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.
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.
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).
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.
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.
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
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.
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.
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
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 contract.
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.
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.
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.
Am I Working In My Specialty? A Case Study
Specialty-specific disability insurance policies allow you to collect benefits if you are no longer able to perform the duties of your specialty occupation (even if you are working in another medical or dental field). We often get asked – will I be able to collect on my specialty-specific policy? Will my insurer fairly determine my specialty?
One illustrative case is that of Pak v. Guardian[1]. Dr. Pak, an anesthesiologist, sued Guardian after he was denied total disability benefits. Dr. Pak argued that his specialty was that of a pediatric anesthesiologist and that he was unable to perform the material and substantial duties of his occupation due to migraines and the accompanying symptoms. Guardian pointed to the policy’s plural definition of occupation and asserted a “dual-occupation defense”, arguing that Dr. Pak had two occupations—anesthesiology and pediatric anesthesiology—and that he would only be totally disabled if he was disabled from both occupations. In making this determination, in part, Guardian looked to Dr. Pak’s CPT codes.
Guardian argued, and the Court agreed, that just because Dr. Pak had a certification in pediatric anesthesiology, he had not necessarily limited himself to that occupation. The Court explained, “the provision does not state that a claimant’s specialty is automatically deemed their occupation. Viewing the provision in its entirety, it focuses on whether the claimant was restricted to that specialty.”
While Guardian’s analysis indicated that Dr. Pak’s CPT codes indicated that 93% of his pre-disability time and revenue was derived from general anesthesiology procedures, Dr. Pak argued that the CPT codes did not give the whole picture of his duties. The Court determined that how much time Dr. Pak spent performing the work of a pediatric anesthesiologist (and what that work entailed) was a question best left to the jury.
This case highlights how difficult it can be to collect total disability benefits under a specialty-specific policy, even if you are board certified in a recognized specialty. If you have a specialty-specific policy and are considering filing a disability insurance claim, please feel free to reach out to one of our attorneys directly.
[1] Pak v. Guardian Life Ins. Co., No. 21-cv-05032-WHO, 2022 WL 410947 (N.D. Cal. Feb. 10, 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.
Myasthenia Gravis
Myasthenia gravis is a chronic autoimmune, neuromuscular disease that leads to weakness and rapid fatigue in any of the muscles under voluntary control. It is caused by a breakdown in the communication between the nerves and muscles. Specifically, antibodies block, destroy, or alter the receptors for the neurotransmitter acetylcholine at the neuromuscular junction, preventing the muscle from contracting.
Myasthenia gravis is not hereditary or contagious. It is more common in women younger than 40 and men older than 60.
Symptoms
Muscle weakness with myasthenia gravis worsens with periods of activity and improves after periods of rest. While it can affect any of the muscles that are controlled voluntarily, certain muscle group are more commonly affected than other. Common symptoms include:
- Weakness of the eye muscle (ocular myasthenia)
- Drooping of eyelid(s) (ptosis)
- Blurred or double vision (diplopia)
- Difficulty swallowing
- Shortness of breath
- Impaired speech (dysarthria)
- Weakness in the arms, hands, fingers, legs, and neck
A myasthenic crisis can occur when the muscles that control breathing become weak to the point where a ventilator is required to assist with breathing. About 15 to 20 percent of people with myasthenia gravis will experience at least one myasthenic crisis.
Diagnosis
- Neurological examination
- Blood analysis (to look for the presence of abnormal antibodies)
- Repetitive nerve stimulation
- Single-fiber electromyography (EMG)
- CT scan or MRI (to look for a tumor or abnormality on the thymus)
- Pulmonary function tests
Treatment
While there is no cure for myasthenia gravis, a variety of treatment is available to help manage the symptoms.
Since the thymus gland controls immune function and may be associated with myasthenia gravis, one course of treatment is a thymectomy, with about 50% of individuals who undergo this procedure experiencing remissions. Other treatments include:
- Medications (cholinesterase inhibitors, corticosteroids, immunosuppressants)
- Intravenous therapy (plasmapheresis, intravenous immunoglobulin, monoclonal antibody)
Because myasthenia gravis can improve with rest, and can go into periods of remission, it can be difficult to prove up to an insurance company even if it has impacted your ability to practice to the point you need to file a claim. If you have been diagnosed with myasthenia gravis and feel you may no longer be able to safely practice, 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
Sources
National Institute of Neurological Disorders and Stroke
Myasthenia Gravis Foundation of America
Mayo Clinic
Limited Conditions Provisions: A Case Study
Musculoskeletal conditions, including back pain, of all different types can be debilitating and seriously impede your ability to practice. However, newer disability policies may exclude or limit recovery for conditions such as carpal tunnel syndrome, arthritis, and diseases or disorders of the cervical, thoracic, or lumbosacral back and its surrounding soft tissue, or sprains or strains of joints or muscles. If your policy contains this type of exclusion, your benefits may be limited to a shorter payout. For example, 24 months, instead of to age 65 or lifetime benefits.
One such example of this situation is the case of Zall v. Standard.[1] Dr. Zall was the co-owner of a dental practice when he began experiencing pain and numbness in his neck and in his thumb, and two fingers in his right hand. Symptoms of neck pain and numbness began in 2011 and he was evaluated by an orthopedic surgeon and an MRI showed disc herniation at C5-C6 that was contributing to severe foraminal narrowing. In 2013 the same doctor found Dr. Zall’s symptoms consistent with a herniated disc and intermittent radiculopathy. Dr. Zall shortly thereafter filed a claim with his insurer, Standard.
In Dr. Zall’s case, his policy contained an “other limited conditions” exclusion that limited recovery for musculoskeletal conditions. Benefits could only be secured if the claim was based on a herniated disc or radiculopathy verifiable with tests (EMGs and MRIs). Standard initially approved Dr. Zall’s claim; however, upon later review Standard determined that the “other limited conditions” exclusion did apply, and stopped paying benefits.
Standard argued that later medical records did not establish that Dr. Zall’s symptoms were any longer attributable to either radiculopathy or a herniated disc. They based this decision on reviews by opinions of four board-certified physicians they had had review the file. The Court agreed with Standard, indicating that it was neither arbitrary or capricious for Standard to conclude that Dr. Zall’s disability was caused or contributed something else, such as carpal tunnel syndrome or degenerative disc disease.
If you are wondering whether your policy has an “other limited conditions” provision, and how it might affect your claim, please feel free to reach out to one of our attorneys directly.
[1] Zall v. Standard Ins. Co., 21-CV-19-slc, 2021 WL 6112638 (W.D. Wisc. Dec. 27, 2021).
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.
2020 Benchmark Trends
A recent study published by the Integrated Benefits Institute entitled “2020 Benchmarking Trends”[1] looks at trends in the short-term and long-term disability market. The dataset included thirteen carriers and TPAs (third party administrators), 10.6 million claims, more than 100,000 employer policies and nearly 1,000 SIC (Standard Industrial Code) codes.
When it comes to long-term disability, the most prevalent conditions leading up to filing a claim is diseases of the musculoskeletal system and connective tissues (accounting for almost 27% of new 2020 LTD claims), followed by neoplasms and diseases of the nervous system.
The study further found that across all U.S. employers, new LTD claims year over year rose by approximately 30 percent (from 8.3 cases per 1,000 in 2019 to 11.3 cases per 1,000 in 2020). Employees classified as Service Industry employees continued to be the highest contributor to new claims in the benchmarking data. However, the service sector experienced a reduction in claims. The study posits that this could be due to the fact that during the COVID pandemic these workers were classified as essential and subject to worker separations due to quarantines, shutdowns, revenue reductions and social distancing mandates, in addition to a general fear of being out in crowds/public.
COVID-19 also effected the results of the benchmark study. In large part this was due to late CDC guidance on coding, inconsistent condition coding, and irregularly categorized coding. Specific potential COVID-19 related conditions falling into a specific ICD 10 chapter (diagnosis code range Z00-Z99) included ill-defined and unknown cause of mortality, and general symptoms and signs. This chapter had an increase in claim count (2,000) a substantial percentage increase (60%) and accounted for 2% of new claims. The study surmises that this is where many COVID-10 related cases fall.
[1] Joseph Aller, DHA, MBA, CPA, 2020 Benchmarking Trends, Integrated Business Institute, January 2022.
Legal v. Factual Disability: A Case Study
Disability insurance insurers often make the distinction between factual and legal disability when evaluating professional’s disability claims.
Factual disability refers to the inability to practice caused by an injury or illness that prevents an individual from practicing in their occupation. Legal disability refers to circumstances where an individual is not legally permitted to continue to practice. One example of this would be the suspension of a professional license.
Most policies exclude coverage in situations involving the revocation or loss of a license to practice. But what happens if you are both legally and factually disabled—would you still be able to collect on your policy?
One case that examined this very scenario is that of Pogue v. Principal.[1] In his claim for disability benefits with Principal, Dr. Pogue, a physician, indicated that he suffered a nervous breakdown on November 9, 2012 as well as anxiety, and a few other medical issues that prevented him from continuing to practice medicine.
Principal denied Dr. Pogue’s claim, stating that the policy specifically excluded “benefit for any Injury or Sickness which in whole or in part is caused by, contributed to by, or which results from the suspension, revocation, or surrender of [an insured’s] professional or occupational license or certification.” Principal asserted Dr. Pogue was legally, not factually, disabled because the Tennessee Board of Medical Examiners had suspended Dr. Pogue’s medical license in November 2012.
In its denial letter, Principal acknowledged that Dr. Pogue had documented medical concerns prior to his license suspension, but claimed that it was not until he knew there was an ongoing investigation (that went on to result in the suspension of his medical license) that he actually stopped working. Dr. Pogue attempted to argue that his license suspension was a voluntary surrender that he agreed to as part of his treatment plan, instead of a cause or contributing factor to his mental condition. However, the Court ultimately sided with Principal.
This case emphasizes the importance of knowing when you are unable to practice due to a physical or mental disability, and not pushing yourself past the point where it is unsafe to practice. If you feel you might need to file a disability claim, 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 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] Pogue v. Principal Life Ins. Co., No. 3:14-CV-599-CHB, 2021 WL 3354605 (W.D. Ky. Aug. 2, 2021)
Focal Dystonia
What is Focal Dystonia?
Dystonia is a movement disorder in which muscles contract involuntarily, causing repetitive or twisting movements; focal dystonia is where the conditions affects one part of the body only. It may also be referred to as focal hand dystonia, focal task-specific dystonia, or occupational cramp/dystonia.
Typically, focal dystonia occurs during a specific action or activity (i.e. typing, playing an instrument, writing, manipulating a dental instrument) and worsens with stress, fatigue or anxiety. While most of hand dystonia is isolated dystonia, it may occur in conjunction with early onset generalized dystonia (about 16% of primary focal hand dystonia spread proximally or contralaterally or become generalized within 8 years).
While focal dystonia can mimic symptoms of overuse injuries (e.g. carpal tunnel syndrome), it actually occurs as a result of changes to how the nerves communicate with the brain, not injuries to the nerves or hands.
What are the Symptoms of Focal Dystonia?
Symptoms, specifically in the hands, can include:
- Early signs are often mild, occasional and linked to a specific activity (e.g. playing a musical instrument), and may only be noticeable after prolong exertion, stress or fatigue.
- Involuntary muscle contractions, including in the fingers, hand, forearm and sometimes shoulder.
- Fingers that clench or curl
- Hands that freeze or stop moving
- Fingers that shake
- Physical disabilities that affect performance of everyday activities or specific tasks
- Pain and fatigue (due to the constant contraction of muscles)
- Tremor
- Permanent malformations (if muscle spasms lead to the constriction of tendons)
- Depression, anxiety and withdrawal
- Median and ulnar nerve entrapments are common in dystonia patients
What Causes Focal Dystonia?
The exact cause isn’t known but it may involve altered nerve-cell communication in several regions in the brain, including the basal ganglia. While the theory is that neurotransmitters are abnormal in people with dystonia, it doesn’t affect intelligence, ability to think or mental health issues.
It can also be a sign of another disease, including Parkinson’s, traumatic brain injury, stroke, brain tumor or disorders that develop in some individuals with cancer, infections, heavy metal poisoning, or reactions to certain medications.
How is Focal Dystonia Diagnosed?
- Blood, urine or cerebrospinal fluid tests (to reveal signs of toxins or other conditions)
- MRI or CT scan (to look for abnormalities in the brain such as tumors, lesions, or stroke)
- EMG or EEG
- Genetic testing (5-25% of those with focal dystonia have a family history)
What is the Treatment for Focal Dystonia?
Focal dystonia is typically treated by a neurologist who specializes in movement disorders and treatments can include:
- Small changes to the way a task is carried out (e.g. writing with a thicker pen or holding a musical instrument differently)
- Physical and occupational therapy
- Medications
- Surgery (including deep brain stimulation and selective denervation surgery)
Focal dystonia can interfere with an individual’s ability to work or carry out daily tasks. If you have been diagnosed with focal dystonia and are worried that it may be impeding your ability to continue to safely practice on patients, you should speak with an experienced disability insurance attorney.
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.
Sources:
Mayo Clinic
Diego Torres-Russotto, MD & Joel S. Perlmutter, MD, Focal Dystonias of the Hand and Upper Extremity, J Hand Surgy Am. 2008 Nov: 33(9): 1657-1658
Dystonia Medical Research Foundation
Healthline
National Institute of Neurological Disorders and Stroke
Medline Plus (National Library of Medicine)
Cedars-Sinai
Ignoring Treating Providers: A Case Study
We’ve regularly seen insurance companies, in particular Unum, go to great lengths to deny a claim. Tactics can include overemphasizing daily activities, ignoring treating providers, and relying on the opinions of doctors who have not examined the insured.
One example is the case of Chicco v. Unum[1]. Ms. Michelle Chicco worked as a tax accountant until debilitating back pain, as well as fatigue and weakness in her limbs, caused her to be unable to continue at her job. She filed a claim with Unum for long-term disability benefits, which was initially approved. Chicco received benefits for several months and then tried to return to work part-time; however, her symptoms began to worsen as she ramped up to full-time work. Unum reviewed her claim and determined that she was no longer considered disabled and could return to work full time. Chicco appealed this decision and, when Unum upheld the denial, she filed a lawsuit.
As part of their review, Unum obtained the opinion of several doctors who reviewed Chicco’s medical records but did not examine her directly. Despite her own treating provider’s diagnosis of radiculopathy and fibromyalgia, one of Unum’s experts surmised that her minimal improvement after spinal injections was not consistent with radiculopathy and suggested that the pain was myofascial (and that this myofascial pain should not have prevented Chicco from working).
In response to this report, Chicco submitted an updated letter from her treating provider and an examination performed by a neurologist—who confirmed that her physical examinations were consistent with her reports of pain and fatigue, as well as diagnoses of fibromyalgia and radiculopathy. Despite this, Unum’s reviewing doctor upheld his original conclusion.
Here, Unum’s disregard for the medical records and opinions for physicians who had actually examined Chicco did not go unnoticed. The Court found for Chicco, indicating that she has submitted both subjective and objective medical evidence of her condition, and inability to work. The Court also found it “significant” that none of Unum’s physicians personally examined Chicco, whereas every physician who had examined her had found her unable to perform her job duties.
In addition to these paper only reviews, Unum also argued that if Chicco’s pain was as severe as she claimed it was, she would have received more serious treatment and would not have been as active at home. The Court dismissed this argument, explaining that Chicco, before she stopped working, was on an “escalating treatment regimen” including medication, physical therapy, and multiple spinal injections (and was later referred to a spine surgeon for a surgery consultation). The Court also noted that Chicco reported that she was only able to engage briefly in light housekeeping and self-care tasks—which the Court found were consistent with the severity of her condition.
Too often we’ve seen Unum, and other disability insurance companies, ignore meaningful evidence submitted by claimants (including supporting evidence by treating physicians). If you feel that your insurer may be engaging in these types of tactics, 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] Chicco v. First Unum Life Ins. Co., 20cv10593 (DLC), 2022 WL 621985 (S.D. N.Y. March 3, 2022)
