HR admin error, then forged docs -how to resolve?

[Sbradley]

Jurisdiction

North Carolina

During open enrollment period (Nov 2015) for supplemental insurance, employee completed the enrollment form/application for additional amount to be added to current life insurance policy. Policy scheduled to become effective Jan 1 2016. Payroll stmts reflect additional premium amt taken out throughout Dec 2015 period. Employee unexpectedly dies Jan 11, 2016. HR is asked to submit claims to Ins company. Ins company denies the addition and says they never received the "short form" (EOI) during enrollment period. HR faxes it. Ins continues to deny. HR can't show proof of having sent it in Nov 2015 and AFTER the death is too late. Investigation starts and Ins company finds several other EOIs were missing as well - also never sent in Nov 2015. Employer denies and accepts no responsibility.
Fast forward to Sept 2017, after appeals to ins company and finding no way they are at fault, family reviews the documentation and finds obvious forgery issue with the EOI submitted the day after the death. We're talking spelled the first name of employee wrong, wrong height, and just NOT the employee's writing - as can be compared with original application/enrollment forms. The multi-national corporation employer does not seem to know about the forgery issue (from HR) yet and will not respond to the family in any form.

Dept of Insurance and Dept of Labor will not touch the situation. DOI complaint was filed but rejected since the insurance company never received the enrollment docs to process the addition before the death due to negligence on the part of HR.

* Questions for this forum include:

• What form of recourse does the family have to recoup the additional amount + interest and legal fees? The money was intended for the 2 children left after employee's death.
• Who should be the defendant in the case? HR individual, Corporate employer, both...??
• Is there a way to find out if the employer is covered by an errors & omissions policy and how would that potentially change the direction of this situation?
• Do statute of limitation questions come into play, and if so, what do we need to know?

Does anyone have additional recommendations?? Your feedback is highly appreciated.

 

[army judge]

Does anyone have additional recommendations?

No one on this forum is capable of assisting you.

A licensed lawyer in your county can very often be consulted initially for no cost or future obligation.

If you do HIRE a lawyer, expect to shell out about $10,000 as a working retainer.

If the amount in question isn't in excess of $100,000, I suggest you let this go and continue with mourning or grieving the loss of a loved one.

God bless.

 

[txls]

Probably the only way you will find out if they have errors and omissions coverage is to initiate a lawsuit. I suggest a consultation with an attorney who can better answer your other questions as well. I wouldn't let it go. Somebody made a mistake and it's a big one(assuming you have all the facts).

 

[ferretrick]

I agree that I would not let it go so casually. However, you definitely need to consult an attorney who specializes in contract or insurance law (NOT the kind who advertises on daytime TV please). This is not a do it yourself.

The recourse the family has is to sue with the representation of a competent attorney. The defendant could be the HR individual or the Corporation, but probably only the Corporation has the assets to be worth going after. The answers to your other questions would come out in the discovery process. Find an attorney as soon as possible. Good luck to you.

 

[Sbradley]

In preparing docs to send to the Missouri Dept of Ins and the Fed Dept of Labor office in Kansas City with jurisdiction over the corporate entity involved, I found that there are numerous discrepancies on the EOI sent to the insurer the day after the death. The policy holder's name was misspelled, the handwriting wasn't his, his height was wrong, the phone number listed on the form wasn't his, but his wife's (??) and the SSN was wrong. That's JUST on one form.
The corporate counsel blocked the investigator from DOL from speaking directly with the HR person we think forged the EOI after the death. They also claim that any discrepancy could be simply the result of HR personnel "assisting" employees in filling out forms before they were signed and forwarded to the insurer. As someone who now works in the insurance business, my company would eat me up if I were to "assist" by completing enrollment or EOI forms in place of an enrollee doing it themselves.
The latest word we've gotten is that since the corporation completely denies any wrongdoing or responsibility, and because only one person seems to have been affected, the DOL refuses to pursue the case in any way. I know I've spoken to a multitude of attorneys across our state and they all say they don't have the particular skill sets required for this type of case. If I were to find one, a minimum of $10k would be expected as an initial retainer, let alone whatever the additional fees would require. Considering this is over a $40,000 insurance addition, there would barely be anything left for the kids if the case were successfully resolved.
So, that brings me to a final question for this group - is there a legally protected way to make the HR officer we believe forged the materials and failed at her job [by the way, corp counsel says they have changed the entire supplemental insurance procedure to have an outside group handle ALL of that in the future to keep HR out of it] understand and/or claim responsibility for what was done? Or, is there a way to let the community know how this company behaved? Thanks in advance to any and all who have offered advice.

 

[army judge]

is there a legally protected way to make the HR officer we believe forged the materials and failed at her job [by the way, corp counsel says they have changed the entire supplemental insurance procedure to have an outside group handle ALL of that in the future to keep HR out of it] understand and/or claim responsibility for what was done?

You could speak with a LICENSED private investigator.

A PI "might" be able to use a handwriting analysis expert to see if the "suspect" did as your "spidey senses" are telling you.

is there a way to let the community know how this company behaved?

That is something that could blow back on you, trapping in a nasty libel or slander lawsuit.

Talk to a PI (two or three) and see if anyone can work some investigative magic.

I've known a few PIs over the years, most former cops or feds, those folks knew how to get to the truth.

 

[ElleMD]

When the EE applied in November, did they keep a copy of the application? Did they receive anything from either HR, or more importantly, the insurance company that reflected the change? That is pretty standard. IT would be somewhat unsual not to receive anything that showed what the new coverages were that had been elected, or at least, materials on the new policy that had been selected, even if it didn't go into effect until January.

That aside, if the EE did apply in November, there would be no need to forge an application. There may or may not still be a fax confirmation it was sent during OE, but the application would still be there.

IT also isn't that uncommon for HR to help complete applications. Or even fill them out for an employee. It is a horrible, stupid practice, but I've had to shut it down pretty much everywhere I have worked. The reasons it is stupid, are for the ones your mention; it is too easy to get details wrong. The intentions were always honorable, an often it was the EE that asked if we couldn't fill it out for them as they were confused, didn't have time, or had limited language skills.

Even if the document was completed by someone in HR, that part doesn't appear to be the real problem. The problem seems to be that the IC is claiming the form didn't get to them in time. HR claims it was sent. IC claims it wasn't received. Both can be true. Either could be lying or mistaken. Papers do go missing, get lost, get destroyed by accident, end up misfiled, wind up in fax jail/cyberspace, etc. I'm slightly surprised the IC won't accept it with the signature date prior to the death. Not sure if the claim was denied because there was a waiting period before the policy would pay out (not uncommon to avoid those who know they are nearing the end from buying policies just ahead and the IC having to pay out before any or much premium has been paid), or something else, but nothing you shared seems to imply the application being filled out by someone else is the issue. As it isn't an illegal or even unusual practice, I do understand why the DOI is declining to act.

 

[Sbradley]

When the EE applied in November, did they keep a copy of the application? Did they receive anything from either HR, or more importantly, the insurance company that reflected the change?

Whew...my response is a doozy. On 11/19/15, during his open enrollment period, the insured already had a reasonable life policy in place. He applied to add an add'l $40k to it. I have copies of the initial app he completed. Plan year should have started Jan 1, 2016. He never heard anything back requesting add'l info, etc so assumed all was in place.
With no previously known cardiac problems, he died of a sudden massive heart attack on 1/11/16. His wife called his ER the next morning to let them know and HR was very sweet and helpful and said she would take care of getting paperwork started for the claim. The original policy paid but the insurer claimed they never got an increase app. I have LOADS of docs from the insurer (from multiple appeals) showing they researched and they NEVER received the initial app or an EOI from the HR/ER until Jan 12th - the day AFTER the death. They tried numerous times to get some documentation from HR that it had been faxed with all the other open enrollment docs from their group and she claimed all kinds of reasons why she couldn't send them proof, then she stopped responding to them at all. The insurer concluded that since they never rec'd the app, nor an EOI form verifying health stmt, they were liable for the additional amount.
The widow appealed until she hit a final appeal wall, and then she (the 2nd wife and mom of the then 5 yo child) asked me (first wife and mom of the then 20 yo child) to step in and pursue the case. I spoke with the HR Generalist, the plant mgr, and one of the Corporate folks (this is a $400M+ multi-nat'l corp) and they all denied any responsibility. I filed a complaint with the DOI in our state who rejected the complaint as being out of their jurisdiction, since the corp is HQ'd in MO. I then filed a complaint with DOI in MO. They contacted the insurer, who again stated they were not responsible (and they're right!). The MO DOI turned the information over to the KC office of DOL to be investigated. In preparing a complete packet for the investigator, I noticed the EOI sent to the insurer (day after death) that we were given copies of, was NOT written in the deceased's handwriting. (I was married to him for 15 years - I would know that chicken scratch!) As I read more carefully over the form, his first name was misspelled (he went by his middle name), the phone number listed under his address was his WIFE'S cell #, and the height was shown as 6'1". I know it sounds picky, but he would have never claimed to anything taller than 5'11". As a final kicker on that form, it looks as if the signature was copied/pasted or traced from another page on file (probably the initial app that was never proven to have been sent in).
The pay stubs we have show increased deductions were made starting in Dec '15 as if the addition was already scheduled to begin on 1/1/16 as far as HR & payroll knew.
I assert that at the close of open enrollment, the HR Generalist at the local plant failed to fax the deceased's application/EOI (the insurer said when they compared the original faxed docs with later lists, several other EEs' forms were also not submitted at the appropriate time and were sent later after the mistake was found in Jan 2016) and freaked when she got the call that he had died overnight. I think she scrambled and realized his paperwork never went in and I believe she quickly "created" an EOI and sent the app & EOI in at the same time as the death claim form.
DOL said they were refusing to pursue the case because it only affected one person that we know of. Of course, in the approx dozen attys I've spoken with across our state, none feel equipped with the skills sets to handle ERISA, Supp Ins, possible forgery, etc without at least a $10k retainer plus whatever the final costs may be. The additional $40k policy addition was intended all along to be split between the two kids so it's basically screwing them over. As the ex-wife, I just want to see the situation corrected for the kids he left behind. The widow doesn't want to risk losing half (or more) of it in a court battle against a Goliath. Is there any stone we've failed to turn in trying to get the corporation to claim the administrative error on the part of their HR and make good the intent of his request? (We do know from their corp counsel that they have turned over ALL mgmt of supp ins to an outside group so their HR never touches it again. That sounds like they KNOW they made a big mistake.)
Sorry there's so much here...but this has been a long tug-o-war. I appreciate any possible feedback you can offer! THANK YOU!!

 

[Sbradley]

Sorry...after the insurer's careful research and the appeals processes were completed, they found the were NOT liable for the additional amount. (I didn't catch the typo until just now.)

 

[ElleMD]

The bottom line seems to be that the form didn't get where it needed to go, before the death. It seems unlikely that the day after the death, the HR person would suddenly remember they "lost" EE's form, never sent it, fake an old one, and fax it over. Being perfectly blunt it would be a whole lot easier to insist they sent it and IC must have lost it (which does happen-humans are human and paper isn't a perfect system). Either way, even if you had the form that everyone and their brother was dead sure EE completed himself, start to finish, and submitted prior to the deadline, you'd be in the same boat. The IC wasn't going to accept it, because, reasons.

The purpose of sending a form on the 12th seems to be to get the benefits that the EE wanted to sign up for. Whether it was the form he completed, one the HR person completed for him in November, or one done some time later, the purpose was the same. (It also seems unlikely that both the form was not sent and that it was then lost after payroll processed the premium increase- especially since that generally only happens after confirmation of enrollment by the IC. It is also curious that the increased premium being sent wasn't a trigger to the IC that something was amiss, but perhaps the very short time frame made that impossible.)

The company is taking it seriously as they have outsourced the enrollment function or joined the 20th century and moved to online enrollment where employees are responsible for directly enrolling themselves. I'm not sure what other measures you think are necessary but tarring and feathering the HR person, even if they did miss sending a fax in November, isn't going to accomplish anything. It is unfortunate if it was that person's mistake and the IC isn't willing to correct it after the fact, but this happens and the timing is just rotten that it happened before any sort of audit or enrollment list would have been generated to catch it.