News & Resources

Geoffrey Berg, James Plummer, and Amar Raval Selected to Super Lawyers

Berg Plummer Johnson & Raval is proud to announce that firm partners Geoffrey Berg, James Plummer, and Amar Raval have been recently selected to the 2021 Texas Super Lawyers list. This is Mr. Berg’s 15th year on Super Lawyers, Mr. Plummer’s 3rd year, and Mr. Raval’s first year of inclusion on Super Lawyers.

Each year, Super Lawyers recognizes the top lawyers in Texas via a multiphase selection process that involves peer nomination, independent research, and peer evaluation. The Texas lawyers who receive the highest point totals during this selection process are further recognized in Texas Super Lawyers Top Lists. This is an exclusive list, recognizing no more than 5% of attorneys in Texas. Super Lawyers, part of Thomson Reuters, is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement.

Mr. Berg has handled virtually every kind of case. From representing corporations in complex multi-million dollar commercial disputes to employment matters, arguments over oilfield trade secrets, government and corporate investigations, there’s little he hasn’t handled successfully. Mr. Berg has presented CLE programs dealing with legal ethics and spoken at the University of Houston Law Center on trial strategy. He has also been hired by some of the largest and best-known firms in the country to offer expert testimony on attorneys’ fees. 

Mr. Plummer found his niche representing individuals and small businesses in litigating claims against insurance companies. He has prosecuted a number of insurance claims on behalf of individuals and businesses holding the insurer to its duty of good faith and fair dealing, and compelling them to live up to the promises made in the insurance policy. In addition to property and casualty claims, Mr. Plummer has prosecuted a large number of claims for life insurance, accidental death insurance, and disability insurance benefits under individual policies and group insurance policies governed by the Employee Retirement Income Security Act of 1974 (ERISA). The ERISA claims on group insurance policies have also included claims against the employer and insurer for breach of fiduciary duty resulting in a loss to the policyholder or beneficiary.

Mr. Raval focuses on insurance bad faith claims, ERISA claims, business litigation, and personal injury litigation. He has achieved notable results at and on appeal, with several published decisions by the Fifth Circuit Court of Appeals. One of these opinions, Ariana M. v. Humana, overturned 26 years of jurisprudence to concur with every other Circuit that applies a more favorable standard of review in a wide range of insurance benefit claims.

Berg Plummer Johnson & Raval is a full-service business law firm offering sophisticated representation to individuals and commercial entities, providing comprehensive services to ensure that our client’s objectives are met. Between them, the founding partners of Berg Plummer Johnson & Raval, LLP have successfully tried scores of cases to verdict.  Each attorney at our firm has handled matters from the most complex intellectual property disputes and ERISA/bad faith insurance litigation, to the most common contract and employment disputes from beginning to end as counsel for both plaintiffs and defendants, recovering and saving millions of dollars for clients over the years. 

Breast Cancer Survivor Sues Blue Cross Blue Shield for Wrongful Denial of Cancer Treatment

Patent Seeks Reimbursement After Insurer Decided Claim Was “Not Medically Necessary”

We are proud to represent clients against Blue Cross Blue Shield of Texas when it wrongly denies proton beam radiation therapy for cancer. This is because regardless of medical necessity, BCBS has a uniform policy to deny proton therapy treatment and force insureds to seek suboptimal treatment. Our client seeks to hold BCBS responsible for its choice to put its bottom line over her health and safety. 

The Benefits of Proton Therapy

Although standard radiation therapy effectively controls many cancers, it also delivers damaging radiation to healthy tissues and organs. Proton beam therapy uses protons to deliver a curative radiation dose to a tumor, while reducing dose exposure to healthy tissues and organs. It results in fewer complications and side effects than traditional radiation therapy. With proton therapy, protons deposit their energy over a very small area called the “Bragg peak.” The Bragg peak can be used to target high doses of proton beams to a tumor, while doing less damage to normal tissues in front of and behind the tumor. Proton beams enable patients to tolerate higher doses of radiotherapy compared with the photon beams used for traditional radiation therapy. The proton beam can be adjusted and formed to match the size and shape of the cancerous tissue to be destroyed, while not killing healthy tissue beyond a pre-determined scope and depth. The cancer cell then begins to break itself down through a process known as apoptosis, or programmed cell death. Proton therapy has been approved by both the FDA and Medicare as an effective cancer treatment.

MD Anderson Cancer Center in Houston has pioneered the use of proton therapy since 2006. Even though many patients travel from around the world to benefit from proton therapy, many local patients benefit from the treatment as well. Cheryl Indellicati was one of those people. Because of her mother’s health history, Ms. Indellicati had annual checkups at MD Anderson for almost 20 years. The annuals exams were designed for preventative care and early detection of cancer.

In June 2020, Ms. Indellicati underwent a breast biopsy after a routine screening mammogram indicated an area of distortion. A few days later, she was diagnosed with an invasive ductal carcinoma. Based on the specific characteristics of Ms. Indellicati’s size, depth, and location of her tumor, MD Anderson recommended proton beam radiation therapy. Ms. Indellicati did not choose proton therapy out of her own convenience.

BCBS Denies the Claim and Appeal

MD Anderson assisted Ms. Indellicati in applying for coverage of this treatment. BCBS denied the claim, contending that proton therapy was not medically necessary. Going further, it advised that Ms. Indellicati should instead undergo 3D-CRT radiation treatment. In denying Ms. Indellicati’s claim, BCBS relied on something called the MCG Guideline, which is developed by MCG Health, a for-profit publisher. The MCG Guideline is fatally defective and inconsistent with generally accepted standards of medical practice. MCG Health’s guideline development process is not transparent, and its guidelines are inaccessible to the general public. MCG Health and its insurer customers rely on this secretive process, in which financial conflicts of interests shape the criteria enumerated in the MCG Guideline. Because the MCG Guideline is developed as a cost-management tool for the insurance industry, it is not warranted to conform to the terms of any specific insurance policy or to state and/or federal laws.

MD Anderson appealed the denial, explaining how proton beam therapy was medically necessary to treat pT1c invasive carcinoma. It also asked for a medical reviewer who was board certified in radiation oncology and had experience in proton beam therapy to review the claim. Despite MD Anderson’s repeated requests, BCBS never retained a medical record reviewer who had experience in proton beam therapy to review Ms. Indellicati’s claim or appeals.

With few options left, and time working against her, Ms. Indellicati was forced to personally pay for the medically necessary proton therapy. Her proton therapy treatment was completed in 10 treatments, whereas traditional would have taken 4-6 weeks and a total of 20-30 treatments. She remains alive today because she paid for medically necessary treatment that was denied by BCBS. Her story is sadly too common. The Alliance for Proton Therapy’s research shows that insurance companies deny 2 out of every 3 claims for proton therapy treatment.

Ms. Indellicati Files Suit

Ms. Indellicati chose to hold BCBS accountable. That is why, on August 19, 2021, one year from the day her appeal was denied, Ms. Indellicati filed a lawsuit against BCBS for its wrongful denial of coverage for proton beam therapy. She will ask the court to rule that her pron therapy treatment was medically necessary. She seeks to prevent BCBS from continuing to use outdated guidelines as a way to deny medically necessary treatment for cancer patients who need it.

At Berg Plummer Johnson & Raval, we have represented clients whose claims for proton therapy treatment have been denied. Whether you have been denied coverage for proton therapy treatment or another medical procedure, it’s vital that you connect with a qualified attorney as soon as possible so that the claims at-issue can be properly evaluated.  Get in touch with an experienced health insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance with your health insurance claim.

Amar Raval

Berg Plummer Johnson & Raval, LLP

araval@bergplummer.com

Prudential’s Long Term Disability Denial Overturned by Texas Federal Judge

Kristy Midkiff Proves Successful Against Prudential

At Berg Plummer Johnson & Raval, we often deal with long term disability claim denials. We are pleased to report the good news for our client, Kristy Midkiff, where we served as local counsel alongside Terry Coleman.

The case of Midkiff v. Prudential is a study in some of the twists and turns a long term disability claim can take. Ms. Midkiff was a manager of Stock Plan Services at SunPower Corporation. SunPower provided its employees group long-term disability benefits through Prudential Life Insurance Co. Ms. Midkiff became disabled after an automobile accident in June 2015. Already with a history of scoliosis, Ms. Midkiff’s pain was uncontrollable after the accident. She had constant pain in her neck and middle and low back, with numbness, paresthesia, and weakness in her arms and legs. A February 2016 MRI revealed scoliosis, loss of normal cervical lordosis, cervical spondylotic changes with ventral cord contact at C5/C6, degenerative disc disease of the thoracic and lumbar spines, diffuse disc bulges, facet hypertrophy, annular fissures, disc osteophyte complexes and central protrusions with ventral cord contact.

Prudential approved Ms. Midkiff’s disability claim for May-November 2016, then denied further benefits. She appealed the denial, including evidence of her August 2017 Social Security disability award. Prudential denied the appeal anyway. Ms. Midkiff filed suit against Prudential in the Northern District of California on March 19, 2019. Prudential then successfully moved to transfer this case out of California and into the Western District of Texas, where Ms. Midkiff lived.

The parties submitted their trial briefs in the summer of 2020, and a bench trial was held by Zoom on November 6, 2020. On March 19, 2021, the Court issued a detailed opinion in favor of Ms. Midkiff. In doing so, Judge Yeakel concluded that Prudential could not create new reasons why it denied the claim and appeal, even with its lawyers providing new rationales during the trial. It could not “cherry pick” the medical records in a desperate effort to support its decision. (“Prudential may not but, indeed, has selected “slivers of information” that arguably support its previous denial of benefits”). Prudential also improperly relied on its own nurse employee’s medical record review, failed to ask Ms. Midkiff to undergo an Insurance Medical Examination (IME), and failed to properly review the Social Security Disability award.

The Court’s assessment of Prudential’s conduct may have been reflected in its order that Prudential pay all past due benefits and future benefits until Ms. Midkiff turns 67. The Court further ruled:

“Midkiff shall recover long-term-disability benefits owed under the SunPower long-term-disability plan from May 3, 2017, until she is 67 years old; a reinstatement of her premium-waiver benefits owed under the SunPower life-insurance plan from May 2, 2016, until she is 65 years old; prejudgment interest payable at the rate of 5% per annum to be paid from October 25, 2017, until the date of Final Judgment herein; postjudgment interest payable from the day after Final Judgment until paid in full; and costs.”

The issue of attorneys’ fees has not yet been resolved.

What’s the takeaway lesson? Insurance companies who deny disability claims are no longer getting the benefit of doubt, and courts are independently and carefully reviewing the basis of those decisions. This helps further the goal of ERISA, which is to protect the interest of employees.

Contact a Houston Disability Insurance Lawyer Today

If you have had your legitimate disability insurance claim wrongfully denied by an insurer, undervalued, or unreasonably delayed, then it’s important to get in touch with an experienced Texas disability insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance. With the aid of a qualified attorney, you can effectively and timely appeal the denial of benefits. If the internal appeal is unsuccessful, we are prepared to represent you in court.

Cancer Survivor Sues Blue Cross Blue Shield for Wrongful Denial of Cancer Treatment

Roslyn Gonzalez was out of options when she decided on her cancer treatment. Blue Cross Blue Shield of Texas (BCBS) chose to save a few thousand dollars to ensure more profits for its shareholders. In doing so, it denied Ms. Gonzalez a safer course of treatment and ensured that she would never bear children.

Ms. Gonzalez was a lawyer for the U.S. Department of Homeland Security and the Army Corps of Engineers. As a federal employee, she was provided health insurance through the Federal Employees Health Benefits Act (FEHBA). Although the U.S. Office of Personnel Management (OPM) is responsible for administering the federal employee health plans, the OPM contracted with BCBS to issue and administer the health plans, leaving BCBS responsible for deciding what health care services to cover and how much to pay for them. As a federal employee covered by FEHBA, Ms. Gonzalez should have been covered for all medically necessary treatment if she was ill or injured. Like so many other cancer patients who depend on insurance companies like BCBS, that promise of coverage was nothing more than an illusion. 

One year ago today, on August 13, 2019, Ms. Gonzalez was overwhelmed with fear and anxiety as she underwent a biopsy of what was revealed to be a softball-sized tumor in her left lower abdomen, next to critical muscle tissue and the descending colon. She was diagnosed with atypical lipomatous tumor of the left retroperitoneum. She was shaken to her core as she came to grips with her new reality and the uncertain future. Unfortunately for Ms. Gonzalez, the diagnosis was only the first blow. 

Ms. Gonzalez was referred to the world-renowned MD Anderson Cancer Center  in Houston, where her oncology team went to work. They described a type of radiation treatment called Proton Beam Therapy Radiation (PBT) that is safer and more effective than traditional radiation for her tumor, which was located near healthy tissue and vital organs, including her reproductive organs. PBT is an established form of cancer treatment accepted by doctors, government agencies, and government payers, including Medicare and Medicaid. There is overwhelming evidence that PBT is safe, effective, and less damaging to surrounding organs. It is an accepted standard of medical practice for the treatment of cancer. For BCBS, however, only one thing mattered – it was too expensive.

Despite her doctors’ recommendations and multiple levels of overwhelming appeals, Ms. Gonzalez was denied PBT. BCBS claimed that PBT was “experimental and investigational.” MD Anderson experts pushed back, insisting that Ms. Gonzalez had to undergo radiation immediately to stop the tumor’s growth and warning BCBS of the grave and potentially life-threatening danger if Ms. Gonzalez had traditional radiation treatment. BCBS did not care.

Ms. Gonzalez and her husband pooled all of their resources and they tried desperately to raise the rest of the $167,000 needed for the PBT, but it was too late. If she did not start radiation treatment had to begin, the cancer would inflict greater damage. In an effort to save her life, Ms. Gonzalez made the difficult decision to undergo the radiation treatment her doctors had discouraged. Today, she is still alive. She has difficulty walking due to nerve damage in her leg. She can no longer have children.

But BCBS’s behavior is even worse when you learn more. If Ms. Gonzalez had been an employee of the University of Texas System, BCBS would have covered proton beam therapy. At the same time BCBS was denying Ms. Gonzalez’ treatment, it was concluding a successful three-year pilot project that covered all University of Texas employees for whom PBT was recommended. The pilot project demonstrated the safety and efficacy of PBT, as well as actual cost-savings over time due to not having to treat secondary cancers and other side effects of traditional radiation. BCBS never claimed that any University of Texas employees were undergoing “unnecessary”, “experimental”, or “investigational” treatment, but they denied Ms. Gonzalez for those reasons.  

BCBS cannot be allowed to put profit over lives. That is why, on August 13, 2020, one year from the day of her fateful biopsy, Ms. Gonzalez filed a Class Action Lawsuit against BCBS for its bad faith denial of coverage for proton beam therapy. Ms. Gonzalez will take BCBS to task for its unfair and deceptive policies and procedures for determining whether a prescribed PBT is medically necessary. She seeks an injunction that the OPM order BCBS to perform its contract in good faith and change its practice of denying PBT for cancer patients who need it.

The lawsuit was filed in the United States District Court, Northern District of Texas on behalf of Ms. Gonzalez by her attorneys, Amar Raval of Berg, Plummer, Johnson & Raval LLP, and Richard Collins and Damon Eisenbrey of Callahan & Blaine in Santa Ana, California.

How Can an ERISA Plaintiff Recover Attorneys’ Fees in the Fifth Circuit?

On June 29, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits – ruled against our client, Katherine P., concluding that she was not currently entitled to attorneys’ fees. This ruling came one month after the same court ruled in favor of Katherine, reinstating her case and sending us back for a bench trial later this year. How did we get here, and what does it mean for other ERISA plaintiffs in the Fifth Circuit?

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. But after only 12 days, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for the rest of her treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, plus other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014.

The Mihalik Criteria v. The Plan

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on the Plan, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

In this lawsuit, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. In the May 14, 2020 opinion, the Fifth Circuit found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria. The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

The Attorneys’ Fee Issue

Based on the Court’s May ruling, Katherine filed a motion for her attorneys’ fees. Under ERISA, a court may award attorneys’ fees “in its discretion”. 29 U.S.C. §1132(g)(1). The party seeking fees does not have to be a prevailing party, and it is entitled to fees if it can show “some degree of success on the merits”. Because Katherine’s case was revived from the dead and remanded back for a bench trial, she sought her reasonable attorney’ fees for the successful appeal. Humana responded by personally attacking Katherine’s lawyers, arguing that the case was driven by their greed and that their rates were unreasonably high.

On June 29, the Fifth Circuit concluded that its discretion to award attorneys’ fees under these facts was limited. In denying Katherine’s motion, the Court stated that Katherine had not achieved any success on the merits: her victory was “purely procedural” because the Court was simply allowing her to proceed forward with her claim.

Consequences for Future ERISA Attorneys’ Fees Cases

The decision of the Fifth Court in this case shows a lack of willingness to award attorneys’ fees to plaintiffs when they successfully fight off summary judgment in appeal. Although the Court noted some factual arguments that might justify Katherine’s success at trial, it would not award attorneys’ fees for keeping the case alive to actually get to trial.

What does this mean for other ERISA plaintiffs in the Fifth Circuit? Unless you are a prevailing party on the merits of your case, your chances of recovering your attorneys’ fees are not great. After all, the Court already ruled last year that overturning 26 years of caselaw and fundamentally changing the standard of review in the Fifth Circuit was not enough to justify attorneys’ fees. (“Securing a change in the standard of judicial review of Humana’s factual determinations is certainly a procedural success, but it’s not success on the merits of Ariana’s benefits claim.”). Ariana M. v. Humana Health Plan of Tex., Inc., 792 F. App’x 287, 290 (5th Cir. 2019), cert. denied, 591 U.S. ____ (U.S. June 22, 2020) (No. 19-980).

There is a Circuit split on when ERISA plaintiffs can recover attorneys’ fees after winning at the appellate level. The U.S. Supreme Court has decided that issue is not currently ripe, but perhaps it will change its mind in time. Although the Fifth Circuit has shifted to a broader, more participant-friendly standard of review, ERISA plan participants in the Fifth Circuit must remind courts that ERISA’s purpose is to protect the interests of employees.

In the meantime, Katherine’s case proceeds to trial. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay. If Katherine “achieves some success on the merits on remand, she may ask for these fees then.” Katherine P. v. Humana, June 29, 2020.

FIfth Circuit Remands ERISA Eating Disorder Case for Bench Trial

On May 14, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits — ruled in favor of our plan participant client, Katherine P., sending us back for a bench trial later this year. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay.

In coming to this decision, the Court applied the de novo standard of review that was previously modified in Ariana M. v. Humana. When a court applies the de novo standard of review, it does not defer to the decision of the ERISA benefits plan administrator. It considers the issue as though it were doing so with a “blank slate”.

Link to oral argument by Mr. Raval:
http://www.ca5.uscourts.gov/OralArgRecordings/19/19-50276_2-5-2020.MP3

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. After only 12 days, however, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for any further treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, as well as other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014. The case has taken many twists and turns: it has transferred from one district to another, had two separate rounds of summary judgment briefing, been on hold while part of the claim was remanded back to Humana, and then appealed to the United States Court of Appeals for the Fifth Circuit.

Humana Used Mihalik Criteria to Deny Claim

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on Plan language, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

On appeal, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. The Fifth Circuit did not address those issues. However, it found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria.

The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Path Forward

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

Consequences for Future ERISA Denial of Benefits Cases

The decision of the Fifth Court in this case shows a willingness for the Court to conduct an exhaustive and careful de novo review of the facts of these types of claims. It shows an ongoing trend that ERISA plan participants in the Fifth Circuit will have their benefits determination assessed as though it were being presented for the very first time. The court will not defer to the decision of the plan administrator. Instead, the court will consider the evidence with fresh eyes.

In light of this shift from a stricter to a broader, more participant-friendly standard, ERISA plan participants in the Fifth Circuit will be in a more advantageous position when having their denial of benefits claim evaluated in court. This approach better serves the purpose of ERISA, which is to protect the interests of employees. It has already helped Katherine, who will finally have the chance to have her day in court.

Link to Full Opinion:

Katherine P. v. Humana Health Plan of Texas, Inc.

How Long Terms Disability Can Help COVID-19 Survivors in the Recovery Process

As the world continues to deal with the fallout of COVID-19 and how it has impacted the economy, health industry, and daily lives of billions of people, scientists are pointing out new evidence about the potential long term effects of COVID-19. Some COVID-19 survivors will never recover completely from a condition known as post-intensive-care-unit syndrome. Dr. Amy Bellinghausen, a pulmonary and critical care fellow at the University of California, San Diego, notes that it can produce long-term disabilities from muscle wasting, organ damage, brain damage, and PTSD.

One of the most common problems among ICU survivors is weakness and fatigue. “That whole time in the ICU, they’re losing muscle mass. People lose 20,30,40 pounds over a week or two.” Use of a ventilator, while necessary for survival, can also affect recovery. “Unfortunately, oftentimes when they’re coming off the ventilator, it’s not the same person who went on the ventilator,” Bellinghausen says. As a result, daily actiivites that many of us take for granted –  walking a pet, going up a flight of stairs, doing household chores – become exceedingly difficult.

Many COVID-19 patients will also have organ damage, which can be caused by the virus itself, or the extreme measures used to keep them alive. This can lead to scarring in the lungs, impaired kidney function, or damage to other organs as well. The brain is especially vulnerable. That’s partly because the drugs used to sedate patients while on a ventilator can have lasting effects on memory and thinking. Also, COVID-19 patients whose lungs are badly impaired in the ICU tend to have low oxygen levels, which can also cause brain damage.

On the psychological side, patients delirious from fever or sedation can feel trapped in a hospital where they are connected to machines that have taken control of their bodily functions. They must avoid excessive movement, as it can unhook machines and tubes. In extreme cases, patients can be forcibly restrained. All that can contribute to paranoia and symptoms of PTSD.

Patients with life-threatening COVID-19 seem to be especially vulnerable to post-ICU syndrome, says Dr. Negin Hajizadeh, a pulmonary critical care doctor at the Donald and Barbara Zucker School of Medicine at Hofstra-Northwell in New York. One reason is that the severity of infection forces patients to spend weeks on a ventilator, not just days. “The longer you are on the breathing machine, the steeper the road to recovery,” Hajizadeh says.

As a result, many COVID-19 survivors will need months or years of rehabilitation. This is where long term disability insurance can help. Long-term disability benefits are intended to replace earned income for an extended period of time. While short-term disability benefits may expire after six months, long term disability benefits often last until retirement age (i.e., age 65 or older) or until you have sufficiently recovered so that you can return to work. The assumption of long-term disability coverage is that the long-term disability at-issue will not necessarily be fully resolved. If you do recover within a limited timeframe, then short-term disability benefits can assist during that time.

For example, if you contract COVID-19 in Houston or elsewhere, you may qualify for short and/or long-term disability insurance coverage. Insurers may attempt to lower their payouts by arguing that your health condition is such that you are only partially disabled, not fully disabled. If you are capable of working a lower-paying job, then the insurer will assert that you should work in the alternative position and they will pay out lower benefits or no benefits as a result. Some insurers may even argue that you are fully capable of working your job from home and thus are not disabled at all. With the aid of a skilled Houston long term disability lawyer, however, you can demonstrate that you are not able to work in your own occupation and are still qualified to receive full benefits. While the road to recovery may be arduous, it should not be complicated by the wrongful denial of long term disability benefits.

When going out in public in Harris County or elsewhere, the CDC suggests the following precautions, along with any other respiratory illness:

  • Avoid close contact with people who are sick.
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Wash your hands with soap and water for a minimum of 20 seconds. 

If we can ever be of assistance with your disability claim, please contact us. We are all in this together.

*Information from interviews and other source material courtesy of National Public Radio.

https://www.npr.org/sections/health-shots/2020/04/21/840343240/after-the-icu-many-covid-19-survivors-face-a-long-recovery

Business Interruption Claims and the Coronavirus Pandemic

Last week, a New Orleans restaurant filed what is believed to be the first lawsuit in the United States seeking insurance to cover losses from government-mandated closures due to the Coronavirus pandemic. As with many other claims, the primary dispute turns on the coverage provided under the “civil authority” provision. That coverage, in turn, may hinge on still developing science on how long the virus can remain in properties.

Oceana Grill argued in its complaint that the civil authority prong of its “all risk” property policy with Lloyd’s of London should cover its lost revenue after Louisiana issued a statewide order that sharply limited the size of public gatherings and required restaurants to stop on-site dining. This scenario has played out all across the country, especially in the past two weeks, as federal, state, and local orders have issued restricting the size of public gatherings and shuttering countless businesses. Many business are expected to grapple with the issue in the coming days, weeks, and months.

Like many civil authority provisions, the Lloyd’s of London policy requires that a government restriction stem from a “direct physical loss” — or damage — to a nearby property for coverage to apply. The restaurant appears to contend that this requirement was met when Louisiana’s governor and New Orleans’ mayor outlined their concerns that the Coronavirus could contaminate and damage public spaces.

The civil authority provision in many “all risk” policies requires that there be an actual direct physical loss. This loss requirement is unresolved, as the unsettled  science around the Coronavirus evolves on a near daily basis. There is no consensus in the scientific community regarding how long the Coronavirus can survive on surfaces or materials. One study issued  by the New England Journal of Medicine indicated it can survive on cardboard for up to a day and on plastic and stainless steel for up to 72 hours.

As policyholders and insurance companies get more involved in litigation over civil authority coverage disputes, they may well turn on factors currently unknown. Parties are likely to turn to scientific experts to determine if, and how long, the Coronavirus contaminated buildings. This may be influenced by the virus’s lifespan on a surface, as well as the risk of future re-contamination. In other words, re-contamination might constitute a continually renewing physical loss. Others may contend that the loss of functionality of a building is sufficient to constitute physical loss.

In the upcoming days, weeks, and years, businesses and individuals may suffer many billions of dollars in damages – some of which may be recoverable in court. Berg Plummer Johnson & Raval, LLP is available to assist you with business interruption claims with your insurers. To help to determine how to address your business interruption insurance claim and whether your coronavirus claim is actionable, call us at (713) 526-0200 or contact us online.

Force Majeure Contract Clauses and the Coronavirus Pandemic

With the rapid decline in the world economy as a result of the coronavirus/COVID-19, businesses of all kinds are experiencing interruption unprecedented since the Great Depression. Contracts of sale, transport, employment – all kinds of transactions are affected. Some contract terminations will be excused, others unlawful.

Many “cancelled,” or breached contracts may be excused because of what’s known in law as force majeure, a force which prevents compliance. In some cases, parties may use the outbreak as a pretext to breach contracts with which they may otherwise be obligated to comply. In other cases, the outbreak may serve as justification for the cancellation of a contract.

In the upcoming days, weeks, and years, businesses and individuals may suffer many billions of dollars in damages – some of which may be recoverable in court. Likewise, business and individuals may be party to a contract which they believe they are prevented from performing. Berg Plummer Johnson & Raval, LLP is available to assist you in bringing, defending, or advising you concerning any contract claim or concern you have. To help to determine how to address your contracts and whether your coronavirus claim is actionable, call us today at (713) 526-0200 or contact us online.

How to Apply for Disability Benefits During the Coronavirus Pandemic

Although many Americans have been and will be affected by COVID-19, there is an available resource: long-term disability insurance. Long-term disability benefits are intended to replace your earned income for an extended period of time. While short-term disability benefits may expire after six months, long term disability benefits often last until retirement age (i.e., age 65 or older) or until you have sufficiently recovered so that you can return to work. The assumption of long-term disability coverage is that the long-term disability at-issue will not necessarily be fully resolved. If you do recover within a limited timeframe, then short-term disability benefitscan assist during that time.

For example, if you contract COVID-19 in Houston or elsewhere, you may qualify for short and/or long-term disability insurance coverage. Insurers may attempt to lower their payouts by arguing that your health condition is such that you are only partially disabled, not fully disabled. If you are capable of working a lower-paying job, then the insurer will assert that you should work in the alternative position and they will pay out lower benefits or no benefits as a result. Some insurers may even argue that you are fully capable of working your job from home and thus are not disabled at all. With the aid of a skilled Houston long term disability lawyer, however, you can demonstrate that you are not able to work in your own occupation and are still qualified to receive full benefits.

CORONAVIRUS BACKGROUND: 

According to the Center for Disease Control, Coronavirus (COVID-19) is a family of viruses that is spreadable from person to person. Coronavirus is believed to have been first detected in a seafood market in Wuhan, China in December 2019. If someone is sick with Coronavirus, the symptoms they may show include mild to severe respiratory illness, cough, and difficulty breathing.


Although there is not yet a vaccine, the CDC suggests the following precautions, along with any other respiratory illness:

  • Avoid close contact with people who are sick.
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Wash your hands with soap and water for a minimum of 20 seconds. 

We encourage you to follow all government recommendations to practice social distancing, limit contact with others, and ensure that the elderly and immune compromised in our society are not exposed to Coronavirus. If we can ever be of assistance with your disability claim, please contact us. We are all in this together.

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