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 19, 2013
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.
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.
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.
Cirrhosis
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.
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.
Tuesday, November 26, 2013
Common Sense
Multiple Sclerosis (“MS”) is a chronic and often disabling disease. When seeking Social Security Disability (“SSD”) benefits based on MS, the strongest evidence is that which shows the claimant meets the MS “listing.” If you establish that you meet the criteria of 11.09 for MS, then you are presumed to be disabled, and no further medical or vocational development is required to establish entitlement to SSD benefits. The listing opinion should come from the treating neurologist.
Because the symptoms of MS frequently wax and wane with remissions, it is sometimes difficult to get SSD approved, even with a supporting listing opinion. I was retained by a 48 year old Printer Graphic Designer after his SSD application had been denied twice on the grounds that he could do sedentary work. The claimant had been earning over $120,000 annually.
I filed papers contending that a hearing was not needed to evaluate the claimant’s credibility because the only issue was whether he was exaggerating his claim that he lacks the ability to perform sedentary work in order to receive SSD benefits equal to an eighth of his working income. It was common sense that the claimant would have continued to work if he could. The Administrative Law Judge agreed, and approved SSD benefits today.
Because the symptoms of MS frequently wax and wane with remissions, it is sometimes difficult to get SSD approved, even with a supporting listing opinion. I was retained by a 48 year old Printer Graphic Designer after his SSD application had been denied twice on the grounds that he could do sedentary work. The claimant had been earning over $120,000 annually.
I filed papers contending that a hearing was not needed to evaluate the claimant’s credibility because the only issue was whether he was exaggerating his claim that he lacks the ability to perform sedentary work in order to receive SSD benefits equal to an eighth of his working income. It was common sense that the claimant would have continued to work if he could. The Administrative Law Judge agreed, and approved SSD benefits today.
Wednesday, November 20, 2013
Pre-onset Medical Evidence
Disability applications require applicants to provide a date when they could no longer work. The claimant has the burden of proving that he or she became unable to work as of the onset date due to medical reasons. However, just because medical evidence may predate the relevant disability onset date, does not mean that the evidence is irrelevant.
Medical records and reports that predate the disability onset can be used to establish disability as of the onset date, and thereafter. If the claimant’s post onset symptoms relate to the pre onset condition, then the records should be relevant to show that the severity of the condition progressed. While this may seem obvious, I had a Social Security Disability (“SSD”) claim denied by an Administrative Law Judge (“ALJ”) from Queens who asserted that medical evidence predating the onset date was irrelevant. That case was eventually reversed in the claimants’ favor.
I represent a claimant whose SSD application was approved by an ALJ from Jericho today, but only after providing pre onset medical evidence. Due to lack of medical insurance, the claimant had relatively little post onset medical evidence. However, medical records shortly before the onset included diagnostic testing that clearly established a progressive medical condition. The ALJ relied on the diagnostic testing in order to establish the onset date, as well as subsequent symptoms that supported continuing disability.
Medical records and reports that predate the disability onset can be used to establish disability as of the onset date, and thereafter. If the claimant’s post onset symptoms relate to the pre onset condition, then the records should be relevant to show that the severity of the condition progressed. While this may seem obvious, I had a Social Security Disability (“SSD”) claim denied by an Administrative Law Judge (“ALJ”) from Queens who asserted that medical evidence predating the onset date was irrelevant. That case was eventually reversed in the claimants’ favor.
I represent a claimant whose SSD application was approved by an ALJ from Jericho today, but only after providing pre onset medical evidence. Due to lack of medical insurance, the claimant had relatively little post onset medical evidence. However, medical records shortly before the onset included diagnostic testing that clearly established a progressive medical condition. The ALJ relied on the diagnostic testing in order to establish the onset date, as well as subsequent symptoms that supported continuing disability.
Friday, November 15, 2013
Aetna Reverses LTD Termination
I represent a former marketing sales manager with narcolepsy and Chronic Fatigue Syndrome (“CFS”) whose LTD benefits were terminated after she attended an independent medical exam (“IME”). Disability insurers usually ask claimants to attend an IME when all of the evidence submitted supports entitlement to benefits.
Insurers pay for an IME in order to manufacture contradictory evidence when all the evidence shows a claimant cannot work. When an insurer makes the commitment to incur the expense of an IME it normally means that it has already decided to terminate the claim. In the absence of evidence showing that the claimant’s medical condition has improved, the insurer knows that it must pay an IME to support the termination, which typically involves the IME doctor claiming that the objective evidence does not support the treating experts’ restrictions and limitations.
Insurers will claim that an IME is needed to clarify the medical restrictions and limitations even where the treating experts provide very detailed functionality assessments. The insurers will simply fail to provide any reason for requesting the IME, which proves that there is no legitimate reason for the IME, other than to create a written report to support the predetermined financial incentive to terminate the claim.
IMEs are not “independent” in the sense of unbiased, or fair and equitable. The purpose of an insurer’s IME is to have the claimant examined by a doctor who is in the pocket of the insurance industry for the purpose of agreeing with all internally provided medical reviews supporting non-payment of claims. Insurers argue that “independent” means an examination by a physician who never examined the claimant. Notably, a CIGNA managing agent recently testified that an IME is only independent if hired by CIGNA – and that doctors hired by a plaintiff who never examined the plaintiff are not independent.
Because insurers paying a lot of money for an IME, they rely solely on the IME, and give no consideration to the claimant’s treatment records and medical restrictions and limitations from the treating physicians that preclude work. If that were not the case, then insurers would have to pay disability benefits when the evidence supports continued disability without requiring an IME.
The primary problem with Aetna’s termination was that it ignored all of the evidence in favor of the IME. Besides the fact that Aetna’s own in house doctor said that the IME should be performed by a sleep specialist, the IME was performed by a neurologist, with no narcolepsy or CFS experience, which focused on the claimant’s physical capabilities and memory, but disregarded the narcolepsy and CFS. Significantly, the IME stated the claimant could work in an occupation that was “well supervised.” I obtained a detailed vocational evaluation which stated that all of the occupations Aetna said the claimant could do required the ability to work independently, complete deadlines and handle many tasks at one time, and none of those occupations were well supervised. Confronted with concrete evidence undermining the premise for the termination, Aetna reversed its decision.
Insurers pay for an IME in order to manufacture contradictory evidence when all the evidence shows a claimant cannot work. When an insurer makes the commitment to incur the expense of an IME it normally means that it has already decided to terminate the claim. In the absence of evidence showing that the claimant’s medical condition has improved, the insurer knows that it must pay an IME to support the termination, which typically involves the IME doctor claiming that the objective evidence does not support the treating experts’ restrictions and limitations.
Insurers will claim that an IME is needed to clarify the medical restrictions and limitations even where the treating experts provide very detailed functionality assessments. The insurers will simply fail to provide any reason for requesting the IME, which proves that there is no legitimate reason for the IME, other than to create a written report to support the predetermined financial incentive to terminate the claim.
IMEs are not “independent” in the sense of unbiased, or fair and equitable. The purpose of an insurer’s IME is to have the claimant examined by a doctor who is in the pocket of the insurance industry for the purpose of agreeing with all internally provided medical reviews supporting non-payment of claims. Insurers argue that “independent” means an examination by a physician who never examined the claimant. Notably, a CIGNA managing agent recently testified that an IME is only independent if hired by CIGNA – and that doctors hired by a plaintiff who never examined the plaintiff are not independent.
Because insurers paying a lot of money for an IME, they rely solely on the IME, and give no consideration to the claimant’s treatment records and medical restrictions and limitations from the treating physicians that preclude work. If that were not the case, then insurers would have to pay disability benefits when the evidence supports continued disability without requiring an IME.
The primary problem with Aetna’s termination was that it ignored all of the evidence in favor of the IME. Besides the fact that Aetna’s own in house doctor said that the IME should be performed by a sleep specialist, the IME was performed by a neurologist, with no narcolepsy or CFS experience, which focused on the claimant’s physical capabilities and memory, but disregarded the narcolepsy and CFS. Significantly, the IME stated the claimant could work in an occupation that was “well supervised.” I obtained a detailed vocational evaluation which stated that all of the occupations Aetna said the claimant could do required the ability to work independently, complete deadlines and handle many tasks at one time, and none of those occupations were well supervised. Confronted with concrete evidence undermining the premise for the termination, Aetna reversed its decision.
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