Insurance Company Tactics:
Selectively Reviewing Claim Files

Most disability insurance companies request medical records as part of the claim investigation, in order to verify the disabling condition. However, an insurer intent on denying a claim may improperly cherry-pick certain medical records and ignore other records.

One such egregious example is the case of Watson v. UnumProvident Corp.[1] Valerie Watson, a legal secretary, become disabled in 1998, primarily due to heart disease and cardiac arrest. She began receiving benefits from UnumProvident under her policy, which provided she was totally disabled if she was unable to perform her own occupation. Her doctor, cardiologist Dr. Larry Perry, provided regular certifications to support Watson’s claim that she was disabled.

In mid-2000, UnumProvident (Unum) conducted a review of Watson’s case and, as part of this review, requested medical records, including Dr. Perry’s. In response to Unum’s request, Dr. Perry’s office inadvertently returned records for a “Valerie Johnson” rather than the actual records for Watson.

Remarkably, Unum did not request the correct records; instead, Unum determined Watson was no longer totally disabled and terminated benefits in November 2000. As Watson’s disability policy was subject to ERISA, she appealed the decision to Unum, and Unum rejected the appeal and denied her claim a second time (again, without requesting and reviewing the correct medical records).

When Watson sued Unum for denying her claim, the Court found that Unum improperly based its decision on “scant” evidence. In response to Unum’s protests that it had conducted a full and fair review, the Court pointed to Unum’s repeated failure to notice the fact that Unum had the wrong medical records and held that “viewed in full context, Unum’s behavior in this case was far more than mere negligent inattention to its important procedural and substantive responsibilities . . . it bordered on outright fraud” (emphasis added). The judge held that Unum’s failure to notice the records were actually the records of another patient served as conclusive proof that Unum had engaged in “an unprincipled and unreasonably review process in which it demonstrably looked only at selective records.”

This instance shows despite having a supportive doctor and detailed medical records, an insurance company may still deny or terminate a claim by ignoring (or not even looking at) medical records.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your claim has not received a full and fair review, an experienced disability insurance attorney can evaluate your claim and help you determine what options are available.

[1] Watson v. UnumProvident Corp., 185 F.Supp.2d 579 (D. Md. 2002)

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Insurance Company Tactics:
Ignoring Evidence

When investigating a claim, most insurers will request proof of disability in the form of medical records and/or certifications from an insured’s treating provider(s). They also may have their in-house doctors perform a medical records review or conduct an independent medical examination of the insured. When an insurer is intent on denying a claim, they may go to great lengths to seek out conflicting opinions in an effort to ignore evidence proving a disabling condition.

The case of Kenneth R. Omasta v. The Choices Benefit Plan illustrates how some insurers are willing to ignore relevant evidence of disability.[1]  Omasta, a vice-president in a high-stress job, worked for his company for 22 years before becoming permanently disabled due to cerebral vascular disease, neurological deficits, and musculoskeletal disease. He filed for long-term disability benefits through his employer-sponsored Reliance policy and submitted certifications from five medical providers (his physicians, psychologist, speech pathologist and chiropractor), along with statements from supervisors and co-workers verifying his disability.

Instead of fairly considering the information submitted, Reliance determined it was insufficient and required Omasta to undergo an IME. Reliance selected Dr. Weight, a psychologist, to perform the IME, and used the IME as a basis for denying the claim in spite of the fact that Omasta had submitted opinions from multiple providers supporting his disability claim.

Omasta later sued Reliance and the Utah District Court reversed the denial of Omasta’s benefits, finding that Reliance’s decision was arbitrary and capricious. In doing so, the Court observed “[t]here is no information that Dr. Weight is in any way qualified to diagnose neurological disease or its symptoms” and concluded that Dr. Weight’s “opinion regarding Plaintiff’s malingering is unsupported by any other information in the record, and is contradicted by the opinions of his doctors, his former supervisors and co-workers and his long and successful employment history.”

This case, while ultimately decided in favor of the insured, shows the length insurance companies will go to deny professionals’ claims by selectively ignoring reliable evidence and turning a blind eye to readily available information.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned about how your claim is being administered, an experienced disability insurance attorney can help you assess your situation and determine what options, if any, are available

[1] Omasta v. The Choice Benefit Plan, et al., 352 F. Supp.2d 1201 (D. Utah 2004).

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Insurance Company Tactics:
Misidentifying Claims

Insurers sometimes go to great lengths to avoid paying out on professionals’ claims for benefits under their disability insurance policies. This can include improperly designating a claim as a residual (or partial) disability when it is really a total disability claim.

One such example of this is the case of Morgan v. Unum Life Ins. Co. of America.[1]  Dr. Morgan, a general surgeon, had an own occupation policy, which was targeted to physicians and specialty-specific. After purchasing the policy, Dr. Morgan injured his hand was unable to continue practicing as a surgeon.

When Dr. Morgan filed for disability, Unum told him he did not qualify for total disability because he had performed some in-office procedures (what he termed “lumps and bumps”) and had performed a single major surgery in March 2007 (done prior to his own hand surgery, and before Unum considered Dr. Morgan’s disability on its merits).

Dr. Morgan sued to challenge Unum’s determination and, upon review, Utah District Court Judge David Nuffer found that “a reasonable jury could conclude that these minor office procedures were not part of Morgan’s surgical specialty.” The Utah Court further held that “the single major surgery . . . does not prove that Morgan could continue performing major surgeries on an ongoing basis.” The Court then went on to conclude that there was sufficient evidence to suggest that Unum did not conduct a proper total disability analysis and “instead decided to treat the claim as one for residual disability for purposes of convenience and to reduce its potential exposure.”

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you are concerned that your insurer is not evaluating your claim under the proper standard, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Morgan v. Unum Life Insurance Co. of America, No. 2:10-cv-957 DN., 2012 WL 3156569 (D. Utah Aug. 3, 2012)

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Insurance Company Tactics:
Ignoring Treating Physician Evidence

In most disability claims, insurance companies begin their investigation by requesting a report from your treating physician, along with medical records. However, if they are not happy with the treating physician’s opinion, they may turn to other tactics.

The case of Card v. Principal[1] is one example. In February 2013, registered licensed practical nurse Susan Card was diagnosed with chronic lymphocytic leukemia. Initially the condition was asymptomatic, but increasingly she began to experience worsening fatigue. She reduced her work hours and ultimately had to stop working altogether as her symptoms worsened. Card’s primary care physician noted her fatigue, easy exhaustion, chronic vaginal bleeding, feelings of depression and being wiped out, and night sweats, concluding that “she is failing work because of her disease and needs to go out on disability.” But in spite of all this, Principal denied her claim.

Due to increasing financial struggles, Card had to move states to live with her sister, having lost her house to foreclosure. Her primary care physician again informed the insurance company of Card’s inability to work and explained that, while her blood work looked better because she was no longer working, she was still dealing with chronic fatigue. He continued, “I do not see her being able to have any work capacity.” Her treating doctor then instructed her to follow up with new doctors upon her move. Card found a specialist in hematology and oncology and a gynecological oncologist, once she was able to find specialists that accepted medicaid. Card also appealed the initial denial but, again, Principal denied her claim in spite of her treating doctor’s statements that she was disabled.

In doing so, Principal essentially ignored Card’s doctor’s statements and justified their denial, in part, by claiming that Card had not submitted documentation that she was “under the regular and appropriate care of a physician” as required under the terms of her policy (Card’s policy, like most policies, contained a care provision, which establish additional requirements for qualifying for benefits).  However, in this instance,  Card’s physicians had told her that further appointments were not necessary in the months after her diagnosis (as is common in the early stages of chronic lymphocytic leukemia, given the nature of the disease).

Upon review, the Court found that none of the reviewers had adequately addressed Card’s specific health issue against the actual demands of her job (i.e. she could not be exposed to pathogens), nor addressed their reasoning for ignoring Card’s treating providers’ evidence and recommendations for the course/frequency of her treatment. The Court held that, while Principal was not required to give more weight to a claimant’s treating provider’s opinion, insurance companies cannot arbitrarily refuse to consider that opinion. The Court remanded the case, concluding that Principal’s decisions were not “the product of a principled and deliberative reasoning process.”

In this instance, Card  was fortunate to have had supportive physicians who documented her condition and why she could no longer work in her previous occupation. However,the Court ultimately had to step in to make sure Principal did what was right, demonstrating that sometimes supportive physicians and evidence may not be enough avoid a claim denial.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If your policy’s terms are not what you expected, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Card v. Principal, No. 2019 WL 5618182 (U.S. Ct. of App. 6th Cir. Oct. 31, 2019)

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Insurance Company Tactics:
IMEs, Rushed Exams and Piecemeal Testing

Many policies allow insurers to conduct Independent Medical Examinations (IMEs) throughout the course of a claim. While the stated goal of an IME is usually to “verify” your disabling condition, insurance companies often use IMEs as a tactic for denying or terminating claims.

One such example of this is the case of Hughes v. Hartford.[1] Patricia Hughes was working as a registered nurse when she began to experience vertigo and was diagnosed with Meniere’s disease. She ultimately filed a claim with her disability insurance carrier, Hartford. Hartford initially approved the claim; however, a few years later, they became particularly aggressive, interviewed her treating provider, conducted a field interview, hired an in-house doctor to review records, hired a surveillance company to follow Hughes, and terminated her benefits.

When Hughes appealed the denial, Hartford scheduled her to undergo an IME with a neurologist, Dr. Schiff, who concluded that Hughes’ test results were normal and that her diagnosis of vestibular dysfunction was inconsistent with the previously gathered surveillance footage. Hartford then used the report as a basis for upholding the denial, in spite of the fact that a nurse who accompanied Hughes to the exam stated that the examination was “very elementary,” “limited”, and “rushed”. Hartford also ignored concerns Hughes’s treating doctor raised about the exam—namely that Dr. Schiff was not trained in vestibular disorders and that Dr. Schiff notably “did not perform any of the tests which actually [had] been historically abnormal for Ms. Hughes including audiogram, video ENG, or posturography, so he seems to have omitted the most relevant data from his examination.”

Upon reviewing Hartford’s conduct, the judge determined that, under the circumstances, Hartford had not conducted a “full and fair review” and required Hartford to reconsider its denial of Hughes’s claim.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is not giving your claim a full and fair review, an experienced disability insurance attorney can help you assess your particular situation and determine whether your insurer’s actions are appropriate.

[1] Patricia Hughes v. Hartford Life and Accident Insurance Co., No. 3:17-cv-1561 (JAM), 2019 WL 1324947 (D. Conn. March 25, 2019)

 

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Insurance Company Tactics:
Overemphasizing Daily Activities

In prior posts, we’ve discussed how insurers conduct surveillance to determine if you can go back to work. Insurers also gather information about your daily activities through field interviews, claim forms and looking through your medical records for statements about your activity levels.

Many dentists and physicians with “own occupation” policies wonder why they are being asked these questions. In their minds, their hobbies and activities are completely unrelated to whether they can return to practice. However, to an insurer, gathering this information is often the first step towards challenging (and potentially denying) a claim. Insurers like to use reports or surveillance footage of daily activities to argue that a claimant’s condition has improved—particularly when a claim involves subjective symptoms, such as pain or numbness, that may be difficult to objectively verify.

The recent case of Dewsnup v. Unum[1] illustrates how insurers attempt to use information about claimants’ daily activities against them. Dewsnup was trial attorney who underwent quadruple bypass surgery after suffering a heart attack. Although the surgery was successful as far as his heart was concerned, he developed a constant burning pain across his chest at the incision site.

When he was not able to return to work after the surgery due to pain and fatigue, Dewsnup filed a total disability claim with Unum. Unum initially approved Dewsnup’s claim, but when Dewsnup eventually returned to the office part-time, Unum conducted a renewed, in-depth investigation of his claim and ordered a review of his medical records. When Unum contacted him, Dewsnup explained that his time in the office was limited, that he was only there to interact with clients, and that he was in no condition to go back to the rigors of practicing as a trial attorney (such as staying up all night, dealing with other attorneys, etc.).

Although Dewsnup had an own-occupation policy, Unum terminated Dewsnup’s benefits. When Dewsnup sued Unum, Unum argued that he could return full-time to the demanding and stressful work of a trial attorney, in part because he’d told Unum in phone interviews and other forms that he was able to wear his seatbelt when in a car, help his wife with chores, walk on a treadmill most days of the week, and had carved a wooden mantle.

Fortunately, the court was familiar with the duties of a trial attorney and held Unum in check. The court reversed the claim denial, observing that “Mr. Dewsnup never claimed that his pain was completely disabling in every facet of his life. . . . It is probable that his pain would prevent him completing the mentally-taxing work of trial attorney, but not prevent him from accomplishing relatively simple and low-stress daily tasks.”

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly targeting your claim for denial, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.

[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah)

 

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Insurance Company Tactics:
Questioning Medical Decisions

Who gets to decide what treatment is best for you?

Of course, the answer is ultimately you (with the guidance of your treatment provider). At the same time, many disability policies require you to be receiving ongoing treatment for your disabling condition in order to remain eligible for benefits. Some newer policies we have seen even go so far as to state that you must receive care that is directed towards a “return to work” or “maximum medical improvement.”

These provisions can give rise to disputes with your insurer if you do not want to undergo a particular procedure, but your insurer maintains that you are not seeking appropriate treatment and/or that you are malingering (i.e. your symptoms are not as severe as you are reporting). For example, your insurer may use an in-house doctor to review your medical records and challenge your treating provider’s treatment recommendations, stating that a more invasive procedure (like surgery) would fix your condition and allow you to return to work.

This is a tactic that Unum tried to use in the recent case of Dewsnup v. Unum[1]. Dewsnup was a trial attorney who had quadruple bypass surgery after suffering a heart attack. After the surgery, he had a constant burning pain across his chest at the incision site, which was exacerbated by stress and led to fatigue that eventually made it impossible for him to work.

Dewsnup was ultimately diagnosed with intercostal neuralgia. When a recommended diagnostic nerve block did not help, Dewsnup decided to not pursue a nerve ablation. His treating doctor supported this decision, as there were risks to the ablation procedure and the failed injection suggested that the ablation would likely not fix his pain. Dewsnup also began taking medication for the pain, but later stopped taking the medication when he determined that the potential risks and negative side effects of the medication outweighed any benefits.

In an effort to deny his claim, Unum hired several doctors to review Dewsnup’s medical records. The doctors noted that Dewsnup’s pain levels were subjectively reported, and concluded that he was not disabled, even though Dewsnup’s treating doctors all agreed that he was. Unum’s doctors based this decision, in part, on the fact that he had stopped his medication and was foregoing the ablation and additional treatment. Essentially, Unum argued that the pain must not be so bad, since he had decided not to have the nerve ablation and had stopped taking the medication.

Fortunately, in Dewsnup’s case, the court determined that that there was sufficient evidence that his pain was “severe enough to cause fatigue, hinder concentration, and prevent him from performing the mentally-demanding duties of a trial attorney.” The court also disapproved of Unum’s approach, noting that “[n]one of Unum’s reviewers examined Mr. Dewsnup in person” and that “[a]part from phone calls, Unum reviewers simply parsed Mr. Dewsnup’s file and compiled what they believed to be contradictory evidence.” Ultimately, the court reversed Unum’s claim denial (but only after costly, time-consuming litigation).

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that the terms of your policy aren’t being applied correctly, or if your insurer is questioning your treatment decisions in an attempt to undermine your claim, an experienced disability insurance attorney can help you understand your policy and apply it to your particular situation.

[1] Dewsnup v. Unum Life Ins., 2018 WL 6478886 (D. Utah).

 

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Insurance Company Tactics:
Surveillance

We’ve discussed before how insurers often use surveillance in disability claimsPhysicians’ claims and dentists’ claims, in particular, are often targeted due to the high benefit amounts the company can save by denying or terminating the claim. Accordingly, professionals filing claims should expect that they’ll be under surveillance at least once, and sometimes several times, throughout the course of their claim.

If the company is able to obtain surveillance footage, the company may overstate the significance of the footage in an effort to deny or terminate benefits. The case of Fleming v. Unum[1] illustrates how insurers use surveillance as a tactic to improperly terminate benefits. Pamela Fleming worked a litigation attorney until she was in a serious car accident and suffered severe injuries to her neck and thoracic spine, leaving her unable to work. Fleming had own occupation policies that defined “disability” as the inability to do the material and substantial duties of her occupation.

After having paid her claim for over a decade, Unum hired a surveillance company to videotape Fleming. The surveillance video showed Fleming throwing away a bag of garbage, putting a cooler in her car, and then driving a significant distance. Unum told Fleming that the footage conflicted with her previously reported limitations and terminated her benefits.

When her claim was denied, Fleming sued Unum and the court ultimately reversed the claim denial. In doing so, the court determined that Unum had greatly overemphasized the significance of the surveillance footage. The court noted that while the video showed Fleming lifting a garbage bag, “[l]ifting the bag over her head was no feat of strength or indication of recovery” because it was clear from the surveillance footage itself that “the bag of trash contain[ed] empty plastic bottles.” The court then concluded that “[t]he fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney.”

Similarly, the court criticized Unum for taking the footage out of context, observing that the footage “shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days.” The Court then noted that “[b]oth coming and going from her apartment, Fleming walked gingerly  down and up a flight of stairs, one step at a time, while holding onto the handrail for support” and concluded, “[i]f anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment . . . . The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records” (emphasis added).

Luckily for Fleming, the judge in her case saw through Unums attempt to improperly terminate her claim. But, unfortunately, judges and juries can all too often put undue weight on surveillance footage, because it is easy to present out of context and is more interesting and attention-grabbing than other relevant evidence, such as medical records and doctors’ opinions. Consequently, it is likely that companies will continue to take this sort of footage out of context, in the hopes that claimants will give up and not challenge the denial, or give in and accept a low-ball settlement once their benefits are cut off.

Every claim is unique and the discussion above is only a limited summary of the court’s ruling in this case. If you feel that your insurer is improperly using surveillance, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.

[1] Fleming v. Unum, 2018 WL 6133859 (2018).

 

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