“Lyttle v. United of Omaha Life Insurance Company”Read More
“Lyttle v. United of Omaha Life Insurance Company”
USDC Eastern District of California, Case No.: 17-cv-01361-WHO
In the case of Lyttle v. United of Omaha Life Insurance Company USDC Eastern District of California, Case No.: 17-cv-01361-WHO Matthew Lyttle was a working chemist – a physically demanding and intellectually challenging position (he was required and had a Ph.D. in chemistry).
Even after a diagnosis of terminal cancer, he kept working, despite painful blisters on his hands and feet from medication and narcotic medication for pain, but he took a great deal of time off, finally applying for long term disability benefits from United of Omaha Life Insurance Company and then for Social Security Disability benefits.
Lyttle’s oncologist supported that Lyttle was totally disabled; Lyttle’s employer explained to United of Omaha that Lyttle’s disability could not be accommodated and his position would not be held open. Nonetheless, United of Omaha denied Lyttle’s claim for long term disability benefits. Lyttle submitted an appeal – his own and his oncologist’s letters – explaining why he could no longer work.
While the appeal was under consideration, the Social Security Administration granted Lyttle Social Security Disability benefits – but Lyttle didn’t tell United of Omaha. As part of the appeal, United of Omaha required that Lyttle be examined and tested by a neuropsychologist, who reported that Lyttle had a clinically significant degree of psychomotor slowing, that some areas of his short term memory were “extremely poor” and that his manual dexterity in his dominant hand was “awkward and slow.”
The neuropsychologist concluded that likely due to medication side effects Lyttle was limited in his ability to function effectively in a very demanding, high-level cognitive work that involves analysis, generation of solutions to complex problems, and processing complex information.
Despite the neuropsychologist’s report, United of Omaha denied Lyttle’s appeal and refused to pay long term disability benefits. Matthew Lyttle’s appeal of the denial of his claim for long term disability benefits was denied by United of Omaha about a year after he stopped working. He hired me a couple of months later, we filed suit, and then a little more than six months later, Matthew Lyttle died of the cancer which had disabled him.
That did not end the suit; his widow prosecuted it on behalf of his estate and United of Omaha continued to deny that it was obligated to pay long term disability benefits. The judge ruled in favor of Lyttle – but it was a hard fought case. Matthew Lyttle did not submit all the medical records available or his SSDI award – perhaps because he thought they were not necessary or that United of Omaha would get them.
United of Omaha obtained only very recent, limited records from Lyttle’s oncologist, which records generally had only brief descriptions of Lyttle’s condition – in part because electronic medical records are not very descriptive and in part likely because after years of treatment, the doctor was only noting limited information.
ERISA “trials” are “paper trials” generally, but not invariably, are limited to the materials presented to the insurer. So, the “administrative record” – the information United of Omaha had – was not comprehensive.
We dealt with that problem by arguing that Lyttle was entitled to long term disability benefits on the record available, but if not, then the judge should consider additional evidence, not available to United of Omaha (including the SSDI award), under the narrow criteria for considering such additional evidence.
The judged ruled in Lyttle’s favor without the additional evidence, but noted that the additional evidence, if considered, supported his decision. The key issues for the decision demonstrate how United of Omaha did not (and commonly does not) follow policy requirements and how it used what I call “seemingly plausible double-talk” to deny Lyttle’s claim for long term disability benefits and fight his lawsuit.
The policy which insured Matthew Lyttle provides that he was totally disabled and entitled to long term disability benefits if he could not perform the material and substantial acts of his usual occupation with reasonable continuity. During the claim process United of Omaha never investigated whether Lyttle could do so.
Instead, United of Omaha generally asked whether the medical records documented change in Lyttle’s condition from when he was working to when he stopped working and argued in the lawsuit that absent such a change in Lyttle’s conditions, Lyttle was not entitled to long term disability benefits. That sounds like a reasonable argument, but it wasn’t.
United of Omaha only got records for the three months before Lyttle stopped working and about three or four months more after he stopped working. Not much had changed. But, in the three months before Lyttle stopped working, he was away from work about half the time, using vacation and sick leave
In his last year, Lyttle was absent from work 17% of the time. The judge explained that the evidence demonstrated that for Lyttle continuing to work was increasingly more difficult, causing more pain and increased use of narcotic medications, and significant missed work.
“Barnett v. Southern California Edison Company Long Term Disability Plan”Read More
“Barnett v. Southern California Edison Company Long Term Disability Plan”
2016 U. S. Dist. LEXIS 86828 (E.D. Cal. July 5, 2016)
2015 U.S. App. LEXIS 21179 (9th Cir. Dec. 7, 2015)
2013 U.S. Dist. LEXIS 169820 (E.D. Cal. Dec. 2, 2013)
2013 U.S. Dist. LEXIS 121279 (E.D. Cal. Aug. 26, 2013)
2013 U.S. Dist. LEXIS 71345 (E.D. Cal. May 20, 2013)
Mr. Barnett’s long term disability benefits from Southern California Edison were terminated in 2009. He appealed the termination. In 2010 his appeal was denied. Mr. Barnett then hired us and we filed suit on his behalf. In 2013, the judge ruled against Mr. Barnett. We appealed to the Ninth Circuit Court of Appeals. In 2015, the Court of Appeals reversed the district court decision but did not award benefits. Instead, it remanded the case back to the same district court judge to reconsider Mr. Barnett’s claim based upon a very narrow issue. This time, in 2016, the same judge granted Mr. Barnett all of his beneifts and awarded us attorneys fees.
We are not afraid to fight and keep fighting until there is nothing else to fight for.
“Dunda v. Aetna Life Insurance Company”Read More
“Dunda v. Aetna Life Insurance Company”
2016 U.S. District Lexis 85549 (W.D. N.Y. June 30, 2016)
Ms. Dunda was the general manager of a retail store when she became disabled by chronic back pain. Aetna, the Long Term Disability (“LTD”) insurer for Ms. Dunda’s employer, paid 24 months of “own occupation” benefits and more than four years of “any occupation” benefits, but then terminated Ms. Dunda’s benefits and denied her appeal. Ms. Dunda then hired us.
We filed suit and the District Court agreed with our arguments and ordered that Ms. Dunda’s benefits be retroactively reinstated. The District Court found that Aetna failed to provide Ms. Dunda with a full and fair review of her claim by requiring an “objective support for her medical conditions” even though the policy did not require such proof and the law recognizes that objective complaints alone may constitute sufficient evidence of disability. The Court explained that Aetna granted and paid Ms. Dunda’s LTD benefits under the more stringent, “any occupation” disability standards for over four years, based on essentially the same medical evidence that it discredited as “not objective” and therefore insufficient to support a finding of disability. Second, the Court found that Aetna abused its discretion by failing to consider Ms. Dunda’s SSDI award and by failing to have its medical consultant consider it. Third, although recognizing that an in-person medical examination (Independent Medical Examination or “IME”) is not required, the court held that it was an abuse of discretion not send Ms.Dunda for an IME because Aetna’s internal claims reviewer and its medical consultant based their rejection of Ms. Dunda’s claim solely on the absence of objective findings to corroborate her complaints of intractable pain and thus it was apparent that in Aetna’s opinion, Ms. Dunda’s claim for LTD benefits stood or failed on the credibility of those subjective complaints. Since the policy allowed Aetna to do an IME, its decision not to do one supports the finding that its determination was arbitrary and capricious.
“Green v. Sun Life Assurance Company”Read More
“Green v. Sun Life Assurance Company”
2016 U. S. Dist. LEXIS 28419 (N. D. Ill., March 7, 2016)
Ms. Green was formerly employed by Daiichi Sankyo, Inc., as a pharmaceutical representative. She was being treated for occipital neuralgia and neck pain, as well as depression and anxiety. Ms. Green filed a claim with Daiichi Sankyo’s long-term disability plan, which was funded and administered by Sun Life. Sun Life denied Ms. Green’s claim for long-term disability benefits. Ms. Green appealed the denial. While the appeal was pending, the Social Security Administration issued its determination that Ms. Green was disabled under the SSA’s rules. Without regard to the SSA claim file and without contacting Ms. Green’s then attorney to obtain the SSA determination, Sun Life denied Ms. Green’s appeal, reasoning that she had not been disabled throughout the entire elimination period because, according to Sun Life and its reviewing physicians, Ms. Green had no restrictions from March 3 through April 2, 2012. Ms. Green then hired us to file a lawsuit.
The Court found that there was an absence of evidence in the record to support Sun Life’s conclusion on appeal that Ms. Green had no restrictions from March 3 through April 2, 2012. Sun Life conceded that a pharmaceutical sales representative’s primary duty was to meet with physicians in order to promote pharmaceutical products and persuade them to increase prescriptions of promoted products. The Court explained that it was difficult to see how Ms. Green could have performed those duties given her physician’s assessment of her psychological impairments. The Court reasoned that Sun Life concluded that Ms. Green had no restrictions from March 3 through April 2, 2012, without the benefit of reviewing the SSA claim file or the SSA ALJ’s determination. The Court explained that Sun Life failed to explain why it decided the appeal without the SSA claim file or the SSA determination. Under the SSA’s own rules, no benefits would have been awarded to Ms. Green unless she could perform no job in the national economy, considering her age, education, and work experience. In addition, under the SSA’s rules, the impairment must have lasted or will last for a year or more. The Court explained that Sun Life’s failure to explain its reasons for disagreeing with the ALJ’s determination rendered its denial arbitrary and capricious, particularly given the structural conflict of interest at play.
The Court further explained that the record required further development on all fronts. A remand would enable Sun Life to determine whether the combined effects of Ms. Green’s physical and psychological impairments, as well as the medications used to treat them, caused her to be totally disabled during the time period in question. After reviewing the SSA claim file and the ALJ’s rationale, Sun Life might have determined that the SSA got it right. If Sun Life disagreed with the SSA ALJ’s rationale and the underlying bases, Sun Life would need to explain why it reached a different conclusion.
After the remand, the case settled.
“Boxell v. Plan for Group Ins. of Verizon Communications”Read More
“Boxell v. Plan for Group Ins. of Verizon Communications”
51 F. Supp. 3d 759 (N. D. Ind., 2014)
Ms. Boxell was employed by Verizon Communications, Inc., as a network engineer. When she first began experiencing pain in her lower back and legs, testing suggested that she may have Paget’s Disease, a disorder characterized by abnormal bone growth that can cause bones to become fragile or misshapen. Over time, her condition continued to worsen and interfered with her ability to work, so ultimately, Ms. Boxell sought disability benefits. MetLife, the administrator for the plan, approved short-term disability benefits and then long-term disability benefits for Ms. Boxell, but then terminated the LTD benefits after 12 months, claiming that her diagnoses of low back pain and fibromyalgia were subject to a 12-month limitation of benefits for neuromusculoskeletal/soft tissue disorders. Around that time, in a phone call to Ms. Boxell, a claims representative told her, “we are not questioning disability. The plan has a limited benefit condition clause.”
Ms. Boxell hired us. We submitted a detailed and comprehensive appeal, which was denied. We then filed suit. The district court held that MetLife’s decision was arbitrary and capricious and ordered a remand to MetLife, explaining:
1. The Plan’s decision was arbitrary and capricious, reasoning that the Plan relied on flawed reasoning in finding that Ms. Boxell’s fibromyalgia was not disabling and in discounting the Social Security Administration’s conclusion that Ms. Boxell was disabled and that it upheld its denial of her benefits based on different reasons than it initially denied them. It also failed to adequately acknowledge and justify its departure from its previous findings.
2. The reasons the Plan offered for concluding that Ms. Boxell’s fibromyalgia was not disabling did not support its conclusion.
3. To the extent the Plan argued that there was no objective evidence of Ms. Boxell’s physical limitations was factually unsupported.
4. To the extent the Plan seeks to discredit or distinguish objective evidence of Ms. Boxell’s physical limitations, this argument falls short because the Plan failed to articulate those bases at the administrative level.
5. To the extent the Plan sought to justify its conclusion that fibromyalgia was not disabling by arguing that Ms. Boxell’s own doctor excluded it as a disabling diagnoses, “This statement is false, and misstates the record.”
6. The Plan did not offer any satisfactory explanation for discounting the Social Security Administration’s findings that Ms. Boxell was disabled, reasoning that the Plan’s stated reasons in litigation were either factually incorrect or distinguishable and therefore “its failure to offer any plausible reason for discounting the SSA findings is an indication that the Plan’s decision was arbitrary and capricious.”
7. There are also a number of ways in which the Plan’s reasoning was not only inconsistent over time but also self-contradictory. These contradictions not only suggest arbitrary and capricious decision making, but they also denied Ms. Boxell a full and fair review of her claim by misrepresenting the issues on which she would need to provide additional evidence. These included:
A. Denying Ms. Boxell’s appeal for different reasons than it initially terminated her benefits which “not only exemplifies the definition of capricious, it implicates Ms. Boxell’s right to a full and fair review of her claim. . .” Since the Plan told Ms. Boxell in its’ September 16, 2011, letter that it already found she was disabled due to fibromyalgia, she had no reason to submit additional evidence on that issue. “In this regards, the Plan did not just ‘move the target’ it hid the target, giving Ms. Boxell no way to know she needed to contest the Plan’s finding on this issue.”
B. The Plan’s attempt to downplay this discrepancy by claiming that its initial statement that Ms. Boxell was disabled due to the fibromyalgia “was only a scrivener’s error and should be disregarded, but the drafting history of the letter belies these assertions.”
C. “Furthermore, the Plan’s ultimate finding that Ms. Boxell was not disabled not only contradicted its initial denial letter, it was inconsistent with its entire course of handling Ms. Boxell’s claim.”
D. “The Plan also appears to have changed its mind as to whether fibromyalgia was subject to the 12-month limitation of benefits.” The Court explained that an entry in the claims log on May 1, 2012, indicated that the limited disability benefit provision did not apply “But despite the apparent change in its interpretation of this provision, the Plan never expressly acknowledged to Ms. Boxell that it had changed its mind, nor did it ever provide reasons for having done so.”
The Court, therefore, remanded the case to MetLife to reconsider its decision.
“Boxell v. Plan for Group Ins. of Verizon Communications”Read More
“Boxell v. Plan for Group Ins. of Verizon Communications”
2015 U. S. LEXIS 94332 (N. D. Ind., July 21, 2015)
This is the follow-up decision of the Boxell decision discussed above. After Ms. Boxell’s claim was remanded to MetLife, we submitted additional evidence and Ms. Boxell’s benefits were retroactively reinstated. We also filed a motion for attorneys fees. In our experience, claims for attorney’s fees following decisions in ERISA lawsuits are usually resolved by negotiations between the parties. But for Ms. Boxell’s claim, the plan and its attorneys argued that Ms. Boxell was not entitled to an award of fees, but that it was. Since the plan had a counterclaim against Ms. Boxell for an overpayment reimbursement based on Ms. Boxell’s award of Social Security Disability benefits, the plan also sought fees. Therefore, the parties filed motions, submitted evidence, and argued their respective positions. After analyzing the issues the district court awarded Ms. Boxell $90,285.49 in fees and costs and awarded the plan $2,796.75 in fees and costs.
“Mossler v. Aetna Life Insurance Company”Read More
“Mossler v. Aetna Life Insurance Company”
2014 U. S. LEXIS 89046 (C. D. Cal., June 30, 2014)
Mr. Mossler was formerly employed by City National Bank as a senior vice-
president/leader of the entertainment group. Mr. Mossler became disabled by fibromyalgia, myofascial pain syndrome, degenerative disease and spinal stenosis and explained that he suffered pain throughout his body which limited his functioning including his ability to sit, stand and walk. Mr. Mossler explained that his condition had slowly worsened over five years. While his application for long term disability benefits was pending, Mr. Mossler applied for and was awarded Social Security Disability benefits. Nonetheless, Mr. Mossler’s claim for LTD benefits was denied.
Mr. Mossler hired us. We submitted a comprehensive appeal, which was denied. We then filed suit.
The district court found in favor of Mr. Mossler and ordered Aetna to pay his LTD benefits. The district court explained that while physicians hired by Aetna provided conflicting evidence regarding Mr. Mossler’s diagnoses, the Court found Mr. Mossler’s treating physicians to be more credible because they have the opportunity to see and examine Mr. Mossler. The district court recognized that Mr. Mossler’s primary and most controversial diagnosis is fibromyalgia. The Court explained that Mr. Mossler’s diagnosis was well documented and was based on criteria created by the American College of Rheumatology. The Court rejected Aetna’s arguments that Mr. Mossler’s claim should be denied because, in part, he provided no objective evidence that fibromyalgia was totally disabling. The Court explained that in making that finding Aetna discounted Mr. Mossler’s subjective reports of pain and held that an insurance company cannot demand objective evidence of fibromyalgia in the absence of any evidence to even raise a question as to plaintiff’s credibility.
The Court also explained that in analyzing whether Mr. Mossler could perform his own occupation, Aetna and its reviewing physicians reasoned that Mr. Mossler’s own occupation was sedentary and that since, in their position, Mr. Mossler could sit and do other physical activities consistent with a sedentary job, he therefore could perform the material and substantial acts of his own occupation. The Court rejected Aetna’s view on this, explaining nowhere does the policy mention the word sedentary, reasoning to simply categorize Mr. Mossler’s own occupation as sedentary and engage in the narrow analysis of whether he could perform sedentary work was incorrect. The proper question was whether Mr. Mossler could perform the material and substantial acts of his own occupation. Mr. Mossler explained that he experienced fatigue and pain regularly, sometimes so much that he was unable to get out of bed and was also unable to work eight hours a day, five days a week, much less the extended hours necessary to successfully perform his own occupation in which he often had to work as much as 14 hours in a day. Mr. Mossler also explained that he had difficulty concentrating and remembering details and that his symptoms were aggravated by stress and that his job was extremely high stress. The Court concluded that even assuming Mr. Mossler could perform sedentary work he had many other intellectual responsibilities that require both financial expertise as well as a high level of interpersonal skills and thus could not perform his own occupation.
Aetna argued that despite Mr. Mossler’s subjective complaints of pain, his ability to exercise was well documented in the record. Aetna thus appeared to argue that Mr. Mossler was malingering because he was capable at different times of jogging or going to the gym. Mr. Mossler responded that he tried to move around as much as possible but it was painful and that he was encouraged to exercise as much as possible by his doctors. The Court explained that Mr. Mossler “appears motivated to return to work, which is consistent with his effort to exercise and lose weight. [Mr. Mossler’s] motivation to return to work is laudable and weighs against any finding of malingering based on [Mr. Mossler’s] efforts to exercise.
Finally, the Court reasoned that its analysis was supported by the Social Security Administration’s disability finding for Mr. Mossler.
“Wong v. Aetna Life Insurance Company”Read More
“Wong v. Aetna Life Insurance Company”
51 F. Supp. 3d 951 (S.D. Cal. 2014)
Ms. Wong was a regional facility manager at the Hobart West Group, which was insured by Aetna. After she gave birth to a child she began suffering from back leg and groin pain; her doctor placed her on disability referencing marked pain and stating she had no ability to work. Aetna granted LTD benefits and paid those benefits for nearly five years. Aetna then terminated those benefits and denied Ms. Wong’s appeal. Thereafter the Social Security Administration retroactively awarded Ms. Wong Social Security Disability benefits.
At that point Ms. Wong hired us and we filed suit. The district court held that Aetna abused its discretion by terminating Ms. Wong’s benefits, reasoning:
1. Aetna’s reliance on an FCE in its termination of benefits was unreasonable because the physical therapist inappropriately claimed that Ms. Wong was fabricating or exaggerating the extent of her pain and because Aetna itself recognized in one document that Ms. Wong was not doing so. The Court concluded that it was unreasonable for Aetna to rely so heavily upon the FCE as evidence of symptom magnification when its own records indicated otherwise.
2. Aetna unreasonably based its decision on an anonymous and potentially unqualified physician’s corroboration of the physical therapist’s conclusions.
3. Aetna’s decision improperly misconstrued the opinions and behavior of Ms. Wong’s treating physician. Aetna asked Ms. Wong’s treating physician to comment on the FCE report but did not give him a deadline for doing so or offer to pay him for his time. The Court explained that “it is left with a distinct impression that this approach was calculated to encourage no reply or an affirmative reply. The letter outlines a time-consuming procedure for Dr. Nelson to perform if he does not agree with Aetna’s version of events.”
4. Aetna improperly denied Ms. Wong notice of her physician’s claimed unexplained change of prognosis which Aetna claimed it obtained over the phone immediately before the denial and only reported to Ms. Wong through the final denial and only second hand through the report of the reviewing doctor.
5. Aetna improperly used evidence that four years prior to the termination of her benefits Ms. Wong could walk and had good x-ray results as new reasons for the denial, which reasons it had not given Ms. Wong previous notice.
6. Aetna improperly used the opinion of an orthopedic surgeon who chiefly based his opinion on surveillance video of Wong of which she had never been made aware.
7. Aetna improperly shifted the reason for its denial away from a suggestion that Ms. Wong was fabricating her pain and toward a requirement for objective evidence that overlooked her symptomatic complaint as reported by her treating physician.
The Court ordered retroactive reinstatement of Ms. Wong’s benefits.
“Smith v. Hartford Life & Accident”Read More
“Smith v. Hartford Life & Accident”
2013 U. S. Dist. LEXIS 13868 (N.D. Cal., January 30, 2013)
In Smith v. Hartford Life & Accident, we successfully represented Ms. Smith in a claim for life insurance waiver of premium benefits. Ms. Smith was a bank executive who became disabled by co-morbid conditions as a result of several surgeries on her hands and depression because she could no longer work. Initially, Hartford approved disability benefits and life insurance waiver of premium (“WOP”) benefits, but then it terminated both LTD and WOP benefits. After the termination of benefits by Hartford, Smith was awarded Social Security Disability benefits.
We appealed both denials simultaneously. The issue for the LTD appeal was whether Ms. Smith could perform her “own occupation;” the issue for the WOP appeal was whether she could perform “any occupation.” Hartford granted the LTD appeal but denied the WOP appeal. We then successfully sued to reinstate Ms. Smith’s waiver of premium benefit.
The Court ruled that Hartford abused its discretion by terminating Ms. Smith’s WOP benefit and by failing to grant her appeal of that termination, reasoning that Hartford had a conflict of interest, that Hartford failed to personally examine Ms. Smith, a failure particularly significant because part of her claim was psychological in nature. The Court also held that Hartford either did not provide its reviewing doctors with all the relevant evidence or its doctors failed to consider all of it, explaining that in the course of Ms. Smith’s worker’s compensation claim she was examined by a doctor yet that doctor’s report was not commented upon by Hartford’s doctors and that Hartford’s doctors also did not comment on the findings of the Social Security judge or the vocational evaluation Ms. Smith submitted as part of her appeal. The Court also reasoned that Hartford failed to address in a meaningful way Ms. Smith’s award of Social Security Disability benefits.
“Deborah Maher v. Massachusetts General Hospital Long Term Disability Plan”Read More
“Deborah Maher v. Massachusetts General Hospital Long Term Disability Plan”
665 F.3d 289 (1st Cir. 2011)
We represented Deborah Maher in her long term disability claim against her employer, Massachusetts General Hospital. Ms. Maher worked as a Registered Nurse. She developed chronic abdominal pain and related symptoms which her physicians attributed to chronic pancreatitis, chronic pain syndrome, and fibromyalgia. She was prescribed large amounts of narcotic pain medications to control the pain. After receiving long-term disability benefits for several years the plan administrator, Liberty Life Insurance Company of Boston, terminated her benefits. After Ms. Maher’s first appeal was denied by Liberty, she hired us to submit a second appeal on her behalf.
We filed the second appeal, which was also denied. We then filed suit in federal district court. We lost at trial.
We then appealed to the First Circuit Court of Appeals. The First Circuit ruled in Ms. Maher’s favor, remanded the case back to the district court with instructions that it reconsidered its decision on remand the case settled.
One of the key issues discussed by the Court in Ms. Maher’s case was the Liberty’s and its doctors’ mischaracterization of surveillance of Ms. Maher.
Liberty caused Ms. Maher to be routinely secretly surveilled. At every stage of Ms. Maher’s claim, Liberty and its reviewing doctors emphasized a claimed inconsistency between Ms. Maher’s self-reported limitations and her conduct as depicted in the surveillance. But the First Circuit explained, Ait is not apparent to us that any such inconsistency exists. Ms. Maher reported that her activities varied based on the extent of her pain, nausea, and opportunity to pre-medicate for activities, but she generally spent most of her days in bed. The Court explained that in over 90 hours of surveillance, The most damning evidence the Plan identified was 15 minutes in which Ms. Maher carried a bucket or flowerpot and 30 minutes she played with her three-year-old son in the park. On 10 of the 19 days of the surveillance videos available, Ms. Maher engaged no activities. On other days, she would sit or stand outside of her house with her husband for about 20 minutes. The Court reasoned that most of the surveillance far from contradicted Maher’s disability and seemed to confirm her lifestyle is generally housebound with occasional limited activities. The Court distinguished these facts from other cases in which the video showed activities that specifically contradicted claims made by the claimant on how she spent her time and what actions she could tolerate.
The second important factor relied upon by the plan was Ms. Maher failed to provide supporting evidence of disability from her pain clinics. But the Court noted that in her appeal, Ms. Maher explained her attempts to obtain documentation from those clinics and offer releases to allow Liberty access to the information. She also offered to be examined by the doctor of Liberty’s choosing. Since two of the three pain clinics were MGH affiliated, the information should have been available.
A partially dissenting judge argued that the Court should not merely remand the case to the district court for reconsideration, but that it remand the case with an order that it enter judgment in favor of Ms. Maher. That judge reasoned that the records of Ms. Maher’s chronic pain, nausea, vomiting and food intolerance was persuasive evidence that she was disabled from performing the duties of the jobs identified by the Plan and therefore Ms. Maher was entitled to her benefits.
“Aileen Murphy v. Deloitte & Touchee Group Insurance Plan”Read More
“Aileen Murphy v. Deloitte & Touchee Group Insurance Plan”
Metropolitan Life Insurance Company
619 F.3d 1151(11th Cir. 2010)
We represented Aileen Murphy in her long term disability claim against MetLife. Ms. Murphy worked as a Tax Firm Director for Deloitte & Touche, a position which required travel, significant interaction and coordination with others, negotiations with the IRS, and advising clients in complex matters. She became disabled by co-morbid psychiatric and pain conditions as result of a severe back problem. The combination of her conditions together with her medications caused fatigue, balance and vision problems, memory and cognitive problems, as well as chronic pain. Her claim for long-term disability benefits was denied. She did her own appeal, which was also denied. We filed suit on her behalf in the district court and asked to conduct discovery regarding MetLife relationships with the doctors who provided reports for MetLife’s in Ms. Murphy’s case.
The district court denied the discovery and then ruled against Ms. Murphy.
We appealed. On appeal Tenth Circuit Court of Appeals held that the district court incorrectly refused to allow discovery regarding MetLife’s conflict of interest and ordered that we be allowed to be conduct discovery, appropriately circumscribed, to allow us to present evidence on the seriousness of MetLife’s conflict of interest and the likelihood it MetLife’s decision making process in Ms. Murphy’s case.
On remand from the Tenth Circuit, the case settled.
Insurance companies which both administer a plan and pay claims have an inherent conflict of interest. They are supposed to be the fiduciaries acting in the best interests of the claimants but, in fact, they often protect their own bottom line. It is important that claimants have the opportunity to conduct discovery to explore the nature, extent, and implications of this built-in conflict of interest.
“Melissa Gardner v. Ameritech Sickness and Accident Disability Plan”Read More
“Melissa Gardner v. Ameritech Sickness and Accident Disability Plan”
2009 U.S. Dist. LEXIS 96065 (C.D. ILL., September 30, 2009)
Melissa Garner was an employee of an AT&T subsidiary, working as a Marketing Support Specialist. Her job consisted primarily of communicating with customers via telephone and coordinating the provision of various user- related services. She began experiencing aching-type back pain, sought medical treatment, and was diagnosed with degenerative disc disease at L3-L4, L4-L5, L5-S1 and central and annual tears at L3-L4, L5-S1 discs. Ultimately, her doctors recommend surgery, but her medical insurance carrier would not approve it, claiming that the surgery was experimental. In the meantime, Ms. Gardner’s claim for disability benefits was denied by AT&T’s third party administrator, Sedgwick Claims Management Services.
We appealed the denials of Ms. Gardner’s short term and long term disability claims. Sedgwick CMS denied both appeals. We then filed suit.
The only issue litigated in the lawsuit (which ultimately settled) was the standard review. In ERISA litigation, there are two possible standards of review: de novo or abuse of discretion. When review is for abuse of discretion, the court defers to the plan’s decision as long as it is reasonable. When review is for abuse of discretion, it is common for courts to sustain the plan’s or the insurance ‘company’s denial of benefits, whether it is right or wrong, if it is reasonably based on substantial evidence. When review is de novo, the court gives credit to the plans or insurance company’s decision, but instead evaluates the claim on its own, and decides whether or not the claimant is entitled to benefits.
Although the de novo reviewed does not guarantee that the claimant will prevail and abuse of discretion review does not guarantee that the insurance company or the plan will prevail, it is certainly easier for the claimant to prevail if review is de novo.
In Ms. Gardner’s case, the defendant, AT&T’s plan granted discretion to a internal benefits committee. The Plan claimed the benefits committee delegated discretion to Sedgwick CMS. We argued that since the delegation was not properly documented, review should bede novo; the Court agreed. Since the Court agreed that the review was de novo, the Court also authorized us to take depositions of the four doctors who evaluated Ms. Gardner’s records. Once we took those depositions we demonstrated that the doctors’ opinions were not well founded or consistent with established medical standards. The case ended in a settlement.
“Cleveland v. Liberty Life Assurance Company of Boston”Read More
“Cleveland v. Liberty Life Assurance Company of Boston”
2009 WL 649893 (E. D. Mich., March 10, 2009)
Mr. Cleveland was employed for 13 years by Compuware as a computer programmer/analyst. He became disabled from chronic severe heart conditions including congestive heart failure, cardiomyopathy, atrial fibrilation, ventricular tachycardia, other related conditions, and consequential pain and fatigue. He applied for and received short-term disability benefits and nine months of long term disability benefits from Liberty. He also applied for and received Social Security Disability benefits. After paying LTD benefits for nine months Liberty terminated Mr. Cleveland’s benefits; Mr. Cleveland appealed; the appeal was denied, and Mr. Cleveland then hired us to file suit on his behalf.
The district court held that Liberty’s decision terminating Mr. Cleveland’s LTD benefits was arbitrary and capricious. The district court reasoned:
1. Liberty relied upon biased paper review doctors.
2. Liberty failed to conduct an in-person examination of Mr. Cleveland.
3. Liberty’s paper review doctors selectively relied on and analyzed the evidence and ignored overwhelming evidence of disability.
4. Liberty and its review doctors did not explain how someone in Mr. Cleveland’s condition could be expected to function on a daily basis in a working environment.
5. Liberty’s reviewing doctors did not explain why they disagreed with Mr. Cleveland’s doctor’s conclusions.
6. Liberty failed to offer any reasons for rejecting Mr. Cleveland’s doctors’ conclusions that Mr. Cleveland could not work.
7. Liberty and its reviewing doctors disregarded the medications Mr. Cleveland was taking.
8. Liberty did not ask Mr. Cleveland to participate in an IME or functional capacity evaluation.
9. Liberty failed to address the Social Security Administration’s decision awarding Mr. Cleveland SSDI benefits.
10. Liberty and its reviewing doctors disregarded Mr. Cleveland’s complaints of fatigue and pain.
11. Liberty and its reviewing doctors failed to consider how the stress of returning to work could adversely affect Mr. Cleveland given his cardiac condition.
12. Liberty asked its reviewing doctors to evaluate if Mr. Cleveland could perform sedentary work, not his own occupation, and thus asked the wrong question and did not connect the medical data to the issue presented: whether Mr. Cleveland could work at his own occupation.
The Court ordered Liberty to retroactively reinstate Mr. Cleveland’s benefits. We asked the Court to also award attorney’s fees; Liberty appealed the judgment. The parties then agreed on a settlement.
“Aileen Murphy v. Deloitte & Touchee Group Insurance Plan”Read More
“Kathleen Bernardo v. American Airlines Inc. Long Term Disability Plan,”
297 Fed. Appx. 342 (5th Cir. 2008)
Kathleen Bernardo was employed by American Airlines as manager of Airport services. She was diagnosed with aplastic amenia and was treated with cyclosporin. She applied for long term disability benefits from the plan, which was administered by MetLife. The plan paid benefits for about one year and a half and then terminated benefits. Ms. Bernardo filed two administrative appeals herself. The appeals were denied. At that point, she hired us to represent her in litigation.
We filed suit in district court. The trial court ruled against Ms. Bernardo and in favor of the defendant. We appealed to the Fifth Circuit Court of Appeals.
The Fifth Circuit agreed with our argument that the conclusions of the reviewing doctors hired by MetLife to evaluate Ms. Bernardo=s medical records did not reflect rational connections between the known facts and the decision to deny benefits. Therefore, the Fifth Circuit held that the record demonstrated that the Plan abused its discretion in terminating Ms. Bernardo’s long-term disability benefits. The Fifth Circuit reversed the prior decision and remanded the case back to the district court with instructions to enter judgement in favor of Ms. Bernardo.
“Beckstrand v. Electronic Arts Group Long Term Disability Insurance Plan”Read More
“Beckstrand v. Electronic Arts Group Long Term Disability Insurance Plan”
2008 U. S. Dist. LEXIS 831950 (E. D. Cal. September 16, 2008)
Mr. Beckstrand formerly worked for Electronic Arts. He became disabled in 1998, submitted a claim for LTD benefits under Electronic Arts’ insured plan, and was paid benefits into 2004, although his benefits were terminated and reinstated on and off throughout that time period. After his benefits were terminated in 2004 Mr. Beckstrand appealed and the appeal was denied. He then hired us to represent him in a lawsuit.
In its first ruling on our lawsuit, the district court ruled against Mr. Beckstrand and entered judgment in favor of the plan. However, there was a new decision by the appellate court and we requested that the district court vacate the judgment and reconsider its decision in light of that new decision, which the Court did – and then allowed us to conduct discovery to obtain new evidence. We conducted discovery to explore the plan’s conflict of interest, then resubmitted the case to the trial judge for a decision based on the old record and the newly discovered evidence. On retrial, the district court took into account the new evidence we submitted and ruled in favor of Mr. Beckstrand. The district court reasoned that the plan and its doctors disregarded an earlier medical opinion by one of the plan’s doctors that supported Mr. Beckstrand’s disability status and relied upon the plan’s doctors’ most recent opinions without even addressing the countervailing opinions of Mr. Beckstrand’s own doctors and the previous opinion of one of the plan’s doctors. Second, the district court reasoned that the plan failed to notify Mr. Beckstrand that it had changed its position that Mr. Beckstrand’s medications caused his symptoms or notify Mr. Beckstrand that he needed to provide evidence of other diagnoses and treatment which he had not previously provided. Third, the district court explained that the plan was unfair to Mr. Beckstrand because no one told him that his failure to be treated for one of his conditions was a reason for the denial of his benefits until the final appeal denial letter. Fourth, the district court concluded that the plan’s analysis of the evidence was simply mistaken with regard to Mr. Beckstrand’s medications. Fifth, the plan failed to consider Mr. Beckstrand’s award of Social Security Disability benefits and failed to address the Social Security Administration’s finding that Mr. Beckstrand was totally disabled while concluding that Mr. Beckstrand was not disabled under the plan’s similar standard. Sixth, the Court noted that paper reviews of a claimant’s medical records and the failure to conduct a physical examination where the plan reserves the right to do so, while not as such improper, raise concerns about the thoroughness and accuracy of the benefits determination, especially when the paper reviews contain conclusions that involve critical credibility determinations regarding a claimant’s medical history and symptomatology. Therefore, the Court, after the second trial, ordered reinstatement of Mr. Beckstrand’s benefits retroactively.