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

Mrs. Pettigrew was an employee of Pioneer Automotive Technologies, Inc from December 8, 2003 until May 15, 2006. Her most recent position was that of a senior engineer. Mrs. Pettigrew had been experiencing increasing pain and symptoms of Chronic Fatigue Syndrome (CFS), Fibromyalgia and Radiculopathy. Because of the increasing problems Mrs. Pettigrew was facing, she was finally forced to stop working. On May 25, 2006 Mrs. Pettigrew submitted a claim for short-term disability benefits, claiming that she was unable to work due to fatigue, severe pain causing lack of concentration, difficulty sitting as well as standing.

Mrs. Pettigrew was granted short-term benefits, which were extended twice. On October 18, 2006 and November 8, 2006 she was informed that Pioneer would need more information to make a determination regarding claims for short-term or long-term disability benefits. Mrs. Pettigrew was informed that her benefits would stop October 9, 2008 because Pioneer had determined that she was able to perform sedentary work full-time and that long-term benefits were going to be denied based on the fact that Mrs. Pettigrew’s disability did not continue a full 180 days.

Medical records revealed that Mrs. Pettigrew’s conditions had been worsening since May of 2005. An initial review by Dr. Erik Kovan, Mrs. Pettigrew’s regular physician - radiculopathy and cervical myositis was observed, matching the pain Mrs. Pettigrew was describing. Mrs. Pettigrew received ongoing treatment from Dr. Kovan from June 13, 2005 to April 25, 2008. On top of this, Mrs. Pettigrew was diagnosed with Fibromyalgia on April 19, 2006 by Dr. Jason Postula-Stein. June 10th of 2006 saw Mrs. Pettigrew being examined by rheumatologist James E. Dowd for generalized progressive pain, fatigue, headaches, neck pain and stiffness, join stiffness, myalgia, anxiety and insomnia. Dr. Dowd suggested the possibility of Mrs. Pettigrew suffering from Vitamin D deficiency.

June 28, 2006, Mrs. Pettigrew began treatment with James Neuenschwander, MD, for chronic fatigue. Treatment continued through May 2, 2007. Dr. Neuenschwander wrote a letter on November 1, 2006 stating “that Mrs. Pettigrew was improving slowly, but that any significant stressor, including returning to work too early, would set back any improvement she has seen.”

Dr. Neuenschwander also said, “Finally, walking your dog for half a mile three times a day is hardly the equivalent of working 40 hours per week. If she can return to work with the limitations that she can leave when she is exhausted, come in late when she is unable to sleep, call in when her pain has become incapacitating, and have someone double check her work for mental mistakes, then she may be able to return to work.”

Dr. Dianna L. Neal, MD was hired by Prudential to conduct a medical file review of Mrs. Pettigrew’s records. Dr. Neal concluded that Mrs. Pettigrew was able to work at a sedentary level and the basis of her findings was on investigations conducted by Prudential. It should be noted that Prudential hired private investigators to Mrs. Pettigrew’s neighbors and friends in order to verify her physical disabilities. While it was never alleged in this case, it appears that Prudential violated Mrs. Pettigrew’s confidential medical information by discussing her medical condition with friends and neighbors. Dr. Neal recommended a peer review, a process in which a group of professionals look at the claim file, the medical records and come to a conclusion of whether they believe the individual is disabled or not. This was never done, and Prudential denied and terminated Mrs. Pettigrew’s disability benefits two days later. Mrs. Pettigrew appealed the denial of disability benefits.

A notice was sent to Mrs. Pettigrew on August 24, 2007 that Prudential had scheduled an appointment with an independent medical examiner and rheumatologist, Dr. Dale Baker. Mrs. Pettigrew’s attorney informed Prudential that Mrs. Pettigrew would not be attending that exam, which caused Prudential to deny benefits again for her failure to attend the IME. In most cases a disability insurance company can deny disability benefits if a claimant fails to attend an Independent Medical Exam requested by the insurance company.

When Mrs. Pettigrew took Prudential to court, it was determined that Prudential had failed to explain how they came to the conclusion that Mrs. Pettigrew could have worked in a sedentary position full-time. The judge looked over the case and found that Mrs. Pettigrew should have another chance at a full and fair review. Therefore, he remanded the case back to Prudential, for a full, fair investigation regarding Mrs. Pettigrew and her disabilities. Although Mrs. Pettigrew won the right to have her case reviewed by Prudential for a third time, it is unfortunate that the court did not order Prudential to pay disability benefits. If Prudential denies her again, then her only option will be to file another lawsuit and unfortunately go through everything again.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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For several years, Elizabeth Black was the executive director of Milwaukee World Festival, Inc. (MWF), the organization that governs Summerfest, a music festival in Milwaukee. Black was covered under the company’s disability insurance plan, underwritten and administered by Standard Insurance Company. Black was diagnosed with multiple aortic aneurysms bulging and weak areas in the aorta. In 2001, Black had surgery to repair the aneurysms and was recommended by her doctor to medically manage a third aneurysm in the descending aorta.

After surgery and recuperation, Black went back to work in the summer of 2001 being monitored closely by her doctor, Dr. Brian Griffin, as well as her cardiologist, Dr. David Slosky for hypertension. At the end of 2002, Black was in contract negotiations, trying to land another five year contract with MWF, but at the same, time her relationship with co-workers was strained to the point that she was experiencing harassment. In a letter sent to the counsel for MWF, Black complained about her co-workers, the harassment and her desire for a new contract. She sent letters from her two doctors as well as her neurologist Dr. Griffin explained that Black, “has significant hypertensive problems . . . it is vital that her blood pressure be well controlled. Stress, particularly in the form of verbal abuse, is very deleterious for her blood pressure control”

Dr. Slosky wrote that Black, “has significant hypertension . . . her blood pressure is quite labile and reactive to stressful conditions. It is particularly sensitive to acute and direct confrontation. . . . The patient should not be subject to harassment of this kind.” And the neurologist, Dr. Eric Maas, wrote, “any undue stress should be minimized given Black's medical history particularly with regard to hypertension and her vascular disease,” and that “had been undergoing a great deal of stress stemming from her responsibilities as Director of Summerfest in Milwaukee and her contract negotiations,” and he requested “that these factors be taken into account in planning these negotiations with Elizabeth.”

In July 2003, the committee voted not to renew Black’s contract. On August 6, 2003, Mrs. Black filed a disability claim with Standard Insurance Company. Black sent a letter to the board of directors, stating that she was unable to perform her duties and that doctors had advised her that she could no longer work – that her condition had been worsened by her job activities and stress.

Standard reviewed medical records from Dr. Griffin and Dr. Slosky and Dr. Michael Deeken, Black’s psychiatrist. They also received an ‘attending physician statement’ from Dr. Griffin, stating that he had advised her to stop working as of 2003, and that she is unable to control her blood pressure. On visits to Dr. Slosky on August 2001, July 2002, and July 2003, records revealed that Black’s health was stable, with the exception of poorly controlled hypertension.

Dr. Slosky wrote a letter to the Standard Insurance Company, stating that that Black should cease working due to poor blood pressure control and the “potential for aneurysm enlargement/dissection.” Her psychologist, Dr. Deeken also submitted a statement that Mrs. Black had a diagnosis of depressive disorder and anxiety disorder. Adding more evidence to her case, Mrs. Black submitted a copy of the Social Security Administration’s approval of her disability benefits. She had been considered disabled due to aortic disorders and anxiety disorders by the SSA, and was considered disabled by another disability insurance company, from which she had additional coverage.

Standard denied Mrs. Black’s claim for disability benefits, stating there was not enough evidence to consider her disabled under the plan. However, she appealed the denial, including additional letters from her doctors, who stated that Black had experienced fatigue and concentration problems. She also submitted letters from friends and family that had witnessed her concentration and memory problems. Standard then consulted four physicians, who took a look at Black’s medical records and evidence. Each of them concluded that Black was not disabled, while Dr. Fraback (one of the reviewing doctors) suggested Standard consult a cardiologist, which they did.

Two cardiologists – Drs. Kent Williamson and Storm Floten reviewed the charts. Dr. Williamson noted that while stress may reduce the risk of an aneurysm rupture, that Black’s condition could be managed with medication and that since her scans had not shown any significant change, there was no solid evidence that she was unable to work. Dr. Floten gave his opinion that Black’s aneurysm had not been affected by her job and that the “descending aorta has not enlarged significantly in the last three years.”

Both had concluded that she was not disabled. Dr. Gwinnell, a psychiatrist was consulted by Standard, who reviewed Black’s claim and stated that her complaints of fatigue and cognitive difficulties was not supported by her medical records. On January 2005, Black took the case to the district court, where she was ruled against. She appealed again to the United States Court of Appeals to the Seventh Circuit.

Black’s case was reviewed; specifically the fact that Standard denied Black while the SSA approved her. It was found that the medical information given to the SSA was not the same information given to Standard, and therefore, that Standard was not opposing the SSA, but that the cases were completely different. The court also found that the physician’s reports were conflicting and shifted to support Black’s disability claim. The court therefore supported the district court’s decision to rule for Standard.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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Mrs. Kaufmann was employed as a senior project manager by Siemens Corporation. Mrs. Kaufmann was a member of the long term disability plan through MetLife who was both the administrator and payor of disability benefits. On May 26, 2006, Mrs. Kaufmann stopped working on advice from her treating physician, Dr. Daniel T. Rubino. Because of an unsuccessful diskectomy and laminectomy, Mrs. Kaufman suffered from severe chronic pain. Mrs. Kaufman suffered from progressive back pain, disc protrusion and herniation, stenosis and radiculopathy which led her to seek help from those unsuccessful surgeries.

MetLife initially paid disability benefits, but then terminated them on November 9, 2007, claiming that Mrs. Kaufmann had failed to provide evidence that she was unable to perform the duties of her occupation. Mrs. Kaufmann claimed that the basis for the denial was that Met Life mischaracterized her ‘light duty job’ as a ‘sedentary’ job. On February 4, 2008, Dr. Rubino completed a narrative report stating that his patient “cannot sit or stand for longer than 15 minutes without changing positions due to chronic pain impulses. She has severely decreased concentration ability, preventing her from having gainful employment, not to mention her physical limitations.” He also added that “as of August 21, 2007, Nancy was no longer able to perform her pre-injury job with Siemens Corporation on a full-time sustained basis.”

Prior to her care with Dr. Rubino, Mrs. Kaufmann had multiple diagnostic tests and exams which confirmed her spinal pain. Her orthopedic surgeon, Dr. Richard Balderston, stated that surgery would most likely make her situation worse and that the best treatment she could receive would be pain management. The same opinion was had by Dr. Howard Richter, a neurosurgeon who also commented on her “chronic and worsening left leg pain of uncertain origin.”

Met Life referred the case to Dr. Frank Nisenfeld, who reviewed only records with no examination of Mrs. Kaufmann. After a review of Mrs. Kaufman’s medical records, Dr. Nisenfeld concluded that the treating physicians were correct and that the condition would not improve, including his statements that there were ‘no surgical or medical answers.’ He concluded that medications would most likely cause functional impairment as well as safety risks. Still, because of Met Life’s classification of Kaufmann’s job as sedentary, he opined that Mrs. Kaufman’s medical problems should not prevent her from performing sedentary work.

When Metlife terminated disability benefits in November of 2007, the letter stated, “Based on the findings of the review, there was no medical documentation to support an ongoing functional impairment that would limit your ability to perform your sedentary occupation.”

After this denial, Dr. Rubino sent Mrs. Kaufmann to Dr. Wendy Wang, who did a comprehensive and thorough functional capacity evaluation on December 12, 2007. Dr. Wang took into account each of Kaufmann’s job duties and whether or not they would be affected by her illnesses. She concluded that as a product manager, Mrs. Kaufmann was required to travel by plane or car at least once a week, with a suitcase weighing more than 30 lbs that she must be able to perform prolonged walking, sitting, driving, pulling, lifting and more. Dr. Wang concluded that Mrs. Kaufmann was unable to perform these duties, or to live up to the mental component required by the job.

The case was then referred by Met Life to Dr. Ephraim Brenman, who conducted a review and found that Kaufman was “not precluded from working full time in any capacity,” and “is able to work full time, at least a sedentary level of duty.” Kaufmann’s doctor, Dr. Rubino, commented on Dr. Brenman’s findings, stating that there were subjective complaints, documented by objective findings in the medical reports and that "even if there were none [objective findings], this does not preclude her from having these problems."

On April of 2008, Met Life informed Mrs. Kaufmann that they were upholding their decision to terminate disability benefits based on the report from Dr. Brenman. Several things must be considered here. Although Dr. Nisenfeld agreed with Dr. Rubino on certain points, he said that Kaufmann should be able to perform her job. However, Dr. Nisenfeld was never given a job description of Kaufmann’s occupational duties, and never examined her personally. Met Life’s experts never looked thoroughly at Dr. Wang’s report and never offered anything up to suggest that Dr. Wang’s report was wrong or that the details could be interpreted differently. Dr. Brenman never even considered or commented on the situation at hand he only gave a vague analysis to the situation without knowing what Kaufmann’s work duties were.

Kaufman filed a lawsuit in federal court and the court found in favor of Kaufmann on the basis that Met Life’s decision to deny benefits was not supported by substantial evidence and in fact, it was arbitrary and capricious.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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Annette Engel was employed with Harborcreek Youth Services as a Clinical Director, where she performed duties such as providing leadership and vision, developing proposals, overseeing interviews and recruits of other clinicians, consultation and more. On September 5, 2007, Mrs. Engel applied for long term disability benefits under her employer’s plan with Jefferson Pilot (aka Lincoln National), claiming fibromyalgia, chronic fatigue, stress, and depression resulting from working long hours.

Mrs. Engel submitted her long-term disability claim with medical records from Dr. Brenda Stringer of the Fibromyalgia and Fatigue Centers, and Dr. Christie Ray,  Mrs. Engel’s primary care physician. The medical records included information on treatment for fatigue, headaches, stiffness and soreness, as well as inability to sleep, chronic fatigue, immune dysfunction syndrome, fibromyalgia, hyperthyroidism and depression. On September 9, 2007 Dr. Ray submitted an attending physician’s statement outlining the probable Fibromyalgia as well as stating that Mrs. Engel, “was unlikely to make a full recovery.”

On October 30, 2007, Jefferson Pilot Financial Insurance Company denied Mrs. Engle’s claim, stating, “The medical documentation contained in your claim file does not support disability as defined by this policy. You were diagnosed with Fibromyalgia, chronic pain, migraine headaches, and syncope. You had complaints of fatigue, poor sleep, pain and passing out. According to the medical records, on file your pain level as of 8/29/2007 was 3/10, and as of 8/22/2007 you were getting six hours of uninterrupted sleep. It was also indicated that you could lift up to 25 pounds. If you disagree with our decision, you may appeal this determination by following the steps outlined below.”

On December 3, 2007, Mrs. Engel appealed Jefferson Pilot’s denial, writing a letter that described in-depth her suffering – from short term memory problems, concentration problems and migraine headaches to severe depression and waking up without feeling rested. She also stated that Jefferson Pilot had misunderstood her doctor’s notes, because she had not experienced a 3/10 pain since the Fibromyalgia started. Her doctor confirmed this – stating that the patient’s pain was much higher than a 3/10. Mrs. Engel forwarded results from a mental evaluation as well, completed by Dr. Glenn Bailey on December 7, 2007 which stated the applicant's "claimed eligibility" was the result of "fibromyalgia, chronic fatigue syndrome, migraines, [and] major depression."

On February 4, 2008, the medical records were reviewed by Jefferson Pilot’s RN Joyce Mumm, who claimed that there was not enough medical evidence in the records to support Mrs. Engle’s disability claim. The disability insurance company, on Mumm’s advice, denied Mrs. Engel’s claim once again. On April 10, 2008, Mrs. Engel appealed again, including additional medical support from Dr. Nossen Goldfarb of the Fibromyalgia treatment centers, stating, among other things, that “I can equivocally state that she is currently incapable of fulfilling these duties and clearly lacks the stamina to work on an ongoing full-time basis. Her constant state of pain, exhaustion and lack of mental clarity make these activities difficult if not impossible for her to perform.”

Updated medical records were sent to Jefferson Pilot, outlining more of the same problems as before, along with new evidence of a possible past Chlamydia infection and more. Jefferson Pilot referred the claim to a rheumatologist, Dr. Payne, who reviewed the case and found that there was not enough medical evidence to support disability. After a series of back and forth statements by reviewing doctors, Jefferson Pilot financial insurance company once again denied Mrs. Engel’s claim.

After two prior denials from Jefferson Pilot, Mrs. Engel filed a lawsuit in the United States District Court for the Western District of Pennsylvania. After hearing the evidence on both sides, Judge McLaughlin ruled, stating, “For the foregoing reasons, I find that the Defendant's rejection of benefits in this case was not a principled exercise of its discretion but was arbitrary and capricious.” Judge McLaughlin further stated, “Although Defendant requested a copy of the Plaintiff' job description, it did not give meaningful consideration as to how the Plaintiff's chronic fatigue, as well as memory and concentration problems, would impact upon her performance.”

The court also noted that Jefferson Pilot’s medical experts did not address Mrs. Engel’s physician’s repeated claims that she suffered from severe, chronic and debilitating memory and concentration problems, which would prevent her from performing her job or any job correctly.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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Mrs. Rebecca Duperry worked as payroll benefits HR administrator for Railroad Friction Products Corporation (RFPC) until April 7, 2006. Mrs. Duperry suffered from rheumatism, and stopped working in April pursuant to the advice of her rheumatologist. The rheumatologist told Duperry to ‘slow her work down’ and that cutting hours was a good idea, although working from home would be an even better idea.

October 16, 2006, Duperry claimed disability from three conditions,  rheumatoid arthritis, osteoarthritis and fibromyalgia. Among the documents Mrs. Duperry submitted to CIGNA Life Insurance Company of North America were two attending physician statements completed by Duperry’s primary care physicians, Dr. Glenn Harris, and her rheumatologist, Dr. Supen Patel. In his statement, Dr. Harris stated that “plaintiff was limited to zero hours per day of climbing, balancing, stooping, kneeling, crouching, crawling, reaching, walking, sitting, or standing, and that plaintiff would "never" be able to return to work.” A statement was made also by Dr. Patel that Duperry was ‘permanently disabled’ and therefore could not return to work.

Because the doctors both filled out additional information regarding what Duperry could perform – such as sitting, standing, etc, there seemed to be some confusion with their reports. Therefore, Cigna’s case manger Melissa Graham, sought input from a nurse case manager. Cigna’s nurse case manager contacted Dr. Patel who explained that Duperry was disabled from fibromyalgia, rheumatoid arthritis and that she suffered from achiness and other symptoms. He stated that her rheumatoid arthritis was under control at that point, but that she was still unable to return to work.

Based upon a brief conversation with Duperry’s treating physician, Cigna concluded that Duperry did not have sufficient evidence to prove she was disabled. Duperry appealed the denial, and Cigna hired Dr. Levesque from Duke University Medical Center, to conduct a paper review of Duperry’s medical records. Dr. Levesque opined that Duperry is not disabled as the “the restrictions by Dr. Patel and Dr. Harris are not supported by the available information.” Duperry’s initial application for long term disability benefits was denied an her appeal was denied by Cigna on February 15, 2008.

On April 18, 2008 Duperry submitted a second appeal to Cigna, highlighting her recent approval of Social Security Disability benefits. On April 23, 2008, Cigna stated that they would not allow a second appeal as she had exhausted her appeals. Cigna could have easily avoided a lawsuit had they simply considered Duperry’s updated medical information.

Duperry then proceeded to take her case to court, in which Cigna continued to argue that Duperry’s disability was based upon subjective pain complaints and lacked objective evidence. In every report from Dr. Levesque, the medical conditions of Duperry were acknowledged, however the Dr. found none of the conditions to be disabling. Duperry claimed disability as a result of her chronic pain. During the courts review of the case, the judge stated, “There is no limitation that a disease cannot be disabling on the basis of pain or other self-reported, subjective symptoms alone.”

The court looked at Cigna’s basis for denial,  Dr. Levesque’s statements, including the “lack of physical findings associated with this diagnosis.” The court maintains that a disability can exist although there is no objective evidence of a disability. The pain alone can be enough for an individual to be considered disabled and with her Fibromyalgia, Duperry was.

The court reversed Cigna’s denial of long-term disability benefits and ordered Cigna to pay her disability benefits and all related court costs.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.

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Walter Pettway was employed with ADP (NASDAQ: ADP), as a principal consultant, beginning in 1994.  Mr. Pettway’s job required him to travel the United States helping large corporations with computer processes.  In the 1970’s, Mr. Pettway had undergone a cervical fusion at the C6-7 level and at the C5-6 level in 1999.  In the summer of 2002, Mr. Pettway suffered a fall which aggravated his condition, so that he experienced issues with his neck, lower back, left arm, right and left leg weakness and numbness in his fingers.  In October 2002, Mr. Pettway began treating with and orthopedic surgeon, Dr. Ragab.

Mr. Pettway underwent a cervical discectomy and fusion from C3 to C5 with an allograft and placement of anterior instrumentation on January 21, 2003.  Because of continued finger numbness and neck pain, Mr. Pettway underwent another surgical procedure to remove the hardware on June 24, 2003.  Continued pain led Mr.Pettway’s orthopedic surgeon to suggest his pain and numbness was a result of scarring from past surgeries.

On January 20, 2003, Mr. Pettway applied for long-term disability benefits with Prudential as outlined in the plan he was part of with his workplace.  He claimed disability for the recent cervical issues, pain and numbness as well as a history of diabetes and high blood pressure. Submitted with the disability claim was a statement of Dr. Ragab, indicating that the patient had been diagnosed with cervical spondylosis and herniated nucleus pulposus.  Prudential initially approved Pettaway’s claim for disability benefits.

Disability benefits were received until December 1, 2003 because Prudential stated that Mr. Pettway was no longer qualified to receive them.  At this point with the policy, Mr. Pettway could only be considered disabled if he were not able to perform the duties of any job as opposed to only the duties of his job.  Along with an appeal on November 25, 2003 Mr. Pettway submitted a statement from Dr. Ragab on December 5, 2003, stating that Mr. Pettway was, “unable to perform the duties of any gainful occupation which he is reasonably fitted by education, training and experience.”

A Prudential-initiated independent medical exam by Dr. Thomas Cullom, a neurological surgery specialist, was scheduled on January 7, 2004.  Dr. Cullom concluded that Pettway was unable to perform the duties of his own current occupation.  Prudential reinstated benefits on January 22, 2004.  Multiple attempts to perform surveillance on Mr. Pettway happened between February 2004 and November 2007.  At one point, Prudential had video of a man they thought was Mr. Pettway.  However, it was proven not to be and those videos were disregarded.  There was one video of Mr. Pettway driving to a car rental location, placing two bags in the car and driving for an hour.

Another independent medical examination was scheduled with Dr. Jo Lynn Polk, on November 16, 2007.  After examining Pettway, reviewing his medical records, and watching the surveillance video of Mr. Pettway, Dr. Polk concluded that the patient’s, “self-reported functionality is not consistent with the activities noted on the surveillance.”

Other claims by Dr. Polk include, "(1) although he claims his left hand is weak, there was no atrophy of his left hand muscles; (2) although he says he has numbness in his left hand, there was only a slight sensory deficit which would impart minimal impaired function of the left hand; (3) although he says he can sit for only 30 minutes at a time, he sat on the examining room table for one hour during my interview; and (4) although he says he needs assistance standing and wiping himself after bowel movements, during my evaluation he demonstrated independence with standing after sitting and had adequate right shoulder internal rotation to wipe himself after bowel elimination."

As far as standing without assistance, Dr. Polk repeated only what a nurse relayed to her – these observations were not made firsthand.

Prudential had an in-house physician, Dr. Day, review Dr. Polk’s report and he concluded, “I would agree with the conclusion Dr. Polk noted that the claimant has sustainable work capacity at least at a sedentary level. There were several inconsistencies in the physical examination by Dr. Polk.”

In another appeal, Mr. Pettway submitted letters from three physicians (Dr. Ragab, Dr. Cullom and Dr. Bouldin), which disagreed with Prudential’s findings.  Prudential denied benefits and stated in a letter sent June 11, 2008 that Mr. Pettway has the functional ability to perform duties of jobs other than his own, which he is well-trained and qualified for.

In the United States District Court for the Southern District of Mississippi, Hattiesburg Division, it was found that Prudential completely ignored irrefutable evidence of Mr. Pettway’s condition by his treating physicians.  Instead they relied on Dr. Polk’s assessment, a physician who saw him for less than an hour.  The video evidence was disregarded, both because Prudential had been unsuccessful at surveying Mr. Pettway most of the time and had blundered in their attempts to do so and because nothing in the videos suggested that Mr. Pettway was able to perform the duties of any job with reasonably continuity.  Because of this, the court ordered Prudential to reinstate Mr. Pettway’s long term disability benefits.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.

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In February of 2006, Mrs. Lanoue was a table games floor person for the Mohegan Tribal Gaming Authority and had been since October of 1997. She was covered under the long-term disability plan issued and funded by Prudential Insurance Company of America (NYSE:PRU). In April of 2006, Mrs. Lanoue filed for long-term disability, claiming to have chronic pain, fatigue and fibromyalgia. Her claim included an employee statement and an attending physician’s statement (APS) from rheumatologist, Dr. Sandeep Varma.

On August 1, 2006 Mrs. Lanoue submitted a comprehensive claimant statement where she complained of fibromyalgia, chronic pain and fatigue. The initial claim was denied, and Mrs. Lanoue appealed in October of 2006 through Prudential’s appeal system. With her appeal, she provided several medical records, including an evaluation completed by Dr. Varma stating that Mrs. Lanoue was tender at 18 trigger points associated with Fibromyalgia and experienced a ‘self reported pain disability’ indices ranging from eight to ten on a one to ten scale of pain.

Prudential then referred the case to an internist and rheumatologist, Dr. Paul Howard – an independent medical reviewer. It was Dr. Howard’s conclusion that Mrs. Lanoue suffered from a chronic pain syndrome consistent with Fibromyalgia, but that it “impart[s] no functional impairment.” He stated further that “The presence of any trigger point tenderness does not translate into a functional loss in the absence of corresponding findings of functional deficits. Her complaints of pain are self reported and are not substantiated by any clinical or diagnostic findings from any of her medical providers.”

Based on Dr. Howard’s medical file review, Prudential denied Mrs. Lanoue’s first appeal on January 10, 2007. In July of 2007, Mrs. Lanoue appealed the decision again, submitting additional medical records and statements from Dr. Varma. Dr. Varma addressed Dr. Howard’s statements, replying that the debilitating fatigue and pain in Mrs. Lanoue’s medical records were “not addressed by Dr. Howard, yet in my opinion, they are the very things that would interfere with her ability to function in a work environment.” Dr. Varma also stated that in his opinion, Mrs. Lanoue was unable to stand on her feet long enough in order to perform the job, and also that her fatigue and ‘brain fog’ would prevent her from properly supervising.

August 3, 2007, Prudential denied Mrs. Lanoue second appeal, relying heavily on statements in Dr. Howard’s report. Having exhausted all of her appeals, Mrs. Lanoue filed a lawsuit seeking her long-term disability benefits. she took her case to the While Prudential based their case on Dr. Howard’s examination of the records and claimed that Mrs. Lanoue did not show enough signs of physical limitation in order to qualify for disability, Judge Margolis of the United States District Court for the District of Connecticut disagreed with Prudential. Judge Margolis concluded that Prudential failed to consider factors relevant to Fibromyalgia as well as the effect it has on the claimant’s ability to work properly.

Dr. Varma supplied medical charts showing tenderness in 18 of 18 trigger areas. If Dr. Howard were correct, then patients with Fibromyalgia – no matter how debilitating – could not be considered disabled unless some other form of physical issue were shown. However, the court maintains that pain and chronic fatigue are disabling on their own – without the need for further physical evidence. The court weighed the decision as to whether or not Prudential looked at all factors concerning Mrs. Lanoue and her medical records, and with that decision in mind, the court ruled for Mrs. Lanoue. The decision reinforces the fact that patients can be completely disabled through pain from Fibromyalgia and other diseases alone – without the addition of other physical signs.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.

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Individuals who pay for disability insurance premiums hope to be able to rely on the disability benefits if they are ever unable to work for any extended period of time. However, many times these employees’ claims are denied without any reasonable basis for denial. As in the case below, it is often abusive claims handling tactics by disability insurance companies that leads to disabled individuals being denied their benefits and forced to try and support their families in any way that they can.

John E. McCauley vs. First Unum Life Insurance Company (“Unum”)

Mr. John McCauley was a senior vice president for Sotheby’s Service Corporation when he was diagnosed with colon cancer in 1991. Unable to perform the duties of his occupation, McCauley submitted a claim for long-term disability benefits with Unum in 1994.

First Unum Life Insurance Company denied McCauley’s long-term disability claim in 1995, and stated they did not believe that his medical condition should prevent him from working. In 1996 he was also denied long-term benefits from a conversion policy he had purchased from Sotheby’s. McCauley filed an appeal with Unum and submitted additional medical support from his treating physician. McCauley’s physician explained that the combination of the cancer and the chemotherapy treatments prevented McCauley from being able to work.

First Unum Life Insurance Company disregarded this additional medical information, despite the fact that Mr. McCauley was clearly and without a doubt suffering from disabilities beyond his control. Mr. McCauley was left sick, without his disability insurance benefits and with no way to work and support his family. McCauley filed a lawsuit against Unum in the New York Federal District Court, however the court entered a decision in favor of Unum.

The Appeals Process and How First Unum Continued to Deny Mr. McCauley of His Rightful Benefits

After losing his case at the lower court level, McCauley appealed the lower court’s decision to the New York Second Circuit Federal Court of Appeals. The appellate court reversed Unum’s denial of benefits and found on December 24, 2008, “powerful evidence that First Unum’s denial of McCauley's appeal was arbitrary and capricious.” The appellate court took into account “First Unum’s well-documented history of abusive tactics,” and remanded the case to the lower court, with the direction to find in favor of Mr. McCauley and to calculate the benefits owed him.

The Appellate court specifically stated the following with regard to Unum:
“[W]here an insurance company administrator has a history of biased claims administration.” First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges. A district court in Massachusetts wrote that “an examination of cases involving First Unum . . . reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations and other unscrupulous tactics.” Radford Trust v. First Unum Life Ins. Co., 321 F. Supp. 2d 226, 247 (D. Mass. 2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir. 2007).

That court listed more than thirty cases in which First Unum’s denials were found to be unlawful, including one decision in which First Unum’s behavior was “culpably abusive.” Also, First Unum’s unscrupulous tactics have been the subject of news pieces on “60 Minutes” and “Dateline,” that included harsh words for the company. First Unum has fared no better in legal academia. See John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev. 1315 (2007).

In light of First Unum’s well-documented history of abusive tactics, and in the absence of any argument by First Unum showing that it has changed its internal procedures in response, we follow the Supreme Court’s instruction and emphasize this factor here. Accordingly, we find First Unum’s history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payer in denying McCauley’s claim for benefits.”

While Mr. McCauley finally received the justice and benefits he should have been entitled to all along, he suffered through 13 years of agony, fighting, and humiliation before he was finally paid disability benefits by Unum. Through the unreasonable denials and delays of Unum, Mr. McCauley was made to suffer before he was able to continue with his life, receiving the disability benefits he was entitled to. As a disability insurance attorney that represents disability insurance claimants throughout the country, I can tell you that claim denials happen all too often. However, more court case endings like McCauley’s will continue to expose the conduct of certain disability insurance companies, and hopefully prevent other disability claimants from experiencing unreasonable claim denials.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.

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Karen Bloom was a partner and doctor specializing in physical medicine and rehabilitation at Rehabilitation Associates in Louisville, Kentucky. In 1999, she was diagnosed with Multiple Sclerosis (MS). In 2002, she decided to perform most of her work on an outpatient, rather than inpatient basis.

At the beginning of 2004, Dr. Bloom became unable to continue working full-time for Rehabilitation Associates because of her MS. She subsequently transitioned into part-time work and filed a claim in March 2004 for long-term disability benefits under the group policy provided by Hartford through her employer since 2002.

On September 21, 2004, Harford denied Dr. Bloom’s claim. In its denial, Hartford claimed that Dr. Bloom had a pre-existing condition, based on a date of disability of December 1, 2002. Through her attorney, Dr. Bloom appealed the denial. While admitting that she had a condition that existed prior to the effective date of the policy (October 2, 2002), Dr. Bloom’s position was that she became disabled after the 365-day elimination period had run, since she had claimed a date of disability in 2004, and thus was still entitled to coverage under the policy. Hartford’s position was that when Dr. Bloom transitioned from inpatient to outpatient work, she did so because of her MS, and thus had reduced hours in 2002 because of her condition.

Hartford contacted Dr. Bloom’s doctors, who agreed that she was disabled, but not until 2004. Despite the full support of her doctors, Hartford denied her appeal on July 8, 2005. In its denial letter it recited the same incorrect information it had relied upon in its previous denial. In response, Dr. Bloom filed suit in Federal Court. The federal court granted summary judgment in favor of Dr. Bloom after concluding that Hartford’s decision was arbitrary and capricious because it had relied on circumstantial evidence of her disability – work records and salary reports – rather than the medical records that existed between Hartford’s determined date of disability and Dr. Bloom’s claimed date of disability. Hartford appealed the trial court’s decision to the Sixth Circuit Court of Appeals.

On appeal, the decision to award benefits to Dr. Bloom was upheld. However, the court ordered that Hartford conduct the appropriate evaluation as to the true date of disability and to determine the amount of benefits owed to her.

From a practical standpoint, this case highlights two important points. One, it is vitally important to have an attorney involved in filing a claim as soon as possible. Had an attorney been involved at the outset at the filing of the claim, Dr. Bloom could perhaps have avoided leaving the door open for Hartford to deny her based on a pre-existing condition. Two, while Dr. Bloom won her case, because of the decision on appeal she is still subject to the whims of Hartford in picking a date of disability and determining the benefits that she is owed. Ultimately, she may have won the battle for entitlement to benefits, but lost the war, since Hartford still controls her date of disability and how much money she will receive under the disability policy.

See Bloom v. Hartford Ins. Co., No. 07-6374 (6th Cir. Jul. 21, 2009).

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Many companies offer short and long-term disability insurance coverage to protect a portion of an employee’s monthly income in the event the employee is unable to work as a result of a sickness or injury. Employees pay the premiums for this insurance on a monthly basis so they’ll have something to fall back on if they ever become sick or injured. Of course, many individuals have a sense of security because of this. However, most employees are unaware that once a claim for disability benefits is submitted, the disability insurance company has a “structural conflict of interest”, as it is usually the long-term disability insurance company that both administers and pays any approved claim. This structural conflict is significant as a claim denial allows the insurance company to keep the money for itself and increase its profits. Fortunately for disability claimants, the courts are required to consider this structural conflict of interest as one of many potentially bias factors that inappropriately motivate a disability insurance company to deny disability benefits.

As a disability insurance attorney that has handled thousands of claims against every major disability insurance company, I am constantly trying to educate potential claimants about the tactics of disability insurers. A recent case is a victory for disability policyholders as it exposed the “signs of bias” exhibited by Hartford Life and Accident Insurance Company throughout its decision making process.

Disability Claim History

Robert Montour worked as a telecommunications manager for Conexant Systems for approximately 37 years. He was insured under Conexant’s group disability plan, which was funded and administered by Hartford Life & Accident Insurance Company. In July 2003, Montour filed for disability due to acute stress disorder, and his claim was approved in January 2004 following the plan’s 180 day elimination period. In approximately June 2004, he began treating with an orthopedic surgeon and he was diagnosed with degenerative changes to his right knee and back. Montour underwent arthroscopic surgery on his right knee in October 2004. In September 2004, Montour notified Hartford of his physical disabilities. Montour completed psychotherapy treatment in April 2005 and his primary disabling condition was back pain which was documented by his orthopedic surgeon during appointments in April 2005, December 2005 and May 2006.

Montour’s orthopedic physician maintained that he was physically unable to work in any occupation because of back and knee pain and placed the following restrictions on his physical activities:
 

1) no sitting for more than 15-20 minutes at a time;
2) no prolonged walking;
3) no standing greater than 15 minutes at a time;
4) no lifting or carrying greater than 10 pounds;
5) no work at or above shoulder level;
6) no moderate pushing activities;
7) no moderate pulling activities; and
8) no driving greater than 30 minutes.

Hartford’s Calculated Plan to Deny Disability Benefits to Montour

Although Hartford had been paying Montour since January 2004, in November 2004 they began to orchestrate their plan in order to deny future disability benefits.

Stage 1: In November and December 2005, Hartford hires two private investigating companies to conduct video surveillance on Montour over the course of four nonconsecutive days. During the surveillance, he was observed making two twenty minute trips to pickup his grandchildren from school and one trip of about 2.5 hours conducting errands at various stores. He was also observed to be away from his home on two occasions for about an hour and forty minutes. During this time he was observed bending once at the waste and picking up a small bag of medication.

Stage 2: In March 2006, a Hartford investigator conducted a 4.5 hour personal interview with Montour at his home, during which time Montour reviewed Hartford’s video surveillance and explained why he cannot work. The investigator documents his observation of Montour and documented Montour’s complaints of pain during the interview.

Stage 3: In May 2006, a Hartford nurse case manager submitted letter’s to Montour’s treating orthopedic and primary care physician surmising that Montour was capable of performing “sedentary to light” work and soliciting their agreement. Montour’s orthopedic doctor returned the letter indicating that he disagreed with Hartford’s conclusions.

Stage 4: In July 2006, Hartford hired Dr. Brown, a consulting physician to conduct a file review of Montour’s medical records for the 2003-2006 period, including X-rays and MRIs of Montour’s back, pharmacy records, Hartford’s video surveillance and the personal interview report. Dr. Brown acknowledged that medical evidence supported Montour’s chronic pain but found that Montour nevertheless was capable of working full-time with modest restrictions, such as changing positions every thirty to forty-five minutes.

Stage 5: In July 2006, Hartford hired a vocation rehabilitation expert to complete an Employability Analysis Report, which evaluated Montour’s experience, qualifications, and the physical restrictions indentified by Dr. Brown. The expert concluded that Montour was capable of working in a high-level managerial capacity in five different fields.

Stage 6: In August 2006, Hartford terminates Montour’s benefits and advises him that he no longer meets the policies definition of disability.

Montour Takes Action Following His Denial of Disability Benefits

Following the denial of disability benefits, Montour’s disability plan required him to submit a written appeal to Hartford with any additional information that would further support his claim. Montour hired a vocational expert and submitted a vocational appraisal report stating that he was “not employable in any setting”. Furthermore, he submitted information showing that the Social Security Administration (SSA) considered him to be totally disabled. In response, Hartford once again hired a different consulting physician to review Montour’s records and the additional evidence submitted. The new Hartford doctor once again concluded that the activities depicted on the surveillance videos exceeded the activity requirements of a sedentary job and he could therefore perform a sedentary job. In February 2007, Hartford affirmed their previous decision to deny disability benefits.

In June 2007, Montour filed a lawsuit against Hartford in the California United States District Court seeking payment of his long-term disability benefits. In April 2008, the district court entered a judgment in favor of Hartford and concluded that although Hartford had a structural conflict of interest as both the administrator of the insurance policy and payor of benefits, it did not abuse its discretion in determining that Montour failed to provide sufficient evidence to demonstrate disability within the meaning of the policy.

Following his defeat at the district court level, Montour submitted an appeal to the United Stated Court of Appeals For the Ninth Circuit. In September 2009, the appellate court reversed the district court decision and held that Montour is entitled to long-term disability benefits as Hartford abused its administrative discretion and was “improperly motivated” by its conflict of interest. The appellate court concluded that Hartford abused their discretion and wrongfully denied benefits for the following reasons:

1) Hartford overstated and over relies on the video surveillance of Montour;
2) Hartford’s nurse case manager took an advocacy position in her letter’ to Montour’s physicians soliciting their agreement with her lack of disability conclusion;
3) The doctors hired by Hartford failed to appropriately review the video surveillance;
4) Hartford failed to present evidence on its part to “assure accurate claims assessment” in order to ensure a neutral review process.
5) Hartford conducted a “pure paper” review rather than conduct an in-person medical evaluation of Montour;
6) Hartford failed to consider SSA’s determination of disability when it was Hartford that required Montour to apply for social security disability.

While Mr. Montour finally won his entitlement to disability benefits, it is an extreme injustice that he had to battle Hartford for more than three years without receiving payments. In many cases, the involvement of a disability insurance attorney from the initial submission of an application for benefits can prevent a disability insurance carrier from implementing and executing a calculated plan to deny disability benefits.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of the firm Dell and Schaefer (www.diattorney.com). He has worked with thousands of claimants on long-term disability cases. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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As an attorney for clients who go up against disability insurance companies all over the country, I can tell you that the insurance contracts are often full of legalese and gibberish that most individuals don’t understand. Unfortunately, most individuals don’t understand even the communication they receive from the disability insurance companies, such as why their claim has been denied. According to the outcome of the case below, even a judge may find communication from the insurance company difficult to understand.

Nancy Love vs. National City Corporation Welfare Benefits Plan

Nancy Love worked for National City Corporation for two decades before she was forced to stop working. When Mrs. Love began experiencing dizziness, fatigue and blurred vision, she visited the doctor and was diagnosed with multiple sclerosis. Mrs. Love applied for and received short term benefits from the National City Corporation Welfare Benefits Plan, underwritten by Liberty Mutual. Short term disability benefits were for 18 months, and when Mrs. Love benefits expired, she applied for and received long-term disability benefits.

Mrs. Love received the disability benefits for three years before Liberty Mutual determined that she was no longer what the plan considered to be ‘disabled.’ According to the policy, an individual is considered disabled for the first two years if he or she is unable to perform their job but after the first two years, they’re only considered disabled if they’re unable to perform any job, including a job they could take classes and qualify for, etc.

Liberty Mutual Hired Physicians to Discredit Several of Love’s Attending Physicians

To first deny Love for any more disability benefits, Liberty Mutual relied on Doctor Jonathan Sands. Dr. Sands reviewed Love’s medical file and determined that although she most likely did have multiple sclerosis, there was no clinical attack noted, and that “no objective limitations in functional ability or capacity were noted.”

This report was sent to Love’s physician, who did not respond. Soon after, Mrs. Love’s benefits were terminated due to Dr. Sands’ assessment and Mrs. Love’s inability to provide information which supported her assertions that she was unable to perform any job due to her disability. Mrs. Love appealed Liberty Mutual’s denial, turning over more medical records, including a functional capacity evaluation, a vocational evaluation and a physical therapy evaluation. The next physician Liberty Mutual had to examine the case was Dr. Gerald Winkler. Dr. Winkler stated, after reviewing the files, that Mrs. Love was not totally disabled and could perform certain tasks, such as answering telephones, working at computers or dealing with the general public. Love’s appeal was denied.

Failure to Explain Sufficiently

Love filed a lawsuit in the Illinois Federal District Court against the insurance company, citing ERISA law and claiming:

- That the insurance company did not consider all medical evidence provided to them by Love, and;

- The insurance company did not fully explain why they had denied Mrs. Love her benefits.

The Illinois District Court ruled in favor of Liberty Mutual, pushing Love to appeal their decision to the Seventh Circuit Court of Appeals. Since ERISA requires all insurance companies who deny policyholders to “set forth the specific reasons for such denial, written in a manner calculated to be understood by the participant,” the appeal court felt that Liberty Mutual had not done so. The court found that neither the termination of benefits letter nor the appeal denial letter properly explained to Love why she would no longer be receiving disability benefits.

Another thing Dr’s Sands or Dr. Winkler did not address was the contradiction they held with Mrs. Love’s attending physicians. Every physician that personally examined Mrs. Love felt that she was not able to work at any job, and that she was unable to perform even small tasks for more than a few hours at a time. Dr. Sands and Dr. Winkler did not address those issues. They did not go over the statements or medical tests and explain why they weren’t credible or able to be used as proof of Mrs. Love’s disabilities. Therefore, the court found that there was insufficient explanation on this part as well.

The case was remanded to Liberty Mutual with requirements to fully review the case of Mrs. Love and determine her eligibility for disability benefits in the fairest of ways. While this is a victory for Mrs. Love, the truth is that she should not have had to fight so long in order to get what she deserved in the first place. With as many physicians’s reports as Mrs. Love had all stating her disability made it unable for her to work  she should not have had to fight so hard for what she deserved, but she did. Perhaps, the ruling in this case will make future cases easier for Liberty Mutual policyholders who are unable to work and have credible medical support.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of the firm Dell and Schaefer (www.diattorney.com). He has assisted thousands of claimants with their claims for long-term disability benefits.. He can be reached at 888-SAY-Dell or gdell@diattorney.com

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Many employees rely on disability insurance benefits if they have been injured or have developed a sickness which prevents them from working. Disability insurance provides individuals with a percentage of his or her typical salary until the employee is able to return to work or turns age 65. However, what employees aren’t usually aware of is that as soon as disability benefits start, the disability insurance company wants them to stop  and they will use a wide range of tactics to make that happen.

As an attorney who has worked on thousands of long-term disability claims against major insurance companies around the country, I can tell you that insurance company tactics can involve undercover investigations, fact-twisting, and even having bias doctors subjectively determine that you are not disabled as in a recent disability insurance case.

Graciella Saffon vs. Wells Fargo

Graciella Saffon, an employee of Wells Fargo Bank, had suffered from degeneration of her cervical spine for several years. This condition was confirmed by several MRIs, X-rays and other medical information. In 2001, Saffon was in a car accident which aggravated her neck condition, leading her to quit her desk job and apply for long-term disability benefits with MetLife. After a certain amount of time, the insurance company began paying Saffon long-term disability. However, a year after she began receiving these long-term benefits, MetLife stopped paying them, informing her that she no longer met the terms of disability.

How MetLife Worked to Deny Mrs. Saffon Her Long-Term Disability Benefits

MetLife hired two different doctors to look over Saffon’s medical records, resulting in the following statements.

The first physician, Dr. Thomas, stated that “Saffon’s file lacks clear sequential, detailed and objective clinical information, which would completely preclude Ms. Saffon from an attempt to return to work.” After Dr. Thomas’s file review, MetLife stopped the long-term benefit payments. Saffon appealed MetLife’s denial and provided an updated cervical MRI with additional medical records. A letter from her neurologist, Dr. Kudrow, was also included, stating that she had undergone various pain treatments which were ‘without sustainable benefit’ and that she was unable to remain in a sitting position for more than a few minutes at a time.

Following the submission of the Appeal, a second doctor, Dr. Menotti, looked over Saffon’s records and claimed that her reports of headaches and chronic pain syndrome were not enough to keep her from working. MetLife then stated that Saffon had not supplied them with a functional capability evaluation so they were unaware of her ability to function at work. The appeal was denied.

Mrs. Saffon sued MetLife in California District Court, seeking back-payment of her disability income benefits. The District Court affirmed MetLife’s denial, and Mrs. Saffon continued her battle for disability benefits by filing an appeal with the 9th Circuit Court of Appeals. After reviewing the case, Judge Kozinski determined that MetLife had not given Saffon’s case a full and fair review for the following reasons:

“Its [MetLife] communications with Saffon and her doctors are hardly a model of clarity; they certainly do not explain 'in a manner calculated to be understood by the claimant' what Saffon must do to perfect her claim.” According to an earlier case, Booton vs. Lockheed Medical Benefit Plan, the insurance company must clearly communicate to the policyholder why their claim is being denied and what they must do in order to perfect it. Judge Kozinski was not convinced that this had happened in Mrs. Saffon’s case.

Information in Mrs. Saffon’s medical records was ignored or not considered fairly.MetLife’s complaint that they were not provided with a functional capability evaluation was not followed by a chance for Mrs. Saffon to provide that information to them.

Judge Kozinski remanded the case back to the California District court, requiring that they give a full and fair look at Mrs. Saffon’s case taking into account the flaws in their review process and the ERISA laws. This was a victory for Ms. Saffon, who was given a second chance to show that she most certainly did deserve disability benefits due to her inability to work. However, one has to note that Mrs. Saffon did everything she could to show this in the first place, and had MetLife acted reasonably, Mrs. Saffon would not have had to go without her disability benefits or go through a painful and drawn out battle in court at all.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of the firm Dell and Schaefer (www.diattorney.com). He has assisted thousands of claimants with their claims for long-term disability benefits. He can be reached at 888-SAY-Dell or gdell@diattorney.com
 

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Recently, the California Department of Insurance settled with LINA, a daughter company of CIGNA to the tune of $600,000. What was this penalty for? According to California Insurance Commissioner Steve Poizner, LINA was apparently ignoring certain claims that might have been valid disability claims.

Between January 1, 2005 and December 31, 2007 LINA improperly handled insurance claims. It seems that not only did LINA deny many cases before ever receiving the medical proof those clients were entitled to their insurance payouts but LINA ignored important information that may have reversed the denied claim on a number of accounts.

This means that individuals who had been paying their insurance premiums incase they were ever labeled ‘disabled’ and were unable to work and care for their families were now left with nothing to turn to. Even if their claims were 100% valid and legitimate, LINA may have simply turned a blind eye to their case. For this, LINA has paid the penalty and has agreed to reopen each of the cases reviewed between January 2005 and December 2007 to determine whether any of those cases should have been approved when they were denied.

LINA has a completely new set of standards they must use when reviewing these cases, however, policyholders have a right to be more than a little worried or upset. Because contracts are complicated, policyholders need to have the proper representation to help them receive the benefits they deserve. Often times, because contracts are so complicated, insurance companies have a multitude of chances to slow down the process or pause it completely.

Individuals who were denied by LINA or CIGNA between January 1, 2005 and December 31, 2007 (must have letter of denial with LINA or CIGNA logo on top) should seriously consider hiring an attorney to ensure that their best interests are being taken into account. Normal individuals are not trained in contracts and law, so most people will have a difficult time understanding the many facets and confusing twists of a contract. An attorney puts normal individuals on the same level with insurance companies who have studied contracts and laws so that a fair decision can be made.

According to long-term disability attorney Gregory Dell, “Disability Income policies are drafted with ambiguous and confusing contractual terms. This provides insurance companies with multiple reasons for delaying and denying disability income benefits.” This means that while normal people may have a difficult time understanding contracts, attorneys can easily explain the intricacies and help their clients and keep insurance companies on track to a payment of benefits.

By hiring an attorney, individuals can ensure that their best interests are being taken care of. The policyholders who are clients of CIGNA/LINA and will be facing reassessment should consider legal representation in order to ensure that they receive what is rightfully theirs. This could result in some clients being paid the benefits that they were originally denied, and in some cases, with interest. Using the new standards, LINA must evaluate each and every case that was denied between those two years, and the individuals who have an attorney are more likely to prevail.

If your claim was wrongfully denied by CIGNA/LINA contact Attorneys Dell & Schaefer to discuss any potential remedies you may have. Dell & Schaefer has assisted thousands of claimants with their claims for long-term disability benefits. Call us at 888-Say-Dell or visit diAttorney.com for more information.
 

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Disability Insurance Policies are complicated legal documents that are unfortunately difficult for most individuals to properly understand. While a disability policy is intended to be drafted so that a claimant will clearly understand all of the terms and conditions, a claimant’s misunderstanding can jeopardize a claimant’s right to disability benefits. A recent disability case reveals the importance of complying with a disability policy’s statute of limitations provisions. A statute of limitations is the period of time in which a lawsuit may be filed. Failure to file a lawsuit within the statue of limitations will result in dismissal of a lawsuit. The steps that must be taken in order to obtain disability benefits are not always contained within the disability policy.

Scharff vs Raytheon Company

Donna Scharff was an employee of the Raytheon Company, as well as a participant in both their short-term and long-term disability benefit plans. The plans, privately funded by the Raytheon Company, were administered by MetLife. When Scharff applied for short-term disability benefits and was denied, internal appeals took place before Raytheon gave Scharff their final decision  including a statement to refer to the summary plan description for more information on how to file a lawsuit.

The summary plan description (or SPD) had been provided to each employee involved with the plan and included statute of limitation information in the ‘Disability’ section under ‘Claims Appeal Procedure.’ When Scharff received her letter of denial, the administrator of the plan did not specifically say to check the statute of limitations provided in the SPD.

Mrs. Scharff filed suit against Raytheon Company, with the goal of receiving both her short term and long term disability benefits. However, the Raytheon Company stated that Mrs. Scharff’s lawsuit was untimely and moved to dismiss the case, as the ‘one year’ statute of limitations had already passed by 20 days. Mrs. Scharff said that her untimely filing should be excused, as she was not aware of the statute of limitations  and that the company failed to point it out to her in the denial letter.

The District Court disagreed with Mrs. Scharff and dismissed her case, because of the fact that Scharff filed her lawsuit 20 days after the one year statute of limitations.

Appeals

Mrs. Scharff appealed the decision made by the District Court, and the appellate court felt as if MetLife did not have a duty to inform her of the statute of limitations in their denial letter. The appellate court also felt as if the information in the SPD was fine where it was, because most individuals would not have trouble finding that information.

The appellate court stated, “A reasonable plan participant whose disability claim had been denied would proceed, naturally, to examine the information that appears under the large-typeface, bolded, and italicized heading, ‘Claims Appeal Procedure’… the average participant in the Plaintiff’s position would have located and understood the one year deadline in the SPD.”

The court ruled that:

- The placement of the one year statute of limitations information in the SPD was not intentionally deceptive and that most individuals would have found and understood it.
 

- The placement of the one year statute of limitations did not violate guidelines set forth by ERISA or other laws regarding the clarity of contracts.

Mrs. Scharff’s lawsuit would not have been dismissed had she seen and understood the statute of limitations however, this is another example of how easy it is to misunderstand the language of disability insurance policies.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of the firm Dell and Schaefer (www.diattorney.com). He has assisted thousands of claimants with their claims for long-term disability benefits.. He can be reached at 888-SAY-Dell or gdell@diattorney.com

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Our client, a pharmaceutical sales representative, was recently denied benefits by her carrier, Cigna, despite clear medical documentation of several severe medical problems that prevent her from performing the duties of her occupation.

Once Attorneys Dell & Schaefer had been retained, we discovered that Cigna had based its denial of disability benefits on three pieces of paper from only one of her three treating doctors. Cigna determined that our client’s vasculitis, idiopathic peripheral neuropathy, fibromyalgia, and chronic fatigue were not severe enough to support her claim for disability benefits.

Attorneys Robert Kerr and Gregory Dell at Dell & Schaefer submitted an Appeal to Cigna containing all of our client’s medical records in an effort to secure our client’s benefits without having to pursue a lawsuit. This information included notes from her primary care physician, the hospital where she received chemotherapy, and her rheumatologist. The rheumatologist was and continues to be the specialist primarily responsible for her care and treatment of the disabling conditions.

Despite the clear evidence of disability in the medical records and clear statements by her doctors in support of her claim for short-term disability benefits, Cigna denied the Appeal and determined that our client is not entitled to disability benefits. As a result of this disability denial, Attorneys Dell & Schaefer filed a lawsuit against Cigna within 2 days of the final short-term disability denial. Additionally, Attorneys Dell & Schaefer continues to work with the client in order to submit her application for long-term disability benefits.
 

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During the week of July 13, 2009, Attorney Gregory Dell spent several days in Portland, Oregon deposing multiple employees of The Standard Disability Insurance Company. Prior to taking the depositions, The Standard refused to make their employees available for deposition and instructed their attorney to file a motion preventing Attorney Gregory Dell from taking the depositions. The court received multiple motions and entered an opinion stating that our client has the right to take the depositions and The Standard must produce their witnesses. The Standard’s motion for attorney fees against our client was denied. It is obvious that the Standard did not want their claims handling practices exposed through deposition testimony.
Attorneys Gregory Dell and Cesar Gavidia filed a lawsuit in Federal Court, after The Standard denied our client long-term disability benefits. Our client, an invasive cardiologist, has been unable to work in his occupation as result of neck, back and shoulder problems. Our client purchased his long-term disability policy as a benefit offered through his membership in the Southern Medical Association. Our client has been unable to perform the duties of an invasive cardiologist due to the requirement that her wear a heavy lead apron during most of the cardiac surgeries he performs on patients. Our client’s claim is supported by his treating neurologist.
The Standard relies on the paper review of our client’s file by two neurologist in order to deny disability benefits. Moreover, while reviewing the claim, the Standard never bothered to take into consideration what percentage of our client’s occupational duties required him to wear a lead apron. During the recent depositions of The Standard employees, none of the employees had any idea how much a lead apron weighs, how long our client would need to wear the lead apron during a procedure, or specifics about the procedures that an invasive cardiologist performs. The Standard was of the opinion that our client should have no restrictions and limitations, and that the only reason he gave up his career as an invasive cardiologist was so that he could work as a chief medical officer for a medical tool manufacturer.
It is interesting to note that our client had a long-term disability policy with Unum Provident and the definition of disability during the first two year of benefits was almost identical to the definition of disability in the The Standard long-term disability policy. Unum Provident evaluated our client’s claim and determined that he was unable to perform his duties as an invasive cardiologist. Furthermore, Unum Provident’s outside neurologist reviewed our client’s medical records and opined that our client should not wear a lead apron and therefore would be prevented from working as an invasive cardiologist. During deposition of the Standard employees, they did not have any explanation as to how Unum Provident’s doctor could find that our client had restrictions and limitations, but The Standard’s doctors found that our client was perfectly healthy.
The Standard recently filed a Motion for Summary Judgment and basically alleged every possible defense they could think of, in hopes that something would stick. Attorneys Gregory Dell and Cesar Gavidia believe that the motion filed by the Standard is a desperate attempt to further their denial of long-term disability benefits. A response to the motion for Summary Judgment is currently being drafted and the jury trial is set for October 2009 in Federal Court.
 

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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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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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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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In 1989, The US Supreme Court declared that if ERISA plans contain language giving plan fiduciaries discretion to interpret the terms of the plans and to make benefit determinations, courts will generally yield to that discretion. As a result of this discretion, insurance companies were able to deny claims and there was very little that courts could do to reverse the decision of an insurance company. Throughout the past several years, many states have passed laws to ban discretionary clauses and the insurance industry has been fighting to keep the discretionary clauses. 

On March 18, 2009, the Sixth Circuit Court of Appeals affirmed a Michigan Statute promulgated in June 2007, which prohibited any insurance company or other entity from “issuing, advertising, or delivering to any person in the state of Michigan, including an employee benefit plan subject to ERISA, an underwritten policy or certificate that includes a discretionary clause.” See American Council of Life Insurers v. Ross, 558 F.3d 600( 6^th Cir. 2009).   Under the law in Michigan, disability insurance companies can no longer invest the plan administrator with unfettered discretionary authority to determine eligibility or to construe ambiguous terms of a plan. 

The elimination of the discretionary clause will entitle all disability claimants a De Novo review of their claim in Federal Court if their claim is denied by the disability insurance company. The elimination of discretionary clauses is a heavily litigated issue throughout the country and there are eight states (CA, CO, IL, ME, MI, MO, NJ, SD)   that have either ruled or have drafted laws that discretionary clauses are invalid. Utah has sought to significantly limit the impact of discretionary language.

Attorneys Dell & Schaefer are involved on a daily basis with challenging the validity of discretionary clauses in long-term disability policies.   We are continually lobbying Congress for a bill that will eliminate discretionary clauses in all employee benefit disability plans.

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The Second Circuit U.S. Court of Appeals has denied First Unum Life Insurance Co.'s request to reconsider a decision in which it found the company arbitrarily denied long-term disability benefits to a tax attorney with colon cancer.  First Unum, a unit of Unum Group (NYSE: UNM), filed the petition for rehearing with the New York-based federal appeals court in January, saying that the court "misapprehended key facts and law" (BestWire, Jan. 9, 2009). Attempts to speak with Unum Group to see if First Unum plans to appeal to the U.S. Supreme Court were not immediately successful.  According to the December 2008 decision, written by Circuit Judge John M. Walker Jr. for a three-judge panel, First Unum operated under a conflict of interest because it was both the claims administrator and payor of benefits.

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To hear company officials tell it Unum is emphatically on the mend, this after the disability insurer was wracked by scandal and losses earlier in the decade.

In 2005, Unum reached a costly settlement with attorneys general in 49 states over allegations of unfairly terminating or denying coverage to disabled clients. That was after a 60 Minutes exposé pilloried the company.

Its other big problem was in the profit department, the result of horribly underpricing policies sold to doctors, lawyers and other professionals. Those policies are now in "run-off" mode, with beefed-up reserves for claims, meaning they can die a slow but less costly death.

In fact, the Chattanooga, Tenn., company (ticker: UNM) has reported three profitable years, including 2007, when it said it made $679 million, or $1.91 a share, and 2008, when it said it earned $553 million, or $1.62. Unum's latest estimates call for profit of $2.44 to $2.55 a share for 2009, no small feat in these tumultuous times. With the stock around $10 -- well below book value of about $19 a share -- investors may be tempted to jump aboard the Chattanooga Choo Choo, as Unum is known in the industry. Our advice: Book a plane ticket or drive. If past is prologue, there could be unfortunate surprises down the tracks. Indeed, even the recent profit gains might not be all they appear to be.

Back in 2005 & 2006 Barron’s ran several negative articles on Unum, as the stock was trading in the low 20s. Among other things, the stories examined Unum's then-rogue culture, in which top-performing employees were given "Hungry Vulture" awards inscribed with the maxim "Patience, my foot...I'm gonna kill something." Those honors have been discontinued.

We also described several major "finite" reinsurance deals that the company had struck over the years. These purported to reduce claims losses, the largest cost item on any insurer's income statement, by getting the reinsurers to assume much of that burden. Yet the finite deals were, in effect, disguised loans, with Unum passing along agreed-upon premiums, reserves and profits to reinsurers in future years. Unum and other insurers pulled back from this practice after a regulatory crackdown in 2005.

But one problem still hangs over the company: a history of alarming setbacks. Unum Group has periodically reported large losses as a result of having to take mammoth reserve charges after several years of sprightly, but apparently illusory, earnings growth. Spectacular blow-ups occurred in 1999, 2003 and 2004, with annual losses of up $386 billion.

"Look, maybe Unum is operating in a more disciplined manner, as management has claimed over the past couple of years, but two years of good results isn't enough for me to completely trust them," says one analyst who is neutral on the stock. "I'll need another couple of years of good earnings without big write-offs before I'll completely buy in to the story."

One place in Unum’s financials where investors might want to look closely is the company's reserves for future claims. As insurance icon Warren Buffett points out, reserves in essence are self-graded exams allowing insurers, depending on their assumptions, to boost or punish earnings.

Here, Unum may have proven decidedly optimistic. This becomes apparent when one looks at a special reserve account called Incurred But Not Reported, for money set aside to cover claims that past experience tells insurers they will face even though the claims haven't yet been filed. Over the past six years, this account has fallen from 6.3% of Unum's total reserve (before mark-to-market adjustments) to 4.9% last year.

By paring this account, Unum has sharply boosted profit. The maneuver added $292 million to 2007's pretax earnings of $1.1 billion, while a smaller IBNR release in 2008 pumped up pretax income by $138 million, to $1.3 billion. Company officials attribute the IBNR releases and the generally improved insurance results across their product lines to a variety of factors: policy-premium increases, improved claims-management efficiencies, a purge of lower-margin business, and a better selection and mix of insurance risks.

The company further argues that the IBNR releases went into reserves for actual claims. But that is arguably a distinction without a difference: Without the IBNR money, earnings would be penalized directly by a beefing up of those reserves.

Investors also should remember that Unum is operating in a competitive environment in which premium boosts are difficult to come by. The company, likewise, operates at a distinct disadvantage to such disability insurers as StanCorp (SFG) and MetLife (MET) because of Unum's lower rating of claims-paying ability, as measured by industry arbiter A.M. Best.
The profit gains from cutting the IBNR have helped compensate for the disappearance of finite reinsurance. And there are signs that Unum may be carrying out other accounting maneuvers to burnish earnings.

Consider the company's allowance for doubtful accounts money set aside for when customers fail to pay premiums. In 2006 and 2007, Unum tapped this account for $16.5 million and $4.5 million, respectively, with those sums going straight to profit.

Last year, Unum drew down only $2 million from the allowance -- but it withdrew and added to earnings $7.3 million from a real-estate reserve account. Unum argues this was all the result of a better book of business than in the past.

Frequent accounting changes at Unum make tracking the company's year-to-year financial performance difficult. For instance, according to a footnote in Unum's fourth-quarter 2008 Statistical Supplement, the company was able to report $530.8 million in statutory, or regulatory, income in 2007 due to a new valuation system employed for its individual disability reserves. The change resulted in a $194 million gain in after-tax statutory income. That measure of income is closely watched by analysts because it is more conservatively calculated than earnings under GAAP.
Unum has operated in a conservative manner in at least one area its investment portfolio. As JPMorgan analyst Jimmy S. Bhullar points out in a recent report, the quality of Unum's $32 billion portfolio is better than that of many other life companies. Unum, for example, has no subprime securities and little in the way of non-government-guaranteed mortgage-backed and commercial real-estate risk.

Yet the company could have further investment charge-offs. More than 40% of its bond portfolio is rated triple-B or below, compared with its peer average of 23%, according to Bhullar. Also, the portfolio has nearly $2 billion in gross, unrealized losses that have been carried on the balance sheet for a year or more.

Unum claims those losses are the temporary result of swollen risk spreads in the bond market, rather than a measure of actual default risk. But given the length of time these losses have existed, Unum's accountants might insist that the securities be adjudged permanently impaired, resulting in a huge charge to earnings.

It is often said a picture is worth a thousand words; in this case, it is worth at least 200 words. Look at the nearby chart, which reflects activity in Unum's key group-disability business. Notice how the "benefit ratio" the percentage of each premium dollar eaten up by claims and administrative expenses -- traces a beautiful glide pattern lower, dropping about half a percentage point every quarter and two full percentage points each year.

Is this picture too good to be true? It is difficult to say. But look at the results posted by MetLife, operating in the very same business over the very same period. Its quarterly underwriting ratio jumps all over the place in what appears to be a random walk. Unum officials attribute MetLife's results to the fact that MetLife does business with bigger employers, which Unum contends have more volatile patterns of claims. But that seems like a stretch, at best.

In "short-tail" insurance businesses like auto, claim expenses are far harder to manipulate. The insurer knows exactly what the body shop is charging to repair the vehicle of one of its insureds.
But long-term disability payments are typically made over a period of years, and ultimate claims losses depend on a host of malleable assumptions, such as how long a claimant will be on disability before making a satisfactory recovery. In other words, disability insurers must bring more judgment to the table.

MetLife appears to accept the real world, with all its inherent volatility, while Unum prefers a picture of order and smoothed results. But in the end, pretty pictures are only that ...pretty pictures.
 

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NEW YORK, Feb 3, 2009- Unum Group said on Tuesday that net income fell sharply in the fourth quarter, hurt by investment losses, but operating earnings beat Wall Street expectations by a penny.

Unum, the largest long-term disability benefit insurer in the United States and Britain, said net earnings fell 74 percent to $41.8 million, or 13 cents a share, from $160.5 million, or 44 cents a share, in the year-earlier quarter.

Chattanooga, Tennessee-based Unum said it had $167.6 million in net realized investment losses, largely the result of writing down impaired investments.

Earnings from continuing operations, which analysts use to measure performance, were $209.4 million, or 63 cents a share, compared with $213.1 million, or 59 cents a share a year earlier.

Analysts, on average, had expected earnings of 62 cents a share, according to Reuters Estimates.

The company expects its earnings from continuing operations to be between $2.45 and $2.55 a share in 2009, shy of analysts' average expectation of $2.63 a share.

The company said it is looking for a new chief financial officer to replace Robert Greving, who is retiring later this year, according to a separate statement.

Gregory Dell, a disability income attorney with Attorneys Dell & Schaefer stated, "despite Unum's recent financial performance they have been actively pursuing lump-sum buyouts from individuals that are currently collecting long-term disability benefits."

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A federal jury in Boston found that Unum, the nation’s largest disability insurer, had committed fraud in some cases by requiring customers to apply for Social Security benefits even though it knew they were not eligible.

But the verdict, based on a sample of six claims, contained enough ambiguity to leave both sides declaring victory in the case, filed on behalf of the Social Security Administration. In a verdict returned Wednesday, the jury found that two of the disability claims had been fraudulent and two others had showed no evidence of fraud. The jury was unable to reach a decision on the other two cases.

Both sides had agreed to present a small sample to the jury to keep the lawsuit from bogging down in complexity. Unum processed almost 400,000 disability claims in 2007, and paid out more than $4 billion in benefits.

In the next phase, the two sides will seek a decision on what the sample reveals about Unum’s overall behavior, and the extent to which it harmed the Social Security program.

Jim Sabourin, a spokesman for Unum, said the finding that only two of the six claims involved fraud showed that the lawsuit was without merit.

“The jury rejected the claim that there was any systemic problem with the way Unum adjudicates its claims,” Mr. Sabourin said. He said Unum intended to appeal the part of the verdict that had found fraud.  Gregory Dell, a disability insurance attorney representing claimants nationwide,  commented that "it is unconsciable that UNUM continues to deny fraud after a jury has found them guilty".  Unum and most of the other long-term disability insurance companies routinely make claimants apply for social security disability when the disability carrier knows that claimant is not eligible.   

A spokesman for the Social Security Administration, Mark Hinkle, said the agency was monitoring the lawsuit but would not comment on it.

The lawsuit was filed under a federal whistle-blower statute that allows private citizens to sue on behalf of government programs if they believe they have evidence of fraud. The lawsuit is being tried in United States District Court in Boston.

The lawsuit is one of two federal cases contending that Unum and another disability insurer, Cigna, are forcing able-bodied people to repeatedly apply for Social Security disability benefits, under the threat that if they do not, their insurance payments will be cut. The Social Security Administration defines “disabled” more stringently than the insurance companies generally do, and many people who qualify for disability insurance benefits do not qualify for Social Security.

The lawsuits assert that sending claimants into the Social Security system allows Unum and Cigna to reduce their claims reserves, which in turn raises the insurers’ profitability.

Unum and Cigna say that referring claimants to Social Security is a standard practice in the industry and that there is nothing wrong with it.

The lawsuits assert that the referrals are clogging Social Security with questionable applications, and forcing taxpayers to pay needless processing costs. People whose applications are rejected are entitled to a review of their cases by an administrative law judge, and the administrative courts have a huge backlog.

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On June 19, 2008, the Supreme Court of the United States finally issued their opinion in the case of Wanda Glen v. Met Life.  In a 6 to 3 decision announced Thursday, the US Supreme Court ruled that benefit denials by such companies must be examined with caution when circumstances suggest a high likelihood that financial considerations affected a benefits decision. While Ms. Glenn won her case and Met Life was ordered to pay long-term disability benefits, the Supreme Court did not make any significant findings that will change the way that Federal courts must interpret disability benefit denials.  The Supreme Court had an opportunity to modify the standard of review to "de novo" (complete review)  in all conflict of interest disability claim denials, however they did nothing to give employees a better chance of securing disability benefits that have been denied.

Judges must approach medical disability and health insurance disputes with a skeptical eye when they involve insurance companies that both evaluate and pay employee claims.

The court added that an apparent conflict of interest is only one of many factors that a reviewing judge must consider.

The ruling is important because it offers guidance to federal judges presiding over lawsuits challenging medical disability and health insurance determinations in group policies.

"When judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one," writes Justice Stephen Breyer in the majority opinion.

The decision, in Metlife v. Glenn, comes in the case of an Ohio woman diagnosed with a severe heart condition, who had her disability benefits withdrawn by the Metropolitan Life Insurance Co.

A federal judge upheld the denial of benefits, but the Sixth US Circuit Court of Appeals reversed that finding, ruling that the judge had not fully considered the impact of MetLife's potential conflict of interest in both administering the plan and deciding which claims to pay and which to deny.

Justice Breyer said the appeals court followed the correct "combination-of-factors method of review." He said judges should examine the record for potentially inconsistent positions taken by a company, and whether the company gave due weight to the entire record or favored certain reports while downplaying others.

Three justices dissented. Justice Antonin Scalia wrote that the court was giving too much weight to an appearance of conflict. He said that under the law of trusts "[A] fiduciary with a conflict does not abuse its discretion unless the conflict actually and improperly motivates the decision." He adds, "There is no evidence of that here."

Dissents were also filed by Justices Anthony Kennedy and Clarence Thomas.

In passing the Employee Retirement Income Security Act of 1974 (ERISA), Congress authorized insurance companies to both evaluate and pay claims. ERISA also authorizes employees to file a lawsuit in federal court challenging an unfair denial of benefits.

But ERISA doesn't set a clear standard for judges who are called upon to decide disputes over benefits.

In 1989, the Supreme Court ruled that judges hearing such lawsuits must apply a more rigorous standard of review in cases in which the plan administrator served as both the evaluator and payer of claims.

But the court did not explain what constitutes a conflict of interest or how federal judges should weigh such a conflict while considering a particular case.

Thursday's decision stems from the case of Wanda Glenn, a sales manager at a Sears store from 1986 to 2000. In 2000, her physician diagnosed a severe heart condition. He advised that she no longer work. She applied for disability benefits under Sears' plan, administered by MetLife.

On the basis of the diagnosis and the physician's recommendation, MetLife found that Ms. Glenn was totally disabled and began paying benefits. With the help of MetLife, she also applied for and obtained disability payments from the Social Security Administration.

After two years, the MetLife policy required a new assessment of whether Glenn could perform any job or was still totally disabled. Her physician had repeatedly verified the severity of her condition, but at one point he checked a box on an evaluation form indicating that Glenn was able to work in a "sedentary physical exertion level occupation."

Three months later, contrary to the checked box, Glenn's physician again stated that he did not believe she could handle any kind of stress at work.

In evaluating Glenn's disability claim, MetLife focused on the checked box and decided to stop making disability payments to her.

Glenn challenged the decision and eventually took MetLife to court.

In siding with Glenn, the Sixth Circuit said MetLife cherry-picked certain aspects of Glenn's medical records, while ignoring others. This selective review, combined with MetLife's conflict of interest in both evaluating and paying claims, rendered the decision arbitrary and capricious, the appeals court found.

In affirming the Sixth Circuit, Justice Breyer said: "All of these serious concerns, taken together with some degree of conflicting interests on MetLife's part, led the court to set aside MetLife's discretionary decision. We can find nothing improper in the way in which the court conducted its review."

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