Dalit Waissman, a 53 year old who immigrated to the United States from Israel in 1984, came to her position at SAP, Inc. in 1997 with considerable experience in computer programming and educational consultation and resource coaching. She had spent the previous two years working as an independent contractor providing technical writing services.
SAP hired Waissman as one of their Senior Technical writers. The primary duties of her job according to SAP were to provide “excellent research, interviewing and writing skills: information mapping skills; instructional design skills; knowledge of the business cycles; knowledge of computer software, Windows applications and authoring tools; and HTML/Internet knowledge.”
Waissman was also involved in writing documentation that was technically accurate. It also had to follow the company’s writing style. She coordinated and planned information products and new functional descriptions with the integrated solution team. She was involved in development translation and marketing. And she had to ensure quality assurance by critiquing and editing her fellow colleagues work. She coordinated activities with outside vendors and she gathered feedback on products from customers as well as SAP employees. She was involved in managing the documentation library and the intranet delivery mechanisms.
Waissman’s job as a senior technical writer required considerable concentration skills. She worked long hours learning and writing in various programming languages for the different projects. Working under the pressure of deadlines was common. The job was mentally demanding, but it was a sedentary occupation which SAP described as involving about 99% sitting and 1% walking.
Long-term disability benefits are part of employee benefits package.
One of the benefits SAP provided to their employees was a long-term disability income plan and a life insurance plan managed by Life Insurance of America, Inc. (LINA) also known as CIGNA. This long-term disability plan defined total disability as the inability to perform all the essential duties of her job because of injury or sickness. If Waissman was able to earn more than 80% of her indexed prior monthly earnings, she would not be considered totally disabled. Sickness was defined as a physical or mental illness and could include pregnancy. Her life insurance plan waived premiums if she became disabled.
Waissman was diagnosed with interstitial cystitis (IC) in 1987, only three years after her arrival in the United States. IC is an autoimmune disease that causes deterioration of the lining of the bladder. Ulcers form in the lining of the bladder which allow urine to contact underlying tissues and nerves. The condition is extremely painful and requires frequent urination.
Waissman developed other health issues. On September 24, 1999, she underwent surgery for acute appendicitis. After the surgery, she experienced tingling in her feet. Walking was painful. She would experience tingling, prickling and sometimes numbness of the skin covering her legs. She experienced areas of numbness on her abdomen and other neurologic symptoms. She was diagnosed with transverse myelitis and admitted to the hospital on October 13, 1999 for intravenous medication. An MRI indicated that she had an area of demyelination at the T4 – T5 vertebrae in her spine. They also found that her cerebrospinal fluid had positive oligoclonal bands and an elevated IgG index.
Waissman experienced an episode of Bell’s palsy on the left side of her face in March 2000. This caused head pain, vertigo and extreme fatigue.
Symptom diagnosis of MS leads to disability application.
Her treating physician. Dr. Christopher Lock reached the conclusion on May 19, 2000 that Waissman had multiple sclerosis (MS). This diagnosis was confirmed by Dr. Steven Hauser, a neurologist and expert on MS, on July 3, 2000. The last day that Waissman worked for SAP was June 12, 2000. Her annual salary was approximately $109,000.
Waissman submitted her first disability claim to LINA on December 14, 2000. She described her disability in detail. She stated that she was experiencing neurological pain and headaches on a daily/nightly basis. This was accompanied by extreme chronic fatigue. She provided a history of her transverse myelitis and Bell’s palsy, and her subsequent diagnosis of multiple sclerosis after her 5/14/2000 MRI. Dr. Lock completed an attending physician statement, which supported Waissman’s description of her symptoms.
Waissman asked that her medical information be kept confidential because she hoped to return to work. Unfortunately she found that her frequent need to urinate, caused by the IC, became a complicating factor. The IC interrupted her sleep, which only made her more tired.
She sought assistance from Dr. Dennis Facchino, a psychotherapist . When LINA contacted him on February 19, 2001, he reported that she was suffering from “overall depression, fatigue, anxiety and the inability to concentrate . She could not focus on tasks for a significant length of time. The continuous pain, fatigue and inability to concentrate made it apparent that she would not be able to return to work.
She also remained under Dr. Lock’s consistent care. On March 20, 2001, Dr. Lock wrote in his notes that Waissman complained that the burning and pain in her head was often unbearable. She would continue to seek treatment until he left his practice at the Palo Alto Medical Foundation (PAMF) in April 2006.
LINA approves application for long-term disability benefits.
Waissman’s application for long-term disability benefits was approved by LINA on March 22, 2001. Her claim for the waiver of premiums under her group life insurance plan was also approved. The claim file diary noted that performing a TSS would be valueless because Waissman’s problems with MS were cognitive and could not be measured physically. The notes suggested it would be important to learn if cognitive testing had been performed, but the MRI results showing deep white matter and Waissman’s very technical job description made approving long-term disability logical.
Social Security approves long-term disability benefits on first application.
The Social Security Administration approved disability coverage for Waissman on April 24, 2001. SSA re-evaluated her eligibility on April 22, 2005, determining that her disability was a continuing one.
In January 2006, LINA asked Dr. Kenneth B. Graulich to review Waissman’s medical records. While he recognizes that she had been diagnosed with MS, he believed that her headaches might not be connected to the MS. He also recognized that she had IC and depression, but because these were not his area of expertise, he deferred any conclusions as to how these two factors would affect Waissman’s disability to someone who understood these conditions.
LINA seeks independent medical exam to verify disability.
LINA asked Waissman to see Dr. Subroto Kundu for an independent medical examination (IME). She saw him for 30 minutes. He concluded that her MS diagnosis was probable, but stated that MS is a painless disease. He diagnosed Waissman’s fatigue as originating from chronic fatigue syndrome rather than MS. In his opinion, she should be able to perform her regular sedentary occupation because the level of performance her job demanded was similar to that required during her physical examination.
LINA ordered surveillance between April 17 and 19, 2006. Waissman left her property only once – to see Dr. Kundu.
LINA felt that Dr. Graulich and Dr. Kundu’s assessments and the disability surveillance captured while she left her home to see Dr. Kundu justified terminating Waissman’s long-term disability benefits. LINA notified her by letter on May 23, 2006 that her benefits would end on May 25. In the letter, LINA told Waissman that they had shared the IME with her primary care physician, Dr. Susan Elgee and Dr. Lock. Dr. Elgee deferred comment to Waissman’s neurologist. Dr. Lock did not respond either, but he was no longer at PAMF.
Treating neurologist disagrees with LINA’s independent reviews.
Waissman saw Dr. Lock’s replacement, Dr. Gershfield for the first time the same day LINA mailed the benefits termination letter. His findings were consistent with Dr. Lock’s, noting the head pain and fatigue. When she received LINA’s termination letter, she asked Dr. Gershfield to write a letter supporting her continued need for disability benefits. He did so on June 29, 2006.
Dr. Gershfield wrote a second letter in November, after he reviewed her claim denial. He stated emphatically that Waissman’s diagnosis of MS was secure and supported by clinical presentation as well as objective lab and neuroimaging studies. He disagreed with Dr. Kundu’s statement that MS is a painless disease. Dr. Gershfield declared that this statement was false and contradicted the most basic of textbooks in the field. He quoted from the standard textbook on MS, McAlpine’s Multiple Sclerosis, which says on p. 316 that “pain is frequently listed amongst the initial symptoms of multiple sclerosis or as occurring in the course of the disease.”
He expressed great surprise at Dr. Kundu’s diagnosis of chronic fatigue syndrome when discussions of fatigue are common in basic textbooks on the subject. Quoting again from McAlpine, he pointed to the fact that an “excessive sense of fatigue affects the great majority of patients with multiple sclerosis and up to 40% claim this to be the dominant complaint.” He went on to explain that MS fatigue is unlike the tiredness one feels after exerting themselves. It is a fatigue that is constant even when a person is resting. For this reason, fatigue can limit the ability to perform sedentary work.
Disability attorney recommends taking neuropsychological test.
By this time Waissman had hired a disability attorney. At his recommendation, she went to Dr. Sheila Bastien for medical evaluation on January 15, 2007. Dr. Bastien’s neuropsychological report was based on multiple cognitive tests. The results from these tests were submitted to LINA and became part of the administrative record. Here are some of the findings reported:
- Waissman’s sequential reasoning was problematic. She couldn’t put things in sequential order.
- Her information processing speed was severely compromised
- Her short-term memory and concentration were very poor.
- Waissman demonstrated better than average initial learning abilities, but after four hours had passed, she could not remember anything that she had learned. It was clear that with this level of impairment she would not be able to work any job in the national economy.
- She scored too low on a differential aptitude test to perform her previous job.
- She tested so low on numerical ability and abstract reasoning ability that she would not be able to function in almost any job.
- Her clerical speed and accuracy was so low that she could not perform any job that required paperwork or detail.
Test scores verify level of disability.
When Waissman’s test scores were compared to the values defined for a technical writer in the U.S. Labor Department’s Dictionary of Occupational Titles (DOT), it became readily apparent that Waissman would certainly be unable to fulfill the duties of her regular employment.
Dr. Bastien also performed symptom validity tests. Waissman’s scores were normal which Dr. Bastien interpreted as demonstrating that Waissman was not making an obvious attempt to exaggerate or distort her problems.
Will the facts support reinstating long-term disability benefits?
Waissman’s case looks strong at this point. She claims that she has been denied her long-term disability benefits wrongfully. Will the U.S. District Court for the Northern District of California, San Jose Division agree? We will look at the Court’s decision in Did Lina Wrongfully Deny Disability Payments To Claimant With Multiple Sclerosis?