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A former podiatrist and current national judo champion and marathon runner collects long-term disability benefits

Attorney Stephen JessupAuthor: Attorney Stephen Jessup

Our client, a 54-year-old podiatrist, came to Attorneys Dell & Schaefer after the long-term disability insurance company refused to pay him long-term disability benefits. Our client’s disability policy provided that he would be totally disabled if he were unable to perform the substantial and material duties of his occupation. Furthermore, the disability policy stated that if he was disabled before age 55, then he would be eligible for long-term disability benefits the remainder of his life.

This case was challenging, because while our client had stopped practicing podiatry, he continued to participate in his lifelong activity of Judo. Our client not only participated in Judo, but he had won several national and world Judo competitions following his date of disability. Furthermore, following the date of disability, he continued to participate in two half marathons and a few other running races. The disability insurance companies position was that if you can compete in Judo, participate in Judo competition, and still exercise daily, then you can perform you occupation as a podiatrist.

In order to verify the activities of our client, the disability insurance companies hired a private investigator to follow our client around and take hundreds of hours of disability video surveillance. The disability company did extensive background checks on our client in order to verify his participation in Judo competitions and running races. Additionally, the disability insurance company sent two different company representative to his house in order to speak with him about his claim for disability benefits. During a visit with our client, the disability insurance company offered our client a low-ball offer to buy-out his disability policy.

At the time of filing for disability in October 2007, our client told the disability insurance company that he stopped working as a podiatrist on August 1, 2007 and started his new job as medical product sales rep the next day. Our client had been offered his new job about two months prior to stopping his work as a podiatrist. The disability insurance company challenged the fact that he claiming total disability yet he started a new job the very next day. The disability insurance company was also concerned that he was working less in his new job and making more money than he was a podiatrist. According to the disability insurance company, the combination of disability income benefits and payment from the new job would be a windfall for the client.

The insurance company also alleged that our client had not been to a doctor within the eight months prior to his August 1, 2007 date of his disability. Our client was claiming disability due to a back, neck and shoulder condition. In mid 2006 our client was having extensive back pain and he underwent a series of epidurals to help improve his condition. He continued to work as podiatrist up until August 2007, but he did not return to his orthopedic doctor until a few weeks after his date of disability. The disability insurance claimed that our client did not have appropriate medical treatment as required by the disability policy.

In September of 2008, our client retained Attorneys Dell & Schaefer to assist him with his claim for long-term disability benefits. At our initial meeting with the client we discussed his pre-disability occupational duties as a podiatrist and his past medical treatment. Based upon our complete review of our client’s file, we determined that the disability carrier was missing a significant amount of information that would help our client to obtain disability benefits. For example, our client had primarily told the disability insurance company about his back and neck problems, but he did not present them with additional medical information regarding his shoulders, knees and hip that had been bothering him for years. Through our assistance, we told our client the actions he needed to take in order to properly document his disabling conditions. Our review of our client’s MRI and X-rays of his neck, back, shoulders, and knees, allowed us to make a presentation that our client had long-standing serious medical issues and he could no longer perform his duties as a podiatrist. The client’s cervical and lumbar MRIs revealed moderate to severe stenosis and neural foramina narrowing at almost every level. His shoulder MRIs revealed tears in both shoulders and his both knees had chrondomalacia with a meniscus tear in the left knee. We understood that despite our client’s medical difficulties that he was going to try to participate in Judo until the day he died, even if his body was falling apart at the same time.

After we were retained, we asked the disability insurance company to provide us with a copy of the entire claim file. The disability insurance company was not required to provide us with a copy, however they agreed to do so. If a lawsuit were filed, then they would be required in most cases to turn over a complete copy of the client’s claim file. It was clear from our review of the disability insurance companies correspondence and claim file that they did not understand the daily duties our client would perform as a podiatrist.

Most disability insurance companies will be quick to assume that the occupational duties are the same for each individual based upon an occupation title such as podiatrist. Our client worked as podiatrist in a HMO/ Medicare clinic, which required him to see 40-50 elderly patients per a day. Our client did not have a nursing assistant and was responsible for all aspects of treating the patient. This meant helping the patient on and off the examination table, preparing instruments for procedures, making sure all medical supplies were available, documenting the patient’s chart and performing all treatment and podiatric procedures without any assistance. The client would perform a morning session from 9-12 and then an afternoon session from 1-5. In an effort to help make himself more comfortable while working, our client had ordered special ergonomic chairs, seat cushions and back supports. Despite these efforts, he would experience pain and discomfort within 15 minutes of working. The disability insurance company did not understand the scope of our client’s occupational duties.

Based upon what Attorneys Dell & Schaefer believed to be a lack of communication between the disability insurance company and our client, we suggested a pre-suit mediation in an effort to attempt to have our client’s claim for benefits approved. The most difficult was distinguishing how our client could be a judo champion but not perform his duties as a podiatrist. The disability insurance agreed to mediation and after a full day of presenting the claim to the disability insurance company and negotiating different settlement options, a confidential agreement was reached.

The settlement provided our client with a lump sum buyout of his disability policy, which was the equivalent of him receiving total disability benefits for the next 11 years. In addition, our client has the ability to perform any occupation he should desire without having to worry about the disability insurance company questioning him about any of his activities.

Disability attorneys Gregory Dell and Steven Jessup handled this case.



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