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

When Rosemary McGahey was denied long-term disability benefits after 24 months, she appealed Harvard University’s decision. She had been approved by Social Security for disability coverage. But Harvard claimed that their standards were different than Social Security’s. At Harvard’s request, she had seen numerous physicians and psychologists, physical therapists and occupational therapists. Did the evidence from these visits validate Harvard’s decision?

Click here to continue reading Harvard University Ordered By Massachusetts Federal Court To Pay Long-Term Disability Benefits To A Former Employee

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

Click here to continue reading Claimant's Statute of Limitation Non-Compliance Allows MetLife's Denial Of Disability Benefits To Go Unchallenged

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Our client was a successful, independent financial advisor who owned her own business. On December 21, 2008, while stopped at a red light, her car was struck from the rear by a cement mixer. Within days of the accident she was beginning to experience pain in her neck and lower back. MRI reports indicated multiple herniations of her cervical and lumbar spine. Unable to return to her office for little more than an hour at a time, her fear of losing all she had worked for became an unfortunate reality. Due to her inability to continue working, she decided to make a claim for disability benefits under her long term disability policy. Three months after her accident, she contacted Dell and Schaefer to assist her in the preparation of her claim for long-term disability benefits.

Attorneys Gregory Dell and Stephen Jessup worked closely with our client to ensure that her doctors appropriately documented her restrictions and limitations. After a thorough review of her medical records and obtaining a firm understanding of her occupation as a financial analyst and business owner, Dell and Schaefer filed her application for benefits in early May of 2009. Dell and Schaefer argued that despite the fact she attempted to return to work during the four months following her auto accident, that she was totally disabled from performing the material and substantial duties of her occupation as of date of her accident. Lincoln National made additional requests for information and further inquiries from our client, which were anticipated by Dell and Schaefer, and met with prompt and consistent responses. In response to the application for disability benefits and additional information in support of disability submitted by Dell and Schaefer, Lincoln National approved our client’s claim for long term disability benefits back to the date of the car accident. The claim for long-term disability benefits was approved within 30 days.

Attorneys Dell and Schaefer continues to handle our client’s claim with Lincoln National on a monthly basis. All communications from Lincoln National are sent directly to our office and Lincoln National is prohibited from having any direct communication with our client. Attorneys Dell & Schaefer represents claimants nationwide in all aspects of a long-term disability claim, which includes everything from the application process through litigation of any disability claim denials.
 

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

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

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

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

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

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In, Lona v. Prudential, 2009 WL 801868 (S.D. Cal)., the Court determined that the opinions of three doctors hired by the insurance carrier to review the insured’s medical records did not carry as much weight as the opinions of three other doctors that physically examined the insured. This case shows that Prudential will continue to hire doctors to review a claimant’s disability file, until they have found the right doctor to provide the opinion they are looking for.

Ms. Lona was an Account Manager for Xerox from 1976 to 1984 and then again from 1989 until December 27, 2002, when she stopped working due to disability caused by Fibromyalgia and Sjorgens. At that time, Ms. Lona’s rheumatologist determined she was totally disabled. In light of Ms. Lona’s rheumatologist’s determination, Xerox requested Ms. Lona treat with another rheumatologist to determine her eligibility for short term disability benefits. The rheumatologist selected by Xerox agreed with Ms. Lona’s treating rheumatologist, determining Ms. Luna was totally disabled based upon her diagnosis of Fibromyalgia and Sjorgens. This resulted in Ms. Lona’s claim for benefits under the Xerox long term disability plan being granted effective December 27, 2002.

Ms. Lona remained on disability under the Xerox plan for several years until she received notice on March 29, 2005, that her benefit payments under the Xerox self-insured long-term disability plan would end on May 30, 2005. She was also told that because she elected to receive “Extended Disability” under the policy that she would be eligible for long term disability benefits under another policy issued by Prudential to Xerox if she met the Prudential Group Policy definition of total disability. Prior to the Xerox plan ending, Ms. Lona was sent by Xerox to a second rheumatologist, who did not offer any opinion as to Ms. Lona’s ability to work. Based upon the medical records available, Ms. Lona began collecting long term disability benefits under the Prudential group plan when the Xerox plan ended on May 30, 2005.

Prudential, however, was not satisfied with the medical opinion of Ms. Lona’s treating physician, nor the medical opinions of the two independent Rheumatologists Ms. Lona saw at Xerox’s request. Prudential continued to investigate Ms. Lona’s claim in an effort to deny her benefits, and had a registered nurse employed by Prudential review her file. The registered nurse determined Ms. Lona may be able to perform sedentary work, but given her long course of treatment it was unlikely. Based upon this information, Prudential required Ms. Lona attend an independent medical examination with a third rheumatologist.

Prudential hired investigators to follow Ms. Lona to the appointment with the rheumatologist to videotape her physical abilities. The surveillance videos taken by the hired investigators videos showed Ms. Lona performing simple day to day tasks, driving, and going to the gym, all of which were activities her treating physicians and the now the hired independent rheumatologists were in agreement she could do.

Ms. Lona underwent the examination with Prudential’s chosen rheumatologist, who ultimately determined that Ms. Lona was totally disabled and unable to work due to Fibromyalgia and Sjorgens. Based upon the rheumatologist’s opinion of disability, Prudential sent the video surveillance to the independent rheumatologist and asked him to reconsider his findings. Prudential’s rheumatologists refused to do so, standing upon his initial opinion.

Based upon the most recent rheumatologist’s refusal to revisit and change his opinion of total disability in light of the surveillance videos, Prudential had their Internal Medical Director review the file. He determined Ms. Lona was not totally disabled under the terms and conditions of the policy. Prudential then hired yet another rheumatologist to do an paper review of the file. The reviewing rheumatologist, who never actually examined Ms. Lona, also determined she was not totally disabled under the terms of the policy. Armed with the opinion of two doctors who never met Ms. Lona, Prudential terminated Ms. Lona’s benefits.

Ms. Lona appealed Prudential’s decision to terminate her long term disability benefits. In reviewing the appeal, Prudential hired a sixth rheumatologist to do a review of the file. Once again, after never physically examining Ms. Lona, Prudential’s rheumatologist determined there wasn’t enough evidence to support total disability. Based upon the latest review of Ms. Lona’s file by a hired rheumatologist, Prudential denied Ms. Lona’s appeal. Ms. Lona then filed a second appeal, which was also denied.

Ms. Lona requested another opportunity to submit an appeal, but Prudential denied her request. Exhausting all of her administrative remedies, Ms. Lona filed a lawsuit in Federal Court. Following a two day trial in front of a federal judge, the judge determined that Prudential wrongfully denied Ms. Lona’s benefits, finding, in part that the opinions of the three rheumatologists who never examined Ms. Lona did not carry as much weight as the opinions of the independent examiners who had. In turn, the judge ordered Prudential to pay back benefits in the amount of $90,416.00.

This type of claims handling activities by Prudential to deny long term disability benefits is not uncommon. Attorneys Dell and Schaefer has represented clients who were forced to endure the same treatment from Prudential. This case shows the lengths Prudential will go to deny benefits. In almost all cases when Prudential sets a claimant for an IME exam they will conduct simultaneous video surveillance in hopes of creating an inconsistent statement between the IME doctor and the claimant. Attorneys Dell & Schaefer always recommends that the claimant ask for permission to bring a videoagrapher, court reporter or tape recorder to any IME exam. 
 

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

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

 

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

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Cigna attempted to deny lifetime disability benefits for a claimant suffering from a psychiatric organic brain disorder, but the district court of Colorado disagreed. Following a remand from the court of appeals, which ruled the district court had erred by considering evidence outside the “administrative record,” the district court nonetheless reaffirmed its ruling in plaintiff’s favor after carefully considering all of the evidence in the record and analyzing each of the medical opinions presented. The specific issue was whether Jewell was disabled due to a functional psychiatric disorder or on account of an organic disorder. The court began its discussion by rejecting the insurer’s argument that the policy provision limiting benefits to 24 months for conditions “caused” or “contributed to” by a psychiatric condition was applicable to co-morbid organic and functional organic illnesses. The court found the insurer’s interpretationwould mean that an employee whose sole affliction is a disabling organic brain dysfunction would be entitled to lifetime LTD benefits, while an employee who suffers from a disabling organic brain dysfunction plus a non-organic psychiatric illness would be limited to only to 24 months of LTD benefits. The latter employee thus would be penalized for his or her additional condition. This is not a reasonable interpretation of the Plan language. *31-*32.

Turning then to the evidence, the court next explained that even the absence of objective test results such as an EEG, MRI or CT scan did not rule out the possibility of an organic brain dysfunction. However, if such evidence had existed, the issue would have been more clear-cut. Nonetheless, the court found the preponderance of the evidence favored the plaintiff. The court explained:

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

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

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

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

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

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

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

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Our client, a breast cancer survivor, was a senior property manager for a large property management company for nearly fifteen years. As a senior property manager, our client was responsible for planning, controlling and directing the day to day operation of multiple properties. Year after year she received numerous recognitions for the quality of her work.

Like many breast cancer survivors, our client experienced cognitive difficulties, commonly referred to as “chemo-brain,” following treatment with chemotherapy and the medication, Tamoxifen. She experienced problems remembering things, focusing, multi-tasking, as well as problems with being able to analyze information in a logical manner. These deficits in her thinking made it impossible for her to continue to perform her job, and in turn she filed for long term disability income benefits with Prudential.

Prudential quickly questioned the severity of cognitive problems our client was experiencing. In an attempt to provide medical proof of these cognitive problems, our client underwent neuropsychological testing. Test results from her treating doctor revealed severe deficits in her cognitive functioning. However, Prudential remained adversarial and ordered our client to undergo an Independent Medical Examination (IME) with a neuropsychologist they hired to perform another neuropsychological examination. The test results remained consistent with the first, but Prudential’s doctor raised allegations that our client was exaggerating and not putting forth maximal effort in taking the exam. Prudential then had our client’s complete file reviewed by another hired neuropsychologist. This doctor’s opinion more or less accused our client of faking. Based upon the reports of their hired doctors, Prudential immediately denied our client’s claim for long term disability income benefits.

On her own, our client filed an appeal with Prudential, which was denied. At that point she contacted Attorneys Dell and Schaefer to represent her with the fling of a second appeal. Dell and Schaefer worked closely with our client and her treating physicians to prepare the final appeal for long term disability benefits with Prudential. Dell and Schaefer heavily researched our client’s condition; only to find out that, although medical science clearly recognizes “chemo-brain,” very little is actually known. Our client underwent another neuropsychological evaluation which again showed severe deficits in cognitive thinking. A three pronged attack to Prudential’s denial of benefits was launched utilizing medical research on “chemo-brain,” objective medical evidence found in the neuropsychological testing results, and the medical records of our client’s treating physician.

Attorney Stephen Jessup of Dell and Schaefer recently filed the appeal with Prudential, and we are currently awaiting Prudential’s final claim decision. In the event of a claim denial a lawsuit will be filed against Prudential in Federal Court. While the final outcome is still unknown, one thing remains very clear: with the seemingly ever increasing rates of cancer reported each year, it is to be expected that many more people will face the same cognitive problems as our client, and quite possibly the same response from their long term disability insurance carrier.

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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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More than sixteen years ago, shortly after starting his dental practice, Dr. Johnson (name has been changed for privacy purposes) bought a disability insurance policy to protect his income in case of an illness or injury that prevented him from completely or partially working in his chosen profession. Over the years, Dr. Johnson’s practice grew substantially and so did his annual income. As such, Dr. Johnson’s insurance carrier made several offers to increase his monthly disability benefit in case of total disability. Each time, Dr. Johnson gladly accepted the increase in premium payments for the added protection.

Dr. Johnson’s dental practice consisted mainly of bridge and crown work, root canals, extractions, and general dentistry. Unfortunately, several years ago, Dr. Johnson began to experience stiffness and pain that radiated through his right arm and shoulder. At first, he dismissed the pain as overuse and applied home remedies. However, over time the pain became more severe, more frequent, and lingering longer. Dr. Johnson sought treatment from a rheumatologist and was subsequently diagnosed with osteoarthritis. Dr. Johnson continued to treat patients. 

However, his pain, now excruciating after only two hours of use, forced him to change his practice significantly. He had to forego crown and bridge work, root canals, and more difficult extractions.

After almost a year of cutting back, Dr. Johnson read the long-term disability income policy he bought so many years earlier. Dr. Johnson’s policy read,

“You are considered Totally Disabled, if due to injury or illness, you are unable to perform the Substantial and Material Duties of your Regular Occupation and are under the Regular care of a Physician. . . . You are considered Residually (Partially) Disabled if due to injury or illness, you are unable to perform one of the material and substantial duties of your regular occupation, have at least a 20% loss of earned income, and are under the regular care of a physician.” 

Dr. Johnson decided to apply for disability income benefits.  Shortly after he mailed his application for disability benefits to his disability insurance company, Dr. Johnson received a telephone call from the disability company. The claims analyst asked Dr. Johnson several questions regarding his condition and his continued treatment of patients. The insurance company requested additional documentation and indicated that their investigation might take several weeks. However, after only two and a half weeks, the insurance carrier sent Dr. Johnson a correspondence that read “We conducted a thorough investigation into your claim for disability income benefits and we are pleased to inform you that you are eligible to receive benefits under the terms of your disability income contract. As you are still working in your profession, you will receive partial disability benefits as long as you remain disabled and continue to suffer at least a 20% loss of earned monthly income.” Dr. Johnson was pleased by this news. Many of his colleagues had difficult experiences with their disability insurance companies when attempting to collect from their disability income policies. 

Dr. Johnson was required to provide the disability insurance company with monthly profit and loss statements. During several months he received no benefit, as in those months he did not sustain at least a 20% loss of earned income. Dr. Johnson subsequently hired another dentist to perform procedures that he could no longer safely perform. This resulted in fewer and fewer months in which Dr. Johnson was “eligible” to collect his disability income benefit. After two years of qualifying for disability benefits, Dr. Johnson’s disability insurance company approached him to request a buy-out of his disability income policy. The disability company offered him $100,000.00 for the surrender of his disability policy. Dr. Johnson found this offer fair as in most months he was collecting little or nothing in partial disability benefits. However, before signing the agreement, Dr. Johnson wanted an attorney to review the disability buyout agreement and advise him of his rights. That is when Dr. Johnson contacted Attorneys Dell & Schaefer.

After speaking with Dr. Johnson and reading his contract it became clear to Attorneys Dell & Schaefer that not only was the offer unconscionably low but that Dr. Johnson had fallen victim to what seems to be a common practice among many insurance carriers,  advising an individual that he is partially disabled when under the terms of his contract he is totally disabled. When we explained our concerns to Dr. Johnson he was hesitant and stated, “I am still working. I’m not totally disabled.” Like so many others, Dr. Johnson was convinced that total disability meant the complete inability to engage in his occupation. This erroneous assumption was given credence by the insurance carrier’s simple statement, “As you are still working in your profession you will receive partial disbility benefits...”  Dr. Johnson’s incorrect interpretation of his disability policy was created by two years of similar statements from his disability insurance company and eventually a seemingly gracious offer to buyout an all but useless policy for the sum of $100,000.00. 

It was reasonable for Dr. Johnson to arrive at such a conclusion. Social Security provides disability benefits to individuals for the complete inability to engage in any gainful occupation, not to mention the fact that Dr. Johnson’s policy does provide for partial disability benefits. However, this was not a Social Security claim, but rather a long-term disability policy. As we explained to Dr. Johnson, under the terms of his disability policy, total disability means the inability to perform the “substantial and material” duties of his occupation as they were just prior to his illness. Dr. Johnson’s substantial and material duties as a dentist prior to his disability consisted of root canals, extractions, simple and complex, consultations, and many cosmetic procedures. However, Dr. Johnson’s post-disability duties consisted mainly of some simple extractions and consultations. He was simply unable to perform all of the substantial and material duties of his occupation and thus was totally disabled under the terms of his long-term disability policy. Most significantly, Dr. Johnson had been paying premiums for over a decade for this protection.

After our initial consultation, Dr. Johnson turned down the disability insurance company’s offer to buy out his policy and retained Attorney’s Dell & Schaefer to assert his rights to total disability income benefits under the terms of his contract. Attorney’s Dell & Schaefer were able to secure Dr. Johnson total disability benefits, un-paid back benefits totaling almost $200,000.00, interest on his back benefits, and attorney fees. Ultimately, we negotiated a lump-sum buyout of Dr. Johnson’s long-term disability policy, one well in excess of the meager $100,000.00 the disability insurance company once attempted to settle his claim for.

Unfortunately, Dr. Johnson’s story is not uncommon. Many disability policies provide that an individual with a partial disability will only be paid through the age of 65, while an individual on total disability benefits will be paid for the duration of the individual’s life. Moreover, partial disability benefits are based on the percentage of earned income lost. Thus, unlike total disability benefits, if the individual does not suffer a loss, benefits are not paid. Finally, in the event of a buyout of a long-term disability policy, an individual would be more apt to surrender his or her contract for less if the individual’s disability were deemed partial rather than total. Insurance companies save themselves millions of dollars each year by such practices. They lead claimants to believe that because they are working, they are only entitled to partial disability benefits and then entice them to surrender their contracts and all rights to their claim, for an unreasonably low price. Fortunately, for Dr. Johnson, he was able to realize the disability insurance company’s deception prior to surrendering his rights.

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Attorneys Dell & Schaefer has filed a long-term disability breach of contract lawsuit in federal court against Conneticut General Life Insurance Company (“Connecticut General”) seeking lifetime disability benefits. Our client, a former floor trader on the American Stock Exchange, was disabled due to bipolar disorder, a sickness, from March 1995 until April 2006. In 2004, while our client was totally disabled due to his bipolar disorder, he suffered a hernia injury while carrying a television to his car. Our client ‘s disability policy has been administered by MetLife insurance company, which means that MetLife made the decision to deny his benefits as of age 65.

In the days and weeks that followed our client’s hernia injury, our client underwent horrific pain and discomfort, ultimately leading him to have surgery to repair the hernia. After an initial surgery which failed to repair the hernia, he underwent a second surgery with doctors in New York City, and then a third, none of which ever relieved all of his pain and discomfort. Our client’s Connecticut General long-term disability policy provided that benefits would be paid to either age 65 for sickness or lifetime for a disability resulting from an accidental bodily injury. MetLife has taken the position that our client is disabled by a sickness and therefore only entitled to benefits until age 65.

In October 2004, our client notified MetLife of his disability resulting from a right inguinal hernia and provided more than sufficient proof to MetLife that he could not perform his former duties as a floor trader on the floor of the American Stock Exchange due to his accidental hernia injury. Despite the abundance of medical evidence supporting his disability claim, and the clear and convincing evidence that his hernia injury resulted from an accident, MetLife was no convince that his hernia was caused by an accidental injury.  

Our client initially sought the assistance of an attorney whose practice did not focus in disability insurance. The previous attorney assisted our client with the filing of a civil remedy notice of insurer violation with the State of Florida Department of Financial Services but ultimately advised that she could not litigate against insurance companies the likes of MetLife or Connecticut General. 

Attorneys Dell & Schaefer have filed a lawsuit and we will have the burden of proving that our client’s hernia was caused by an accidental injury resulting in total disability. If successful, our client, a 61 year old, will continue to be eligible for benefits for the rest of his life. 

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Our client, a Texas resident, contacted Attorneys Dell & Schaefer following her initial application denial and first appeal of her disability denial by a prior law firm. This woman, suffering from chronic neck and back problems, a stroke, depression, headaches, and memory loss, had been a quality control manager for a large corporation. The client was unable to perform an work and was seeking total disability benefits.

The client’s disability policy defined Totally Disabled as “unable to perform each of the main duties of her occupation because of an injury or sickness.” Jefferson Pilot had her medical records reviewed by a nurse and came to the conclusion that our client could perform sedentary work. Jefferson Pilot unilaterally determined that our client’s job was sedentary, despite a letter from our client’s employer stating that her job required the ability to perform light to medium duty task.

Within three months of Dell & Schaefer being retained, we were able to resolve the claim in our clients favor and recover all of the benefits that had not been paid for the previous 16 months. Through a detailed analysis and dissection of Jefferson Pilot’s reasons for denial of our client’s claim, Dell & Schaefer was able to prove our client’s entitlement to long-term disability benefits. The successful appeal required the coordinated efforts of a vocational rehabilitation expert and our client’s treating physicians. Furthermore, Jefferson Pilot was advised of potential ERISA violations which prevented our client from receiving a full and fair review of her claim. 

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

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

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

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

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

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

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

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

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

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

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

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

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Robin Doyle was a registered nurse working for ChoicePoint Services, and filed a claim for short-term disability benefits on January 30, 2004. She based her disability on a number of conditions, including anal fissure, enlarged internal hemorrhoids, and external anal skin tags. She underwent surgery on February 10, 2004, in an effort to solve these health problems.

Liberty Life granted the maximum term of short-term disability benefits, which ran through May 9, 2004. Liberty Life then undertook to assess whether Ms. Doyle would qualify for long-term disability benefits after the expiration of the short-term disability benefit period. Based on a review of her records by an independent physician hired by Liberty Life, the insurance company denied Ms. Doyle her long-term disability benefits.

After her claim was denied, Ms. Doyle treated with a rheumatologist who diagnosed her with fibromyalgia. Armed with this new diagnosis, Ms. Doyle appealed the denial of her claim. Liberty Life denied the claim for long-term disability benefits, and Ms. Doyle filed suit.

The trial court found in favor of Liberty Life, and upheld the decision to deny disability benefits to Ms. Doyle, who appealed the decision of the trial court. The appellate court reversed the trial court, stating that the trial court had erred in not requiring Liberty Life to show that there was no conflict of interest for the carrier in both making the decision to deny disability benefits and being responsibility for paying disability benefits if it found that Ms. Doyle was disabled.

Ultimately, the appellate court sent the case back to the trial court to re-review the evidence in light of the conflict of interest. Ms. Doyle will therefore have another opportunity to have the trial court review her case and claim for long-term disability benefits.

See Doyle v. Liberty Life Assurance Co. of Boston, 511 F.3d 1336 (11th Cir. 2008).

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Medical Condition and Occupational Duties

Our Client, an OBGYN (hereinafter referred to as “Dr. OBGYN”), was employed by a hospital when he began to experience anxiety and depression following the filing of a malpractice lawsuit. Our client began drinking alcohol on a daily basis and was subsequently hospitalized for three months as a result of alcoholism, anxiety, depression and suicidal thoughts. Prior to claiming disability Dr. OBGYN’s substantial and material duties involved the delivery of babies, gynecological surgeries and on-call requirements.

Procedural History

Our Client’s disability plan was provided as an employee benefit from his employer, which meant that his disability plan was governed by ERISA. As a result of having a disability plan governed by ERISA, our client was required to exhaust his administrative remedies and file two written appeals with Prudential before he could he file a lawsuit.   Attorneys Dell & Schaefer was retained on this case following Dr. OBGYN’s initial denial of benefits by Prudential. 

In Prudential’s initial denial letter they claimed that Dr. OBGYN was disabled during the three month period of time that he was hospitalized, but that he was capable of returning to work immediately following his hospital discharge. Prudential’s opinions were reached based upon a paper review of Dr. OBGYN’s medical records by a doctor employed by Prudential doctor. Prudential denied the first appeal on the basis that Dr. OBGYN was only disabled when he was drinking and therefore he should be capable of working. Prudential completely ignored the fact that a substance abuse disorder is a disabling condition. Prudential never examined Dr. OBGYN in order to evaluate his medical condition.

Through a coordinated effort between our law firm and Dr. OBGYN’s treating doctors, we were able to present Prudential with additional medical information in support of the claim for long-term disability benefits. The additional medical information and our extensive second appeal letter were submitted to Prudential in a timely manner. Within 45 days of receiving the second appeal letter, Prudential reversed their previous two denials and determined that Dr. OBGYN was eligible for disability benefits. Since Dr. OBGYN suffered from a mental nervous and substance abuse disorder, the disability policy limited him to two years of disability benefits. Dr. OBGYN was awarded more than $260,000 in past due disability benefits.

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Nancy Mikrut, a pediatric nurse practitioner for Danbury Health Systems, was insured under the company’s group disability plan administered by Unum Life Insurance Company of America. In 1999, Ms. Mikrut was injured in an automobile accident and was unable to return to work due to severe back pain. In January 2000, Ms. Mikrut was diagnosed with spinal stenosis and filed for long-term disability benefits. After an intradiscal electrothermal therapy, Ms. Mikrut has a second surgery in March 2001.

After 24 months of benefits, Unum re-evaluated Ms. Mikrut’s claim. Without meeting her, a Unum medical consultant found Ms. Mikrut capable of full-time sedentary work. In August 2002, Ms. Mikrut’s treating physician told Unum that she was disabled from any occupation in which she had to bend, lift, pull, sit, or stand for periods of time. Unum terminated Ms. Mikrut’s benefits and she filed suit, seeking benefits under the Employee Retirement Income Security Act.

U.S. Judge Stefan R. Underhill of the District of Connecticut found that Unum failed to account for subjective complaints of pain and the treating physician’s opinions before terminating Ms. Mikrut’s benefits. The judge ruled that Unum did not adequately consider an award of benefits by the Social Security Administration. Judge Underhill held that Ms. Mikrut is eligible for continued long-term disability benefits under the plan since she is unable to perform the duties of any gainful occupation. While Unum is not required to credit treating physician’s opinion over other evidence, Judge Underhill stated that Unum cannot “arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of treating physicians.”

Nancy P. Mikrut v. Unum Life Insurance Company of America, No. 3:03cv1714, D. Conn.; 2006 U.S. Dist.

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Rosa Wood had carpel tunnel syndrome and left work in 1999 because of it. After receiving short term disability benefits and undergoing back surgery, Ms. Wood applied for long term benefits. Initially, Ms. Wood’s claim for benefits was denied however her plan eventually agreed to pay benefits for the first phase of long term disability. Under the first phase, claimants are entitled to benefits for seven to twenty-nine months based on their ability to perform any substantial gainful work. Prudential then denied long-term disability benefits to Ms. Wood during the second phase which would continue benefits beyond the twenty-nine months. After two internal appeals, Ms. Wood sued Prudential in Federal Court.

The court ruled that any “reasonable trier of fact would find Wood to be disabled” and rejected Prudential’s attempt to limit the claim. The judgment was based on evidence stating no factual dispute that Ms. Wood was diagnosed with carpal tunnel syndrome in 1999 and that she had spinal surgery in 2000 and continues to suffer from pain and numbness in her hands. Reports from all of Ms. Wood’s examining physicians support her disability claim with the exception of Dr. Teital who examined Ms. Wood at the request of Prudential. Dr. Teital did not find that Ms. Wood was exaggerating her symptoms.

Additionally, Prudential’s consulting physician, Dr. Ito, did not examine Ms. Wood nor did he dispute Ms. Wood’s diagnosis or the findings of pain from her other doctors. However, Dr. Ito apparently discounted Ms. Wood’s pain limitations on the basis that they were not supported by objective testing. Prudential’s policy did not require the type of testing Dr. Ito required supporting Ms. Wood’s limitations.

Further, Sandra Richter, a vocational counselor who met with Ms. Woods during her first phase of long term disability benefits, concluded that she is totally disabled. Two other vocational reports were written without meeting Ms. Wood and submitted during the evaluation of second phase LTD benefits. These reports were prepared based on limitations that did not include limitations of her use of extremities. Neither of these reports included analysis of the “gainful employment” language of Prudential’s policy which explained that “gainful occupation” is defined as an occupation that provides at least sixty percent of pre-disability earnings. Prudential must now pay all past due long-term disability benefits to Ms. Wood and re-calculate her claim for the future.

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