Disability Insurance Lawyer Blog

Travel is Work Requirement, Court Holds

Claimants are often surprised to learn that their disability insurance company has failed to consider the travel required in one's employment when considering the occupational requirements in a claim.  One Court has found UNUM's conduct to be an abuse of discretion in failing to adequately consider evidence of a claimant's work requiring him to travel, where the evidence indicated that travel was an integral part of the job duties.  Ratkovic v. Northrop Grumman.  The claimant was required to travel to customers associated with project meetings and delivering presentations, which were not properly considered during the claim.

The Court held that UNUM also failed to consider the award of Social Security disability benefits, and in light of the Supreme Court's holding in Met Life v. Glenn, recognized that the logic was instructive, where an insurer embraces the financial benefit of the Social Security award but gives no weight to the underlying SSDI finding of impairment.  This Court found that UNUM's conduct regarding SSDI casts additional doubt upon its decision to deny the claim.

Thus, in proceeding with a long term disability claim, claimants must be cautioned to ensure that an accurate and complete consideration of their work requirements are performed, and where a claim is wrongfully denied or terminated, that they aggressively pursue the claim through the administrative appeal process.

Insurer's Reliance Upon Surveillance Improper, Appeals Court Holds

One of the common investigative tools utilized by insurance companies in an effort to terminate long term disability claims is surveillance, whereby the insurer seeks to observe a claimant and capture activity which it determines is inconsistent with the claimed limitations of an insured.

A recent case from the Fifth Circuit Court of Appeals (Texas) has upheld a lower court's determination that the insurance company's reliance upon surveillance constituted an abuse of discretion.  The Court held that the surveillance was generally consistent with the claimant's alleged limitations and did not adequately address the ability to perform the duties of the claimant's occupation.  Citing other cases, the Court held that the insurer unfairly equated the insured's known abilities with the more strenuous duties of her occupation, reflecting a plain lack of objectivity in its review.  Bray v. Fort Dearborn Life Insurance Co.

Many insureds' claims are terminated due to surveillance.  If your claim is terminated due to surveillance or other investigative tools, it is imperative that you seek out counsel during the administrative appeal process, to secure and protect your rights and develop powerful arguments that will help you succeed on your claim.

Problems In Subjective Complaint Claims

Where a claimant suffers from a condition that is not readily diagnosed by objective testing, there is often great difficulty in having the insurers accept liability of the claim.  Some of the more common symptoms faced with these problems include claims of fibromyalgia, chronic fatigue syndrome, depression, and even cases of rheumatoid arthritis or back injuries.  Even in cases where herniated discs appear on MRI, insurers will often challenge the claim for disability, arguing that there is no impingement upon nerves or that the condition is simply degenerative.

The key to succeeding on claims with subjective complaints is in having the treating physician strongly advocate for the claimant, providing well documented clinical findings, restrictions and limitations.  Where the treating physician lacks zeal for the claimant, the claim is often doomed to be denied.  Thus, working with the doctor is imperative in such claims.

While some disability policies contain language requiring objective medical evidence in support of a claim, the majority of policies do not contain such provisions.  Nonetheless, many insurers inject the requirement into the claim process unilaterally, knowing that such a requirement will be impossible for the claimant to satisfy.  Symptoms such as fatigue, pain, energy, focus and concentration are difficult to demonstrate objectively.  The medical personnel for these insurers are likely to opine that the claimed restrictions and limitations are not supported or are self-limited.

Many courts, however, have required insurers to take into consideration a claimant's subjective complaints when deciding upon the validity of the claim, if the claimant's credibility is not challenged. 

Investigative Tools Used by Insurers

There are several investigative tools used by insurers on disability claims, including IME's (Independent Medical Examinations), FCE's (Functional Capacity Evaluations), Peer Reviews, Field Investigations, and Surveillance.   The insurer has a contractual right to compel a claimant to undergo an IME, and in most circumstances, a claimant has the obligation to attend an examination.   However, certain testing may not be reasonable, and certain evaluators may not be independent. 

An FCE is an entirely different scenario.  In contrast to an IME, an FCE is not generally contractually required.  This test is utilized by insurers to test one's maximal effort, which is then used to extrapolate whether one can work full time on a sustained basis due to the ability to perform a myriad of tests.  Thus, there are numerous grounds upon which to refuse to attend an FCE, and both attorneys and claimants should be vigilant about asserting rights to refuse this test.  For additional information about FCE's please see our August 28, 2008 post or click here.

Insurers often use in house medical staff to contact a claimant's treating physician to discuss the claimant's condition, restrictions and limitations.  In essence, the insurer's medical staff seeks to develop evidence from the physician to demonstrate the claimant is not disabled.  Often, the insurer sends a letter to the physician "confirming" the conversation and stating that absent a quick reply, they accept the statements in the letter.  The letter, however, may either distort the facts, or cast them unfavorably to the claimant.   This can doom a claim.

Insurers also conduct peer reviews of claims, relying upon a non-examining physician to address functional abilities.  This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim.  Thus, claimants must ensure that their treating physicians provide well developed, organized office notes and/or narrative reports to support the claim.

Field investigations are common techniques employed on claims by medical professionals.  An investigator will stop by unannounced to speak to the claimant.  Often, the investigator seeks to ascertain the claimant's activity level, determine whether the claimant is working in another interest, or to develop other information to be used by the insurer.  Caution should always be used when speaking to the insurer or its investigator.  Providing interviews should be done on the claimant's terms, whether recorded with witnesses, or by having a confirmation of interview prepared - all to avoid anyone distorting the information provided.

Surveillance is another technique frequently employed in high benefit cases, or where claimants allege disability based upon either subjective type conditions or where the objective support is not indicative of the restrictions or limitations.  In high benefit claims, the insurer is willing to invest significant money to terminate or deny a potentially expensive claim.  Claimants must be wary not only of their activity levels while on claim, but of any statements made to the insurer about their daily activities.  Inconsistencies can be fatal to a claim, as the expression a picture is worth a thousand words holds true with regard to surveillance.

Careful consideration must be given to each aspect of the claim, to ensure that the claim gets approved and remains accepted by the insurer. To learn more, visit Frankel & Newfield, P.C.'s Web site by clicking here.

Frankel & Newfield is Featured in The Journal of Medical Practice Management

Justin C. Frankel and Jason Newfield have authored an article entitled "Strategies For Navigating Disability Insurance Claims" which appears in the January/February 2009 issue of The Journal of Medical Practice Management.  The article provides fundamental information about filing a long term disability claim, the issues that often arise in the claims process, and the potential problems that must be avoided to successfully maintain a claim for disability benefits.

To read the entire article,click here. For more articles published by the firm regarding the disability insurance claim process, please see our Disability Articles.

CIGNA Again Taken to Task for LTD Claim Handling

Insurance companies employ a variety of claim handling techniques when seeking to wrongfully terminate a claimant from continued benefits.  Fortunately, some courts are beginning to see through such conduct.  To read more about some of our litigation victories, please see Frankel & Newfield Litigation Success Stories. 

CIGNA has once again seen its claim handling of long term disability claims chastised by a Federal Court.  The decision, Alfano v. CIGNA Life Insurance, from the Southern District of New York, determined that CIGNA's conduct was arbitrary and capricious.  In terminating a claim which had been paid for several years, CIGNA relied upon the results of a flawed Functional Capacity Evaluation ("FCE"), as well as paper reviews of the medical records, by biased in house and outside medical reviewers.  The Court decided that the medical reviews relied heavily, if not exclusively, upon the FCE''s summary conclusions that Alfano was capable of performing sedentary work, despite the fact that the underlying testing data was inconsistent with that conclusion. 

The claimant suffered from back pain and leg weakness as a result of a motor vehicle accident.  His claim was approved by the Social Security Administration, and CIGNA embraced the financial benefit of the SSDI decision to reduce its obligations to Mr. Alfano. The Court found such conduct to be some indicia that CIGNA was not acting properly.  The Court noted that while the SSDI determination was not determinative, it was deserving of substantial weight because the decision was corroborated by record evidence establishing impairment. 

Thus, the Court entered judgment in the claimant's favor and refused to remand the claim back to CIGNA to further consider eligibility for the past due benefits.  The open issues now involve whether attorneys' fees and interest will be awarded by the Court.

Jason Newfield Has Again Been Asked to Present At the ACI National Disability Conference

Jason Newfield is honored to have once again been invited to present to his colleagues at the June 2009 American Conference Institute's 12th National Advanced Forum on Litigating Disability Insurance Claims.  His presentation is entitled "A Circuit-by-Circuit Analysis of Met Life v. Glenn Interpretations and How to Adapt Your Litigation Strategies in Response."  He is well suited to provide this presentation, as the firm's nationwide practice finds them litigating cases throughout the country.  Since Glenn was decided in June 2008, there have been a multitude of decisions on both discovery and dispositive issues which Mr. Newfield will be addressing, and providing insight as to the most effective strategies to consider in choosing a forum for litigation and for the litigation process.