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

For several years, Elizabeth Black was the executive director of Milwaukee World Festival, Inc. (MWF), the organization that governs Summerfest, a music festival in Milwaukee. Black was covered under the company’s disability insurance plan, underwritten and administered by Standard Insurance Company. Black was diagnosed with multiple aortic aneurysms bulging and weak areas in the aorta. In 2001, Black had surgery to repair the aneurysms and was recommended by her doctor to medically manage a third aneurysm in the descending aorta.

After surgery and recuperation, Black went back to work in the summer of 2001 being monitored closely by her doctor, Dr. Brian Griffin, as well as her cardiologist, Dr. David Slosky for hypertension. At the end of 2002, Black was in contract negotiations, trying to land another five year contract with MWF, but at the same, time her relationship with co-workers was strained to the point that she was experiencing harassment. In a letter sent to the counsel for MWF, Black complained about her co-workers, the harassment and her desire for a new contract. She sent letters from her two doctors as well as her neurologist Dr. Griffin explained that Black, “has significant hypertensive problems . . . it is vital that her blood pressure be well controlled. Stress, particularly in the form of verbal abuse, is very deleterious for her blood pressure control”

Dr. Slosky wrote that Black, “has significant hypertension . . . her blood pressure is quite labile and reactive to stressful conditions. It is particularly sensitive to acute and direct confrontation. . . . The patient should not be subject to harassment of this kind.” And the neurologist, Dr. Eric Maas, wrote, “any undue stress should be minimized given Black's medical history particularly with regard to hypertension and her vascular disease,” and that “had been undergoing a great deal of stress stemming from her responsibilities as Director of Summerfest in Milwaukee and her contract negotiations,” and he requested “that these factors be taken into account in planning these negotiations with Elizabeth.”

In July 2003, the committee voted not to renew Black’s contract. On August 6, 2003, Mrs. Black filed a disability claim with Standard Insurance Company. Black sent a letter to the board of directors, stating that she was unable to perform her duties and that doctors had advised her that she could no longer work – that her condition had been worsened by her job activities and stress.

Standard reviewed medical records from Dr. Griffin and Dr. Slosky and Dr. Michael Deeken, Black’s psychiatrist. They also received an ‘attending physician statement’ from Dr. Griffin, stating that he had advised her to stop working as of 2003, and that she is unable to control her blood pressure. On visits to Dr. Slosky on August 2001, July 2002, and July 2003, records revealed that Black’s health was stable, with the exception of poorly controlled hypertension.

Dr. Slosky wrote a letter to the Standard Insurance Company, stating that that Black should cease working due to poor blood pressure control and the “potential for aneurysm enlargement/dissection.” Her psychologist, Dr. Deeken also submitted a statement that Mrs. Black had a diagnosis of depressive disorder and anxiety disorder. Adding more evidence to her case, Mrs. Black submitted a copy of the Social Security Administration’s approval of her disability benefits. She had been considered disabled due to aortic disorders and anxiety disorders by the SSA, and was considered disabled by another disability insurance company, from which she had additional coverage.

Standard denied Mrs. Black’s claim for disability benefits, stating there was not enough evidence to consider her disabled under the plan. However, she appealed the denial, including additional letters from her doctors, who stated that Black had experienced fatigue and concentration problems. She also submitted letters from friends and family that had witnessed her concentration and memory problems. Standard then consulted four physicians, who took a look at Black’s medical records and evidence. Each of them concluded that Black was not disabled, while Dr. Fraback (one of the reviewing doctors) suggested Standard consult a cardiologist, which they did.

Two cardiologists – Drs. Kent Williamson and Storm Floten reviewed the charts. Dr. Williamson noted that while stress may reduce the risk of an aneurysm rupture, that Black’s condition could be managed with medication and that since her scans had not shown any significant change, there was no solid evidence that she was unable to work. Dr. Floten gave his opinion that Black’s aneurysm had not been affected by her job and that the “descending aorta has not enlarged significantly in the last three years.”

Both had concluded that she was not disabled. Dr. Gwinnell, a psychiatrist was consulted by Standard, who reviewed Black’s claim and stated that her complaints of fatigue and cognitive difficulties was not supported by her medical records. On January 2005, Black took the case to the district court, where she was ruled against. She appealed again to the United States Court of Appeals to the Seventh Circuit.

Black’s case was reviewed; specifically the fact that Standard denied Black while the SSA approved her. It was found that the medical information given to the SSA was not the same information given to Standard, and therefore, that Standard was not opposing the SSA, but that the cases were completely different. The court also found that the physician’s reports were conflicting and shifted to support Black’s disability claim. The court therefore supported the district court’s decision to rule for Standard.

*About the Author: Gregory Michael Dell is an attorney and managing partner of the disability income division of Attorneys Dell and Schaefer (www.diattorney.com). Mr. Dell and his team of lawyers have assisted thousands of long-term disability claimants with their claims against every major disability insurance company. He can be reached at 888-SAY-Dell or gdell@diattorney.com.
 

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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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More than sixteen years ago, shortly after starting his dental practice, Dr. Johnson (name has been changed for privacy purposes) bought a disability insurance policy to protect his income in case of an illness or injury that prevented him from completely or partially working in his chosen profession. Over the years, Dr. Johnson’s practice grew substantially and so did his annual income. As such, Dr. Johnson’s insurance carrier made several offers to increase his monthly disability benefit in case of total disability. Each time, Dr. Johnson gladly accepted the increase in premium payments for the added protection.

Dr. Johnson’s dental practice consisted mainly of bridge and crown work, root canals, extractions, and general dentistry. Unfortunately, several years ago, Dr. Johnson began to experience stiffness and pain that radiated through his right arm and shoulder. At first, he dismissed the pain as overuse and applied home remedies. However, over time the pain became more severe, more frequent, and lingering longer. Dr. Johnson sought treatment from a rheumatologist and was subsequently diagnosed with osteoarthritis. Dr. Johnson continued to treat patients. 

However, his pain, now excruciating after only two hours of use, forced him to change his practice significantly. He had to forego crown and bridge work, root canals, and more difficult extractions.

After almost a year of cutting back, Dr. Johnson read the long-term disability income policy he bought so many years earlier. Dr. Johnson’s policy read,

“You are considered Totally Disabled, if due to injury or illness, you are unable to perform the Substantial and Material Duties of your Regular Occupation and are under the Regular care of a Physician. . . . You are considered Residually (Partially) Disabled if due to injury or illness, you are unable to perform one of the material and substantial duties of your regular occupation, have at least a 20% loss of earned income, and are under the regular care of a physician.” 

Dr. Johnson decided to apply for disability income benefits.  Shortly after he mailed his application for disability benefits to his disability insurance company, Dr. Johnson received a telephone call from the disability company. The claims analyst asked Dr. Johnson several questions regarding his condition and his continued treatment of patients. The insurance company requested additional documentation and indicated that their investigation might take several weeks. However, after only two and a half weeks, the insurance carrier sent Dr. Johnson a correspondence that read “We conducted a thorough investigation into your claim for disability income benefits and we are pleased to inform you that you are eligible to receive benefits under the terms of your disability income contract. As you are still working in your profession, you will receive partial disability benefits as long as you remain disabled and continue to suffer at least a 20% loss of earned monthly income.” Dr. Johnson was pleased by this news. Many of his colleagues had difficult experiences with their disability insurance companies when attempting to collect from their disability income policies. 

Dr. Johnson was required to provide the disability insurance company with monthly profit and loss statements. During several months he received no benefit, as in those months he did not sustain at least a 20% loss of earned income. Dr. Johnson subsequently hired another dentist to perform procedures that he could no longer safely perform. This resulted in fewer and fewer months in which Dr. Johnson was “eligible” to collect his disability income benefit. After two years of qualifying for disability benefits, Dr. Johnson’s disability insurance company approached him to request a buy-out of his disability income policy. The disability company offered him $100,000.00 for the surrender of his disability policy. Dr. Johnson found this offer fair as in most months he was collecting little or nothing in partial disability benefits. However, before signing the agreement, Dr. Johnson wanted an attorney to review the disability buyout agreement and advise him of his rights. That is when Dr. Johnson contacted Attorneys Dell & Schaefer.

After speaking with Dr. Johnson and reading his contract it became clear to Attorneys Dell & Schaefer that not only was the offer unconscionably low but that Dr. Johnson had fallen victim to what seems to be a common practice among many insurance carriers - advising an individual that he is partially disabled when under the terms of his contract he is totally disabled. When we explained our concerns to Dr. Johnson he was hesitant and stated, “I am still working. I’m not totally disabled.” Like so many others, Dr. Johnson was convinced that total disability meant the complete inability to engage in his occupation. This erroneous assumption was given credence by the insurance carrier’s simple statement, “As you are still working in your profession you will receive partial disbility benefits...”  Dr. Johnson’s incorrect interpretation of his disability policy was created by two years of similar statements from his disability insurance company and eventually a seemingly gracious offer to buyout an all but useless policy for the sum of $100,000.00. 

It was reasonable for Dr. Johnson to arrive at such a conclusion. Social Security provides disability benefits to individuals for the complete inability to engage in any gainful occupation, not to mention the fact that Dr. Johnson’s policy does provide for partial disability benefits. However, this was not a Social Security claim, but rather a long-term disability policy. As we explained to Dr. Johnson, under the terms of his disability policy, total disability means the inability to perform the “substantial and material” duties of his occupation as they were just prior to his illness. Dr. Johnson’s substantial and material duties as a dentist prior to his disability consisted of root canals, extractions, simple and complex, consultations, and many cosmetic procedures. However, Dr. Johnson’s post-disability duties consisted mainly of some simple extractions and consultations. He was simply unable to perform all of the substantial and material duties of his occupation and thus was totally disabled under the terms of his long-term disability policy. Most significantly, Dr. Johnson had been paying premiums for over a decade for this protection.

After our initial consultation, Dr. Johnson turned down the disability insurance company’s offer to buy out his policy and retained Attorney’s Dell & Schaefer to assert his rights to total disability income benefits under the terms of his contract. Attorney’s Dell & Schaefer were able to secure Dr. Johnson total disability benefits, un-paid back benefits totaling almost $200,000.00, interest on his back benefits, and attorney fees. Ultimately, we negotiated a lump-sum buyout of Dr. Johnson’s long-term disability policy, one well in excess of the meager $100,000.00 the disability insurance company once attempted to settle his claim for.

Unfortunately, Dr. Johnson’s story is not uncommon. Many disability policies provide that an individual with a partial disability will only be paid through the age of 65, while an individual on total disability benefits will be paid for the duration of the individual’s life. Moreover, partial disability benefits are based on the percentage of earned income lost. Thus, unlike total disability benefits, if the individual does not suffer a loss, benefits are not paid. Finally, in the event of a buyout of a long-term disability policy, an individual would be more apt to surrender his or her contract for less if the individual’s disability were deemed partial rather than total. Insurance companies save themselves millions of dollars each year by such practices. They lead claimants to believe that because they are working, they are only entitled to partial disability benefits and then entice them to surrender their contracts and all rights to their claim, for an unreasonably low price. Fortunately, for Dr. Johnson, he was able to realize the disability insurance company’s deception prior to surrendering his rights.

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