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.
