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Law360 Covers Kersting’s Fifth Circuit Victory for Client Insurer

April 15, 2019

Edna S. Kersting (Partner-Chicago) convinced a three-judge panel of the Fifth Circuit to refuse to revive a former New Orleans health care attorney’s suit alleging she was wrongly denied long-term disability benefits after migraines forced her to stop working, arguing that our insurer-client’s denial was backed by “substantial evidence.” The plaintiff argued that the insurer erred by relying on doctors’ reports that didn’t consider the specifics of her job as an attorney and that she suffered from migraines. Several of its sister courts − including the First, Third and Sixth circuits − have found such reports to be inadequate under those circumstances, and the Fifth Circuit also had leaned that way in an unpublished opinion. Ultimately, the panel said that it would assume the previous decisions by its fellow appeals courts were correct, without deciding the issue. The plaintiff’s suit failed regardless, the panel said, since there was “substantial evidence” that at least one of the doctors our client had relied on had considered the specifics of her job. The panel agreed with Edna that our client had not erred by basing its determination on a lack of “objective or clinical evidence” that the plaintiff suffered from migraines. 

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