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January 2010 Archives

How are attorney fees and expenses paid in a long-term disability benefit claim?

Long-term disability ("LTD") claimants who are forced to bring suit against their insurer after negotiations fail are understandably concerned about the attorney fees and expenses they would incur. The good news is that a claimant's attorney fees and expenses are paid by the in-surance company if and when the claimant prevails. In determining whether to award attorney fees under the Employee Retirement Income Security Act of 1974 (ERISA), a court considers the following:

ADAA Changes to ADA Benefit Disabled Workers


Last year, the Americans with Disabilities Amendments Act (“ADAA”) redefined the meaning of the term “disabled” under existing law by emphasizing disability is to be interpreted more broadly. The Americans with Disabilities Act (ADA) defines “disability” as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” For employees claiming disability discrimination, the definition and interpretation has traditionally encompassed both major life activities required at work and major life activities outside of work. The ADA definition remains, but the ADAA specifically overturned recent Supreme Court decisions and EEOC guidelines for interpretation of the term “substantially limits”. No longer do employees have to show that they are “unable to perform” or are “severely restricted from performing” major life activities in order to qualify as disabled under the ADA. Rather, the new interpretation kept the language of the Act intact, but legislatively changed the legal standard that had been developed by the EEOC and the courts to a more liberal standard. New EEOC rules and regulations, issued in September 2009 conform to the relatively new law. The interpretation of “major life activities” has also been redefined by the recent Amendments. The ADAA now lists major life activities as “includ[ing], but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” In addition to being a non-exclusive list, the list itself encompasses a broad scope of major life activities. If thinking, concentrating, breathing, and hearing are major life activities for purposes of the ADA, driving, caring for family members, having sexual relations, and using the internet also may be considered major life activities.Also notably included as major life activities under the new amendments are “major bodily functions” such as: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This completely redefines the notion of disability as it had been interpreted by the courts. Although an individual may be able to perform major life activities in the typical sense the phrase, i.e. walking, communicating, performing manual tasks, if his immune system, kidneys, or other body processes are “substantially limited”, he may be considered disabled for the purposes of the ADA. Just as with more traditional major life activities, the new “substantially limited” interpretation is less stringent than the old “severely restricted” standard for major bodily functions.

Nick McLeod practices disability law as an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding disability discrimination or employment law, please contact him at: [email protected]

Alan C. Olson & Associates | 2880 S Moorland Rd | New Berlin, WI 53151
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