Walter Pettway was employed with ADP (NASDAQ: ADP), as a principal consultant, beginning in 1994. Mr. Pettway’s job required him to travel the
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 firstname.lastname@example.org.