Guidance for submitting your own request for review

Guidance for submitting your own request for review of a denied benefits claim governed by the Employee Retirement Income Security Act of 1974 (ERISA)

(Campins Benham-Baker prepared the following guidance for the Legal Aid Society-Employment Law Center Workers’ Rights Clinic.)

If you have to appeal a denial or termination of short-term or long-term disability benefits (also known as submitting a “request for review”), first, try to find an  ERISA lawyer promptly as you have 180 days from receipt of the denial/termination letter to appeal.  If you do not submit a written appeal within the deadline, you may lose your right to further pursue your claim.  If your appeal is denied and the only recourse left is to file a lawsuit, the claim file at the time the claims decisionmaker responds to your appeal is typically all that a court will review when deciding whether or not you are entitled to benefits.  As such, many lawyers may not take your case after a final denial if they did not assist with the request for review. 

If you cannot find a lawyer, do at least the following:

1)      Request your claim file from the plan.  Review the denial letter and the documents in the claim file for reasons your claim was denied so that you can address those issues in your request for review.

2)      Review the plan document. This is the document setting forth the terms and conditions of receiving benefits.  If you do not have it, it should be in your claim file.  If it is not in your claim file, be sure to request it from the Plan Administrator, who is not always the claims decisionmaker.

a.       Look especially at the definition of “disability.”

b.      Many plans will change the definition of “disability” or “disabled” at 24 or 36 months from being unable to do the material duties of your occupation to unable to do the material duties of any occupation that you could reasonably hold.  Tailor your submission to the appropriate definition.

3)      Gather medical records from all relevant doctors and medical facilities.

a.       For denial of benefits: gather medical records from the first point in time when you began to experience the symptoms of your disability.

b.      For termination of benefits:  gather medical records at least as far back as the date you are deemed no longer disabled and further back if that helps put your disability in context.

4)      Get a job description.  One may be in your claim file.

5)      Gather pharmacy records (for the same time periods outlined above).

6)      If you experience side effects from any medications, research those medications and their side effects and provide that information.

7)      If you have a physical injury that shows up on tests, such as MRIs, get up-to-date tests.

8)      Get your primary doctor(s) to write letters explaining your disability and why you cannot work. 

a.       If the doctor is too busy to write a letter, you can provide a list of questions for him/her to answer.  Pertinent information includes some or all of the following:  1) your diagnoses; 2) your treatment plan; 3) your symptoms; 4) your medication side effects; 5) your restrictions and limitations; 6) your subjective complaints and the objective findings which support the complaints; 7) the doctor’s opinion on surveillance, if any.

b.      If the Plan has consulted an outside doctor, it may be helpful to have your doctor respond to that report.

9)      Have your family members, friends, co-workers, or others who may have first-hand information about your disability to prepare written statements.

10)  If you have an approved claim for Social Security Disability Insurance (“SSDI”) benefits, be sure to submit the decision granting your claim.  Also, request your claim file from your local Social Security Administration office as it may contain helpful medical information.

11)  If you have a Workers’ Compensation case and medical evaluations that support your disability claim, obtain a copy of your Workers’ Compensation case file.

12)  Submit all of these documents together, along with a narrative letter explaining why you are disabled (i.e. your medical conditions and how they affect your ability to work). 

13)  Take your time to do it right.  DO NOT miss your deadline, but do not omit critical information in an effort to get this process done quickly.  Remember, if your appeal is denied, you will likely be prohibited from submitting additional information at a later time.

14)  After it is submitted, watch the calendar.  If you do not hear back in 45 days, send them a letter reminding them of their obligations.  If you do not hear back in 90 days, send them another letter and begin trying to find a lawyer again. 

a.       Their obligations are found at:  29 C.F.R. 2560.503-1(h)(4)(i)(1) & (h)(4)(i)(3)(i):

b.      [T]he plan administrator shall notify a claimant in accordance with paragraph (j) of this section of the plan's benefit determination on review within a reasonable period of time, but not later than [45] days after receipt of the claimant's request for review by the plan, unless the plan administrator determines that special circumstances (such as the need to hold a hearing, if the plan's procedures provide for a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial [45]-day period. In no event shall such extension exceed a period of [45] days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review.

If your appeal is denied, try again to find a lawyer.  If the administrator will no longer consider additional information or another request for review, your next recourse is filing a lawsuit in federal district court.  

Treat your employees well

Crosby, Stills, Nash & Young had it partially right – treat your employees well and it will come back to you.[1]  Recent events convince us more than ever that this is true.  Just last week, a local small business owner (Jen Pillat of Zazie) was profiled in the SF Chronicle because she has discovered that generosity results in higher profits.  Although she is in the incredibly difficult restaurant industry, she gives her employees a regular schedule, pays them for times she sends them home when she’s not busy, and offers generous benefits.  In return, her profits have gone up.  How is this possible?  Well, happy employees are better at their job for several reasons: (1) they stay longer, and therefore the need for training is reduced; (2) they get better and better at their jobs; and (3) they want to see their employer succeed.

This week, Governor Brown signed a law ensuring that most employees with 90-days of tenure will get three paid sick days per year.  This is not enough, but it is a wonderful start.[2]  Three days per year—we can afford that as a society and as small business-owners, can’t we?  Sick employees do not perform well.  Instead, they get the rest of the office sick.  Employees with sick children often have no other options.  This seems obvious, but one of the most progressive states for employees in the country took until 2014 to pass this minimal measure.

Studies of places, such as Connecticut and San Francisco, where governments have already implemented mandatory paid sick leave, demonstrate that the costs, if any, to employers are low and there are benefits to both employers and employees.  Let us take the lesson of paid sick leave, and of Zazie restaurant, and experiment with how much goodness we can get away with, rather than the opposite.

[1] We recognize that there are bad employees out there.  But we believe that through progressive discipline and objective processes, underperforming employees can improve, and those who do not can be exited from the employment relationship in such a way as to reduce acrimony and, in turn, potential liability.

[2] Among the items on my wish list for employees are: (1) paid parental leave for all new parents; (2) additional sick leave; (3) better protections for employees with temporary and permanent disabilities; (4) guaranteed retirement benefits; and (5) single-payer health insurance.

How Code Words Hurt Female Coders

            Social media have been abuzz after Silicon Valley companies, including Google, Facebook, and LinkedIn began releasing their workplace diversity figures last week.  The numbers confirm what many already suspected:  Tech companies are mostly male, and white and Asian.  The leaders of these tech companies have mostly blamed the lack of diversity on the small number of qualified underrepresented job applicants.  Facebook can only hire those who apply and those who apply tend to be white and Asian men.  This may very well be true.  Social science research has shown that girls are discouraged from pursuing science and engineering from a young age.  Addressing the gender stereotypes that dissuade girls from pursuing technical subjects is important; however, placing the blame solely on schools too easily lets Silicon Valley off the hook.  Moreover, there is research to suggest that part of the problem stems from the culture within tech companies:  Women who enter the industry do not stay.  According to a study by Harvard Business School, 56 percent of women leave the private science, engineering, and technology field by midcareer.  This number is nearly double that for men.   While our school systems might be responsible for the lack of qualified female job applicants, tech companies only have themselves to blame for not creating a work environment that retains female employees.

            The problem is especially pervasive in tech start-ups, where the “no rules” culture results in an unwritten practice to look or act like the majority in charge.  When there are no rules, we fall back on our unconscious biases and, as a result, those who do not fit in are marginalized or outright excluded.  In 1988, the Supreme Court recognized that gender stereotyping is a type of gender discrimination impermissible under Title VII of the Civil Rights Act.  Despite an outstanding job performance, Ann Hopkins was passed over for partnership because of her poor “interpersonal skills.”  In other words, the partnership committee did not think Ms. Hopkins acted like a lady.  She was “macho,” used profanity, and did not “wear make-up, have her hair styled, [or] wear jewelry.”  

            Lest you think this type of gender stereotyping died out in the 1980s, we see it frequently today.  Our female clients in male-dominated industries are chastised for using harsh language that is frequently thrown around by male colleagues, criticized for being too “aggressive” while voicing an opinion, or hyper-scrutinized when making the tough calls that male colleagues could make without question.  Despite what some courts have speculated, studies show that implicit biases do play a role in hiring, promotions, and how women and minorities are viewed in the workplace.  When performance is evaluated subjectively and when there exist no written criteria for promotion, those who do not fall within the majority are negatively impacted.  When we terminate or prevent from advancing those women who have problems with “leadership,” while advancing men who we feel like have a lot of “promise,” we leave little room for women to thrive in the industry.

            (And the harmful effects of stereotyping are not limited to women.  Where a young, white man can be an “assertive” and “powerful” leader when he gets angry at those he supervises, young black men get called “scary” and “aggressive” for the exact same behavior.)

            Facebook recognizes this in part.  In a blog post last week, Maxine Williams, Global Head of Diversity at Facebook, listed the company’s efforts to make the workplace more diverse.    One of the approaches is to provide unconscious bias training to employees.  Unconscious bias training can teach employees the implicit associations that we, as humans, naturally make between race, gender, ethnicity, and social roles.  Recognizing our own implicit bias is important, but unconscious bias training alone cannot solve the problem.  Joan C. Williams and Rachel Dempsey in What Works for Women at Work argue that business processes need to be redesigned so as to not artificially advantage one group over another. Silicon Valley is no exception.

            In the past week, Google has introduced Made With Code, an organization dedicated to inspiring girls to write software.Facebook has also announced several initiatives to increase the number of women and minorities interested in coding.  But no one wants to enter a field where you cannot get ahead, where moving up to the executive level is unattainable, and where you do not have role models that look and think like you.  In order to truly increase diversity in the workplace, Silicon Valley needs to take a hard look at its own “coding.”

Blog by:  Erin Pressman, Julia Campins, and Hillary Benham-Baker

Hollister stores must be made accessible!

We are excited to report that yesterday, Judge Wiley Daniel of the District of Colorado ruled from the bench, granting Plaintiffs' Motion for Summary Judgment and Entry of Injunction and Entry of Judgment against Hollister stores.  This case involved raised porch entrances to Hollister stores, which involve two steps up onto the porch and two steps down into the stores.  In other words, Hollister took flat mall entrances and made them inaccessible to people who use wheelchairs.  They have side entrances that are, for the purposes of this lawsuit, accessible.  Plaintiffs argued that the side entrances are not the main entrances, which need to be accessible, and that the porch itself is a public space that must, on its own, be accessible.

This case has significant symbolic importance.  Hollister described the porches as an attempt to mimic the "California surf-shack," yet it sent customers who use wheelchairs to side entrances, which are disguised as shudders.  So while most customers can have this "surf-shack" experience, customers who use wheelchairs must feel as if they are entering through a side window.  Additionally, it is a vindication of rights for people with disabilities that you cannot take an accessible space and render it inaccessible.  People with disabilities are entitled to an equal experience.

This is CBB's first litigation victory, and we were mere part of an impressive team.  Our esteemed cocounsel are Colorado Cross-Disability Commission (press release here - http://bit.ly/YqYoRq), Fox & Robertson, and Lewis, Feinberg, Lee, Renaker & Jackson (Julia's former firm, where she was during most of this litigation).  Additionally, the U.S. Department of Justice filed a Statement of Interest in support of Plaintiffs' motion.  This Statement was crucial to the Court's decision.

The order and injunction are forthcoming.