Disability Insurance Claims Success Stories

District Court Finds That A Formal Functional Capacity Evaluation is Compelling Evidence of Disability

Stennett & Casino filed a complaint in San Diego Federal District Court against United of Omaha Life Ins. Co. for terminating its client’s long-term disability (LTD) benefits. United of Omaha initially paid LTD benefits due to disability related to the client’s low back pain following two surgeries. Omaha, however terminated benefits after one year concluding that the surgeries had resolved client’s low back problems.

Stennett & Casino had their client undergo functional capacity testing and submitted the findings of that testing to Omaha during the administrative appeal process. The Functional Capacity Evaluation (FCE) found that the client had a maximum sitting tolerance of approximately twenty-seven (27) minutes and a standing tolerance of between two (2) and ten (10) minutes. Omaha had its physician, Dr. Neuren, review medical records including the FCE. Dr. Neuren dismissed the FCE as merely a restatement of subjective complaints and concluded that there was a “lack of support” for ongoing impairment.

United also sent a letter to the client’s treating surgeon asking him to agree with its assessment that although the client had some ongoing limitations due to his back condition, he was able to return to his prior occupation. The surgeon signed the document and returned it to United indicating his agreement.

Prior to the trial, Stennett & Casino contacted the surgeon and provided him with a copy of the FCE and a description of the client’s job duties, which he had never previously seen. After reviewing the FCE he provided a statement in which he deferred to the FCE findings of disability describing it as “thorough in its testing and evaluation of functionality.”

The District Court found that Stennett & Casino had met their burden of proving that their client was disabled under the plan commenting that Omaha’s physician and nurse’s paper reviews, which included no examination, observation or discussion with the client were less persuasive than the information provided by Stennett & Casino from the treating physicians and FCE. The court ordered payment of all LTD benefits to the client. The court’s opinion can be found at Fritch v. United of Omaha Life Ins. Co., 2017 U.S. Dist. Lexis 201141.

How To Overcome A Disability Policy Mental Illness Limitation

Most disability policies have a two-year limitation on benefits for disabilities caused by a mental illness or disorder. Thus if the cause of your disability is depression, you will be limited to 24 months of disability benefits. We are now seeing more policies that expands the mental illness limitation to those disability caused or contributed to by a mental illness or disorder. This type of limitation, applied in the extreme, could result in limiting to 2 years the benefits payable on virtually all disabilities. The following case is an example of Reliance Standard Insurance Company’s attempt to expand the application of this limitation.

Our client came to us after having been paid disability benefits for 5 years by Reliance Standard due to a back injury. The doctors were unsuccessful in treating her condition which left her in constant pain. As a result she developed what was diagnosed as a Chronic Pain Syndrome with symptoms of depression and anxiety. This resulted in Reliance Standard terminating her disability benefits claiming that her disability was contributed to by a mental disorder – depression and anxiety.

Stennett & Casino had to file suit and go to trial on behalf of our client on this issue. We were successful in convincing the court that 1) the client’s back pain was the cause of her depression; 2) the disability policy was ambiguous, and; 3) that the mental illness limitation did not apply to mental conditions arising from a physical disability.  Our client received a judgement for the payment of all back benefits owed and entitlement to future disability benefits. The court’s opinion can be found at Jarillo v. Reliance Standard Life Insurance Co., 2017 U.S. Dist. Lexis 59928.

Neuropsychological Testing Supports Traumatic Brain Injury

Our client was a 64 year old second grade bi-lingual teacher who fell hitting her forehead into a concrete wall. She immediately lost consciousness but believed she was okay.  Over the next several days her family noticed that she was incoherent so she did not return to work but had a substitute teacher cover her classes.

She filed a claim for disability benefits with Standard Insurance Company. They paid her benefits for a year and a half when her benefirs were terminated.  She hired Stennett & Casino to handle her appeal.

It was obvious to us that our client suffered a traumatic brain injury. In order to prove her disability we had her undergo neuropsychological testing. The testing supported her injury.

Stennett & Casino submitted the testing as part of her appeal.  As a result Standard Insurance reopened her claim and paid the benefits owed her under her disability policy.

CIGNA Reprimanded For Denying Benefits to Claimant With Chronic Fatigue Syndrome

The Ninth Circuit Court of Appeals in Salomaa v. Honda LTD Plan 637 F.3d 958 found that CIGNA’s Insurance Company’s decision to deny disability benefits to a claimant with chronic fatigue syndrome was illogical, implausible and without support because:

  • Every doctor who personally examined the insured concluded that he was disabled;
  • The Plan Administrator demanded objective tests to establish the existence of a condition for which there are no objective tests;
  • The Administrator failed to consider the Social Security Disability Award;
  • The reasons for denial shifted as they were refuted, were largely unsupported by the medical file, and only the denial stayed constant;
  • The Plan Administrator failed to engage in the required “meaningful dialogue.”

The Court found that in a disability claim that turned upon subjective evidence, such as the amount of a claimant’s pain and fatigue, it was an abuse of discretion for the insurer to rely solely upon doctors who merely reviewed the records without examining the patient when there was a uniformity of agreement by treating physicians what the individual was disabled.

Another important feature of the case was the Ninth Circuit confirming that CIGNA’s physician report is one of the documents that the Plan is required to provide the claimant as part of its duty to provide a full and fair review.  Most importantly, the Court held that these physicians’ reports must be provided prior to a final determination.  This allows the claimant or his/her physician to comment on or rebut the insurer’s physician report prior to a final determination on appeal.

Disability Claim - Surveillance Video - Back Injury

Our client was in a serious auto accident at the age of 22, which confined him to a wheelchair due to serious back injuries.  Despite his serious disability, he returned to school to learn computer programming.  He successfully returned to the workforce and became a program manager for Oracle Corp.  Due to a combination of his serious back injuries and the wear and tear after 17 years of working as a computer programmer and manager, his back finally gave out, precluding him from working full time.  He applied for and received long term disability benefits.

Four years later, on December 23rd, the insurance carrier placed our client under video surveillance.  The video showed him Christmas shopping with his wife for several hours.  Client was driving with his specially equipped vehicle, getting in and out of his car into his wheelchair and going to various stores.  Based on the video and client’s refusal to take constant pain medication, his benefits were terminated.  Stennett & Casino had our client tested through a Functional Capacity Evaluation and had his doctor prepare additional reports; however, the insurance company refused to pay additional benefits.   We filed a lawsuit in Federal Court and the court found in our client’s favor.  In referencing the surveillance video the court noted that “the plan does not require a claimant to be utterly helpless in order to be eligible for disability benefits…and plaintiff would hardly be the only person overtaxing his abilities when shopping on December 23rd.” The court’s opinion can be found at Robertson v. Hartford Life and Accident Ins. Co. 

Disability Claim - Degenerative Back

Our client was a pharmacist for 32 years.  His back began to bother him the last 6-7 years before he was unable to continue work.  Pharmacists must be on their feet almost all day and his back condition precluded him from standing more than 20 minutes at a time.  The disability insurer denied benefits after doing a job survey to determine that other employers (not our client’s) would allow him to use a stool to accommodate his back problem.

Stennett & Casino retained a vocational expert who performed a more thorough job market survey and found that although employers by phone indicate they will accommodate a disability, when it comes down to actually hiring among several applicants, the disabled are often left out.  Insurers cannot use theoretical jobs as a basis to deny benefits.  They must look at the real world market place in determining if one can return to work.  Based on our vocational expert’s report and more thorough medical documentation of our client’s physical limitations, we were able to conclusively document our client’s disability, resulting in the insurer voluntarily paying disability benefits.

Disability Insurance Claim: County of San Diego (SDCERA)

Denial of Disability Retirement Reversed

Stennett & Casino’s client was employed by the County of San Diego for over 10 years in a clerical position.  She had to stop work because of an injury to her knee resulting from continued banging against a desk when she was placed in an awkward work station.  Despite the fact that she underwent 4 unsuccessful knee surgeries that left her with severe standing and walking limitations and severe pain with extended sitting, the County asserted that it could accommodate her limitations and continue to provide her a sedentary position.

The County denied the client’s claim for disability retirement.  The employee hired Stennett & Casino to represent her at a fact finding hearing.  The primary issue was whether the employee had a “permanent incapacity” precluding her from performing work for the County.  Stennett & Casino had the treating physicians focus on this issue and were able to convince the hearing officer that her constant pain and distress associated with her knee, no matter what position she was placed, precluded her from any full time employment.  Client received her disability retirement benefits.

Disability Insurance Claim: Lupus

Our client was a financial analyst for a large defense contractor.  She had to stop work due to severe symptoms related to her diagnosis of Lupus.  Lupus is an autoimmune disease in which the immune system attacks one’s own body.  Our client was treated with medication to suppress her immune system, which exposed her to other illnesses and infections which her suppressed immune system could not fight.

The client had disability insurance with MetLife through her employer.    MetLife paid benefits for 2 years then cut her off after having her examined by its own physician.  MetLife’s physician reported that client “could probably” perform the tasks of sedentary work; however, he qualified his opinion by stating that with her extensive problems, he did not know whether she could function within the average stress of a workplace.  MetLife ignored the opinions of all treating physicians who supported her disability claim and instead relied on the ambiguous report of its doctor.

After we filed a lawsuit on behalf of our client and took the case to trial, a Federal judge agreed that MetLife abused its discretion in denying ongoing disability benefits.  The court questioned why MetLife would pay benefits and then subsequently terminate benefits without a showing of improvement of her medical condition; questioned why MetLife totally ignored the opinions of the treating physicians and instead relied on the ambiguous and equivocal opinions of its doctor; the court awarded the client back disability benefits, attorney’s fees and the entitlement to future benefits.

To review the court’s entire 30-page opinion, see Watts v. Metropolitan Life Insurance Company, 2011 U.S. Dist. LEXIS 44805.

Disability Insurance Claim: (SDCERS) City of San Diego's Claim of a Pre-existing Condition Reversed

The City of San Diego provides Disability Retirement Plans to employees that differ from private sector plans.  San Diego City employees are provided with two levels of Disability Insurance Benefits:

  1. Industrial Disability Retirement – If your disability is work related, you are entitled to greater benefits from the date of disability regardless of your age.
  2. Non-Industrial Disability Retirement – If your disability is not related to your employment, you are entitled to benefits beginning at age 55.

The criteria for a member to be considered for Industrial Disability Retirement is to be permanently incapacitated by bodily injury or illness caused by their job; are unable to perform the usual duties of their job; and are required to retire. If awarded, an industrial disability retirement benefit is the higher of the following amounts:

  • 50% of your highest one-year salary; or
  • If you are service eligible, your service retirement benefit.

The employee is also offered federal tax benefits available to disability retirement recipients.

However, if the employee has at least 10 years of creditable service and is found to have become permanently incapacitated by a non-work related injury or illness;  is unable to perform your usual job duties and is required to retire; they may be eligible for a Non-Industrial Disability Retirement. If awarded, the retirement will be the highest of the following amounts:

  • 33 1/3% of your highest one-year salary; or
  • 1.5% x number of years of service x highest one-year salary; or
  • If you are service eligible, your service retirement benefit.

There are no federal tax benefits associated with a non-industrial disability retirement.

As you can see, the employees have a tremendous amount of future earnings and tax implications at stake.

Case History and Ruling

Our client began her employment with the City of San Diego approximately 20 years ago as a sanitation worker.  Her job was considered heavy labor in that she had to lift and drag garbage cans weighing anywhere from 50 to 100 pounds on a frequent basis. The job also required her to climb in and out of the truck and climb up and jump off the rear step of the truck. These activities were done repetitively in the course of the day.

Within five years of the date that the client began employment, she suffered an on the job injury to her lower back which continued to be problematic all through her employment.  In addition, the repetitive jumping and climbing caused her to suffer injury to her feet requiring several surgeries.  Both injuries disabled her from returning to her position with the city. The client made a claim with the city for disability retirement benefits dating back to 2006.  The city denied her claim alleging that the back injury was not disabling and the injury to her feet was due to a pre-existing condition (flat feet).

Stennett & Casino took the case through judicial hearing and through cross examination of the city’s doctor and reports from the treating doctors were able to prove that both the back and feet injury were disabling and both were related to her employment. The client received an award of $104,000.00 in past due benefits. that differ from private employer plans.  They provide two levels of Disability Benefits.  If your disability is not related to your employment, you are entitled to benefits beginning at age 55.  If your disability is work related, you are entitled to greater benefits from the date of disability regardless of your age.

Disability Claim: Neuromuscular Disease

Our client was employed as the Clinical Director of a medical research company whose job was classified as sedentary, even though it required her to travel.  She developed a neuromuscular disorder which became progressively debilitating and eventually totally disabled her from work.  Her condition was considered to be permanent and had no treatment or cure.

The insurance company after having her examined by their own rheumatologist determined that our client was able to perform sedentary work.  Their doctor’s report of the examination confirmed that our client had difficulty walking up and down the hall, used a cane, had difficulty getting out of a chair and had measurable moderate weakness in all the muscles of her upper and lower extremities.  Their doctor further reported tenderness in her lower back, swelling in her knees, an inability to perform repetitive grasping and opined that her ability to function would gradually become much more limited.  The insurance company’s doctor summarized these findings to the insurance company and even with these observable limitations, the insurance company continued to deny her disability.

When our client retained us we immediately informed the insurance carrier that the client was being seen by a neuromuscular specialist and submitted a report from the specialist confirming her total disability.  The report reiterated the fact that the disease was progressive.  The insurance company refused to consider this report and refused to reconsider their denial of benefits.

Stennett & Casino filed a lawsuit against the insurance company and was successful in getting the client all of her past due benefits, interest on those benefits and attorney fees as well as having her future monthly benefits reinstated.

Disability Claim: Buy Out of Future Benefits

Our client received a letter from her disability insurance company offering to buy out the future benefits owed to her under her disability policy.  In that letter, a lump sum of money was offered and she was told that the insurance company would pay a minimal amount to have an attorney review the offer.  Stennett & Casino were retained and reviewed the client’s entire disability claim.  Through our review we discovered that the insurance company had been paying our client the wrong monthly benefits for the last five years.  We convinced the insurance company that they underpaid our client $27,755.00 in benefits.  In addition we negotiated the buy out of her future benefits and our client received $9,000.00 more than what was originally offered. 

By hiring Stennett & Casino, our client received additional benefits totaling $346,775.00.

Disability Claim: Cancer

The client had been employed for 8 years as a registered nurse at a San Diego hospital.  In July 1999, she was diagnosed with Stage IV metastasized breast cancer, and underwent a lumpectomy, chemotherapy, radiation and a bone marrow transplant.  All of her doctors considered her to be disabled from work.  She received disability benefits until 2002, when the insurance carrier abruptly denied her disability.

The client sought our help.  We found that the insurance company had misinterpreted her doctors’ reports and violated its own claims manual when it denied her disability.  That claims manual defined what internal rules, guidelines, protocol and criteria the insurance adjuster had to follow in evaluating a claim for disability.  We found that the insurance company’s own manual listed health conditions which, if confirmed, would give the client a presumption of disability.  Metastasized breast cancer was one of those health conditions.  Since this case was not bound by ERISA, we pursued not only the client’s contractual rights but also damages for bad faith under California insurance law.

After a settlement conference Stennett & Casino was were able to successfully settle the matter with the insurance company.  Our client received her disability payments, plus additional money based on our evidence of the insurer’s bad faith.

Disability Claim: Toxic Chemical Exposure

The client was a supervisor in the aerospace industry for 26 years.  In May 2002, he became aware of increased fatigue, coughing, shortness of breath and irritation in his eyes and throat that interfered with his work.  According to the doctor who treated him, the client’s disability was due to a condition called RADS (reactive airways dysfunction syndrome) caused by his longtime exposure to toxic chemicals at his job.  Evidence that he had RADS included his symptoms of achy joints and muscles, chronic fatigue, headaches, difficulty concentrating, irritation of the eyes, nose, ears, throat and skin, and hypersensitivity to odors, lights, sounds and temperature extremes.

The client applied for disability and was denied.  An insurance company doctor said all his symptoms were related to his asthma or the side effects from the various medications he took to control his asthma.  This doctor only reviewed his medical records and never saw the client.

The client came to Stennett & Casino for help.  We contacted the doctor who was the client’s pulmonary/critical care specialist, asking him to comment on the insurance doctor’s report.  Our client’s doctor refuted all of the opinions of the insurance company’s doctor, and said the client was unequivocally, permanently disabled.

Stennett & Casino appealed the decision of the insurance company, based on the strong medical report of the client’s own treating doctor, and the client was awarded disability benefits.

Disability Claim: Reflex Sympathetic Dystrophy

The client was a director of underwriting for an insurance company.  He had been in the business for 17 years.  He sustained a knee injury in the mid 1990s that developed into reflex sympathetic dystrophy (RSD), a pain syndrome that is very difficult to treat.  His condition worsened and his pain distracted him while working.  His pain medications made him drowsy and made it difficult to concentrate.  However, he was a hard working, dedicated employee who wanted to stay on the job as long as possible.

After undergoing two unsuccessful surgeries the client was laid off and filed for disability benefits.  The disability insurer denied benefits, claiming that the fact that he had stayed on his job proved that he was not disabled and that he was laid off only because of a company-wide reduction in force.  The insurer pointed out that the client had to be totally disabled on his last day of work in order to get benefits.  During the administrative appeal process Stennett & Casino documented through employment records, co-employees and the treating physician that the client’s disability occurred before he was laid off.  The insurance company continued to deny the claim and it eventually went to trial.  The trial judge agreed with Stennett & Casino and awarded our client disability benefits.  Attorney’s fees and interest were also recovered.

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