October 9th, 2013

The 9th Circuit Federal Court of Appeals, in the case of Stephan v. Unum Life Insurance Company, 697 F.3d 917 (9th Cir. 2012) overturned a trial court’s finding that the public record did not demonstrate that UNUM had a history of “biased claims administration.”  The Stephen Court specifically stated

“Numerous courts, including ours, have commented on Unum’s history “’of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics.’”  Indeed, in Saffon, we attributed the trend of state prohibitions on discretionary provisions in insurance contracts to ‘the cupidity of one particular insurer, Unum-Provident Corp., which boosted its profits by repeatedly denying benefits claims it knew to be valid.  Unum-Provident’s internal memos revealed that the company’s senior officers relied on ERISA’s deferential standard of review to avoid detection and liability.’”

The Stephan court also cited Professor Langbein’s article entitled, “Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA” 101 Nw. U. L. Rev. 1315, 1317-21 (2007) and the CSA (California Settlement Agreement) with UNUM in which the State of California found UNUM violating California’s Fair Claims Practices Act.

The importance of this finding that UNUM has a history of biased claims handling is that under ERISA, courts dealing with claims for benefits under an employee benefit plan (where the insurer is granted discretionary authority) must consider an insurer’s conflict of interest when weighing the evidence.  One of the elements reflective of one’s conflict of interest is an insurer’s history of biased claims administration.  (MetLife v. Glenn, 554 U.S. 105, 117 (2008)).  It is very difficult to establish that an insurer has a history of biased claims administration.  Claimant’s counsels spend an enormous amount of time and effort in trying to do so; however, their efforts are resisted not only by the insurance companies by also by the courts in their limiting of the availability of formal discovery in ERISA cases.

Claimants with lawsuits against UNUM now have the benefit of the Ninth Circuit declaring that the public record does indeed support a finding that UNUM has a history of biased claims administration.  This should require the courts to place a greater importance on UNUM’S inherent conflict of interest that exists because UNUM, as the insurer and claims administrator, makes the decision on who receives benefits under the Plan and pays those benefits out of their own pockets.

January 17th, 2013

Posted In:

Lyme Disease is difficult to diagnose.  Although there are some laboratory tests that can confirm the diagnosis, the condition is mainly diagnosed clinically.  As a result, insurance companies often sieze upon the opportunity to argue that there is not objective proof of disability.

Lyme Disease is a bacterial infection transmitted by the bite of an infected tick. A person may be aware of the bite; however, he may not be aware that the tick was infected.

In its early stages, Lyme Disease may be a mild illness with flu like symptoms such as fever, chills, swollen lymph nodes, headache, fatigue, muscle aches, and joint pain.  However, these symptoms usually do not appear immediately after the bit but may take anywhere from one to two weeks to develop.  In some instances a rash around the bite site may be obvious, but it is usually not a concern because it is not painful.  Since the symptoms mirror so many other diagnoses the disease is often misdiagnosed, and therefore, remains untreated.  The symptoms are generally mild and can wax and wane and thus, the disabling symptoms of the disease may not become apparent until later in life.

Of particular concern with Lyme Disease are the neurological abnormalities that can accompany the physical symptoms.  These neurological symptoms can be subtle but are frequently the cause of disability.  They include numbness, pain, paralysis of the facial muscles, fever, headache, neck stiffness.  Some individuals with a diagnosis of late chronic Lyme Disease are more susceptible to developing varying degrees of permanent joint and/or nervous system damage.

Insurance comapnies target these claims for denial because

(1)  the cause of the disabling condition is remote and often not diagnosed.  A tick bite suffered early in life and which was not disabling will become disabling years afterward when the permanent joint and/or nervous system damage becomes obvious; or

(2)  insurance companies limit these claims to two years by classifying them as being based on “self-reported symptoms.”

In truth these claims are not solely based on self-reported symptoms and there are strategies to avoid these limitations in coverage.

October 19th, 2012

Posted In:

We have noted higher denial rates for disability claims from clients who suffer from fibromyalgia and chronic fatigue syndrome.  In order to combat these denials it is important to understand why insurance companies deny these claims.  Fibromyalgia and Chronic Fatigue – though two separate diagnoses – have several similarities.  The medical community has not yet come up with any objective testing to confirm the diagnosis of either condition.  They are diagnosed based on the subjective symptomology and the exclusion of other possible explanations for the symptomology.  The overriding symptoms are joint and muscle pain and incapacitating fatigue often referred to as brain fog.  It has been described as if you have a constant bad flu with every muscle in your body shouting out in pain.  In addition, you feel devoid of energy as though someone has unplugged your power supply.

Insurance companies have taken advantage of (1) the fact that there is no objective testing to support the diagnosis of these conditions or to measure the amount of pain or fatigue a patient suffers as a result of these conditions; and (2) the fact that the conditions tend to wax and wane, so that one day a patient may be able to go about his daily business in an ordinary manner, then the next day, because of the extended effort from the day before, they may be bedridden.  Because of the variability of the symptoms and thus the capacity of the patient, it is very difficult for the treating doctor to quantify how long a person can sit, stand, walk or lift.  These are the types of measurements insurance companies like and when doctors cannot provide accurate estimates of a patient’s limitations then the insurer cites that as a basis to deny benefits.

Where an insurance policy contains no specific requirements for objective proof, it cannot deny a claim for lack of such evidence.  This is particularly true where there is no objective evidence to confirm the diagnosis of chronic fatigue or fibromyalgia.  The Federal Courts have repeatedly held that insurance companies who deny these claims for lack of objective evidence are acting unlawfully.  Salomaa v. Honda LTD Plan, 647 F.3d 958 (9th Cir. 2011).

Thus, the strategy must be to:

(1)  Provide the strongest evidence possible to support the diagnosis and symptoms and how that precludes the claimant from performing his work; and

(2)  Point out how the insurance company relies solely on objective evidence (that does not exist) and ignores all the relevant subjective evidence.

September 13th, 2011

Posted In:

Lupus is an autoimmune disease that can affect various parts of the body, including skin, joints, heart, lungs, blood, kidneys and brain.  Normally the body’s immune system makes proteins called antibodies, to protect the body against viruses, bacteria, and other foreign materials.  In an autoimmune disorder like lupus, the immune system cannot tell the difference between foreign substances and its own cells and tissues.  The immune system then makes antibodies directed against itself, causing inflammation, pain and damage in various parts of the body.

Lupus can cause unique problems in proving that one is disabled from returning to full time work.  For most people, lupus is a mild disease but for others, it can cause serious and even life threatening problems.  Currently there is no single laboratory test that can determine whether a person has lupus or not.  Many lupus symptoms mimic other illnesses and are sometimes vague and may come and go, making it difficult to diagnose.  Additionally, the symptoms can be varied.

The most common disabling conditions being:

  • achy joints
  • fever
  • arthritis/swollen joints
  • prolonged or extreme fatigue
  • anemia
  • kidney involvement
  • pain in the chest on deep breathing/pleurisy
  • neurological disorder
  • blood clotting problems

Oftentimes no single condition is disabling in itself.  It is a combination of the symptoms and sometimes even the treatment thereof that become disabling.  One of the primary aggravators of the disease is physical and emotional stress, both of which are found in most work places.

A proper understanding of the disease process is necessary to properly document and support a disability claim.  We at the law firm of Stennett & Casino have dealt with clients suffering from lupus and can effectively help in the proper presentation of a lupus disability claim.

To view a lupus claim handled by Stennett & Casino click here.

September 8th, 2011

Posted In:

A multiple sclerosis “flare” is a sudden worsening of one or more symptoms of the disease or the appearance of new symptoms which can last anywhere from days to weeks to months.  These exacerbations although temporary can be disabling, precluding a patient from gainful employment.

Many clients who apply for disability benefits may be observed by an insurance company during a period when a patient is not experiencing a MS “flare.”  However, since these “flares” can occur as frequently as once a month, a worker may be precluded from continuous gainful employment because the worsening or new symptoms frequently causes a worker to be absent from work during the “flare.”

We at Stennett & Casino are aware of this waxing and waning of symptoms and are able to help clients convince the insurance company that this is a very real part of the MS diagnosis.

Has your claim been denied
in the last 90 days?
Testimonials →

Website by TMG