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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