Disability Insurance Lawyer Blog

Hartford's Use of Paper Reviewing Doctors Found Unreasonable

One of the biggest challenges for ERISA claimants is that there claim can be denied or terminated based largely upon an opinion which is specifically paid for by an insurance company. Many of the largest LTD insurance companies regularly rely upon a limited number of doctors, who perform "paper reviews", never personally examining a patient, before formulating an opinion that they are not disabled.

Since these doctors are regularly utilized by the insurance companies, one would expect that the overwhelming majority of the opinions favor the insurance company. In our practice, we see the same doctors utilized again and again - but have often been stymied in having Courts appreciate the significance of this biased relationship between the insurance company and the so called "independent" doctor. While some courts are starting to appreciate this, the tide has not completely turned.

Thus, it is refreshing to see a decision which takes apart the paper review, chastises the insurance company's reliance upon one piece of data from a treating physician (to the exclusion of other evidence supporting impairment), and overall takes a skeptical eye toward the conduct of the reviewers. Ultimately, the Court decided that a remand was appropriate to have Hartford once again review the claim, with updated, in-depth evidence of the claimant's functionality, consideration of the award of Social Security benefits, and discussion with the claimant's treating physicians.

Pauley v. Hartford Life & Acc. Ins. Co.

We vigorously pursue ERISA LTD cases in litigation, particularly where the denial or termination is predicated upon an opinion of a paper reviewing provider. Our law firm has secured some of the most extensive discovery to reveal the issues of concern regarding this cozy relationship between paper reviewing doctor, insurance company and many of the third party vendors often utilized by insurance companies.

Hartford's Conduct Found Arbitrary and Capricious

A Federal Court in Ohio has determined that Hartford's reliance upon the opinion of a non-examining, paper reviewing physician, was not sufficient to support a termination of disability benefits to an insured. Hartford relied upon the opinion of a physician provided by MES Solutions, an entity seen regularly as providing insurer favorable doctors to write reports justifying a termination of disability benefits.

Dr. Baum, hired by Hartford through MES, determined that the claimant had sedentary work capacity (able to work 8 hours a day, 5 days a week), despite clinical and objective findings in the record supporting impairment. When additional documentation was submitted, including the results of functional capacity testing supporting impairment, Dr. Baum refused to alter his opinion and Hartford maintained its claim position.

The Court opined that Hartford abused its discretion in terminating disability benefits, because of its conflict of interest, Dr. Baum's failure to document what evidence he rested his opinion on, his failure to consider all evidence, and Hartford's failure to consider the occupational requirements of the insured's occupation.

The Court was also troubled by the lack of any in person examination, and instead the reliance upon a paper review of medical records. This is an all too common issue seen, where insurers are relying upon opinions of non-examining doctors who do incredible volumes of work on behalf of insurance companies.

Bowers v. Hartford Life (S.D. Ohio, May 17, 2010)

Benefits Awarded to Chronic Fatigue Claimant

A Federal Court has determined that a claimant suffering from Chronic Fatigue Syndrome satisfied her burden of demonstrating that she was unable to perform the material duties of any occupation, entitling her to reinstatement of her disability insurance benefits. The Court held that the claimant had medical evidence of her condition (CFS), had subjective complaints which served as evidence of her impairment, along with strong support from her treating providers. Further supporting the opinion from the Court was Social Security's determination of impairment.

The Court rejected the arguments from the insurer, who relied upon the results of a Functional Capacity Evaluation (FCE), in an effort to show that the claimant had residual functional capacity for work. As support for why the Court rejected the FCE, the Court noted that the conclusion of work capacity was not supported by the DOL classification of sedentary work, and that the FCE testing was not of enough duration to sustain an extrapolated finding of functional ability. The Court also rejected surveillance evidence, which the insurer sought to utilize to buttress its claim determination.

Finally, the Court rejected the insurer's effort to rely upon a mental and nervous disorder limitation in the policy, which could have significantly curtailed the claimant's benefits. Rather, the Court determined that the depression symptoms were secondary to her CFS.
The Court thus awarded benefits, interest and attorneys fees.

Perryman v. Provident Life & Acc. Ins. Co. Ariz. D. Ct. 2010.

Court Reinstates Claimant with Orthopedic Impairments

A Federal Court in Michigan has ordered Met Life to reinstate the claim of a Bearing Point employee, whose claim had been terminated on the basis of a paper review by a well known insurance company provider. The Court took issue with a number of aspects of the claim handling, in reaching the result that Met Life abused its discretion. The Court noted that even the arbitrary and capricious standard of review "has some teeth" and considered numerous aspects of the claim handling to be indicative of a financially conflicted fiduciary.

The Court was troubled by the failure to provide any consideration to the opinion of the claimant's treating physician, as well as failure to even mention Social Security's favorable findings. The Court also took issue with Met Life's paper reviewing physician's inconsistent report, and the fact that Met Life terminated the claim despite not demonstrating any improvement in the claimant's condition, after accepting liability of the claim for years and despite worsening of the condition as revealed by medical testing.

It is clear that some courts embrace the review proceeding with some meaningful scrutiny, and thus, are able to appreciate the significant level of conflict influencing the claim process. This case highlights a common theme seen in many orthopedic disability claims. Lanier v. Met Life Mich. D. Ct. 2010

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.

Court Finds Decision Arbitrary and Capricious

Despite acknowledging that the abuse of discretion standard of review is quite deferential to plan administrators, a court has determined that Harvard's termination of benefits was an abuse of discretion. The Court found the administrator improperly rejected the panoply of supporting physicians, and that the only medical opinions that were unfavorable to the claimant were those procured by the administrator. The Court also was troubled by the failure to consider both Social Security and Workers' Compensation awards.

In language that can be offered to other Courts throughout the country, the Judge stated that while "plaintiffs seldom if ever prevail when the standard [abuse of discretion] is applied. But seldom if ever cannot mean never at all, or the promise made to claimants that federal courts will review their benefits decisions for abuses of discretion would be a cruel and illusory exercise." McGahey v. Harvard University

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.