entitled to under any of those plans on account of his or her disability.”

The employer should answer your questions; in fact, if they are the ERISA plan administrator, they have an affirmative fiduciary duty to communicate with a plan participant, and to fully inform a plan participant of the material facts necessary to assist with a claim. Plan Administrators are fiduciaries under ERISA, and courts have held that an ERISA fiduciary is specifically charged with the obligations of a trustee, who “is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection.” Krohn v. Huron Memorial Hospital, 173 F.3d 542, 548 (6th Cir. 1999) (citing Restatement (Second) of Trusts).

A fiduciary must give complete and accurate information in response to participant’s questions. Drennan v. General Motors, 977 F.2d 246, 251 (6th Cir. 1992). “Misleading communications to plan participants regarding plan administration (for example, eligibility under a plan, the extent of benefits under a plan) will support a claim for breach of fiduciary duty.” Id., citing Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154, 1163 (6th Cir. 1988). A fiduciary breaches its duties by materially misleading plan participants, regardless of whether the fiduciary’s statements or omissions were made negligently or intentionally. Berlin, 858 F.2d at 1163-64. The Sixth Circuit has explained:

The duty to inform is a constant thread in the relationship between beneficiary and trustee; it entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.

Krohn v. Huron Memorial Hospital, 173 F.3d 542, 548 (6th Cir. 1999), citing Bixler v. Central Pa. Teamsters Health and Welfare Fund, 12 F.3d 1292, 1300 (3rd Cir. 1993).

In addition to having an affirmative fiduciary duty to explain to your client about any benefits your client may be entitled to, a Plan Administrator who fails to provide requested documents within 30 days of a written request may be liable to your client for a penalty of up to $110 per day. See, ERISA § 502(c), 29 U.S.C. § 1132(c), which provides:

(1) Any administrator [who fails to provide certain information] (ERISA § 502(c)(1) also provides for similar penalties for an administrators failure to provide COBRA notices and required notices related to transfers of excess pension plan assets to a health benefits account). . . (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day (as required by the Debt Collection Improvement Act of 1996, the $100 limit has been increased to $110 for violations after July 29, 1997. 62 Fed. Reg. 40696) from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.

If you request plan documents from a plan administrator, and the administrator fails to provide the documents in 30 days, be aware that the statute of limitations for bringing a claim for penalties under ERISA § 502(c) may be very short. ERISA does not have a statute of limitations built into the statute, so it suggests that courts adopt the analogous state statue of limitations. Because a participant or beneficiary seeking a penalty for failure to provide plan documents, defense attorneys can argue that the analogous statute of limitations is one for punitive damages, which are often very short statutes. In Tennessee, that is probably one year.

What documents should you be able to obtain? Basically, it is generally accepted that the Plan Administrator must provide the controlling plan documents. ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4) states, “The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary [] plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.”

In addition to the specific documents described in the ERISA statute itself, at ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), such as the summary plan descriptions and other documents under which the plan is operated, the ERISA statute, at § 109(c), 29 U.S.C. § 1029(c) provides that the Secretary of Labor may also prescribe what other documents should be furnished. The Secretary of Labor’s ERISA claim procedures regulations, set out in 29 C.F.R. § 2560.503-1 (h)(2)(iii) describe what documents an administrator must provide. The regulations state that, in order to provide a full and fair review, the Plan must:

Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this section.

The Secretary explains at Paragraph (m)(8) what documents are relevant to the claim, and are thus required to be produced under ERISA:

A document, record, or other information shall be considered "relevant" to a claimant's claim if such document, record, or other information.

(i) Was relied upon in making the benefit determination;

(ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;

(iii) Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination; or

(iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant's diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.

Beware that in many cases, the employer, who is nominally the “Plan Administrator” may not have all the “relevant documents.” Many times, the benefit provided is actually provided by an insurance company, and that insurance company acts as a “claims fiduciary.”

Therefore, under the ERISA regulations, the insurance company has an obligation to provide all the “relevant documents” in its possession. Also, as an ERISA fiduciary, the insurance company has a fiduciary duty to fully answer any questions and to affirmatively give information that your client needs to pursue a claim.

However, In most circuits, including the Sixth Circuit, only the designated Plan Administrator is liable for a penalty under ERISA § 502(c). ERISA § 502(c)(1) provides that “any administrator” who “fails or refuses to comply with a request for any information which such administrator is required by this title to furnish to a participant or beneficiary” shall be, in the court’s discretion, liable to the participant or beneficiary in the amount up to $110 a day from the date of such failure or refusal.

Unfortunately, most circuits have read into ERISA an additional implied term that the language “any administrator” actually means only the Plan Administrator. For example,

It is well-settled in the Sixth Circuit that only plan administrators can be held liable for statutory penalties under 29 U.S.C. § 1132(c). Caffey v. UNUM Life Ins. Co., 302 F.3d 576, 584 (6th Cir.1989); Hiney Printing Co. v. Brantner, 243 F.3d 956, 960 (6th Cir.2001); VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir.1992). Furthermore, the Sixth Circuit has expressly held that "an insurance company, which is not a plan administrator cannot be held liable for statutory damages [under § 1132(c) ] for failure to comply with an information request." Caffey, 302 F.3d at 58 (citing VanderKlok, 956 F.2d at 618).

Addison v. Hartford Life and Accident Insurance, 32 Emp. Ben. Cas. 1640, 2003 WL 23413737 (E.D.Tenn. 2003) (unpublished).

In sum, attorneys should get in the habit of writing to the employer (attention “Plan Administrator”) and to the insurance company, asking for any plan documents, including any insurance policies, summary plan descriptions or other documents describing what benefits an employee might be entitled to, and what the employee needs to do to apply for those benefits. If necessary, the attorney should follow up, in writing, to ensure the information is provided.

Eric Buchanan represents disabled people and other policyholders across the United States in both ERISA and non-ERISA disputes, focusing primarily in the areas of disability, life and health insurance. He also represents disabled people before the Social Security Administration, having represented approximately 1200 people in Social Security hearings. In 2007 Eric Buchanan was certified as a specialist in Social Security Disability Law by the Tennessee Commission on Continuing Legal Education and Specialization. In 2008 he was selected by the National Board of Legal Specialty Certification to be an examiner for the National Board of Social Security Disability Certification exam.

Eric has represented approximately 1200 people in disability hearings before the Social Security Administration. He has also has represented hundreds of people in federal court law suits involving Social Security and ERISA disputes.

Eric Buchanan regularly chairs conferences and speaks to both national and local audiences on disability insurance, ERISA, insurance law, and Social Security disability. He has been the program chair and speaker for the 2008 AAJ Social Security Section National CLE in Las Vegas, has twice been program chair and speaker at the AAJ (formerly ATLA) Annual Convention’s Disability Law program, has twice been program chair and a speaker for the Tennessee Bar Association’s Disability law conference, has been program chair and speaker for several Tennessee Association for Justice CLE’s on Social Security disability and on ERISA litigation. Eric has also spoken eight times at the National Disability Law Conference held by NOSSCR. He has also spoken four times at the national AAJ conference. He has spoken twice at the American Conference Institute Disability Law Conference in Boston. He has also spoken numerous times at local and regional CLE’s on Social Security, disability, insurance, and subrogation.

Eric is the immediate past-chair (2007-2008 chair) of the AAJ Social Security Disability Section, past chair (2006-2007 chair) of the AAJ Health Care Finance and Disability Litigation Group, is a past President of the Chattanooga Trial Lawyers, and is past-chair (2005-2006 chair) of the Tennessee Bar Association Disability Law Section. He is a life-time member of the Tennessee Association for Justice (formerly TTLA), where he currently serves as a member of the executive committee member of the Board of Governors.

Eric graduated from the Washington and Lee University School of Law Magna Cum Laude in the top 10% of his class. While in Law school he was also inducted into the Order of the Coif and the Omicron Delta Kappa honorary leadership fraternity. Eric is also a graduate of the Virginia Military Institute, and served as an officer in the U.S. Navy from 1989 to 1994 where he served as a naval aviator (pilot), plane commander, and mission commander of P-3C Orion aircraft.

Sweeping Changes

Restoring “Original Intent”

Key ADA defenses eliminated by Congress
by John Page Garrett, Nashville, TN

Congress has resurrected the Americans with Disabilities Act.

As of January 1, 2009, Congress widely expanded the scope of individuals covered by the Americans with Disabilities Act. This breathtaking action by Congress reverses a decade of Supreme Court precedent.

Congress made these changes to “restore the intent and protections of the original Americans with Disabilities Act of 1990.” In floor debate and in the new amendments as well, Congress criticized the Supreme Court’s aggressive whittling down of the Americans with Disabilities Act of 1990.

The 2008 Americans with Disabilities Act Amendments Act makes the following changes. You should know them:

1. Major life activity: defined. Congress provides an “everything but the kitchen sink” list of what counts as a major life activity. The Act adds to the ADA examples of major life activities, including: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activity also includes the operation of major bodily functions, such as functions of the immune, respiratory, and neurological systems, normal cell growth, digestive, bowel, bladder, urological, brain, respiratory, circulatory, endocrine, and reproductive functions.

2. Mitigating measures defense: gone. The Act orders employers to ignore helpful effects from a claimant’s taking medicine or using assistive technology. Employers can no longer consider those “mitigating measures” in deciding whether an individual is “disabled enough” for Americans with Disabilities Act protection. This change overrules Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and companion cases.

3. Episodic conditions defense: gone. An employee’s conditions cannot be ruled out as a “disability” because they are episodic instead of chronic in duration.

4. Prudential standing doctrine: gone. Courts may no longer close the courthouse doors to Americans with Disabilities Act claims on the narrowest of reasons. From this point forward, courts must afford a hearing and chance to proceed on a priority matching that of housing discrimination claims.

5. Toyota Motor Mfg., Kentucky, Inc. v. Williams standard for disability: gone. This change is pivotal. Toyota required dismissal of an Americans with Disabilities Act claim unless Plaintiff proved an impairment that "prevents or severely restricts [her] from doing activities that are of central importance to most people's daily lives." 534 U.S. 184, 184 (2002). This forbidding standard operated to decimate old Americans with Disabilities Act claims. Under the new ADA amendments, employers must define “disability” broadly. Courts have greatly reduced the hurdles plaintiffs must clear.

These changes put much of existing Americans with Disabilities Act case law on its head. Pre-2009 case law defining who the Americans with Disabilities Act covers cannot be trusted.

In Toyota, the Supreme Court held that, to enjoy Americans with Disabilities Act protection, a person must have an impairment that "prevents or severely restricts [her] from doing activities that are of central importance to most people's daily lives." Id. In Sutton, the Supreme Court found commercial airline pilots using contact lenses to correct myopia were not “disabled” under ADA. 527 U.S. at 470-71.

Plaintiffs endured the most severe fallout from Sutton and Toyota in employment litigation. Those results disheartened and angered disability rights advocates. Vocal critics of Sutton and Toyota pointed to a "Catch-22” created by Sutton and Toyota. Claimants under old ADA faced a paradox: to prove they were both “disabled enough” for protection, but also "not too disabled” to do the job.

Despite passage of the original Americans with Disabilities Act in 1990, under- and un-employment of individuals with disabilities has grown as high as 70% during the past few years.

Since 2000, restoring the Americans with Disabilities Act had seemed unlikely. However, the 2008 presidential campaign and the Wall Street meltdown diverted attention from President Bush's signing the bill into law in September 2008. Congress had previously made no changes to the statute since 1990.

Any good lawyer already knows that being sensitive to the client’s needs is paramount to an effective attorney/client relationship. However, sometimes professionals with the best of intentions can inadvertently offend the very people they are trying to help. Although this article will focus on some general guidelines for attorneys to consider when serving clients with disabilities, remember that there are various opinions on some of these issues. In addition, please keep in mind that law offices are covered by the Americans with Disabilities Act (ADA). That means there are legal requirements related to serving your clients with disabilities including requirements regarding physical accessibility, effective communication, and requests for reasonable accommodation. Although there is some overlap between legal requirements and disability sensitivity issues, a detailed discussion of legal requirements is beyond the scope of this article.

First and foremost, remember that people with disabilities are PEOPLE! Like anyone else, people with disabilities have individual needs and do not fit neatly into categories based upon a label. Ask, rather than assume, what the person needs. Many people with disabilities will tell you if they need specific accommodations or assistance. Also, you do not need to refer to the client’s disability unless there is a reason to do so. Avoid language that defines rather than describes a person with a disability. This is called “people first” language and means just that-put the person first and the description second. For example, you can say “Person with a disability” but not “Disabled person.” Avoid language that many people with disabilities find offensive. For example, do not use the following terms: “handicapped,” “disabled,” “wheelchair bound,” “victim of/suffers from.” Also, people are being encouraged to use the term “intellectual disability” (or similar term) instead of “mental retardation.” Although the statutes may still use offensive terms, use appropriate language if at all possible.

Second, observe some basic etiquette that makes sense whether or not someone has a disability. Only raise the volume of your voice if a person is hard of hearing and asks you to do so. Remember that shouting is not helpful if someone is deaf because they will not hear you and shouting at someone who is blind will not help that person see you any better. Also, you may tap them on the shoulder or wave your hand to get the attention of someone who is hard of hearing or deaf. Facing a light source, keeping hands and food away from your mouth when speaking, and looking directly at the person all can help in communicating with someone who is deaf or hard of hearing. When speaking to a client with vision loss or blindness, verbally identify yourself and any companions. Also, do not push them or grab them or their cane. Instead, you may offer to let them take your arm. To be a “sighted guide” it is best to have someone show you how to do this. Primarily, though, it is important to let them hold your arm and walk in front of them.

Like in all conversations, maintaining appropriate eye contact is polite. This is true for people with disabilities, including people who are blind. Sit down to maintain eye contact when speaking to someone in a wheelchair for more than a few minutes. Not only is it polite, it may prevent the person from getting a sore neck from looking up to engage in the conversation. Even if you are speaking through an interpreter to a client, maintain eye contact with the client, not the interpreter or a companion. However, there may be exceptions to the need for eye contact. For example, some people with Autism prefer not to maintain eye contact.

Third, be open to alternative ways the client may send or receive communication (the ADA does require law offices to provide auxiliary aids and services that are necessary in order to provide effective communication to people with disabilities. For example, if a client who is deaf requests a sign language interpreter, law offices are generally required to provide one at no cost to the client). This may involve gestures, interpreters, written communication, text or video relay, large print, Braille, pictures, screen readers for computers, or other means. The more complex the material, the more important it is that you provide a copy instead of just reading it aloud. For people with intellectual disabilities or traumatic brain injury, you may need to break complex communication down into small parts or repeat the information. Additional time to finish forms or breaks during meetings may be necessary for some clients. Most important, remember that a disability that affects communication does not reflect that person’s intelligence level.

Fourth, allow service animals to do their work (the ADA does require law offices to permit individuals with disabilities who use service animals to bring those animals into the office with them). Distracting a service animal could prevent it from doing its work and could harm its owner. Service animals are allowed to accompany people with disabilities into private businesses and government entities. The animal does not have to be a dog and may be used for many different types of tasks for the benefit of a person with a disability.

You can get more information on how to be sensitive to the needs of clients with disabilities by contacting DLAC at 1-800-343-1660 and/or by accessing materials from the Department of Justice’s ADA Business Connection.

Special Thanks to Martha M. Lafferty, Managing Attorney at DLAC; Tricia Griggs, DLAC advocate; and Kate Georgen, Public Policy Analyst at DLAC.

Sherry Wilds is a staff attorney with the Disability Law & Advocacy Center of Tennessee. She primarily handles special education, community integration, and disability discrimination cases with an emphasis on systemic issues in Tennessee. In addition to her law degree from Nashville School of Law, she has a B.S. degree in special education and an M.Ed. degree in curriculum and instruction from Carson-Newman College. Before becoming an attorney, she taught in public schools, worked as Director of Education in a day treatment program, and served as an education diagnostician at The Psychiatric Hospital at Vanderbilt.

As an attorney, she received Tennessee Alliance of Legal Services’ B. Riney Green Award for her efforts in promoting inter-program cooperation to strengthen access to justice across the state. Ms. Wilds has conducted trainings throughout Tennessee on laws related to disabilities and special education for administrative law judges, attorneys who handle juvenile cases and serve as Guardian ad Litem, Department of Children’s Services attorneys, psychologists, doctors, and families of children with disabilities. In addition, Ms. Wilds serves on the Tennessee Bar Association Executive Council for Juvenile Law, the Tennessee Alliance of Legal Services Special Education Task Force as the chair, the Disability Coalition on Education, and the Disability Section of the Tennessee Bar Association as the chair.

In Richlin Security Service Co. v. Chertoff, the Supreme Court in June, 2008, resolved a split among the federal circuit courts of appeal and confirmed the Equal Access to Justice Act allows a prevailing party to recover fees for paralegals at the market rate charged clients and not merely the actual, hard, out-of-pocket cost a prevailing party has paid those paralegals.

In the case, Richlin Security Service Co. v. Chertoff, No. 06-1717, Richlin sued the federal government for allegedly underpaying security guards. Richlin secured "prevailing party" status. Under the Equal Access to Justice Act, Richlin was entitled to recover "fees and other expenses." As with so many other fee shifting statutes, ambiguous language so poorly chosen by the Congress had yielded discord among federal circuit courts of appeal. The circuit split centered on whether a “prevailing party” under the EAJA could rely on “fees and other expenses” to support a claim for market rate hourly paralegal fees.

When Richlin sought those fees, the agency refused to reimburse Richlin for the market rate hourly paralegal fees of up to $100 per hour. The United States District Court ruled in favor of the government.

The circuit court of appeals affirmed the decision. The court reasoned that paralegal work should be categorized as an "expense" compensable at actual, out-of-pocket cost rather than a fee, akin to an attorney fee, historically compensable under fee shifting case law at market rates.

Richlin relied heavily on the Court’s decision in Missouri v. Jenkins (1989). In Missouri, the Supreme Court held 20 years ago that paralegal services are an element of attorney's fees and therefore should be compensated at a firm's billable rate, rather than at the cost to the firm. However, Chertoff argued Missouri arose under an unrelated federal statute and thus did not control the 2008 appeal.

Richlin hit the mark in a unanimous decision allowing the more generous “market rate" award for paralegal fees.

In Missouri, the Court had concluded that permitting market reimbursement for paralegals would encourage attorneys to delegate appropriate work to paraprofessionals in order to provide more cost-efficient legal services.

On June 2, a unanimous Supreme Court reversed the Federal Circuit's decision, holding that Richlin may recover the fees of paralegals at market rate.

"We find the Government's fractured interpretation of the statute unpersuasive," Justice Samuel A. Alito Jr. wrote for the court.

The decision stems the tidal wave of pro-business decisions the Supreme Court has dealt the nation’s civil rights bar starting in the early 1990s.

For at least the last 30 years, federal courts have regularly denied altogether claims for attorney fees involving work not requiring “the skill of an attorney.” The quintessential example of such a denied claim has been a “prevailing party" claiming $150 per hour or more for attorney time entries such as “organizing file" or "assembling exhibits."

However, considering the rapidly increasing skills which paralegals nationwide have long been learning under pressure from hourly clients to keep costs down, the distinction between what requires the “skill" of an attorney has in many instances disappeared. Paralegals now in many instances regularly execute functions which had been reserved solely for attorneys.