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Disability insurers are incentivized to deny claims in order to protect their profits. One of the ways insurers justify their claim denials is to hire medical and vocational professionals to review claims and issue opinions on whether an employee is disabled pursuant to the terms of the disability policy.

Social Security disability and disability under a long- or short-term disability policy are not the same. To receive Social Security disability benefits, an individual must have worked jobs covered by Social Security and have a medical condition that meets Social Security’s strict definition of disability.

In a prior post we looked at how courts acknowledge that disability insurers often have a structural conflict of interest. By that, insurers tasked with paying disability benefits under ERISA are the same entities that frequently decide whether and how much in benefits should be paid.

When an employee applies for disability benefits, the disability insurer often is tasked with deciding whether the employee is entitled to benefits under the relevant disability policy.  Many long-term disability plans provide the insurer with discretionary authority to determine whether an employee is eligible for benefits or authority to construe the terms of the plan.

“Cherry-picking” has been defined as “the act of choosing the best or most profitable items for oneself out of a range of items, as in asset stripping a company.” See Oxford Reference Dictionary www.oxfordreference.com.

Recently, the United States Court of Appeals for the Sixth Circuit issued a decision finding for a disabled personal injury lawyer suffering from depression and anxiety. See Messing v. Provident Life and Accident Ins. Co., 48 F.4th 670 (6th Cir. 2022).