Ed Comitz and Patrick Stanley Named Top Lawyers in Arizona

Members Ed Comitz and Pat Stanley have been named two of Arizona’s top 100 lawyers for 2023 by AZ Business Magazine.

Selections were made in conjunction with industry experts, with an algorithm that ranked the attorneys based on professional ratings, impact on their law firm, impact on the profession and community involvement.

 

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Can Your Insurer Deny Benefits After Years of Paying Out Claims?
A Case Study

You’ve been receiving benefits for years—can your insurance company just change its mind and decide to suddenly deny benefits?  That’s what happened in the case of Roehr v. Sun Life.[1] Dr. Roehr was a practicing, board-certified anesthesiologist who began experiencing intermittent tremors in his hands and fingers in 2004.   While he was initially concerned that he had Parkinson’s disease, due to a family history, subsequent examinations by neurologists indicated that it was not Parkinson’s disease, rather he was diagnosed as having “a tremor of unclear etiology.”

In October 2006, Dr. Roehr stopped practicing out of concern for patient safety and filed a claim under the “own occupation” provision of his Sun Life policy.  While none of the neurologists Dr. Roehr had seen were able to give a specific diagnosis related to his tremors, he continued to receive follow up care from his primary care physician, and Sun Life paid benefits for the next ten years.  This was the case even though his primary care physician’s records failed to sometimes note an observation of tremors (usually when the record was dealing with a separate medical issue).  Over these ten years, Sun Life occasionally requested medical updates from Dr. Roehr’s primary care physician.

In 2017, Sun Life retained a neurologist to review Dr. Roehr’s claim.  The neurologist confirmed that Dr. Roehr did not have Parkinson’s disease and questioned whether Dr. Roehr’s condition might not have improved, based on the available medical records.  Sun Life subsequently terminated Dr. Roehr’s benefits and upheld this decision on appeal in 2018.

In its review, the court acknowledged that review of the case was complicated by the facts that Dr. Roehr’s tremors were unexplained, his physician had observed temporary improvement in his condition, and he had not completed neuropsychological or other testing that had been suggested early on by a neurologist.  However, the court ultimately sided with Dr. Roehr, indicating that Sun Life had not conducted an assessment by a neurologist/movement disorder specialist, even though their reviewing neurologist had recommended it.  Further, the court explained that “Sun Life relied on virtually the same medical records for a decade and has pointed to no information available to it that altered in some significant way its previous decision to pay benefits.”

While Dr. Roehr was successful, the case had to proceed to costly litigation in order for him to prevail.  The case is an example of why it is important to have carefully detailed medical records that clearly document a disability and stands as an important reminder that insurance companies are often looking for ways to deny claims, even those they have been paying out for years.

If you are on claim and feel that your insurance company has begun questioning your claim, please feel free to reach out to one of our attorneys directly.

[1] Roehr v. Sun Life Assurance Co., No. 21-1559, 2021 WL 6109959 (8th Cir. Dec. 27, 2021)

 

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Traveling for Treatment
A Case Study

What if you have to travel for treatment? Can your insurance company use that to question if you really are disabled?  That is exactly what happened in the case of Sherrell v. Sun Life.[1] Sherrell was a research coordinator who filed for disability with her insurer, Sun Life Assurance Company of Canada, based on anxiety, depression and agoraphobia.

Shortly after filing for disability, Sherrell began receiving electroconvulsive therapy (ECT).  In order to participate in ECT, Sherrell traveled to Minneapolis to stay with her daughter while receiving treatment, as she would not be able to drive while receiving the ECT treatments.

Sun Life denied Sherrell’s claim, indicating that they did not believe she was unable to work.  In part they based this decision on a medical review they sought out by a physician certified in psychiatry and neurology.  As part of his review, this doctor indicated, in part, that it was “inconsistent” that Sherrell was able to travel to Minnesota despite her condition.   The original report also incorrectly stated that Sherrell had traveled “back and forth” to Minnesota.

The Court found this argument to be less than persuasive, stating that it failed to see how someone traveling to get needed medical treatment suggests that she is able to perform the tasks of her job.

We’ve seen insurance companies often overemphasize travel or other non-work-related activities in their denial of claims.  If you feel your insurance company has overstressed your activities, such as traveling for treatment, in assessing your claim, please feel free reach out to one of our attorneys directly.

 

[1] Sherrell v. Sun Life Assurance Co., No. 20 C 7519, 2022 WL 474206 (N.D. Ill. Feb. 16, 2022)

 

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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).

 

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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).

 

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Multiple Disabling Conditions:
A Case Study

It is not uncommon for individuals to have multiple disabling conditions that contributes to their need to file a claim.  But will your insurance company take each diagnosis into consideration when determining eligibility for benefits?

One such case is that of Sorensen v. Hartford[1]. Ms. Sorensen sued Hartford after being denied long-term disability benefits.  She suffered from a multitude of conditions, including (but not limited to) chronic fatigue syndrome, fibromyalgia, chronic pain and dysphasia, cervical and lumbar spine degenerative disc disease, Hashimoto’s thyroiditis, prediabetes, irritable bowel syndrome, rheumatoid arthritis, depression and anxiety.  For these conditions she saw numerous medical professionals, many of whom had contact with Hartford during the claims process, whether via interviews or submitting an attending physician’s statement. The Social Security Administration awarded Ms. Sorensen disability benefits for multiple conditions, both physical and mental.

After having their own doctors review Ms. Sorensen’s medical records, Hartford determined that Ms. Sorensen met the definition of disability based on a mental illness and awarded benefits for 24 months (because her policy had a mental illness limitation on benefits).  However, in their findings, these reviewing doctors concluded that any restrictions and limitations of her medical conditions would not prevent her from working in “any occupation”.

Upon review, the Court found that Hartford had erred in its denial for several reasons.  In part, the Court criticized Hartford for not completing an in-person medical evaluation, especially given that many of Ms. Sorensen’s health conditions were not “susceptible to objective verification” (such as fibromyalgia).  Further, a Hartford reviewing doctor cherry-picked medical records, looking at five office visits rather than the entire medical file, and was never given a copy of the SSA’s decision granting Ms. Sorensen Social Security benefits in order to distinguish his conclusions.

If you feel that your insurer is not fully considering your disabling medical conditions, 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 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] Sorensen v. Hartford Life Ins. Co., No. 4:21-cv-00286, 2022 WL 2135811 (D. Idaho June 14, 2022).

 

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Rescission: A Case Study

Recently we’ve seen that insurance companies are conducting more rescission reviews.  Rescission is a legal principle where insurance companies can avoid payment and even void a policy if there were any misstatements made in a policy application.  We typically see this happening when it comes to the health questionnaire portion of policies.  Insurance companies may even sue a policyholder in order to rescind a policy, and seek attorney fees and costs.

One such example is the case of Principal v. Hill[1]. Principal sued Ms. Hill seeking to rescind her deceased husband’s life insurance policy, after Principal discovered that the husband had made material misrepresentations and omissions on his life insurance application within the policy’s two-year contestability period.  As part of the application, Mr. Hill was required to submit a Statement of Health. According to Principal’s complaint, Mr. Hill did not disclose consultations with physicians, tests, treatments, medications, symptoms and medical conditions. The Statement of Health also contained language to the effect that, by signing it, the Hills were confirming that the answers “were complete and true to the best of my knowledge” and that “any false statements, omissions or material misrepresentations regarding age or health information could cause coverage, if issued, to be cancelled as never effective.” Principal asked the Court to rescind the policy as to amounts over the guaranteed issue amount of $20,000.00, stating that it had relied on these misrepresentations when it issued the policy.

In this instance, the policy was an ERISA policy, and ERISA law allows for the rescission of insurance contracts entered into under false representations of health.  Here, the Court found in favor of Principal and rescinded the policy.  The Court also awarded attorney fees and costs, as Principal had demonstrated that they achieved “some degree of success on the merits” of the case, including that they had shown a valid basis for rescission.

While this is a life insurance case, we often seen similar situations when it comes to disability insurance cases.  More and more, insurers are going through policy applications with a fine-toothed comb, looking for any misrepresentations.  They may even request medical records from decades earlier in an attempt to find discrepancies.  The takeaway is that it is imperative to be careful and accurate when filling out applications, or you may find yourself without coverage when needing to file a claim.  If your insurance company has mentioned rescission, it is important to speak with an experienced disability insurance attorney right away.

If you have questions regarding how rescission works, or fear your insurance company may be seeking to rescind your policy, 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 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] Principal Life Ins. Co. v. Hill, No. C21-1716 MJP, 2022 WL 2718087 (W.D. Wash. July 13, 2022).

 

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Feltington v. Hartford – Internal Guidelines

The internal working of insurance companies, especially when it comes time to adjudicate a claim or navigate an appeals process, can be a mystery—in fact some insurance companies can go to great lengths to actually hide their internal guidelines and procedures.  One such example of that is the case of Feltington v. Hartford Life Insurance Company.[1]

In this matter, Feltington is suing Hartford based on their denial of her long-term disability benefits under a private-employed sponsored disability policy (an ERISA policy).  The case is in its seventh year of litigation.  One major area of contention was the production of Hartford’s internal procedures related to receiving post-appeal information.

Hartford eventually released a heavily redacted portion of its claims manual, discussing its process for receiving additional information/issues submitted after an appeal decision.  The excerpts indicated that it was Hartford’s policy to uphold the appeal decision by issuing a letter explaining that the administrative remedies had been exhausted.

The Court added, “[i]n elevating the Hartford Life’s closing of the record to the level of the sacrosanct, the Company misses a fundamental feature of human nature: we all make mistakes.”

Even further, the excerpts of the policy also explained that all post-decision information received is to be sealed in a specially-marked envelope which “should not be re-disclosed.”  The purpose of this appears to be to exclude any additional information from the administrative record, and thus make it unavailable to insureds, their counsel, and the courts.

This court case shows just how far insurance companies, specifically Hartford, will go to stand by its denial determination.  If you are engaged in litigation with your insurer, feel free to reach out to one of our attorneys directly.

[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 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.

 

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Feltington v. Hartford – Delay Tactics

When claims denials end up going to litigation, they can be both costly and time consuming to both sides involved.  One example is the case of Feltington v. Hartford Life Insurance Company.[1] Lisa Feltington, a quality assurance coordinator, filed a claim with her disability insurance carrier, Hartford Life Insurance Company.  These benefits were terminated and eventually she filed a lawsuit against Hartford.

The lawsuit has now entered its seventh year of litigation, with over 100 entries on the docket and a 1,000-page administrative record.  This drawn-out lawsuit has drawn consternation from the judge, who harshly criticized counsel, saying “[t]he result has been a mind-numbing elevation of for over substance which had devolved into a conflagration that all but extinguished the search for truth.”

Arguments included whether a magistrate judge could rule on certain motions, including a motion to expand the administrative record.  At issue was a Functional Capacity Examination (FCE) that was performed on Ms. Feltington on May 16, 2014.  According to Hartford the document was unsigned and they stated the author was anonymous.  According to Hartford, they attempted to contact Best Physical Therapy Associates and then ultimately concluded that the FCE was less than objective.

Despite these statements, a letter from a Susan Greenberg was written explaining that she was the one who had performed the FCE and explained that she had returned the call of Dr. Small from Hartford.  Years later in litigation, the judge ruled that “the Greenburg letter, which clarifies these seemingly critical concerns (and was ignored by Hartford) must be considered in connection with this matter.”

Further, arguments in the case arose regarding the disclosure of a small portion of Hartford’s claims manual—including multiple rounds of discovery and court orders.  Hartford began its effort to avoid discovery outside the administrative record in 2015.  After being ordered to do so by the judge, Hartford released an initially heavily redacted portion of its claims manual in April 2016.  This excerpt remains central to the case, and was discussed in length in the judge’s recent 2022 ruling.

As stated above, the judge in this matter harshly criticized Hartford for its delay tactics in this case; however, these long delay tactics by insurance companies’ counsel are not uncommon.  Insurance companies have greater financial resources and time than insureds, and use this to their advantage when a lawsuit arises.  This case highlights the importance of filing strong claims from the outset, to avoid lengthy litigation later down the road.

If your insurance company is employing delay tactics, please feel free to reach out to one of our attorneys directly.

[1] Feltington v. Hartford Life Ins. Co., No. CV 14-6616 (GRB), 2022 WL 499079 (E.D.N.Y. Feb. 17, 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.

 

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Litigation Against Insurers: Attorney Fees

Sometimes, when an insurer denies or terminates a case, it become necessary to sue the insurance company in an effort to recover benefits. These lawsuits can become time-consuming and costly quickly.  This begs the question – can you recover attorney fees and costs if you are ultimately successful in your lawsuit?  The answer is, it depends.

One illustrative case is that of Sutton v. MetLife[1].  Sutton filed for disability with his insurer, MetLife, when he became disabled due to severe back pain.  He filed in 2018 and MetLife initially began paying benefits; however, they terminated his claim about a year later after consulting with a physician.  After an appeal was unsuccessful, Sutton sued MetLife. The parties ultimately reached a settlement agreement, with MetLife paying the full value of the disputed benefits.

After this, Sutton requested an award for his attorneys’ fees and costs.  In its decision, the Court explained that they may award reasonable fees and costs to any party who has achieved some degree of success on the merits.

In this case, MetLife did not dispute this fact.  However, the parties did dispute the amount of the fees Sutton’s attorneys were eligible for.  MetLife had several arguments against paying the full amount of attorneys’ fees, to include contesting what attorney time should count, alleging that Sutton’s attorneys engaged in duplicative billing as well as “block billing”, and asserting that Sutton’s attorneys should have accepted MetLife’s offer to pay a discounted award.

The Court did not find these arguments persuasive, and awarded $102,179.00 in fees and $828.40 in costs.

If you are considering litigation against your insurer for denial of benefits, 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 about litigation against your insurer, an experienced disability insurance attorney can help you assess the situation and determine what options, if any, are available.

[1] Sutton v. MetLIfe Ins. Co., No. 2:20-cv-00698-KJM-CKD, 2022 WL 2177123 (E.D. Cal. June 16, 2022).

 

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Comitz | Stanley Attorneys Recognized
by Phoenix Magazine as Top Lawyers

 

Comitz | Stanley attorneys Ed Comitz, Pat Stanley, and Derek Funk have all been named Top Lawyers by Phoenix Magazine. The prestigious award was peer-selected by other attorneys in the Valley.  Comitz | Stanley is honored to be recognized and takes pride in representing dentists, physicians and other professionals Valley-wide, as well as nationally.

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.

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Principal Uses Limitation Provision to Deny Disability Benefits

Certain conditions can be hard to prove up, or even diagnose, and insurers, such as Principal, will key in on this and may seek to deny, or at least limit, benefits.  This can be true of Principal, even when policy language does not explicitly request objective medical evidence.

One such case is that of Gilbert v. Principal[1].  Sharon Gilbert, a biostatistician, ceased working in 2018 and filed a disability insurance claim with Principal, based on a diagnosis of Lyme disease from 2016.  Gilbert’s associated symptoms included fatigue, headaches, chills, chest pain, joint pain, numbness and nausea.  She also indicated that she was seeing a psychologist once a month due to her difficulty in managing her symptoms.

Gilbert’s policy had a 24-month limitation on benefits for mental health conditions and “Special Conditions”, which included headaches, chronic fatigue syndrome, fibromyalgia and musculoskeletal and connective tissue disorders. Principal ultimately determined that Gilbert was suffering from a Special Condition, namely Somatic Symptom Disorder (SSD) and therefore was only eligible for 24 months of benefits.

Principal conducted multiple independent medical examinations (IMEs) and had various physicians do medical records reviews in order to challenge the Lyme disease diagnosis.  Their main argument was that the diagnosis did not fit the CDC guidelines. They also pointed to the fact that several of Gilbert’s own physicians questioned the diagnosis of Lyme disease. The Court decided in favor of Principal.  While Gilbert had other conditions outside of SSD, Principal and the Court found they did not rise to the level of disability.

Despite records and statements from the provider treating her extensively for Lyme disease, and a favorable Social Security determination, Gilbert was unsuccessful in her case.  This case highlights the importance being aware of any limitation provisions in your policy.

If you feel your insurer is trying to apply a limitation provision to your claim for benefits, please feel free to contact one of our attorneys directly.

[1] Gilbert v. Principal Life Ins. Co., Civil Action No. TDC-21-0128, 2022 WL 3369537 (D. Md. Aug. 16, 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.

 

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Long COVID and Disability Insurance Claims
Part II

Our previous post looked at the symptoms and diagnosis of long COVID, which may lead to the need to file a disability insurance claim.  While long COVID can now be considered a disability under the Americans with Disability Act (ADA), your disability insurer may not recognize long COVID as a disabling condition (in fact, some newer policies are being issued with a “post-viral syndrome” limitation).

Part of the reason insurers have been successful in avoiding paying out claims based on long COVID is that there are no tests to diagnose post-COVID conditions.  According to the CDC[1], post COVID’s symptoms could be attributable to other health problems.  Further, results from blood tests, chest x-rays, and electrocardiograms may be normal. For example, many symptoms reported by long-haulers can mimic those of chronic fatigue syndrome, another condition that is notoriously hard to prove up, and one which may be subject to a subjective conditions limitation found in some disability insurance policies.

When filing a disability insurance claim for long COVID, it is important to have a supportive physician(s) who can document both symptoms and a diagnosis in medical records.  Your physician(s) will also likely need to submit ongoing paperwork to your insurer, to continue to document your condition, throughout the duration of your claim.  It may also be necessary to submit additional evidence backing up your claim.  This could include a functional capacity examination (FCE) or neuropsychological exam—both of which can be used to demonstrate any limitation you may be experiencing that prevents you from working in your profession.

If you are suffering from long COVID and feel that you might need to file a claim, please feel free to reach out to one of our attorneys directly.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

[1] Long COVID or Post-COVID Conditions, Center for Disease Control and Prevention, updated June 17, 2022

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Proof of Loss Requirements:
A Case Study

As part of the disability insurance claim process, your insurer will ask for various categories of proof of loss to support your disability claim. What happens if you fail to provide all of the requested information? In all likelihood, your claim will be denied.

This was the case in Lipsky v. Principal.[1] Lipsky, a licensed insurance agent, filed a claim for residual disability with his insurer, Principal. In reply, Principal asked for evidence demonstrating Proof of Loss, including claim forms, proof of loss of prior earnings, proof of current earnings, medical records and attendance at a interview with a Principal agent. In response, Lipsky submitted one of the claim forms, but none of the additional requested information. Principal went on to deny the claim and uphold its denial when Lipsky did not produce the remainder of the request.

Lipksy, for his part, claimed that had submitted enough evidence to establish his eligibility for residual disability. He also argued that Principal, under Nevada law, could not request specific form documentation. The Court found that Principal was within its rights to request specific information to establish proof of loss and that Lipsky had not provided sufficient information to make a claim under the policy.

The case highlights the importance of carefully reviewing your policy and all communication from your insurer to determine what evidence is required to establish a claim for benefits. An experienced disability insurance attorney can help you determine whether what your insurer is asking for is allowed under the terms of your policy.

If you feel that your claim has been targeted for not meeting proof of loss requirements, please feel free to contact one of our attorneys directly.

[1] Lipsky v. Principal Life Ins. Co., 2:05-CV-0967-RCJ-LRL, 2007 WL 9728677 (D. Nev. March 22, 2007).

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.

 

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Statements in Policy Applications:
A Case Study

Insurers, such as Principal, may go to great lengths to rescind a policy.

Rescission is a legal principal where insurers can void a policy if there were any misstatements in a policy application. We typically see rescission claims based on the health questionnaire portion of an application, but rescission is not per se limited to misstatements regarding health status.

One such example is that of Nichols v. Principal.[1] Dr. Nichols, a dentist, purchased a policy from a broker she met while still in dental school. She completed the application in the broker’s office, including a telephone interview with Principal to complete the portion of her application regarding her current and past health history.  The policy was issued and delivered to a field office contact, who delivered the policy to the broker.  The broker’s office then obtained her signature on Part D of the Application (Agreement/Acknowledgement of Delivery). Part D included a statement verifying that Nichols had read all the questions and answers obtained during the telephone application interview.

Nichols was subsequently injured in a rock-climbing accident and filed a disability claim.  Principal rescinded Nichols’s policy, stating that she had made misstatements in her medical history and that there was misinformation on her application.  Nichols contested Principal’s claim, and also claimed that she had not received a copy of her application with the policy (as required under Oregon statute).

More specifically, Principal claimed that the policy did contain the application, and the broker claimed that the bound policy received from Principal had been mailed to Nichols. Nichols argued that she should be granted summary judgment, but the court determined there were issues of fact and set the case for trial.

This case highlights the importance of carefully reviewing all answers on your application for disability insurance carefully for accuracy, especially if this information was obtained and recorded via an interview with an insurer.

If your insurer has threatened to rescind your policy, please feel free to reach out to one of our attorneys directly.

[1] Nichols v. Principal Life Ins. Co., 3:19-cv-01047-BR, 2020 WL 3318000 (D. Or. June 18, 2020).

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.

 

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Long COVID and Disability Insurance Claims
Part I

As more time passes in the pandemic, it is clear that people experience COVID differently.  While some may be clear of the virus within a few weeks, others who have been infected may go on to experience long COVID (also called long-haul COVID, post-COVID and post-acute COIVD).  Just like acute COVID, long COVID can cause a wide range of health issues that can last several weeks, months or even years.

According to the CDC[1], symptoms can vary person to person, but can include the following:

  • Feelings of tiredness or fatigue that interfere with daily life;
  • Post-exertional malaise
  • Fever
  • Respiratory and heart symptoms (chest pain, cough, difficulty breathing or shortness of breath)
  • Neurological symptoms (sleep problems, headache, dizziness, brain fog, depression or anxiety)
  • Digestive symptoms (diarrhea, stomach pain)
  • Joint or muscle pain
  • Rash
  • Changes in menstrual cycles

According to the Mayo Clinic[2], risk factors for long COVID include:

  • Having severe illness with COVID-19 (especially if hospitalized or needed intensive care)
  • Having certain pre-existing medical conditions
  • Having a condition that affected organs or tissues while sick with COVID-19 or afterwards
  • Are an adult

While these are identified risk factors, anyone who has had COVID-19 can have long-term effects—even those with mild illness or no symptoms.

Because long COVID can last a significant period of time, those with it may need to file a long-term disability claim; however, we’ve seen insurers balk at paying such claims.  Our next post will look at filing a disability insurance claim for long COVID in more detail.  If you have been diagnosed with long COVID and are considering filing a disability insurance claim, please feel free to reach out to one of our attorneys directly.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

[1] Long COVID or Post-COVID Conditions, Center for Disease Control and Prevention, updated June 17, 2022

[2] COVID-19: Long-term effects, Mayo Clinic, June 28, 2022

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Great-West Denies Doctor with Kidney-Failure
Due to Late Filing

As part of the Great-West ADA group disability policy, a disabled dentist whose disability claim has been denied may file a lawsuit against Great-West, but only after exhausting Great-West’s appeals process and receiving a final adverse claim decision on appeal.

Unfortunately, it’s often difficult for a dentist untrained in law or insurance to determine when Great-West’s “final decision” has been made; and, importantly, if a lawsuit is not thereafter timely filed within Great-West’s own proclaimed statute of limitations (which may be shorter than limitations periods under state law), the aggrieved dentist risks having his lawsuit thrown out as untimely.  In other words, Great-West can avoid paying a legitimate disability claim based on a contractual technicality.

This is what happened in the case of Parsley v. Great-West.[1]  Dr. Parsley was a dentist with end-stage kidney failure who filed a disability claim with Great-West.  After Great-West denied his claim for benefits, Dr. Parsley filed an appeal, which Great-West denied on March 1, 2014.  Dr. Parsley went on to correspond with Great-West, filing what he thought were additional, supplemental appeals—all of which were denied, with the last denial occurring on April 15, 2019.

Dr. Parsley then filed a lawsuit, hoping to collect benefits for his obviously disabling condition; however, he was unable to do so, and his lawsuit was thrown out by the court.

The Great-West policy states that no legal action may be started “more than three years after the date of the Company’s final decision on the appeal.”  At issue in Dr. Parsley’s case was whether Great-West’s final decision on appeal was in March 2014 or in April 2019.

Great-West argued that the final denial was in March 2014, and indicated that all of its subsequent replies to “claimed” follow-up appeals referred back to the “initial appeal denial,” which was Great-West’s final decision.  Therefore, despite the fact that Dr. Parsley believed he was acting in good faith, and Great-West was actually corresponding with him about the merits of his claim each time he wrote to the carrier, the Court ultimately found that Great-West’s “final” decision was in March 2014.

This case shows the importance of understanding the terms of your disability policy, including how, when and where a lawsuit must be filed, what limitations periods apply to the lawsuit, and what constitutes a final appeal and decision.  All too often disability insureds believe they are acting in good faith, supplying relevant information and trying to work things out, all the while their insurance company is lulling them into not following the rules of their contact.

An experienced disability insurance attorney, representing you from the outset of your claim, and who understands the particulars of your policy, can make sure that you take timely action so that you do not jeopardize your right to collect benefits.

If you have received a denial of your benefits and are considering appealing or filing a lawsuit, please feel free to reach out to one of our attorneys directly, before you unwittingly compromise your benefits.

[1] Parsley v. Great-West Life & Annuity Ins. Co., No. 22-60800-CIV-SINGHAL, 2002 WL 2341166 (S.D. Fla. June 29, 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.

 

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Unum Study Shows Prevalence of Mental Health Concerns
in the Workplace

A recent research study conducted by Unum[1] shows that over half of U.S. workers felt mentally unwell in the last year. Experts indicated that health concerns and workplace pressures during the COVID-19 pandemic caused widespread mental health concerns that are expected to carry into the future.

Forty-two percent of the surveyed employees indicated that they needed to take time off work to deal with their mental health; however, almost one-third of workers reported lack of promotion of mental health resources or offerings by employers. In fact, 70% of employees suggested that there was room for improvement for their employers to reduce the stigma of mental health.  According to the study, when employees do seek help, 42% do so only in a crisis, versus seeking support proactively.

As we’ve written before, physicians and dentists can be uniquely susceptible to mental health conditions such as anxiety, depression, and panic disorders, as well as suffering from burnout. These types of claims can be notoriously difficult to prove up, especially given the often subjective nature of symptoms.

Further, even if a doctor is able to file a successful mental health claim, many policies include mental and nervous limitations, which put a cap on the length of time you are able to receive benefits (typically about 24 months).

If you are a professional considering filing a disability claim based on mental health conditions, feel free to reach out to one of our attorneys directly.

These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.

[1] Over half of U.S. workers continue to feel mentally unwell and require time away from work, Unum, June 29, 2022.

 

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Will A Social Security Award
Help My Disability Insurance Claim?

Will being approved for Social Security Disability Insurance help your disability insurance claim?  Not necessarily, as the case of Bakos v. Unum[1] shows.  The case also highlights the importance of timeliness in filing.

Bakos was initially awarded disability benefits in December 2014, but Unum later told her she no longer met the Plan’s disability definition as of April 14, 2015.  Bakos appealed the decision and Unum upheld its termination on June 27, 2016.

Bakos also filed for Social Security Disability (SSDI) and, after an appeals process, was awarded full benefits on March 2, 2020.  Bakos then requested that Unum re-open the denial of her claim.  Unum declined to do so and Bakos filed suit.  However, Unum challenged the suit as being time-barred because her Plan had a three-year limitation period, which required Bakos to initiate an action challenging the denial on or before that date (in this case August 6, 2018).

The Court ultimately found for Unum, even though Bakos argued that she had never been notified of the three-year statute of limitations.  In part, the Court found that Bakos had not been diligent in investigating issues relevant to her claim, for example by requesting a copy of her Plan.

The Court also concluded even though Bakos believed her SSDI appeal decision vital to her appeal, she “points to no contractual provision showing why her SSDI result would have any material bearing on the timeliness of her Plan appeal.”

In the end, even though Bakos had an argument that she was disabled because of her SSDI award, Unum found a way to ignore this favorable finding.  The case illustrates how insurance companies will look for any means possible to deny a claim, regardless of whether there is bona fide evidence of disability.  An experienced disability insurance attorney can help navigate important requirements that may arise when a claim has been denied.

If you claim has been denied and you are wondering about next steps, please feel free to reach out to one of our attorneys directly.

[1] Bakos v. Unum Life Ins. Co., CV 121-058, 2022 WL 791922 (S.D. Ga. March 14, 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.

 

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