April 11, 2012

Aetna Refuses to Pay Long Term Disability Benefits to Client with Multiple Sclerosis.

by Kantor & Kantor LLP

Recently we filed an opening trial brief for a client who is disabled by Multiple Sclerosis (“MS”) related symptoms. The matter is set for trial against Aetna Life Insurance Company (“Aetna”), in the United States District Court, Northern District of California, before the Hon. Claudia Wilken.

Our client was diagnosed with relapsing-remitting MS in 1992. After going back to school to acquire new job skills in an effort to elongate his ability to work with MS, our client worked as a Customer Service Center manager for Office Depot in a Bay Area warehouse. By doing so, he was able to continue to financially support his wife and two children.

MS is a disease in which the body’s immune system eats away at the protective sheath that covers the nerves in the brain and spinal cord. This damage interferes with the communication between the brain and spinal cord and the rest of the body. If the nerves themselves deteriorate, the process is not reversible.

Relapsing-remitting MS is characterized by unpredictable relapses of acute worsening followed by periods of relative quiet where no new signs of disease activity occur. The nerve damage done by the relapsing MS attacks may resolve or it may become permanent. In this manner, the disease results in a gradually progressive deterioration of neurologic function. Because the disease attacks the brain and spinal cord, it is easy to understand why some of the main symptoms of MS include cognitive impairment, tremors/spasms, and urinary incontinence.

In 2006, a series of MS attacks began on our client’s nervous system. These attacks reduced our client’s ability to work. Taking every step possible to continue working, our client returned to work in 2007, because Office Depot was able to provide him with job accommodations. Unfortunately, in 2008 the MS attacks on our client’s brain returned. Since then, our client has been totally disabled due to symptoms of fatigue (MS lassitude), cognitive impairment, urinary incontinence, ataxia, dizziness, and tremors. The disabling nature of these symptoms is so common, a fact which Aetna acknowledges on its own website: “Multiple sclerosis, sometimes called just MS, is a disabling neurological illness.”

Because our client is no longer able to work, he made a claim to Aetna for disability benefits under his company’s Short Term Disability (“STD”) Plan, and later, its Long Term Disability (“LTD”) Plan. Aetna has never recognized our client as being disabled. At all times Aetna has claimed our client is able to perform his own occupation. This was wrong.

To prove that Aetna’s actions were illegal, Kantor & Kantor presented the Court with evidence that Office Depot’s actions in the real world supported our client’s disability. We produced evidence that Office Depot had terminated our client’s employment because he was no longer able to work his own occupation.

We also argued to the Court that Aetna’s own medical reviewers had agreed that our client was disabled. Kantor & Kantor comprehensively laid out evidence that eight different doctors (four of them hired by Aetna) had come to the conclusion that our client was no longer physically able to work his light duty occupation. (The U.S. Department of Labor assigns all occupations in the national economy a one of five physical demand levels – sedentary, light, medium, heavy, and very heavy. These levels reflect job duties such as the amount of lifting, pushing, walking, standing, and sitting required to perform the job.) We pointed out that two of these doctors were totally unaffiliated with our client or Aetna. Those two doctors had been hired by the Social Security Administration, and they had found that our client was disabled from any occupation in the national economy.

After Kantor & Kantor sued Aetna, we engaged in a discovery battle to obtain even more evidence that Aetna’s denial of disability was wrong. After Kantor & Kantor filed a Motion to Compel in Federal Court, Aetna produced its own claims handling guidelines. Even though Aetna claimed this information was confidential and privileged, we were able to show the Court that Aetna’s own guidelines appear to dictate an award of disability benefits for our client. We have forced Aetna to explain why it deviated from its own guidelines to deny our client’s disability claim.

Because the disability insurance in this case is part of an employee benefit plan, the matter is governed by the law of ERISA. ERISA limits the remedies available for an insurance company’s wrongful conduct to a recovery of benefits, and an award of attorney’s fees and costs at the Court’s discretion. We hope for our client’s sake, and for all of those who suffer a similar fate at the hands of their disability carrier, that the Court will remedy the injustice perpetrated by Aetna in this case.