Keeping disability insurance companies honest & Helping claimants collect LTD or STD benefits
The Connecticut Plaintiff, Heimeshoff, filed an ERISA lawsuit against Hartford challenging their denial of long-term disability benefits. Hartford filed a Motion to Dismiss as Heimeshoff filed her lawsuit past the 3-year statute of limitations which was clearly stated in her policy. The District Court granted Hartford’s Motion to Dismiss and Heimeshoff appealed.
Continue Reading Supreme Court Grants Writ of Certiorari in ERISA Lawsuit, HEIMESHOFF V. HARTFORD
In the matter Thurber v. Aetna, Aetna brought a counterclaim against Thurber for the return of overpaid short-term disability benefits pursuant to ERISA 29 USC §1132 (a)(3), which authorizes civil actions brought to obtain appropriate equitable relief to enforce any provisions of this subchapter or the terms of the plan. Thurber had an auto accident and was receiving no fault insurance benefits and STD payment. Thurber’s STD policy stated that benefit paid by a n-fault auto insurance company would offset the STD benefit. Aetna paid the STD benefits and sought an overpayment for any funds paid by the auto insurance carrier.
A Tennessee Plaintiff filed an ERISA lawsuit regarding the denial of her short term disability and long term disability benefits, contending that 1) she was disabled under the terms of the plan; 2) that United of Omaha Life’s reliance upon the opinions of medical experts who did not physically examine her was inadequate to provide a reasoned explanation for its decision to deny benefits; and 3) that the plan’s self-reported symptoms provision provides for disability payments for up to 2 years.
In this case, the terms of Plan delegated to United of Omaha Life full authority and discretion to make eligibility determinations for benefits and to interpret the terms of the Plan, for both short term and long term disability. Because of this, the Tennessee court applied the arbitrary and capricious standard of review. Accordingly, the court was charged only with the task of deciding whether United of Omaha Life’s decision to deny short term and long term benefits to the Plaintiff was based on a reasonable interpretation of the Plan.
Was Ms. Holden disabled under the terms of the Disability Plan?
In order to satisfy the definition of disability under the terms of United of Omaha Disability Plan, the Plaintiff, Ms. Holden, was required to establish that, as a result of injury of sickness, she has a "significant change in Your mental or physical capacity and You are: a) prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and b) unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness. After a Monthly Benefit has been paid for 2 years, Disability and Disabled mean You are unable to perform all of the Material Duties of any Gainful Occupation." The Plan further stated that to receive a monthly benefit, acceptable proof of loss must be provided.
Disability Claim Based on Fibromyalgia, Lupus and Migraines
Ms. Holden had a long documented medical history of accelerated chest pain syndrome, cardiac catheterization with normal findings, noted lupus erythematosus, migraine headaches, noted fibromyalgia, small L1-2 disc protrusion without impingement and minimal L4-5 facet joint degenerative changes, with complaints of symptoms such as heart palpitations, muscle and joint pain, fatigue, arm pain, ankle swelling, syncope, near-syncope, and difficulty with prolonged sitting, rising and lifting.
When Ms. Holden filed her initial claim for short term disability benefits in February 2009, she was treating with her primary care physician, a nurse practitioner, rheumatologist and a cardiologist, with complaints of edema, palpitations, arm pain, nausea and rear syncopal feeling. In May, Ms. Holden was awarded short term disability benefits up to 4/21/2009 as United of Omaha Life’s Nurse Case Manager found that the medical records were sufficient to support restrictions and limitations up to the 4/21/09 office visit with the cardiologist while she was being evaluated for angina and her medications were being adjusted. However, her cardiac conditioned had stabilized as she was not required to follow up with the cardiologist for 6 months, and her main complaints at this point were related to fibromyalgia and lupus.
It should be noted that although fibromyalgia is characterized by subjective complaints of pain and fatigue, there are widely accepted diagnostic tests which are used to objectively establish a diagnosis of fibromyalgia. These tests involve identifying specific "tender points" on the patient. If the patient possesses a minimum of 11 out of the 18 defined tender points, they are eligible for a diagnosis of fibromyalgia. In this case, Ms. Holden never met the criteria for a diagnosis of fibromyalgia and laboratory tests did not confirm a diagnosis of lupus, which also produces subjective symptoms such as generalized pain and fatigue.
Additional medical records were requested and provided to United of Omaha Life, and a second review of the medical file concluded that continued restrictions and limitations were not supported beyond 4/21/09 because Ms. Holden had not demonstrated the she was unable to perform her job duties which were classified as sedentary. United of Omaha Life denied further disability benefits and Ms. Holden appealed.
Ms. Holden continued to treat with her medical providers and submitted her appeal to United of Omaha Life in December 2009 and in January 2010, a third review of the medical file was conducted and determined that the medical information lacked objective physical and diagnostic findings which supported restrictions and limitations that would preclude Ms. Holden from performing the material duties of her regular sedentary job. The denial letter included a detailed summary of the review of the medical records that was performed.
Ms. Holden continued to treat for her generalized symptoms, but physical examinations and diagnostic testing resulted with normal findings.
In June 2010, Ms. Holden applied for long term disability benefits due to pain, inability to get out of bed and inability to drive. A physician’s statement indicated she could not work because of fibromyalgia, osteoarthritis, lupus and migraine headaches. United of Omaha Life had their Senior Vice President and Medical Director, Dr. Reeder, review Ms. Holden’s medical record. Dr. Reeder concluded that Ms. Holden did not meet the accepted criteria for a diagnosis of fibromyalgia or rheumatoid arthritis, and that there was no medical evidence to support functional loss or that Ms. Holden was incapable of working in a sedentary occupation. In December 2010, Ms. Holden’s long term disability benefits were denied and she appealed.
During the appeal, Ms. Holden underwent an arthroscopy surgery, which was tolerated well, and a follow up with her rheumatologist indicated her FMS score was 5/18 with no weakness.
United of Omaha Life retained a rheumatologist, Dr. Peck, to perform a review of Ms. Holden’s medical records. Dr. Peck noted that Ms. Holden’s records indicated that she did not fulfill the criteria for fibromyalgia, and lab results indicated a false positive ANA with no evidence of lupus or other connective tissue disease. Dr. Peck opined that the restrictions and limitations provided by the treating physicians were not supported with medical evidence of impairment, even in the doctors’ own notes, and that Ms. Holden is capable of light work on a full time basis. The restriction to light work results from the facts that she has internal derangements of her knees, lumbar spondylosis and myofascial pain syndrome. Based on Dr. Peck’s review, United of Omaha Life upheld its denial of long term disability benefits.
While Ms. Holden claimed that she was disabled under the terms of the Plan, she conceded that she was not able to clearly prove through her records that she was disabled, but that her claim was entirely dependent on subjective evidence of her disability. She further argued that the Self-Reported Symptoms provision of the plan, in and of itself, was enough to prove that her self-reported symptoms were sufficient evidence of disability. However, United of Omaha Life responded that while self-reported symptoms may be used as evidence of an illness, Ms. Holden still must provide sufficient objective evidence of disability from such an illness. The Court in this case recognized that, while it is unreasonable to require objective evidence of a subjective illness, objective evidence of disability may be required, even when the alleged disability stems from fibromyalgia, as long as the Plan administrator notifies the claimant that it requires additional objective evidence of the disability.
In this case, United of Omaha Life repeatedly requested, from both Ms. Holden and her physicians, objective medical evidence to support her claim of disability and inability to perform her job. Ms. Holden and her physicians failed to submit sufficient objective evidence and several of her treating physicians actually indicated to United of Omaha Life that she was not restricted to perform sedentary work.
Was United of Omaha Life’s reliance upon the opinions of medical doctors that never examiner the claimant Sufficient to support a disability denial?
Ms. Holden further alleges that United of Omaha Life acted unreasonably by basing its decision to deny benefits on the opinions of "non-examining file reviewers", rather than having a physical examination performed. The court found that there was no Plan language which barred a medical file review in lieu of a physical examination.
The independent medical reviewers retained by United of Omaha Life were of the appropriate medical specialties and it is apparent in their reports that they greatly considered the treatment, assessments and opinions of Ms. Holden’s treating physicians. The independent reviewers also provided the treating physicians with the opportunity to respond and provide comment on the reports. Dr. Reeder noted that Ms. Holden’s rheumatologist refused to respond and suggested she be referred for a functional capacity examination. Her cardiologist advised that her chest pain was non-cardiac in nature and that she did not have any work restrictions, including driving. Dr. Reeder wrote to Ms. Holden’s nurse practitioner citing his review of the medical records, and indicating that, in his opinion, the records did not support restrictions and limitations which precluded Ms. Holden from performing her sedentary occupation. Dr. Reeder requested that any information with physical exam or diagnostic test findings, or other objective evidence to support work restrictions and limitations be submitted. The nurse practitioner’s office informed United of Omaha Life that she would not be responding because she agreed with Dr. Reeder’s letter/assessment. Other additional records submitted by Ms. Holden’s treating physicians noted that she did not have any work restrictions or limitations.
Because the independent medical reviewers actually gave great weight to the medical record, and went so far as to contact the treating physicians, by telephone and by letter, to discuss Ms. Holden’s case, under the arbitrary and capricious standard of review, United of Omaha Life did not act unreasonably by relying on their opinions as a basis for the decision to deny Ms. Holden’s benefits.
Outcome of the ERISA Lawsuit Against United of Omaha
The Tennessee Court found that United of Omaha Life did not act unreasonably and its decision to deny Ms. Holden’s short term and long term disability benefits was not arbitrary and capricious. The court granted United of Omaha Life’s motion for judgment on the record and denied Ms. Holden’s motion for judgment.
Ms. Holden’s claim of disability was based solely on subjective complaints of pain and fatigue. All of the objective measures, even for such subjective syndromes such as fibromyalgia and lupus, had negative results for Ms. Holden and no firm diagnosis could be established which would support her claim for disability. Even Ms. Holden’s treating physicians did not support her in her claim for disability. Our law firm did not handle this claim.
Ms. Holden and her disability lawyers incorrectly relied on a self-reported symptoms policy provision as a means to prove her disability claim, when the purpose of that provision was to acknowledge that some conditions are diagnosed based on subjective symptoms, and to establish that in such an instance, the disability benefits would be limited to 24 months. This case is another example of how important it is to have strong physician support in order to obtain of approval of long term disability benefits.
If you have a disability insurance claim and would like to know your legal options, contact Attorneys Dell & Schaefer for a free consultation.
The diagnosis of fibromyalgia is made purely on clinical findings based on the history obtained from the patient and the doctor’s physical examination. There are no objective tests that specifically point the doctor to the diagnosis of fibromyalgia. However, there are several tests that can be done to exclude other possible diagnoses.
The National Health Institute explains that, in patients with chronic widespread body pain, the diagnosis of fibromyalgia can be made by identifying point tenderness areas (typically, but not always, patients will have at least 11 of the 18 classic fibromyalgia tender points), by finding no accompanying tissue swelling or inflammation, and by excluding other medical conditions that can mimic fibromyalgia.
Fibromyalgia patients have widespread body pain which often seems to arise in the muscles. Although many fibromyalgia patients are aware of pain while they are resting, it is most noticeable when they use their muscles. Their discomfort can be so severe it may significantly limit their ability to lead a full life. Patients can find themselves unable to work in their chosen professions and may have difficulty performing their everyday tasks. Most fibromyalgia patients learn quickly there are certain things they do on a daily basis that seem to make their pain problems worse. These actions usually involve the repetitive use of muscles or prolonged tensing of a muscle, such as muscles on the upper back while looking at a computer screen.
Courts Address Problems Producing Objective Evidence in Fibromyalgia Cases
A common reason for the denial of disability benefits when a claimant is diagnosed with fibromyalgia or chronic fatigue syndrome is the failure to provide objective medical evidence of these disorders. Some policies specifically require objective proof of illness. This policy language becomes problematic when disabling conditions such as chronic fatigue syndrome and fibromyalgia cannot be proven by blood tests, x-rays or CT scans.
The First and Second Circuit Courts have addressed this very issue, recognizing that the causes of Fibromyalgia are unknown, that there is no cure and, of greatest importance, its symptoms are entirely subjective. In the case of Cook v. Liberty Life Assurance Company, the court held that "since there are no specific laboratory findings that are widely accepted as being associated with CFS, and given the nature of Cook’s disease, it was not reasonable for Liberty to expect her to provide convincing ‘clinical objective’ evidence that she was suffering from CFS."
Courts do recognize, however, that there are physical limitations imposed by the symptoms of theses illness that do lend themselves to objective analysis. As a result, Fibromyalgia can be diagnosed, more or less objectively, by the 18-points test that can be performed by a rheumatologist or primary care physician.
Failure to Undergo 18 Point Tender Point Test Can Result in a Disability Denial
It is very important to treat with a physician that is experienced in the diagnosis and treatment of fibromyalgia, such as a rheumatologist or your primary care physician if he or she has experience with this disease. A primary care physician may suspect that you have fibromyalgia, but may not be familiar with the signs and symptoms and the way in which to confirm the diagnosis.
Hartford Insurance Disability Denial Upheld By Court of Appeals
On January 24, 2013, the Second Circuit Court of Appeals addressed this very issue in the case of Ianniello v. Hartford Life and Accident Insurance Company. In this case, the Plaintiff, Virginia Ianniello, was suffering from chronic fatigue and fibromyalgia and, as a result, could not perform the material duties of her occupation. Hartford denied her claim on the basis that she failed to undergo the tender points test. The Plaintiff argued that it was unreasonable for Hartford to require her to undergo such testing since her policy does not require it and she was not asked specifically to provide it. Furthermore, she argued that no objective test for fibromyalgia has been generally recognized by the medical community. The Court held that "although the terms of the policy did not require objective evidence of disability, it was not unreasonable for a plan administrator to require tender points testing so long as the claimant was notified." The records showed that the Plaintiff was well aware of the use of the tender points as a diagnostic criterion for fibromyalgia, and had the opportunity to obtain and present such testing results to Hartford. Because the Plaintiff bore the burden of showing that she was disabled, Hartford’s demand for objective evidence was neither arbitrary nor capricious.
Ms. Ianneillo’s failure to undergo a tender points examination cost her the long-term disability benefits she would have been entitled to collect had she provided such evidence. This is why it is extremely important for you and your treating physicians to understand the terms and conditions spelled out in your policy and to pay attention to the reasons for the initial denial. It is also important to ensure that you treat with the proper physician who specializes in the very disease or illness that prevents you from working. This case was not handled by our law firm, but with proper guidance prior to any claim denial, this seems like a claim denial that could have easily been avoided.
If your claim for short or long term disability benefits has been denied, please contact Attorneys Dell & Schaefer for a free consultation.
The case of Reindl v. Hartford Life and Accident Insurance Company is one example of what can occur if you fail to file a timely appeal. Our law firm did not handle this disability lawsuit, but we have blogged about it so that this situation does not happen to anybody with a Hartford disability claim. The Plaintiff, Ms. Reindl participated in an employee welfare benefit plan administered by Hartford during her employment with RKM Enterprises. She stopped working in 2005 and applied for disability benefits which were approved. In 2008, Hartford sent her a letter terminating her benefits claiming that she was able to work and gave her 180 days to file an appeal. Ms. Reindl hired an attorney to file the appeal for her. In December of 2008, her attorney sent a letter to Hartford requesting her claim file and medical records, but failed to file the appeal prior to the 180 day deadline. Hartford did not accept the appeal stating that it was received after the 180 days had expired. Plaintiff’s attorney claimed that the letter he sent in December of 2008 requesting records should be considered the appeal. Hartford disagreed.
A Mere Request for Records Is Not Considered an Erisa Appeal
Ms. Reindl filed a lawsuit against Hartford challenging termination of their long-term disability benefits. The District Court Judge in Missouri granted Hartford’s Motion for Summary Judgment on the basis that Plaintiff’s attorney failed to file a timely appeal and the letter sent by Plaintiff’s attorney requesting records was not considered an appeal. Plaintiff appealed the decision to the 8th Circuit Court of Appeals. The Court upheld the lower court’s decision holding that a timely administrative appeal is a prerequisite to filing an action in federal court challenging the denial of benefits under a plan governed by ERISA. The Court concluded that Hartford’s determination regarding the December 2008 letter was reasonable, as a request for records is not an appeal. Therefore, the decision of the lower court was affirmed and Plaintiff cause of action was dismissed with prejudice.
How Can You Prevent This Very Situation From Happening to You?
The best solution is to make sure to contact an experienced ERISA attorney as soon as you receive your denial letter. This way you can ensure that your attorney has ample time to investigate and build up your claim in order to put together an elaborate appeal in a timely manner. The failure to exhaust your administrative remedies will prevent you from being able to bring suit in a court of law. Once this mistake is made, it cannot be corrected. You can find helpful information about ERISA Appeals by visiting this page.
As national disability insurance lawyers, every day we hear from disability claimants that have been denied long term disability benefits. Most of the these disability claimants have disability policies that are governed by ERISA. We want to get some public opinion from a claimant’s perspective about whether ERISA is a fair law. Please post your comments on our blog so that we can spread the word about changes that must be made to ERISA laws. Here is a recent comment from someone that emailed us earlier today:
I want to help other people with this issue! It’s a serious problem with have in the disability insurance industry. If the law would allow bad faith claims to filed, then it is my opinion that the bad faith denials would stop.
As of now they can deny all they want without suffering any type of penalty or slap on the wrist and hence these issues will continue. To not even award attorney fees is just outright wrong. I’m out 401k , my own funds, it sank me financially and I m out attorney fees. And my issue is easily proven to be bad faith. So, this is just wrong in so many ways the very fact that this ERISA law has been around since 1974 is really disgusting that this has not been fixed. It was initially put forward to stop people from frauding insurance. But now the insurance companies are taking it using this loop hole to commit fraud against a claimant now. Obviously the ERISA act is broken due to this allowance of not penalizing the insurance for wrong doing.
Anyway, I hope Dell & Schaefer and other firms unite and fight and Ill be more than happy to join it. So many are suffering over this and have lost everything we have. I just hope if something did change it would allow those who got punked due to bad denials are allowed to recover losses if they do change something.
Quite often, insurance companies create a maze of entities that could confuse the most cautious policy holders. One entity may own the fund. Another entity may administer the fund. So who should a plaintiff sue when these corporate entities conspire to break a promise to pay disability benefits? Fortunately, skilled disability lawyers know these insurance company tricks and can figure out who is ultimately responsible for a wrongful denial of disability benefits. Sometimes, it depends on bringing the right claim against the right party.
The case of Franklin v. AT&T Corporation is a prime example. The plaintiff worked at AT&T as a systems analyst for eleven years. She had long-term disability benefits under the AT&T Long Term Disability Plan for Management Employees ("the Plan") that were administered by Metropolitan Life Insurance Company ("MetLife’). Sedgwick Claims Management currently handles all AT&T disability claims. In 1999, the plaintiff filed for and received the long-term disability benefits arising from a number of causes including Crohn’s disease, breast cancer, chemotherapy, chills, night sweats, nausea and depression.
Three years later, MetLife reevaluated the plaintiff’s eligibility for long-term disability benefits. MetLife had demanded that the plaintiff apply for Social Security disability insurance benefits and, when she obtained them, reimburse the Plan for all the social security benefits she received when the Social Security Administration agreed she had been totally disabled since 1999. Soon after cashing the check, MetLife determined that the plaintiff was not in fact totally disabled and stated she could return to full-time work in other occupations. This conclusion led MetLife to deny the plaintiff’s claim for continued long-term disability benefits.
The plaintiff sued, arguing that her long-term disability benefits were wrongfully denied by MetLife and the Plan. Both defendants filed a number of motions. MetLife challenged the plaintiff’s ability to hold the insurance company accountable for its role in denying coverage because AT&T had fired MetLife as the plan administrator more than a year and a half before the plaintiff filed suit. The Plan claimed that the denial was within its discretionary authority.
The Court Awards Disability Benefits for What MetLife Did
A federal court in Dallas ruled that the plaintiff was entitled to long-term disability benefits and that MetLife was entitled to be dismissed from the lawsuit as it was merely the administrator. The plaintiff could only recover the disability benefits from the Plan because it had not brought a claim against MetLife for breach of the duty of good faith and fair dealing, which requires Texas insurance companies to treat policy holders in a certain manner. Nonetheless, MetLife’s actions were the central focus of why the court held the Plan responsible. The court specifically noted:
While MetLife wasn’t financially responsible to the plaintiff in this case, other companies may think twice before employing MetLife as a plan administrator in the future. The federal court held that MetLife had "cherry-picked" facts in the administrative file to support its position and, for this reason, MetLife had acted in an arbitrary and capricious manner. These wrongful actions persuaded the federal court to order the Plan to reinstate the plaintiff’s long-term disability benefits. Ironically, the plaintiff could have prevailed against MetLife as well (above and beyond the disability benefits recovered against the plan) had the plaintiff’s lawyer brought a claim for breach of the duty of good faith and fair dealing.
Franklin v. AT&T Corp., No.03:08-CV-1031-M, 2010 WL 669762 (N.D. Tex. Feb. 24, 2010)
Disability Blog & Cases:
California Court denies Plaintiff’s Attempt to Introduce New Medical Information During ERISA Disability Lawsuit Against Hartford for Long Term Disability Benefits
One of the largest obstacles facing an insured in bringing a lawsuit against a disability insurance company for benefits under an ERISA governed group disability policy is the inability to add additional information, in most cases medical information, to the administrative record after a final denial has been entered by the insurance company.
Disability Blog & Cases:
Cigna Denies Disability Benefits, But Additional Information Could Have Resulted In A Victory
When filing a disability application or appeal it is of the utmost importance to provide the insurance company all of the relevant medical records and/or documentation supporting your disability in a timely manner.
If you fail to submit any important documents or records they will not be considered by the judge at a later date if your disability claim is denied.
Disability Blog & Cases:
Boeing Employee Suffering From Severe Chronic Back Pain Sues Aetna For Denial Of ERISA Benefits
An Oregon disability lawyer has filed a lawsuit in the District Court of Oregon against The Boeing Company Employee Benefit Plan (Boeing) and Aetna Life Insurance Company (Aetna). The Plaintiff, Susan A, worked as an assistant to the Vice President and General Counsel of The Boeing Company. Due to her employment, Plaintiff was protected by Boeing’s Employee Benefit Plan.
Disability Blog & Cases:
Unum Disability Denial With Medical Record Review Only
Can Unum deny disability claims and appeals by merely conducting paper reviews of a claimant’s medical records? Yes, apparently they can.
Disability Blog & Cases:
Sedgwick And AT&T Disability Denial Scheme Exposed In ERISA Lawsuit
On May 14, 2012, the U.S. District Court for the Northern District of California issued an order on a very hot topic for ERISA Disability Lawsuits. The issue concerns how much “Discovery” a denied person is able to obtain from the Disability Insurance Company while litigating a case.
FAQ: Appeals & Lawsuits:
If my long term disability benefits are governed by ERISA and I win at trial, does the insurance company have to pay me for the remainder of the policy life, or a lump sum amount?
Should your case go to trial under an ERISA governed disability plan and you win the insured is only entitled to an award of disability benefits that have not been paid by the insurance company. This is further contingent on whether the insurance company denied your claim under the “own occupation” or “any occupation” definition of disability…
Disability Blog & Cases:
California Federal Court Finds That MetLife Abused Its Discretion And Awards Financial Analyst Long-Term Disability Benefits
Shelia W. and her California disability lawyer prevailed in a lawsuit against MetLife when the United States District Court of the Southern District of California found the insurer to have abused its discretion when it terminated Shelia’ disability benefits under the “own occupation” standard.
Disability Blog & Cases:
Sun Life Pays Disability Benefits For Three Years To A Claimant Who Wasn’t Actually Covered Under A Sun Life Policy
In the case of Pamela P. v. Sun Life and Health Insurance Company, the court record shows that Pamela P. applied for long-term disability benefits under an employee benefits plan that was maintained by Los Padres Bank for its employees and was awarded disability benefits for over three years. Said plan was underwritten by Sun Life with its Group Certificate governed by ERISA (the Employee Retirement Income Security Act)…
Disability Blog & Cases:
Another Cigna Hired Gun Doctor To Be Exposed!
Utah Court Wants To Know Relationship Between Dr. Carol Flippen and Cigna Life Insurance
