Disability Insurance Lawyer Blog

Frankel & Newfield Partner Gives Presentation to the American Conference Institute

Frankel & Newfield partner Jason Newfield recently returned from giving a presentation to the American Conference Institute, Litigating Disability Insurance Claims. Mr. Newfield's topic was titled "Discovery, Scope and Limitations "360"; Key Strategies to Make Discovery Useful and Meaningful to your Case". This is one of the most controversial areas of ERISA disability insurance litigation, and Mr. Newfield was honored to once again be asked to present to such a prestigious organization, which gathers attorneys from both the plaintiff's and defense bar, along with disability claim personnel.

The presentation was a round table discussion with counsel for numerous insurers, including both in-house counsel and litigation counsel. Some of the key points of the presentation included a discussion about the various discovery devices to be utilized, the nature and scope of discovery across the country, with the lack of uniformity across circuit and district courts throughout the country, and key strategies to employ when pursuing discovery.

The presentation was well received, as it addressed a hot topic for ERISA disability insurance litigation, and a topic that is rapidly involving.

Partner Justin C. Frankel Receives AV Preeminent Rating from Martindale

We are very pleased to report that Justin Frankel has attained the AV® Preeminent™ (4.5 out of 5) rating from Martindale-Hubbell for his legal ability and ethical standards. The AV® Preeminent™ rating is a significant accomplishment - a testament to the fact that a lawyer's peers rank him at the highest level of professional excellence and reflects the confidential opinions of members of the bar and the judiciary. To read his complete bio, click here.

If you'd like to speak with Justin about disability insurance issues at any stage or phase of a claim, please call us at 877-LTD-CLAIM (877-583-2524).

Court grants Discovery Predicated Upon Frankel & Newfield Precedents

A New York Federal Judge has granted a plaintiff significant discovery, relying largely upon a number of precedents secured by Frankel & Newfield, P.C., in ERISA long term disability insurance litigation.

The Court decided that the plaintiff would be permitted to take depositions of both party and non-party witnesses, relying upon prior cases where our firm convinced a sister court to grant such discovery. Defendants typically challenge a plaintiff's right to discovery in these ERISA insurance litigations, arguing that the Court is limited to considering only documentation that appears in the administrative record compiled by the insurer.

Here, the Court was willing to permit plaintiff significant discovery, addressing issues of the Defendant's conflict of interest and its relationship with third party vendors. We are pleased to see traction to numerous discovery decisions secured by our firm, and that other plaintiffs are able to leverage our success in an effort to level the litigation playing field.

Varney v. NYNEX

Long Term Disability Insurance Company Denies Benefits to Insurance Agency Owner; Frankel & Newfield Negotiates a Settlement

Our client was an insurance agency owner with a disability policy from a large national insurance company. He suffers from depression and was diagnosed as Bi-Polar with Sleep Apnea. After being paid long term disability insurance benefits for two years, the insurance company requested an Independent Medical Exam (IME).

Following the IME, the insurance company denied any further benefits, saying that he was no longer impaired from his occupation and able to return to work. Our client would have liked to be fine, and not to have suffered impairments in his functionality, but, unfortunately, his condition had not meaningfully improved.

He provided us with his medical records and all of the paperwork from the insurance company, and we developed strong arguments to counter both the IME findings and the conclusions of the insurer, and we thereafter represented him in negotiations which led to a settlement of his claim for a lump sum. The value of the settlement was greatly enhanced due to our work in collaborating with both the client and his medical providers to develop a powerful rebuttal to the biased conclusions of the insurer's hired gun.

The insurer knew that our firm was willing to aggressively litigate this claim in the absence of a resolution. This is an example of the value of engaging an aggressive, experienced law firm that practices exclusively on disability insurance matters.

If you have been denied long term disability insurance benefits and need help in negotiating a settlement, we encourage you to call our office today to learn how we can help you.

The politics of CFS and the Center for Disease Control (CDC) - a long and bumpy road

If you suffer from Chronic Fatigue Syndrome (CFS), we encourage you to read a substantive article written by David Tuller that examines the history of CFS and the Center for Disease Control (CDC).

Tuller, a journalist who is also coordinator of a new concurrent master's degree in public health and journalism at UC Berkeley, provides a close examination of the intrigue and politics that have dogged CFS since its first appearance in the 1980s. It is a long article, but well worth the read.

Tuller explains the arguments of critics who claim that that the CDC, which is charged with investigating threats to the health and safety of the population, has failed miserably when it comes to CFS. Worse, he explores the claim that the CDC's failure to take CFS seriously and treat it as a real disease is a large reason why even today CFS sufferers are treated as maligerers, not people suffering from a real illness. The dismissive attitude to CFS as an organic disease or cluster of diseases has been "a font of misinformation and has been routinely used by insurance companies to deny legitimate claims for tests ordered by doctors."

If you have CFS and your disability insurance company is delaying or denying your claim, call us today to find out how we can help. We have worked with many CFS patients over the years and are well-versed in the politics as well as the pragmatic facets of disability claims for CFS.

Court Determines Reliance Standard Abused its Discretion on Remanded Claim

Reliance Standard Insurance apparently failed to appreciate guidance from the Court, where it had previously remanded a claim back to perform an appropriate review of the claimant's eligibility for long term disability insurance benefits. Initially, the Court remanded the claim to Reliance Standard, permitting the claimant to supplement the record with evidence of his job responsibilities, and further medical support.

Upon review of the remanded claim, the Court determined that Reliance Standard abused its discretion, on the basis of a number of factors. This included the selective review of medical evidence by Reliance Standard's hired paper only reviewing doctors, the failure to perform an examination of the claimant, instead relying solely upon paper only medical reviews the rejection of all subjective and self reported information from the claimant, and the flawed vocational review performed by Reliance Standard.

This combination of factors led the Court to conclude that Reliance Standard's rejection of the claim for long term disability insurance benefits was an abuse of discretion, and awarded the claimant back benefits, and the ability to seek attorneys fees.

Kelly v. Reliance Standard

Company Files for Bankruptcy and New Disability Insurance Company Terminates the Claim - Frankel & Newfield Files Federal Lawsuit and Wins Back Benefits

Our client, a 57 year old Senior Vice President of distribution and manufacturing for a large company located in Illinois, became disabled due to brachial plexopathy, non union of humeral fracture, cervical radiculopathy and carpal tunnel syndrome.

The long-term disability plan was managed by Trustmark Insurance, and the company was self-insured. After the company filed a claim for bankruptcy protection, Met Life became financially responsible for the claim, responsible for handling the claim and the payment of benefits.

After several years of qualifying for benefits under both the original company plan and under Met Life, a paper review was conducted by Met Life. It was determined that she continued to be totally disabled from any occupation and benefits continued to be paid.

Several months later, another paper review of her file was conducted, this time by Reliable Review Services (RSS), a company that does paper reviews for many disability insurance companies. The review from RSS determined that our client was now able to perform full time sedentary work based upon a labor market survey. Her administrative appeal was reviewed by Met Life and subsequently denied.

Frankel & Newfield was retained to represent her claim, and we filed a lawsuit in the United States District Court. We demonstrated that this review was completely inaccurate and that our client was no more able to work in any occupation at the time of the RSS review as she was when she was first found to be disabled.

Met Life reinstated her benefits and paid her the claims that had been denied.

In a time when companies file for bankruptcy with increasing frequency, employees are right to be concerned about changes in disability insurance coverage. However, when mistakes are made, an aggressive approach to litigation is necessary to fight for benefits.

If your disability insurance claim has been terminated after a review, call us today to learn how we can help.

Court Finds Lincoln Life to Have Abused its Discretion

A Federal Court in Michigan has recently determined that Lincoln Life abused its discretion when it terminated a claim, finding that Lincoln's decision making process was lacking in terms of analysis of the evidence. The claimant had provided extensive evidence documenting a history of back pain, along with objective testing which supported the impairments in functionality.

The Court also took issue with Lincoln's reliance upon a file review which was conclusory and lacked meaningful consideration of the evidence, holding that "conclusory and unsupported statements that the documentation was insufficient to support a finding of disability" did not demonstrate a deliberate and principled decision-making process.

The Court thus awarded the claimant his back benefits.

All too often, insurers rely upon file only reviewing doctors, who are regularly used by them to support the denial or termination of claims. These opinions are often lacking meaningful analysis of the medical evidence, and are often simply an outright rejection of the medical evidence.

Peshke v. Lincoln Life

Met Life Denies Disability Insurance Benefits for Project Manager Based on Paper Medical Records Review, We Fight Back and Win

Our client, a 57 year old man, was a project manager in building maintenance. In October 2008, he could no longer perform the duties of his job. He was suffering from a long list of painful disabilities: herniated discs, degenerative disc disease, lumbar spondylosis, radiculopathy, chronic back pain, cervical and lumbar spine stenosis, lumbar facet arthropathy, radiculopathy, fatigue, carpal tunnel syndrome, and headaches.

Met Life had originally accepted his claim, and he received full disability benefits from October 2008 until late April 2011, when suddenly MetLife terminated his claim based solely on a paper review of his file.

A paper review means exactly what it says: a review of the paper file. There was no medical exam, no one met him or saw him at his home or in a doctor's office. They simply looked at some of his medical records and determined that he was no longer disabled. We are familiar with their process and the reviewer.

On December 14, 2010, our client's claim file was reviewed by Dr. Marc Sloan, a paid consultant for Met Life who conducts many Physician File Reviews (PFRs) for Met Life short and long term disability claimants. From our research and experience, we know that every claim reviewed by Dr. Sloan that involves a spine or back condition is found not disabled, reportedly based on a lack of objective findings supporting functional limitations. Met Life had the right to have our client examined in person, but never exercised that right.

To add insult to injury, Met Life failed to conduct a proper vocational assessment. They asserted that our client would be capable of functioning in any capacity, relying on generic physical categories of occupations, rather than considering the mental and intellectual demands of the various occupations it believes our client was capable of doing.

Our client can neither sit nor stand comfortably, nor can he walk, carry anything, or do much of anything physical without a tremendous amount of pain and discomfort. We'd love Met Life to find an occupation that would be suitable for him.

On April 25, 2011, Met Life terminated the client's long term disability claim. We prepared an appeal, with aggressive documentation of his condition and of Met Life's complete failure to conduct an appropriate vocational assessment.

Met Life overturned its decision on December 2, 2011.

Early Intervention Can Cut Disability Costs - Smart Business is also Good Business

Sun Financial Life and Integrated Benefits Institute (a purported non-profit benefits research organization) have "discovered" that employers who take a pro-active approach and get involved with their employees soon after they are initially disabled can be effective in helping them return to work faster and happier - and, no surprise, this approach cuts disability-related costs.

IBI did a study of Steelcase, a Michigan office furniture manufacturer. After the company introduced a disability management program which integrated worker's compensation, short and long-term disability and the federal Family Medical Leave Act, worker satisfaction allegedly rose by 48 percent.

Steelcase implemented the program because employees were confused by disjointed employee benefits. They took the proverbial bull by the horns and made significant changes. The IBI study looked at nearly 1,000 non-maternity short term claims. Those in the study who received services like coaching about back-to-work expectations, information on light-duty positions, job site modifications, medical intervention to ensure appropriate care, and communication between the employee, employer and physician did far better in returning to work.

Apparently, kindness in the workplace pays big dividends. Especially when it saves the employer big money.

If your employer isn't Steelcase and doesn't understand the value of this sort of program, and no one is responding to your requests for help with the disability insurance company's delay or denial of claims, call our office to learn how we can help.

Chiropractic Economics Includes Frankel & Newfield in Resource Guide

We were very proud to learn that our firm was included in a resource guide published in the November edition of Chiropractic Economics.

Over the years, we have published several articles in Chiropractic Economics about disability insurance and they have always been well received. Many of our clients are chiropractors, who unfortunately suffer from the long-term effects of a very physical job.

It's ironic that the chiropractor, whose career is dedicated to keeping their patients healthy and well, often faces long term health challenges from the techniques of their profession. Bending and twisting, while applying force, often at awkward angles, can lead to neck, shoulder, back and arm problems.

When it becomes too painful to practice, many professionals transition into other related fields, like office management or teaching. However, their disability insurance policies should be paying benefits, partial or total, as the policies insure the chiropractor's ability to function as a chiropractor. It's not just semantics- its dollars and cents.

If you are a chiropractor and have been trying to keep working despite suffering pain or injury, call our office. We have represented many chiropractors in filing disability insurance claims, and would be happy to speak with you about your particular situation.

Does It Matter Which Disability Insurance Company Has Your Policy?

We wish we could say that there was one particular company that always came through for their disability insurance claimants. There would be little need for us as disability insurance attorneys, so we would become insurance salesmen, and make sure that everyone bought policies from that one good disability insurance company.

Unfortunately, this is not the case.

Our clients are insured by many different disability insurance companies. Some have private insurance with the highest rated disability insurance company, while others have the least expensive policies that they receive as a benefit from their employers. They are doctors and lawyers and business owners with huge incomes, and working people with moderate incomes. They come from all backgrounds, work in all fields, and live in a variety of states.

Regardless of the insurance company, they all share the same challenge: they are ill or injured and have been denied the benefits that they thought would help them, or the process has been unreasonably delayed with countless demands for more information, or they have been intimidated by the insurance company and required to undergo testing or examinations without being made aware of their rights.

When you are facing a problem with an insurance company, it's common to feel like you must have made a mistake. Did you pick the wrong company to provide disability benefits for you? Was there another level of coverage that might have been more likely to be accepted and paid?

If you have been denied disability insurance, it is not a reflection of who you are or anything you have done wrong. Don't let the insurance company intimidate you - you have rights. Call our office to learn about our practice and what we do to help our clients.

Frankel & Newfield Wins ERISA Appeal for Ad Agency CEO Denied by Dearborn National

Frankel & Newfield recently won an ERISA appeal against Dearborn National on behalf of a patient whose illness transformed him from a creative man whose success was based on his brilliance and analytical abilities to one who struggles to maintain more than one thought at a time.

While his denial may have been the result of a clerical error at first, the fierce fight that we had to undertake to get him the disability benefits that he was entitled to is further proof to us of the heartlessness of disability insurance companies.

Our client was a CEO at an advertising and marketing agency suffering from Hypertrophic Cardiomyopathy. This is a cardiac condition, often genetic in nature where, in very simple terms, portions of the heart muscle become extremely thick. It is difficult for the heart to pump blood, forcing the heart to work harder. He underwent open heart surgery to remove part of the enlarged heart muscle, during which time he suffered a cerebral hypoxia. There was not enough oxygen getting to his brain, and the brain suffers damage that impairs the person's ability to function. At worst, a hypoxic episode can cause death. At best, it leads to brain damage.

Our client no longer has the ability to think and act as he had before the surgery, and can no longer perform the functions and duties that are required from a CEO at a creative and fast-paced business. Dearborn National wanted to play a dating game with his future.

We proved that the insurance company had made an error by terminating our client's coverage before his employment ended.

We took a highly aggressive approach, providing professional opinions of his treating doctors and numerous published peer-reviewed medical studies that confirmed that a substantial proportion of patients after cardiac surgery experience measurable impairment in their mental capabilities.

Our client was awarded the benefits that he was owed and is now being paid on claim.
Not everyone who undergoes open heart surgery is able to return to their previous life. For those individuals, disability insurance is supposed to be the lifeline that lets them and their families live with dignity and financial security. If your disability insurance company wants to cut off your lifeline, call us today to learn how we can help.

Court Finds Aetna Abused its Discretion in Terminating Long Term Disability Claim

The reliance upon conclusory opinions of non-examining medical reviewers did not support Aetna's claim determination, according to a Federal Judge in Michigan. The Court took issue with Aetna's embrace of these hollow opinions, which were strongly contradicted by the claimant's treating doctors, each of whom clearly opined that the claimant was unfit to work, on the basis of clinical evidence and direct observation.

Further supporting its decision, the Court noted that Aetna failed to explain why it arrived at a different conclusion than the Social Security Administration, other than to note that Social Security relies upon different criteria. The Court was troubled by this lack of meaningful consideration, along with the wholesale adoption of the paper reviews, which were not based upon any examination or evaluation of the claimant.

Accordingly, the Court reinstated benefits.

Fura v. Federal Express Corp. LTD Plan

Prudential found to Abuse Discretion on Long Term Disability Claim

A Federal Judge in Louisiana has determined that Prudential's claim determination, to terminate long term disability benefits that had been payable for several years, did not have a rational connection to the facts, and has reinstated the claim and awarded attorneys fees.
The claimant, who suffered from orthopedic injuries following a slip and fall down stairs, had several surgeries, and enjoyed the support for her claim from numerous treating doctors.

Despite the fact that the claimant secured Social Security Disability insurance benefits, Prudential terminated the claim alleging that she no longer had support for her ongoing impairment. Prudential chose an adversarial posture with the claimant throughout the appeal process, and ultimately, simply adopted the opinion of a paper reviewing, non-examining physician. Prudential relied upon well known insurance pandering entities, including Reliable Review Services (RRS) and Dr. Richard Kaplan, a doctor who markets himself to insurers, for the claim review.

The Court was troubled by Prudential's wholesale adoption of the non-examining physician's opinion, to the complete exclusion of the support from claimant's treating providers. Based upon this, the Court determined that Prudential abused its discretion.

Tesch v. Prudential Ins. Co.