Articles Tagged with “disability claims”

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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The O’Ryan Law Firm has represented numerous clients suffering from fibromyalgia in the disability claims process. Usually, the client contacts our office after their disability claim has been denied and all too often the insurance company or claims administrator has denied the claim because there is “insufficient objective medical evidence” to support the claim. It is improper for your disability insurance company to insist that you produce objective medical evidence to prove that you have fibromyalgia because it is impossible to supply the insurance company with objective evidence that doesn’t exist.

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 an 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.

According to the American College of Rheumatology:

Fibromyalgia is a chronic health problem that causes pain all over the body and other symptoms. Other symptoms that patients most often have are:

• Tenderness to touch or pressure affecting joints and muscles • Fatigue • Sleep problems (waking up unrefreshed)
• Problems with memory or thinking clearly
Some patients also may have:

• Depression or anxiety • Migraine or tension headaches • Digestive problems: irritable bowel syndrome (commonly IBS) or gastroesophageal reflux disease (often referred to as GERD)

• Irritable or overactive bladder • Pelvic pain • Temporomandibular disorder–often called TMJ (a set of symptoms including face or jaw pain, jaw clicking and ringing in the ears)

Symptoms of fibromyalgia and related problems can vary in intensity, and will wax and wane over time. Stress often worsens the symptoms.

The American College of Rheumatology provides the following criteria for evaluating of fibromyalgia:
Criteria Needed for a Fibromyalgia Diagnosis
1. Pain and symptoms over the past week, based on the total of:

Number of painful areas out of 18 parts of the body Plus level of severity of these symptoms:
• Fatigue • Waking unrefreshed • Cognitive (memory or thought) problems Plus number of other general physical symptoms 2. Symptoms lasting at least three months at a similar level 3. No other health problem that would explain the pain and other symptoms.
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The Employee Retirement and Income Security Act (“ERISA”) mandates that insurance companies and claims administrators provide claimants with the specific reasons for the denial or termination of employee benefits and the reasons for the denial must be in writing. See Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 688 (7th Cir. 2004), cert. denied, 543 U.S. 869 (2004). The Department of Labor has promulgated regulations under ERISA which require certain information to be contained in a denial or termination of benefits letter. Specifically, 29 C.F.R. §2560.503(g) states:

Manner and content of notification of benefit determination.

(1)….The notification shall set forth, in a manner of calculated to be understood by the claimant –

(I) Reference to the specific plan provisions on which the determination is based;

(II) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

These requirements ensure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present his case. Halpin v. W.W. Granger, 962 F.2d 685 (7th Cir. 1992). Describing the additional information needed, as required by this section, enables a claimant to gain a better understanding of the inadequacy of his claim and to gain a meaningful review by knowing with what to supplement the record. Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir. 1983).
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Cigna, headquartered in Bloomfield, Connecticut, is a global health services organization and its insurance subsidiaries are major providers of medical, dental, disability, life and accident insurance and related products and services, the majority of which are offered through employers and other groups. CIGNA is one of the top health insurers in North America, with medical plans covering nearly 12 million people. Cigna operates in 30 countries, has approximately 40,000 employees and manages around $54 billion in assets.

CIGNA is the parent company of Life Insurance Company of North America. Life Insurance Company of North America (“LINA”) offers group life, accident, and disability insurance to employers. LINA was formed in 1956 by Insurance Company of North America (INA), a CIGNA predecessor company. LINA provides group disability insurance to many employers across Indiana including Toyota, the University of Notre Dame, State Farm, Sony Electronics, Covance and many others. Employees of these companies are provided short and long term disability benefits if they become unable to work due to injury or illness. LINA is responsible for processing the claims and making monthly benefit payments if the claimant proves that they are disabled and unable to return to their own occupation.

During the claims process, LINA will have a Nurse Case Manager review the medical records to determine whether an individual meets the definition of Disabled under the terms of the policy. If necessary, the Nurse Case Manager will escalate the review to a Cigna Medical Director who is an employee of Cigna. The Medical Director will also review the medical records and reports to determine whether the restrictions and limitations listed by the claimant’s treating physician are supported by the medical records. It is not uncommon for the Nurse Case Manager and Cigna Medical Director to disagree with the treating physician and to find that the claimant is able to return to work despite the medical evidence supporting the claim.
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As type II diabetes becomes more and more common, many people suffer from peripheral neuropathy, which is a result of nerve damage. Neuropathy may cause weakness, pain, or numbness in the hands and feet, although it may occur in other parts of the body. Sometimes this nerve damage becomes so severe that it prevents people from maintaining their normal lifestyle, including the ability to work.

If neuropathy forces someone to stop working and they apply for disability benefits, there are some important tips to help document the disability. First, establishing treatment with a neurologist is very important. A Neurologist is the appropriate specialist to diagnose and treat neuropathy. If a person does not properly document their neuropathy, they will face a tough challenge in having their disability claim approved. Diagnosis requires considering full medical history, neurological examination (such as checking reflexes, sensation, and coordination), physical examination, and appropriate testing. The testing most commonly used for diagnosing neuropathy includes electromyography, nerve conduction tests, nerve biopsy or skin biopsy, blood tests, MRIs or other medical imaging tests, and lumbar puncture (or spinal tap).

Second, it is necessary for the disability claimant to maintain regular treatment with their neurologist and other medical care providers. If it is shown that the disabled person has not complied with recommended treatment, then disability benefits may be denied.
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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.

We have represented numerous clients in short term disability and long term disability claims after Lincoln Financial, also known as Lincoln National, has denied or prematurely terminated the client’s disability benefits claim. Lincoln traces its origin to June 12, 1905, in Fort Wayne, Indiana, as the Lincoln National Life Insurance Company. Perry Randall, a Fort Wayne attorney and entrepreneur, suggested the name “Lincoln,” arguing that the name of Abraham Lincoln would powerfully convey a spirit of integrity. In August, 1905 Robert Todd Lincoln provided a photograph of his father, along with a letter authorizing the use of his father’s likeness and name for company stationery and advertising.Lincoln 3.jpg

Lincoln National Corporation is a Fortune 250 American holding company, which operates multiple insurance and investment management businesses through subsidiary companies. Lincoln Financial Group is the marketing name for LNC and its subsidiary companies. LNC was organized under the laws of the state of Indiana in 1968, and maintains its principal executive offices in Radnor, Pennsylvania In 1928, LNC president Arthur Hall hired Dr. Louis A. Warren, a Lincoln scholar, and in 1929, LNC acquired one of the largest collections of books about Abraham Lincoln in the United States. The Lincoln Museum in Fort Wayne was the second largest Lincoln museum in the country. The Abraham Lincoln Presidential Library and Museum in Springfield, Illinois is now the world’s largest museum dedicated to the life and times of Abraham Lincoln, after the closing of the Fort Wayne Lincoln Museum June 30, 2008.

Lincoln National issues group disability policies, and individual disability policies, to provide income replacement benefits to residents of the State of Indiana who are forced to stop working due to injury or illness. At O’Ryan Law Firm, we have received numerous calls from individuals who were promised disability benefits under a Lincoln National policy yet those benefits were denied by Lincoln despite medical proof establishing that the definition of “Disabled” had been met under the terms of the policy. Several of our clients who are insured by Lincoln National were teachers who had taught for many years until reaching the point where they were no longer able to keep teaching because of medical conditions.

When disabled clients first call the O’Ryan Law Firm, one of the first questions they ask is whether they can obtain punitive damages for the wrongful denial of their disability claim. No doubt, many of our clients have suffered incredible financial and emotional damages as a result of the insurance company either denying their claim outright or terminating the claim before the client can actually return to work. We have had clients suffer terrible financial losses, such as the loss of a vehicle, loss of their credit rating or even the loss of their home through foreclosure, due to the insurance company wrongfully denying their disability claim. Unfortunately, if the client’s disability claim falls under the Employee Retirement Income Security Act, commonly known as ERISA, the courts have found that punitive damages are not awardable when the disability claim is subject to ERISA.

ERISA is a federal statute that was passed in 1974 by Congress in order to protect participants of employee benefit plans. Most individuals receive medical coverage, life insurance coverage and disability coverage through their employer. Most employer sponsored benefit plans are governed by ERISA. There are two exceptions: governmental entities and church plans. If your employer is a governmental entity, such as a public university or school corporation, or a church plan, then you would not be covered by ERISA; instead, your claim is subject to state law. Under state law, you may be able to recover damages in excess of what the disability policy provides in the way of monthly disability benefits.

However, most disability claims are governed by ERISA. Unfortunately, the courts have found that ERISA preempts any state laws that allow for compensatory or punitive damages in excess of the policy benefits. For example, in the case of Midwest Security Life Ins. Co. v. Stroup, 730 N.E.2d 163 (Ind. 2000) the Indiana Supreme Court denied the Stroups’ request for punitive damages finding that their health insurance claims were preempted by ERISA. In this case, Patrick and Theresa Stroup received a group health insurance policy from Midwest Security Life Insurance Company as a result of Patrick’s employment and the policy was governed by ERISA because it was an employer sponsored health insurance plan. In January, 1993, Theresa sought predetermination of benefits for surgery to correct congenital problems with her jaw and Midwest approved the surgery. About four months after Theresa’s surgeries, in August 1994, Midwest amended its plan to exclude coverage for orthognathic surgery. In October 1995, she awoke in considerable pain to discover that her jaw had broken. One week later, Theresa underwent bone graft surgery to repair her jaw. In January 1996, Theresa was forced to undergo another surgery because of continued pain and muscle spasms in her jaw.

952313_gavel.jpg Indiana law has long recognized that there is a legal duty implied in all insurance contracts that an insurance company must deal in good faith with its insured. Vernon Fire & Cas. Co. v. Sharp, 349 N.E.2d 173 (1976). The Indiana Supreme Court in Erie Ins. Co. v. Hickman, 622 N.E.2d 515 (Ind. 1993) expressly acknowledged the breach of this duty as an independent cause of action under Indiana law. The Court in Erie recognized that a special relationship exists between an insurance company and its insured because of the unique character of an insurance contract, specifically, the insurance company acts as a fiduciary to the insured. “Easily foreseeable is the harm that proximately results to an insured, who has a valid claim and is in need of insurance proceeds after a loss, if good faith is not exercised in determining whether to honor that claim.” The Court in Erie held that “[A]n insured who believes that an insurance claim has been wrongly denied may have available two distinct legal theories, one in contract and one in tort, each with separate although often overlapping, elements, defenses and recoveries.” The Court in Erie explained that a cause of action for the tortious breach of an insurer’s duty to deal with its insured in good faith arises when the insurer:

  1. makes an unfounded refusal to pay policy proceeds;
  2. causes an unfounded delay in making policy payments;