Articles Posted in Unum

Disability insurance companies may look to more than just medical records and reports when determining whether a claimant qualifies for disability insurance benefits. Insurers have long used private investigators to perform surveillance of claimants in order to obtain additional information regarding the claimant’s restrictions and limitations. Oftentimes, the private investigators are asked to document their observations with video to provide tangible evidence of the claimant’s daily activities and abilities. Depending on the information gathered, reports from the investigators’ surveillance and the associated video evidence can lead to a denial of disability benefits. Generally, when courts review video evidence they look at whether the observations in the surveillance video are consistent with the claimant’s reported restrictions and limitations.

A common strategy for disability insurers is to schedule surveillance at a time when the claimant has a scheduled appointment with their doctor or a previously scheduled medical examination. This provides the private investigators with a known opportunity to observe the claimant outside of their home. Inevitably, this allows the surveillance team to observe the claimant driving or riding in a vehicle. In Mote v. Aetna Life Insurance Co., 502 F.3d 601 (7th Cir.2007), Aetna’s decision to deny the plaintiff’s disability benefits was upheld by the court. Aetna based their decision in part on video surveillance showing the plaintiff running errands, driving to medical appointments, and loading groceries into her car. This evidence was used to establish that the plaintiff could work in “any occupation.” However, video surveillance in Gessling v. Grp. Long Term Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F. Supp. 2d 856, 864 (S.D. Ind. 2010) only showed that the claimant was capable of driving a little longer than the fifteen minutes he reported to a Hartford Life representative. The court in Gessling found that this video evidence “says nothing useful about (the claimant’s) ability to work in his own occupation.”

Similarly, the Northern District of California found that surveillance evidence depicting a plaintiff “walking, driving and doing errands … for a couple of hours … does not mean that [that p]laintiff is able to work an eight-hour a day job.” Thivierge v. Hartford Life & Accident Ins. Co., 2006 WL 823751, at *11 (N.D.Cal. March 28, 2006). The Eastern District of California reached the same conclusion in a case where Hartford procured surveillance video of the plaintiff driving to the store, visiting a friend, carrying a small bag, and sitting through an interview while taking numerous breaks. Leick v. Hartford Life & Acc. Ins. Co., 2008 WL 1882850 (E.D. Cal. Apr. 24, 2008). The court determined that the plaintiff’s documented activity on a “good day” did not contradict that the plaintiff was unable to perform a full-time sedentary job. Id. See also Hunter v. Life Ins. Co. of N. Am., 437 F. App’x 372, 378-79 (6th Cir. 2011) (surveillance of a plaintiff driving to her functional capacity evaluation, as well as other activities of daily living, did not indicate that Hunter can perform all the physical duties of her former occupation).

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).

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.

Many long term disability clients of the O’Ryan Law Firm were paid disability benefits for several years until the insurance company abruptly terminated those benefits. Recently, we represented an individual in a claim against Unum where Unum had paid long term disability benefits under the policy without interruption for nearly eleven years between 2001 and 2011. Unum paid our client for 3 years under the “own occupation” standard and more than 7 years under the “any occupation” definition while regularly reviewing and approving the continuation of payment of her disability benefits. For more than 10 years, Unum found that the medical evidence supported our client’s claim until November 2011 when Unum abruptly terminated the claim arguing that our client was now “better.” It is not uncommon for insurance companies to pay disability benefits for years and then somehow conclude that the client is miraculously able to return to work.

Our approach in combating the wrongful termination of benefits is to show that the client’s medical records, just prior to the termination, establish that the client continued to actively and diligently seek treatment in an effort to relieve their symptoms and pain. We encourage our long term clients to continue to actively seek medical treatment, as required by the disability policy; otherwise it becomes all too easy for the insurer to find that the “medical evidence does not support continuing functional impairment.”

For individuals who have been receiving benefits well past the “own occupation” time period, the insurance company must have substantial medical evidence showing that the person’s medical condition has improved. Without this proof, the insurance company does not have a legitimate basis for terminating the claim.