Articles Tagged with claim denied

The term “long haulers” has started being used to describe people who have not fully recovered from COVID-19 weeks or even months after first experiencing symptoms. Some long haulers experience continuous symptoms for weeks or months, while others feel better for weeks, then relapse with old or new symptoms. The most common lingering symptoms are fatigue, body aches, shortness of breath, difficulty concentrating, inability to exercise, headache, and difficulty sleeping.

A new Northwestern Medicine study published this week in the Annals of Clinical and Translational Neurology analyzed 100 non-hospitalized COVID-19 long haulers and discovered 85% of patients experienced four or more neurologic symptoms which impacted their quality of life, and in some patients, their cognitive abilities. The study included 100 non-hospitalized COVID-19 long haulers from 21 different states who were seen in-person or via telehealth from May to November 2020.

The long haulers suffered persistent neurological issues, including brain fog, headaches, numbness/ tingling, disorders of taste and smell, and various myalgias. Additionally, 85% reported experiencing chronic fatigue. Among the long haulers who were in the study 47% also reported struggling with anxiety, stress, depression, and sadness. As a result, many patients experienced decreased quality of life and about half the patients in the study missed more than 10 days of work.

One of the most crucial pieces of evidence in supporting a long term disability claim is the opinion of the claimant’s treating physician that he or she is disabled.

Many physicians are more than happy to assist their patients with forms required by the LTD provider and in some cases, narrative accounts of their patient’s disabling condition.

Sometimes, though, even with the support of your physician, problems can still arise. Often, this is because of the office visit notes your physician makes with each of your visits. Phrases such as, “doing well,” “symptoms improved,” “responding well to medication,” while meant as shorthand by the doctor that her treatment plan is working, are often used by the insurance company to conclude that you are no longer disabled.

Health insurance plans provide coverage only for health-related serves that they define or determine to be “medically necessary.” Medical necessity refers to a decision by your health plan that your treatment, test, or procedure is necessary for your health or to treat a diagnosed medical problem.

Most health plans will not pay for healthcare services that they deem to be not medically necessary. The most common example is a cosmetic procedure, such as the injection of medications to decrease facial wrinkles or tummy-tuck surgery. Many health insurance companies also will not cover procedures that they determine to be experimental or not proven to work.

Hereditary Leiomyomatosis and Renal Cell Cancer (“HLRCC”) is a very rare genetic condition that was named in 2002. It is also known as Reed’s Syndrome. HLRCC is a disorder in which affected individuals tend to develop benign tumors containing smooth muscle tissue (leiomyomas) in the skin and, in females, the uterus. This condition also increases the risk of kidney cancer. Surveillance and monitoring for HLRCC is recommended starting at around age 5-8 years.

If a claim for ERISA disability benefits is denied or terminated, the claimant’s next recourse is to submit an administrative appeal to the insurance company. An ERISA long-term disability claim cannot be taken to court until the administrative appeals process is first exhausted. If the appeal is denied and the case proceeds to litigation, ERISA constrains the scope of evidence that is heard at trial and also limits the available remedies. (For this reason, ERISA is favorable to the insurance companies since it does not contain strong disincentives for denying meritorious claims).

It is important to understand that, with rare exceptions, the evidence submitted on appeal is the only evidence that will be considered in litigation—in other words, once the insurance company makes a final decision on an appeal, the file for litigation becomes closed. New supporting evidence does not get added during litigation and no witnesses are called to the stand to testify. The judge makes a determination based on the legal briefs submitted by the attorneys on both sides and a hearing at which the attorneys present arguments and answer any questions the judge may have. This makes ERISA litigation is a very particular type of litigation  governed by certain rules and limitations which make the process quite different from many other types of litigation such as personal injury.

For this reason, thoughtful preparation and submission of all relevant evidence for the administrative appeal is absolutely imperative. Appealing the denial of a disability claim is not just a matter of refuting the insurance companies’ reasoning for the decision or pointing out overlooked facts. Rather, it is the one opportunity to assemble the strongest possible body of evidence that can be presented in court if the appeal is denied.

Unum is one of the biggest disability and life insurers in the United States, owning subsidiaries including Provident Life and Accident Insurance Company and The Paul Revere Life Insurance Company. Unum generates billions of dollars in revenue and has boasted high rates of growth over the past few decades. Unum has also built a bad reputation for unfair handling of disability benefits claims over the years. Their aggressive and unfair tactics to avoid paying benefits to insured individuals resulted in numerous lawsuits and class actions for insurance bad faith practices, with trial losses totaling well over $100 million.

On top of individual lawsuits and class actions, in the early 2000’s, insurance regulators undertook a multistate market conduct examination to investigate reports of wrongful practices related to delaying and denying legitimate disability insurance claims.  As a result, Unum entered into a multi-state settlement agreement in 2004 in which Unum agreed to review denied claims, implement new claims handling procedures, and pay a $15 million civil penalty. On top of the multi-state settlement agreement, California regulators undertook their own investigation and Unum’s California settlement agreement entailed an additional $8 million penalty as well as changes to policy provisions and claims handling procedures.

Some of the most striking problems with Unum’s handling of disability claims that insurance regulators identified included the following:

Here at Kantor & Kantor we constantly find ourselves working closely with SSDI attorneys on behalf of our clients. Even more often, the evidence we secure on behalf of our clients during their LTD disputes can be utilized by your clients to support their SSDI claim as well. Here are some thoughts on our clients’ intersection between LTD and SSDI.

If we have a mutual client, use us as a resource to fight the substantive disability claim.

We can promptly provide copies of critical case documents, including testing or expert reports we have acquired in support of our client’s LTD fight. Our evidence saying a claimant is completely unable to work in any occupation on even a part time basis should be similarly useful for your SSDI case.

The riots throughout the United States have been heartbreaking on a number of levels. While the social and political implications will be something our country grapples with for years into the future, the economic effects will be felt immediately.

Small businesses, already devastated by the pandemic and government-mandated shutdowns, are now having to deal with damage from riots and looting.  How are businesses going to recover from this double assault on their bottom line?

Ideally, most businesses have insurance to provide security in the event of riots or looting.  However, many insurance policies have exclusions of or limits on activities that could be viewed as “terrorism.”  We do not yet know how insurers will categorize the riots.

Over the years, courts deciding ERISA cases involving accidental death due to autoerotic asphyxiation have issued mixed opinions as to whether benefits should be payable. In a recent decision, Wightman v. Securian Life Ins. Co., No. CV 18-11285-DJC, 2020 WL 1703772 (D. Mass. Apr. 8, 2020), a district court upheld the denial of accidental death benefits due to the insured’s death caused by autoerotic asphyxiation gone awry.

Plaintiff Anne Wightman sued Securian Life Insurance Company after it denied the accidental death benefit claim filed as a result of her husband, Dr. Colin Wightman. This policy expressly excluded death when caused directly or indirectly by, among other things, “suicide or attempted suicide, whether sane or insane . . . intentionally self-inflicted injury or attempt at self-inflected injury, while sane insane” and “bodily or mental infirmity, illness or disease.”

Dr. Wightman had been in therapy since the late 1990’s for his interest in sexual asphyxia. Dr. Wightman told his wife about his interest in “sex-related strangulation” in 2007 after he engaged in a sexual encounter that led to a complaint to the police, and Dr. Wightman losing his job. Dr. Wightman sought mental health treatment as a result from June 2007 through April 2010. He also was prescribed medication to help treat his addiction, which he took through 2015. The court noted that records from his mental health treatment highlighted Dr. Wightman as having “high risk sexual behavior [that] has led to possibility of charges for sexual assault.”

An employee who becomes disabled while covered by an employer-sponsored disability plan may qualify for short-term disability (STD) benefits and then long-term disability (LTD) benefits, based on the length of the disability and the terms of the plan. However, some LTD policies require that the employee not only apply for STD, but “exhaust” it, meaning receive the maximum amount of benefits allowed under the policy, before they may pursue LTD. If an employee received all but one day of the full STD benefit, they may still have to go through the appeals process or risk eligibility for the more valuable LTD benefit.

Kantor & Kantor was recently retained by a client, who we will refer to as John Smith for anonymity.  Mr. Smith was employed by a large corporation as a Material Handler who was responsible for all supplies and materials needed to manufacture medical devices.  Unfortunately, he became disabled by degenerative disc disease and painful spondylosis of his lumbar spine.  In addition, he suffered from sciatic nerve pain in his back.  His painful conditions necessitated medications which also caused side effects and impacted his functioning.

Mr. Smith’s company’s disability plan claim involved the situation described above, except that his STD claim was terminated just a few weeks before he received the maximum duration of benefits.  He unsuccessfully appealed his STD denial on his own before hiring the law firm.  In evaluating his STD claim and his potential LTD claim, the attorneys identified the following language in his LTD policy:

You have a business, and you were a responsible business owner.  You insured it against a variety of possible calamities, and included business income interruption insurance so you could continue meeting your financial obligations even if there is a disaster.

But then COVID-19 hit, and the government put everyone in your area on lockdown. Maybe your business can’t operate at all remotely, or maybe it “just” has taken a huge hit as people stay home.  Regardless, now is the time you need your insurance.

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