Disability Benefit Claims Law Blog : Disability Benefits Lawyer & Attorney : Dell & Schaefer : Disability Insurance Claims Law Blog

The recently decided case of Barteau v. Prudential, 2009 WL 1505193 (C.D. Cal.) is a reminder of what ends Prudential will go to in denying a claim for benefits. Carl Barteau was an Assistant Professor of Mathematics at DeVry Institute of technology for almost eight years before becoming disabled. Mr. Barteau had suffered problems with his right eye since childhood. In 2002 he underwent surgery for glaucoma, which was complicated by a scratched cornea. As a result of the scratched cornea he was instructed to wear a replaceable contact lens and was reassured the eye would heal on its own. Soon after he began experiencing excruciating pain, and on January 7, 2003 he began treatment at UCLA. Biopsies of the eye were taken and showed evidence of eye fungus. On January 17, 2003, he became hospitalized and underwent surgery to remove a large part of the infection from his right eye. On February 22, 2003, he underwent a second surgery on his right eye. Following the second surgery he began to experience a lack of vision in his right eye and disabling light sensitivity in both eyes.

Mr. Barteau filed for short term disability under his employer’s Group Plan, effective January 7, 2003, and was awarded short term disability benefits for the maximum period. As the period of short term disability benefits began to wind down, he attempted to return to work, but his conditions were such that he was unable. On July 2, 2003, he filed for and received long term disability benefits due to loss of vision in his right eye, eye strain to his left eye, headaches and blurry vision.

After Prudential approved his long term disability benefits, Prudential advised Mr. Barteau of his duty under the group plan to apply for Social Security benefits. Mr. Barteau applied, and was denied in December of 2003. Prudential then offered the services of a company to help him appeal the decision.

While the social security appeal was ongoing, Prudential began to investigate Mr. Barteau’s claim in March of 2004 to determine whether or not he was still disabled. Prudential determined in August of 2004 that his condition had remained the same based upon the notes and medical records from Mr. Barteau’s treating physicians. However, this did not stop Prudential from investigating his claim again in September of 2004. Despite evidence of impairment in his medical records Prudential determined that his eye condition should not preclude him from working and requested additional medical records from his eye doctor, which clearly indicated that his eye condition was leading to severe eye strain and migraine headaches. Prudential, realizing they did not have an avenue to deny benefits based on those records then requested medical records from Mr. Barteau’s primary care physician. After receiving and reviewing these records along with those of Mr. Barteau’s eye doctor, Prudential determined in November of 2004 he was still disabled under the policy.

Nearing the two year mark of receiving long term disability, Prudential wrote Mr. Barteau at the end of December 2004 to inform him that in July of 2005, the definition of total disability would no longer relate to his occupation, but would change to “any occupation.” Prudential then requested in January of 2005 that a functional capacity evaluation be performed. The results of the evaluation indicated that Mr. Barteau suffered from severe headaches which precluded the attention and concentration required for even simple unskilled work tasks, and that due to the disabling cognitive impact caused by his migraines, he suffered from disabling fatigue. Shortly thereafter, on March 15, 2005, Prudential was informed Mr. Barteau’s claim for social security benefits had been approved.

It would seem reasonable to assume that since Mr. Barteau had met the Social Security definition of disability, that Prudential would consider this evidence of disability from any occupation. But this was not the case. In May of 2005, Prudential hired a vocational rehabilitation specialist to review the claim. The specialist determined that Mr. Barteau had medical complications that would impact his ability to work. Having no way to deny benefits at this point, Prudential informed Mr. Barteau in June 2005 that their evaluation had been completed and they found he was totally disabled from performing any occupation.

All seemed to be in order for Mr. Barteau, that is until March 2006 when Prudential conducted another review of his claim. Prudential requested limited medical records from Mr. Barteau’s treating physician, which created a gap of medical records of almost a year and a half! Additionally, Prudential had Mr. Barteau complete a generic form titled, “Activities of Daily Living Questionnaire.” Based upon limited medical records and a generic questionnaire, Prudential determined Mr. Barteau was not disabled from any job, and terminated his benefits without any evidence of improvement or progress in his condition and informed him on September 8, 2006 that his claim was being terminated.

Mr. Barteau informed Prudential he was also seeing an orthopedic specialist for spine pain and a bio-feedback psychiatrist. Prudential asked for proof of disability from these doctors within 30 days or the claim would be terminated. Mr. Barteau underwent MRIs and a neuropsychological evaluation in order to support his claim. However, the results of the evaluations would not be completed in the time frame required by Prudential. Upon learning this, Prudential informed Mr. Barteau that they would allow him the necessary time to obtain this pertinent information prior to any decision.

Prudential then went against its word and six days after informing Mr. Barteau they would await the results of the MRIs and neuropsychological evaluation they began their evaluation. Without receiving the pertinent information they knew was coming, Prudential terminated his benefits as of October 25, 2006.

Results from the neuropsychological evaluation were received by Prudential on November 4, 2006. The results indicated Mr. Barteau was suffering from multiple severe cognitive problems due to his conditions. Faced with objective findings of disability it would be reasonable to expect Prudential to reinstate Mr. Barteau’s benefit, but instead Prudential hired a doctor who advertised on his website that he had done over 1500 Psychiatric Disability reviews for disability insurance companies to review the neuropsychological evaluation. It was no surprise that this doctor determined that Mr. Barteau was not totally disabled from any occupation.

In filing his first appeal, Mr. Barteau also included the findings of his MRIs and electrodiagnostic studies. The MRIs indicated multilevel disc herniations in his neck and back and the electrodiagnositc testing showed evidence of acute cervical radiculopathy and chronic right lumbar radiculopathy. However, Prudential again looked for any outlet to deny disability benefits and sent only a portion of Mr. Barteau’s medical records to a hired physician and a separate medical review agency for review. Both the hired physician and medical review agency determined Mr. Barteau was not totally disabled from any occupation, and based upon this information Prudential upheld its denial.

Mr. Barteau filed a second appeal and presented additional significant and reliable evidence of disability. In the information provided office notes from 45 office visits to treat for his disabling pain, headaches, and cognitive conditions. Treatment indicated lumbar epidurals and facet blocks under fluoroscopy, along with continued cognitive dysfunctions. Prudential took the information in this second appeal and sent the information to be reviewed by the very doctors who had previously opined Mr. Barteau was not disabled from any occupation. Prudential once again upheld its denial of benefits.

Mr. Barteau then filed suit in federal court. Prudential’s underhanded and inappropriate actions in the handling of the claim were set out before the Court. In May of 2009, almost three years after being denied benefits, the Court determined that Mr. Barteau continued to be disabled under the terms of the plan when Prudential terminated his benefits. The Court asserted Prudential had done nothing to show improvement in Mr. Barteau’s condition to justify termination of benefits, nor did they present any vocational evidence which identified employment opportunities for Mr. Barteau. In making its ruling, the Court ordered all back benefits owed to Mr. Barteau be paid, along with interest. Additionally, the Court acknowledged Mr. Barteau’s right to recover reasonable attorneys’ fees, which were to be determined at a later hearing.

What appeared to be a “cut and dry” claim for disability proved to be anything but. Mr. Barteau endured numerous injustices by Prudential over the course of the three years it took to litigate his case. Mr. Barteau’s case serves as a reminder of the ends Prudential will go to in order to deny claims. In denying disability benefits, Prudential once again assumed that they could hide behind the wall of ERISA and wrongfully deny long-term disability benefits. Fortunately the court disagreed and made the right decision. It is likely that Prudential will appeal the courts decision.
 

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Attorneys Dell & Schaefer successfully resolved a long-term disability claim for a former floor trader on the Chicago Board of Options Exchange (“CBOE”). In July 1998, Mr. T underwent bilateral eye surgery to correct vision loss which was preventing Mr. T from accurately reading the monitors in his trading pit, a necessary skill in Mr. T’s profession. Despite undergoing corrective eye surgery and hoping to return to his occupation as a floor trader, Mr. T continued to suffer from visual difficulties as result of dry eyes, halos and glare. In December 1998, further corrective surgery was attempted; however, it failed to correct his vision to the extent that he could return to trading on the floor of the CBOE. Mr. T realized that he had no further option but to file a claim for disability benefits under his individual long-term disability insurance policy.

In April 2000, Mr. T submitted claim forms for disability benefits. Initially, the disability insurer acknowledged receipt of Mr. T’s claim. However, not long after submitting his claim, the disability insurer ceased communicating with him. Compounding matters, in January 2001, Mr. T became disabled due to severe neck and back pain, discomfort and restriction of motion associated with cervical radiculopathy for which he underwent surgical fusion of the C4-C5 and C5-C6. Frustrated with the lack of communication by the disability insurer and their failure to promptly approve his claim for disability benefits, Mr. T stopped paying his insurance premiums. Shortly thereafter, the insurer denied all of Mr. T’s claims.

Mr. T contacted Attorneys Dell & Schaefer in May 2007, after receiving a letter from his disability insurer about an opportunity to have his 1998 claim reevaluated. Attorneys Gregory Dell and Cesar Gavidia began by gathering volumes of documentation, including Mr. T’s financial records, medical records and the disability insurer’s claim file dating back to the 1990’s. Following the submission of an Appeal, the disability insurer agreed to pay some but not the entire period for which Mr.T was claiming disability benefits. After being advised that they would not pay the entire claim, Attorneys Dell and Gavidia file suit in US District Court claiming breach of contract damages in excess of $1,000,000.

After two years of litigation, which included depositions and review of thousands of pages of documents, the parties reached a confidential settlement at mediation prior to trial. In this case our client had stopped paying premiums years before he retained counsel. In an effort to retain rights to an individual disability, we always advise our clients to never stop paying premiums even though the disability company does not want to pay the claim.
 

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Since late 2004, our client, Sumiko Besser has been battling Prudential Insurance Company in an effort to secure her long-term disability benefits. Prudential currently owes her in excess of $900,000 in unpaid long-term disability benefits. Our client became disabled on May 10, 2004, as a result of chronic neck pain caused by multi-level degenerative disk disease. Attorneys Dell & Schaefer submitted two administrative appeals to Prudential and in early 2008 filed a lawsuit in United States District Court of Hawaii. On May 19, 2009, Attorneys Gregory Dell and Leonard Feuer presented our client’s case at trial and we are currently waiting for a verdict from the court.

At the time of filing for disability our client was working in Honolulu for Hilton Vacation International selling timeshares. Our client, a 47 year-old woman was at the prime of her sales professional career when she gave up her job due to chronic neck pain. Her pre-disability income and was in excess of $320,000. The time-share and real estate market was booming in mid 2004 when she was forced to stop working. Our client worked more than 60 hours per a week and was paid pure commission. As an employee benefit our client paid a monthly premium for a long-term disability policy that would pay her 60% of her monthly income each month if she became unable to perform the substantial and material duties of her occupation as a vacation sale professional. Prior to filing for disability, our client had been continuously treating with a Rehabilitation and Medicine doctor in order to help manage her pain. Additionally, she had undergone multiple cervical injections, was taking pain killers daily, missed multiple days from work, and attempted to reduce her hours in order to keep her job. Our client has seen more than 8 different doctors (orthopedics, neurosurgeons, physiatrist, and anesthesiologist) and has been recommended for neck surgery by 3 different doctors. All of these doctors support her inability to work due to chronic neck pain.

Prudential initially denied the claim on January 25, 2005 and relied on a paper review by one of their consulting doctors, who claimed that if she used a phone headset and an ergonomic chair to do her job she would have no problems. This Dr. never examined or spoke with our client. Our research revealed that Prudential paid this doctor more than $130,000 in 2005 and Prudential has a long-standing relationship with this doctor who practices at a medical school next to Prudential's NJ headquarters. On July 28, 2005 our firm submitted a 65 page single spaced appeal of the denial to Prudential with additional support for our client's claim. During the review of the first appeal, which was suppose to be completed in 45 days according to ERISA law, Prudential decided they wanted to have a doctor of their choice examine our client. This exam took place, December 16, 2005, which was now more than 1.5 years after our client’s claimed date of disability. We requested to video the exam of our client, as we usually do, and the Dr. hired by Prudential refused. The exam took place, and the doctor found that our client has objective evidence of a cervical degenerative condition; however it should not prevent her from doing any job. The doctor was suppose to determine if her medical condition would prevent her from doing her substantial and material duties as a vacation sales person, but he went as far as to say she had no restrictions preventing her from doing any job. While Prudential would not allow the video of the exam, Prudential hired a private investigation company to follow our client around with a video camera for 7 days. The first two days of video surveillance were the day before and the day of the exam with Prudential's hired doctor. The remaining days were within the following two weeks. Prudential paid $9,439.00 to the video surveillance investigators. Over 7 days, the investigators produced a total of 30 minutes of tape, of which more than 20 minutes was our clients visit to the beach on New Years Eve day with her family.

On February 13, 2006 Prudential entered their second denial and relied on the exam by the doctor they hired (paid him $5,000) and their own internal doctor’s report. On August 21, 2006, Attorneys Dell & Schaefer submitted a 100 page single spaced appeal letter to Prudential with additional information. ERISA law requires a policy holder to submit appeals and exhaust administrative remedies before the insured is allowed to file a lawsuit in Federal Court. Additionally, ERISA provides that an insured shall receive a full and fair review at each level of the appeal. The idea is that the Insurance Company will have different people review the claim at each level of the appeal. Unfortunately for our client, when she submitted her final appeal it was denied by the same Prudential Vice-President that made the decision to deny her first appeal submitted on July 28, 2005. Prudential treats large monthly benefits different than other claims and has a policy that any monthly benefit in excess of $10,000 must be approved by a Director or Vice President. The second and final appeal was denied on December 5, 2006 and Prudential relied on the video surveillance of our client at the beach on December 31, 2005 as the basis of their denial. Furthermore Prudential sent the video to the doctor they hired and he said that the video shows that our client could work for only as long as she seems to be functioning on the video. Keep in mind the video was 30 minutes long and our client worked a 60 hour week. Additionally, the video shows our client swimming for a total of 2 minutes and 30 second, and Prudential felt that if she could swim, then she can perform the duties of her 60 hour work week.

Following the second and final appeal denial a lawsuit was filed in Federal Court and Prudential has continued to fight the case every step of the way. Prudential denied our request to take depositions of 8 prudential company representatives and after an extensive motion the Judge granted the request. The depositions were taken and the information obtained was extremely helpful in presenting our client’s case at trial. Some individuals deposed at Prudential were the Vice President of Long-Term Disability, Director of Group Disability and Director of the Appeals Unit. During the pending lawsuit, Prudential challenged the standard of review to be used by the court claiming that the court did not have the discretion to review the entire Administrative Record and make a determination if our client is disabled. Prudential argued that that the disability policy granted them "discretion" and asked the court to apply an arbitrary and capricious standard, which means the court can only reverse the claim denial if the court finds that Prudential acted unreasonable. Our firm filed a motion to clarify the standard of review, which Prudential opposed, and the court agreed with our Client that Prudential does not have discretionary authority and the court must review the entire record De Novo.

Prudential’s counsel has already indicated that they plan to appeal the courts ruling on the standard of review if they loose at trial. Prior to Trial on May 19, extensive Trial and Reply Trial Briefs were filed with the court on behalf of our client. ERISA law is very restrictive and does not provide a claimant with the right to a jury trial, therefore this case will be decided by a Judge only. Prudential filed a motion recently claiming that ERISA does not allow our client to call live Dr. Testimony at trial. In accordance with ERISA, The judge granted Prudential's motion and said that the medical issues in this case do not rise to the level of complexity which requires additional medical testimony.

If our client wins, Prudential will undoubtedly appeal and the case may go on for another 1.5 years. Currently she is owed disability benefits from November 6, 2004, in excess of $900,000 at a monthly benefit amount of approximately $16,000. Our client has been unable to work since the date of her accident. The attorney fees accrued to date are in excess of $500,000 and more than 1,000 hours of legal time have been spent on this case. The court has the discretion to award attorney fees if our client wins at trial. Our client is entitled to benefits until age 65 if she is disabled under the terms of the disability policy. After 2 years of disability the definition of disability changes to unable to perform any occupation that pays 60% of pre-indexed disability earnings within 12 months of her return to work. As of right now that would mean a job that pays our client $228,000. The total value, of our client’s policy, including benefits to age 65 is approximately 3 million dollars. ERISA does not allow punitive or bad faith damages against prudential if the court finds that they wrongfully denied benefits to our client.
Prudential has nothing to loose by denying our client's claim, because if they are proved wrong, they end up having to pay what they should have paid 4.5 years ago. Prudential is able to hide behind the protections of ERISA, find a doctor to say our client can work, and then see if a court will make them pay a claim 5 year latter. In the meantime Prudential delays until the Appellate court tells them they must pay. Along the way, Prudential may make a low-ball offer after they have backed the claimant into a financial hole that leaves the claimant without the ability to fight anymore. We believe our client has a great chance of winning this case as the medical evidence is very strong in her favor, but the public should continue to be aware of the unreasonableness of ERISA law and the way in which companies such as Prudential manipulate the system to their advantage. The unreasonable actions of large disability insurance companies were they place their profits before the well being of those that bought disability contracts to protect themselves shall not be tolerated.

Attorneys Dell & Schaefer handle long term disability claims throughout the country and currently represent more than 200 hundred claimants against every major long-term disability insurance carrier. We have lawsuits pending against multiple disability carriers in multiple states. We welcome the opportunity to provide a free consultation regarding any long-term disability insurance claim.
 

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The case of Mary Midgett v. Washington Group International Long Term Disability Plan, 561 F.3d 887 (8th Cir. 2009) is a reminder that there are discrepancies in how Federal courts apply the law with regard to the weight of credibility to give to an insured’s treating physicians versus the opinions of doctors hired by the insurance carrier to conduct reviews of medical records only.

Mary Midgett was a contract manager for Washington Group International, and was insured under Washington’s group short term and long term disability policies. The policies were originally administered by Broadspire, and then by Aetna. Ms. Midgett filed for benefits under Washington’s short term disability policy due to a myriad of conditions including degenerative arthritis, fibromyalgia and cervical degenerative disc disease, and osteoporosis.

Ms. Midgett treated with various doctors for her conditions. However, as the Court would point to as grounds to uphold the denial of benefits, many of the medical records from her treating physicians were silent as to an opinion on disability, and Ms. Midgett’s primary treating physician’s records suggested he was uncomfortable classifying her as disabled. Based upon results from nerve conduction studies, MRIs, and peer reviews, Aetna denied her claim for short term disability benefits. Ms. Midgett appealed the denial of benefits and added additional medical records from further physicians. Ms. Midgett’s appeal was once again denied, in part upon the review of the medical records from four more insurance company doctors. Between the initial application, and the final determination, Aetna relied upon no less than eight doctors who reviewed the available medical files, and never physically examined Ms. Midgett.

Following Aetna’s denial of benefits, Ms. Midgett filed a lawsuit for the short term disability benefits. The Court, taking into account Ms. Midgett’s medical records from her treating physicians and the opinions of eight insurance company doctors who only reviewed medical records that Ms. Midgett was not totally disabled, the Court sided in favor of the Insurance carrier. In rendering its opinion, the Court pointed to the Supreme Court decision of Black & Decker Disability Plan v. Nord, which stated an insured’s treating physician’s are not automatically entitled to special weight in disability determinations under ERISA. Ultimately the Court determined denial of Ms. Midgett’s short term disability benefits was supported by substantial evidence, as the opinions of all eight of the reviewing physicians accurately represented her medical records and addressed all the evidence supporting her claim for disability.

COMMENT: Without strong medical support from a claimant’s treat physician(s), it is almost impossible for a claimant to get approved for long-term disability benefits. A claimant must always be aware of the medical records documented by their treating physician and any documentation that the treating physician sends to the disability carrier. The attending physician statements that disability insurance companies send to claimant’s treating doctors contain open ended questions that allow the disability companies to manipulate the answers in support of claim denial. A claimant should always review the attending physician prior to returning the form to the disability carrier.
 

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Robert Stanford was a nurse anesthetist in a hospital in South Carolina. In his position, he was exposed to and responsible for administering anesthesia and narcotics to surgical and obstetric patients. Shortly after starting work, he began taking Fentanyl, a powerful narcotic. By September of 2003 he had become addicted to the drug, and entered rehabilitation the following month.

After release from rehabilitation, but before returning to work, Stanford relapsed, and returned to rehabilitation, where he stayed for 3 months this time. While in rehabilitation, he applied for long-term disability benefits with Continental Casualty, which provided benefits through his employer. While in rehab, his benefits were approved.

Stanford returned to work on March 12, 2004, but once again suffered a relapse, and returned to rehab on May 19, 2004. Once again, he applied for and received long-term disability benefits from Continental Casualty. However, in January of 2005, hi
s benefits were terminated because his treating physician stated there was no impairment that prevented him from returning to work as a nurse anesthetist. Stanford appealed this decision, noting that he remained at risk for relapse if he was exposed to Fentanyl, and that his license had been restricted from having access to narcotics or working as a certified nurse anesthetist.

Continental Casualty denied the claim, stating that, “the policy does not cover potential risk.” With his administrative remedies exhausted, Stanford filed suit. The trial court determined that the decision to deny benefits was not unreasonable. Stanford appealed. The 4th District Court of Appeals reviewed the claim and determined that although Continental Casualty was a plan administrator operating with authority to interpret contract terms but under a conflict of interest because it also paid out the claims, the insurance company had not abused its discretion in denying the claim.

The reviewing court also found that it was not improper to not have a health care professional review the claim, since the main issue in this case was one of contract interpretation, and Continental Casualty had not disagreed with the Stanford’s treating physician: yes, the risk of relapse was high, but he was not currently physically or mentally impaired from returning to work. Lastly, the court noted that the risk of relapse for drug addiction differed from the risk of relapse for a heart attack victim: the drug addict has a choice about becoming relapsing, while a heart attack victim does not.

COMMENT: They key factor that resulted in this client being denied benefits was the fact that the claimant’s treating doctor opined that he was not disabled from returning to work in his prior occupation. Moreover, the fact this case was reviewed by the court under and arbitrary and capricious standard made it almost impossible for the court to determine that the disability carrier acted unreasonably. While risk of relapse alone is generally not enough to support a claim for disability, a claimant should always discuss and document all potentially disabling conditions with their treating doctors.

.l See Stanford v. Continental Casualty Co., 514 F.3d 354 (4th Cir. 2008).
 

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Prior to becoming disabled, Mrs. C was an eighth grade English literature teacher in southern California. In 1996, Mrs. C began experiencing pain in her muscles and joints as well as fatigue and disturbed sleep. Her physicians soon diagnosed her with various connective tissue disorders, including: Sjogren’s syndrome, rheumatoid arthritis, atypical lupus , Raynaud’s phenomenon, fibromyalgia and muti-nodular goiter. She was experiencing pain in a number of small joints in her upper extremities, as well as her knees, ankles and hands. The stress and emotional toll was even causing her to experience hair loss. In 2002, Mrs. C was forced to stop working and file a claim for disability benefits under her long-term disability policy provided through her teacher’s association. After reviewing her claim and giving careful consideration to the medical evidence, the disability insurer approved Mrs. C’s claim and began paying total disability benefits.

In April 2008, the insurer terminated Mrs. C’s benefits and informed her that they had consulted a vocational rehabilitation consultant who opined that Mrs. C’s occupation as a teacher did not require her to lift more than 20 pounds and did not require her to stand or walk for more then 4 hours a day.   The insurer also mistakenly informed Mrs. C that if she disagreed with the decision that she could bring civil suit under the Employee Retirement Income Security Act of 1974(“ERISA”). Devastated and confused,

Mrs.C contacted Attorneys Dell & Schaefer. 

 

Attorneys Cesar Gavidia and Gregory Dell immediately began by requesting the administrative record and claim file from the disability insurer. After reviewing the records provider by the insurer, Attorneys Gavidia and Dell submitted a detailed appeal letter to the insurer demanding they pay all back benefits due and immediately place Mrs. C back on claim. Following several weeks of negotiations the parties reached a confidential settlement which required the insurer to pay a confidential lump sum amount for Mrs. C’s back and future long-term disability benefits.

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The Client, a South Florida podiatrist, retained the law firm of Attorneys Dell & Schaefer in December 2007 due to the denial of disability benefits by one of her two long-term disability insurance carriers. Beginning in 1999 the client began suffering complications from fibromyalgia, sjogren’s syndrome, carpal tunnel syndrome and chronic fatigue syndrome.

Determined to continue the practice of podiatry and not allow her disabling conditions to destroy the practice she had worked so hard to build, the client continued to treat patients, perform surgeries and work a full time work week. However, it was not long before our client was forced to reduce her working hours and as a result experienced decreased revenues, less patients and canceled appointments.

Shortly thereafter, our client applied for residual / partial disability benefits with both of her long-term disability insurance carriers. The client initially was able to prove to the carriers’ satisfaction that she had suffered a loss of income as a result of her disabling conditions and was able to begin receiving disability benefits. For approximately two years, our client received partial disability benefits from her disability carriers and maintained her diminishing practice. Shortly thereafter, one of her insurers terminated her disability benefits contending that under their calculations her gross revenues did not reflect that she was experiencing the 20% loss of income necessary under the partial disability provision of the policy. Attorneys Gregory Dell and Cesar Gavidia discussed with the client the possibility of a pre-suit mediation with the insurance carrier to attempt to resolve the disagreement and avoid a lawsuit in Federal Court. If successful the process would save considerable time and costs for both parties. At mediation, Attorneys Dell and Gavidia presented our client’s position and were able to reach a confidential lump-sum buyout agreement of the disability policy.

Approximately one year after her case with one insurance carrier was settled, the second disability insurer communicated that they were interested in a lump sum buyout of the client’s partial disability claim. After several weeks of negotiation, Attorneys Gavidia and Dell were able to successfully negotiate a lump sum buyout for the client at 74% of the policy’s present value.
 

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Cigna attempted to deny lifetime disability benefits for a claimant suffering from a psychiatric organic brain disorder, but the district court of Colorado disagreed. Following a remand from the court of appeals, which ruled the district court had erred by considering evidence outside the “administrative record,” the district court nonetheless reaffirmed its ruling in plaintiff’s favor after carefully considering all of the evidence in the record and analyzing each of the medical opinions presented. The specific issue was whether Jewell was disabled due to a functional psychiatric disorder or on account of an organic disorder. The court began its discussion by rejecting the insurer’s argument that the policy provision limiting benefits to 24 months for conditions “caused” or “contributed to” by a psychiatric condition was applicable to co-morbid organic and functional organic illnesses. The court found the insurer’s interpretation

would mean that an employee whose sole affliction is a disabling organic brain dysfunction would be entitled to lifetime LTD benefits, while an employee who suffers from a disabling organic brain dysfunction plus a non-organic psychiatric illness would be limited to only to 24 months of LTD benefits. The latter employee thus would be penalized for his or her additional condition. This is not a reasonable interpretation of the Plan language. *31-*32.
Turning then to the evidence, the court next explained that even the absence of objective test results such as an EEG, MRI or CT scan did not rule out the possibility of an organic brain dysfunction. However, if such evidence had existed, the issue would have been more clear-cut. Nonetheless, the court found the preponderance of the evidence favored the plaintiff. The court explained:

Ultimately, however, the Court is persuaded by the well-supported opinions of Dr. Peters, the only neurologist who offered an opinion in this case, and Drs. Caster and Maiman, Plaintiff's psychiatrist and psychologist. Each of these doctors believed that a diagnosis of organic brain dysfunction was not dependent upon positive objective test results. The Court has been given no cause to doubt the experience, expertise, and integrity of these doctors. Certainly, positive objective test results would have made Plaintiff's condition easier to diagnose. However, based on the documents in the record, the absence of positive objective test results is not dispositive. The Court finds and determines that the preponderance of the evidence establishes that an organic brain dysfunction "caused" or "contributed to" Plaintiff's disability as of October 18, 2000. Thus, the LTD mental illness limitation does not apply to Plaintiff. *41-*42.

Jewell v. Life Ins.Co. of North America, 2009 U.S.Dist.LEXIS 27982 (D.Colo. March 20, 2009)
 

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Our client was a Territory Sales Specialist for a major medical supply company, responsible for sales spanning a large geographic area with incredibly high sales quotas. Physical requirements of her occupation required here to travel extensively, drive long distances on a day to day basis, carry samples and products that could weigh in excess of thirty pounds, and give presentations and demonstrations. Her job required her to have a strong understanding of all aspects of her company’s products, and keep current with all advancements in the field of medicine as it relates to her company’s products.

Our client had suffered from neck and back pain since she was involved in a car accident several years ago. Throughout the years she sought treatment, but remained focused on her career, pushing aside the discomfort she was experiencing. However, by 2008 the pain had become unbearable, and it was having a severe impact on her ability to perform her occupation. An MRI of her cervical spine revealed multiple disc bulges and an extrusion at the C6-7 level with evidence of narrowing and compression of the spinal cord, which caused radiating pain to her arms.

Our client filed a claim for disability benefits under her company’s long term disability policy with Prudential. During this time she was released from employment and no longer had adequate health insurance to treat regularly to treat her condition properly. At first Prudential provided benefits under reservation of rights pending more medical information. She attempted to keep up with all of Prudential’s requests, but soon became overwhelmed. In September of 2008, Prudential terminated her benefits, citing the “Proof of Claim” and “Appropriate Care” provisions contained in the policy.

No longer able to deal with the constant harassment from Prudential, she contacted the law firm of Attorneys Dell and Schaefer. Dell and Schaefer immediately contacted Prudential, requested all claim information and requested Prudential no longer contact our client. Through no fault of her own, due to her lack of adequate health insurance to cover the cost of treatments, a review of the medical records made it apparent that the course of treatment our client had been receiving would make it difficult to satisfy the “Proof of Claim” and “Appropriate Care” provisions under the policy. Armed with the limited information available, Dell and Schaefer filed an Appeal with Prudential.

Based upon the information presented and the arguments for disability benefits contained in the appeal, Prudential reversed their prior denial of long-term disability benefits and agreed to conduct further review for disability benefits for 2009. Steven Jessup, of Attorneys Dell & Schaefer was the lead attorney on the file and continues to manage the claim on a monthly basis.
 

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