Disability Insurance Lawyer Blog

Win ERISA Appeal for Software Sales Exec

Met Life Denies Claim For Sales Exec with Eosiniphilic Gastroenteritis

Our client was a 56 year old man who had been a client sales specialist for national security and intelligence programs at an international software company. The position combined high-mileage travelling with sales prospecting, client development and client retention programs in three separate multi-state sales territories. This was a high intensity sales position, working with senior officials in a highly competitive and technical field.

His responsibilities included prospecting for new customers through frequent face-to-face meetings, managing existing customer relationships, and coordinating sales activity within the assigned account regions. His continued employment demanded meeting sales quota requirements that were measured on a quarterly and annual basis.

He became ill with a rare and particularly nasty form of gastroenteritis, Eosiniphilic Gastroenteritis. Treatment for this uncommon disease is often unsatisfactory, with only minor symptom relief, but there is no cure and long term outcomes are uncertain at best. The cause is unknown, and the disease leads to malnutrition and often intestinal obstruction and perforation of the gastrointestinal tract occurs. It is a miserable, relentless disease and the best that can be hoped for is management of the symptoms.

Those who suffer from Eosiniphilic Gastroenteritis become ill from eating food, as their bodies reject both the food and its nutrients. Daily living is a series of episodes of pain and discomfort and frequent, urgent trips to the bathroom. While this disease can be treated to some extent with medicine, with a slight reduction in symptoms, the side effects from the medicines often cause development of new illnesses.

Our client suffered from osteoporosis and vitamin D deficiency, related directly to his inability to process nutrition in a normal fashion. The disease and discomfort led him to become anxious and depressed. A high intelligence and performance levels and a high powered career trajectory whose entire life is dramatically altered from the effects of this debilitating disease cannot help but become depressed and anxious about their future and their prospects.

He filed a claim for disability insurance benefits with Met Life and was denied. We were retained, and started by attacking Met Life's essentially non-existent vocational analysis.

We also attacked their paper review of our client's medical records by a nurse consultant. We provided complete medical reports and studies that were conducted on our client's behalf, and all necessary information to show Met Life that our client simply was not able to complete the material and substantial duties of his own occupation.

Met Life never considered any of this information when making its initial inaccurate claim decision.

We submitted an appeal on behalf of our client and provided Met Life with a plethora of medical records and narrative reports from our client's treating physicians.

After reviewing all of the medical documentation we provided, along with the applicable case law, Met Life reversed its decision on appeal, and awarded long term disability benefits to our client, who is now able to focus his attention on learning to live with an extremely debilitating disease, rather than expending his limited energies on fighting with an insurance company.

Cancer is Unum's Top Long Term Disability Claim

Despite advances in early detection, treatment with sophisticated drugs and surgical procedures, cancer continues to be the single biggest reason for long term disability claims for those holding LTD policies with Unum, as it has been now for twelve years in a row.

Cancer is a complex series of diseases, attacking different parts of the body. While a diagnosis of cancer is not necessarily a death sentence, the disease is almost always serious, often life-threatening, and treatment is usually intense. Cancer patients who undergo radiation and/or chemotherapy are usually not able to work full time, and most find even part time work too difficult.

Being diagnosed with cancer is also emotionally charged for the employee and the members of their family. Frankel & Newfield has represented many individuals suffering from different types of cancers, and while their illnesses are all different, there are some key similarities. All have had to stop working, due to the effects of the cancer or the treatment for the disease. Their claims have been denied or delayed, or they have been told that they are not sick enough to stop working.

We often see this response from the insurance claims individuals who have not seen the entire medical records, either because they are outside consultants who have not been provided with the entire file, or because they are not medically qualified to review medical records and understand the debilitating impact that cancer and its treatments have on patients.

If you have been diagnosed with cancer and are about to file for disability insurance benefits, or are battling your insurance company and this disease, we encourage you to call our office at 1-877-LTD-CLAIM (1-877-583-2524) and learn how we have helped others facing this difficult situation.

Disability and the Recovery

The Wall Street Journal reports that the unexpected and vast number of workers who applied for and received Social Security disability in recent years poses a threat to the national economy in lost wages and taxes. What we found more interesting was a sidebar article, Fewer Out for Good in Private Plan.

An insurance industry association spokesperson notes that 20% of claimants with private disability insurance policies return to work in part because private insurance companies make getting these individuals back to work a priority.

Maybe it is our years of representing claimants who are unjustly denied benefits or whose benefits are improperly terminated, but we hear a distinctive pro-industry sense to this article, particularly the description of private disability insurance companies as "aggressive about sorting malady from malingering." And we really take issue with the idea that "hundreds of policyowners" file lawsuits challenging termination of benefits.

That doesn't begin to show the complete picture of claimants who file appeals, exhaust the appeals process and then file lawsuits when their benefits are denied from the start, terminated while on claim, or, perhaps even more unpleasant to contemplate, the claimants who do not file lawsuits or appeals because they are so overwhelmed by a system deliberately designed to keep them from benefits.

At Frankel & Newfield, we think this article misses an important point. Whether the disability insurance policy is private, ERISA or Social Security, Americans would much rather be healthy, well and working, than collecting benefits.

Court Finds CIGNA to Be Arbitrary and Capricious

A Federal Court in Ohio has issued a decision granting the application of a claimant with a long term disability insurance claim, finding that CIGNA's denial of the claim was arbitrary and capricious. The Court chastised CIGNA for relying upon isolated office visit notes, one of which noted the claimant was "doing well". The Court correctly determined that such a statement is merely relative, and that it offered no evidence of the claimant's ability to work.

The claimant had previous brain surgery, so the term doing well was in regard to the recovery from the procedure, rather than an indication of her overall level of functionality. As noted by the Court, "getting better", without more, does not equal able to work. This critical point highlighted CIGNA's selective medical review, and the Court took issue with such conduct.

The Court was also troubled by CIGNA's vocational review, holding that it failed to properly consider the ability to perform her actual work duties, rather than simply a classification of functional levels, as sedentary. By failing to consider the actual duties performed, and relying upon the generic classification of sedentary, CIGNA acted improperly.

The claimant supported her claim for impairment largely upon the support of co-workers, who articulated the functional deficits and inability to perform her work, without a lot of medical documentation. Nonetheless, the Court was convinced that CIGNA failed to properly evaluate the claim, and that its conduct lacked a "deliberate, principled reasoning process."

These issues are quite common in our practice, and we often see this type of claim handling conduct, lacking in deliberate, principled reasoning process, which results in unfair denials and terminations of claims for long term disability benefits.

Connors v. CIGNA

Resolve a Four Year Delay in Unum Lump Sum Settlement

After four years, our client, a 56 year old man living in Maryland, was mentally exhausted from battling with disability insurance giant UNUM. He wanted a lump sum settlement so that he could be freed from a life of worrying about surveillance, continuing medical exams, and all of the various types of intrusions that are conducted as part of the regular course of business by disability insurance companies. He was sent to Frankel & Newfield by a well-known disability consultant, and spoke with Jason Newfield about his situation.

This is where the experience and knowledge of a disability lawyer who knows how things work inside disability insurance companies can make the difference. Within ten days, the lump sum settlement was negotiated successfully and payment was received by the claimant within a week's time. Jason was able to leverage his strong working relationship with UNUM and his reputation for aggressive representation for his client's benefit.

If you are having difficulties resolving your lump sum settlement issue with your disability insurance company, or want more information about the long term disability insurance claim process in general, call our office at 877-LTD-LAW (877- 583-2524) to learn how we can help you.

Judge Determines Hartford Abused Its Discretion in Long Term Disability Termination

A New York Federal Judge has reversed a determination made by Hartford Insurance Company to terminate benefits to a woman suffering from Multiple Sclerosis. The Court determined that Hartford had abused its discretion in terminating the claim, where it based its decision upon its typical claimant approach -- "finding" inconsistencies in the record, assigning the file to its Special Investigations Unit, conducting surveillance, and having a field representative interview the claimant, coupled with a paper only physician review by a well known insurance pandering doctor.

The Court found that the various bases upon which Hartford relied upon for its claim determination were lacking, and determined that the claimant was entitled to her long term disability insurance benefits. Hartford relied upon results of surveillance, which revealed the claimant walking her new baby, and running an errand, as well as the results of the filed visit, where the claimant was shown the surveillance and acknowledged that this represented her usual level of activity.

Following this activity, Hartford obtained a medical review from Dr. Bruce LeForce, a doctor well known in the industry and providing insurance favorable reports on a myriad of medical conditions. The claimant had also secured Social Security disability benefits, which permitted Hartford to reap a financial benefit of reducing its obligations to the claimant.

The Court was troubled by several aspects of Hartford's claim handling. First, the Court did not accept Hartford's short shrift of the Social Security award and finding. Next, the Court was bothered by the incomplete medical review undertaken by Hartford's paid reviewers, and third, the Court did not believe the surveillance constituted substantial evidence to dispute her ongoing claim.

Thus, the Court granted benefits to the claimant and reversed Hartford's decision.

Ingravallo v. Hartford Life

United of Omaha Wrongfully Denied Disability Insurance Claim

A Federal Court in Nebraska has determined that United of Omaha wrongfully denied a claimant's short and long term disability insurance claims, and has awarded the claimant her benefits and also awarded attorneys' fees to her counsel.

The claimant suffered from several medical conditions, including cervical spondylosis with stenosis, chronic pain, fibromyalgia and mental health challenges including depression and anxiety. Her short term disability claim was denied and her appeal denied, as was her claim for long term disability insurance benefits.

The Court determined that United of Omaha was not entitled to deference of its claim determination, both because the policy did not provide discretion, and because of the "considerable procedural irregularities" in the claim review process. In fact, the Court determined that even if deference were required, that United of Omaha abused its discretion.

The Court was led to the conclusion on the basis of the evidence demonstrating that the claimant was impaired, with support from numerous medical providers, in contrast with only a paper review from one doctor for United of Omaha, who the Court noted, mis-characterized the medical evidence in several important respects. The Court noted that some of his statements were "patently false" while others were simply unsupported. the Court was troubled by United of Omaha's wholesale embrace of this flawed report. United of Omaha also relied upon a cursory vocational review, and failed to account for any functional limitations.

Thus, the Court awarded benefits and attorneys to the claimant.

Johnson v. United of Omaha

Aetna Abuses its Discretion, Court Awards Back Benefits

A Federal Judge reviewing the termination of a long term disability insurance claim has found that Aetna abused its discretion in its claim review, and has ordered that benefits be paid to the claimant. The long term disability claimant suffered from a condition which caused involuntary head movement and turning many years prior, and was treated for this condition. The condition returned in 2006, and despite treatment, he was unable to continue to work.

The condition, spasmodic torticolis, also known as cervical dystonia, impacted his ability to work as a baggage handler for Continental Airlines. Despite acknowledging that his occupation was a heavy physical demand level, Aetna's medical review failed to find support for any limitations in functionality which would impair his ability to work in his occupation. Aetna's claim representative disagreed with the medical review and recommended that the claim be paid.

Ultimately, Aetna agreed to liability for a period of time, while it continued to investigate the claim and pursue other claim investigative tools, including a Functional Capacity Evaluation (FCE). The results of the FCE were that the claimant was capable of "light" duty. The claimant also underwent an examination for his Social Security disability claim, which found him to have limitations in his functional ability and his SSDI claim was ultimately approved.

During the evaluation of whether the claimant was disabled from any occupation, Aetna obtained a paper review (rather than having the claimant examined), who found that the claimant had functionality. Aetna conducted a transferable skills analysis (TSA) which found him capable of performing certain jobs, and Aetna thus terminated the claim.

The Court, after evaluating Aetna' s conflict of interest, and its handling of the claim, determined that there was a lack of substantial evidence to support that the long term disability insurance claimant could, in fact, perform a job that was able to provide an income of 80% of his adjusted pre-disability earnings.

Thus, benefits were reinstated to the claimant.

The issue of the any occupation analysis, with insurers conducting paper only medical reviews, coupled with TSA's that are largely based upon the opinions of the paper reviewing doctors, is one commonly seen in our practice. If your claim is approaching the any occupation stage, it becomes the next logical point of attack for an insurer to seek to terminate your claim.

Mattson v. Aetna

Court Rejects Met Life's Effort to Deny Benefits Based Upon Release of Collateral Claim with Employer

A Federal Judge said no to Met Life, rejecting its effort to not only sustain its termination of a long term disability insurance claim, but its effort to recover over 500K that it had paid to a claimant, before it learned that the claimant had released his employer from various claims arising out of an employment discrimination case.

After Met Life had accepted the claim and released substantial benefits to the long term disability insurance claimant, it learned that the claimant had signed a release related to an age discrimination lawsuit against his employer. The release purported to release the employer and its agents, purportedly releasing any and all claims, which Met Life interpreted to mean the claimants Short Term Disability and Long Term Disability insurance claims.

The Court, in reviewing the release and the potential impact of the agreement, determined that the release did not extend to Met Life regarding the Short Term Disability or Long Term Disability benefits.

The Court thus remanded the claim for purposes of allowing Met Life to review the continued eligibility of the claimant for further benefits.

Kirby v. Siemens (Met LIfe)

Justin Frankel Selected as a "Top Ten" Legal Eagle by Long Island Press

We represent disability policyholders nationwide, but it's always nice to receive a nod of recognition in New York, so we were very pleased that both Justin Frankel and Jason Newfield were the only Long Term Disability Insurance attorneys to be selected in Long Island Pulse Magazine's annual Legal Eagles issue, which highlights highly-rated lawyers on Long Island.

Making this even more exciting was that Justin Frankel was selected as one of the "Top Ten" Legal Eagles for 2013 on Long Island. When we consider how many attorneys there are on Long Island (and there are thousands in Nassau and Suffolk counties), being named to the "Top Ten" is even better.

We like to believe that this recognition by Long Island Pulse and its readers is a direct result of the commitment that we have made as attorneys to the needs of disability claimants. Our practice has remained focused on providing a superior level of legal representation and maintaining an edge in this practice area. For our clients nationwide and on Long Island, we are pleased that our efforts and determination have been recognized.

Court Determines Long Term Disability Insurance Claimant Entitled to Benefits

A Federal court in Oregon has determined that a claimant on long term disability should have her LTD benefits reinstated, which were wrongfully terminated by Aetna. The claimant, who worked directly for the Assistant General Counsel for Boeing, submitted a claim in 2009, which was initially accepted by Aetna, as claim administrator, and paid by Boeing.

The claimant had a long history of orthopedic problems in her spine, and had multiple surgeries in an effort to secure relief from her difficulties. She was disabled due to the functional limitations of her orthopedic problems, as well as the chronic pain, for which she took considerable pain medications.Her treating doctor provided objective evidence to support her impairment and demonstrated that she was functionally unable to engage in her work.

The Court was troubled by Aetna's failure to afford meaningful consideration to the claimant's treating providers' opinions, noting that a "treating physician has a greater opportunity to know and observe the patient than a physician retained by the plan administrator." The Court found that both of Aetna's hired doctors' opinions were misplaced, and not supported by the record. The Court also found that failing to seek an actual examination of the claimant, in favor of mere record reviews, was a factor to be considered in assessing whether the decision was the product of a deliberate, reasoned process.

Finally, the Court took note of two additional factors. First, the absence of any vocational consideration conducted was troubling, and second, the failure to consider the claimant's award of Social Security Disability benefits.

The Court thus awarded the claimant past due benefits, and remanded the case back to Aetna for consideration of future entitlement to benefits.

Arnsperger v. Aetna

Disability Insurance Companies Report Financials

We read financial news from disability insurance companies with a slightly different approach than shareholders or casual observers. When profits are up, we hope that it's not on the backs of policy owners. This quarter is mixed bag, with some reporting dismal results - which we know will be reflected in the number of calls to our office - and others crowing great sales success.

Cigna reports that its disability insurance premiums and fee revenues increased from $306 million to $377 million. Not bad, considering what other disability insurance revenues are doing at other carriers.

Group disability sales at Hartford fell to $25 million, from $33 million, and fully insured ongoing group disability premiums fell to $411 million, from $452 million. They're not having fun in Connecticut, that's for sure.

Principal reports increases both in group and individual sales and premium and fee revenues. But what grabs our attention most is that the incurred loss ratio fell to 68.3 percent, from 70.9 percent. You don't even have to read between the lines - profits are up and so are the numbers of disabled policy owners whose benefits are being denied, delayed and terminated.

If your disability insurance benefits are being influenced more by market indices than by your medical condition, you may need the help of experienced disability lawyers. Our commitment to helping clients is not affected by sales levels, quarterly reports or shareholder opinions. Call today to learn how we can help.

Court Finds Met Life was Arbitrary and Capricious in Terminating Claim

A Federal Judge has determined that Met Life's decision to terminate long term disability insurance benefits to a claimant suffering from cervical radiculopathy was arbitrary and capricious. The Court, in Michigan, determined that Met Life selectively credited beneficial evidence and opinions while rejecting contrary evidence without sufficient explanation.

The claimant initially became disabled in 2007 after suffering an injury, which prevented her from working as a baggage handler. Payments were awarded by Met Life for the 36 month period in which they evaluated her ability to work in her own occupation. Thereafter, benefits were terminated when Met Life determined that she could engage in work that would disqualify her from benefits under an any occupation standard of disability. Thus, her long term disability insurance benefits were terminated in 2010.

The claimant appealed, and provided additional medical support demonstrating continued entitlement to benefits. Met Life utilized by Philip Marion, a well known insurance pandering medical reviewer, to perform a paper only review of her medical records. He concluded that she had functional capacity, and based upon that review, Met Life conducted a vocational review which found jobs she could work.

In reviewing the determination to terminate the long term disability benefits, the Court found that Met Life relied on irrelevant evidence while ignoring evidence suggesting impairment. The Court was also troubled by Met Life's reliance upon the denial of benefits by the Social Security Administration,

Because the determination of the claimant's functional capacity was flawed, the Court found that Met Life's subsequent vocational determination was also flawed and could not support the termination of her claim. The Court was also critical of Dr. Marion's review, noting that he ignored numerous pieces of medical evidence in formulating his conclusion.

The Court completed its excoriation of Met Life by finding that its "entire review process -- from the initial handling of Plaintiff's post-36 month LTD benefits claim through the appeal -- appears to have been a result-oriented, slapdash affair designed only to ignore inconvenient facts and reach a pre-ordained objective of denying Plaintiff's claim." Thus, the Court found that Met Life did not engage in a deliberative and principled reasoning process and reversed the termination of benefits.

Magdziak v. Met Life

Voluntary Benefits - The Impact of a Changing Landscape

We've written on voluntary disability benefits packages in the past. The idea is simple: by giving employees choices of how much or what type of coverage to take, the employee has more control of the cost of their disability insurance policy and the employer is able to trim benefit costs.

A recent study by Prudential Insurance on Employee Benefits on benefits cost management is impressive, as most insurance company studies usually are.

It's a nice concept, but the pitfalls are large. If companies are providing their employees with a complete education on the pro's and con's of their decisions to take a larger or smaller disability policy, then we're all for the flexibility. If an employee truly understands the implication of selecting a disability insurance policy with a very small benefit, that is their choice and their risk to take in this type of a program.

However - we find it hard to believe that an HR department or benefits consultant whose primary aim is to trim the cost of employee benefits will focus their efforts in such a personal way. The net result is more likely to be more employees with less coverage than they need if they are unable to work because of an illness or injury.

Some examples of coverages which serve to lower costs are those which contain limited benefit periods for claims due to mental health, or other types of "subjective" claims such as Chronic Fatigue Syndrome or Fibromyalgia. These claims are already challenging to pursue, but with built in limited benefit periods, are even worse to employees, who typically don't learn of the limited benefits until they are well into the claim period.

We work with long term disability claimants every day who struggle to pay bills and maintain their pre-disability lifestyle. It's a struggle in the best of circumstances. From our perspective, this is only a good idea for insurance companies and the employers who purchase their policies.

Court Finds for Disability Claimant Under De Novo Review

A Federal Judge in Michigan has highlighted the significance of the applicable standard of review in an ERISA long term disability insurance claim dispute, finding for the plaintiff, under a de novo standard of review, while noting that if the standard of review was abuse of discretion, he would likely have ruled for defendants.

This case, brought against CIGNA, was predicated upon the claimant's disability resulting from autonomic dysfunction, POTS (Postural Orthostatic Tachycardia Syndrome) and syncope. CIGNA initially approved the disability insurance claim in 2006, and paid benefits for 8 months, prior to terminating the claim. On appeal, CIGNA relied upon its regularly utilized physician Dr. Mendez, who -- as he typically does -- found there to be "no time-concurrent documentation of significant measured physical limitations to support the extension of restrictions from regular work duties."

After suit was filed, CIGNA agreed to pay the claimant for the duration of the own occupation period of the policy -- where the determination was whether the insured could perform the duties of his work. The matter was then remanded to CIGNA to consider whether the insured could work in any occupation, a definition of disability much more favorable to the insurance company. Upon this review, CIGNA again denied benefits.

Weighing heavily toward the insured's favor was his receipt of Social Security disability benefits, along with strong support from his treating provider. CIGNA's efforts to cherry pick records to buttress its claim determination were found wanting, and the Court ultimately found for the insured, awarding him his prior benefits to be paid.