Disability Insurance Lawyer Blog

Hartford's Use of Paper Reviewing Doctors Found Unreasonable

One of the biggest challenges for ERISA claimants is that there claim can be denied or terminated based largely upon an opinion which is specifically paid for by an insurance company. Many of the largest LTD insurance companies regularly rely upon a limited number of doctors, who perform "paper reviews", never personally examining a patient, before formulating an opinion that they are not disabled.

Since these doctors are regularly utilized by the insurance companies, one would expect that the overwhelming majority of the opinions favor the insurance company. In our practice, we see the same doctors utilized again and again - but have often been stymied in having Courts appreciate the significance of this biased relationship between the insurance company and the so called "independent" doctor. While some courts are starting to appreciate this, the tide has not completely turned.

Thus, it is refreshing to see a decision which takes apart the paper review, chastises the insurance company's reliance upon one piece of data from a treating physician (to the exclusion of other evidence supporting impairment), and overall takes a skeptical eye toward the conduct of the reviewers. Ultimately, the Court decided that a remand was appropriate to have Hartford once again review the claim, with updated, in-depth evidence of the claimant's functionality, consideration of the award of Social Security benefits, and discussion with the claimant's treating physicians.

Pauley v. Hartford Life & Acc. Ins. Co.

We vigorously pursue ERISA LTD cases in litigation, particularly where the denial or termination is predicated upon an opinion of a paper reviewing provider. Our law firm has secured some of the most extensive discovery to reveal the issues of concern regarding this cozy relationship between paper reviewing doctor, insurance company and many of the third party vendors often utilized by insurance companies.

DISABILITY- When it happens to you

More than 30 million Americans between the ages of 21 and 64 are disabled, and more than 25 million Americans are not able to work because of a disability. As the American population continues to age, these numbers are only going to increase. Most of these people were healthy, active and functioning until they experienced serious illnesses like cancer, heart attack, diabetes or arthritis. Accidents take their toll also, and most disabling accidents are not work related.

What can you do to prevent becoming disabled? A healthy lifestyle, not smoking, regular exercise, a balanced diet and cultivating a healthy mental and emotional lifestyle are all things individuals can do that will reduce the likelihood of becoming disabled. But there is no way to truly guarantee that you will never become disabled.

If you have recently become disabled, you may be feeling overwhelmed by your disability and the financial hardship that accompanies the loss of your regular income. It seems like your disability has generated a firestorm of paperwork from doctor's offices, hospitals, insurance companies, and the HR department from your job. The paperwork to file a disability claim is also a bit overwhelming. You are asked to provide details about your medical and work history, and it seems that the disability insurance company is gathering personal information that you may feel uncomfortable providing.

As experienced long term disability insurance lawyers, we know that these forms are made to gather information about you and your disability. They are also designed to gather information that may be used to delay or deny your claim. As you fill out the forms, bear in mind that your claim is being reviewed closely. Make sure that your primary care physician knows that you are filing a claim for disability, and ask him/her for their cooperation when it comes to sharing your medical information and filling out forms.

Many medical disabilities require a team approach - a primary care physician, a specialist, a physical therapist, a nurse practitioner. Your disability team may also need to include a long term disability insurance law firm to help you successfully navigate a disability claim. If you have any questions about filing your claim, call our offices to learn how we can help.

CIGNA DENIES LONG TERM DISABILITY INSURANCE BENEFITS FOR CALIFORNIA PROFESSIONAL

Our client contacted us after CIGNA denied a claim for long term disability insurance benefits for a psychiatrist based on the results of an IME - Independent Medical Exam - that claimed that he was cable of performing sedentary work. The doctor who conducted the IME was of course generously paid by CIGNA and we are confident that he does many similar exams on their behalf.

Our client suffers from serious orthopedic disabilities, including cervical degenerative disc disease, thoracic degenerative disc disease, lumbar degenerative disc disease, cervical spine stenosis, osteoarthritis of the basilar thumb joints and bilateral carpal tunnel syndrome, all of which are made worse by fibromyalgia, chronic myofascial pain syndrome and depression. His medical records thoroughly document his disabilities, and there is regular on-going medical care.

How then, in the face of such a medical diagnosis, could CIGNA deny him? The doctor performing the IME stated that the psychiatrist was able to perform sedentary work.

We attacked the denial with the help of the client's treating doctor, who wrote a powerful rebuttal. We also emphasized the cognitive aspects of our client's profession as a psychiatrist, which was completely and conveniently overlooked by the report. While our client's disability may have been physical in nature, severe chronic pain rendered him incapable of maintaining the intense focus and concentration needed to perform the specific duties of his profession. We won the appeal, and he is on claim.

LONG TERM DISABILITY BENEFITS DENIED BY AETNA - SUCCESSFUL APPEAL

One of the elements of a successful long term disability claim is the ability to demonstrate regular medical care and a treatment regimen consistent with the disability. When examining a claim, long term disability insurance companies will look for a series of office visits, related tests, medications, and a treatment protocol that is consistent with the disability.

But not every patient follows the typical pattern of medical care and treatments, and this does not make them any less disabled. This is particularly so where the claim is predicated upon a mental or nervous condition or one involving the use of alcohol or drugs.

This was the situation faced by a high earning financial executive who came to us after his long term disability insurance claim was denied by Aetna. He was not able to work due to anxiety/depression and alcohol abuse. Aetna claimed that he was not disabled, since he was not under the regular care of his doctor. He was seeing a number of providers however, and we needed to piece together the treatment by multiple providers.

We secured his benefits by demonstrating that he was in fact maintaining continuity of care and seeing medical providers with enough regularity to satisfy the requirements of the policy. We argued that the decision Aetna had made had less to do with our client's treatment and more to do with the high value of his claim. The decision, like so many others that we see, was the result of an insurance company making a decision that was a result of a conflict of interest, acting in its own favor rather than that of the claimant.

Our client is now back on claim and is receiving monthly benefits.

If this sounds like your situation, call our offices today and learn how we can help.

FRANKEL & NEWFIELD WIN APPEAL AGAINST HARTFORD WHO DENIED BENEFITS TO A NURSE ANESTHETIST WITH HAND INURY

Our client worked as a Nurse Anesthetist for many years, a profession that requires a high degree of precision and manual dexterity. He underwent surgery on his cervical spine in 2006. Unfortunately, the surgery left him with significant weakness and loss of function in his right hand.

Without complete control of his hands to perform intricate medical procedures safely and effectively, he could no longer perform the tasks of a nurse anesthetist or one or more of the Essential Duties of Any Occupation.

Hartford initially approved his claim and paid benefits for more than two and a half years. Then his claim was terminated. Hartford based the denial on surveillance video, saying that activities seen on the videotape proved that he had the ability to perform one or more of the Essential Duties of Any Occupation.

We believe that Harford was less interested in the ability of our client to perform any essential duties as they were in minimizing its financial exposure.

We filed an aggressive appeal, attacking Hartford's overreliance on the surveillance footage, particularly where the medical records unequivocally supported the claim.

This is not the first time we have fought a long term disability insurance company's use of video surveillance.

The ability to perform the Essential Duties of Any Occupation for which he was suitable for based upon his age, education and experience requires the complete and full use of the hands.

Our appeal to the Hartford succeeded. Hartford reinstated all back benefits, and our client will continue to be paid on an ongoing basis.

If your long term disability insurance company has used surveillance videotapes to deny your claim, call our office to learn how we can help. This is one case where a picture is not worth a thousand words.

CHRONIC FATIGUE SYNDROME AND MET LIFE DOCTORS WHO DENY THAT ANYONE IS EVER DISABLED - FRANKEL & NEWFIELD WINS ERISA APPEAL

After representing long term disability insurance claimants for many years, we are familiar with many of the resources used by our insurance opponents. This includes the in-house attorneys, the outside counsel retained when things look grim, and the scores of medical doctors hired by the insurance companies who enjoy the benefits of a simplified practice.

Call us cynical, but for the same fee they earn doing one review of medical records, they would have to see numerous patients and their office staff would have to handle the accompanying paperwork. The review of medical records for a generous insurance giant is a great deal for any medical practice -- but a danger zone for any claimant.

So when our client, who suffers from a debilitating case of Chronic Fatigue Syndrome, was denied by Met Life, we were not surprised to see why. The doctors who were assigned to his file were a few of the regulars we know all too well. No one they see is ever disabled. Our client had exhausted the administrative process, and was in despair of ever receiving any of the insurance benefits he had so diligently paid for, for so many years.

We took his ERISA appeal to court and won.

The Court agreed with our client's claim that the Met Life decision was arbitrary and capricious, based on poor reviews of medical records and a failure to consider that he had qualified to receive Social Security Disability Insurance. The Court ordered Met Life to reconsider.

We aggressively attacked Met Life's doctor, piercing her credibility, citing case after case of paper medical reviews that were overturned by the courts because they were found to be inaccurate.

Our client received back benefits for more than three years, and is currently on claim.
If your disability claim has been denied because of a doctor's review of your medical records, it's a good chance that you've been denied for the sake of denial. You can fight back. Call our office to learn how we can help.

FRANKEL & NEWFIELD WINS PRUDENTIAL APPEAL FOR BREAST CANCER SURVIVOR WITH LUPUS AND THYROID DISORDER

A cancer survivor, suffering from also lupus, Hashimoto's Disease (a thyroid disorder) and obesity, contacted the disability insurance law firm Frankel & Newfield after Prudential denied her long term disability benefits. Our client was a Vice President with a worldwide financial services company, but even her high level executive skills were no match for the wall of denial constructed by Prudential.

Frankel & Newfield submitted a vigorous appeal that attacked Prudential on several fronts. Prudential hired MCMC to conduct the medical review. MCMC is one of Prudential's frequently used vendors, well known among the disability community for giving insurance companies what they pay so generously for - medical reviews that support the insurance company's policy of claim denial.

According to its own website, MCMC's objective is "to evaluate claims, review cases......that allow our clients to achieve positive outcomes through cost effective solutions." With the peer review services in particular, MCMC's stated goal is to provide assistance in "resolving disability claims questions in an effort to manage risk, control claim costs and increase productivity."

In other words, the insurance companies are their target market and the goal is to limit the insurance company's costs. This corporate mission is in complete opposition to the idea of the Independent Medical Review. MCMC's success in the insurance industry is arguably the result of its ability to provide medical reports that can be utilized to deny or terminate claims, thereby reducing the costs of managing disability benefits.

We also attacked Prudential's failure to provide the complete medical records for review. We see this happen many times: only a part of the medical records are provided to for review, and as a result, the medical professional does not get a total picture of the person's true disability. The law requires that a set of complete medical records be reviewed by a qualified medical professional.

The next prong of our attack concerned Prudential's' failure to provide an accurate job description, making it impossible to evaluate the material tasks and duties of her job. The duties of a high level executive are not the same as a mid-level manager or a clerk. To perform at this high a level in a global firm requires high level analytical abilities and physical stamina. Not only did Prudential use an outdated Dictionary of Occupational Titles, but they used a generic classification of our client as a Manager with light duty tasks.

After we submitted the appeal, Prudential decided that it needed a proper Independent Medical Exam (IME), which was conducted. Benefits were approved, and our client is now on claim.

If your disability claim has been denied and you are not able to work, it's a safe bet that the claim has not been evaluated properly and the insurance company is counting on your not fighting back. Call our office today and learn how we can help.

Federal Appeals Court Sends Clear Message to Disability Insurance Companies

The Appeals Court for the Fifth Circuit has issued a strong pro-claimant decision. What makes this decision significant is that the Court acknowledges that Hartford abused its discretion in denying benefits to the plaintiff and in addition to awarding benefits, will also grant payment of attorney's fees, making this an even better resolution to the insured's unfortunate situation.

The claimant, a practicing attorney, suffered from degenerative back disease and mental disorders for more than ten years. These problems interfere with his performance as an attorney, and in 2003, he applied for disability benefits. Hartford granted him a disability based on his mental disability, with two year benefit limit, but denied his claims of a physical disability. This is a common practice with Hartford (and other insurers) and one that Frankel & Newfield have dealt with in litigation. After being on claim for two years on the mental disability, he renewed his claim for his physical disability and was again denied. A long and arduous appeals process followed.
Three allegedly independent experts, all paid by Hartford to render opinions, found that he had not supported his physical limitations with objective medical evidence, despite a multitude of reports, studies, and a Functional Capacity Evaluation that indicated that he was not fit for sedentary work. In addition to ignoring a body of evidence, Hartford also neglected to recognize that the insured had qualified for Social Security Disability benefits.

After several appeals in the ERISA-governed administrative process, a lawsuit was brought in Federal court. The district court came down clearly on the insured's side, concluding there was an "overwhelming" body of objective medical evidence that he was physically disabled, and that Hartford "deliberately ignored overwhelming objective medical evidence" and saw fit to award him attorney's fees. The district court also observed that the Hartford was operating under a conflict of interest that could have had some effect on its decision. Hartford appealed, challenging both the conclusion that it had abused its discretion and the award of attorney's fees.

As attorneys representing plaintiffs in disability insurance cases, we are extremely pleased that the Federal Appeals Court agreed with the district court, and saw no reason to reverse its decisions regarding the granting of benefits to the insured and the award of attorney's fees. The Federal Appeals Court opinion has made it quite clear: Administrators who review cases do not have the right to arbitrarily discredit reliable evidence, and the district court has every right to award attorney's fees.

If you are facing a similarly difficult situation with your disability insurance company, call our office today to find out how we may be able to help you.

EMPLOYEES DON'T ALWAYS GET TO CHOOSE - BUT YOU CAN BE PREPARED

Unlike a privately owned Long Term Care Disability Insurance Policy, where you get to choose the policy, the selection of various additional riders or policy enhancements, and the company you purchase it from, most employees have to accept the disability insurance company that their employers have selected. Unless you are high up on the corporate ladder, or directly involved in the selection of the policy, there's little choice involved. What is purchased on your behalf is what you are left with.

However, that doesn't mean that you should not educate yourself about the insurance company and the policy. There are critically important terms that one should pay attention to which could impact a claim. Examples are where policies provide for a limited pay period for conditions related to depression or anxiety, while a growing number of policies have chosen to contain limited pay periods for self reported illnesses, chronic fatigue syndrome and other disorders. Claimants may be unaware of these limitations in benefit periods prior to filing a claim, and may only learn of this during the claim process - when the time for planning has already passed.

Online research will get you to any number of websites that report on insurance companies from the business side - their earnings reports, how they are rated by companies like Dun & Bradstreet, A.M. Best, or Moody's. It's a pretty safe bet that a company with slim earnings is going to be a bit more aggressive about protecting their reserves by delaying or denying claims than one that is sitting on a big pile of cash.

One of the first things we ask claimants when they engage Frankel & Newfield is if they have a copy of the original policy. It's a question that bears repeating because it could be critical to your situation. If you don't have the policy, contact your HR department or the agent to get a copy of the original policy. That policy is the contract between your employer and the insurance company, and the language in the contract changes from policy to policy. The policy that you received as an employee in the 1980s may not be the same as the one that you will receive today. Times change - and so do insurance policies.

You may not have any control about which insurance company your employer chooses to do business with. But you can prepare - by educating yourself about the company, making sure you have a policy, and reaching out for help with your claim. Frankel & Newfield works with claimants before, during and after the claims process - and we can help you too, at any stage of the claims process.

US SUPREME COURT DECISION ON ATTORNEY FEES UNDER ERISA A WIN FOR CLAIMANTS

If you have a long term disability insurance policy governed by ERISA, the United States Supreme Court has just handed down a decision in Hardt v. Reliance Standard that is very encouraging to policy owners and the attorneys who represent them.

The Supreme Court's decision is a major victory for ERISA disability insurance claimants and a warning to insurance companies that it may actually cost them money - more than just the cost of the policy benefits - if they wrongly deny or delay claims and a policyholder chooses to fight back.

There are a lot of moving parts in this decision. The key issues are:

A) whether or not ERISA provides a district court with the discretion to award reasonable attorney's fees only to the party who wins the decision and,

B) whether a party in a lawsuit governed by ERISA is entitled to attorneys fees if that party

1- persuades a district court that a violation of ERISA has taken place,
2 - wins a court-ordered decision that requires a benefit decision to be reviewed, and
3 - wins the benefits sought following the review.

The decision in Hardt v. Reliance Standard holds that a party that seeks to recover attorney's fees is not required to be victorious in all parts of a lawsuit for a court to decide to award attorney fees.

Ms. Hardt had to stop working as a result of medical problems and filed a claim for disability insurance benefits under her employer's long-term disability plan. When she exhausted the administrative remedies, Mrs. Hardt brought a lawsuit against Reliance, alleging that it had wrongfully denied her claim. The District Court found that the carrier had acted on incomplete medical information and that the denial was not based on substantial evidence. The Court also concluded that Reliance would get the chance to address the medical review, giving Reliance 30 days to consider the evidence and make a decision. Reliance reviewed the file and awarded Hardt benefits.

Hardt filed a motion to recover attorney's fees. The District Court agreed with Hardt, and Reliance filed an appeal. The Fourth Circuit Federal Court disagreed, vacating the award, arguing that Hardt had failed to establish that she was a "prevailing party," which is defined in a landmark case that a fee claimant is a "prevailing party" only if they have won an enforceable judgment or a court -ordered consent decree.

Common sense would dictate that someone who wins back their benefits from an insurance company has won the case, and that should be enough to be considered the "prevailing party," but the letter of the law is very specific. The Federal Court decision was appealed to the United States Supreme Court, the highest court in the nation.

The US Supreme Court agreed that a person seeking attorney's fees need not be a "prevailing party" in cases governed by ERISA. The term itself does not appear in one section of the legal statute that created ERISA, nor does anything else in the section indicate that only the "prevailing party" should be awarded legal fees. To the contrary, the statute expressly gives district courts the discretion to award either party attorneys fees. In direct contrast, another portion of the statute is very clear about awarding attorney fees in cases where there is an issue of employer contributions to multi-employer plans.

If you have any questions about Hardt v. Reliance Standard and what this decision may mean for your situation, call our office today. This is one battle you do not have to take on alone.

ANOTHER SURVEY - THIS TIME, THE BAD NEWS

At Frankel & Newfield, we keep an eye on the business side of the insurance business. We recently spotted a survey produced by JHA, by a division of General Re Life Corporation that featured participation by 27 disability insurance companies that reads like a list of our adversaries. It reveals the sad state of affairs for the disability insurance sector.

For the first time in ten years, both Long Term Disability and Short Term Disability premiums are down. The downward trend is clear - LTD sales are down from a 13% growth rate in 2000 to negative 2% in 2009. A few factors are in this mix: many companies have closed, or have let large numbers of employees go. Many employers have chosen to eliminate disability coverage altogether. The ten year combined annual growth rate has reached the lowest level seen by the sector in many years.

The report references a need for increased marketing efforts and adapting policies to meet the changing needs of the marketplace. The recent National Disability Insurance Month was certainly evidence of one way that this sector is trying to step up awareness of the product.

We would wholeheartedly endorse better treatment of claimants as a way to increase sales. With all of the bad news coverage surrounding disability insurance policies, who wants to have money taken out of their paycheck or purchase a private policy, when the expectation is that you won't be able to get the benefits if and when you need them?

Our primary concern is what the decline in sales means for the individuals who contact our firm because their claim has been delayed or denied. The business model is pretty straightforward - the fewer claims paid, the higher profits for the insurance company. If they are selling less policies, we believe that they will strategically deny more claims, and that it will become harder as time goes on to successfully secure the benefits from a disability policy.

SELF-SERVING SURVEY SAYS...... WOULD YOU BELIEVE A SURVEY FROM THE INSURANCE COMPANY THAT BROUGHT YOU MET LIFE v. GLENN?

The fact that a vice president of Group Disability Products is quoted in a press release stating that he "finds it disturbing that the vast majority of working Americans have not adequately protected one of their most important assets - the ability to earn an income" is exactly what anyone would expect from one of the largest marketers and underwriters of Long Term Disability Insurance.

Unfortunately, it comes from a company whose name appears as a lead case in no less a venue than the United States Supreme Court, for practices that seem geared more to denying claims than to paying them. Met Life v. Glenn is known in every disability insurance law firm as the case where the Court recognized that there is a real problem.

How ironic, then, that the same company publishes a report "Putting a Face on the Emotional and Financial Impact of Disability" is the same one that delays and denies claims to our clients. We see these faces and we hear about impact on lives when their MetLife claims are delayed and denied.

One final note about this study - MetLife hired a research company to survey 300 people. We have been contacted by at least that many who had real problems MetLife disability insurance and have been put through the wringer. Maybe MetLife should survey them!

If you have a MetLife disability policy and you are facing problems with a claim, call our office. This is one battle you don't have to fight alone.

Hartford's Conduct Found Arbitrary and Capricious

A Federal Court in Ohio has determined that Hartford's reliance upon the opinion of a non-examining, paper reviewing physician, was not sufficient to support a termination of disability benefits to an insured. Hartford relied upon the opinion of a physician provided by MES Solutions, an entity seen regularly as providing insurer favorable doctors to write reports justifying a termination of disability benefits.

Dr. Baum, hired by Hartford through MES, determined that the claimant had sedentary work capacity (able to work 8 hours a day, 5 days a week), despite clinical and objective findings in the record supporting impairment. When additional documentation was submitted, including the results of functional capacity testing supporting impairment, Dr. Baum refused to alter his opinion and Hartford maintained its claim position.

The Court opined that Hartford abused its discretion in terminating disability benefits, because of its conflict of interest, Dr. Baum's failure to document what evidence he rested his opinion on, his failure to consider all evidence, and Hartford's failure to consider the occupational requirements of the insured's occupation.

The Court was also troubled by the lack of any in person examination, and instead the reliance upon a paper review of medical records. This is an all too common issue seen, where insurers are relying upon opinions of non-examining doctors who do incredible volumes of work on behalf of insurance companies.

Bowers v. Hartford Life (S.D. Ohio, May 17, 2010)

FRANKEL & NEWFIELD EXCEEDING EXPECTATIONS FOR OUR CLIENTS - AND THEY WRITE TO TELL US

While most of our blog posts concern successful disability insurance matters on behalf of our clients, news about disability insurance, the law, or various items that we feel will be helpful to our readers, every now and then we receive an email from a client that makes us pause in our busy practice and remember just why we do what we do, day in and day out.

We recently received a note, completely unsolicited, from a client that we are proud to share with you. Our client, 57 years old, had a policy from Equitable. He suffers from Chronic Peripheral Neuropathy, and his illness made it impossible for him to perform in his position as an independent Project Funding and Due Diligence analyst. He recently sent us this note, which we share with you in its entirety. His name is left out for reasons of privacy and confidentiality.

Justin,

XXXX.

If you are having a problem with a disability insurance claim, or are about to file a claim, give our office a call. As our client said quite clearly, the DIY method doesn't work in this situation. We can help.

National Disability Insurance Awareness Month - Is there a Greeting Card for That?

We don't mean to be facetious, but as a law firm fighting with long term disability insurance companies on a daily basis, it's hard for us to take the designation of May as the National Disability Insurance Awareness Month seriously.

Yes, disability insurance is a necessary part of any financial plan. Protecting the paycheck that keeps you and your family in your home, pays the bills and keeps the wolf at bay is an important financial planning product, and we recognize that. But a national awareness month?

Here's what we think you should be aware of: if you become disabled and cannot work because of illness or injury, be prepared to put up an aggressive fight to protect your disability benefits. Chances are good that your first attempt at filing a disability benefit claim will be denied or delayed.

Insurance companies expect you to accept their decision - and remember, it costs the long term disability insurance company nothing to turn you down. If you fight back, they only have to call on their legal department. In most cases, there are no punitive damages or penalties for the insurance company other than to ultimately pay a claim, while they have had the use of YOUR money. Often, all they might have to do is pay you what they would have paid you in the first place. So the responsibility for defending your benefits, unfortunately, is on the individual least likely to be able to fight back - you.

If you are about to file a claim for disability insurance benefits and want to be prepared, call our office. If your claim has already been denied, and you don't know what to do, call our office. If it seems that your claim is moving at a snail's pace, and you suspect that the insurance company is stalling, call our office.

At Frankel & Newfield, we have focused our legal careers on fighting to defend policyholders against disability insurance companies. Give us a call. We can help.