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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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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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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After several month of attempting to handle his long-term disability claims on his own, our client contacted Attorneys Dell & Schaefer. Mutual of New York Life Insurance Company claimed to be conducting an evaluation of his claim, but had not yet paid any benefits. Disability Management Services (“DMS”), a third party administrator, was retained by Mutual Life to administer and process our client’s claim for disability benefits.

Our client’s disability policy contained a residual disability definition which provided benefits if he had a 25% loss of income and unable to perform one or more of his material duties. As a professional cameraman and business owner, he had to carry heavy cameras when on photo shoots and move around with these cameras constantly. Having suffered a knee injury, he now had to hire outside cameramen to perform the filming. Thus, he was unable to perform all the substantial and material duties of his occupation, and was suffering a loss of income due to his increased cameraman expenses.

After retaining Dell & Schaefer, Attorneys Gregory Dell and Robert Kerr worked diligently with the client, his personal attorney, and his accountants to properly document the client’s financial losses as a result of his disabling condition. This work involved months of careful documentation of the client’s earnings and repeated contact with the insurance company to ensure they had everything needed to evaluate the disability claim.

After providing the requested documentation on multiple occasions, Mutual Life appeared unable to make a decision, despite a clear loss of income in the years following his knee injury. Just prior to the filing of a lawsuit, Mutual Life approved our client’s claim for long-term disability benefits.

Dell & Schaefer continues to monitor our client’s claim to ensure Mutual Life has all the documentation it needs and that the proper amount of benefits are paid to the client every month.
 

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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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