Northern Virginia Personal Injury Lawyer - Disability Insurance Denial

Beware of any Group Disability Policy

Ben Glass — Mon, 15 Jun 2009 13:57:00 GMT

Many professional athletes find themselves doing battle with their sports group disability plan insurance carrier.

In 2006, an appeals court awarded the estate of former Pittsburgh Steelers center Mike Webster more than $1.5 million in disability pay from the plan. It was the first successful challenge of the plan's rules and it has given hope to many of the players who feel left out.

While this is a victory for the players, I can tell you that any athlete seeking disability pay from these plans faces an uphill battle.

Most group long term disability polices (those offered by employers) stink. If you can afford to, and you want real disability insurance, you should be talking to a broker about a private/individual policy.

Most group policies aren't worth the paper they are written on because:

1. The protect you if you can't work in your own occupation for only 2 years.

2. If any part of your disability is caused by a mental or nervous disorder, the limit is generally 2 years. (And the disability insurance companies will do their best to lump your disability into the mental and nervous box.

3. Group policies are governed by ERISA. This means, generally, that the insurance company's decision on your claim is entitled to the benefit of the doubt and can only be reversed by a court for an abuse of discretion. This means you have to show that they are really, really wrong.

Originally posted at InjuryBoard by Ben Glass

Prudential Didn't Use Qualified Doctors to Deny Disability Claim

Ben Glass — Mon, 24 Mar 2008 14:11:52 GMT

Graham Harrison, filed for disability benefits under his group long term insurance policy provided by Prudential Insurance Company.

He suffered from Tourette Syndrome which prevented him from working on a full time basis. His doctor, a neurologist and specialist in his disease (Tourette Syndrome) had recommended that he consider reducing his work schedule to less than full time to accommodate his condition which have led to chronic anxiety, a disrupted sleep pattern and agitation. His physician felt that a four day work week with a mid week break would benefit him immensely.

Prudential first paid, then denied the request for benefits. Prudential's position was that since he had suffered Tourette's Syndrome for many years his records did not document a significant recent change that would warrant a change in his work patterns. Prudential also felt that if he could work four days there was no reason that he could not work five days in a week.

At first Prudential relied on the opinion of its "medical director", Jill C. Fallon, M.D., a doctor who was Board Certified in occupational medicine but had absolutely no expertise in neurology or Tourette's Syndrome. This doctor did not even examine the claimant.

Prudential also looked at the wrong definition of disability in denying the claim.

Mr. Harrison appealed the denial of benefits and included additional reports from his well qualified physicians. On appeal, Prudential showed the file this time to Albert Kowalski, M.D. another one of its employed physicians. Not only did Dr. Kowalski not have Board Certifications in neurology or psychiatry, he had absolutely no experience in the treatment of Tourette Syndrome and indeed had not had any clinical practice since 1987. Dr. Kowalski did not examine the claimant. Despite the lack of qualifications and any current experience in actually seeing patients, Dr. Kowalski was of the opinion that the claimant's condition should have improved over time.

On the basis of Dr. Kowalski's opinion, Prudential denied the claim. In denying the appeal Prudential once again quoted the wrong definition of disability. The plaintiff again appealed and this time consulted with yet another expert in Tourette Syndrome. He was evaluated by Oliver Sacks, M.D. a clinical professor of neurology at Albert Einstein College of Medicine and an adjunct professor of neurology at the New York University School of Medicine. Dr. Sacks had authored numerous books and articles on Tourette Syndrome. It was Dr. Sacks' opinion that Mr. Harrison could maintain his effort and function very effectively for only two days at a time and then must take a break of a day to recover. He cannot function on a "standard" five day week. On the basis of this letter Prudential reversed its original decision and awarded benefits to the plaintiff. Prudential however continued to misstate policy provisions and indeed quoted language that appeared nowhere in the plan.

Two months after approving the claim Prudential began re evaluating the claim. This time Prudential took the position that the plaintiff's disability was caused at least in part by a mental psychoneurotic or personality disorder and that benefits were limited to 24 months. Prudential advised the claimant that his claim would most likely terminate the next month.

The problem with Prudential's denial of benefits this time was that there was no 24 month limitation in this policy.

Prudential also referred the file to Stephen N. Gerson, M.D. Dr. Gerson was Board Certified in psychiatry and geriatric psychiatry but listed his major professional activity as "administration." There was no evidence in the file that Dr. Gerson had any experience in the treatment of Tourette's Syndrome. He did not examine the claimant. It was Dr. Gerson's opinion that the various treating physicians and the claimant himself were simply making a "preference" for not working a five day work week. Shortly thereafter Prudential terminated benefits yet again.

Mr. Harrison filed suit under ERISA.

The court reversed Prudential's denial. The court found that "In the worst light, such conduct [misquoting policy provisions] indicates a conscious attempt on the part of Prudential to manufacture a reason for denying plaintiff benefits."

The court also found that the decision to terminate benefits was not supported by substantial evidence. The court said that Prudential had ceased on one piece of information that one of the doctor's had relayed to it to terminate benefits. The court found that Prudential had not relied on any new information to terminate benefits after it had previously approved benefits on the same information. The court also was critical of Prudential for using doctors who had no expertise in Tourette Syndrome and who never examined the claimant.

Originally posted at InjuryBoard by Ben Glass

Another Reason for Long Social Security Claim Delays

Ben Glass — Wed, 03 Oct 2007 08:05:39 GMT

North Carolina Social Security Disability attorney Brent Adams makes and excellent point about long delays in social security disability claims. He quotes an excellent commentary from administrative law judge Ronald Bernoski, writing in the Charlotte Observer.

I've got an additional theory. Fraud by the major long-term disability insurance companies. Here's how it works:

Most long term disability policies protect you if you can't work in your "own occupation" for two years, and then if you can't work in "any occupation" after that. So, you may be entitled to benefits under that insurance policy for two years, even if you could work in some job. This is to give you time to recover from your disability and also to give you time to retrain.

However, here's what the insurance companies do. When you do qualify for benefits because you can't work at your own job they force you to apply for social security benefits. That's right, even though they KNOW you would not qualify for social security benefits (because there may be some job you can do -- you just can't do your own job).

Thus, they force the flooding of the social security administration with bogus claims. If you don't apply, they threaten to cut off your benefits.

Why do they do this?

Profit.

You see, under most group long term disability policies (the kind your employer 'gives' you) any money you do get from Social Security offsets, or reduces, what the insurance company owes you. So they force you to apply, even though in the vast majority of cases you won't qualify.

Meanwhile, as Brent Adams points out, other folks who would be qualified for benefits are waiting behind you in that long line.

Sound like a good idea?

Originally posted at InjuryBoard by Ben Glass

(More) Tricks of the Disability Insurance Companies

Ben Glass — Tue, 11 Sep 2007 15:57:15 GMT

Here's another major trick we see them use. They deny your claim and ask you to submit an appeal. When you do so they say that

"The ability to produce a detailed document such as your personal profile is indicative of an ability to produce quality work" (and thus work).

This is really a silly statement unless you know such facts as who prepared or assisted in the preparation of the document and how long it took for the document to be prepared. Courts have seen through that illogic (See Krizek v. Cigna Group Insurance, 345 F.3d 91 (2nd Cir. 2003), the Second Circuit overturned the lower Court's grant of summary judgment to the defendant in part because the District Court had no evidence to conclude that plaintiff's ability to prepare her administrative appeal discredited her complaints of pain.)

Originally posted at InjuryBoard by Ben Glass

Tricks of the Disability Insurance Companies

Ben Glass — Sat, 08 Sep 2007 15:51:06 GMT

Here's one we still see with some frequency in ERISA governed long term disability insurance claims.

The insurance company makes a decision that the claimant is not disabled, and writes (or calls) the treating docotor with this type of message:

"Dear Doctor, our review indicates your patient could work a 40 hour week, no problem. If you don't agree with our review, let us know within 10 days or we'll assume you agree."

Courts have ruled that no negative inference can be drawn from a doctor's failure to respond. (See Brenner v. Hartford, 2001 WL 224826 (D.Md. 2001) which points out: "Little significance can be attributed to Dr. Avin's unresponsiveness to Defendant's request for comments as the lack of response could as likely be a result of inadvertence or inattention due to other pressing demands in a physician's schedule." n.10)

Originally posted at InjuryBoard by Ben Glass

Long Term Disability Policies: "Robbery Without A Gun"

Ben Glass — Thu, 19 Jul 2007 07:03:31 GMT

New video and book exposes the truth about group long term disability insurance policies.
In his book, "Robbery Without a Gun", long term disability insurance attorney Ben Glass reveals the mistakes that claimants and their doctors make in a disability claim that can virtually guarantee that the claim will be denied by the insurance company.

Here's a short video where Ben explains how most group disability insurance policies aren't worth the paper they are printed on.

Originally posted at InjuryBoard by Ben Glass

Time to Sue for Disability Claims Clarified in ERISA

Ben Glass — Tue, 01 May 2007 05:53:12 GMT

The Fourth Circuit Court of Appeals has answered a very important question for long-term disability claimants: When does the statute of limitations expire when you have been denied benefits.

Sun Life Assurance Company of Canada contended that a claimant had failed to file her claim within the time limits set out in the contract. Sun Life's disability insurance policy, like most contained the following language: "No legal action may start ... more than three years after the time Proof of Claim is required."

In all cases a planned participant applies for benefits by filing a "Proof of Claim." In group disability plans covered by ERISA a claimant may not file a lawsuit until the plan has reached a final decision denying benefits. Thus the question was whether the three year time period begins to run at the time the claimant first filed her Proof of Claim or when the final decision denying benefits was made.

The Fourth Circuit of Appeals, in a case which governs ERISA claims in Virginia, ruled basically that Sun Life's claim that the three years started running at the time Proof of Claim was required was absurd because if that was the rule a claimant may have completely run out of time to file the claim before a final decision denying benefits was made.

The Fourth Court said an ERISA cause of action does not accrue until a claim of benefits has been made and formally denied. The court pointed out that other circuits have adopted this same rule for ERISA actions. This means, the court said, that the "statute of limitations begins to run at the moment when the plaintiff may seek judicial review, because ERISA plaintiffs must generally exhaust administrative remedies before seeking judicial relief. The court rejected Sun Life's request to disregard all the usual rules of accrual and to hold that ERISA plans may specify different accrual dates in their governing documents.

Originally posted at InjuryBoard by Ben Glass

The Absurdity of ERISA in disability claims.

Ben Glass — Thu, 26 Apr 2007 17:26:13 GMT

The First Circuit Court of Appeals issued an opinion at the end of March which again demonstrates that the federal law of ERISA (designed to protect your pension plans) has turned the disability evaluation world upside down.

The plaintiff sought disability benefits after she could no longer work due to fibromyalgia. Every doctor who examined the plaintiff, including an independent examiner found that she was not able to work from fibromyalgia. Further, an Administrative Law Judge found the claimant to be a credible witness.

According to the Court's opinion the insurance company denied the claim in part because the plaintiff had suffered from fibromyalgia for several years and had continued working. The insurance company also ordered surveillance of the plaintiff but took only still photos, no video. It then turned this evidence over to a reviewing physician associated with National Medical Review - Elite Physicians.

The court acknowledged the insurance company's financial conflict of interest inherent in its dual role as claim administrator and as funding source for the benefits. The court also in evaluating the case drew the inference that National Medical Review had never found in favor of the claimant in their reviews performed for Liberty and that there was a clear incentive for Liberty to contract with National Medical Review to obtain peer review supporting a benefit denial.

In discovery the insurance company admitted that between 2001 and 2003 it had paid National Medical Review over $2 million and referred over 1,200 files to it for review. The insurance company refused to disclose how many of those reviews were favorable to the insurance company.

Comment from Virginia ERISA disability attorney Ben Glass: what a great law! ERISA permits the insurance company to deny your claim on a biased review AND when you go into court, the insurance company's decision is more or less presumed correct.

Read Robbery Without a Gun, Why Your Employer's Long Term Disability Policy May be a Sham.

Originally posted at InjuryBoard by Ben Glass

Aetna's Disability Benefit Termination Thwarted

Ben Glass — Sat, 17 Mar 2007 13:05:00 GMT

In a recent case in federal court the judge ruled that Aetna Life Insurance Company's decision to permanently terminate disability benefits to an employee was wrong and those benefits would be reinstated. Most disability insurance companies will only make payments to you if you are disabled and under the "regular care and attendance" of a physician. Here there was a period of time during which the employee was not under the regular care of a physician. Aetna terminated the benefits permanently.

The police terms were "Aetna' will not pay for any disability ... during which a covered individual is not under the regular care and attendance of a physician."

The court found that this meant that Aetna could suspend payments only for that period of time during which the employee was not under the regular care of a physician and that Aetna's decision to permanently terminate benefits was an abuse of its discretion and misreading of the policy.

Comment from Virginia Long-term Disability Attorney Ben Glass:

Many insurance companies will stop at nothing to get you off their claim files. All denials and terminations should probably be reviewed by an experienced long-term disability attorney.

Clark v. Aetna Life Insurance Company, decided February 2, 2007 in the Southern District of New York.

Originally posted at InjuryBoard by Ben Glass

American Dental Hygienist Disability Policy Not Covered by ERISA

Ben Glass — Tue, 13 Mar 2007 23:13:38 GMT

When a dental hygienist sued because her disability insurance claim was denied, the insurance company contended that her claim, bought through the American Dental Hygienist Association, was covered by the federal law of ERISA.

Why?

Because ERISA gives the insurance company a HUGE advantage--(1) it's decision given deference; (2) no jury trial; (3) no real trial at all; (4) no "real damages" except forcing the insurance company to do what it was supposed to do in the first place.

Thankfully, the court ruled otherwise.

The court ruled that the policy could not meet the definition of an employee benefit plan because the ADHA was not an employee organization.

The court focused on the following criteria:

ADHA does not require employment to be member; it does not deal with specificity towards any principal employer or group of employers, and its lobbying efforts, as articulated by Hartford, are industry-wide, not specific to employee issues." The court further expressed concern that "[a] favorable ruling to Hartford on this issue would so greatly expand the scope of ERISA coverage as to make every member of the California State Bar, which also provides links to disability insurance, covered by ERISA as an employee organization. This type of coverage is outside the plain meaning of the scope of ERISA.

Originally posted at InjuryBoard by Ben Glass