Inside Disability Law: Insights and Lessons with Attorney Kate MacKinnon

Welcome to Season 5, Episode 39 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Inside Disability Law: Insights and Lessons with Attorney Kate MacKinnon."

Most disability applicants think the claims process should be simple: you’re sick, you can’t work, and benefits should follow. But ERISA disability claims are full of misconceptions, hidden pitfalls, and insurance company tactics that can turn a legitimate claim into a long fight. In this episode of Winning Isn’t Easy, we’re joined by attorney Kate MacKinnon, a recently retired ERISA and individual disability lawyer who spent her career guiding policyholders through denials, appeals, and settlements. Drawing on decades of experience, Kate breaks down the realities every applicant needs to understand. We explore what led Kate to disability law and use her journey to reveal the misunderstandings that often hurt applicants - like the biggest myths about filing a claim, the confusion around appeals, and why many people unintentionally weaken their case by going at it alone. You’ll also learn practical strategies: how cases are valued, why and how they settle, what to look for in a disability attorney, and the most common mistakes people make managing claims or appeals themselves. Kate shares guidance on working effectively with attorneys to strengthen a case from the start. As she reflects on her career, she offers clear wisdom for applicants facing uncertainty. You’ll walk away with an honest roadmap to the claims and appeals process - and the insight to avoid costly missteps. Winning isn’t easy, but understanding what’s ahead can make all the difference.

In this episode, we'll cover the following topics:

One - Kate’s Path to Disability Law and Common Disability Misconceptions

Two - Disability Strategies and the Value of Working With Attorneys

Three - Other Wisdom and Kate’s Reflections on Her Career

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


Need Help Today?:

Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Kate MacKinnon [00:00:00]:
 Foreign.
 
 Nancy Cavey [00:00:10]:
 Nancy Cavey, National ERISA and individual disability attorney. Welcome to this week's episode of Winning Isn't Easy. Now, before I get started, I've got to give you a disclaimer. The Florida Bar association says I have to tell you that this is not legal advice. And, and I'm sure that Kate would agree with me that under the terms of the Minnesota Bar rules, we both have to say that this podcast is not legal advice. But nothing will prevent us from giving you a easy to understand overview of these disability claims system, the games that are played, and what it is you need to go to get the disability benefits you deserve. So off we go today. My special guest today is attorney Kate McKinnon, who is a recently retired ERISA individual disability attorney who practiced in Minnesota.
 
 Nancy Cavey [00:01:01]:
 Now, here in the south, we have women who are very strong and who handle things with grace in the face of adversity, and they're called Steel Magnolias. I went to college and law school in Minnesota. Minnesota. I went to Hamlin and Kate went to Carleton. So, you know, kind of little rivals, if you will. But when I arrived in Minnesota, I learned something called Minnesota Nice. Minnesotans are incredibly friendly, a bit reserved, but underneath that there's a lot of gumption. So I don't know if Kate knew this, but my nickname for her was Minnesota Steel.
 
 Nancy Cavey [00:01:42]:
 I want to introduce you to Miss Minnesota Steel, Kate. Kate, before we get started, is there anything you'd like our audience to know about you?
 
 Kate MacKinnon [00:01:50]:
 I'm not a Steelers fan and I, I am a loyal Vikings fan and I'm very recently retired, so some of what I have to say might have to say maybe just slightly out of date. I, I retired at the end of the year, but other than that, I'm ready to go.
 
 Nancy Cavey [00:02:13]:
 Cool. Well, we're going to talk about Kate's path to disability law and common disability misconceptions. Going to talk about generally disability strategies and the value of working with an attorney. And we're going to get wisdoms and reflections from Kate about her career. And in that process, I'm going to be peppering her with a lot of questions. But before we get started, let's take a break.
 
 Speaker C [00:02:38]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of Robbed of your peace of Mind, which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:03:03]:
 So welcome back to Winning Isn't Easy. Let's talk about Kate's path to the wonderful world of erisa disability and individual disability law, and some of the common disability misconceptions that we've both encountered with our clients. So first, tell me what led you to become a disability insurance lawyer?
 
 Kate MacKinnon [00:03:22]:
 Complete karma and luck, I would say. I started off as a litigator. I always wanted to be a litigator. I went to law school in Chicago at Northwestern University. The law school is in Chicago, the main campuses in Evanston. And I had a very excellent experience there. But I clearly was destined to be a litigator. And so I came back.
 
 Kate MacKinnon [00:03:43]:
 I'd been in college in Minnesota at Carleton, so I wanted to come back to Minnesota, and I did so. And. But when I graduated in 1985, the. The market was pretty tight for doing plaintiffs work or any kind of public interest work, actually. And so I started off at an insurance defense firm. Now, not disability insurance. I did property casualty and workers compensation and professional liability insurance defense work. And I did that for 10 years.
 
 Kate MacKinnon [00:04:18]:
 I became a partner in that firm, but then I had three kids. And after number three, I discovered that there is actually not an arithmetic but a geometric difference between two and three children and my partners, you know, and I didn't see eye to eye on how I was going to be able to accomplish. Accomplish all the job obligations and the three children obligations. So I left the firm and decided to start out on my own. And my first case that came to me was a rather substantial disability case out of North Carolina, where the attorney was actually a Minnesota attorney who was trying to help a person in North Carolina with a significant disability benefit claim. And this lawyer's expertise was actually in plan drafting and compliance, which means, you know, how do you write the policies and stuff? And he had very, very little litigation experience. Alas, I came in to help and, well, the rest is almost 30 years of my career. And that's what I've been doing ever since.
 
 Kate MacKinnon [00:05:29]:
 And that is how I became an ERISA attorney.
 
 Nancy Cavey [00:05:33]:
 Well, cool, cool. You know, my background was workers comp and Social Security. And as there were changes in both laws, I gravitated to ERISA disability. And as most people lawyers know, there is really no quote, unquote, class that you can take in erisa, though I did take some classes at John Marshall from our colleague Mark Debosky. But unfortunately, we sort of, if you will, learn as, as we go. And in that learning process, we are quickly, I guess, dissuaded of, of the idea that this whole process is, is fair or that the clients are going to get the benefits that they have paid for. But tell me, what are the three misconceptions that disability policyholders or plan beneficiaries have about this whole disability claims process and in particular erisa?
 
 Kate MacKinnon [00:06:29]:
 Well, I mean, probably the one I used to spend the majority of my first meetings with clients explaining is that the law of ERISA is quite different than what you see on TV and, or, or what most people have come to assume happens in courtrooms because this is a, the courts have determined that this area of the law is essentially an administrative like process. And what that means is a lot of the most important work in developing a case and prevent presenting that case is stuff that takes place before most people have ever even talked to a lawyer, even thought they needed a lawyer. The claim and then often the appeal process is where all the evidence is developed, everything important about the case is put together. And by the. If they've waited to see a lawyer until after both of those processes have ended, they're in for some pretty rough going in court because the court, because the judicial system has basically made it so that the only material that the judges in federal court will consider is the information that was developed during the claim and the internal appeal process. So if the person was not represented and did not make a really fantastic robust claim or appeal, we're not going to have any evidence that a court will consider. Another way of putting it is, sorry, nothing new that you may have or something that your doctor is now saying will be admitted into evidence and a court will not consider it. So that is the primary, most important thing to understand.
 
 Kate MacKinnon [00:08:22]:
 Relatedly, the second is that there's no jury trial. In fact, there's no trial. It's done in a. Typically in a motion practice there it can be slightly different than just strictly lawyers getting up and talking. There's a little bit more to it, but not much. And so the idea that client, that your client may come into your office and say, let me just tell my story, they haven't understood me yet. It's not going to happen if it hasn't already been submitted with the claim because you don't get a trial, they're never really going to have a chance in a court setting to tell their story to anyone, though it can often be told during a mediation in federal court. So that's the second most common mistake and the third.
 
 Kate MacKinnon [00:09:13]:
 And I'm not sure that I would know how to rank these, but these are the three things that we have to talk about right away when someone comes to see me or came to see me. And that is everything is determined by the plan or insurance policy that governs the case. A lot of times people say, well, you know, I got all these medical records, my doctor says this. And you know what the most important thing is actually what does the plan say or the insurance policy? Those are somewhat similar or synonymous terms, but it's the document that controls the obligation to give benefits. And you know what? Sometimes that document says something in the small print that says, sorry, we will not cover this. Right, sorry, there's a two year limitation on this type of benefit. And that is always difficult for clients.
 
 Nancy Cavey [00:10:12]:
 Well, you're absolutely right in that what I tell my clients is that the appeal is the trial of your case and that you definitely need a lawyer to address the medical, vocational and legal aspects of the claim in the context of what you said, whatever the plan language or the policy language might be. So let me ask you this. When a claim is denied under the ERISA statute, the policyholder or plan beneficiary has an obligation and must file an appeal within 180 days or they kind of lose their right to go to the next step, which is ultimately court. What are some of the misconceptions that you experience with your clients about the appeal process? Either what has to be done, what evidence needs to be advanced or created, and the legal issues that can arise in an appeal process.
 
 Kate MacKinnon [00:11:14]:
 So I agree with you, Nancy. The appeal is absolutely critical. In a way, this was set up so that the claim, we go in with the medical evidence and the claimant's statement and we just get in there simply. And for most cases, that that means that a claim is paid. But if it isn't, if it's more complicated than that, then the appeal is where all of the rubber hits the road, really, because that's where we should be operating to fix whatever it is is the problem that has got the insurance company claim denied or has persuaded the insurance company to deny the claim. And I, like you, almost always say the appeal is the trial, although I think that's kind of confusing for a lot of non lawyer people because they sort of think of an appeal as something lawyers do by themselves. It doesn't involve a claimant, doesn't involve new evidence, and that's just simply not true. So really what the appeal is is your last best chance to win your case.
 
 Kate MacKinnon [00:12:22]:
 And if you haven't done a good appeal, you'll lose. And if you haven't done a good appeal, you won't be able to win in court. So it's your last, best chance to win or to preserve your case and prepare it in the best possible way to have a different result when you're in court.
 
 Nancy Cavey [00:12:43]:
 When we get a case involving either a denied or terminated claim, one of the first things, as you mentioned, we want to look at is the plan or the policy, because we're looking for what's the definition of disability, what's the definition of occupation? Are there policy limits on the nature of your medical condition because it's a subjective condition or a mental nervous condition? And that's fairly, in quotes, easy to explain. But one of the most difficult parts of the appeal process, I think, is to explain to our clients what's called the standard of review and how that standard of review is going to ultimately impact how the carrier or the plan looks at the appeal and then ultimately will be a guide, if you will, or a handcuff, if you will, on the federal judge. Can you just speak to how you were explained to your clients this standard of review and how it impacted the appeals process?
 
 Kate MacKinnon [00:13:49]:
 Yeah, it is a hard thing, and quite frankly, I think a lot of law students and young lawyers struggle with it too, what the standard of review is. So in an ERISA case, by the time it's in court, if it is in court, the federal judge is gonna review the case and the level of scrutiny, how close she or he looks at that, has to do with what the standard of review is. If the standard of review is what what lawyers call de novo or anew or afresh, the judge is going to look at everything and he or she, she or he is not going to be at all impressed or persuaded necessarily by what the insurance company decided or the plan. The court is going to say, this is my case now. I don't care what anybody else said before. I'm looking at it for the first time. That's obviously the best scenario. But in ERISA cases, it is rarely the scenario that we, we get to work with.
 
 Kate MacKinnon [00:15:01]:
 In Arista cases, the courts have held that the default standard of review is what's called arbitrary and capricious or abuse of discretion standard of review. They both basically mean the same thing. And what they mean, you know, in lay person's terms is that the judge isn't going to take a real hard look. And when I was in law school, one of the professors talked about it being kind of, which pair of glasses do you put on? Do you put on no glasses at all? You're just using your regular eyes and your eyes are fine and you're not putting on any sort of special eyewear to help you look at this particular problem. That would be de novo, or rather, that would be abuse of discretion. You're not. You're not doing any hard look. You're just, yeah, okay, whatever.
 
 Kate MacKinnon [00:15:54]:
 If it's nova, where they can really take a look at something, they'll put on their glasses, they'll study things very carefully, they'll make their own determination. But in abuse of discretion, the court just looks at the evidence kind of with a certain level of giving weight to the decision that the insurance company already made. So, in other words, if it's abuse of discretion or arbitrary and Capricorn, the judge is going to look real hard and the judge is going to give actually a fair amount of weight, the decision that the plan or the insurance company made. And they're not going to look at it afresh and say, I don't care what anybody else decided. They're going to give a lot of weight to that first decision. And so you have the obligation then, as the claimant to try and overcome that preference for the decision that's already been made. It's a very difficult thing to do. It's a hard standard of review.
 
 Kate MacKinnon [00:16:48]:
 And so when I'm meeting clients, it's one of the first things we go over so that they understand this is a really big fight and we're going to have to make it understanding that the standard of review, the lens through which the court looks at the case, is going to be a very big factor in how it all comes out.
 
 Nancy Cavey [00:17:09]:
 Many of our audiences, members of the audience, may not know that there are 11 circuits and the District of Columbia, and there are basically 12 different potential ways in which a court will apply either the de novo or the standard. The standard overview in terms of arbitrary and capricious. For example, in 11th surrogate, I tell my clients, the question is, does the judge agree with this decision? And if the judge says, I agree with it, you lose. If the judge says, I, I don't agree with this decision, you don't win. We have to go on to the next question, which is, was there enough evidence, regardless of how it was created, that would support this wrong decision? And if the judge says, you know, I don't like this decision, but there's enough not, but there's enough evidence that explains why they did what they did, you lose. And then the third thing is, well, I don't like it. There's not enough, not enough evidence. But is this decision that I think is wrong influenced by the disability Carrier plan's dual role as the payer and as the decider.
 
 Nancy Cavey [00:18:16]:
 So is there bias? And at least in the 11th Circuit, I have to prove in essence those three things or I lose. And, you know, clients will go, what's that? Isn't this just the question of whether or not I'm entitled to my benefits? And so obviously, as an ERISA disability lawyer, one of the first things we want to do is to understand what that standard of review is because we've got to set our clients expectations correctly. You agree?
 
 Kate MacKinnon [00:18:46]:
 Totally. I also acknowledge I've had one or two cases in the 11th Circuit that the standard of review down where you live is far more complicated and involves more steps and sort of thought processes, which I think makes it harder for average folks to actually understand. Why are we going through all of these steps? Up here in Minnesota and the 8th Circuit where I practiced, the question is, is there at least a scintilla of evidence that a rational person could rely on in support of the decision that the insurer made? A scintilla. A teeny tiny. Is there just even a teeny tiny bit that supports the decision? And if there is, you lose if you're the claimant.
 
 Nancy Cavey [00:19:30]:
 I call that the Monty Python standard of review. Wafer thin.
 
 Kate MacKinnon [00:19:37]:
 Yeah. So, and of course, all of these questions differ from judge to judge and actually from fact pattern to fact pattern. It also makes a difference whether the question was a factual decision that the lower court had to make or what we call a legal decision. And that might be important to explain to a client what is a legal decision and does it get more scrutiny? And usually the question is that it gets a little more scrutiny when it's a legal question.
 
 Nancy Cavey [00:20:10]:
 Let's take a quick break and then we're going to come back and talk about tips that Kate can give about what a policyholder or plan beneficiary should do when they're going to try to find the right attorney to represent them. So let's take a quick break. So welcome back to Winning Isn't Easy. We're going to talk about disability strategies and the value of the case. And to get started, the obvious question is, well, how does a person whose claim was denied or terminated go about finding the right attorney for them to represent them in this appeal process and ultimately potentially litigation? So, Kate, what are your thoughts?
 
 Kate MacKinnon [00:21:04]:
 Well, I guess the antecedent question I might start with is you do need an attorney and you should get one. Sometimes the insurance companies actually sort of direct people to doing it themselves, saying things like, well, you, you don't need an attorney. That could be expensive. And they send like a little form, and you just fill out this form for your appeal. That, that, that's sufficient. That's actually really, really misrepresenting the whole appeal process and the importance of the appeal. So, number one, don't listen to the insurance company saying, oh, this is nothing. Just, you know, just send in your appeal and here's a form you can fill out that is actually incorrect information.
 
 Kate MacKinnon [00:21:46]:
 So you need an attorney. So the second question is, where do you find one? Well, of course, online, you know, resources are good, certainly talking to other lawyers. But what you want to look for and what sort of distinguishes the lawyers that do this from anybody else is the funny word erisa, E R I S A which one judge down in your neck of the woods once said means everything ridiculous in invented since Adam, which shows you how he felt about erisa. But ERISA actually stands for the Employee Retirement Income security Act of 1974. And that's a lot of language to simply mean the federal law that governs employee benefits. When you're looking for counsel, you're going to want to look for lawyers that do erisa. If you just look for folks who do disability, you might be falling into getting people that are personal injury lawyers or people that do worker's compensation, state law, workers compensation, or even Social Security disability. And those are very, very different kettles of fish, if you will.
 
 Kate MacKinnon [00:22:52]:
 What you want is a lawyer that does erisa. So you want to look for somebody who has expertise in erisa. And then the last piece of advice is, well, how do you select? Let's say you found several people that do erisa. What are you looking for? Well, you want, probably most importantly, someone you get along with. You're going to be entering into a very difficult situation on an appeal, and then in the subsequent case in court, if that goes that far. And you want someone you can trust and feel comfortable with and comfortable discussing complicated, usually medical questions with, and have that, that feeling that this person empathizes and understands and listens would be the first thing. Second thing is you want to take a look at your plan or your policy to make sure there's nothing in there that requires the case to be brought in a particular jurisdiction. There are sometimes clauses that are in policies that say you can only bring a lawsuit about this in XYZ State, if it may be the case.
 
 Kate MacKinnon [00:24:08]:
 That XYZ State, for example, is where your employer's home office is. If you've got a really big, large employer, you Might want to look for a lawyer who does ERISA in that state, if you have one of those kind of provisions in your policy. Because otherwise what's going to happen is you might get started with a local Arista attorney. Not that it's impossible, you can certainly switch. But if you're going to establish the rapport and the knowledge with one lawyer, it's nice that it can be the same lawyer all the way through the case.
 
 Nancy Cavey [00:24:38]:
 Great. When you are talking to a client about ultimately what their case is worth, because that's always a question that I get, what is my case worth? How long am I going to get benefits? You know, what's this whole process about? How do you explain how an ERISA disability case is valued and what impact the standard of review or even the judge can have on the value of a case?
 
 Kate MacKinnon [00:25:08]:
 Well, usually my practice was to speak with the client first, what the just basic, on paper value of the case was. And that depends on the facts. If the person has a disability that is unlikely to get better and they're looking at a situation that's going to last for rest of their work life through age 65, 67, usually. Well, that's one thing. Now, if you have a person with a disability that's going to take a year or two, and then the person is likely to be able to return to work, that's a different kind of evaluation. But in either case, we take the benefit percentage that's in the policy, very customarily, 60%, sometimes 65%, but that's most common. It'll be in your policy. You just look, it'll tell you what your percentage of benefit is.
 
 Kate MacKinnon [00:26:04]:
 And it's usually that percentage times your monthly compensation. Now, it gets really complicated, of course. Course, if you're somebody who makes a lot of money and has a lot of different forms of compensation that we typically see in, like senior executives that have very, very complicated compensation packages. And there it's really kind of hard to say just over the. This how that was done. Then you would take a very, very careful look at the elements of the compensation package and the policy to see what elements are actually covered. Because you don't just. Because as a senior executive, you have this fabulous whatever that's paying you all this extra supplementary compensation in addition to your regular wages.
 
 Kate MacKinnon [00:26:51]:
 It may or may not be a covered compensation, so it might not be used to calculate benefits. So we'd have that kind of conversation. And then we sort of multiply it by the period of time that we think disability is going to Last. Then he also asked about the standard of review. When I talk about the standard of review, I'm really talking about what is the chance that we will win in litigation. If this is just at the administrative appeal phase and somebody asks me that question, I'm going to say, you know, it says we just do the very best job we have and do the best job of creating the evidence we need to support your claim. And, you know, assuming that I think, you know, we've got evidence that should be sufficient 60 or 70% of the time or even, you know, more than that, I'd sort of multiply that by the percent of benefits. But understand, and this is really important for clients to understand, sometimes they say, oh, you mean I'm going to win this times all the years that I could put potentially be disabled? And the answer is, no, you will not.
 
 Kate MacKinnon [00:28:00]:
 The claims people are only going to pay a month at a time going forward into the future. So being cognizant of how much potential claim there is over time versus what will be the, the actual benefit at the point we get the appeal reversed is a very important thing to explain to people. Because the claim to date or the amount that is accumulated at the time that the insurance company goes, we were wrong, they're going to pay the back claim and bring you current, but that's all they're going to do and then start paying you monthly so long as you keep going forward. So that's what I try to explain.
 
 Nancy Cavey [00:28:43]:
 Yeah, I mean, I absolutely agree. We start out with what are the gross amount of the benefits. But there are several other things that we have to talk about, and that is an offset provision because most disability policies or plans require the individual to apply for Social Security upon pain of acting as if they were getting it when they're not. And they'll reduce those benefits by not only the receipt of the policyholders beneficiary benefits, but the beneficiary's children. So if you've got three kids and your children are getting Social Security disability benefits on your record, that's going to be used to reduce the value of the case till those kids drop off. The other thing, of course, that you mentioned before was we also have to be concerned about policy limitations for subjective medical conditions or mental nervous conditions. So, you know, you may see online that there are some law firms that have calculators, you can calculate the value of your case, but more often than not, I'm sure we both found that those were inaccurate because they just didn't take into consideration how to calculate the base wages, the offsets and any policy limitations. I didn't meant you didn't.
 
 Nancy Cavey [00:29:56]:
 I asked you about judges and you know, when we get into a situation where we have to file a lawsuit, one of the first things I want to know is who's the defense counsel. And the second thing, or maybe the first thing, I want to know who the judge is. We used to have a judge here in the Tampa district who in her many years on the bench, I think maybe only awarded a handful of cases found in favor of the, of the claimant. And we knew that our and the carrier knew or the plan knew that our chances of winning were maybe about 10 or 20%. And so the legal bookie odds, if you will have been a factor in the value of the case. Could you, could you speak to that at the litigation stage?
 
 Kate MacKinnon [00:30:44]:
 Yeah, it's an unfortunate, I mean it's very unfortunate. It's actually dreadful that particular judges predilections might have an unmerited influence on how they would decide in ERISA case. That's. It's just wrong. Unfortunately. Federal judges are appointed by a federal court, by the federal Congress and the President, and they're in the federal system and they're appointed for life. And there's very little you can do if you get the wrong one of the bad judges because just knowing that they have a record of ruling against claimants in the risk of cases will not do you any good in terms of seeing if you can get another judge. Having said that, we have to work within the system we got in this, flawed though it may be, is the system that we've got.
 
 Kate MacKinnon [00:31:34]:
 So certainly knowing who the judge is is going to affect my evaluation of the case. In Minnesota, I live in a state that a lot of people think of as a blue state, but our bench is actually significantly comprised of judges that were appointed by red presidents, in fact overwhelmingly so on the 8th Circuit, which is above court for this part of the world. And so you do have a problem in that your claimant may have be assigned to a judge that just has a doggone different idea about these kinds of claims. And it's going to change your evaluation. And a good lawyer is going to tell the claimant that right up front so that going forward, the claimant knows, well, I did not win the lottery here and I need to adjust my expectations accordingly. Doesn't mean, by the way, that every judge is against claimants. By and by no means. I've received decisions from very conservative judges that are very favorable to my clients.
 
 Kate MacKinnon [00:32:48]:
 And honestly, I think a lot of federal, most federal judges do try to do the right thing, but you may have a judge that's just for whatever internal calculation that person does is not as inclined to rule for claimants. And you want to know that because it may spur you to try and resolve the case by settlement differently than you would otherwise.
 
 Nancy Cavey [00:33:14]:
 Which leads to that next question. And that question is, how and why are ERISA disability cases settled?
 
 Kate MacKinnon [00:33:22]:
 Well, yes, right. For sure, cases will be settled when either party knows that the judge that is going to be adjudicating the case is friendly or unfriendly in general towards that particular case. By the way, when we say friendly or unfriendly, just sort of what, what we can learn from looking at the decisions that the judges reach. No lawyer knows what any particular judge is thinking about their particular case other than what is said when the court meets with the attorney. So we're trying to make educated guesses about what Judge John Doe might do on any particular case. And if I got, I did not. My client did not win the lottery. There's a high degree of likelihood that I may be more interested in trying to settle and might be more willing to take a lower number.
 
 Nancy Cavey [00:34:20]:
 So I have clients who will call me up and say, well, you know, why should I pay you either a flat fee or a percentage of my benefits to handle my case, my appeal, I can do it myself. Any thoughts or comments about that one?
 
 Kate MacKinnon [00:34:39]:
 Well, I think we've sort of given a foretaste of that, and that is that the administrative appeal in particular is the single most important thing that's going to happen in the case. And if you want to win your case, that is where you're going to want help, to make sure that you have developed all the issues correctly and have developed all the evidence that you're going to need to respond to the insurance company or the plan's objections. And, you know, it may be an equation that some clients look at differently based upon how much is at risk. I've told clients you don't have a very large benefit, you have a very generous Social Security benefit, and you're going to get that. You might not want to hire me to do your disability claim. In fact, what I do, if I were you, is focus on that SSDI claim appeal because you don't want to miss a deadline, right? Bring, bring the appeal of your LTD claim, but by the time that's rolling around, you might have had a decision in your favor on the SSDI claim, and that's going to help your LTD claim. And if it's not a very big amount, why would you want a lawyer? Because the lawyer really, it's not, it's not worth it on a small, small value claim, for small value claims, a larger value claim, or one that's going to go on and on and on, you really need a lawyer. Right.
 
 Nancy Cavey [00:36:06]:
 So if you were to give advice to someone who is looking to hire a lawyer, and what would you tell them about how they could help their lawyer write a winning appeal letter, what information they can provide, what insight they can provide, what advice do you give them about how you can help the lawyer do a better job?
 
 Kate MacKinnon [00:36:34]:
 So this assumes that the lawyer is actually retaining me to help their client. Right. Okay. Well, I mean, we do that too. Sometimes we talk about it being kind of like ghost writing the appeal. And in consultation with the lawyer who's already been representing, we talk with that lawyer, we go through the legal analysis, the factual analysis. We will outline the appeal maybe, or talk through the appeal so that the other lawyer can write it up with our overarching guidance. But most often what happens is we do the writing of the appeal and the retaining lawyer looks at it and goes, wow, I wouldn't have thought of that.
 
 Kate MacKinnon [00:37:17]:
 Thank you.
 
 Nancy Cavey [00:37:19]:
 All the other cases to you thereafter.
 
 Kate MacKinnon [00:37:22]:
 Yeah, that happens sometimes. Yeah.
 
 Nancy Cavey [00:37:24]:
 So one of the things that I absolutely insist on is that if I'm going to represent client in the long term disability case, I'm going to represent them in the Social Security case because I want to control both. But if that's not the situation, I always say to my clients, well, one of the ways that you can help me help you is get me your Social Security file from your lawyer, give me their name so I can contact them. And by the way, in the Social Security case, your lawyer should be using some forms called residual functional capacity forms, which are highly enhanced attending physician statement forms you have to get. So if your lawyer has gotten them, I want them, and if they don't have them, call me and I'm going to give them attending physician statement forms that they can use to help both cases. The other thing I will do, and I'm sure you've done, is to ask, well, who in your family or friends or at your employer's place of business could give us a statement to address whatever, whatever the issues are. Are there any thoughts about any other things that you have told your clients in the course of your practice that they could do to help you with that ERISA disability claim?
 
 Kate MacKinnon [00:38:41]:
 Well, mostly what I want to do is talk to them. And I like to talk to them multiple times because it's interesting. You know, we're humans. We don't always know what's important when we have a conversation with somebody, even if it's about something very important like your benefit claim. I've had cases where I was preparing the final drafts of the appeal submission and I. The client just mentions something off the cuff and I'm like, piece of information. I needed that, you know, yesterday, but let's work with it now. So there.
 
 Kate MacKinnon [00:39:13]:
 I would tell people not to be surprised if they have multiple conversations with the lawyer or at least the paral professional working closely with the lawyer and preparing your appeal. You should expect to talk to them a lot. And if you're not talking to them a lot, chances are they're not getting the information they need. In terms. Sorry, go ahead.
 
 Nancy Cavey [00:39:34]:
 One of the things I've always suggested to them is, you know, look at that denial letter and tell me what you think is wrong with it.
 
 Kate MacKinnon [00:39:42]:
 Yep.
 
 Nancy Cavey [00:39:44]:
 A lot of sites will come.
 
 Kate MacKinnon [00:39:47]:
 A lot of times the clients never have actually read the denial letter. They. They got to the bottom line first and benefits denied and they just, they don't read it. And so obviously that's important because that's what the reasons were that the insurance company came up with for why they were going to deny the claim. I think the other thing is to think creatively. And I want to talk about. A friend of mine had a case where he was prosecuting a client or bringing an appeal to get benefits reinstated for someone who had multiple sclerosis, which can affect cognition and cognitive capacity. And they had collected tons of records from the neurologists and the primary care doctors and all the usual people you would think about.
 
 Kate MacKinnon [00:40:38]:
 And the client was also seeing a psychiatrist. And this is not unusual for clients to not mention their mental health care providers. I want to know about that too. But she mentioned that she had seen the psychiatrist and they had been doing a Rorschach inkblot tests or, or something like that. He requested copy. Or maybe it was drawings the client did. Forgive me, they're glid of her feelings and these were shocking pictures. They sent those in and the appeal was granted.
 
 Nancy Cavey [00:41:13]:
 Wow.
 
 Kate MacKinnon [00:41:14]:
 Another time I had a client who was a young girl. Her parents were actually my clients. It was a medical benefits case, but the same basic principles. And she was being treated for severe bulimia and severe harming behaviors. And in her treatment facility, they had had all of the patients do full sized body drawings of their body and Their self image. It was very disturbing. I submitted that. So thinking creatively, I have had, of course, the usual things, videos and audios of interviews with my client.
 
 Kate MacKinnon [00:41:55]:
 That kind of goes without saying in many cases, but thinking creatively about what is the one piece of evidence or one explanation that you give to somebody about why you're disabled, that just sums it all up. It's not just the elevator speech. And it's important that it not just be. My diagnosis is it's when the person says, I am a surgeon, orthopedic surgeon, and my problem is I have Dupuytren's contracture, which is a very annoying, a difficult situation where the fingers stop contracting so they get sort of stuck. And it's worsened by cold. And you know, when you are doing an orthopedic surgery, you are in a very cold environment. We keep operating rooms very cold. We keep our materials cold.
 
 Kate MacKinnon [00:42:55]:
 We have ice there to apply to the patient and to chill things down. So my hands are cold the entire time, which only makes the Dupuytren's contracture worse. And guess what? Sometimes I only have two fingers left to stitch someone up. And you know that just saying Dupuytren's contracture, what's a big deal? You know, see it on tv, there's medicine for that. Not necessarily and not if you're an orthopedic surgeon. So it's having a sensitive conversation and thinking creatively about how, how would you explain to somebody why this is really a problem? And it's usually some. Something that's very, very graphic. I couldn't get on the elevator because it went too fast, because I have to walk very, very slowly and my arm got caught.
 
 Kate MacKinnon [00:43:47]:
 You know, something like that is a. Usually these simple anecdotes are some of the most powerful pieces of evidence you can submit.
 
 Nancy Cavey [00:43:55]:
 Wow, fantastic tips there. So we're going to take a break before we do our last segment. So we will be back getting some final thoughts and insights from Kate before she moves into her next stage of life. So let's take a quick break.
 
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 Nancy Cavey [00:44:52]:
 Welcome back to Winning Isn't easy. Kate, as you close out your career, what are your words of wisdom that you would give to disability policyholders and plan beneficiaries who are starting the claims process, going through the appeals process, and then ultimately, potentially dealing with litigation?
 
 Kate MacKinnon [00:45:15]:
 Well, we kind of covered a lot of them, to be honest. I think the most important thing is to read your plan, to read the denial letter, to get an attorney, and to be timely. We haven't actually talked about timeliness, but it means a lot. In erisa, there are very specific deadlines for everything. And to get those time, meet those time deadlines. More broadly, sort of thinking about the whole process, I think it's important to understand that disability benefits in ERISA particular, are not a given. Many folks came into my office thinking, well, my gosh, I paid benefit. I paid a premium for this the whole time.
 
 Kate MacKinnon [00:45:57]:
 I've worked for this company for 40 years. What the heck is going on here? And it's always important to understand that disability benefits for people who are unable to work because of a medical condition, and it's a combination of both the medical situation and the occupational situation that are what determines whether you're disabled or not. And it's not a given that you're going to get disability benefits just because you have them or are entitled to them through a policy with your employer. The entitlement is to have the coverage. Entitlement is not to have the benefits. To get the benefits, you have to establish all the elements under your policy and basically that you're disabled and your occupation, you can perform your occupation.
 
 Nancy Cavey [00:46:51]:
 I have known Kate for many, many years. She's been a wise woman on the mountain of the world of ERISA attorneys. And there aren't very, quite frankly, many of us ERISA disability attorneys. And so what words of wisdom do you have for us ERISA disability attorneys in being more effective communicators and litigators and just client advocates who would like to pass on?
 
 Kate MacKinnon [00:47:20]:
 Well, I think we need to be advocates for sure, and maybe not just for our clients. It behooves lawyers in this very niche area of practice to get involved in some of the regulating that goes on, like the Department of Labor and have. Have a voice in how regulations that Governor Rista get adopted. I participated in some of that over the course of my career, and it's made a difference for many of my clients. Get involved in your state legislative process. It's a very complicated argument, but there are some state laws that aren't governed by erisa, but that implicate ERISA and get hold of your state legislators, if that's a problem in your state. For example, many states have banned discretionary clauses and policies, and that's the work of ERISA attorneys and claimants getting out there to their state legislators and getting that changed. I think it's necessary because it is such a niche area of practice.
 
 Kate MacKinnon [00:48:19]:
 If we don't speak up on behalf of our clients in the overall world to the legislatures and the Congress, it's going to stay a very dark secret about how difficult it is to get benefits. It shouldn't be as difficult as it is, but by the same token, it has to be a somewhat adverse adversary process in order to make sure that benefits are available to everyone that needs them.
 
 Nancy Cavey [00:48:51]:
 You know, as we've alluded there, it really isn't any class that you take in law school on ERISA litigation. And federal judges hear all sorts of cases, from civil rights to criminal to drug to. To all sorts of other issues. And one of the things that we've tried to do, at least in the 11th surrogate, to educate judges about ERISA is, is to have what we call bench and bar conferences, where we invite the defense and we invite attorneys such as ourselves, we invite the judges, and we kind of try to use it as a way to educate judges. So I absolutely agree with you that we need to be trying to influence the legislative process, the insurance regulation process, and to the extent to which we can educate the judges, also do that. In closing, are there, you know, reflecting on your successful career, the influence that you've had, not only on clients, but lawyers like myself who are going to terribly miss you? Any final thoughts?
 
 Kate MacKinnon [00:49:57]:
 I'm going to miss you, too. And I don't mean just you. I'm going to miss the ERISA lawyers because we are a small group. We get to know each other because we don't have a whole lot of other people to hang out.
 
 Nancy Cavey [00:50:10]:
 Yeah. Other than the defense attorneys.
 
 Kate MacKinnon [00:50:13]:
 And I will miss that tremendously. And I'll miss my clients very much. Some of them have become dear friends, and it's an important job that somebody has to stand up for these folks because if there isn't anyone to advocate for them, a grave injustice is going to be done. And I wish I could stay in the. In the groove, but time and tide waits for no man or woman. And unless I. I must bring myself into a new. A new, new vision of myself.
 
 Kate MacKinnon [00:50:49]:
 I'm not quite sure what that's going to be yet, but believe me, I'm doing my research.
 
 Nancy Cavey [00:50:54]:
 Well, I know that you will be successful and will make a difference in in people's lives. So please keep it up and please stay in touch. And thank you for joining us for this week's episode of Winning Isn't Easy. If you've liked this episode, please shout out. Give us a shout out. Please like the episode, refer other people to this episode or other episodes and please subscribe to the podcast. So thank you, Kate, and the best to you and your family.
 
 Kate MacKinnon [00:51:20]:
 Thank you. It has been my pleasure. Sam.