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Disabling Chronic Pain

November 22, 2013

One of the most disabling symptoms for our disability clients at the O'Ryan Law Firm is chronic, severe pain. The type of pain that keeps you awake most of the night or forces you to lay down most of the day in order to alleviate the pain just a little bit. The pain that results from degenerative disc disease, fibromyalgia, neuropathy and failed back surgeries among other medical conditions. Disability insurance companies are loath to pay disability benefits when the most significant symptom is disabling pain. Oftentimes, the insurance company will discount considerable evidence that the chronic pain is a significant factor in the disability claim because many of the objective medical testing is "normal." There are no x-rays, MRIs or CT scans that are able to document chronic, severe pain. However, many courts have held that a disability claimant can prove the severity of their pain by showing, with their medical records, repeated attempts to treat the pain including steroid injections, prescription medications, surgery, physical therapy and acupuncture. These treatment methods can show that a claimant is suffering from severe pain.

In this area, when there is an absence of testing to establish the source of pain, a claimant can show that they are disabled by chronic pain by proving that the claimant has diligently sought out treatment for the pain. The Seventh Circuit Court of Appeals has held that "medical science confirms that pain can be severe and disabling even in the absence of 'objective' medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the [plaintiff]." Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.2004). Thus, while objective medical evidence must support a finding of an underlying impairment, subjective evidence can be used to demonstrate that the pain associated with that condition is disabling. Carradine, 360 F.3d 753; see also Hawkins v. First Union Disability Plan, 326 F.3d 914, 919 (7th Cir.2003) "Taken in the light most favorable to the plaintiff, the evidence of [plaintiff's] repeated attempts to seek treatment for his condition supports an inference that his pain, though hard to explain by reference to physical symptoms, was disabling." Diaz v. Prudential Ins. Co., 499 F.3d 640, 645 (7th Cir. 2007). In Sandell v. Prudential Ins. Co., 2007 WL 4404487, *7 (S.D. Ind. Dec. 13, 2007), the court found that a record review commissioned by the plan administrator was not persuasive, in large part because the reviewing physician failed to consider the claimant's subjective pain symptoms or address whether the claimant's pain made it impossible for the plaintiff to hold full-time gainful employment. Similarly in Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856, 866 the Court held:

The record here also shows that Gessling aggressively pursued for several years a range of therapies for his pain, including the rhizotomies, acupuncture, epidural injections, and even hypnosis. Those efforts are hard to reconcile with a theory that Gessling was exaggerating or lying about his pain. See Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 646 (7th Cir.2007) (reversing summary judgment for plan
under de novo review; efforts at therapy supported credibility of claimant's complaints of pain); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.2004) (remanding denial of
Social Security disability benefits based on subjective pain complaints where claimant had undergone extensive, varied, and intrusive pain therapies).

Also, in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7, the Court found an insurer's discounting of the plaintiff's subjective pain and resulting limitations to be unreasonable:

Here, Hartford unreasonably discounted Anderson's subjective complaints of pain and the resulting limitation on her activities. None of Hartford's reviewing physicians acknowledge Anderson's repeated complaints of pain or her treatment for such pain. Instead, all three physicians emphasize the lack of objective physical evidence of disability. See Record at 376 (Dr. Willis' opinion); id. at 150 (Dr. Marion's opinion); id. at 134 (Dr. Topper's opinion). This discounting of Anderson's subjective pain and the resulting limitations on her activities based on a lack of objective evidence was erroneous. See Hawkins, 326 F.3d at 918-19 (7th Cir.2003) (reversing termination of benefits where reviewing physicians discount pain based on lack of objective evidence).

It is improper for insurance companies, such as Cigna, Unum, Prudential, Sedgwick, Madison National, Liberty Life or Lincoln Financial, to deny a disability claim while ignoring and dismissing a claimant's repeated and continuous reports to his or her doctor of severe pain or the extensive treatment that the claimant sought for his or her condition. This supplies the very objective evidence that the insurance company may complain is lacking in your case. If you are suffering from chronic pain and your disability claim has been denied, contact the O'Ryan Law Firm today to discuss your disability claim further.

Lack of Examination In Denying a Disability Claim

November 6, 2013

If your short term or long term disability benefits have been denied or terminated chances are high that the insurance company has utilized a record reviewing physician to review your medical records and conclude that you are not disabled, without having ever examined you in person. The utilization of record reviewing physicians has become the favorite tactic to deny claims by many of the disability insurance companies such as Cigna, Prudential, Hartford, Sedgwick, Liberty Mutual, Unum and Lincoln Financial. For many of our clients, there are significant medical records and reports from their treating physicians supporting their disability claim yet the insurance company denies the claim because a doctor, who never spoke to or examined the client, says that the client is not disabled and can return to work.

Over the past few several years, the courts have become less tolerant of claims administrators utilizing a bunch of record reviews to deny legitimate claims. Two recent cases from the Southern District of Indiana followed this trend and rejected the opinions of several record reviewing physicians while reversing the denial of benefits. In Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856 (S.D. Ind. 2010), Judge Hamilton held that three paper reviews were insufficient to overcome the medical records and reports from the plaintiff's treating physician. Specifically, Judge Hamilton found:

At the very least, a mere record review is not sufficient to provide a reasonable basis for discounting Dr. Walker's and Gessling's accounts of his pain and resulting limitations. The court does not mean to suggest that it is reviving any requirement of special deference to a treating physician. Far from it. See Nord, 538 U.S. at 825, 123 S.Ct. 1965 (holding that ERISA does not require plans to provide such deference). But to disagree with an apparently sound opinion of a treating physician, a plan administrator needs something much more solid than the consulting physicians provided in this case. See id. at 834, 123 S.Ct. 1965 (reminding courts that plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including opinions of a treating physicians). The medical records did not show that Dr. Walker and Gessling must have been correct--the problems of subjective pain and resulting limitations are difficult to evaluate based on records alone. But after reviewing the records, the reviewing physicians failed to come to grips with the real problem, the whole person, and the history that corroborated his complaints of pain. For these reasons, the records reviews in this case did not provide a reasonable basis for denying the disability insurance benefits for which Gessling and his employer paid substantial premiums to
Hartford Life.

Similarly in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7 (S.D. Ind. Sept. 10, 2010), Judge Lawrence rejected the opinions of three record reviewers to reverse Hartford's denial of disability benefits and held:

Furthermore, Hartford's reviewing physicians never examined Anderson. All three physicians relied on treatment records supplied by Hartford. The Court is not suggesting that it is recognizing a treating physician rule in the ERISA context. However, for Hartford to disagree with the apparently sound opinions of Anderson's treating physicians, it needed to rely on something more solid than the opinions of the consulting physicians. See Nord, 538 U.S. at 834 (2003) (cautioning plan administrators that they may not arbitrarily discount a treating physician's opinion). In short, the reviewing physicians "failed to come to grips with the real problem, the whole person, and the history that corroborate [her] complaints of pain." Gessling v. Group Long Term Disability Plan for Emps. of Sprint/United Mgmt. Co., 693 F.Supp.2d 856, 866 (S.D.Ind.2010) (Hamilton, J.). Accordingly, the reviewing physicians' opinions and their record review did not provide a reasonable basis for denying Anderson's application for disability benefits.

Likewise, an Indiana jury has rejected an insurer's attempt to terminate a legitimate disability claim based on a bunch of record reviews. In Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 698-701 (Ind. Ct. App. 2007), the plaintiff filed an action against her long term disability insurer, in Marion County under state law, alleging that the insurer wrongfully terminated her disability benefits. In terminating the claim, Lumbermens relied upon the opinions of six record reviewing physicians to reach the conclusion that the plaintiff was no longer disabled. The jury rejected the opinions of all six of Lumbermens' record reviewing physicians to conclude that Lumbermens wrongfully terminated the plaintiff's disability benefits and breached the insurance contract as well as Indiana's covenant of good faith and fair dealing. As damages, the jury awarded the plaintiff $22,583 on the breach of contract claim and $1,500,000 for the defendant's breach of the covenant of good faith and fair dealing.

Indiana courts, and an Indiana jury, have found that record reviews are not sufficient to overcome the medical records and reports from treating physicians who have the opportunity to observe, examine and treat the claimant. If your disability benefits have been denied or terminated without a medical examination, contact the O'Ryan Law Firm for further assistance and advice.

Disabled Purdue Employees

March 21, 2013

Over the years, we have represented numerous employees of Indiana colleges and universities who have become disabled because of serious illnesses such as diabetic neuropathy, lyme disease, degenerative disk disease, multiple sclerosis and lymphoma. A large number of those clients were disabled Purdue employees who had worked for Purdue University for many years, some even decades, before reaching the point where they were no longer able to work because of their medical conditions. Purdue has a very generous employee benefit package so our clients were very surprised and extremely disappointed when their disability claims were either denied outright or prematurely terminated by the insurance company.

stock-photo-3175050-bell-tower.jpgPrudential Insurance Company previously insured Purdue's long term disability program and now Cigna is the insurance carrier for the Purdue long term disability program, or more specifically Cigna's subsidiary Life Insurance Company of North America. Many Purdue employees have contacted our office after Cigna denied their claim upon their initial application or when Cigna terminated the benefits before the individual was truly able to return to work.

Cigna typically hires consulting physicians, who never examine our clients, to review the person's medical records and conclude, contrary to the treating physicians, that the client does not have any restrictions or functional impairments. Cigna then relies upon the conclusions of the consulting physicians to deny legitimate disability claims.

The consequences of Cigna denying a Purdue employee's claim for disability benefits are severe. Under the Purdue employee benefit program, disabled Purdue employees continue to receive medical coverage, life insurance coverage, tuition reimbursement for their kids that attend Purdue and retirement annuity deposits. When Cigna wrongfully denies a Purdue employee's disability claim, all of those benefits immediately disappear. The disabled Purdue employee will no longer have the medical coverage they need for treatment, they will lose their life insurance coverage, be required to pay full tuition for their kids and lose retirement contributions. As a result, Cigna's denial can have a dramatic impact on the life of a disabled Purdue employee.

The O'Ryan Law Firm has successfully handled the appeals and lawsuits of Purdue employees against Cigna when Cigna has wrongfully denied their disability benefits. If you have received a denial letter from Cigna, or Life Insurance Company of North America, please contact us so that we may discuss your best strategy for moving forward with your disability claim.