Short term disability Archives - McKennon Law Group

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim to handling a claim denial, through preparing a case for litigation. In Part Eleven of this series, we discuss personal statements from claimants and third-party witness statements in support of a claimant’s disability, which can help to support a disability claim that is based upon subjective symptoms like pain and fatigue.

We often see claimants who suffer from subjective conditions like Chronic Fatigue Syndrome, fibromyalgia or generalized chronic pain face difficult hurdles in getting their disability benefits paid precisely because of the subjective nature of these conditions. See our blog post regarding our recent trial victory in DeVries v. Aetna in which our client suffered from Chronic Fatigue Syndrome.

Under the Employee Retirement Income Security Act of 1974 (“ERISA”), judicial review of an insurer’s denial of benefits is typically limited to the administrative record that existed at the time the appeal was denied. After a complaint has been filed in federal court against an insurance company, generally, very limited discovery is allowed, and witnesses are normally not permitted to testify. Therefore, before an insurer reaches an appeal decision, it is important that the claimant submit as much information as possible to the insurer in support of their disability. For conditions like depression, chronic headaches, chronic pain, Chronic Fatigue Syndrome, fibromyalgia and other ailments, it may be impossible to supply objective evidence to prove that one suffers from these conditions. Because of this, courts recognize the importance of personal statements and third-party witnesses in support of a disability claim.

The Ninth Circuit’s recent decisions require insurers and the courts reviewing disability claim denials to take these types of statements into account when deciding an employee’s claim, including the claimant’s subjective self-reports of their symptoms and pain level. In a fairly recent long-term disability insurance case governed by ERISA, Kibel v. Aetna Life Ins. Co., 725 F.App’x. 475 (9th Cir. 2018), the Ninth Circuit emphasized the importance of these statements. In Kibel, the claimant, Margueritte Kibel, submitted a personal statement to her disability insurer Aetna regarding the subjective symptoms that she suffered, such as pain, fatigue and other such complaints. The court found that “the district court clearly erred in failing to consider the personal statement that Ms. Kibel submitted explaining that her fatigue did, in fact, render her totally disabled.” In her personal statement, Ms. Kibel described her fatigue as “an overpowering feeling of extreme tiredness, exhaustion, [and] weakness[.]” In this personal statement, Kibel further explained how it left her “completely drained” and caused “a complete slowdown of [her] brain and body[.]” The Court found that this evidence in the form of Ms. Kibel’s own personal statement, when appropriately considered, further supported a finding that Ms. Kibel’s condition prevented her from performing the duties of her occupation. For that reason, the Ninth Circuit reversed and remanded, and instructed the district court to direct an award of benefits to Ms. Kibel and conduct any further proceedings consistent with the order.

The Kibel court relied on the Ninth Circuit’s opinion in Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 904‑07 (9th Cir. 2016)for the rule that both a district court and a disability insurer must “consider a claimant’s subjective account of pain” and corroborating friend/colleague statements when deciding whether she is disabled. See also Godmar v. Hewlett-Packard Co., 631 F.App’x 397 (6th Cir. 2015). In Godmar,the court considered the claimant’s statement that was submitted with his appeal, in which he explained that he was on morphine 24 hours per day, could no longer drive and slept more than 20 hours per day several times per week, to support a finding that the insurer had abused its discretion in denying benefits. Similarly, in Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092, *12‑13 (C.D. Cal. Dec. 5, 2016), the court considered the claimant’s subjective personal accounts of her migraine-related pain and found that her policy did not require objective medical evidence to support her disability claim.

These findings are further supported by the Ninth Circuit’s holding in Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011), in which the court held that a “lack of objective physical findings” does not necessarily justify a denial of benefits; that is, a disability insurer may not condition coverage on proof by objective indicators such as blood tests when the condition is recognized even though no such proof is possible. In Salomaa, the court looked at a statement by the insured’s boss, who wrote that before his disability Samuel Salomaa “was one of the few people in southern California to walk or jog to work, and had been a superb employee until he got sick, and that those at Honda aware of his difficulty getting his disability benefits were ‘appalled.’” The court also considered a statement by Mr. Salomaa’s brother-in-law, who wrote that he got to know Mr. Salomaa when they were students at Harvard and MIT, that Mr. Salomaa had been very energetic and intelligent, but that more recently he had noticed that Mr. Salomaa had profound apparent changes in comprehension, ability to plan and stamina. His brother-in-law recounted the time when he “drove [Mr. Salomaa] and their daughter from Los Angeles to Arkansas. For the entire trip [Mr. Salomaa] was either fully or partially reclined in the back of their Honda Element… When stopping to eat, [Mr. Salomaa] could not manage to eat in the restaurant. I would go in to order the food, and then bring it back to [Mr. Salomaa] to eat in the car.” These accounts are compelling evidence of disabling conditions that can be hard to objectively measure, like Chronic Fatigue Syndrome, chronic pain syndrome, fibromyalgia and chronic migraines. In addition, observations made by persons with first-hand knowledge of a claimant’s disability must be considered by the administrator, but administrators rarely address or scrutinize these statements in their denials. Indeed, we typically see administrators ignore these types of statements. Courts often place emphasis on these omissions by administrators in choosing to overturn a denial of benefits.

Personal statements and third-party witness statements can be the difference between a denial and an award of long-term disability benefits; this was the case for Ms. Kibel. With this in mind, personal statements must be relevant to the circumstances and should include the following information: (1) a detailed description of the duties of your occupation as you performed them; (2) a detailed discussion of the history of your condition; (3) a detailed discussion of your symptoms; (4) how those symptoms, such as pain and fatigue, impact your ability to perform the duties of your occupation; (5) how your disability has also impacted your overall quality of life; and (6) a discussion of the things you could previously do but no longer can. It is also important that you write your own personal statement. It should sound authentic, and the best way to achieve that is by writing it in your own words. Moreover, because personal testimony is a form of proof that typically raises credibility issues, it is likewise important that you gather corroborating statements from colleagues, friends and family. We often see powerful corroborating statements from spouses who witnessed first-hand how the claimant has been affected by the disability, close friends who saw a marked decline in a claimant’s activity level or abilities or co-workers who could speak to a claimant’s work capacity both before and after the onset of disability.

Even though disability plan language rarely requires objective proof of conditions that are subjective in nature, we often see insurers deny disability benefits for claims based on such absence. At the appeal stage, it is important, often crucial, to send to the insurer a personal statement written by the claimant. In addition, witness statements from friends, family members or co-workers can have a powerful impact on a reviewing court when it assesses the credibility of the claimant. Given the lack of discovery in ERISA matters, these statements could mean the difference between a benefit denial and a favorable result.

We have significant experience in handling ERISA and non-ERISA disability insurance cases in which an insurer denied a claim based on a lack of objective evidence or a claimant has a disability condition that is subjective in nature and difficult to prove and measure. If your insurer or plan administrator has denied your disability claim, please contact McKennon Law Group PC for a free consultation so that we may assess your matter.

Disabled claimants who suffer from conditions like myalgic encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) often face difficult hurdles in getting their disability benefits paid because of the subjective nature of these conditions. There is no objective test,such as an imaging study or blood test, to definitively prove that someone is feeling tired or weak. Yet, the medical community accepts ME/CFS as a complex and debilitating medical condition that often prevents people from doing their usual activities. Our client Nancy DeVries is afflicted with this condition and made a claim for short-term disability (“STD”) and long-term disability (“LTD”) benefits with her group disability insurer, Aetna Life Insurance Company (“Aetna”). After briefly paying her STD benefits, Aetna suddenly denied her claims, relying upon the reports of hired medical consultants who performed “paper reviews” of our client’s medical records and claimed that she had full-time work capacity. Our client hired McKennon Law Group PC to vigorously contest Aetna’s denial of her claims. We filed a detailed complaintunder the Employee Retirement Income Security Act of 1974 (“ERISA”) and took the matter to a bench trial.

In a 24-page opinion dated June 17, 2020, CentralDistrict of California federal court judge David O. Carter ruled in favor of McKennon Law Group PC’s client in her lawsuit against Aetna. DeVries v. Aetna Life Ins. Co., 2020 WL 3265108 (C.D. Cal. June 16, 2020). Judge Carterdiscussed several deficiencies in Aetna’s denial decision, focusing on the fact that Aetna did not consider Plaintiff’s “substantial and material acts necessary to pursue [her] own occupation,” and that the administrative record was “replete with evidence that Plaintiff suffers from a disability.” The court specifically noted numerous laboratory tests that produced abnormal results, the repeated notes and diagnoses offered by her attending physicians, including her diagnosis of Chronic Fatigue Syndrome. The court noted generally in Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011) that the Ninth Circuit held that a “lack of objective physical findings” does not necessarily justify a denial of benefits; that is, a disability insurer may not condition coverage on proof by objective indicators such as blood tests where the condition is recognized even though no such proof is possible. DeVries, 2020 WL 32651108, at *8. Judge Carter also noted that the group policy at issue did not require “proof” to meet a specified degree of “objectivity,” nor did it exclude the presentation and consideration of subjective evidence, such as reports of a claimant’s symptoms. Id.

The court then underwent a detailed analysis of ME/CFS:

According to the U.S. Centers for Disease Control and Prevention (“CDC”): ‘[ME/CFS] is a disabling and complex illness’ which often prevents people from doing ‘their usual activities.’ The CDC notes that ME/CFS ‘changes people’s ability to do daily tasks, like taking a shower or preparing a meal,’ and ‘often makes it hard to keep a job, go to school, and take part in family and social life . . . Researchers have not yet found what causes ME/CFS, and there are no specific laboratory tests to diagnose ME/CFS directly. Therefore, doctors need to consider the diagnosis of ME/CFS based on in-depth evaluation of a person’s symptoms and medical history. It is also important that doctors diagnose and treat any other conditions that can cause similar symptoms.’ DeVries, 2020 WL 32651108, at *9.

Based on its analysis of ME/CFS, the court found that Plaintiff had demonstrated by a preponderance of the evidence that she suffers from clinically evaluated, unexplained and persistent chronic fatigue of new onset as of approximately August 2016. Id. at *10. The court pointed to Aetna’s own paper reviewer who found that Plaintiff’s complaints of fatigue were consistently noted throughout the course of treatment and that she sufficiently provided evidence of tender lymph nodes, muscle pain, multi-joint pain, unrefreshing sleep and post-exertional malaise. Id. Because of this, the court found that “at the very least, then, the Administrative Record suffers from Chronic Fatigue Syndrome.” And, given the nature of her condition, the court found Plaintiff’s treating physicians to be more reliable witnesses than Aetna’s hired paper reviewers who failed to examine her in person. Id.

The court also considered the relevant standard of disability under Plaintiff’s policy with Aetna: that her disease or disability prevents her from performing the substantial and material acts necessary to her own occupation. The court found that Plaintiff consistently represented that she suffered from severe fatigue, sometimes to the degree that she was unable to get out of bed. Judge Carter wrote, “It is obvious that her fatigue would impair her ability to carry out the wide array of analytical, strategic, and material tasks that were expected of her in the regular course of her own occupation as a Senior Business Analyst.” Id. at *11. The court criticized Aetna’s application of this standard, as Aetna had only considered whether she could perform a sedentary occupation. Judge Carter noted that substantial and material acts may include a level of physical activity, but there is no basis for interpreting “substantial and material acts” as defined by or limited to the physical activity of an occupation. Id. at *9, citing Sabatino v. Liberty Life Assurance Co. of Bos., 286 F.Supp.2d 1222, 1232 (N.D. Cal. 2003) (“Inability to perform sedentary work is not the definition of disability set forth in the policy. The relevant definition of disability in the policy is ‘unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an injury or sickness.’”).

Ultimately, Judge Carter found that our client was totally disabled from performing the material duties of her own sedentary occupation. The court awarded our client all of her benefits for the Policy’s “own occupation” period, plus prejudgment interest and our attorneys’ fees and costs. The order from the court will allow our client to collect all of her substantial attorneys’ fees and costs that she incurred while aggressively fighting Aetna for the last two years.

This decision provides substantial support to claimants who have subjective symptomology that is difficult to objectively measure. We often see insurers deny claims of our clients who suffer from chronic pain, Chronic Fatigue Syndrome, fibromyalgia, migraine headaches and other syndromes. Insurers may deny these claims based upon a “paper review” medical consultant who reviews medical records and forms an opinion on a claimant’s restrictions and limitations. This presents a difficult task for both the claimant to prove their own subjective conditions and for insurers to verify the legitimacy of claims. Thankfully, the Ninth Circuit protects claimants who suffer from these conditions. The DeVries opinion clarifies and substantiates the Ninth Circuit’s precedent and importantly considered that an “own occupation” policy definition does not simply mean a sedentary job. In fact, insurers must consider the analytical, strategic and managerial tasks that are expected of employees in the regular course of their occupations, not simply the physical requirements.

If your insurance company or plan administrator has mishandled or denied your claim, please contact our firm for a free consultation. We have extensive experience handling long-term disability claim denials under both ERISA and non-ERISA cases.

Facing a long-term disability (“LTD”) claim, insurers often attempt to tip the scales against insureds in order to deny legitimate claims for benefits. This imbalance can become especially pronounced where an insured primarily suffers from disabling conditions that are subjective in nature and difficult to objectively measure. Instead of accepting the statements of physicians who certify an insured’s disability claim, insurance companies often deny claims due to a lack of “objective evidence” or perform a “paper review” of an insured’s medical file by contracting with “independent” peer-review medical vendors who supply physicians to review claimants’ medical files. These vendors and physicians have an inherent bias in favor of insurance companies, as they are financially dependent upon insurance companies and routinely contradict the opinions of insureds’ treating providers.

In a recent LTD decision involving Aetna Life Insurance Company (“Aetna”), Woolsey v. Aetna Life Ins. Co., 2020 WL 1083932 (D. Ariz. Mar. 6, 2020), the District Court of Arizona, under an abuse-of-discretion standard, found that Aetna had committed several violations of the Employee Retirement Income Security Act of 1974 (“ERISA”), entitling the matter to be remanded. The court found that Aetna failed to effectively and meaningfully communicate with the plaintiff, failed to consider the comorbid effect of his disabling conditions, arbitrarily dismissed the conclusions of his treating providers, failed to address the requirements of the plaintiff’s specific vocation, violated its duty to investigate, failed to disclose paper-review reports to the plaintiff and failed to explain what was necessary for him to perfect his appeal. The decision highlighted several of the tactics that we routinely see group-disability insurers use to deny ERISA claims.

Plaintiff Michael Woolsey worked as a financial advisor for UBS Financial Services until he made a claim for short-term disability (“STD”) and LTD benefits with Aetna on January 6, 2016, due to issues with migraines and depression that precluded him from working in his own occupation. Id. at *1. Woolsey also successfully underwent treatment for prostate cancer and experienced suicidal ideations. Due to the nature of many of Woolsey’s disabling conditions, treating notes largely reflected his own self-reported symptoms. Aetna initially approved his STD claim based on representations from his primary-care provider, a physician’s assistant who referred him to a neurologist and psychologist.

Following a transition from STD to LTD benefits, Woolsey’s claim for LTD benefits was denied on July 1, 2016. Woolsey appealed Aetna’s determination. He submitted additional medical records as well as a supportive disability letter from his neurologist who noted that Woolsey “clearly remains unable to work because of his frequent headaches” and “continues to remain disabled.” Id. at *4. During its appeal review, Aetna contracted the third-party vendor Reliable Review Services (“RRS”) to conduct paper reviews of Woolsey’s file. Despite the support of Woolsey’s treating providers, the two reviewers found his record to be insufficient to support a determination of “significant impairment.” Aetna then denied Woolsey’s appeal on December 15, 2016, upholding its LTD benefits denial. The reviewers determined that specific restrictions that would prevent Woolsey from working were not supported, because of a lack of clinical correlation for such restrictions. Id.

The court noted that Woolsey’s medical records prior to his LTD claim were “shockingly thin,” and that Woolsey had attempted to return to work. The court also noted that Aetna initially denied his claim due to a lack of “objective clinical examination findings to support subjective symptoms.” Id. at *8-9. However, the court found several ERISA violations that entitled the matter to be remanded back to Aetna to cure its defects.

First, the court criticized Aetna’s reliance on the opinions of RRS’ paper reviewers. Id. at *10. The court stated that “undoubtedly, . . . RRS is well-compensated for its services. Its share of Aetna’s independent-review business increased from 2015 to 2016.” Id. The court further found that the statistical evidence of Aetna’s relationship with RRS supported a finding common in ERISA cases: that independent reviews are prone to the same conflicts of interest that afflict ERISA plan administrators.

In fact, RRS touts on its Website that “Disability plans are serviced through independent peer review, which provides clinical expertise to support plan decisions.” (Emphasis added). This is not surprising; insurers like Aetna are its main source of income. If RRS only provided opinions that had an inherent bias in favor of insureds, it would surely go out of business. Its profit-driven business structure is exactly the reason why courts routinely dismiss these biased peer reviewers’ opinions in favor of the opinions of the doctors who had actually treated insureds.

The court further criticized Aetna’s paid consultants, who failed to consider the aggregate effect of Woolsey’s conditions, but instead deferred to other physicians for assessments in areas outside of their areas of expertise. Id. at *10. The court thus found a “procedural violation for Aetna’s failure to consider the possibility that the conditions’ combined effect was disabling.” Id. The court also noted the paper reviewers’ dismissive attitude toward Woolsey’s treating providers, evidenced by how they “gave short shrift to, or fail to address entirely [Woolsey’s doctor’s] observation that [Woolsey] ‘clearly remains unable to work.’” Id. The court found that more deference to Woolsey’s treating providers’ opinions was warranted and that the RRS paper reviewers’ dismissive treatment of Woolsey’s treating providers’ opinions was irregular. Id., citingC.F.R. § 2560.503-1(h)(2)(iv) (requiring plan administrators to consider documentation submitted by a claimant at the appeal stage).

In addition, the court in Woolsey criticized Aetna’s deficient and inadequate communication with the plaintiff. The court found that “Aetna engaged [the plaintiff] in dialogue regularly, but not meaningfully.” Woolsey, 2020 WL 1083932 at *12, citing Booton v. Lockheed Medical Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (determining that what ERISA, “[i]n simple English[,] . . . calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries” such that “if the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it.”) While Aetna communicated in part with Woolsey’s treating providers, the court noted that “Aetna failed to disclose those reports to [the plaintiff] and explain what was necessary to perfect his appeal ‘in a manner calculated to be understood.’” Id.,citing 29 C.F.R. § 2560.503-1(g)(1). The court further found that Aetna had violated its duty to investigate when it largely discredited or ignored the opinions of Woolsey’s treating providers, who concluded that he was unable to work. Id. at *13.

The Woolsey case underscores the tactics that Aetna and other group disability insurers use to deny disability claims. We often seen insurers deny a claim for disability benefits after discrediting a claimant’s subjective accounts of disability (while implicitly demanding objective evidence of a condition for which no objective results could exist), relying on paper reviewers to deny a LTD claim, hiring biased and financially conflicted vendors to conduct a paper review of a claimant’s medical file, discrediting the opinions of treating providers (who concluded that a claimant is unable to work), failing to furnish copies of paper reviewers’ reports to the claimant and failing to engage in a meaningful dialogue with claimant. Woolsey sheds light on these insurer-friendly tactics and indeed found them to be procedural ERISA violations. Hopefully, courts encountering similar insurer tactics to deny disability claims will respond to them with similar skepticism as the Woolsey court did here.

If your disability insurer denied your claim for STD or LTD benefits, please contact our firm for a free consultation. We have extensive experience with handling the denials of ERISA STD and LTD claims.

The Basics of an ERISA Life, Health and Disability Insurance Claim – Part Eleven: Personal Statements and Witness Statements

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