An interesting disability claim arose in 2008 that highlights the challenges a disabled individual can face when a span of time exists between the time of a covered event and the manifestation of an injury associated with that event. This case against CIGNA is rare because it is an accident and sickness policy rather than a traditional disability insurance policy. It is also rare, because most disability insurance companies will not lose a copy of your policy. A disability claimant should make every effort to keep the original copy of their disability insurance policy. A New York ambulance volunteer, George Glew, discovered this when he sought to claim disability benefits under a CIGNA Life Insurance Company of New York (CIGNA) policy that covered accidents and sickness for employees and volunteers in the Shirley Community Ambulance Company. This case is rare because it is an accident and sickness policy rather than a traditional disability insurance policy.
In the course of his volunteer duties, he took a call to a known drug house where he worked on a victim of an overdose. In the process, he was stabbed by a used needle in his index finger. He applied alcohol and a bandage immediately. He then took a tetanus shot and went through a course of AIDS protocol drugs for one month. The treatment made him quite ill. He was then told to undergo lab work at three, six and 12 months. He then was to continue testing every year thereafter for AIDS and Hepatitis.
Ultimately, Glew was diagnosed with Hepatitis C. By the time he became ill enough to claim disability in 2004, Glew no longer had a copy of the insurance policy, though he still had a copy of the letter notifying CIGNA of his injury. Neither CIGNA nor Shirley Community Ambulance Company had copies. CIGNA claimed to have destroyed records of the policy it had issued to the ambulance company following its usual policy to destroy records more than seven years old. The ambulance company also had also destroyed its copy of the policy after seven years had passed.
Such action as part of a company’s standard record retention policies wasn’t unusual. How would the Court handle this situation?
- In Rash v. Peoples Dep. Fank & Trust Co., Kentucky had ruled that the terms of a lost agreement may not be proved “where assumed recollection of specific facts after the lapse of years taxes the credulity of the court.”
- Barranco v. Kostens, a New York court had ruled that proof of the contents of a lost insurance policy “must be clear and positive and of such a character as to leave no reasonable doubt as to its terms and conditions.”
- In Kleenit, Inc. v. Sentry Insurance Co., the Court found that the claimant “must show by a preponderance of evidence both the existence and contents of a lost or missing policy.”
- In Rubenstein, the Court found that a policy can “be reconstructed from business records, underwriter’s folios or billings of the insurance company to the insured.” It also found that where there was “a strong likelihood that fraud, or… wrongdoing existed” then the court should apply a more stringent burden of proof.
Both Glew and CIGNA agreed that Gold Fields Am. Corp. v. Aetna Cas. And Sur. Co. should inform the Court as to what standard the Court should use to measure the quality of evidence Glew produced. “Specifically, an insured may prove the contents of a missing insurance policy using secondary evidence, and must do so by a preponderance of the evidence.” It would fall upon Glew’s disability insurance attorney to prove what the terms of the missing insurance policy had been.
What type of evidence would the Court accept?
- Oral testimony as long as the original document was not destroyed in bad faith (which was not the case).
- Photographs taken of the original document or attachments.
Glew’s disability attorney had gathered five pieces of collaborating evidence.
- The testimony of the Commissioner of the Ambulance District in the Town of Brookhaven that testified that the CIGNA policy had been reviewed specifically for its coverage of sickness that could arise in the future due to exposure to pathogens common to the areas the ambulance service covered. Of special concern was coverage for AIDS and hepatitis once the risk of infection from needles was understood.
- A copy of the policy purchased from VFIS which replaced the CIGNA policy the next year. It covered such events. The VFIS policy required claimants to notify the insurer of any incident that could produce an infectious disease. The benefits could be collected for an indefinite time period after the incident.
- The testimony of the Commissioner of the Ambulance District in the Town of Brookhaven that the terms of the VFIS policy were equivalent to what CIGNA had promised.
- Glew’s proof that he notified CIGNA in writing of the needle stick within 72 hours, and that this met any time period requirement for reporting his injury.
- Additional testimony from an advanced EMT who testified that the infectious disease coverage was of special importance to the EMTs at the time and did not require immediate reporting if an infectious disease exposure occurred. The records of the calls would be used to confirm the event if a claim arose.
CIGNA produced one witness who claimed that a “Blanket Accident Policy” was the closest CIGNA could come to producing a comparable insurance document. It produced a policy it claimed was an exemplar policy it had submitted 10 years before the policy in question to the State of New York for approval. But there was a problem. The exemplar policy only covered accidents.
Yet the same witness for CIGNA who claimed that this was a representation of the policy it would have issued to the ambulance service, had already sworn before the Court that CIGNA had issued an accident and sickness policy. Because it was well established that the Ambulance Company had an accident/sickness policy, it was apparent to the Court that the document being presented by CIGNA did not apply.
The Court found that Glew’s New York disability lawyer had provided a preponderance of evidence supporting the existence of a CIGNA policy that covered his injury. The weight of the medical evidence presented by Glew supported that his infection by needle stick with Hepatitis C had resulted in the long-term effects of cirrhosis of the liver and other debilitating heath conditions.
The Court looked to the VFIS policy that replaced the 1994 CIGNA policy for guidance on what disability benefits would be due to Glew. The Court found that Glew had been disabled from December 20, 2004 and would be entitled to the benefits promised in the VFIS policy. A final settlement of what the benefits would be was scheduled for a future hearing.
This claim went well for George Glew, but not all claims always go this well. If you are participating in a disability insurance plan that provides for future damages from an injury that may take years to manifest itself, it is wise to hang on to your copy of the insurance policy, no matter how many years have passed. This is a very rare case because most group disability policies require the claimant to be disabled at the time they become disabled and will not cover an initial that arises several years later. Glew’s disability attorney was successful because he was able to secure credible witnesses and CIGNA’s witness was less credible. If the evidence had been equal on both sides, the attorney may not have been able to prove Glew’s case with a preponderance of evidence.