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

On February 18, 2010, Attorneys Dell & Schaefer and lead trial attorney Gregory Dell filed a nationwide class action lawsuit against Prudential Insurance Company of America (“PRUDENTIAL, NYSE:PRU”), in the Eastern District of New York Federal Court. This lawsuit was filed to protect the potentially thousands of long-term disability claimants that filed a second/voluntary appeal after November 14, 2005 in which their second/voluntary appeal was denied by the same Prudential employee that denied the claimant’s first appeal. Dell & Schaefer is seeking to stop Prudential from conducting unlawful voluntary appeal reviews which violate ERISA. Additionally, the class action seeks an order requiring Prudential to re-evaluate thousands of voluntary appeals which were denied by Prudential after November 14, 2005.

The class is currently represented by four individuals that have each had their voluntary appeals denied by the same person that denied their first appeal. The Employee Retirement Income Security Act “ERISA” requires that the decision maker on a second appeal must be an independent person who was not involved with any previous denial of a disability claim. Unbeknownst to the Plaintiffs, Prudential had instituted an undisclosed cost-saving method of appeals review that blatantly violates federal ERISA law.

“This process is manifestly unfair, and we contend, not legal,” said attorney Gregory Dell. “The whole point of the ERISA-governed appeals process is to substantially reduce lawsuit expenses and create an environment where claim denials will be objectively evaluated. Prudential’s actions are a breach of their fiduciary duty to all disability claimants,” he said.

Through the nationwide representation of multiple claimants with Prudential long-term disability claim denials, our law firm obtained internal email communications which confirms Prudential’s unilateral decision to cut administrative cost by not providing a “full and fair review” of all voluntary appeals,” said Dell.

The reassessment of denied claims could result in millions of dollars of past due benefits. Prudential is one of the country’s largest group long-term disability insurers, with coverage in force for more than two million individuals.

Click here to if you believe you may have a potential claim against Prudential Insurance Company of America

Disability Attorneys Dell & Schaefer, established in 1979, have represented thousands of clients with their claims against disability insurance companies. The firm’s disability income division, managed by Gregory Michael Dell, is comprised of eight attorneys who represent claimants nationwide, throughout all stages (i.e. applications, denials, appeals, litigation, & lump-sum policy buyouts) of a claim for individual or group (ERISA) long-term disability benefits. For a free consultation, please call 800-828-7583 or use our contact page.

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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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When Richard Geroux brought a long-term disability insurance underpayment complaint before the Tribal Court of the Keweenaw Bay Indian Community, L’Anse Reservation, Mich., the insurance companies involved, Assurant, Inc (Assurant) and Union Security Insurance Company (Union Security) immediately sought to remove his case to the United States District Court for the Western District of Michigan, Northern Division. The insurance companies claimed that Geroux’s case fell under ERISA jurisdiction and should be considered in Federal Court.

What is at stake here? Whether the tribal court had jurisdiction. Geroux moved on August 8, 2008 to have his case sent back to tribal court, arguing that his complaint should be decided in tribal court. The Assurant and Union Security filed a counterclaim on August 21, 2008 seeking to move action to Federal Court. They also opposed Geroux’s motion to review the case at tribal council on August 25. In response, Geroux moved to dismiss Union Security’s counterclaim.

Click here to continue reading Tribal Court Retains Jurisdiction For Tribal Member's Disability Insurance Lawsuit Against Assurant And Union Security

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Our client, an Engineer Manager specializing in Fluid Power Engineering, suffers from severe Coronary Artery Disease. Despite the fact multiple diagnostic tests performed indicated there were no abnormalities with his heart, he suffered two heart attacks in the span of six months. Following his second heart attack in July 2006, he applied for long-term disability benefits under his employer’s long term disability plan through Prudential. Prudential initially approved his claim for disability benefits, and following his elimination period he began receiving long term disability benefits in September 2006.

Click here to continue reading Denial Of Long-Term Disability Benefits To Engineering Manager Is Reversed By Prudential

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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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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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Our client, who suffers from Parkinson’s, was a highly skilled engineer and operations manager for an international corporation before his illness rendered him unable to perform the duties of his occupation. Diagnosed with Parkinson’s years before filing for long term disability benefits under his company’s disability plan, he did everything in his power to work at a job he enjoyed and excelled at. However, the nature of his illness began to take a heavy toll, as symptoms relating to his cognitive functioning began to worsen. Left with little choice, he applied for disability benefits under his company’s short term disability policy in March of 2008. He was approved for short term benefits under the disability policy. However, in October of 2008, when the short term disability benefits were exhausted, MetLife denied his claim for long term disability benefits.

He then contacted Attorneys Dell and Schaefer to appeal MetLife’s denial. From the start, MetLife was uncooperative in requests for information made by Dell and Schaefer. Persistent in our representation we finally secured all of the documentation requested. Review of the MetLife claim file immediately identified how MetLife wrongfully denied our client’s claim. The most glaring injustice was that in denying his claim, MetLife relied upon the opinion of a licensed social worker and a registered nurse. MetLife had a duty to our client to give his claim for long term disability income benefits a full and fair review, and failed to do so when they decided to not hire appropriately qualified medical providers in the area of Parkinson’s to render opinions as to our client’s functional capabilities. In addition to this, the individual’s hired by MetLife to review our client’s medical records did not contact our client’s treating physicians to gain any insight into his condition, nor did they draft any reports documenting their findings and opinions. Moreover, MetLife relied on the report of a vocational rehabilitation specialist, who completely failed to identify the duties of our client’s occupation. Instead, the specialist concentrated on the most insignificant of job duties in rendering her opinion our client could perform his occupation.

Attorney’s Dell and Schaefer helped to guide our client to proper treating physicians for his condition, as well as tests to be performed that would counter MetLife’s reasons for denying his claims for long term disability benefits. To develop a better understanding of our client’s pre-disability occupational duties and his difficulty performing those duties, Dell and Schaefer contacted past co-workers for further insight, and to help present a complete picture of the battle our client endured with Parkinson’s. Armed with objective testing to prove cognitive dysfunctions and an understanding of the true nature of our client’s occupation, Dell and Schaefer filed an extensive appeal with MetLife to overturn the wrongful denial of long-term disability benefits. MetLife had 45 days under ERISA in which to review the appeal, however, presented with overwhelming evidence and arguments as to the mishandling of the claim, MetLife overturned its denial in less than one month.

This case was handled by attorneys Gregory Dell and Stephen Jessup.
 

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Since late 2004, our client, Sumiko Besser has been battling Prudential Insurance Company in an effort to secure her long-term disability benefits. Prudential currently owes her in excess of $900,000 in unpaid long-term disability benefits. Our client became disabled on May 10, 2004, as a result of chronic neck pain caused by multi-level degenerative disk disease. Attorneys Dell & Schaefer submitted two administrative appeals to Prudential and in early 2008 filed a lawsuit in United States District Court of Hawaii. On May 19, 2009, Attorneys Gregory Dell and Leonard Feuer presented our client’s case at trial and we are currently waiting for a verdict from the court.

At the time of filing for disability our client was working in Honolulu for Hilton Vacation International selling timeshares. Our client, a 47 year-old woman was at the prime of her sales professional career when she gave up her job due to chronic neck pain. Her pre-disability income and was in excess of $320,000. The time-share and real estate market was booming in mid 2004 when she was forced to stop working. Our client worked more than 60 hours per a week and was paid pure commission. As an employee benefit our client paid a monthly premium for a long-term disability policy that would pay her 60% of her monthly income each month if she became unable to perform the substantial and material duties of her occupation as a vacation sale professional. Prior to filing for disability, our client had been continuously treating with a Rehabilitation and Medicine doctor in order to help manage her pain. Additionally, she had undergone multiple cervical injections, was taking pain killers daily, missed multiple days from work, and attempted to reduce her hours in order to keep her job. Our client has seen more than 8 different doctors (orthopedics, neurosurgeons, physiatrist, and anesthesiologist) and has been recommended for neck surgery by 3 different doctors. All of these doctors support her inability to work due to chronic neck pain.

Prudential initially denied the claim on January 25, 2005 and relied on a paper review by one of their consulting doctors, who claimed that if she used a phone headset and an ergonomic chair to do her job she would have no problems. This Dr. never examined or spoke with our client. Our research revealed that Prudential paid this doctor more than $130,000 in 2005 and Prudential has a long-standing relationship with this doctor who practices at a medical school next to Prudential's NJ headquarters. On July 28, 2005 our firm submitted a 65 page single spaced appeal of the denial to Prudential with additional support for our client's claim. During the review of the first appeal, which was suppose to be completed in 45 days according to ERISA law, Prudential decided they wanted to have a doctor of their choice examine our client. This exam took place, December 16, 2005, which was now more than 1.5 years after our client’s claimed date of disability. We requested to video the exam of our client, as we usually do, and the Dr. hired by Prudential refused. The exam took place, and the doctor found that our client has objective evidence of a cervical degenerative condition; however it should not prevent her from doing any job. The doctor was suppose to determine if her medical condition would prevent her from doing her substantial and material duties as a vacation sales person, but he went as far as to say she had no restrictions preventing her from doing any job. While Prudential would not allow the video of the exam, Prudential hired a private investigation company to follow our client around with a video camera for 7 days. The first two days of video surveillance were the day before and the day of the exam with Prudential's hired doctor. The remaining days were within the following two weeks. Prudential paid $9,439.00 to the video surveillance investigators. Over 7 days, the investigators produced a total of 30 minutes of tape, of which more than 20 minutes was our clients visit to the beach on New Years Eve day with her family.

On February 13, 2006 Prudential entered their second denial and relied on the exam by the doctor they hired (paid him $5,000) and their own internal doctor’s report. On August 21, 2006, Attorneys Dell & Schaefer submitted a 100 page single spaced appeal letter to Prudential with additional information. ERISA law requires a policy holder to submit appeals and exhaust administrative remedies before the insured is allowed to file a lawsuit in Federal Court. Additionally, ERISA provides that an insured shall receive a full and fair review at each level of the appeal. The idea is that the Insurance Company will have different people review the claim at each level of the appeal. Unfortunately for our client, when she submitted her final appeal it was denied by the same Prudential Vice-President that made the decision to deny her first appeal submitted on July 28, 2005. Prudential treats large monthly benefits different than other claims and has a policy that any monthly benefit in excess of $10,000 must be approved by a Director or Vice President. The second and final appeal was denied on December 5, 2006 and Prudential relied on the video surveillance of our client at the beach on December 31, 2005 as the basis of their denial. Furthermore Prudential sent the video to the doctor they hired and he said that the video shows that our client could work for only as long as she seems to be functioning on the video. Keep in mind the video was 30 minutes long and our client worked a 60 hour week. Additionally, the video shows our client swimming for a total of 2 minutes and 30 second, and Prudential felt that if she could swim, then she can perform the duties of her 60 hour work week.

Following the second and final appeal denial a lawsuit was filed in Federal Court and Prudential has continued to fight the case every step of the way. Prudential denied our request to take depositions of 8 prudential company representatives and after an extensive motion the Judge granted the request. The depositions were taken and the information obtained was extremely helpful in presenting our client’s case at trial. Some individuals deposed at Prudential were the Vice President of Long-Term Disability, Director of Group Disability and Director of the Appeals Unit. During the pending lawsuit, Prudential challenged the standard of review to be used by the court claiming that the court did not have the discretion to review the entire Administrative Record and make a determination if our client is disabled. Prudential argued that that the disability policy granted them "discretion" and asked the court to apply an arbitrary and capricious standard, which means the court can only reverse the claim denial if the court finds that Prudential acted unreasonable. Our firm filed a motion to clarify the standard of review, which Prudential opposed, and the court agreed with our Client that Prudential does not have discretionary authority and the court must review the entire record De Novo.

Prudential’s counsel has already indicated that they plan to appeal the courts ruling on the standard of review if they loose at trial. Prior to Trial on May 19, extensive Trial and Reply Trial Briefs were filed with the court on behalf of our client. ERISA law is very restrictive and does not provide a claimant with the right to a jury trial, therefore this case will be decided by a Judge only. Prudential filed a motion recently claiming that ERISA does not allow our client to call live Dr. testimony at trial. In accordance with ERISA, The judge granted Prudential's motion and said that the medical issues in this case do not rise to the level of complexity which requires additional medical testimony.

If our client wins, Prudential will undoubtedly appeal and the case may go on for another 1.5 years. Currently she is owed disability benefits from November 6, 2004, in excess of $900,000 at a monthly benefit amount of approximately $16,000. Our client has been unable to work since the date of her accident. The attorney fees accrued to date are in excess of $500,000 and more than 1,000 hours of legal time have been spent on this case. The court has the discretion to award attorney fees if our client wins at trial. Our client is entitled to benefits until age 65 if she is disabled under the terms of the disability policy. After 2 years of disability the definition of disability changes to unable to perform any occupation that pays 60% of pre-indexed disability earnings within 12 months of her return to work. As of right now that would mean a job that pays our client $228,000. The total value, of our client’s policy, including benefits to age 65 is approximately 3 million dollars. ERISA does not allow punitive or bad faith damages against prudential if the court finds that they wrongfully denied benefits to our client.

Prudential has nothing to loose by denying our client's claim, because if they are proved wrong, they end up having to pay what they should have paid 4.5 years ago. Prudential is able to hide behind the protections of ERISA, find a doctor to say our client can work, and then see if a court will make them pay a claim 5 year latter. In the meantime Prudential delays until the Appellate court tells them they must pay. Along the way, Prudential may make a low-ball offer after they have backed the claimant into a financial hole that leaves the claimant without the ability to fight anymore. We believe our client has a great chance of winning this case as the medical evidence is very strong in her favor, but the public should continue to be aware of the unreasonableness of ERISA law and the way in which companies such as Prudential manipulate the system to their advantage. The unreasonable actions of large disability insurance companies were they place their profits before the well being of those that bought disability contracts to protect themselves shall not be tolerated.

Attorneys Dell & Schaefer handle long term disability claims throughout the country and currently represent more than 200 hundred claimants against every major long-term disability insurance carrier. We have lawsuits pending against multiple disability carriers in multiple states. We welcome the opportunity to provide a free consultation regarding any long-term disability insurance claim.
 

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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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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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Daniel J. Rochow, the former president of Arthur J. Gallagher & Co., was insured under Life Insurance Co. of North America’s disability plan. The Sixth Circuit affirmed that a disability insurer’s denial of benefits to a former employee who was terminated because his symptoms prevented him from performing his duties was arbitrary and capricious, even though the employee’s diagnosis was not made until after he stopped working.

Daniel Rochow began to experience short term memory loss and was demoted from President to a sales executive. Rochow was diagnosed with a rare form of herpes which causes brain trauma. Rochow sought long-term disability benefits through Gallagher’s Group Insurance Plan, which was administered by Life Insurance Company of North America (LINA). LINA contended that Rochow’s inability to function did not occur until his hospitalization after he stopped working. 

Rochow challenged LINA’s denial of benefits under the Employee Retirement Income Security Act and the District court ruled that LINA’s denial was arbitrary and capricious. The Sixth Circuit affirmed, concluding that Rochow presented sufficient evidence to establish that he was disabled before he stopped working within the meaning of the plan.

Daniel J. Rochow v. Life Insurance Co. of North America, No. 05-2100, 6^th Cir.; 2007 U.S. App. LEXIS 7599.

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Donald Holman, a maintenance technician for Tyson Foods Inc., was insured under Tyson’s group disability plan with Hartford Life and Accident Insurance Co. In April, 2001, Mr. Holman began experiencing headaches and blurred vision. After a cranial MRI, Mr. Holman’s neurologist diagnosed him with a Chiari malformation. Mr. Holman’s neurologist stated he was disabled and Mr. Holman stopped working and filed a claim for long-term benefits.

Hartford consulted their doctor who further confirmed Mr. Holman’s disability stating activities such as lifting, pushing, and pulling could cause further complications in Mr. Holman’s condition. Hartford initially approved Mr. Holman’s claim for benefits but later found he was not totally disabled and terminated benefits. Mr. Holman filed suit in the U.S. District Court for the Western District of Arkansas, seeking reinstatement of benefits under the Employee Retirement Income Security Act.

Judge Jimm Larry Hendren ruled that terminating benefits to a claimant suffering from a rare neurological condition was an abuse of discretion. Judge Hendren said Hartford had objective medical evidence of Mr. Holman’s condition and disregarded the opinion of his treating physicians. “Hartford’s failure was based on an almost total failure to investigate Holman’s claims” stated Judge Hendren and found Mr. Holman entitled to long-term disability benefits.

Donald Holman v. Hartford Life and Accident Insurance Co., No. 04-5305, W.D. Ark.; 2006 U.S. Dist.

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