In general, each Long Term Disability plan that issues a denial must have rules that give the disabled person an opportunity to appeal.  Some plans allow for one appeal, while others may offer two appeals.  It is mandatory for the disabled employee to go through one or two of the proper administrative appeals before filing suit in district court.  Once these steps have been followed, you are deemed to have “exhausted” your administrative remedies. 

In the United States District Court for the Northern District of Ohio, Principal Financial litigated an issue against one of our clients concerning whether our client’s lawsuit was appropriately filed.  

Principal Financial argued that our client Mr. Molina’s lawsuit was premature, and that there were still administrative remedies that were necessary to “exhaust.”  After hearing our arguments and presentation of the facts, the District Court agreed that we had successfully exhausted all administrative remedies, and Mr. Molina’s lawsuit was timely and properly filed.  See Molina Report and Recommendations 

            When you apply for long-term disability benefits, many plans will require that you also apply for and pursue Social Security disability benefits.  The logic behind this request is simple.  They will take an offset for any Social Security benefits that you or any dependent in your home receives.  Being granted Social Security benefits diminishes the responsibility of your long-term disability carrier.  The interesting part about applying for Social Security disability benefits is that the long-term disability carrier will often recommend one of their preferred vendors to represent you on your social security claim.  Sometimes these vendors are lawyers and sometimes they are not.  As a recipient of long-term disability benefits, you are not obligated to accept the preferred Social Security representative that you are directed to by your Long Term Disability carrier.  It will not count against you and it will not impair your ability to obtain long-term disability benefits. 

Oftentimes, long-term disability insurers advise individuals who are about to apply for Social Security benefits that these preferred vendors are “free.”  In fact, they are not “free” at all.  All representatives charge a percentage of your past due Social Security benefits if they are awarded.  I have seen many examples where the Social Security vendor proposed by the long-term disability insurer offers free representation but makes the claimant sign a Fee Agreement.  There is nothing free.  I advise all of my clients to typically reject the services of these vendors and instead obtain high quality representation from a qualified social security disability lawyer.  I often tell people in different parts of the country to call NOSSCR’s (The National Organization of Social Security Claimants’ Representatives) Lawyer Referral Service: 800-431-2804 to obtain a list of qualified local social security attorneys near you.

In sum, you have a right to a highly qualified lawyer that is independent of your long-term disability carrier.  Exercise your rights and hire a local social security lawyer to pursue your Social Security disability claim.  Interview your prospective Social Security lawyer in depth and find out what his or her success rate is in your local community.  After examining so many Social Security disability cases, we are beginning to discover the odd relationships that exist between long-term disability carriers and these representatives.  We presently have raised this issue in one of our cases pending in the United States District Court for the Southern District of Ohio.  If we obtain additional information that would highlight the relationship between the long-term disability carrier and their preferred social security representatives, we will post it quickly.

See Spina v. CVS Long Term Disability et al

In 2011 the United States District Court for the Southern District of Ohio ruled in favor of our client, who suffers from dumping syndrome.  After having stomach cancer and the removal of a significant portion of her stomach, our client began to experience intolerable difficulties because of “dumping syndrome”.  Common symptoms of dumping syndrome include frequent diarrhea, extensive bathroom use, the “rapid transit” of ingested food, heart palpitations and many other unpleasant problems.

The Hartford denied her Long Term Disability coverage when our client transitioned to the “any occupation” period of her policy.  The Hartford relied on peer reviewers to conjure up an untrue estimation of our client’s capacity.  Our administrative appeal, despite its thorough approach to explaining the disease, its symptoms, and vocational limitations, was denied by the Hartford.

We quickly filed suit against the Hartford.  On March 2, 2011, Judge Sandra Beckwith of the United States District Court for the Southern District of Ohio at Cincinnati ruled that the behavior of the Hartford was Arbitrary and Capricious.  Specifically, Judge Beckwith found the following behaviors to be Arbitrary and Capricious:

1.  The peer reviewer’s failure to respond to the treating physician’s narrative report, which stated that claimant’s symptoms would impair her attention and concentration to the point of precluding work.

2. The peer reviewer’s inappropriate reliance on one observation (limited weight loss), when so much other evidence was pointing to a contrary view of medical severity.

3. Stretching the interpretation of a single comment by the treating physician   to deny disability benefits for our client.

4. And our personal favorite: The peer reviewers, “cherry picking” through the evidence to support an unjustified conclusion.

The peer reviewers in this case included Dr. Nelson Chao, Dr. Rakesh Vinayek, and Dr. Robert A. Marciniak.  Dr. Vinayek & Dr. Marcinak were supplied to the Hartford by MES, a “clearing house” for peer review reports for the insurance industry.  Both Dr. Vinayek & Dr. Marcinak received a thorough undressing from the court.  Not only were their conclusions found to be unsupported, but their medical “logic” or methodology was lacking.

The court relied heavily on our administrative appeal to get to the truth in this case.  In the end, the Hartford paid all of the litigation fees we requested, and our client was placed back “on claim” and receives her monthly benefit!

Thanks to our client, who was so patient…but so certain that she was right!  You inspire us.  Also thanks to our great staff, Katie and Dianne, who brilliantly support our mission to help the disabled!!

            If your insurer has set up an Independent Medical Examination or scheduled you for a Functional Capacity Evaluation or some other type of examination (which would occur outside of your home), chances are, you are going to be surveilled on the day before the examination, the day of the examination, and the day after the examination.

            We recently had the opportunity to evaluate several surveillance tapes to determine what possible use they had to the insurance company.  The insurance company is not interested in surveilling you on days when it does not know your schedule.  Therefore, when you are scheduled for any type of examination by a long-term disability insurer, YOU SHOULD ASSUME THAT YOU ARE BEING WATCHED.

            For most people this does not present a problem.  For some people, any opportunity to get out of their house translates into a desire to stop by their doctor’s office or a pharmacy or a bank.  It is a well-known fact that many individuals who are on disability frequently combine their trips outside so they don’t have to expend more energy than is necessary and they can recover in the days following these activities.

            Many insurers interpret these “extra stops” as hidden capacity for work.  Most of the surveillance that we see, frankly, is useless in the demonstrating or determining excess capacity.  We recently watched a video of our client who was standing out in front of his house with his dog on a leash.  We also witnessed a client stepping outside with his cane for a cigarette.

            To the insurance industry, these activities are demonstrative of working capacity.  In reality any reasonable vocational or medical expert will tell you that these small activities do not contain enough information that would translate into full-time, part-time, or even volunteer work.

            The thing to remember is that if you think you are being watched by your long-term disability carrier, you probably are!