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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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 trial attorney representing parents and children in dependency, delinquency, and guardianship cases contacted Attorneys Dell & Schaefer to see if she would be eligible for long-term disability benefits under her individual disability income and business overhead expense policies purchased from Unum. Upon consultation with attorney Robert Kerr, the client retained the law firm of Attorneys Dell & Schaefer to assist with the filing of her application for disability benefits under both types of policies based on paresthesias in her hands and feet. Additionally, her diabetic neuropathy was causing increased difficulty with walking, numbness and tingling in her feet and hands, and intense pain when sitting, standing, and walking.

Attorney Kerr guided the client through the process of preparing her long-term disability claim, instructing her as to the best approach to obtaining appropriate medical support. Once her claim was properly documented, based on Dell & Schaefer’s extensive experience in filing applications, Mr. Kerr worked closely with the client to complete the necessary paperwork. He then submitted it to Unum on her behalf and advised Unum to direct all correspondence to the office of Attorneys Dell & Schaefer only.

Attorneys Dell & Schaefer then responded to all inquiries made by Unum during the application process. Mr. Kerr followed up repeatedly with Unum to make sure that a decision was made in a timely manner. Within 60 days of submitting our client’s application for long-term disability benefits, Unum approved both the individual and business overhead expense long-term disability claims.

Mr. Kerr and the team at Dell & Schaefer will continue to handle our client’s claim on a monthly basis and document her ongoing disability to ensure that she remains eligible for benefits as long as she is disabled.
 

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Our client, a dentist working in the capacity of a director of clinical technology for a well known company, began experiencing problems with his balance in March of 2009. In his role as director of clinical technology he was required to give lengthy presentations and speaking engagements, as well as be on the cutting edge in dental procedures. His initial balance problem quickly progressed leading to the cancelation of scheduled presentations, and our client seeing his doctors for testing. Test results indicated that he had a life-threatening brain tumor. Within a month and a half of first being seeing for the brain tumor he was undergoing brain surgery to remove the cancerous mass. The surgery was successful in removing the majority of the tumor, but resulted in loss of hearing in his left ear, cognitive dysfunction, and the exacerbation of a cervical neck condition brought on by years of dentistry. In the aftermath of the surgery his balance and equilibrium problems worsened, he began to experience severe headaches when working at the computer, and the surgery exacerbated his cervical neck condition. Hopes of returning to work after a short rest period from the surgery quickly vanished and he contacted Dell and Schaefer to assist in the filing of his disability claims.

Attorneys Gregory Dell and Stephen Jessup gathered all of the medical, financial and occupational information necessary to submit our client’s claim for disability benefits. Attorneys Dell & Jessup obtained supporting documentation from our client’s treating physicians and assisted our client with his application for disability benefits. Our client was further advised of the importance to have his doctors continue to document his restrictions and limitations. Within a week of filing for benefits, our client was approved for disability benefits. Attorneys Dell & Schaefer continue to handle our client’s disability claim on a monthly basis.
 

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Attorneys Dell and Gavidia filed suit against Federal Express (“FedEx”) on behalf of their client, Richard Bilheimer, in Palm Beach County Circuit Court, alleging that their client’s former employer Federal Express had breached the terms and conditions of the Federal Express Short-term Disability Plan by denying Mr. Bilheimer’s claim for disability benefits. Moreover, FedEx prevented Mr. Bilheimer from applying for long-term disability benefits as a result of denying his claim for short term disability benefits. Shortly after the lawsuit was filed in state court, FedEx removed the case to the U.S. District Court for the Southern District of Florida, arguing that the short-term disability plan was an employee welfare benefit plan governed by the Employee Retirement Income Security Act (“ERISA”), a federal law which governs most employer provided disability, health and life insurance plans.

Attorneys Gavidia and Dell moved to remand the case back to state court and claimed that the short-term disability plan fell within the “payroll practice” exception of 29 C.F.R. § 2510.3-1(b)(2) and was not governed by ERISA. Attorneys Gavidia and Dell also moved to recover attorney fees and costs against FedEx.

U.S. District Judge Kenneth Marra ruled in favor of Mr. Bilheimer, concluding in part, “[t]hat the payroll practice exception to ERISA applies and that remand is appropriate….” The opinion issued in this case is a precedent setting case that will set new standards for the way group disability plans are structured by employers. A claimant is always at a disadvantage if their claim is governed by ERISA, therefore Attorneys Dell & Schaefer are always challenging the applicability of ERISA in all disability insurance claims. Fedex offers short and long-term disability insurance as an employee benefit for thousands of employees. This case is currently pending in Palm Beach County Circuit Court.

For additional information please contact Attorneys Dell & Schaefer at 800-828-7583.
 

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

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

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

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

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Our client, an obstetrician/gynecologist, suffered from rheumatoid arthritis and could no longer perform his occupation. He approached Dell & Schaefer seeking assistance with his long-term disability applications. After completion of his applications for private long-term disability insurance benefits and approval by two different insurance companies, the doctor disclosed that he had recently been denied short-term disability benefits by Aetna.

The short-term disability benefits were provided as an employee benefit by his employer, meaning his claim for benefits was governed by a federal law known as ERISA. Because of the ERISA statutes, this client’s short-term disability claim posed more challenges than the individual long-term disability benefit policies that he purchased on his own from other disability insurance companies such as Unum and Mass Mutual.

Robert Kerr, an associate with Attorneys Dell & Schaefer, wrote the appeal of Aetna’s denial of short-term disability benefits. After performing their review of the appeal, Aetna agreed that the denial of benefits was incorrect, and reversed the original decision. Aetna also transferred our client’s claim to the long-term disability division, since the short-term disability benefits period had expired, and full benefits had been paid under the terms of the policy. Attorneys Dell & Schaefer will know begin the process of helping our client obtain long-term disability benefits from Aetna.

Dell & Schaefer continues to monitor all of this client’s disability claims on a monthly basis, ensuring that he will meet the terms of his policies and receive disability benefits for as long as he is unable to work.

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

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

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

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

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Our client was a top selling account manager in the advertising department of one of the country’s largest companies, in one of the company’s most demanding regional markets. Over the course of her career she exceeded sales quotas that were in the upper six figures, year in, year out.

In mid 2008, our client began suffering from severe anxiety and depression. Unable to handle the tremendous pressure and stress from her occupation, she made a claim for short-term disability benefits under her company’s salary continuation plan. Less than a month later Liberty Mutual denied her claim for disability benefits. It was around that time, our client relocated to be closer to family, and in the process of doing so learned of the law firm of Attorneys Dell and Schaefer. She contacted Dell and Schaefer to assist her in appealing her claim denial.

Review of Liberty Mutual’s denial letter made it clear to Dell and Schaefer what course of action needed to be taken to combat Liberty Mutual’s denial of disability benefits. The first course of action was to assist her in finding appropriate medical providers to treat with for her medical conditions. We explained to the client that medical support and documentation were going to be of the utmost importance in overturning Liberty Mutual’s denial of benefits. Corresponding with our client’s treating physicians, Dell and Schaefer was able to clarify and properly document the nature of our client’s disability in order to present the disability insurance carrier with evidence that our client could no longer perform her pre-disability occupation in light of her medical conditions.

An appeal for disability benefits was filed in February 2009, and approximately a month later Liberty Mutual overturned their initial denial of benefits. During the period of time it took to file the appeal, our client’s short-term disability period expired and her eligibility for long-term disability benefits began. Dell and Schaefer continued to contact Liberty Mutual regarding long-term disability benefits during the time Liberty Mutual was making a determination for short-term disability benefits. 

Approximatley two weeks after the favorable determination of short-term disability benefits, Liberty mutual advised that based upon the appeal filed for short-term disability benefits, long-term disability benefots were approved as well. This claim was handled by attorney's Stephen Jessup and Cesar Gavidia. 

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Dr. C, a dentist, came to Attorneys Dell & Schaefer in 2006 seeking assistance in submitting applications for long-term disability benefits. In 1999, Dr. C began noticing a slight tremor in his right hand while writing and at times while holding a dental instrument. He immediately sought care from a neurologist, who after examining Dr. C, determined that the tremor was likely stress and anxiety related. Dr. C continued working and operating his dental practice with the hopes that his slight tremor would resolve.

Unfortunately, the tremor did not cease, in fact, it worsened. Dr. C began suspecting that perhaps the tremor was not simply stress, but something more serious and complicated. Beginning around 2002, Dr. C was forced to reduce his patient load due to his hand tremor and stop performing major dental procedures, which produced a majority of the income in his practice. Dr. C was having great difficulty maintaining his dental practice and he made the difficult decision to sell his practice before matters got financially worse. Dr. C found a buyer for the practice and negotiated an agreement where he would stay on as an independent contractor assisting in the transition of the practice to the new dentist. By mid 2003 the transition of the practice was complete and Dr. C accepted a new position with a dental practice performing minor dental procedures and cleanings. Dr. C’s symptoms continued to progress between 2003 and 2006, eventually causing him to go and see his neurologist again who advised him to stop all forms of general dentistry as of November 2006.

Prior to November 2006, Dr. C never understood what it meant to be “disabled”, as defined in his disability policy. He had always thought that “disability” was the loss of sight, the loss of a hand, or some injury or illness which would cause him to be completely incapable of performing activities of daily living. Dr. C had not realized, until Dell & Schaefer brought it to his attention, that pursuant to the unique terms and conditions of his disability policies, that “disability” also meant experiencing a 20% or greater loss of income in your occupation due to an illness or an injury. In early 2007, Dr. C submitted his applications for long-term disability benefits and claimed a disability date of May 2002, which was when he first began to loose income as a result of his hand tremor. The disability carrier approved the claim as of November 2006, but denied disability benefits for the period of May 2002 through October 2006, claiming that the insured’s late notice caused prejudice to the insurers, and even if the insurers had the ability to conduct a contemporaneous review, under their review of the claim Dr. C had not suffered the requisite loss of income to qualify for disability benefits. Under Florida law and the law of most states, failure to provide timely notice of claim to a disability carrier, in Dr. C’s case 90 days, can create a presumption of prejudice to the insurance carrier and an effective affirmative defense in the event of a suit.

Dr. C’s disability policy stated that if he was disabled prior to age 60 then he would receive disability benefits for his lifetime, otherwise the benefits would terminate at age 65. Dr. C turned age 60 in February 2006, and the disability carrier claimed he was not disabled until November 2006. The policy defined disabled as either residually or totally disabled. The carrier continued to deny benefits for anytime before November 2006 and advised Dr. C that benefits would terminate at Age 65. Attorney’s filed a lawsuit on behalf of Dr. C for breach of contract and seeking recovery of disability benefits due from May 2002 through October 2006. During litigation the insurance company raised the following defenses:

1) Dr. C failed to provide timely notice of claim;
2) Dr. C failed to reasonably treat with a physician from May 2002 through October 2006;
3) Dr. C failed to suffer a loss of income due to illness or injury;
4) Dr. C failed to comply with the “proof of loss” requirements of his policy.

Despite the difficult legal hurdles facing Dr. C’s case, Cesar Gavidia, Jr. and Gregory Michael Dell of Dell & Schaefer’s disability litigation team were able to successfully negotiate a confidential settlement that included past and future lifetime disability benefits.
 

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Our client, a Senior Sales Manager for a large medical supply company, was suffering from severe spinal stenosis and an injury to her ulnar nerve following an epidural steroid injection. As a result of these disabling conditions, our client suffered from a multitude of physical problems, which included: loss of range of motion in the neck and shoulders; loss of grip strength of the left hand; numbness, tingling, and burning of the left forearm, extreme sensitivity to cold temperatures or light touch, and constant pain. The only way to provide some relief to the constant pain was through prescription pain killers, which left our client groggy and unable to focus or concentrate fully.

 As a Senior Sales Manager, our client’s occupation required meticulous attention to detail, the analysis of complex data and the ability to effectively present informational findings in order to increase revenue for the company. Our client was responsible for directing the development of the business and marketing strategies for a division of her company that was worth in the hundreds of millions of dollars.

 While on short term disability, our client contacted our office as a result of the nonstop barrage of information requests and deadlines from MetLife regarding long term disability benefits. Forms sent from MetLife appeared at first glance to be redundant, but just different enough to cause our client concern that MetLife’s intention may be finding a way to deny long term disability benefits. The same day Attorneys Dell & Schaefer was retained to represent our client in her application for long term disability income benefits, we contacted MetLife to notify them of our representation, and to request that all written and oral communications are handled exclusively through our office.

 We immediately obtained all of the application materials, and began to collect and request all the information pertinent to ensuring our client’s claim would be approved the first time. Working closely with our client, Attorneys Dell and Schaefer, submitted a thorough, twenty-six page application packet to MetLife that was in far greater detail and depth than the initial 6 page application MetLife sent. By gaining a detailed knowledge of our client’s occupational duties, day to day schedule, and a thorough understanding of our client’s medical condition, combined with our knowledge and experience in dealing with disability insurance companies, Dell and Schaefer was in a much better position to preempt any arguments or additional requests for information MetLife might make under the terms and conditions of the policy.

MetLife approved our client’s claim for long term disability income and Dell & Schaefer will continue to handle all issues of her disability claim on monthly basis.

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Our client, a chiropractor, fractured his arm and tore his rotator cuff as a result of a skiing accident in March 2008. Despite his injuries our client attempted to return to full-time chiropractic performing manual spinal adjustments. His treating physicians advised him that he should cut back on the number of patients he was treating pre-accident and see if he can handle a limited patient load. This client came to Dell & Schaefer for guidance and help in filing his disability claim.

After reviewing the client’s long-term disability policy he had purchased from National Life of Vermont and now administered by UNUM, Attorneys Gregory Dell and Robert Kerr advised him of his options moving forward. The client retained Dell & Schaefer to advise him of his contractual rights and to guide him through the process of applying for long-term disability benefits. During the application process, UNUM requested several years of tax returns, profit and loss statements, CPT annual and monthly production reports and medical records from all of his treating physicians. Despite overwhelming and repeated documentation from the client’s treating physicians that our client was unable to perform his job as he once did, Unum continued to refuse to pay our client, claiming they did not have sufficient evidence of his inability to perform his job as a chiropractor.

We performed an extensive analysis of our client’s activities for the time periods before and after his accident. Based on our client’s billing, it was clear that the time he was spending performing manual manipulation – the basis of his practice – was significantly decreased following his accident. This information was presented to Unum as further evidence of his inability to do his job as a chiropractor, along with the numerous doctors’ reports where his doctors repeatedly told him that he should not be performing manual manipulations. It was our opinion that the client was clearly eligible for partial disability benefits as a result of his loss of income caused by his injuries.

After several months of providing sufficient evidence of disability and Unum refusing to pay our client, Dell & Schaefer filed a complaint with the Florida Department of Financial Services in anticipation of litigation. Shortly thereafter, Unum made the decision to pay our client, finally agreeing that our client is partially disabled pursuant to the terms of his disability contract.

Since originally reducing his hours, our client has had to stop working, and as a result sold his practice. He is now totally disabled from his former occupation as a chiropractor specializing in spinal adjustments. Dell & Schaefer is handling his transition from partial disability to total disability and will monitor our client’s claim moving forward.

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