Disability Insurance Lawyer Blog

UNUM Wants Stage IVA Cancer Patient to Wait for Disability Benefits -- Frankel & Newfield Cuts through the Delay to get Benefits Paid

Our client is a vascular surgeon who is unable to perform the duties of his profession due to numerous co-morbid conditions, including Hepatitis C, fatigue, diabetes, hemochromatosis, chronic and recurrent alcoholism, hyperparathyroidism, lumbosacral disc herniations, degenerative disc disease, facet arthopathy, forominal stenosis, chronic pain, depression, and anxiety.

His residual disability benefits were terminated on September 6, 2011 by Unum. At the same time of Unum's termination of his claim, he received worse news: he was diagnosed with Stage IVA oropharyngeal cancer.

Unum determined that our client was disabled due to oropharyngeal cancer and indicated that he would have to satisfy a new elimination period (because his prior claim had been terminated). We fought back, and we won.

Frankel & Newfield successfully argued that his oropharyngeal cancer was a complication of and co-morbidity to excessive alcohol usage. We provided medical research literature and statistics documenting that in 70% of all oropharyngeal cancer cases, excessive alcohol use is a common risk factor. We further supported our argument by providing medical research literature that oral cancers are twice as common in men as in women, and the likelihood of developing oral cancer increases with age, which supported our assertion that our client's oropharyngeal cancer was a complication of and co-morbidity to excessive alcohol usage - a disability for which our client had been receiving benefits.

We also educated Unum with background information on our client's particular type of cancer. The symptoms of throat cancer are not specific to cancer. The symptoms -- cough, hoarseness, difficulty swallowing, ear pain, and/or sore throat -- are common to many illnesses. Our client's symptoms began in late July 2011. When the symptoms persisted, our client scheduled a consultation with an ENT (Ear, Nose and Throat) doctor.

Our client was diagnosed with Stage Iva tonsillar carcinoma (T2 N2b M0), a type of oropharyngeal cancer considered to be advanced cancer. It was unlikely that his cancer advanced from Stage 0 to Stage IVa within the short time from when he started to experience the symptoms and called for an appointment, to when he was diagnosed.

After considering the extensive the medical records, the exhaustive medical research information, including the statistics, literature, and studies that we provided, combined with the duties and tasks required to perform his position as a vascular surgeon, and the side effects of the treatment, Unum had no choice but to reverse the termination of our client's benefits, with no requirement to satisfy a new elimination period.

Insurer Avoids Providing Documentation Which Would Reveal Bias of Hired Doctors

In ERISA long term disability insurance claim disputes, a fertile battleground has been found regarding the issue of the doctors repeatedly hired by insurance companies, either directly, or through various third part vendors, to review records and issue reports to support the denial or termination of a long term disability insurance claim. The evidence of bias which can be gathered through discovery can be significant, and in some cases, could mean the difference between success and failure in litigation.

A recent decision highlights the significance of the issue. Hartford Insurance, one of the largest providers of long term disability insurance benefits, recently sought to overturn a decision from a California federal court that ordered it to produce significant materials which would reflect on the nature and scope of its relationships with third party vendors and the hired doctors. To accomplish its goal of overturning the discovery decision, Hartford Insurance chose to agree to a less favorable standard of review of its claim determination for the termination of a long term disability claim.

By way of background, in ERISA disability insurance litigation, claims are reviewed by a Judge either under a de novo standard of review or an abuse of discretion standard of review. The abuse of discretion standard is favorable to insurance companies, as many courts have indicated that a claim decision will be upheld under that standard as long as it is supported by some evidence in the record. In contrast, the de novo standard of review will determine whose position is more correct, rather than whether the insurance company abused its discretion.

So here, Hartford Insurance agreed to lessen the deference afforded by the Court for the sole purpose of avoiding producing the discovery materials about its relationships with the doctors and vendors. The clear implication of Hartford Insurance's strategic decision is that they would rather lose this one long term disability litigation than reveal evidence of its relationships which could impact a myriad of other ERISA disability litigation.

Rowell v. Aviza Technology (Hartford Life)

DISABILITY INSURANCE CLAIMS APPEALS: NOT A DO-IT-YOURSELF PROJECT

We are noticing a disturbing trend in our office. Phone calls are coming from policy owners who are contacting us after they have tried and failed to appeal a termination or denial of long term disability insurance benefits. People often do not think they are permitted to engage an attorney to handle the issues, or think it is simple enough to handle on their own. Too often, these people are wrong, and failing to engage counsel for this critical timeframe of their claim becomes their undoing.

Here's the problem: unlike other kinds of insurance coverage, disability insurance is a very expensive cost for insurance companies. For example, a claim filed by a private policy owner, age 46, with a monthly benefit of $4,000, is the equivalent of waving a big red flag under the nose of an angry bull. $48,000 a year for what might be as long as nineteen years is a huge exposure and cost for the long term disability insurance company.

Even a smaller disability policy, one owned by an employee under the employer's benefits umbrella for $2,000 a month, is a problem if the employee is relatively young.

Ask any actuary. The business of denying, delaying or requiring further information is not a personal judgment on the person making the claim, although it often feels that way to the policyholder and the family. It is a very hard and fast numbers game. How much is it going to cost the insurance company to pay out on the claim over time?

Remember, there are no real penalties for the insurance company if the claim is delayed or denied. They generally cannot be hit with punitive damages. So while you are struggling to figure out how to pay the mortgage while your disability insurance company determines whether or not it is going to pay a claim, their costs for the delay or denial are zero. Your costs, and the impact the delay/denial has on your financial and personal life can be staggering.

Appealing a denial from a long term disability insurance company is not a do-it-yourself project. This is one where experience and knowledge is necessary and vital to the potential success of the claim, and the reinstatement of financial security.

If your disability insurance claim has been denied and you are considering filing an appeal on your own, call our office. The stakes are high - and you don't have to go it alone.

CIGNA'S LONG TERM DISABILITY DETERMINATION ARBITRARY AND CAPRICIOUS

A Federal Court has determined that CIGNA abused its discretion in terminating a claim for long term disability insurance benefits, for a claimant with orthopedic problems and other co-morbid conditions. The Court determined that CIGNA improperly determined the extent of the claimant's functional capacity, and relied upon a flawed transferable skills analysis to decide that the claimant could work in some occupation.

The claimant suffered from diabetes, back problems, sleep apnea, and heart disease, and was forced to leave work due to his disability. He was awarded Social Security disability benefits, which were pursued as a result of his CIGNA policy requiring that he pursue these benefits. CIGNA sought to rely upon a report from the claimant's treating doctor, but misinterpreted the opinions of the doctor, and erroneously determined that the doctor provided a greater level of functionality for the claimant.

By misinterpreting this material and utilizing these findings to perform a transferable skills analysis, CIGNA's claim determination lacked substantial evidentiary support. The Court thus determined that the claimant remained totally disabled and awarded the payment of all back benefits, with interest on these benefits and attorneys fees to be awarded.

The mis-classification of medical evidence is a common technique of insurance companies considering the continuation of long term disability insurance benefits. When this occurs, the transferable skills analysis will also be flawed, and could lead to the wrongful termination of one's benefits.

If you have a long term disability insurance claim, take efforts to ensure that your doctors are appropriately articulating your functional deficits. If you feel concerned about your claim, feel free to contact our firm to see how we can help assist you.

Wykstra v. Life Ins. Co. of N.A. (CIGNA)

PRUDENTIAL TERMINATES CLIENT BENEFITS BASED ON PAPER REVIEW; WE WIN BACK HIS RIGHTFUL PAYMENTS

Policyholders who are on claim and receiving benefits from their Long Term Disability insurance policy are usually stunned when suddenly the insurance company decides they are no longer disabled and terminates their monthly check.

Our client, a 49 year old man who suffers from debilitating migraine and cluster headaches, had been paid for a year by Prudential when he received a notice that his benefits had been terminated. He was especially surprised as he had been approved for Social Security Disability Insurance, which can be more difficult to obtain than private or employee-benefit disability.

Despite a regular treatment regime that included trigeminal nerve block injections, trigger point injections, oxygen, and various medications, Prudential decided that he was able to perform the material and substantial duties of his own occupation - despite the fact that Prudential paid benefits for almost a year.

We believe that the only thing that changed was Prudential's desire to stop paying the high monthly benefit amount.

As Senior Director of Technical and Commercial Operations for a multi-site company, his job required frequent travel, a high level of analytical thinking and strong decision making skills. He was responsible for managing the daily operations of staff at corporate headquarters and predominately remote sites in three widely dispersed states and Europe. He had to travel at least monthly out of state and daily within his state of residence to create and maintain all systems and software documentation, ensure all license compliance programs, standard operating procedures, and computerized systems validation within the organization.

Prudential asked him to undergo neuropsychological testing, and the neuropsychologist determined that our client was not suffering from a somatoform disorder and that the symptoms the client was exhibiting were in fact related to his medical diagnosis of migraine and cluster headaches.

Prudential also arranged for him to be put under surveillance the day before the testing, the day of the testing, and the day following the neuropsychological testing. There was very little activity observed.

Prudential did numerous paper reviews of the client's file, including three reviews by a doctor we know all too well who has an insurance company-based practice. We believe that Dr. Neuren has not treated a live patient in over eight years.

Dr. Neuren was employed as a Vice-President Medical Director by Unum from 2001 to 2005, and is an "independent" consultant for PDA, DRMS, Unum, Sun Life, CIGNA, and Prudential. He is well-known in the disability insurance arena for marketing himself as a disability consulting expert who has "completed thousands of disability consulting assignments over the past 10 years."

A review of Dr. Neuren's curriculum vitae revealed that he lacks any clinical experience or expertise with regard to cluster headaches, migraine headaches, chronic pain, or chronic fatigue. Despite this lack of credentials in this area of disability, Prudential retained him to determine whether or not our client was disabled. We made sure to bring to the Court's attention that in all of these "thousands" of consulting arrangements, Dr. Neuren has consistently provided opinions to his clients indicating that their claimants were not disabled.

We took on the fight with a highly aggressive appeal based on the medical records, focusing on the testimony of our client's many physician specialists and Prudential's failure to take his real medical condition into account. Our client is now back on claim, has been paid the monies that he should have been paid, and we are continuing to monitor his relationship with Prudential to ensure that he continues to receive his monthly benefits checks.

If your claim has been denied based on a series of paper reviews, don't let the insurance company walk away with benefit money that is rightfully yours. Call our office today to learn how we can help you.