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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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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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.

In July 2008, Prudential terminated his disability benefits, citing a lack of objective medical evidence to support his disability and resulting inability to perform his job. Upset and confused by Prudential’s denial of his disability benefits, he contacted Attorneys Dell & Schaefer to retain our services in the filing of his appeal. Review of the claim file by Attorneys Gregory Dell and Stephen Jessup revealed that Prudential was not properly classifying or recognizing the true nature of his pre-disability occupation with his employer. Therefore, Prudential was not reviewing his medical condition as it related to his ability to perform the duties of his occupation. Dell and Schaefer attacked Prudential on this fact, submitting an initial appeal in January of 2009 that detailed the duties of his occupation and how, in light of these duties, his coronary artery disease prevented him from being physically unable to perform those duties. Prudential reviewed the initial appeal and within three weeks sent a second denial letter.

Review of Prudential’s second denial letter clearly indicated that Prudential did not even take into consideration the information submitted in the first appeal regarding our client’s occupation and again cited no medical evidence to support disability. A second appeal was filed in late July 2009, which once again illustrated how Prudential was improperly reviewing our client’s claim for benefits in violation of ERISA. Attorneys Dell and Schaefer argued that although objective tests such as EKG’s indicated no abnormalities, the practice of medicine is not an exacting science, and that the only truth in our client’s medical history is that he repeatedly “passed” testing, and experienced a heart attack upon returning to work not once, but twice.

Following the submission of the second appeal, Prudential took the full 45 days to review his claim, and even requested an extension of an additional 45 days. During this period Prudential requested our client undergo an Independent Medical Examination, where once again diagnostic testing appeared normal, but his performance on other tests indicated the severity of his impairment. Faced with the reality of our client’s medical history, and the fact they had improperly reviewed his claim for benefits, Prudential reversed their decision to terminate our client’s benefits and paid all past due disability benefits. Fortunately our client was able to prevail without the need to file a lawsuit.

Attorneys Dell and Schaefer have represented hundreds of clients who have had benefits terminated or denied under Group Long Term Disability Policies. Attorney Stephen Jessup or Gregory Dell can be reached at 800-828-7583.
 

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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 on July 14, 2009 the Federal Judge issued a 20 page opinion reversing Prudential’s denial of benefits. Motions are currently pending for calculations of past due disability benefits, interest, and attorney fees. A copy of the court’s opinion is available upon request.

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. In the July 2009 opinion, the court held that the video surveillance of our client was not representative of her ability to work as she had advised Prudential that she would like to go to beach on the weekends with her husband.

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.

Prior to Trial on May 19, extensive Trial and Reply Trial Briefs were filed with the court on behalf of our client. 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. ERISA law is very restrictive and does not provide a claimant with the right to a jury trial, therefore this case was decided by a Judge only.

Prudential will likely appeal and this 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 for their wrongful denial of benefits.

Prudential has nothing to loose by denying our client's claim for long-term disability benefits, 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 years latter. In the meantime Prudential delays payment 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. All though our client won her case, 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 where 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 company. 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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The recently decided case of Barteau v. Prudential, 2009 WL 1505193 (C.D. Cal.) is a reminder of what ends Prudential will go to in denying a claim for benefits. Carl Barteau was an Assistant Professor of Mathematics at DeVry Institute of technology for almost eight years before becoming disabled. Mr. Barteau had suffered problems with his right eye since childhood. In 2002 he underwent surgery for glaucoma, which was complicated by a scratched cornea. As a result of the scratched cornea he was instructed to wear a replaceable contact lens and was reassured the eye would heal on its own. Soon after he began experiencing excruciating pain, and on January 7, 2003 he began treatment at UCLA. Biopsies of the eye were taken and showed evidence of eye fungus. On January 17, 2003, he became hospitalized and underwent surgery to remove a large part of the infection from his right eye. On February 22, 2003, he underwent a second surgery on his right eye. Following the second surgery he began to experience a lack of vision in his right eye and disabling light sensitivity in both eyes.

Mr. Barteau filed for short term disability under his employer’s Group Plan, effective January 7, 2003, and was awarded short term disability benefits for the maximum period. As the period of short term disability benefits began to wind down, he attempted to return to work, but his conditions were such that he was unable. On July 2, 2003, he filed for and received long term disability benefits due to loss of vision in his right eye, eye strain to his left eye, headaches and blurry vision.

After Prudential approved his long term disability benefits, Prudential advised Mr. Barteau of his duty under the group plan to apply for Social Security benefits. Mr. Barteau applied, and was denied in December of 2003. Prudential then offered the services of a company to help him appeal the decision.

While the social security appeal was ongoing, Prudential began to investigate Mr. Barteau’s claim in March of 2004 to determine whether or not he was still disabled. Prudential determined in August of 2004 that his condition had remained the same based upon the notes and medical records from Mr. Barteau’s treating physicians. However, this did not stop Prudential from investigating his claim again in September of 2004. Despite evidence of impairment in his medical records Prudential determined that his eye condition should not preclude him from working and requested additional medical records from his eye doctor, which clearly indicated that his eye condition was leading to severe eye strain and migraine headaches. Prudential, realizing they did not have an avenue to deny benefits based on those records then requested medical records from Mr. Barteau’s primary care physician. After receiving and reviewing these records along with those of Mr. Barteau’s eye doctor, Prudential determined in November of 2004 he was still disabled under the policy.

Nearing the two year mark of receiving long term disability, Prudential wrote Mr. Barteau at the end of December 2004 to inform him that in July of 2005, the definition of total disability would no longer relate to his occupation, but would change to “any occupation.” Prudential then requested in January of 2005 that a functional capacity evaluation be performed. The results of the evaluation indicated that Mr. Barteau suffered from severe headaches which precluded the attention and concentration required for even simple unskilled work tasks, and that due to the disabling cognitive impact caused by his migraines, he suffered from disabling fatigue. Shortly thereafter, on March 15, 2005, Prudential was informed Mr. Barteau’s claim for social security benefits had been approved.

It would seem reasonable to assume that since Mr. Barteau had met the Social Security definition of disability, that Prudential would consider this evidence of disability from any occupation. But this was not the case. In May of 2005, Prudential hired a vocational rehabilitation specialist to review the claim. The specialist determined that Mr. Barteau had medical complications that would impact his ability to work. Having no way to deny benefits at this point, Prudential informed Mr. Barteau in June 2005 that their evaluation had been completed and they found he was totally disabled from performing any occupation.

All seemed to be in order for Mr. Barteau, that is until March 2006 when Prudential conducted another review of his claim. Prudential requested limited medical records from Mr. Barteau’s treating physician, which created a gap of medical records of almost a year and a half! Additionally, Prudential had Mr. Barteau complete a generic form titled, “Activities of Daily Living Questionnaire.” Based upon limited medical records and a generic questionnaire, Prudential determined Mr. Barteau was not disabled from any job, and terminated his benefits without any evidence of improvement or progress in his condition and informed him on September 8, 2006 that his claim was being terminated.

Mr. Barteau informed Prudential he was also seeing an orthopedic specialist for spine pain and a bio-feedback psychiatrist. Prudential asked for proof of disability from these doctors within 30 days or the claim would be terminated. Mr. Barteau underwent MRIs and a neuropsychological evaluation in order to support his claim. However, the results of the evaluations would not be completed in the time frame required by Prudential. Upon learning this, Prudential informed Mr. Barteau that they would allow him the necessary time to obtain this pertinent information prior to any decision.

Prudential then went against its word and six days after informing Mr. Barteau they would await the results of the MRIs and neuropsychological evaluation they began their evaluation. Without receiving the pertinent information they knew was coming, Prudential terminated his benefits as of October 25, 2006.

Results from the neuropsychological evaluation were received by Prudential on November 4, 2006. The results indicated Mr. Barteau was suffering from multiple severe cognitive problems due to his conditions. Faced with objective findings of disability it would be reasonable to expect Prudential to reinstate Mr. Barteau’s benefit, but instead Prudential hired a doctor who advertised on his website that he had done over 1500 Psychiatric Disability reviews for disability insurance companies to review the neuropsychological evaluation. It was no surprise that this doctor determined that Mr. Barteau was not totally disabled from any occupation.

In filing his first appeal, Mr. Barteau also included the findings of his MRIs and electrodiagnostic studies. The MRIs indicated multilevel disc herniations in his neck and back and the electrodiagnositc testing showed evidence of acute cervical radiculopathy and chronic right lumbar radiculopathy. However, Prudential again looked for any outlet to deny disability benefits and sent only a portion of Mr. Barteau’s medical records to a hired physician and a separate medical review agency for review. Both the hired physician and medical review agency determined Mr. Barteau was not totally disabled from any occupation, and based upon this information Prudential upheld its denial.

Mr. Barteau filed a second appeal and presented additional significant and reliable evidence of disability. In the information provided office notes from 45 office visits to treat for his disabling pain, headaches, and cognitive conditions. Treatment indicated lumbar epidurals and facet blocks under fluoroscopy, along with continued cognitive dysfunctions. Prudential took the information in this second appeal and sent the information to be reviewed by the very doctors who had previously opined Mr. Barteau was not disabled from any occupation. Prudential once again upheld its denial of benefits.

Mr. Barteau then filed suit in federal court. Prudential’s underhanded and inappropriate actions in the handling of the claim were set out before the Court. In May of 2009, almost three years after being denied benefits, the Court determined that Mr. Barteau continued to be disabled under the terms of the plan when Prudential terminated his benefits. The Court asserted Prudential had done nothing to show improvement in Mr. Barteau’s condition to justify termination of benefits, nor did they present any vocational evidence which identified employment opportunities for Mr. Barteau. In making its ruling, the Court ordered all back benefits owed to Mr. Barteau be paid, along with interest. Additionally, the Court acknowledged Mr. Barteau’s right to recover reasonable attorneys’ fees, which were to be determined at a later hearing.

What appeared to be a “cut and dry” claim for disability proved to be anything but. Mr. Barteau endured numerous injustices by Prudential over the course of the three years it took to litigate his case. Mr. Barteau’s case serves as a reminder of the ends Prudential will go to in order to deny claims. In denying disability benefits, Prudential once again assumed that they could hide behind the wall of ERISA and wrongfully deny long-term disability benefits. Fortunately the court disagreed and made the right decision. It is likely that Prudential will appeal the courts decision.
 

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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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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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Our client was a Territory Sales Specialist for a major medical supply company, responsible for sales spanning a large geographic area with incredibly high sales quotas. Physical requirements of her occupation required here to travel extensively, drive long distances on a day to day basis, carry samples and products that could weigh in excess of thirty pounds, and give presentations and demonstrations. Her job required her to have a strong understanding of all aspects of her company’s products, and keep current with all advancements in the field of medicine as it relates to her company’s products.

Our client had suffered from neck and back pain since she was involved in a car accident several years ago. Throughout the years she sought treatment, but remained focused on her career, pushing aside the discomfort she was experiencing. However, by 2008 the pain had become unbearable, and it was having a severe impact on her ability to perform her occupation. An MRI of her cervical spine revealed multiple disc bulges and an extrusion at the C6-7 level with evidence of narrowing and compression of the spinal cord, which caused radiating pain to her arms.

Our client filed a claim for disability benefits under her company’s long term disability policy with Prudential. During this time she was released from employment and no longer had adequate health insurance to treat regularly to treat her condition properly. At first Prudential provided benefits under reservation of rights pending more medical information. She attempted to keep up with all of Prudential’s requests, but soon became overwhelmed. In September of 2008, Prudential terminated her benefits, citing the “Proof of Claim” and “Appropriate Care” provisions contained in the policy.

No longer able to deal with the constant harassment from Prudential, she contacted the law firm of Attorneys Dell and Schaefer. Dell and Schaefer immediately contacted Prudential, requested all claim information and requested Prudential no longer contact our client. Through no fault of her own, due to her lack of adequate health insurance to cover the cost of treatments, a review of the medical records made it apparent that the course of treatment our client had been receiving would make it difficult to satisfy the “Proof of Claim” and “Appropriate Care” provisions under the policy. Armed with the limited information available, Dell and Schaefer filed an Appeal with Prudential.

Based upon the information presented and the arguments for disability benefits contained in the appeal, Prudential reversed their prior denial of long-term disability benefits and agreed to conduct further review for disability benefits for 2009. Steven Jessup, of Attorneys Dell & Schaefer was the lead attorney on the file and continues to manage the claim on a monthly basis.
 

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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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