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CIGNA long term disability denial is reversed by New York Federal Judge

Steven Alfano was a wage and salary manager when he was injured in a car accident in May 1996. Though he returned to work after he recovered from his acute injuries, he still suffered from back pain and residual weakness in his left leg. Because of this he continued to see Dr. Michael Alexiades, an orthopedic surgeon.

His back condition got worse over time. By May 2000, it became apparent that he would not be able to continue working even though his position was sedentary. He could not sit for more 1/2 to 2 hours before he had to resort to laying down or sitting in a reclined position. Dr. Alexiades gave Alfano his official opinion that he should stop working on June 5, 2000. He followed his doctor’s recommendation.

Alfano had participated in group long-term disability benefit plan his employer, Cornell University Weill College contracted for with CIGNA Life Insurance Company (CIGNA). The plan stipulated that Alfano had to be disabled for 180 days before he could apply for benefits.

Realizing that he was indeed not going to be able to work again, Alfano applied for Social Security Disability Income (SSDI) benefits immediately, then waited as required by the plan to apply for his long-term disability benefits from CIGNA. He applied for disability benefits a few days before the 180 days waiting period ended. CIGNA denied his application for disability benefits, even though the decision to deny his claim occurred more than six months after he had to leave work.

Alfano hired a long-term disability attorney and appealed promptly. CIGNA upheld its denial once again, claiming Alfano had not fulfilled the 180 day waiting period. So he waited a full year, until April 2002 before he appealed the denial a second time. He added the most recent medical records to the multiple medical reports and tests provided with his initial application. All the evidence, doctor’s reports, MRIs and EMGs demonstrated that his condition had not improved over the intervening year.

Social Security found him disabled shortly after he filed his second appeal. So he informed CIGNA of this fact as well on September 13, 2002. It took the long-term disability company almost three months to respond, and when the claims handler contacted him, it was to inform Alfano that they needed to consult a health care professional with the appropriate training and experience.

Dr. David Trotter, the orthopedic surgeon CIGNA sent his file to, found that the evidence proved that the stenosis and nerve root impingement revealed in his MRIs and resulting inability to sit for long enough to work a full day effectively rendered Alfano disabled from his own occupation as a wage and salary manager. This finding played a key role in the decision to reverse its initial decision and to begin paying Alfano long-term disability benefits. The notice informed Alfano that retroactive payments would go to December 3, 2000 just two days after the day he filed his claim.

At the two year mark, CIGNA tried to invoke an “any occupation” evaluation of Alfano’s qualifications for disability. Alfano’s disability attorney quickly notified the disability insurance company that his policy did not have an “any occupation” clause. CIGNA corrected this understanding while making it clear that Alfano could only maintain his benefits by continuing to prove he qualified under the “own occupation” standard.

This involved regular reports from his treating physicians. One such report submitted in October 2004, convinced CIGNA that his condition had improved, even though subsequent communications corrected the misunderstanding that led to inaccuracy in the filling out of the form. Based on this one report that appeared to say that Alfano could now sit, walk and stand for up to 2-1/2 to 5 hours of an 8-hour workday, CIGNA terminated his long-term disability benefits.

From that point on, it seemed that nothing Alfano produced as evidence of his continuing disability had any effect. CIGNA ordered three separate transferable skills analyses (TSAs). Each one found that he could work in his own occupation. CIGNA ordered a functional capacity evaluation (FCE). The summary found he was capable of sedentary work, even though a quick read of the actual evaluation demonstrated the opposite. Two physicians, hired by CIGNA, found that his medical records coupled with the FCE failed to support his continuing disability. For a detailed pre-lawsuit history of Mr. Alfano’s case please see the article CIGNA terminates disability insurance benefits as claimant’s back condition gets worse.

After three appeals, Alfano had no choice but to file an ERISA lawsuit against CIGNA for wrongful denial of disability benefits. Both Alfano’s disability attorney and CIGNA’s attorneys agreed that the correct standard with which to review CIGNA’s decision was de novo. This standard allows the Court to look at a disability plan administrator’s decision with a more critical eye. The Court has the right to look at the evidence and evaluate whether the plan administrator’s decision was right, not just unreasonable.

Alfano’s disability attorney did not present any evidence that showed good cause for adding anything to the disability plan’s administrative record, so this would be the evidence that the Court would consider. The disability attorney had all the evidence necessary right in the record to demonstrate that CIGNA had made the wrong decision.

It was vital in this case for Alfano’s disability attorney to prove under ERISA that he was unable to perform sedentary work, as this was the classification the plan gave his occupation as a wage and salary manager. The question before the Court was this. Had Alfano met his burden to prove to the disability benefit plan that he was still disabled under the plan, before his benefits were terminated? Had a significant change in his condition warranted CIGNA’s decision to terminate his benefits? If the Court found that Alfano’s condition was the same or worse than when he was found disabled initially, terminating his benefits would weigh against CIGNA.

Indeed, this is exactly what a review of the medical record demonstrated. Alfano had submitted extensive evidence that he was disabled and continued to remain so. While two physicians were his primary care providers, no less than four additional neutral physicians had evaluated him and found him severely limited by L5-S1 radiculopathy. His need to take heavy doses of narcotics to manage his pain was also well documented. He had submitted to multiple MRIs which showed his condition worsening.

The functional capacity evaluation ordered at CIGNA’s request also supported his inability to work an 8-hour day. He was unable to perform many of the tests due to his inability to maintain control of his legs. The lifting test had to be stopped. He had to lie down numerous times during the test.

Despite this extensive medical support, CIGNA claimed that under ERISA it had no obligation to give weight to Alfano’s medical evidence. The Court disagreed. ERISA requires long-term disability plans to provide a clear rational for rejecting a treating physician’s opinion before it can discredit evidence a claimant has presented. The Court could not order CIGNA to give more weight to Alfano’s doctors, but it could require CIGNA to show just cause for ignoring the evidence.

The Court recognized that CIGNA didn’t have to order an independent medical evaluation. File reviews were adequate. Yet, because the Court was reviewing Alfano’s claim de novo it could consider whether the long-term relationship between Alfano and his physicians would make their opinions of more value than that of a doctor just reading his file. When the length of his relationship with at least six doctors was combined with the fact that eight separate physicians had concluded that he was disabled, including one hired by CIGNA. The Court would give this evidence substantial weight in the decision-making process.

Then there was the finding by Social Security that Alfano was disabled to consider. CIGNA tried to argue that it wasn’t bound to agree with a SSDI decision. Yet, the Court found that Social Security had used an even stricter standard for approving Alfano’s benefits – his inability to work in any occupation. The Court found it inconsistent for CIGNA to seek to benefit financially from Alfano’s receipt of SSDI benefits, yet not demonstrate how the requirements of the plan differed from those of Social Security. The Court determined that the Social Security decision should also bear substantial weight in its decision-making process.

The Court found that CIGNA’s presentation of vocations it claimed Alfano could work in was argued against by his medical record. Not a single job would have accommodated Alfano’s primary limitations – an inability to sit more than 2 to 2-1/2 hours per day or to walk for more than a total of 2-1/2 hours per day. The Court cited to another long term disability case in which they stated that “The ability to sit for a total of four hours does not generally satisfy the standard for sedentary work.”

The main problem with all three TSAs was the fact that they failed to consider all of the record. The last two TSAs obviously relied on the first page summary of the FCE performed on July 26, 2005. Unfortunately, this summary bore little resemblance to the information in the rest of the FCE. While the summary stated that Alfano was “functioning safely at a sedentary level for an eight hour period according to N.Y. Department of Labor Standards,” numerous contradictions to the statement appeared within.

The FCE noted that Alfano “was unable to stoop, kneel, crouch, or crawl.” This was due to decreased range of motion as well as weakness and the inability to prevent his lower extremities from buckling beneath him. The clinical data obtained during the evaluation did not support his ability to tolerate sitting for more than “10 to 15 minutes without a drastic change in position.” The tester stated that he had to lie down frequently during the test to alleviate his symptoms.” The Court found it inexcusable that CIGNA did not question the validity of the summary when the data more clearly supported the opinions of his treating physicians that he could not sit for more than 2-1/2 hours a day.

Such a careless reliance on the summary page of an FCE was not new to the Court. In Rappa v. Connecticut General Life Insurance Company, the Court found that a disability insurance plan is irresponsible when it depends upon a summary page instead of evaluating the full contents of an FCE. CIGNA could not argue that it had reached a correct decision when it ignored portions of the FCE that contradicted the summary.

Before reaching a decision, the Court had to also consider whether CIGNA’s dependence on the opinions of physicians it chose to review Alfano’s files was a credible reason to terminate Alfano’s benefits. Had the opinions reached by these reviews adequately and credibly presented a rebuttal to the findings of Alfano’s physicians?

One physician claimed that the medical evidence presented by Alfano failed to support his inability to sit for prolonged periods and his need to change positions frequently. This conclusion ignored MRIs, an EMG, and positive leg raise tests which supported the conclusion of several physicians that his ability to sit for more that 2-1/2 hours per day. It also ignored the findings of the FCE which confirmed the same conclusion.

Every other expert’s findings also leaned heavily upon the summary page of the FCE. Some stated that Alfano’s physicians had provided vague responses, a charge the Court found unfounded.

After reviewing all the evidence, the Court found that CIGNA’s position that Alfano’s condition had improved, making him capable of returning to his own occupation, was not grounded upon fact. In fact, the medical evidence suggested that his condition was continuing to deteriorate. CIGNA had wrongfully terminated Alfano’s benefits.

CIGNA argued that the Court should remand Alfano’s claim back into the disability company’s control. The Court refused to do this. Such a decision would send a message to disability insurance plans that they can continue to be careless and avoid the consequences of not abiding by the rules established by ERISA.

CIGNA’s termination had been improper. A clear decision granting Alfano’s disability attorney’s motion for summary judgment was the only appropriate remedy. The Court ordered CIGNA to reinstate Alfano’s long-term disability benefits retroactively and to continue making payments until he either ceases to be disabled or reaches 63 years of age.

Attorneys Dell & Schaefer did not represent Mr. Alfano as it related to his claim for disability benefits.

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There are 6 comments

  • T.,

    Thank you for sharing your story. Don’t give up your fight as with all the medical evidence it seems like you have a very strong case, which unfortunately means you are suffering very badly. It is a great that you have an attorney on your side and hopefully it is an attorney that is experienced in ERISA disability claims against Cigna. If you have an experienced attorney and good medical support then there is a high likelihood that you will continue to be paid.

    Gregory DellJan 30, 2013  #6

  • Oh Lord. I’ve been going through similar.

    In 2007 I was treated for accident injury which involved nerve root impingement and spinal cord compression. The surgery was a fusion but it left residual damage in my right shoulder and arm with some rather high pain symptoms or “shadow pain”. Subsequently insurance ordered an IME as it disabled me from my own occupation as a repair technician for CT scanners ironically. I worked in healthcare so I knew my “stuff”. Then as a result of the IME I was sent back to work with a decline in payment for physical therapy. 2 months at work it was AWEFUL. I couldn’t lift anything over 10 lb. without dropping and balance was screwed up. I worked in a lot of pain to the point where I called my Dr. and said I can’t do this. So, the neurosurgeon put me out of that line of work.

    The company moved me from my home; I lost my friends and had to move from my family. I worked in Atlanta for 10 months as I was sent to a phone job but it was a great job I liked it. Unfortunately, sitting started to be a problem and the typing beat my neck up. So I went to spine clinic in Atlanta. That’s when they said phone work and sitting all day isn’t an appropriate job. Then myself tried on, yes I was determined.

    I got myself another job within the company and was sent to California to work in software verification. I loved that job a lot and although it was typing and sitting too because you had to run testing it allowed me to frequently change positions which helped my disability. But for whatever reason the pain increased in both my lower back and neck ten fold. And that led to a second fusion where I again ruptured another disc in my neck! Can you believe that crap? Anyway, determined to keep working I did go back to work again (yep, unreal right?) and people at work started noticing I was different, not doing as well, after the second surgery they said I looked like I was in pain a lot and said it was sad and that I should stop working and stop proving to myself before I end up in a wheel chair.

    Well, I ignored them. I continued on for an additional 6 months and its now 2010 and in November a MRI was done of my lower back and 3 moderately bulging discs appeared along with a severely compressed disc at L5/S1 and osteoarthritis too. At this point I was in a lot pain between my neck and lower back nothing worked. I had to toss in the towel and went home crying, all the time I was hurting so bad, so November 2010 I had to surrender to the disability. I was either going to kill myself working like that or try to enjoy life with what was left.

    Unfortunately, I transitioned from short term to long term disability in May 2011 where the company fired me after Cigna denied the long term disability. It forced me to hire an attorney who did my appeal for LTD and she won it as in February 2012 after my functional capacity test was done they determined I couldn’t perform even sedentary work. They saw I was having to live on Morphine and Dilaudid to survive the testing. The testing drove me to an emergency room where I received a shot of Toradol which helped and this got documented. I won the appeal.

    But now it hasn’t ended with this nightmare of having insurance companies and IME’s forcing me to move across the country twice due to their assessments. But as of this month January 2013 Cigna is at it again. They’ve issued another IME and I caught myself being video taped. I still have my attorney but she is terribly annoyed on end that a cause this strong that they are setting up a denial again. The reason is I’m transitioning from “own work” to “any work” occupation. But with even all the past evidence and FCE it’s not enough. We believe the entire purpose of the surveillance and IME is to set up a denial for the own work occupation.

    Now, the disturbing part is the past history of my attempts at sedentary and moving across the country and going through years of harassment and torment from Cigna. So, with that respect, I’m really in shock over all this my friends and people I used to work with who gave statements cannot believe they are doing this again with the mountain high pile of evidence of two fusions that resulted from a spinal cord compression and now lower back issues with moderately bulging discs and osteo and sever compression in L5/S1 and a stable disc rupture in my lower neck. I’m in pain all the time, anywhere from 5-9 and live on Opana ER and Dilaudid for relief. And even with those meds it still pierces through it.

    My Dr. said I had been under-classifying my pain levels. I had been telling them it has been 4-8. He said based on history its more like 6-10 and he re-rated the pain as severe chronic pain and cervical and lower lumbar disc disease too. I’m only 39 years old and this started when I was 35. I do receive Social Security. That wasn’t hard at all they awarded that just after 12 months of not working since the evidence was so clear and the case is cut and dry the SS attorney said in the paperwork that the court appearance was being terminated and disability being awarded without trial due to a large amount of objective evidence.

    So how on earth does Cigna believe through a single IME and one Dr. out of the 30 plus and a 5 years history and SSD benefits in my favor do they possible think they can win this in court? Are they insane? My attorney hasn’t said it but it appears she has been preparing for a court battle with this one. Now she didn’t saw that to me but she is good and she did not seem happy at all how they’ve been picking on me since this started.

    I’m just hoping if they terminate my benefits again come May 1st 2013 and we take them to court that not only do I win but after 5 years of so much bad faith going on that he awards me my attorneys fees so far. I’m out 50 thousand dollars and they caused me to lose my life savings and I’ve had to sell my property too. IT’s destroying my life. And I hate to say this out loud like this but it’s leaving me with no other options that if they deny me but to kill myself. I can’t keep this up and end up on the streets disabled. Cigna is killing people and driving them to this with these tactics. Someone in DC has got to help us! They are killing people and driving us to suicide. If they terminate me again I won’t be able to afford my medication and I’m not going to live in so much pain that I go back to being bed ridden 100 percent again. I’m already bed ridden 50 percent.

    I’m only sharing my story in hopes attorneys will see this fight for us and show Washington what it’s doing to us. They are KILLIING PEOPLE and DRIVING THEM to suicide taking their benefits away, forcing them not to be able to afford to take care of themselves, as what I use that money for! I can’t go back to living in 9-10 pain levels again. I hate them. They are killers. God help us, somebody help please. It’s making me cry, someone, anyone attorney show Washington my story and what they are doing to us. They are an evil company to the core. Something has to happen.

    T.Jan 29, 2013  #5

  • It happens to everyone that has any type of subjective symptoms, especially those with back problems, or autoimmune diseases like fibromyalgia, chronic fatigue, or arthritis who are in chronic pain. Most of these people also suffer from occasional depression and/or anxiety, which the insurance co. can insist is the real problem. I am the “Lady from Arizona” in another discussion, and it took me 7 LONG years to win my suit. But you cannot give up! Your doctors are your best friends and they must understand your problems so that they can explain it to the insurance co. Please make sure your doctors understand this. Mine saved me, as well as having them read everything the insurance co. sent me. Your disability is all in the details. If you can find someone to help you with this, it will pay off. But never give up. We need thousands more like Mr. Dell.

    Melissa GemmelDec 3, 2010  #4

  • I agree with this comment.

    Maurice MaitlandNov 25, 2010  #3

  • This is why Disability should not be privatized.
    ERISA is the corpotation, not for the protections of people with disabilities. We need an Amendment to prevent this from happening to anyone else. Sadly this is happening to my Sister right now by Cigna as well. With no fear of penalty they hold all the cards in their favor. Arrrgggh

    Chuck SchmuckOct 29, 2010  #2

  • It is a shame that the Court did not order CIGNA to pay for Mr. Alfano’s legal bills, nor punitive damages as compensation for the time and effort he had to devote to regaining his rightful disability benefits. Since the court merely ordered CIGNA to pay the disability benefits they owed to Mr. Alfano anyway, the outcome of this case does not deter future similar misdeeds by CIGNA. I agree with Mr. Dell that ERISA law is unfair to disabled workers. Keep up the good work!

    David L. Keller, M.D.Oct 12, 2010  #1

FAQ

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We represent Cigna clients nationwide and we encourage you to contact us for a FREE immediate phone consultation with one of our experienced disability insurance attorneys.

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Our disability insurance lawyers help policy holders seeking short or long term disability insurance benefits from Cigna. We have helped thousands of disability insurance claimants nationwide with monthly disability benefits. With more than 40 years of disability insurance experience we have helped individuals in almost every occupation and we are familiar with the disability income policies offered by Cigna.

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Our lawyers help individuals that have either purchased a Cigna long term disability insurance policy from an insurance company or obtained short or long term disability insurance coverage as a benefit from their employer.

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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.

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No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via telephone, e-mail, fax, GoToMeeting.com 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.

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Dell & Schaefer Client Reviews   *****

Glen P.

Simply The Best. I chose Dell & Schaefer after watching several videos that Greg had made and I also checked his reviews. I contacted him through his website and within 1 hour Greg called me on a Sunday afternoon. We discussed my medical issues and how they were rapidly damaging my abilities to continue my dental practice of 32 years. He told me that he would handle my case himself. I asked for names of dentists that he had represented. I spoke to 3 and they all said hire Greg ASAP. I had 3 specialists who recommended that I stop practicing but I had a tough time dealing with losing my practice of 32 years. I was dealing with depression and anxieties due to my reduction in hours along with knowing that my disability insurance company had a bad reputation of denying legitimate claims. Greg had a way of calming me down and he told me he had dealt with my company hundreds of times. He was not at all intimidated. He said that he was going to help me and was confident that we would win. Greg guided me through the entire process and it was completed in the time frame he said it would be. He and Vanessa returned all my calls and emails rapidly.

I would think of questions on weekends or late at night and he would always return my emails and calls. Once everything was into the insurance company they had an inexperienced claim consultant on my case that was challenging my disabling conditions. Greg fired off a letter giving them 5 days to make a decision. They moved my case up the ladder to a “lead” consultant and within 2 days we had the approval letter. He was also able to collect a period of partial disability, my business overhead expense policy, get me deemed totally disabled get my three insurance premiums refunded to me. We also received all past due benefits for the maximum monthly payment for the past 8 months since I stopped working. Greg continues to handle my claim and thankfully he will always be on my claim until my policy expires.

My family will be thankful to Greg, his assistant Vanessa and their entire team forever.

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