The pitfalls of doing your own appeal without talking to an attorney first.

Why pass on free personalized advice?

One of the people who contacted us this week was a woman who had her Long Term Disability benefits terminated by Standard Insurance Company after Standard had paid her those benefits for many years. Despite multiple surgeries, her symptoms had not improved. Each morning she takes powerful pain medications. Sometimes those medications offer enough relief to enable her to attend to daily functions, but often, they do not.

Either way, she was certainly not able to perform the duties of her job when Standard cut off her benefits. Nonetheless, Standard Insurance Company all of the sudden determined she had not provided sufficient proof of disability and terminated her Long Term Disability benefits. Thinking this was simply a misunderstanding, she appealed the denial on her own without speaking to an attorney first. After all she reasoned, Standard Insurance Company had told her all she needed to do was explain to them why she was still disabled.

Your Insurance Claim Will Probably Be Denied!

On January 13, 2017, the Los Angeles Times published a column entitled Healthcare insurance hell: If at first your claim is denied, try, try again

The article describes on insured’s extreme difficulty in obtaining approval for treatments of her multiple autoimmune disorders that cause chronic pain, migraines, extreme dizziness and debilitating chronic fatigue. As the title shows, the main thrust of the argument is to never give up if your health insurance claim is denied – however, this advice is not only applicable to health insurance claims – the same holds true, believe it or not, for Long Term Disability, Long Term Care, and even Life Insurance claims!  

Some interesting additional information is also included in the column:

Aetna Defends Claim of Arbitrary and Capricious Disability Benefits Termination

In Jacowski v. Kraft Foods, et al., the Federal District Court for the Western District of Wisconsin denied plaintiff Kathy Jacowski‘s claim that Aetna arbitrarily and capriciously terminated her long-term disability benefits in violation of ERISA.
Jacowski began working for Kraft Foods in 1981. In 2008, Jacowksi quit her job, citing her poor mental health. Her treating physician diagnosed her with depression, anxiety, and post-traumatic-stress disorder. In 2011, she was notified by Aetna, the insurer that Kraft contracted with to administer its disability benefits, that she qualified for total disability benefits. She received these benefits until February, 2014, when they were terminated.

Jacowski’s Claim

Jacowski claimed that the termination of her benefits violated ERISA because it was arbitrary and capricious. Her claim cited five reasons:
1. The defendant relied on biased medical evidence, and did not give deference to the opinion of her treating physician;
2. The defendant didn’t consider the fact that the Social Security Administration had determined that she is disabled;
3. There was no occupational analysis done which identified a job she could do;
4. The defendant didn’t consider her voluntary appeal; and
5. There was a conflict of interest between the defendant’s role of considering voluntary appeals and its interest in denying benefits.

The Legal Standard

The court noted that the “arbitrary and capricious standard is the least demanding form of judicial review,” but that “it is not a rubber stamp” for insurer decisions.

The Opinion

First, the court held that insurers have the right to consider all relevant medical evidence, and that ERISA does not require that deference be given to treating physicians.

Next, the court found that, “Although plaintiff is correct that failing to consider the Social Security Administration’s finding of disability may be evidence of arbitrary decision-making, a plan administrator is not forever bound by that determination.” In this case, because the SSA determination was more than five years old, the court determined that it was within the defendant’s discretion to ignore it.

The court then held that, under ERISA, “no categorical rule requires a plan administrator to provide the type of vocational analysis claim that plaintiff describes.” The court found that ERISA merely requires a “reasonable inquiry” into a claimant’s vocational potential.

Finally, the court determined that hearing a voluntary appeal is discretionary, and a decision not to do so is not subject to “arbitrary and capricious” review. As such, the court found that the conflict of interest was also not reviewable.

This case was not handled by Dell & Schaefer, but we feel it can be instructive for others who have had long-term disability benefits terminated. If you have a question about this case, or any other issue concerning disability benefits, contact one of our attorneys today for a free consultation.

MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

MetLife Properly Limited Plaintiff’s Disability Benefits Under the Mental/Nervous Limitations Clause

In Stupar v. Metropolitan Life Insurance Company (MetLife), plaintiff, an icer with the Kroger Company, received 24 months of long term disability benefits due to her diagnoses of post-traumatic stress disorder (PTSD), major depression, panic and anxiety disorder. At the end of the two-year period, MetLife terminated her benefits on the grounds that she was limited to 24 months of benefits under the Mental or Nervous Disorders clause of the policy. She objected, exhausted her administrative remedies, then filed this ERISA lawsuit.

Plaintiff Failed to Present Any Evidence of a Physical Cause of Her Mental Conditions

After donating a kidney to her husband in 2006, plaintiff Hasnija Stupar suffered from numerous medical problems. Finally, in 2011, she was diagnosed with the above stated mental disorders and awarded 24 months of long term disability benefits. According to the terms of the policy, at the end of the 24 months, the only way she could qualify for long term disability is if she could provide medical documentation of a physical cause of her ailments.

The District Court analyzed hundreds of pages of Stupar’s medical reports. The Court noted that, even though she was evaluated and treated by numerous physicians, her condition remained the same from the time she was first diagnosed through the completion of the legal proceedings. Peer reviews by MetLife’s physicians found no independent medical reason for Stupar’s numerous psychological problems. Some physician reports noted she had a right-hand tremor, but treating physicians and an independent physician consultant (IPC) concluded that Stupar’s “tremors were caused by Plaintiff’s anxiety.”

The Court noted that MetLife “expressly requested additional information pertaining to Plaintiff’s tremors, but no such information was available given Plaintiffs lack of treatment and testing therefor.” Accordingly, the Court concluded that, “Based on the available evidence, it was not wrong for [MetLife] to infer that the tremors were likely mental in nature.”

MetLife Properly Denied Plaintiff’s Claim for Benefits for Her Alleged Bipolar Disorder

Stupar asserted her mental problems were due to a bipolar disorder which, under the mental limitations clause, might allow her to continue receiving benefits. The Court noted that no evidence of a bipolar disorder had ever been presented to MetLife except for one phrase in one of her numerous medical reports that stated, “Ms. Stupar ‘has a history of… bipolar.’” Since there was no evidence in the record to support Stupar’s assertion that she had a bipolar disorder, “she did not qualify for an exception to the 24-month limitation.”

This case was not handled by our office, but it may help those who suffer from a physical condition as well as a limiting mental disorder to understand the kind of evidence the insurer or Court looks for in evaluating a disability claim. If you have questions about this, or any other aspect of your claim for disability benefits, feel free to contact one of our attorneys at Dell & Schaefer for a free consultation.

Due to Lack of Objective Evidence, Ohio Court Upholds Sedgwick’s Denial of Short Term Disability Benefits

In Corey v. Sedgwick Claims Management Services, Inc., plaintiff Bruce Corey began working as a machine operator for Eaton Corporation in 1987. Beginning in February 2014, he was periodically granted short term disability benefits when he took a few days off of work due to cluster headaches. On May 8, 2014, Corey quit working completely and again applied for short term benefits.

A specific term of the disability policy required applicants to provide objective evidence of their disabling conditions. Since Corey was unable to comply with this contract provision, his application was denied. After Corey exhausted his administrative remedies, he filed this ERISA lawsuit. The Ohio federal district court upheld Sedgwick’s denial, finding that it “was supported by a deliberate, principled reasoning process and substantial evidence.”

The Ohio District Court Found the Denial of Short Term Disability Benefits Was Supported by Medical Evidence

The contract provision that required objective evidence of a disability itemized the types of evidence that could be presented in order to comply with the term:

· Physical examination findings (functional impairments/capacity).

· Diagnostic test results/imaging studies.

· Diagnoses.

· X-ray results.

· Observation of anatomical, physiological or psychological abnormalities and

· Medications and/or treatment plan.

In this case, neither plaintiff’s treating physicians nor reviewing physicians found any objective evidence to support plaintiff’s claims. The medical records of two treating physicians included plaintiff’s own reports about his pain. Both physicians said that his workday would occasionally be interrupted for a few hours, based on Corey’s own subjective reports of his symptoms. Neither physician claimed that Corey could not perform his job.

Corey argued that the prescription for Imitrex should meet the criteria of being disabled due to medications and a treatment plan. There was nothing in the record to indicate that any side effects of the medication interfered with plaintiff’s ability to do his job. In fact, the opposite was true. The evidence showed that the Imitrex helped control his headaches.

Two physicians reviewed the medical record and found nothing to substantiate plaintiff’s claims of inability to do his job. They credited plaintiff’s statements of headaches, but could not find objective evidence of how those headaches prevented him from doing his job.

The court concluded that, “Here, the quality and quantity of the evidence show that defendants’ denial of plaintiff’s short term disability benefits claim was not arbitrary and capricious.”

Sedgwick Was Not Required to Order a Vocational Evaluation

Corey asserted that Sedgwick did not fairly evaluate his claim since it failed to order a vocational evaluation to see if he was able to perform his job duties. The court disagreed and found no precedent requiring a plan administrator to order a vocational evaluation and concluded that the plaintiff could have himself undergone a vocational evaluation and presented it as evidence. In light of the substantial evidence supporting Sedgwick’s denial of short term benefits, its failure to order a vocational evaluation was not arbitrary and capricious.

This case was not handled by our law office, but we believe it can be instructive to those who have a contract provision requiring them to provide objective evidence of a disability in order for their application for short term benefits to be granted. If you have any questions about this issue, or are having any other problems relevant to your disability claim, consult one of our disability attorneys at Dell & Schaefer. We offer a free consultation.

Court Affirms Procter & Gamble’s Termination of Long Term Disability Benefits

Plaintiff Christina Saunders was employed by Proctor & Gamble when she had surgery for an ectopic pregnancy. At that time, disability claims for those employed by Proctor & Gamble in Michigan, like the plaintiff, were handled by a third party administrator, the Reed Group (Reed). Even though plaintiff did not return to work on the date her doctor said she could, Reed approved her for total disability benefits.

For an entire year, plaintiff received benefits and continued her quest for a diagnosis and treatment of her unexplained pain. She was diagnosed at various times with several different ailments, but her treating physicians and physical therapist did not place any work restrictions on her.

After a year, Proctor and Gamble contracted with a new third-party administrator, GENEX Services, Inc. In reviewing plaintiff’s file, GENEX found no evidence supporting her claim that she was totally disabled and entitled to receive long term disability benefits, which prompted GENEX to terminate plaintiff’s benefits. As the Circuit Court noted, “Without a doctor’s note stating that Saunders could not work, the GENEX case manager recommended terminating Saunders disability benefits.” Saunders exhausted her administrative remedies in an attempt to have benefits reinstated. When she was unsuccessful, she filed an ERISA lawsuit arguing that she was entitled to total disability benefits. The District Court ruled in favor of Proctor & Gamble and the plaintiff appealed.

Plaintiff Failed to Show How Her Condition Disabled Her

Despite medical records acknowledging that the plaintiff complained of “unexplained, severe, and constant pain,” her treating medical professionals provided no information as to how her pain prevented her from working. In fact, the records noted that she cared for her 2-year-old son without assistance, drove a car and was able to perform other activities of daily living. Only one physician stated that she was “unable to focus enough to work.” That lone opinion did not trump other medical opinions. For example, one treating physician specifically wrote, “I do not have any work restrictions for her.”

No evidence was presented as to the length of time she could sit or stand or amount of weight she could lift or any other evidence of any physical restrictions. Accordingly, the court affirmed the termination of benefits finding, “Overall, the record does not support a finding that Saunder’s pain conditions renders her totally disabled.”

Unchanged Condition Does Not Require Proctor & Gamble to Continue Benefits

The plaintiff also argued that Proctor & Gamble could not terminate her benefits since her condition had not changed in the year that she had been receiving them. The Circuit Court found this not to be a logical argument. The court held that, “As Saunders stated, ironically, in her opening brief, ‘The best that can be said of [GENEX’s] review of Saunder’s claim is that Saunders was never disabled in the first place.’”

This case was not handled by our office, but we believe it can provide help to clients with pain they believe is debilitating and need to provide objective evidence as to how their pain interferes with their ability to perform their job. If you need assistance with a similar issue, or any issue related to your disability claim, contact one of our disability lawyers for a free consultation.

Using the Courts to Move Insurance Coverage Goals Part I

HOW INSURERS’ RECENT WRONGFUL RATIONING OF HARVONI DRUG TREATMENT FOR HEPATITIS C EXPOSES A LONG HISTORY OF UNREASONABLE AND HARMFUL INSURANCE COMPANY PRACTICES

Written by Tim Rozelle, Esq.

In July, August, October and December 2015, Kantor & Kantor filed class action lawsuits against Anthem Blue Cross Life and Health Insurance Company (and 26 other Anthem, Inc.-affiliated health plans nationwide), UnitedHealthcare Insurance Company (and 31 other United-affiliated health plans nationwide) and HealthNet respectively regarding the insurers’ categorical denials of Harvoni drug treatment for Hepatitis C. In denying treatment, the insurers told their insureds that their liver must reach a certain level of scarring (F3 or F4 on an F0-F4 scale) before treatment becomes necessary and would be approved.  In these respective lawsuits, our clients allege that the named insurers violated the Employee Retirement Income Security Act (ERISA) (or allege that the insureds breached insurance contracts) by using internal coverage guidelines (ICGs) to overrule providers’ determinations of appropriate medical treatment. Our clients claimed that the insurers forced them to live with a serious health problem and related issues until their livers became sufficiently deteriorated to approve treatment.

Hurricane Hermine Update – Roof Claims

Tens of thousands of Florida home and business owners have insurance claims for damage caused by Hurricane Hermine.  It is critical that policy holders know their rights.

Hurricane Hermine

I have litigated thousands of insurance claims on behalf of Florida home and business owners.  Many of those claims have involved claims for roof damage.

Almost 100% of home and business owners’ insurance policies issued in Florida are known as “replacement cost” policies.  A replacement cost policy means just what it sounds like: the insurance company is required to REPLACE the damaged property with new.  A simple example will help.

Suppose you have a 25 year old shingle roof and Hurricane Hermine causes damage (I’ll discuss what “damage” is in a moment).  The insurance company is required to pay to replace the old roof with a new roof.  I mean what you just read.  The insurance company must pay for a new roof with no deductions because of the age of the roof.

Now, some FAQ’s:

  • What if the insurance company says my roof needed to be replaced because it was old?  If your roof was functional (even if it had some leaks) the insurance company has to pay for a new roof regardless of the age.
  • What if I patched some leaks in my roof before the storm?  The insurance company agreed to insure your roof in exchange for you paying your premium.  The insurance company has to pay for a new roof.
  • What if my insurance company has an engineer inspect my roof and the engineer says there is no wind damage?  You should let me have your roof inspected for free.  Insurers almost always send out their own engineers or “roof consultants” and they are often paid significant amounts of money by the insurance companies.  Every insurance roof denial I’ve ever won started with the insurance company saying “no.”

Now, what constitutes “damage” under your insurance policy.

First, you do not have to lose a single shingle to be entitled to a full roof replacement.  There are many types of roof damage that entitle you to a new roof.  Certainly, shingles blown into your neighbor’s yard is one of the types of damage that is covered.  But, there are others.

Your shingles have a sealant strip on their underside that is a critical component of their functionality.  Wind can lift the shingles and cause the sealant strip to fail.  The shingle then sits back down where it was before.  However, once the sealant strip is broken the shingles are “damaged” and must be replaced.

Another type of damage is known as “degranulation.”  Every shingle has tens of thousands of granules that serve several purposes.  If some of those granules are blown or knocked off by a storm that is considered “damage.”

Another type of claim occurs when your insurance company agrees to pay for the damage, but they low-ball the price.  I can help with that too.  Insurance companies are required to pay the reasonable costs of replacement.  If your roofer gives you a quote for a new roof, but your insurance company low-balls that quote, let me take a look at your claim for free.

Sometimes may say they don’t think it is fair that the insurance company has to pay for a new roof when the former roof was old, or not in the best of shapes.  You paid for replacement cost coverage, and you are entitled to receive what you paid for.  Your insurance company knew what it was selling to you and determined its premium based on what it sold you.

If your insurance company denies or low-balls your claim, even if you think there is nothing that you can do, let me look at the insurance denial for free.

Finally, if there is only one thing you remember from this blog, let it be this:

“No” is not the end of the inquiry.  It is just the beginning.  Every insurance case I’ve ever won all have one thing in common.  They all started with “No.”

Also, in most of my insurance cases, if I win the insurance company has to pay all of my attorney’s fees and costs.  And, if I lose, I’ll work for free.  Mark Nation

If your insurance claim has been denied, delayed, or underpaid, I’d like to help.  You can call me at 1-800-NationLaw, or email me at mark@nationlaw.com