Articles Posted in Termination of long term disability benefits

O’Ryan Law Firm, on behalf of Plaintiff Jo Ellen W., recently filed a lawsuit against Sedgwick Claims Management Services, Inc. (“Sedgwick”). The Plaintiff was employed as a Labor and Delivery Clinical Nurse with Franciscan Alliance which made her eligible for disability benefits under the Franciscan Alliance, Inc. Short-Term and Long-Term Disability Benefit Plans (the “Plan”).

In Jo Ellen W. v .Franciscan Alliance, Inc. Short-Term and Long-Term Disability Plans and Sedgwick Claims Management Services, the Plaintiff filed a lawsuit to gain the long term disability benefits she was entitled to under the terms of the Franciscan Alliance Plan.

Facts of the Case

At the O’Ryan Law Firm, we represent numerous clients who have become disabled and their disability claim was denied by their insurance company. We then represent the clients in the appeal process to appeal the denial of their disability benefits.  Lately, many of the insurance companies have be issuing late determination decisions on the appeals that we submit to those companies.  By law, an insurance company is required to issue a decision within 45 days of the date of receipt of the appeal unless an extension is warranted due to “special circumstances” but even then, a decision on the appeal must be rendered within 90 days at the latest.

The Supreme Court in Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115 (1989) held that de novo adjudication of employee benefit claims is the norm. Because the de novo standard of review is the default standard in an ERISA employee benefits case, the plan administrator or insurance company bears the burden of showing that the more deferential standard should apply. Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002)Marguez-Massas v. Squibb Mfg., Inc., 344 F.Supp.2d 315, 320 (D.P.R. 2004); McDonald v. Timberland Co. Group LTD Coverage Program, 2002 WL 122382, at *3 (D.N.H. Jan.23, 2002). Accordingly, once in litigation, a disability insurance company bears the burden of proving that their decision is entitled to deferential review by the Court.

The regulations governing ERISA disability claims require insurance companies to issue a decision on a claimant’s appeal within 45 days of the date that the insurance company received the appeal unless “special circumstances” warrant an extension of time for an additional 45 days; however, in “no event” shall the extension of time exceed 45 days. 29 C.F.R. §2560.503-1(i)(1), (i)(3), (i)(4).

O’Ryan Law Firm, on behalf of Plaintiff Laura McKenzie, recently filed a federal lawsuit against Life Insurance Company of North America (“LINA”), which is a subsidiary of Cigna Corporation. The Plaintiff was employed as a Registered Nurse with Allied Physicians, which made her eligible for disability benefits under the Allied Physicians, Inc. Long Term Disability Plan (the “Plan”).

In Laura McKenzie v. Life Insurance Company of North America and Allied Physicians, Inc. Long Term Disability Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the Plan.

Facts of the Case Against LINA

Plaintiff was employed by Allied Physicians, Inc. as a Registered Nurse until she became disabled in 2009 due to the disabling effects of cervical and lumbar spondylosis and other serious medical conditions. Plaintiff filed an application for long term disability benefits and was paid disability benefits by the Allied Physicians, Inc. Long Term Disability Plan from October 2014 to October 2016. LINA issued the disability policy that provided disability coverage to the employees of Allied Physicians.
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O’Ryan Law Firm, on behalf of Plaintiff, Jilian F., recently filed a federal lawsuit against Metropolitan Life Insurance Company (“MetLife”) in an attempt to reinstate the Plaintiff’s disability benefits claim. The Plaintiff was employed as a Marketing Communication Specialist with Landis + Gyr, which made her eligible for disability benefits under the Cellnet + Hunt Employee’s Welfare Benefit Plan (the “Plan”). In Jilian F. v. Metropolitan Life Insurance Company and Cellnet + Hunt Employee’s Welfare Benefit Plan, the Plaintiff filed a lawsuit to gain the long-term disability benefits she was entitled to under the terms of the MetLife policy.

Facts of the Case Against MetLife

Plaintiff was employed by Landis + Gyr until she became disabled in 2011 due to the disabling effects of Thoracic Outlet Syndrome, cervical degenerative disc disease and cervical radiculopathy, severe neck pain, fibromyalgia, carpal tunnel syndrome, and paresthesia.

Plaintiff filed an application for long term disability benefits and was paid disability benefits by MetLife from August 2013 to September 17, 2014.

MetLife Terminates Long-Term Disability Benefits

On September 17, 2014, MetLife wrongfully terminated the Plaintiff’s long-term disability benefits. Plaintiff, represented by the O’Ryan Law Firm, then filed an administrative appeal with MetLife challenging the termination of her disability benefits. With this appeal, the Plaintiff included significant medical evidence to prove that she continued to meet the definition of Disabled under the MetLife policy. However, MetLife refused to overturn their decision to terminate the benefits. As a result, the Plaintiff was forced to file a lawsuit under ERISA in federal court against MetLife to obtain the benefits due her under the MetLife policy.
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Digestive disorders can cause a wide range of symptoms including abdominal pain, fatigue, diarrhea, vomiting, nausea, and weight loss. Inflammatory bowel disease (“IBD”, not to be confused with Irritable Bowel Syndrome, IBS) may be responsible for such symptoms. IBD includes, but is not limited to, Crohn’s disease and ulcerative colitis. When these conditions are not controlled, symptoms may become so frequent and severe that work is not possible.

Testing and Treatment

To assess IBD, the patient should seek treatment with a gastroenterologist. A gastroenterologist (GI) is the appropriate specialist to determine which testing is needed, and which treatment options are available. Available tests include endoscopy/colonoscopy, biopsy, blood tests, stool tests, and small intestine imaging. These tests may need to be repeated on occasion to determine how the disease is progressing.

Treatment options for Crohn’s disease and ulcerative colitis vary patient to patient. Some GI specialists may present surgery as an option, although conservative treatment will be attempted first. Typically, adjustments to diet and medications will be offered first. Types of medication options are aminosalicylates, corticosteroids, immunomodulators, antibiotics, and biologic therapies. A high percentage of Crohn’s disease patients will have surgery, although surgery does not cure Crohn’s – it can only conserve portions of the gastrointestinal tract.

Maintaining Treatment and Recording Gastrointestinal Symptoms

Disabled patients should make sure they maintain treatment with GI specialists, follow their prescribed diet, and follow their doctors’ treatment plans as best as possible. Often, patients will only see their GI specialist on a quarterly basis. Due to the chronic nature of IBD and the possibility that symptoms may wax and wane, it is not possible for patients to see their doctor every time there is a slight change in their condition. Therefore, it is advisable for disabled IBD patients to keep a log of their gastrointestinal symptoms. The log should indicate which days the patient is experiencing gastrointestinal symptoms, how long the symptoms last, and which symptoms are occurring. The patient may also want to note any other important data, such as abdominal pain level (rated on a scale of 1-10), what may have caused the symptoms (such as a stressful situation or a change in diet), and medication taken. For computer and smart phone users, there are options to easily record gastrointestinal symptoms such as GI Buddy App (available for iPhone and Android users). IBD patients should provide copies of their GI logs to treating doctors.
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Founded in 1820, Indiana University has eight campuses in the State of Indiana and is a world leader in professional, medical and technological education. With over 17,000 employees state-wide, IU offers a generous benefit package which includes long term disability coverage through Standard Insurance. At the O’Ryan Law Firm, we have represented numerous IU employees who have become disabled and have been denied their long term disability benefits by Standard Insurance. We have represented professors, Human Resources professionals, and IT professionals, among others, employed at IU who applied for disability benefits with Standard, after their medical conditions made it impossible for them to continue working, and Standard Insurance denied those benefits.

“Disabled” or “Disability” is defined for IU employees in the Standard Insurance Policy as:

You are Disabled if you meet one of the following definitions during the period it applied: A. Own Occupation Definition of Disability; B. Any Occupation Definition of Disability; or Partial Disability Definition
A. Own Occupation Definition of Disability
During the Benefit Waiting Period and the Own Occupation Period you are required to be Disabled only from your Own Occupation. You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury or Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation.

B. Any Occupation of Disability
During the Any Occupation Period you are required to be Disabled from all occupations.
You are Disabled from all occupations if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of Any Occupation.

Any Occupation means any occupation or employment which you are able to perform, whether due to education, training or experience, which is available at one or more locations in the national economy and in which you can be expected to earn at least 80% of your Indexed Predisability earnings within twelve months following your return to work, regardless of whether you are working in that or any other occupation.
Material Duties means the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted. In no event will we consider working an average of more than 40 hours per week to be a Material Duty.

C. Partial Disability Definition During the Benefit Waiting Period and the Own Occupation Period, you are Partially Disabled when you work in your Own Occupation, but as a result of Physical Disease, Injury, Pregnancy, or Mental Disorder, you are unable to earn 80% or more of your Indexed Predisability Earnings, in that occupation.

To deny these claims under the policy, Standard Insurance routinely utilizes their in-house physician, Dr. Richard Handelsman, to review the medical records and opine that the IU employee is not disabled. Dr. Handelsman is the Medical Director for Standard Insurance and a salaried employee of Standard. Dr. Handelsman never examines the claimant and bases his opinion solely on medical records; therefore, his opinion is limited to only a review of the medical records. Also, we have found that Dr. Handelsman’s reports oftentimes fail to address important symptoms, like chronic pain, which are critical components to the disability claim.
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As one of the largest employers in Indiana, Eli Lilly covers thousands of employees under their Extended Disability Plan (“Lilly EDL Plan”). The Lilly EDL Plan is self-insured, a rarity in the long term disability world. Just a few years ago, Anthem was the claims administrator for the Lilly EDL Plan but in the spring of 2012, Lilly hired Sedgwick to administer extended disability claims under the EDL Plan. Shortly after this time, our office began receiving calls from Lilly employees whose EDL benefits had been terminated or were under investigation by Sedgwick.

One of the calls we received was from the former Executive Director of Human Resources at Lilly who had worked for Lilly for over 25 years. Unfortunately, her diagnosis of Fibromyalgia worsened over the years until she was forced to leave Lilly and apply for short and long term disability benefits in December 2007. Fibromyalgia is a disease the Seventh Circuit has characterized as “common, but elusive and mysterious.” Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996). In evaluating fibromyalgia in the context of a disability claim, the court in Sarchet described the disease as:

Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed sleep, stiffness, and–the only symptom that discriminates between it and other diseases of a rheumatic character–multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

Based on the severity of her fibromyalgia condition, our client was approved for EDL benefits in May 2009 and she received those benefits for over 3½ until Sedgwick abruptly terminated those benefits.
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At the O’Ryan Law Firm, we have represented several individuals in disability claims who suffer from a disabling disease called Scleroderma. According to the American College of Rheumatology:

WHAT IS SCLERODERMA?
Scleroderma (also known as systemic sclerosis) is a chronic disease that causes the skin to become thick and hard; a buildup of scar tissue; and damage to internal organs such as the heart and blood vessels, lungs, stomach and kidneys. The effects of scleroderma vary widely and range from minor to life-threatening, depending on how widespread the disease is and which parts of the body are affected.
The two main types of scleroderma are:

• Localized scleroderma, which usually affects only the skin, although it can spread to the muscles, joints and bones. It does not affect other organs. Symptoms include discolored patches on the skin (a condition called morphea); or streaks or bands of thick, hard skin on the arms and legs (called linear scleroderma). When linear scleroderma occurs on the face and forehead, it is called en coup de sabre.

• Systemic scleroderma, which is the most serious form of the disease, affects the skin, muscles, joints, blood vessels, lungs, kidneys, heart and other organs.

HOW IS SCLERODERMA DIAGNOSED?
Diagnosis can be tricky because symptoms may be similar to those of other diseases. There is no one blood test or X-ray that can say for sure that you have scleroderma.
To make a diagnosis, a doctor will ask about the patient’s medical history, do a physical exam and possibly order lab tests and X-rays. Some symptoms he or she will look for include:

• Raynaud’s phenomenon. This term refers to color changes (blue, white and red) that occur in fingers (and sometimes toes), often after exposure to cold temperatures. It occurs when blood flow to the hands and fingers is temporarily reduced. This is one of the earliest signs of the disease; more than 90 percent of patients with scleroderma have Raynaud’s. Raynaud’s can lead to finger swelling, color changes, numbness, pain, skin ulcers and gangrene on the fingers and toes. People with other diseases can also have Raynaud’s and some people with Raynaud’s do not have any other disease.

• Skin thickening, swelling and tightening. This is the problem that leads to the name “scleroderma” (“Sclera” means hard and “derma” means skin). The skin may also become glossy or unusually dark or light in places. The disease can sometimes result in changes is personal appearance, especially in the face. When the skin becomes extremely tight, the function of the area affected can be reduced (for example, fingers).

• Enlarged red blood vessels on the hands, face and around nail beds (called “telangiectasias”).

• Calcium deposits in the skin or other areas.

• High blood pressure from kidney problems.

• Heartburn; this is an extremely common problem in scleroderma.

• Other problems of the digestive tract such as difficulty swallowing food, bloating and constipation, or problems absorbing food leading to weight loss.

• Shortness of breath.

• Joint pain.

HOW IS SCLERODERMA TREATED?
While some treatments are effective in treating some aspects of this disease, there is no drug that has been clearly proven to stop, or reverse, the key symptom of skin thickening and hardening. Medications that have proven helpful in treating other autoimmune diseases, such as rheumatoid arthritis and lupus, usually don’t work for people with scleroderma. Doctors aim to curb individual symptoms and prevent further complications with a combination of drugs and self-care.
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Many Indiana employees receive group disability insurance coverage through Aetna. Headquartered in Hartford, Connecticut, Aetna is a large disability insurance company that is currently in the Fortune 100. O’Ryan Law Firm has successfully represented many clients whose disability insurance benefits have been unfairly denied or terminated by Aetna.

Short Term Disability Benefits

Aetna’s short term disability coverage pays benefits after a short elimination period (often a week long). Short term disability benefits usually last three to six months. During Aetna’s investigation of the short term disability claim, it is common for Aetna to gather medical records, gather information about the claimant’s job, require statements from treating providers about the claimant’s ability to work and expected duration of disability, and have internal medical consultants review all medical evidence. If the individual is approved for short term disability benefits through the maximum duration of the policy, then they may apply for long term disability benefits.

Long Term Disability Benefits

After an elimination period that is typically the length of the short term disability period, the claimant may apply to Aetna for long term disability benefits. When a claimant receives long term disability insurance through a private employer, their claim is usually governed by the Employee Retirement Income Security Act (“ERISA”).

In addition to information already gathered during the short term disability claim, Aetna will request updated medical records and statements from treating providers, may perform a vocational analysis, and may have internal medical consultants or external medical consultants review the medical evidence. It is very common for long term disability policies to require that the claimant prove disability from their own occupation for the first 24 months of long term disability benefits and then require that the claimant prove disability from any occupation after 24 months of long term disability benefits.

During the long term disability claim, it is more common for Aetna to utilize claim review tactics such as referring the claimant for an Independent Medical Examination (“IME”), contracting private investigators to perform surveillance of the claimant, contracting peer reviewing physicians to review evidence and call the claimant’s doctors, and perform a Transferable Skills Analysis to see if the claimant can return to work in a different job. If a claimant is approved for long term disability benefits, it is likely that Aetna will urge the claimant to apply for Social Security disability benefits. Aetna may even refer the claimant to one of its vendors to represent them in their Social Security disability claim.
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The Prudential Friendly Society was founded by insurance agent John Fairfield Dryden in a basement office in downtown Newark, N.J., in 1875. It was the first company in the U.S. to make life insurance available to the working class. In business for 137 years, it boast 48,000 employees worldwide.

At the O’Ryan Law Firm, we receive numerous calls a year from individuals who have become disabled, have disability coverage through Prudential, their doctor has reported to Prudential that they cannot work and Prudential denies the claim. One of Prudential’s favorite reasons for denying claims is what they call a lack of “objective medical evidence.” Many conditions, such as fibromyalgia or migraine headaches, result in symptoms, such as pain and fatigue, which are hard to prove objectively. There are no lab tests or diagnostic testing that are able to establish the severity of chronic pain or fatigue. Yet Prudential in these types of claims will insist on objective medical evidence to prove the disability thus making it nearly impossible to get the claim approved.

The courts have made clear in numerous cases that an insurer’s refusal to honor a claim for lack of scientific data such as lab tests and x-rays is an abuse of discretion where no such data exists in medicine for the conditions at issue and where licensed physicians have provided professional opinions that the conditions are genuine and credibly disabling the claimant. See Holmstrom v. Metropolitan Life Insurance Company, 615 F.3d 758, 769-772 (7th Cir. 2010); Leger v. Tribune Company Long Term Disability Benefit Plan, 557, F.3d 823, 834-835 (7th Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).

In Holmstrom, the claimant suffered from Complex Regional Pain Syndrome (“CPRS”), a condition recognized by the medical community but for which there is no specific diagnostic test. 615 F.3d 758, 768. In that case, the plan acknowledged “Holmstrom’s claims of intractable pain, significant physical limitations, and cognitive deficiency as identified by [claimant and her treating physician],” but found “that the lack of objective findings to support ongoing total disability prevented [the plan] from determining whether [claimant’s] disability was genuine.” Id. at 764. In finding the Holmstrom plan’s denial arbitrary and capricious, the court stated that the plan “gave undue weight to the absence of objective measurements for [claimant’s] impairments,” reasoning that:

Subjectively painful conditions like CPRS and fibromyalgia pose difficult problems for private disability insurance plan administrators and the Social Security Administration, who understandably seek to make decisions based on the most objective evidence available. But we have rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective tests exist for the condition or its severity.
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