New Jersey Disability Lawyer Blog

In a recent case in the Third Circuit, the District Court determined that Prudential's decision to accept the opinions and conclusions of its experts without explanation was arbitrary and capricious. Ricca v. Prudential Ins. Co. of America, 2010 U.S. Dist. LEXIS 106148 (E.D.Pa. September 30, 2010) The Eastern District of Pa Court found fault with Prudential's decision to rely entirely on reviews performed by clinicians who had not examined the claimant and selectively consider and credit medical opinions without articulating its thought processes for doing so.

This is particularly applicable where, as here, the evidence it claims to rely on favors its employer and consists of non-treating and nonexamining experts and there is substantial evidence to the contrary. See also Elms v. Prudential Ins. Co. of Am., No. 06-5127, 2008 U.S. Dist. LEXIS 76917, at *18-20 (E.D. Pa. Oct. 2, 2008) (rejecting as a self-serving, selective use of physicians' reports, Prudential's almost exclusive reliance on file reviews performed by non-examining physicians as weighed against evidence from doctors who had treated or examined and had concluded the patient was impaired by significant disabilities).

What was interesting about this case is that the District Court focused on Prudential's failure to discuss, specifically, in its three declination letters, why or how the medical data failed to support an injury or sickness within the Policy's definition of disability. They noted that the disparity between the voluminous administrative record and the conclusory evaluations of plaintiff's condition by Prudential's health experts, made it impossible to review Prudential's decision because it is unclear whether the evidence of her medical difficulties was credited in whole or in part or not at all -- or instead, was simply not considered. Based on this opinion, it appears as if courts are looking for insurance companies to better explain their rationales, and how they weigh the evidence, and not just fall back on "medical records fail to support a disability" argument.
"Given the conflicting evidence in the record, Prudential's decision to accept the opinions and conclusions of its experts without explanation is itself arbitrary and capricious."

This case was remanded to the administrator for a thorough and careful analysis of all of the evidence, including the rationale for accepting its experts' opinions in preference to those of plaintiff's treating and examining health experts. This is the type of claim in our Third Circuit that our firm, Bonny G. Rafel LLC relies on to convince the Courts to reverse a denial based only on a "peer review" rather than an in person, thorough medical examination.

We often are retained once a claim has been denied. All too often, the denial is based on a breakdown in communication between the patient's doctors and the administrator evaluating the claim because the nature and extent of a patient's disability is not communicated clearly by the claimant's treating physicians to the insurance company.

Insurance companies periodically request treatment notes or claim forms to be completed by the claimant's physicians. Even seemingly straightforward questions by the insurance company can be construed to raise questions about the patient's disability. Oftentimes, with limited time to spend per patient, a physician will not list all the symptoms present in the diagnosis, or fails to mention the significance pain has on a patient's abilities.

Physicians constantly express their frustration -- that their priority is spending time treating the patient-- not gearing their notes to please the insurance companies. Unfortunately, insurance companies latch onto any small indication by treating physicians that the patient is doing well enough to return-to-work, or is no longer disabled. A recent New York Times article states, "A doctor's note turns into a cut-and-paste collage instead of an accurate and personalized narrative of illness; and documentation becomes an electronic and potentially dangerous version of the game 'Telephone.'"

Entitlement to disability benefits often turns on the quality of treating doctor's accurate and thorough responses. Too often, New Jersey disabled claimants are denied benefits due to inadvertent statements made by the treating physicians.

To avoid this scenario, provide your doctor with a statement detailing your disability and your symptoms which he or she can reference while completing forms on your behalf. It is also helpful to bring the insurance company's forms to your visit, and together go over any questions that could be misconstrued. Consistency is vital, and an open line of communication with your doctor means less opportunity for mistake.

The Law Office of Bonny G. Rafel, LLC often acts as the liason between the treating doctors and the insurance company and can guide you through a seemingly daunting process.
Contributed by Bonny G. Rafel

Many of our clients suffer from Chronic fatigue syndrome. Several years ago, the Centers for Disease Control and Prevention issued some protocols for establishing that a patient has the condition. Nevertheless insurance companies regularly deny disability claims based on CFS, often using the excuse that there is "no objective evidence" to substantiate the medical condition. There is no diagnostic test, no blood test and no scan, so diagnosis is made by excluding other conditions. The common symptoms, such as severe fatigue, muscle pain and weakness, rely on a patient's perception and are hard to measure. In addition, many of the symptoms are also present in other conditions.
Courts are increasingly recognizing that a medical condition can be disabling even if it is difficult to diagnose and treat.

The Wall Street Journal Reports in "The Puzzle of Chronic Fatigue" notes that patients with chronic fatigue syndrome are focusing on new research. In 2009, researchers published a paper in the journal Science announcing that in 67% of the samples of 101 chronic fatigue syndrome patients, they had found a retrovirus called XMRV. The article notes exciting research by Dr. Bellis and others who believe there is a link to retroviruses. These studies on the link between the family of retroviruses and the disorder are likely to carry significant weight in the scientific community. This will prove quite useful in pending disability cases grounded on CFS.

Notably, The Centers for Disease Control and Prevention believes that of the estimated one million to four million Americans who have it, less than 20% have actually been diagnosed. 1 to 4 million Americans are believed to have the disease. CFS is most common in women (522 cases per 100,000) and minorities.

Interesting to note that the FDA has not made a final decision, but the American Red Cross, the largest supplier of blood in the U.S., no longer accepts blood from people with the disorder.

We at Bonny G. Rafel LLC can assist you with your disability claim based on Chronic Fatigue Syndrome.

A recent article in the Wall Street Journal reports that "loopholes in a federal law intended to protect worker benefits" make it easy for insurers to make erroneous arguments with near impunity. On March 11, 2010, "Death of a loved one can be beginning of hard fight with life insurer"provided a sampling of recent cases where Metropolitan Life Insurance Company, the nations largest insurer, and Prudential, who advertises that it provides disability insurance to the most Americans, play hardball particularly with cases governed by ERISA, because the penalties for erroneous decision making is simply a slap on the wrist. The article reports "since 2008 federal judges have concluded that some insurers cheated survivors by twisting facts, fabricating excuses and ignoring autopsy findings to withhold death benefits."
Unfortunately, under ERISA, employees have no rights to a jury trial and no rights to compensatory or punitive damages. The most the insurer can be forced to pay if they lose, is the benefits they should have paid in the first place and sometimes the counsel fees of the unfortunate claimant who had to hire legal counsel to fight the insurance company. Often the cases take up to two years or more to get to judgment in Federal Court. Meantime, the claimant suffers financial struggles they never imagined would occur when they were convinced to buy the policies from the insurers eager to take the premiums but so reluctant to pay, even bona fide claims without a long battle.

The law firm of Bonny G. Rafel will help even out the playing field by providing you solid advise and counsel on your ERISA claim. It is important to have experienced counsel guide you during this difficult process. As your counsel we will strive to create an administrative record that provides all the evidence needed to convince the reluctant insurer to pay you the benefits due, during the appeal or when faced with litigation.

As Tom Baker, deputy dean of the University of Pennsylvania Law School noted, "if ever a law backfired for the public ERISA is the perfect example."