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

During the week of July 13, 2009, Attorney Gregory Dell spent several days in Portland, Oregon deposing multiple employees of The Standard Disability Insurance Company. Prior to taking the depositions, The Standard refused to make their employees available for deposition and instructed their attorney to file a motion preventing Attorney Gregory Dell from taking the depositions. The court received multiple motions and entered an opinion stating that our client has the right to take the depositions and The Standard must produce their witnesses. The Standard’s motion for attorney fees against our client was denied. It is obvious that the Standard did not want their claims handling practices exposed through deposition testimony.
Attorneys Gregory Dell and Cesar Gavidia filed a lawsuit in Federal Court, after The Standard denied our client long-term disability benefits. Our client, an invasive cardiologist, has been unable to work in his occupation as result of neck, back and shoulder problems. Our client purchased his long-term disability policy as a benefit offered through his membership in the Southern Medical Association. Our client has been unable to perform the duties of an invasive cardiologist due to the requirement that her wear a heavy lead apron during most of the cardiac surgeries he performs on patients. Our client’s claim is supported by his treating neurologist.
The Standard relies on the paper review of our client’s file by two neurologist in order to deny disability benefits. Moreover, while reviewing the claim, the Standard never bothered to take into consideration what percentage of our client’s occupational duties required him to wear a lead apron. During the recent depositions of The Standard employees, none of the employees had any idea how much a lead apron weighs, how long our client would need to wear the lead apron during a procedure, or specifics about the procedures that an invasive cardiologist performs. The Standard was of the opinion that our client should have no restrictions and limitations, and that the only reason he gave up his career as an invasive cardiologist was so that he could work as a chief medical officer for a medical tool manufacturer.
It is interesting to note that our client had a long-term disability policy with Unum Provident and the definition of disability during the first two year of benefits was almost identical to the definition of disability in the The Standard long-term disability policy. Unum Provident evaluated our client’s claim and determined that he was unable to perform his duties as an invasive cardiologist. Furthermore, Unum Provident’s outside neurologist reviewed our client’s medical records and opined that our client should not wear a lead apron and therefore would be prevented from working as an invasive cardiologist. During deposition of the Standard employees, they did not have any explanation as to how Unum Provident’s doctor could find that our client had restrictions and limitations, but The Standard’s doctors found that our client was perfectly healthy.
The Standard recently filed a Motion for Summary Judgment and basically alleged every possible defense they could think of, in hopes that something would stick. Attorneys Gregory Dell and Cesar Gavidia believe that the motion filed by the Standard is a desperate attempt to further their denial of long-term disability benefits. A response to the motion for Summary Judgment is currently being drafted and the jury trial is set for October 2009 in Federal Court.
 

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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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