February 2013 Archives

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.

February 28, 2013

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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

February 14, 2013

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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.

February 11, 2013

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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

February 6, 2013

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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.

February 1, 2013

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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.

February 1, 2013

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