Monday, December 29, 2008

Unum Cases In New York

There is good news for people whose disability claims were terminated or denied by Unum. The Second Circuit's decision in McCauley v. First Unum makes it easier to overturn Unum's decisions in federal court.

The Second Circuit ruled that the Supreme Court's decision in Metropolitan Life v. Glenn requires the district courts to apply a new standard of review to long term disability cases. Applying this standard, the Second Circuit found that the errors Unum committed in reviewing claims, and its conflict of interest as as claim administrator and payor, warranted reversal. The court asked rhetorically, what else could have caused Unum's errors other than its conflict of interest.

The Second Circuit rejected Unum's lip service argument that it considered all of the evidence in making its decision. Perhaps more importantly, the Second Circuit ruled that Unum's cherry picking one medical report "to the detriment of a contrary report that favors granting benefits was ... indicative of an abuse of discretion."

The Second Circuit added that "Unum's history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley's claim for benefits." McCauley means that any person whose disability claim was terminated or denied by Unum now has a better chance of winning in federal court. The same applies to other insurers with a history of biased claims administration, such as CIGNA, Hartford, and others who have hidden behind the old standard of review that favored them with an un
level playing field prior to the Glenn decision.

Saturday, December 20, 2008

Medical Evidence

An application for any type of disability benefits requires submitting medicaI evidence of the alleged disability. There are three basic kinds of medical evidence: treatment records, diagnostic tests, and functional assessments. The failure to submit all three sorts of medical evidence generally results in an application being denied.

I represent a 60 year old alarm system installer with back pain, whose application for Social Security Disability (“SSD”) benefits application was approved three months after it was filed. Not only did I submit the treatment from the claimant’s neurologist and neurosurgeon, but I also provided functional assessments from each, together with the diagnostic tests that each relied upon.

According to statistics from the Social Security Administration, over 60% of SSD applications are denied initially. Submitting treatment records, diagnostic tests, and functional assessments will not guarantee approval. However, the SSD applications that I submit are approved more frequently than 40% of the time, which I attribute to, among other things, submitting the three types of medical evidence.

Prior Applications

Just because you receive a “Fully Favorable” decision from the Social Security Administration (“SSA”) doesn’t mean that you will receive all the Social Security Disability (“SSD”) benefits to which you may be entitled. There are countless possible mistakes that a decision may contain. It is important to read a decision carefully, even when it is labeled “Fully Favorable”.

In January, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. Even though it is very difficult for a claimant to establish the onset of a disability when it is many years prior to the filing date, I was able to get the claimant’s SSD application without a hearing.

When I read the fully favorable decision it found that the claimant became disabled December 31, 2001, and approved benefits based on the January 2008 application. However, I advised the SSA that the claimant filed prior application in February 2006 before retaining me, which alleged the same disability onset date. I also provided the SSA with the written request that I had made to reopen the prior application.

Today I received a “Reopened and Revised” Decision that awarded SSD benefits based upon the February 2006 application. The result is that the claimant will receive 23 months, nearly two years, of additional benefits

Tuesday, December 16, 2008

Disability is Functionality

Claimants always seem surprised to learn that their disability applications have been denied even though their doctors provided a letter stating that their patient is disabled or their medical records show that they have a medical condition. The surprise stems from the fact that disability decisions are primarily based upon an individual's functional capacity as opposed to his or her doctor's opinion or diagnosis.

Different disability programs or policies use different definitions of disability. For example, you may need to show you cannot do any type of work for Social Security or Long term Disability; whereas, you may need to show you cannot do your past work for worker's compensation or disability retirement. The claim adjudicator will not assume that the doctor knows the proper definition of disability. Instead, the claim adjudicator will decide if you have the mental and physical ability to do a particular job or category of work.

Applications are frequently denied on the grounds that while a person has a medical problem, there is no evidence that it is severe enough to preclude work. To avoid this, a claimant needs to submit evidence regarding functional limitations, and one way to do is through a disability assessment.

I represent a 61 year old college educated electrician whose only impairment was a bad hip. However, the treating doctor's disability assessment stated that the claimant lacked the functional capacity to stand or walk for more than 1 hour a work day, which precludes any type of work. The claimant's application was approved, not because his doctor stated he was disabled, but because his doctor specified his limited functional ability.

Thursday, December 4, 2008

Medical Records & Reports

Unless you are paralyzed or blind, simply submitting your medical records is unlikely to result in an award of benefits. The claims adjudicator usually states that the diagnosis is not disputed, only its severity. In other words, disability claims are denied because the medical records do not indicate how the medical condition is severe enough to interfere with work duties.

In cases before the Social Security Administration (“SSA”), as mentioned in my prior blog entry, one way to establish that a condition is severe enough to preclude work is to provide evidence that a condition meets a listing. I represent a 51 year old former real estate representative who retained me after his application for Social Security Disability (“SSD”) benefits was denied by the Stroudsburg, PA district office. Two weeks after I submitted a request for a fully favorable decision on the record (“OTR”), the SSD application was approved by the Wilkes Barre hearing office.

The OTR did not submit new medical records. Instead, I had the treating doctor complete a functional assessment that indicated the claimant met a listing, together with a brief narrative report explicitly stating that the claimant met the listing. The gist of the decision was that the claimant met the listing, and was found presumptively disabled.