Articles Tagged with “Termination of long term disability benefits”

Earlier this month, Judge Richard Posner abruptly announced his retirement from the United States Court of Appeals for the Seventh Circuit after more than 35 years on the bench, effective the following day. Judge Posner, a prolific writer and author of more than 3300 judicial opinions and nearly 40 books, was one of the most prominent appellate judges in the United States and the most-cited legal scholar of the 20th century, according to a survey by the Journal of Legal Studies. He carefully drafted his legal opinions to be easy to read and understand, and his signature concise, frank, and often humorous writing style helped to modernize the discipline of legal writing, presenting a stark contrast from the overly formal, long-winded “legalese” that had long dominated the legal field.

Just over three months prior to his retirement, Judge Posner authored an opinionKennedy v. The Lilly Extended Disability Plan, 856 F.3d 1136 (7th Cir. 2017), awarding substantial long term disability benefits to Cathleen Kennedy, an O’Ryan Law Firm client who had been forced to stop working in her position as an HR executive for Eli Lilly & Company as a result of severe fibromyalgia, a nightmarish condition characterized by chronic widespread musculoskeletal pain and fatigue that often presents with psychosomatic symptoms such as sleep and memory issues, anxiety, and depression. Unfortunately, because many of the primary symptoms of fibromyalgia – especially pain and fatigue – are difficult to objectively measure, the condition has historically been misunderstood and often goes undiagnosed due to the lack of a reliable means of testing for it. As a result, those who suffer from fibromyalgia also frequently must deal with the frustration caused by doubts about the validity of their condition and symptoms by friends, family, and sometimes even their healthcare providers.

Fortunately, recent scientific advances in the understanding of fibromyalgia have led to increasing acceptance of the validity of the condition and its profound impact on the lives of those who suffer from it. Judge Posner recognized this in his opinion, noting that Lilly itself markets a treatment for fibromyalgia and has been advised by one of its own physicians that fibromyalgia “is not only very common but is typically also very disabling” and that many victims of fibromyalgia “end up needing to stop working because of this condition.” Nonetheless, Lilly had terminated Ms. Kennedy’s long term disability benefits after she had been disabled for nearly four years due to fibromyalgia, despite the fact that her primary treating physicians had declared her to be permanently disabled, largely because there was no objective laboratory data proving the validity of her symptoms. Lilly claimed that although Ms. Kennedy was unable to work full time in her previous executive-level position, she could still work part time in one of “various non-executive positions” in her field.

O’Ryan Law Firm, on behalf of a former employee of Purdue University recently filed a lawsuit against Cigna for wrongfully denying the former Purdue employee’s disability claim.  The plaintiff had was a long time employee of Purdue, worked at Purdue for over 32 years, until he became unable to continue working in May 2013 due to chronic respiratory failure, cardiomyopathy,  recurrent pneumonia, atrial fibrillation, bronchial asthma, and osteoarthritis.  The Purdue employee’s treating physicians provided objective medical proof that the Plaintiff was unable to continue working due to these this combination of symptoms.  Cigna originally approved the claim but then terminated his benefits contending that the Plaintiff could return to work.

Prior to Cigna’s termination of the Plaintiff’s long term disability, a Functional Capacity Evaluation was performed that actually showed that he was unable to return to work. The functional capacity report states, “Mr. R has been off work since 2013 after developing problems with lung infections and difficulty breathing. He shows fair static muscle strength in the lower extremities when seated, however, is unable to functionally use his legs on stairs, working off the floor, getting to the floor, sustained walking and standing. Mr. R. showed a consistent standing limit to 2 minutes at a time.” Throughout the exam, Mr. R demonstrated using a cane to walk, labored breathing and slight wheezing, along with needing to rotate positions and taking multiple breaks. The physical ability assessment concluded Mr. R is only able to stand two minutes at a time, rarely able to walk, and rarely able to lift/carry 0-10lbs.

Under video surveillance conducted by Cigna on 3 separate days, there was no activity on the 1st and 3rd days, and when the Plaintiff was observed, he used a cane when walking

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.