I could not find a lawyer in Delaware to take my case for short term disability, although they would take it for Social Security and long term disability. I was referred to Bonny by a lawyer that would not take my case. By the time I contacted her it was the last day for my appeal. She was not going to take my case because she did not have time file for the appeal but told me she would help me with the letter to the State requesting an extension for the appeal. I knew from her staff she was to attend an award ceremony that evening and was heavily involved in other case deadlines. However, as she helped me write the letter she reviewed the reason I was denied and short time period I was given for the appeal and it angered her so much she decided to take my case because I was unfairly denied benefits. She called the OMB for the State of Delaware and got a verbal extension for my appeal. I do not think she made it to her dinner that night because she was on the phone with me until after 5 preparing the case. Some lawyers state they are a voice for the disabled but she really is a caring, hard working person and without her I had no chance of winning against one of the largest insurance companies. She worked tirelessly, for over a year with no money, using the resources of her staff and firm. She has a wonderful staff that is very knowledgeable and helpful. When I got the call we had won I was so surprised because I had given up. How do you thank someone who gave you back your financial security?

The outcome of this study has meaning for disability claimants because it further supports how depressed patients with a processing speed deficit can indeed experience functional impairment related to their ability to work. Such claims should undergo a careful analysis of how both conditions, taken together and individually, affect the claimant's specific work duties.

The complete press release is available online at
http://www.utsouthwestern.edu/utsw/cda/dept353744/files/575962.html

It is worrisome that insurance companies are now using the Internet as a new frontier to investigate claimants. The disabled must be careful not to divulge their personal lives in public. Of course, disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity. Smith v. Califano, 637 F.2d 968, 9971 (3d. Cir. 1981). However, the disabled must be especially careful since even a small amount of activity on the internet may cause an insurance company to jump to conclusions about their level of activity. With must time on your hands, it is better not to reveal too much on the internet.

Here, Dunn pointed out that since Johnson & Johnson stopped all benefits such as medical and life insurance when they denied her disability claim, they benefited financially from their own decision. But the court noted that Johnson & Johnson did not pay for such benefits since the insurance benefits are funded through a trust. Further, the court held the Johnson & Johnson Pension Committee, the claims administrator is walled off from any conflict of interest since a trust funds the LTD program.

The court next considered whether a procedural irregularity, bias or unfairness in the processing of the claim exists. The court found that requesting an IME when all evidence in the record supported disability was a procedural irregularity. Deciding that Dunn could perform a sedentary job without a discussion of her skills or capacity and how these skills transferable to sedentary job was also not based upon substantial evidence. The court reasoned "Defendant has failed to connect the medical evidence to Dunn's actual physical capacity." The court remanded the case for further review by Johnson & Johnson.

B. Rafel commentary: The court's decision regarding the structural conflict disregards evidence regarding The Reed Group's incentive to recommend the denial of claims. The contractual relationship between such a third party claims administrator must be closely examined through discovery. The decision to remand this case will give the administrator the opportunity to repair its mistakes. In the meantime, this disabled person is deprived of disability benefits for years, and without the funds to pay its counsel. Although Dunn is the "prevailing party", the court did not make a decision regarding counsel fees. In such cases, the plaintiff should be awarded fees, as a deterrent to similar claim denials in the future. Otherwise, these ERISA abuses will continue unabated.

Aetna's peer reviewers denounced the disability without ever evaluating her, basing their opinions, in part, on Kao's ability to perform home chores such as laundry and her ADL's. The medical reviewers challenged Kao's claims of her cognitive impairment, claiming that there were no valid tests of her cognitive ability. The court upheld the denial on many bases.

The court rejected Kao's assertion that only in the final denial did Aetna disclose what type of clinical evidence Kao should have collected to refute the denial. Although Kao proved that Aetna's doctors had not reviewed a crucial medical form completed by her doctor, the Court found that to be inconsequential. The court rejected Kao's expert vocational analysis since it was based on the "platform of subjective data that Aetna rejected as untenable." The court rejected Kao's claim that she was entitled to review the medical reviews before the final decision was made so that she could rebut the evidence since there was no new evidence relied upon, only medical reviews conducted of the evidence in existence.

Bonny Rafel commentary: It remains to be seen how performing some home chores and taking walks correlates with an ability to work full time on a sustained basis for a demanding employer. We are troubled by the court's acceptance of an argument that Kao's disability needed to be proven with "objective evidence", when the very opinions of her board certified medical treating doctors are considered "objective."

One bright light in this otherwise dark outcome is that the court expressed no opinion as to whether, during the pendency of administrative appeal a claimant is entitled to rebut appeal-level documents that raise a novel ground for denial or otherwise implicate the issues that the claimant had no opportunity to address in preparing the appeal.

Interestingly the peer reviewer suggested that Liberty undertake surveillance of its insured to check her functionality,which Liberty declined to do, noting "surveillance is an aggressive tactic" that itself may constitute procedural irregularity." How can Liberty then, in other cases rush to surveil our clients who have confirmed, significant medical problems which cause functional limitations and restrictions?

Liberty used a Nurse Case Manager to review the appeal, who acknowledged an inconsistency in the views of their hired medical reviewer and the treating physician but then failed to pursue further medical consult to clarify which view to accept. The court reasoned that Liberty cannot turn a "blind eye" to faults in the evidence supporting its consultant's opinions and then use that opinion to support a denial.

In a disappointing decision, the New Jersey Supreme Court upheld the lower courts' decision to deny an award of counsel fees. Thus the insured remains saddled with both fighting the unjust denial of his case, and paying his own counsel fees. The Supreme Court refused to consider this a "third party claim" for insurance coverage, although the policy insured a doctor and the beneficiary of the policy proceeds was the entire orthopedic practice.
My concern is that our New Jersey Supreme Court overlooks the extreme financial distress experienced by insureds in New Jersey when their insurance company, who readily accepts the premium payments refuses to pay a legitimate claim without justifiable reason. When the insured is forced to litigate the action, he is faced with an additional expense, that of competent counsel to represent him. Experienced counsel will typically spend hundreds of hours fighting for their client's legal rights to insurance money. But when New Jersey counsel wins the case, the client has to pay their fee, often from the proceeds of the insurance claim. Therefore the insured is not "made whole" by the successful litigation. Until our Supreme Court and Legislature take a closer look at this issue, unfortunately insureds will continue to suffer financially even when they win the battle.

Dual occupations in the disability context most often arise when the insurer claims its policyholder is not disabled since he can still perform important aspects of his other occupation. The insurer argues that the insured had two or more occupations at the time the insured claims to be disabled, and because the insured remains able to work full time in one of those occupations, the claimant is not entitled to benefits. This is often a fabrication of fancy wordsmithing the occupational duties of a single occupation into another.

An insurance company may claim the dentist or doctor really had two occupations, one working as a surgeon or dentist, and another, keeping office hours, and running his medical practice.

Here, the submission of detailed records and an overview of the duties of the occupation which cannot be performed is key to a successful claim. However, she cautioned that often the insurance company sends authorizations for the unwary claimant to sign which then entitles the company to investigate his entire financial status, including obtaining credit card records, personal investment details and other data that is not relevant to the claim and invasive of the claimant's privacy.

"As long as the information is relevant to the claim, you should provide it, but when it crosses the threshold into private matters," she suggested, "do not provide this data because once in the insurance company's file, it is no longer protected under HIPPA or from disclosure to the public."

She offered her services to dentists in attendance, who then sent their disability policies for her to review to examine the level of income protection the dentist has purchased and whether this "investment" is "likely to pay off" should disability strike.

For the past five years, insurers have repeatedly attempted to rely on their own in-house medical reviewers, vocational assessors, and peer reviewers to rebut the opinions of the treating physicians. Comfortable under the blanket of the US Supreme Court case of Black & Decker Disability Plan v. Nord, 538 U.S. 822; (2003), companies concluded that as long as there was some support for their conclusions, the court would not give the treating doctors' views overwhelming weight. However, the need to present concrete evidence to rebut the conclusions of treating doctors remains a theme which continues to undermine any lasting impact of Nord. Courts almost universally recognize that a physician who has developed a long-term clinical analysis of the claimant should have the most insight to the claimant's condition.

Who has the final say as to a claimant's functional limitations? Is it the treating doctor, the insurance employee medical consultant or the physician who performs a single examination? How much weight will the court apply to a vocational assessment? Suspected company or examiner bias against finding a claimant disabled has become a key factor when reviewing support for a denial and is greatly influenced by a recent US Supreme Court case of MetLife Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008).
As long as the treating doctor keeps detailed records of his patient's condition, notes restrictions and limitations and bases his opinions on an accumulation of medical data and clinical evaluations, his views on functionality should carry great weight.

Another topic worth mentioning is whether an IME should have been performed before a claim is denied. Lately, many courts have concluded that IMEs should have been performed either due to the complexity of the medical condition, or in light of strong disagreement between the paper reviewers and the treating doctors. There are many cases in which the court faults the companies for not having an IME when there are conflicting opinions regarding the functionality of the claimant. A recent case demonstrates that an IME was needed. In Schwarzwaelder v. Merrill Lynch & Co., Inc., 2009 U.S. Dist. LEXIS 19451 at *36 (W.D. Pa. Mar. 9, 2009) MetLife selectively considered the available evidence, relying upon the paper-reviewers over more detailed and consistent reports from the claimant's three treating/evaluating physicians. The court noted that this practice was troubling, particularly as Metlife had discretion to supplement the medical evidence with an independent medical evaluation ("IME"), but elected to forego other personal evaluation of Plaintiff's mental health.

You can learn more about long term disability denials and how to succeed with appeals of insurance company decisions by going to her website.

Ms. Rafel discussed how disability insurance companies deny claims by ignoring valid, reliable evidence provided by the disabled and under valuing statements of friends, family and treating doctors. Ms. Rafels' focus on insurance company misleading medical examinations and the limits of "functional capacity examinations" were discussed and court battles analyzed.