To Remand or Not to Remand: One Court's Opinion on When to Remand a Claim for Long Term Disability Benefits under an ERISA Aetna Policy

In a recent ruling in the case of Dupell vs. Aetna, which pertained to rights to long term disability benefits under an ERISA governed group disability policy, a West Virginia Federal Judge ruled that the ERISA based disability litigation before the Court should not be dismissed on Motions for Summary Judgment filed by Ms. Dupell or Aetna. Furthermore, the Court ordered that the case should not be remanded back to Aetna for further review, but rather go to trial on the merits.

Factual Overview of Aetna Long Term Disability Claim

In 2008, prior to filing a claim for disability insurance benefits under her employer provided group long term disability policy administered by Aetna, Ms. Dupell worked as a sales consultant in the construction industry. She had a long history of back pain resulting from discogenic and degenerative disc disease, which would eventually require surgery. Prior to filing for LTD benefits, it is interesting to note that in 2005, based upon her extensive medical history, she was deemed “incapable of substantial activity” by the Social Security Administration and began receiving Social Security Disability benefits. A testament to her desire to work, she began working as a sales associate on a trial work basis as permitted by the rules of the SSA. Prior to the end of the nine month trial period she was hired on a full time basis with the company from which she would file for the disability benefits that are the subject of this lawsuit. She continued to work for approximately two years before her medical conditions again prevented her from performing the duties of her occupation as a sales associate.

Ms. Dupell filed for long term disability insurance benefits in March of 2008 and was initially approved for benefits under the 24 month “own occupation” definition of disability. During this time, the Social Security Administration also reinstated her disability benefits retroactive to November 2007, after again determining she was incapable of work. Throughout the following 2 years she provided Aetna with objective medical evidence to support her ongoing complaints of pain, to include multiple MRIs, as well as undergoing various procedures in an attempt to control her pain. In March 2010, during an “any occupation” review for entitlement to continued benefits, Aetna determined that her conditions did not prevent her from performing any gainful occupation as defined by her Policy, effectively terminating her claim as of April 1, 2010.

Ms. Dupell appealed Aetna’s termination through an ERISA Appeal, providing Aetna with additional MRI evidence, letters of support from her treating physicians, and the results of an independent medical evaluation she underwent, which supported her inability to work at any level. However, in December of 2010, based on peer reviews conducted by Aetna’s doctors, none of whom ever physically examined Ms. Dupell, Aetna upheld it’s denial of her claim asserting a lack of clinical evidence to support functional impairment. In January of 2012, Ms. Dupell filed a long term disability lawsuit against Aetna. This claim was not handled by our law firm.

ERISA Disability Litigation Against Aetna: A Brief Overview

Long term disability insurance lawsuits against Aetna insurance company are fairly common experience. In order to understand the importance of the Court’s ruling in Dupell, it is important to have a general idea as to the nature of litigation under ERISA governed long term disability policies. Prior to even being able to file a lawsuit against an insurance carrier for a denial of benefits, ERISA requires that the claimant file an administrative appeal (also known as an ERISA Appeal) of the insurance carrier’s adverse determination. If you have ever received a denial letter, you are familiar with the common language of having “180 days to file an appeal.” Based upon the policy and procedure of the insurance carrier, a claimant may only have one opportunity to file an appeal. This appeal is essentially the final opportunity for a claimant to provide additional evidence of disability for, in the event that the Appeal is denied, no additional information can be added to the record. A final denial of benefits is commonly expressed in a denial letter with language to the effect that the claim is now closed and you now have the right to bring a civil action under ERISA.

What does it mean to bring a civil action under ERISA?

ERISA governed policies are under the sole jurisdiction of the federal courts and, as such, a lawsuit brought under ERISA must be filed in Federal Court. Unlike what is commonly depicted in TV shows and movies, the plaintiff (claimant) does not get the traditional “day in court”. The plaintiff does not get to sit in a witness stand and tell their story to a jury or even a judge. In ERISA lawsuits, there is no live testimony from the claimant or any of their doctors in 99% of the ERISA cases. The Judge’s review of the case is essentially limited to a review of the documents contained in the Administrative Record.

What do you have to prove at trial?

The burden of proof at trial under an ERISA governed policy is a case to case analysis based upon the language contained within the Policy and the governing jurisdiction of the Policy. Unfortunately for a large percent of claimants, many policies contain what is known as a Discretionary Clause which provides the insurance company with the right to interpret the Policy as it sees fit and affects a Court’s Standard of Review. Without getting into too much detail, a discretionary clause essentially provides the insurance company with the benefit of the doubt when a Judge reviews the company’s conduct and review of a claim at trial. If a discretionary language is contained in the disability policy, a Plaintiff has the burden of (1) proving they are disabled (based upon the information in the administrative Record) and then, and only then, (2) showing that the insurance company acted unreasonably in denying the claim. This is a general, layman’s rendition of the Standard of Review in an ERISA case.

What is a Motion for Summary Judgment?

Simply put, a Motion for Summary Judgment is a motion filed by either the plaintiff or the defendant in which they argue that their position is correct and that the court should rule in favor of one side or the other without the need for a trial. In the Dupell vs. Aetna case, both Ms. Dupell and Aetna filed Motions for Summary Judgment, both of which were denied by the Court. In denying these motions the Court opined that there existed an issue of fact with respect to the evidence in the case that required the matter to be resolved at trial.

In the instant case, Ms. Dupell made motion for the Court to remand her case back to Aetna. In doing so, she argued that Aetna had insufficient evidence to render a decision on her claim. Specifically, she argued that Aetna should have had a functional capacity examination performed to document her physical restrictions and limitations. Aetna argued in rebuttal, and the Court agreed, that the onus to prove disability was on Ms. Dupell and that Aetna had no duty to secure specific forms of evidence. The Court further noted that Aetna allowed her the opportunity to provide information to support her disability during the course of the appeal and that Aetna had sufficient evidence, to the tune of 41 documents, with which to review in rendering its decision. In turn, the Court denied Ms. Dupell’s motion to remand her case back to Aetna for further consideration.

What can we take away from this ruling?

This ruling reinforces the overwhelming importance of preparing and filing a strong ERISA appeal of a denial of disability benefits. We have received numerous calls from claimants whose claims have been denied after they have filed their own appeals. This dramatically hinders the ability of prevailing at trial as certain evidence that might have proven beneficial to support disability was not provided, and can no longer be added into the record. The Court in Dupell made it clear that, no matter how unfair it may seem, the duty to prove disability lies on the claimant and not the insurance company. In this case Aetna had no duty to have Ms. Dupell undergo a functional capacity evaluation even though it might substantiate her claim for disability. Ms. Dupell’s failure to undergo such testing on her own and provide the results of same with her appeal now prevents her from being able to present this potentially supportive information to the Judge at trial.

Every single claim for benefits is unique, as is every appeal. Following a denial of benefits, the appeal is the most important part of your claim, as it quite literally forms the basis of the evidence and information to be argued in the event of trial. It is crucial to provide any and all information to support the inability to work based on the requirements of the definitions contained in your policy. Failure to do so could potentially bar you from ever recovering benefits.

It should be noted that Dell and Schaefer does not represent Ms. Dupell, nor had any involvement at any point in her claim. Her case is still currently pending in the United States District Court for the Northern District of West Virginia.

Prior to filing an Appeal to an insurance company denial of benefits, it is highly recommended you consult with a disability insurance attorney as to your rights and options. Our firm has handled hundreds of claims against Aetna from the application stage through ERISA appeals and lawsuits. Please feel free to contact Attorneys Dell and Schaefer for a free consultation.

Did you find this helpful?
Unhelpful (0)

Resources to Help You Win Disability Benefits

Disability Benefit Denial Options
Submit a Strong Appeal Package

We work with you, your doctors, and other experts to submit a very strong appeal.

Learn more

Sue Your Disability Insurance Company

We have filed thousands of disability denial lawsuits in federal Courts nationwide.

Learn more

Protect Your Benefits
Get Your Disability Application Approved
We help claimants throughout the entire application process.

Learn more

Prevent a Disability Benefit Denial
We manage every aspect of your disability claim following claim approval.

Learn more

Negotiate a Lump-Sum Settlement

Our goal is to negotiate the highest possible buyout of your long-term disability policy.

Learn more

Aetna Reviews

Policy Holder Rating

1.6 out of 5
Read 53 reviews
0%would recommend
Timely Payments
1.9out of 5
Handling Claim
1.9out of 5
Customer Service
2.0out of 5
2.1out of 5
2.1out of 5
Showing 8 of 642 Reviews

Aetna STD has been a nightmare since the beginning

Reviewed by Michael S. on May 13th 2020   Verified Policyholder
I had surgery on 2/27/2020. Aetna STD has been a nightmare since the beginning. Total mismanagement of everything. I have never been paid consistently & have had to manage... read more >
Sent on May 13th 2020 by Attorney Jay Symonds

Michael: Generally speaking Hartford now manages the Aetna claims. The timing of STD claims is difficult because the benefit is a week to week benefit but the medical i... read more >


Aetna leaves me at risk of losing my job and without compension

Reviewed by Amber P. on March 6th 2020   Verified Policyholder
I applied for STD 2/24/2020 for eye surgery. Documents were submitted. Aetna noted they contacted the doctor and needed the APS form; already was submitted. So, the dr sub... read more >

Aetna puts their clients through hell with their games

Reviewed by Joe Doe on April 19th 2019   Verified Policyholder
I have been on Aetna disability for a couple of years now and have surround sound to be extremely cunning and ruthless. They put put claimants through hell for the first 6... read more >
Sent on April 19th 2019 by Attorney Jay Symonds

Joe, you make an excellent point. If a claimant has questions or concerns regarding the treatment they are receiving during the claims process it is wise to contact cou... read more >


It's been over 3 months, and I've only received one payment from Aetna

Reviewed by Crystal A. on January 24th 2018   Verified Policyholder
I have been struggling with Aetna to get my short term disability, its been since 10/16/2017 and I have only received one payment since. My doctors send in my forms and th... read more >
Sent on January 24th 2018 by Attorney Stephen Jessup

Crystal, Aetna should have rendered a final decision on your claim well over a month ago. Please feel free to contact our office to discuss your situation to best deter... read more >


Aetna people are thieves, crooks and liars.

Reviewed by Anonymous on August 23rd 2017   Verified Policyholder
It is my opinion that Aetna people are thieves, crooks and liars. I purchased a disability policy from my employer with Aetna. I became disabled because of a heart conditi... read more >

Aetna is definitely committing a crime and they need to be stopped.

Reviewed by on April 8th 2017   Verified Policyholder
Aetna denied my claim after providing all my doctor notes 5 times, all my ER records. stating that i did not see my doctor until 3/3/17 but my out of work date was 2/16/17... read more >
Sent on April 8th 2017 by Attorney Stephen Jessup

Sarah, as your claim has been denied your next step is to file your administrative appeal. As Aetna typically only allows for one level of appeal before a lawsuit must ... read more >


I hate Aetna

Reviewed by Pamela L. on April 7th 2017   Verified Policyholder
My story is the same as most here. I suffer from several afflictions. T1 diabetic for 42 years, stage 3 kidney disease, neuropathy pain in feet legs and hands, carpal tunn... read more >
Sent on April 7th 2017 by Attorney Stephen Jessup

Pamela, what is the current status of your claim with Aetna? Please feel free to contact our office to discuss what options/rights you may still have against Aetna.

... read more >

Aetna denied me and then I got fired from my job

Reviewed by Jeremy on April 3rd 2017   Verified Policyholder
I got denied and got fired right after my Dr submitted my paperwork for leave, due to being in the hospital. They fired me for being in the hospital. and now paying unempl... read more >
Sent on April 3rd 2017 by Attorney Stephen Jessup

Jeremy, when was your claim denied? Did you file an appeal? Please feel free to contact our office to discuss the denial of benefits to determine what rights you may ha... read more >

Answered Questions by Our Lawyers
Showing 8 of 30 Answered Questions

Q: Can Aetna deny my application on the basis of pre-exisiting condition? Do they discriminate against the mentally ill?

Answered on September 2nd 2020 by Attorney Steven Dell
A: Molly, unlike health insurance plans, a disability insurance carrier can deny application for coverage based o... Read More >

Q: Are there any circumstances in which I can appeal LTD after the number of days Aetna gives you to appeal?

Answered on April 3rd 2019 by Attorney Rachel Alters
A: Sharon, usually the insurance carriers are pretty strict and adhere to the appeal deadline which is set out in... Read More >

Q: Can Aetna deny my claim due to a "war exclusion" on my policy?

Answered on January 22nd 2019 by Attorney Stephen Jessup
A: Phil, I am sorry to hear about your difficulties. Have you filed an appeal of the denial? All disability insur... Read More >

Q: What do I do if Aetna claims they haven't received my medical info?

Answered on December 7th 2018 by Attorney Gregory Dell
A: Roberta, you should contact Aetna to verify that they actually received the information and find out if they a... Read More >

Q: How can Aetna say I am not disabled when clearly I am?

Answered on October 18th 2018 by Attorney Rachel Alters
A: Laurie, unfortunately Aetna can hire their own doctors to disagree with yours and claim you can work even if y... Read More >

Q: Is the 2nd appeal process worth it or a waste of my time?

Answered on October 3rd 2017 by Attorney Stephen Jessup
A: Rebecca, I would certainly say it is worth it. If he filed for disability in September 2016 and the change in ... Read More >

Q: What can I do to stop Aetna from harassing me and realize that not all disabilities are the same?

Answered on May 3rd 2017 by Attorney Stephen Jessup
A: SO, it certainly sounds the Aetna is setting your claim up for a denial. Please feel free to contact your offi... Read More >

Q:  Can Aetna deny my claim for STD due to pregnancy because it was preexisting?

Answered on February 2nd 2017 by Attorney Stephen Jessup
A: Slavka, unfortunately, disability insurance policies come with pre-existing condition provisions that are enfo... Read More >
Helpful Videos
Showing 12 of 888 Videos
Disability Benefit Tips
Showing 8 of 330 Benefit Tips

Does Social Security Approval Mean Disability Insurance Benefits Will Be Paid?

The answer to this question is NO and a recent case brought by a FEDEX employee against Aetna insurance company is an example of an SSDI appro... Read More >

Does a disability insurance company need to consider the side effects of my medications?

Disability insurance companies are notorious for ignoring the cognitive side effects that mos... Read More >

Does the Mental Nervous Disorder Limitation in an ERISA Long Term Disability Plan Violate ADA Laws?

According to several Federal district courts throughout the country the answer to this question has historically been that the American with D... Read More >

Is it legal to limit disability insurance benefits to 24 months for mental nervous claims?

The question listed below was recently posted on our disability blog, but since it is a question that we receive on a weekly basis, we decided... Read More >

Disability Benefit Denial Reason #5 – Your Medical Evidence is Weak

If you're seeking long term disability benefits from an insurance company, you may be concern... Read More >

Disability Benefit Denial Reason #4 - Your Doctor Is Misled By the Disability Company

When you're seeking disability benefits under a long term disability policy, your medical rec... Read More >

Disability Benefit Denial Reason #3 - Video & Social Media Surveillance

One thing many long term disability claimants don't know about (or expect) from the claims re... Read More >

How Do You Fight a Long-Term Disability Denial?

Getting a denial letter from your disability insurance company is one of the ultimate insults... Read More >
Dell Disability Cases
Showing 8 of 375 Dell Disability Cases

Aetna Overturns Denial of Long Term Disability Benefits for Quality Control Manager

Our client, Mr. J, formerly worked as a Quality Control Manager for a large home furnishings store. For many years Mr. J suffered from the deb... Read More >

Aetna Removes 24 Month Limitation for Mental Health Conditions

For nearly six years, Attorney Stephen Jessup has been representing our client, a former chief in-house counsel in charge of compliance and re... Read More >

Aetna Overturns Denial of LTD for Former Employee of The Home Depot

Prior to enlisting our services to challenge a denial, our client had received benefits from Aetna due to his disabling conditions for 18 mont... Read More >

Aetna Reinstates Benefits for Former SAP America Employee Suffering the Effects of a Head Injury

My now client worked for SAP America, Inc. as a Senior Solutions Sales Executive for nearly seven years. She made a great salary working at a ... Read More >

Aetna overturned previous denial of long term disability benefits for Georgia Assistant

Our client, Ms. A, formerly worked as an executive assistant for a town administrator. In April 2014 a number of co-morbid physical conditions... Read More >

Dell Disability Lawyers file Lawsuit in Federal Court against Aetna after it denied long-term disability benefits to former software Developer

In 2011, while working as a software developer for a different company, Charles suffered a cerebral vascular attack (CVA). Despite suffering a... Read More >

Aetna Reinstates Disability Insurance Benefits to Home Depot Manager

Prior to disability our client worked as a Warehouse Distribution Operations Manager for Home Depot, a job that not only required supervision ... Read More >
Disability Lawsuit Stories
Showing 8 of 765 Lawsuit Stories

Court Ordered Aetna to Pay LTD Benefits to Computer Engineer

In Darren Cohen v. Aetna Life Insurance Company [Aetna], Plaintiff was employed by STEC, Inc. as a Computer Systems Engineer where h... Read More >

Court Orders Aetna to Pay LTD Benefits to Plaintiff Suffering from CFS

In Nancy Devries v. Aetna Life Insurance Company (Aetna) plaintiff worked as First American as a Senior Business Analyst u... Read More >

Court Upholds Aetna’s Denial of LTD Benefits Under the “Any Occupation” Disability Definition

In Tanza Hadd v. Aetna Life Insurance Company, Plaintiff Hadd, was employed by UPS as an Operations Supervisor/M... Read More >

A Judge’s 8 Reasons that Aetna Reasonably Denied Disability Benefits to Bank of America Employee

In Claire Refaey v. Aetna Life Insurance Company, in late September 2015, Plaintiff suffered from a viral disease cau... Read More >

Court Rules That Aetna’s Failure To Consider Plaintiff’s Actual Job Duties Was Arbitrary And Capricious

Aetna’s Rationale for DenialIn Patterson v. Aetna Life Insurance Company, C.A. No. 17-3566 (3rd Cir. 2019) through his&nb... Read More >

Court Upholds Aetna’s Denial of Accidental Death Benefits Under Intoxication Exclusion

In Jordan Harper v. Aetna Life Insurance Company, (Aetna), Plaintiff’s husband, Douglas Harper, died on December 31, 201... Read More >

1st Circuit Affirms Holding That Claim Is Not Subject To Pre-Existing Condition Provision

In Lavery v. Restoration Hardware Long Term Disability Benefits Plan, 2019 WL 4155038 (1st Cir. September 3, 2019), Plaintiff John Lavery ("La... Read More >

If Your Long Term Disability Claim is Denied due to a Pre-Existing Condition, All May Not be Lost

In a recent case out of Massachusetts, a Court sided with a disabled claimant and found that Aetna’s decision to deny the claim for benefits... Read More >

Reviews from Our Clients

Request a Free Consultation

Our Lawyers Respond Same Day

5 Ways We Help Get Your Benefits Paid

Get Your Disability Application Approved

Our goal is to get your application for disability income benefits approved. Applying for disability benefits can be a difficult process and the information you provide is critical. Most disability insurance companies look at your application in hopes of finding a reason to deny your claim. Your disability company will ask you to complete numerous forms, interview you, request lots of information, speak with your doctors and possibly request to have you examined by their "hired gun" doctor.

Through our experience of having helped thousands of disability insurance claimants, our lawyers will guide you through the entire application process and give you the best chance to get your disability claim approved the first time.

Submit A Strong Appeal Package

If your disability insurance benefits have been wrongfully denied, then our lawyers know exactly what it takes to get your disability claim approved. You only get once chance to submit an Appeal, therefore every piece of evidence that will support your disability claim must be included. The goal is to win your disability benefits at the Appeal level, but while preparing your Appeal you must consider how a federal judge will review your disability claim if your benefit denial is upheld.

Preparing a strong disability appeal package is an art that requires you to understand how the courts interpret your disability policy language, ERISA regulations / laws, and how to strategically present evidence in support of your definition of "disability". We encourage you to contact any of our lawyers for a free immediate review of your disability denial.

Sue Your Disability Company

98% of the disability insurance lawsuits filed by our law firm have resulted in either the payment of benefits or a lump-sum settlement agreement. Our disability lawyers have filed ERISA governed and private policy long term disability insurance lawsuits against every major disability insurance company in state and federal courts nationwide and we love fighting for the "little guy" against the multi-billion dollar insurance company giants.

We have recovered hundreds of millions of dollars for our clients and we would like the opportunity to provide you with a free review of your disability benefit denial. There are many complex factors in a disability benefit lawsuit and the legal battle to win long term disability benefits can be fierce.

Prevent A Disability Benefit Denial

Approval of long-term disability is a continuous process as every disability insurance company will evaluate your eligibility for benefits on a monthly basis. You can never let your guard down and assume that your disability company will continue to pay your benefits for as long as you think you need them.

Our law firm offers a reasonable flat fee monthly claim handling service in which we handle every aspect of your long-term disability claim and do whatever it takes to make sure you are paid every month.

Negotiate a Lump-Sum Settlement

Let's discuss if a lump-sum settlement or buyout of your disability insurance claim is both available and makes financial sense for you. Our lawyers have negotiated more than five-hundred million dollars in disability insurance buyouts and we know how to get you a maximum settlement. A disability insurance company is not required to offer a buyout and not every disability company offers them.

Questions About Hiring Us

Who are Dell Disability Lawyers?

We are disability insurance lawyers that know how to get your short or long term disability benefits paid. As a nationwide law firm we have helped thousands of disability insurance claimants throughout the United States to collect hundreds of millions of dollars of disability insurance benefits from every major disability insurance company.

In more than 98% of our cases, our lawyers have been able to either get our clients paid monthly disability benefits or obtain a one-time lump-sum settlement. Our lawyers have seen it all when it comes to disability insurance claims and we know exactly what it takes for your disability claim to be approved.

We welcome you to contact any of our attorneys for a free immediate review of your disability claim. We also invite you to visit and subscribe to our YouTube channel where we have more than 700 videos and regularly provide tips to help protect your disability benefits.

Who do you help?

Our lawyers help individuals that have either purchased a long term disability insurance policy from an insurance company or obtained short or long term disability insurance coverage as a benefit from their employer. We have helped individuals in almost every type of occupation with monthly disability benefit payments ranging from $1,500 to $50,000.

Our clients include all types of employees ranging from retail associates, sales representatives, government employees, police officers, teachers, janitors, nurses, pilots, truck drivers, financial advisors, doctors, dentists, veterinarians, lawyers, consultants, IT professionals, engineers, professional athletes, business owners, and high level executives.

A strong understanding and presentation of the duties of your occupation is essential for securing disability insurance benefits.

Do you work in my state?

Yes. We are a national disability insurance law firm that is available to represent you regardless of where you live in the United States. We have partner lawyers in every state and we have filed lawsuits in most federal courts nationwide. Our disability lawyers represent disability claimants at all stages of a claim for disability insurance benefits. There is nothing that our lawyers have not seen in the disability insurance world.

What are your fees?

Since we represent disability insurance claimants at different stages of a disability insurance claim we offer a variety of different fee options. We understand that claimants living on disability insurance benefits have a limited source of income; therefore we always try to work with the claimant to make our attorney fees as affordable as possible.

The three available fee options are a contingency fee agreement (no attorney fee or cost unless we make a recovery), hourly fee or fixed flat rate.

In every case we provide each client with a written fee agreement detailing the terms and conditions. We always offer a free initial phone consultation and we appreciate the opportunity to work with you in obtaining payment of your disability insurance benefits.

Do I have to come to your office to work with your law firm?

No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via phone, email, fax, GoToMeeting sessions, or Skype. If you prefer an initial in-person meeting please let us know. A disability company will never require you to come to their office and similarly we are set up so that we handle your entire claim without the need for you to come to our office.

How can I contact you?

When you call us during normal business hours you will immediately speak with a disability attorney. We can be reached at 800-698-9159 or by email. Lawyers and staff must return all client calls same day. Client emails are usually replied to within the same business day and seem to be the preferred and most efficient method of communication for most clients.