Thursday, December 19, 2013

CIGNA Loses Standard of Review Motion

A federal court applies one of two standards of review when deciding whether a plaintiff’s disability benefits under a group insurance policy or pension were properly denied or terminated. Under a de novo standard of review, no deference is given to the defendant’s decision, and the court is free to substitute its own judgment for that of the insurer. Under an arbitrary and capricious standard of review, the deck is stacked against the plaintiff, who basically must show that the defendant’s decision was irrational, let alone wrong. 

An arbitrary and capricious standard applies when the disability plan’s sponsor has delegated discretionary authority to the plan’s claim administrator. Most disability insurance companies have severely abused discretionary clauses. Consequently, many states have enacted laws prohibiting their use

CIGNA was forced into a Regulatory Settlement Agreement (“RSA"), (which can be found on the Cigna tab located at the top of our home page), because it so pervasively abused discretionary clauses. Despite the RSA, CIGNA continues to do everything within its power to argue that the deferential arbitrary and capricious standard applies when cases are appealed to federal court. CIGNA knows it can win a lawsuit even if it made the wrong decision if the arbitrary and capricious standard is applied. 

Judge Joseph Bianco ruled today that CIGNA’s decision to terminate long term disability (“LTD”) benefits would be reviewed de novo. 

Over the course of several years, the claimant made many requests for all plan documents from CIGNA, which repeatedly confirmed that the group insurance policy was the only plan document. CIGNA admitted that the policy did not grant it discretionary authority. Years later, after CIGNA terminated the claimant’s LTD benefits, the day before the initial conference in the lawsuit, CIGNA suddenly produced a certificate of insurance with discretionary language. CIGNA was unable to explain to the Magistrate Judge why the Certificate had not previously been produced, but CIGNA assured the Magistrate Judge that all plan documents had now been produced. 

A few months after producing the Certificate, CIGNA produced a document called Appointment of Claim Fiduciary (“ACF”), which also contained discretionary language. CIGNA claimed that both the Certificate and ACF provided it with discretionary authority. For the reasons set forth in Barbu v. Cigna, 2:12 cv-01629-JFB-WDW (E.D.N.Y. Dec. 19, 2013), (which can be found on the Cigna tab located at the top of our home page), the Court disagreed.

Thursday, December 5, 2013

Prudential Cancels IME

Disability insurance companies make it a habit of asserting rights under group disability insurance policies that do not exist, such as interviews by investigators when only medical exams are allowed. 

Prudential cancelled a demand that my client attend a so-called independent medical examination (“IME”) after I insisted that my client be allowed to videotape it. Prudential asked for the IME because I submitted reports form treating physicians and diagnostic test data that all show she remained disabled – there was no change, let alone improvement, in her medical conditions. 

As an initial matter, I objected to the location of the IME. I explained that because my client’s condition makes travel difficult, if Prudential insisted on an IME, then it should be located within a 10-mile radius of her residence. She lives in Queens which is jam packed with health care professionals. There was no excuse for requiring my client to travel a further distance as there are countless physicians who work where she resides. There certainly was no reason to make my client travel across two counties, over 20 miles, to see a doctor who practiced medicine in a specialty that was unrelated to her disability. While Prudential might have the right under the policy to an IME, it does not have the right to schedule an IME at an unreasonable location. 

Regardless of the unreasonable location of the IME, I stated that my client would attempt to comply. However, I warned Prudential that because they scheduled the IME at an unreasonable location, there was a very good chance that she would not be able to remain for its duration, which is why I suggested having the IME at a closer location. Prudential seemed to think scheduling an unreasonable IME was not a problem because they offered transportation. I explained that offering transportation was irrelevant because I had informed Prudential that the claimant would appear with a witness who would drive her. More importantly, the fact that Prudential would provide transportation would not reduce the amount of time that it would take to get to the unreasonable location of the IME. Furthermore, Prudential’s statement that the driver could stop so the claimant could stand and stretch was irrelevant because she needs to lie down, not stand up, to relieve her pain. 

Prudential canceled the IME because I stated that the claimant’s witness would videotape it, to which they objected. In half a dozen letters, I stated that there was absolutely nothing in the Group Policy that forbids videotaping an IME. Each time I told Prudential that if they disagreed to send me a copy of that part of the Policy that they claimed forbids it. They never did, which was an admission that no such provision existed. I explained to Prudential that the fact that the IME doctor did not want the IME videotaped was irrelevant to the terms and conditions of the Group Policy, and that they were breaching the Policy by imposing a condition that did not exist in it. I made it clear that I did not refuse to allow my client to attend the IME with her companion. To the contrary, I repeatedly told Prudential that both the claimant and her witness would attend the IME, even though they had scheduled it in an unreasonable manner so as to inconvenience her. Faced with admitting there was nothing in the Policy prohibiting a claimant from videotaping the IME, Prudential chose to cancel it.

Wednesday, December 4, 2013

Disability And Work History

A claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The underlying premise is that a person with a good work ethic would continue to work if possible. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant is telling the truth when he says he stopped working because of a disability. 

The presumption of credibility is even stronger where a claimant has a long work history with the same employer because this indicates the claimant liked the work and the employer liked claimant. The presumptions regarding an applicant’s credibility must be considered from the outset in the Social Security Disability (“SSD”) context. An SSD application only seeks the claimant’s work history for the last 15 years because after that time it is presumed that any acquired work skills will be stale. If the claimant has a strong work history beyond the 15 year period, then it should be stressed to support credibility, even though the history will be irrelevant to transferability of acquired work skills. 

I represent a 48 year old who drove a truck for Pepsi for over a quarter of a century. He had to stop working due to back problems. His SSD application was approved today without a hearing. Many other claimants under 50 years of age with similar back problems have been required to proceed to a hearing. The difference here is that the claimant’s work history provided objective evidence that rendered his subjective complaints credible.


According to WebMD, Cirrhosis is a slowly progressing disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning properly. Symptoms and its complications often include: fluid buildup in abdomen called “ascites,” fatigue, weight loss and muscle wasting, belly pain, frequent infections, and confusion. Cirrhosis is the 12th leading cause of death by disease. 

A 45 year old, who worked as a roofer for over 25 years, retained me after his Social Security Disability (“SSD””) application was denied, based on the vague opinions of the Social Security doctors. I worked with the claimant to get a functionality opinion from his board certified gastroenterologist to explain why the claimant’s liver problem rendered him incapable of working. 

I prepared an OTR that argued the gastroenterologist’s disability opinion was entitled to controlling weight. The objective evidence for the cirrhosis diagnosis was abundant: a hospitalization for paracentesis to remove ascites; CT testing revealing pelvic ascites; and spleen scan and abdominal sonogram that confirmed the cirrhosis, hepatomegaly, and significant liver fibrosis. In light of the clear objective evidence supporting the diagnosis, the only issue was the severity of the condition. 

In addition to the weight favoring a treating doctor’s opinion, I contended that the claimant’s work history supported the credibility of his complaints. The Administrative Law Judge agreed, approved the OTR, and canceled the hearing.