Disability Insurance Lawyer Blog

Court Rejects "Result Driven" Functional Capacity Evaluation

In the field of disability insurance, a trend that has seen a tremendous surge has been the insurance companies' utilization of Functional Capacity Evaluations ("FCE's"). This trend has caught a number of unsuspecting claimants in a web that has tangled their ability to continue receiving their disability payments.

Thankfully, some courts are beginning to see through these issues. One court recently rejected a claim termination that was based upon a "result driven" FCE. The FCE, which concluded that a claimant could perform greater than sedentary work over an eight hour day, was rejected, in large part because the examiner focused upon the puported self-limiting behavior, rather than relying upon the testing and observations for assessment of functional ability. Lowery v. UNUM Life Ins. Co.

Many insurers seek FCE's even where the policy does not specifically permit the right to conduct such an evaluation. In these instances, we typically aggressively challenge the insurers' right to the evaluation, based upon policy language, as well as legal challenges concerning the reliability of the test results, and medical challenges to the safety of such evaluations.

If your insurer is attempting to compel you to attend an FCE, we strongly urge you to engage counsel to protect your rights.

Liberty Life's Decision was Abuse of Discretion

A recent case from the Federal Court in New York has demonstrated that it is an abuse of discretion to terminate a claimant where liability had been accepted for a lengthy period of time, with no change in the claimant's condition. Smith v. Liberty Life Assurance Co. of Boston (N.D.N.Y. 2009).

The decision serves to re-affirm the vitality of arguments that have been successfully lodged by claimants that where a claim has been approved due to the severity of a condition, absent a marked change in the condition in terms of improvement, it is improper for an insurer to alter its prior claim determination, or as stated by the Court "decisions to terminate benefits in the absence of a change in condition....are arbitrary and capricious." The Court also chastised the insurer for crediting the opinion of a "newly hired" physician to review records, which appeared as "physician shopping".

We have unfortunately seen this type of conduct as a recent trend, with insurers going after older files with renewed vigor, hoping to find files to terminate benefits. If your insurer is engaging in similar conduct, please contact our offices to discuss how we can assist you in fighting back against such improper conduct.

Claim Decision Reversed; Not the Result of Deliberative, Principled Reasoning Process

A Court in Michigan has reversed the denial of a disability claim under ERISA, where the administrator failed to engage in a full and fair review, largely because it based its decision upon the conclusory evaluations of its hired doctors. These hired doctors simply rejected the opinions of the treating physicians, and the administrator simply adopted those conclusions, despite extensive evidence in the record supporting impairment.

The Court reconciled the Supreme Court's holding in Black and Decker v. Nord, and found that the administrator simply failed to fully address any contrary evidence without meaningful explanation. The selective review of records furthered the Court's concerns about the lack of a full and fair review. Unfortunately, the Court remanded the claim to the administrator for further consideration.

Dockery v. USG Corp. Retirement Plan (E.D. Mich. 2009)

Surveillance Not Enough to Terminate Benefits

A recent case has offered excellent guidance to claimants with orthopedic disability claims, and is well transferable to other impairments. A claimant was being paid for several years, when CIGNA conducted surveillance, revealing activities which exceeded the levels that the claimant had advised he had capacity for.

After securing the surveillance, depicting the claimant active on each day, and engaging in some level of activity, CIGNA terminated the claim, finding the activity level inconsistent with the claimed impairment. The Court determined that while the surveillance raised some questions about functionality, there was an abundant amount of evidence showing that he was impaired, and that the activity did not translate into the ability to work full time. One component of the claimant's evidence was a diary showing typical daily activity and pain. The Court found this evidence compelling, along with the support from treating physicians.

The claimant take away point is that a diary or symptom log could well provide an additional level of claim support, to rebut an insurer's efforts to rely upon surveillance. Linck v. Arrow Electronics (D. Mary. 2009).

Liberty Life Admits that Surveillance is Aggressive Tactic

In a recently decided appeal in the Third Circuit (NJ, Pa, and Delaware), Liberty Life made an admission that the utilization of surveillance is an "aggressive tactic", one that might constitute a procedural irregularity demonstrating bias. Culley v. Liberty Life Assur. Co., 2009 U.S. App. LEXIS 16002 (3d Cir. 2009).

This case was presented to the Court of Appeals by Liberty Life, who lost at the District Court level. In seeking to argue that it was not under any obligation to conduct surveillance, it maintained this interesting position - one that certainly will be utilized against it in the future when Liberty Life does, in fact, conduct surveillance, a common claim handling technique.

The Court also determined that Liberty Life's claim process disfavored the claimant "at every crossroad". It is pleasant to see when judges appreciate the adversarial nature of the disability claim process engaged in by insurers.

Met Life Found to Have Abused Its Discretion

Another judge has found that Met Life abused its discretion in its consideration of a long term disability insurance claim. By relying upon physicians who derive substantial income from providing medical reports to insurance companies, Met Life failed to support its claim determination with "substantial evidence", and its determination was reversed.

Met Life utilized a cadre of paper reviewing doctors, eschewing its right to actually examine the claimant, and relied upon stale surveillance video obtained of the claimant. The Court also found that Met Life failed to provide the claimant with a full and fair review as it is obligated under ERISA. The Court noted that Met Life's financial conflict of interest was a significant factor in its determination. Solomon v. Met Life, (SDNY 2009).

CDC Reports More Americans Reporting Disability - Frankel & Newfield is here to help

According to a study released on April 30 by the Centers for Disease Control and Prevention, the number of American adults reporting a disability took a significant leap upwards between 1999 and 2005.  As the recession continues to grind on and the baby boomer generation continues to age, expect to see more claims for long term disability insurance benefits.  And don't think for a moment that the LTD insurance companies aren't paying attention.  After all, the entire business of insurance is based on the model that while some people will file a claim, most will not. 

When the statistics become overwhelmingly out of favor for the insurance companies, the hardball of claims will get even tougher.  If you have been denied disability benefits, if you are on claim and payments are delayed, if you are about to file for long term disability claims, or if you have had enough of dealing with the insurance company and want to explore a settlement, visit our website, give us a call at 1-877-LTD-CLAIM (877-583-2524) or click here to send an email.   Speak with a partner and find out how we can help you.

 

Organic Brain Dysfunction Not Subject to Limited Benefit Period

Many ERISA disability policies contain a limited benefit period for impairments caused by or contributed to any mental or nervous disorder.  There has been much litigation over these issues, and one court has recently determined that organic brain dysfunction did not invoke the mental illness limitation in LINA's policy.  Jewell v. LINA

Interestingly, the court evaluated both the objective and subjective information in the file, and noted that while the objective evidence, which included EEG and CT scans, supported Defendant's position, the subjective medical evidence, and the well supported opinions of the only neurologist who opined favored Plaintiff's contentions.

The lesson to be learned as claimants is that the support of the treating doctor is critical to the success of the claim.

Disability Insurance and Severance - Successful Claims Require Strategic Planning

Employees struggling to stay at work and perform their jobs despite illness or injury feel trapped between a rock and a hard place.  If they stop working, they won't be able to make a claim for disability, as they will no longer be considered an "active employee," a requirement to be eligible for coverage.  But if they go out on disability, will they be the first ones laid off,  potentially losing other employee benefits?

Frankel & Newfield helps clients navigate these difficult situations, making critical and strategic decisions based on our years of experience in long term disability insurance claims and litigation.   We discuss a time frame for pursuing the claim, acknowledging and dealing with the inherent difficulties, and issues of gaining medical support.   Our clients have a clear picture of their options, and can make an informed decision about discussing their disability with their employer, filing a claim, at the same time that they are navigating the severance process. 

Dealing with a disability insurance claim and severance at the same time is serious business, and a misstep could have severe financial repercussions.  If this is your situation, speak with one of the partners to learn how we can help you. Call our office at 1-877-LTD-CLAIM (877-583-2524) today.

CIGNA'S Wrongful Denial is Overturned by Frankel & Newfield

Our client worked for one of the largest hotel and timeshare corporations in the world as a Director of Sales and was responsible for over $1.5 million in revenue each year for the company.  Our client went out of work in late 2008 due to morbid obesity, dyspenia with exertion, extreme fatigue, severe obstructive sleep apnea, difficulty walking, trouble sleeping, major depressive disorder, obsessive-compulsive disorder, mitral insufficiency, concentric left ventricular hypertrophy, trivial tricuspid insufficiency, and atrial arrhythmias.

When he went out of work, our client was literally unable to walk more than a few feet without experiencing shortness of breath and numerous pains throughout his body.  Our client filed for long term disability benefits with his insurance company, CIGNA, and was denied on the basis of CIGNA's erroneous conclusion that he was capable of performing full-time sedentary work.  After learning of this denial, our client hired our firm to submit the appeal on his behalf.

In denying the client's initial long term claim, CIGNA conducted a selective paper review of our client's medical records; and, instead of appreciating the requirements of his specific job, CIGNA used the generic job description of a light-duty sales person.  We worked with our client to ensure that CIGNA had all of the most current medical records, test results, and a copy of the client's actual job description. All of this information was included with the appeal, and we successfully demonstrated to CIGNA that our client suffered from numerous co-morbid conditions that were supported with objective evidence and that these co-morbid conditions must be taken into consideration as such, not in isolation from each other.  Based upon all of the information submitted in the appeal, our firm was successful in having CIGNA overturn their original decision and the client's benefits were awarded to him.

Bad Faith Claims in New York? You gotta believe.

After years of frustration due to an inability to bring claims against disability insurance companies for bad faith damages, based upon the breach of the covenant of good faith and fair dealing, it appears as if New York is joining a host of other states in permitting such claims to be pursued.

A recent case from the Northern District of New York federal court has permitted a claimant to pursue her claim against Mass Mutual for bad faith, and seek consequential damages.  Chernish v. Mass Mutual.  The claimant survived a motion to dismiss filed by Mass Mutual, and is permitted to seek both consequential damages and attorneys fees against Mass Mutual.

Perhaps now insurance companies dealing with New York claimants will afford claims the appropriate consideration and will cease acting against claimants with virtual immunity from any meaningful claims.  If your insurance claim has been wrongfully delayed or denied, please feel free to contact us to review how we can assist you in securing your benefits.

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. 

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.