Insurance Company Tactics: Online Surveillance
In determining whether they think an insured can go back to work, insurance companies will often employ a variety of investigative methods. One such tactic can be to gather online surveillance in an attempt to find activities that they believe are inconsistent with the disability claim.
The case of McIntyre v. Reliance[1] is an example of this. McIntyre was a nurse for Mayo clinic when she became disabled due to Charcot-Marie-Tooth disease (CMT). CMT is a genetic, degenerative neurological disease that damages the peripheral nerves. Reliance initially approved McIntyre’s claim and paid out during the “own occupation” period of her claim, but in the “any occupation” period, they terminated benefits, claiming that she was able to work in a sedentary capacity.
As part of their investigation, Reliance hired an investigative group who conducted research on McIntyre’s online activities. Their reports focused on McIntyre’s dog breeding and training, which was described on a website and her Facebook page. After these reports, Reliance had the investigative group perform in-person surveillance, which documented McIntyre for three days, showing that she taught an obedience class for several hours, drove to a mall and garden center, and then spent time in her garden for about ten minutes. The investigator noted that McIntyre had been out of her house for five hours and fifteen minutes on the day in question. The investigator noted that while McIntyre walked with a slight limp, she did not seem to struggle with other physical tasks such as opening the rear door of her car, pulling weeds, arranging flowers, or making her purchases.
After having multiple file reviews, a vocational analysis, and an IME conducted, Reliance upheld its termination of benefits, even though McIntyre’s physician had issued a statement saying that McIntyre was unable to work at all. The Court acknowledged McIntyre’s symptoms, but agreed with Reliance’s decision, and pointed to the surveillance as part of the rationale that McIntyre could work in a sedentary condition: “[a]lthough McIntyre was not out of her house for a full eight hours, her activities that day required more movement than a sedentary office job does.”
This case demonstrates how insurance companies will engage in surveillance, including an extensive dive into your online history, to undercut a claim. If you have filed a claim and have concerns about how your insurance company is handling it, please feel free to contact our attorneys directly to set up a consult.
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] McIntyre v. Reliance Standard Life Ins. Co., No. 21-3063, 2023 WL 4673615 (8th Cir. July 21, 2023)
Relying on File Reviews: A Case Study
It is not uncommon for disability insurance companies to rely on paper-only reviews when deciding whether to deny or terminate benefits. But will the reviewing physician consider all the evidence submitted in support of a claim when making a determination on whether an insured is disabled? The answer is – not always.
One such example is the case of Caudill v. Hartford.[1] Caudill filed a claim with his insurance company, Hartford, based on fibromyalgia and chronic obstructive pulmonary disorder (CODP). Hartford initially began paying benefits but later terminated them, claiming that Caudill was no longer too disabled to work. Caudill appealed, but Hartford upheld its termination. When making this decision, Hartford relied almost solely on an independent file review conducted by a Dr. Schulman.
Dr. Schulman opined that Caudill was able to work because he could sit or stand for 8 hours a day. While his conclusion concurred with the view of a doctor who had previously conduced an independent medical examination (IME), it failed to address questions that had been raised by Caudill about the purported deficiencies in the IME. Further, Dr. Schulman did not address a functional capacity evaluation (FCE) that reached a conclusion that Caudill’s issues, even with sitting, “would not be viable in most sedentary environments.”
Neither Dr. Schulman or the Hartford addressed the notes of Caudill’s treating physicians, which included statements that Caudill “does not have good exertional tolerance” and that he has difficulties with activities of daily living.
While the Court explained that, while there was nothing inherently objectionable about a file review, in this instance Caudill had “provided credible, objective evidence that he is unable to work in even a sedentary capacity” and that Hartford “cannot arbitrarily disregard a claimant’s evidence.” The Court found for Caudill and ordered that his benefits be retroactively reinstated.
This case highlights how insurance companies may rely on their own experts over other evidence in the case file. If you believe your insurance company has conducted a file review and you have questions, please feel free to reach out to one of our attorneys directly.
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] Caudill v. Hartford Life & Accident Ins. Co., No. 1:19-CV-963, 2023 WL 2306666 (S.D. Ohio Mar. 1, 2023)
Insurance Company Tactics: Ignoring Cognitive Deficits
It is not uncommon for those experiencing debilitating physical conditions, such as musculoskeletal issues, to experience cognitive impairments as well, resulting from both pain levels and side effects of medications. In fact, these cognitive impairments may even be the basis for continuing disability benefits—but will your insurance company recognize this?
One such example is the case of Sisung v. Unum[1]. Dr. Sisung, a pharmacist, became unable to practice when she was injured at work in 2006. Her injury resulted in lower back and neck pain. She treated with physical therapy, radiofrequency ablation, and medications. While the medications helped, they caused her problems with cognitive functioning, as her physician reported to Unum.
While Unum paid benefits to Dr. Sisung for the own-occupation period of her policy, they denied her claim when she reached the “any-occupation” period of her policy, when she would only be considered disabled if she was unable to perform the duties of “any gainful occupation” for which she was “reasonably fitted by education, training or experience.” Unum argued that Dr. Sisung’s physical condition had improved to the point that she was able to return to work in another occupation, and suggested that other professions she may be able to work in a sedentary-level occupation, such as a pharmacy area supervisor, a pharmacy manager or a pharmacy supervisor. Unum argued that Dr. Sisung did not have any cognitive impairment that would prevent her from performing these jobs.
The Court found otherwise—concluding that Unum’s determination was not supported. In part, they said that there were no conflicting statements in Dr. Sisung’s medical records regarding her cognitive impairment, Unum didn’t pursue their option of obtaining a second opinion through an Independent Medical Examination (IME), and Dr. Sisung had presented a neuropsychological examination which supported her claims of impairment.
This case demonstrates the uphill battle that claimants can face when a claim is based on cognitive impairments. If you have filed a claim and feel like your insurance is ignoring your diagnosis, please feel free to contact our attorneys directly to set up a consult.
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] Sisung v. Unum Life Ins. Co., No. 1:20-cv-00497-WMR, 2022 WL 1772273 (11th Cir. June 1, 2022).
Looking for Inconsistencies in Physician’s Statements: A Case Study
When you go to file a disability insurance claim, you will be required to submit evidence, usually including a statement signed by your treating physician, of your disability. What many don’t realize is that insurance companies will often require updated statements from treating physicians, and may even reach out to your physician directly with additional questions. What happens if your physician doesn’t fill out the form correctly, or somehow indicates you can return to work when you really can’t?
One such example of this is the case of Curiale v. Hartford.[1] Mr. Curiale was a vice president at Bear Sterns when he was injured in a motor vehicle accident and suffered head, shoulder and back injuries. As a result of his injuries, Mr. Curiale was no longer to perform sedentary work. He saw several physicians, many who completed physician’s statements that were submitted to Hartford.
One of Mr. Curiale’s doctors was a Dr Francis, who confirmed Mr. Curiale’s herniated discs and spondylolisthesis and noted several limitations including Mr. Curiale’s inability to bend at the waist, kneel, crouch or reach above his shoulder. On one physician’s statement, Dr. Francis opined that the limitations were expected to last for a year, but he also indicated on the form that there was an expected return to work date of six months. Hartford keyed in on this statement and sent a follow up letter to Dr. Francis. On this follow-up form, Hartford provided the definition of sedentary work and asked if Dr. Francis agreed that Mr. Curiale could perform such work on a full-time basis. Dr. Francis placed an x on the line indicating that he agreed with this statement. In a subsequent APS form, Dr. Francis opined on Mr. Curiale’s limitations again, indicating that they had improved. Based in part on this statement, Hartford terminated benefits.
However, Mr. Curiale underwent a functional capacity evaluation (FCE) which found that he would be unable to return to work in a sedentary position. When they received this FCE, Hartford again reached out to Dr. Francis. Dr. Francis indicated that Mr. Curiale’s functionality as represented on his previous APS did not remain “valid and accurate” and he indicated that he deferred to the expertise of the FCE clinician. However, Hartford still chose to uphold its denial of the claim.
The Court noted that the denial of benefits was triggered by comments by Dr. Francis that were subsequently withdrawn. Given this retraction, the court found that “the longitudinal medical record supports a finding of disability” and they found in favor of Mr. Curiale; however, not before the parties had had to engage in costly litigation. This case highlights how insurance companies will often cherry-pick statements from medical records and/or physician statements in order to find a basis to deny a claim—even in the face of other records or statements that consistently back up a finding of disability.
If you feel that your insurance company is looking to deny your claim based on an incomplete review of your medical records or physician’s statements, please feel free to reach out to one of our attorneys directly.
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] Curiale v. Hartford Life and Accident Ins. Co., No. 2:21-cv-54, 2022 WL 2063261 (D. Vt. June 8, 2022).
Insurance Company Tactics: Overbroad Requests
In the course of a disability insurance claim, claimants likely expect to provide claim forms and medical records; however, insurers often delve much deeper into claimant’s lives. These overbroad requests can be used to manufacture a reason to deny a claim.
One such example of this is the case of Mitchell v. Unum.[1] Plaintiff Kathy Mitchell filed a disability claim with her insurer, Unum, as she was no longer able to work due to narcolepsy and obstructive sleep apnea. She filed her claim in 2013. She initially received benefits, which Unum discontinued in November 2020, and they closed her appeal of the denial in May 2021. After the denial, Mitchell filed a lawsuit claiming breach of contract and bad faith.
As part of their discovery, Unum sought to obtain Mitchell’s travel records (initially from August 2013, then just from November 2020). They requested that she provide any and all times she traveled from her home further than 100 miles, and that she include the destination, dates, method and purpose of each of these trips. Unum claimed that this information was relevant to Mitchell’s functional capacity. Mitchell objected to this request, explaining that during any travel (other than driving, which she had done none of) she would be able to sleep. Further, she countered, knowing “destination” and “purpose” of travel would not speak towards her functional capacity. The Court agreed with Mitchell.
This case demonstrates just how much information insurers will try to request, even if it is irrelevant to whether an insured can still work in his or her own occupation. Without legal counsel, it can be difficult to know exactly what information an insurance company is allowed to request. In fact, many newer disability insurance policies include language that allow the insurance company broad access to an insured’s information. If you feel your insurance company is making overbroad requests, feel free to reach out to one of our attorneys directly.
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Mitchell v. Unum Life. Ins. Co., No. 2:21-cv-3888, 2022 WL 2306862 (S.D. Ohio June 27, 2022).
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
What Tactics Do Insurers Use to Deny Claims? A Case Study
Insurance companies utilize a wide array of tactics to deny claims, particularly when there is a lot of money on the line. In this post, we will examine a case where Prudential engaged in multiple tactics to wrongfully deny a claim.
Christopher Chapin was a software engineer diagnosed with several mental health issues, including depressive disorder, other trauma or stressor-related disorder and cognitive disorder. As a result of these conditions, Chapin found himself no longer able to work and filed a disability claim under his policies with Prudential.[1] Below are the several ways Prudential attempted to deny Chapin’s claim.
Ignoring Evidence of Disability
Under Chapin’s policy, he was considered totally disabled if he could no longer do the material and substantial duties of his regular occupation for the first 24 months of his policy. Chapin’s cognitive impairments prevented him from performing his job, due to deficits in psychomotor speed, attention, and immediate and delayed recall—all of which were required to be a successful software engineer. Chapin provided doctors’ statements and medical records and objective testing performed by his psychiatrist in support of his disability. Nevertheless, Prudential argued that Chapin could still work under the terms of his policy, using its own experts to challenge Chapin’s evidence.
Relying on Pure Paper Review
It is common for insurance companies to have their experts conduct a paper review claimant’s medical records, often in an effort to undermine them or provide a different opinion. Chapin’s records were reviewed by two doctors. The first reviewing doctor did not even perform a complete review of the records, as she failed to discuss testing done on Chapin. The second reviewing doctor, a neuropsychologist, dismissed the testing because it was done by a psychiatrist versus a neuropsychologist. The Court found that this questioned the reliability of the doctor’s peer review.
While insurers are not required to conduct independent medical examinations (IMEs) or rely solely on treating providers’ opinions, the Court in this instance found that “Plaintiff’s doctors are more probative and reliable than those contracted by Prudential to conduct paper reviews of medical records.”
Failure to Investigate Plaintiff’s Claims
While claimants hold the burden to prove up entitlement to benefits, the insurance company also has a duty to conduct an adequate investigation. Here, Prudential’s own expert indicated several times that independent testing could confirm or deny the validity of the testing already performed. Chapin’s own psychiatrist also indicated that more complex testing could be done. However, Prudential did not request any additional testing until seven months after the reviewing neuropsychologist conducted his peer review.
The Court held that Prudential cannot “shut [its] eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary’s theory of entitlement.”[2]
Ignoring the Opinions of Treating Providers
As touched upon above, Chapin submitted evidence from his treating doctors (PCP and psychiatrist) and his therapist who all concurred that Chapin was suffering from mental illness and was unable to perform the substantial and material duties of his occupation as a software engineer. In fact, one of the reviewing physicians indicated that Chapin’s treating provider should be discounted just because he was the treating doctor. The Court found that “wholesale rejection of a treating doctor’s opinion without reason is unjustifiable”.
Surveillance
Insurers will often conduct surveillance of an insured and take the findings (often including video surveillance) out of context to argue that a claimant is not truly disabled or is malingering. As another example, insurance companies often scour a claimant’s Facebook and other social media pages in order to deny claims.
At one point, Prudential received information that Chapin was participating in physical activities. Prudential jumped on this and alleged that such behavior conflicted with Chapin’s claims that he was unable to work. (In spite of the fact that physical activity is thought to help those with depression). The Court found that “evidence that Plaintiff went skiing, hiking, and went to the gym twice per week is irrelevant to Plaintiff’s claim that he was unable to perform his job duties due to cognitive impairment.”
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 using any of the tactics above to evaluate your claim, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.
[1] Chapin v. Prudential Life Ins. Co. of Amer., No. 2:19-cv-01256 – RAJ, 2021 WL 1090749 (W.D. Wash. March 22, 2021).
[2] Id. citing Rodgers v. Metropolitan Life Ins. Co., 655 F.Supp.2d 1081, 1087 (N.D. Cal. 2009)
Insurance Company Tactics: The Dual Occupation Defense
Dentists and physicians facing a disabling condition often look for other jobs to supplement income. Depending on the terms of the underlying policy, this can prompt insurers to raise a “dual occupation” defense.
One such example is the case of Lemons v. Principal[1]. Dr. Lemons was an OB/GYN who had also worked as a claims consultant for a health insurance company and as an addictions counselor. Dr. Lemons claimed disability based on a hand tremor, claiming that the tremor prevented him from safely practicing as an OB/GYN.
Principal denied Dr. Lemons’ claim, claiming his occupation under the terms of his policy encompassed all of the jobs he had been engaged in. Principal asserted that Dr. Lemons was not totally disabled because the tremor did not impact the ability to act as a consultant or work as a counselor. For his part, Lemons argued that his regular occupation was solely that of an OB/GYN.
The court determined that, under Alabama law, words must be given their common, everyday meaning and interpreted as a reasonable person in the insured’s position would interpret them. Based on this, the court determined that the most natural reading of regular occupation was that “the term refers to an insured’s primary job or discipline.” The court further explained that it read the “regular occupation rider’s use of the singular ‘your regular occupation’ to mean that the policy contemplates that the insured has only one primary job.”
Lemons was successful, in part, because his regular occupation rider used the singular “your occupation.” However, insurers have updated and changed their policies to make the definition of occupation more robust. Many companies have now replaced “occupation” with “occupation(s)” in an effort to preserve their ability to use a “dual occupation” defense to avoid payment.
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] Lemons v. Principal Life Ins. Co., Case No. 2:18-CV-01040-CLM, 2020 WL 6273741 (N.A. Ala. Oct. 26, 2020).
Insurance Company Tactics: Conducting Multiple Paper Reviews
Insurance companies typically start their claim investigations by requesting forms and medical records from your treating provider(s). In order to deny a claim, they may go to great lengths to dismiss and ignore even the most supportive of records. One way they do this is by using consultants to conduct paper-only reviews of the insured’s file.
One such example of this is Allen v. MetLife[1], where multiple consultants were used to try and undercut Linda Allen’s supportive physician’s statements and treatment records. Allen, a highly educated professional, was exposed to toxic mold at her workplace and developed a myriad of symptoms/diagnoses as a result, including chronic rhinosinusitis, mold allergy, chronic fatigue disorder, neurocognitive disorder, vertigo, reactive airway disorder, depression, and anxiety disorder.
Although MetLife’s own doctor hired to examine Allen in-person concluded that her symptoms were “quite enough to limit her daily functioning”, MetLife denied her claim. In doing so, MetLife chose to place more weight on the multiple consulting physicians who only conducted paper reviews of Allen’s file. Alarmingly, one physician made several factual mistakes in his report (including errors in the names and types of medications Allen was taking) and another only reviewed a portion of Allen’s records.
Additionally, the Court noted that at least two of the reviewing doctors indicated a need for additional information. However, MetLife’s claim file revealed that MetLife did not share additional records received from Allen with its consulting doctors or ask its doctors to update their findings.
While the Court recognized “the importance of independent medical reviews” it also recognized the limitations of such reviews by doctors who did not examine a patient, going on to say “the mere fact that independent medical specialists were consulted does not automatically equate with a deliberate, reasoned process and substantial evidence.”
While the Court reversed MetLife’s wrongful denial and Allen was ultimately successful, it took litigation (which can often be costly and time consuming) to expose MetLife’s improper tactics and overturn MetLife’s denial of her legitimate claim.
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] Allen v. MetLife, No. 4:06-CV-175-H, 2008 WL 11429626 (E.D.N.C. March 31, 2008)
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)
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).
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)
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)
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)
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)
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).
Insurance Company Tactics: Surveillance
We’ve discussed before how insurers often use surveillance in disability claims. Physicians’ 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 Unum’s 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).
