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Win Against Aetna

On Behalf of | Oct 15, 2014 | Firm News

Ross Mossler was a bank executive who became disabled by the effects of fibromyalgia, myofascial pain syndrome, spinal stenosis, degenerative disc disease, and other conditions. Mossler applied for benefits from Aetna, which denied them. Mossler then appealed and the appeal was denied. Mossler finally filed suit.

The trial judge found that Mossler established that he was totally disabled and entitled to benefits. The judge explained that Mossler’s diagnosis of fibromyalgia was well documented and based on criteria created by the American College of Rheumatology. The judge found that Aetna improperly discounted Mossler’s subjective reports of pain, explaining that an insurance company cannot demand objective evidence of fibromyalgia in the absence of any evidence which even raises a question as to the claimant’s credibility.

When evaluating whether Mossler could perform his own occupation, the judge explained that Aetna and its reviewing physicians erroneously reasoned that since Mossler’s own occupation was a physically sedentary job and in their opinion Mossler could do duties consistent with a sedentary job, he therefore could perform the material and substantial acts of his own occupation. But the judge explained that nowhere in the policy did it provide that Mossler’s own occupation would be determined solely by the occupation’s physical demand level nor does the policy mention the word “sedentary.” Being able to perform sedentary work is not the same as being able to perform one’s own occupation. The judge also found that Mossler could not perform the material and substantial acts of his own occupation because he experienced fatigue and pain regularly, sometimes so much that he barely got out of bed. Therefore he cannot work eight hours per day and five days per week or the hours necessary to successfully perform his own occupation. Additionally, Mossler had difficulty concentrating and remembering details.

The judge discounted the opinions of Aetna’s reviewing doctors, Dr. Milt Gavlick, Dr. Robert Swotinsky and Dr. Lawrence Burnstein, citing various factual inconsistencies in their analyses. The judge disagreed with Aetna’s argument that because Mossler was able to exercise despite his subjective complaints of pain he was not disabled, reasoning that Mossler exercised because his doctors advised him to do so, hoping that regular exercise would improve his condition and allow him to return to work. The judge recognized that such activities, in addition to Mossler’s his actions to lose weight, demonstrated that Mossler was motivated to return to work, which the judge found “is laudable and weighs against any kind of finding of malingering based on plaintiff’s efforts to exercise.”

The decision is reported at 2014 U.S. District Lexis 89046.