Unfortunately, the experience of this particular long term disability claimant is not an unusual handling of a disability claim by CIGNA. When a disability insurance company issues a long-term disability policy, it provides the participant with definitions of what it considers a disability. These disability plans will vary from company to company. The one we will be looking at here involves CIGNA Life Insurance Company (CIGNA) also known as Life Insurance Company of North America (LINA). The policy in question defined disability as occurring when a plan participant was unable to perform all the material duties of his or her regular occupation, or because of sickness or injury, the plan participant begins earning less than 80% of his/her index basic earnings.
The CIGNA plan required a participant to demonstrate that a disability existed, and the disability had to exist past the 180-day waiting period. The monthly benefit promised by the CIGNA plan was “the lesser of: (1) 60% of his/her “Monthly Basic Earnings” (up to a maximum of $15,000) less the amount of any “Other Benefits” s/he received for that month, or (2) 70% of his “Basic Earnings” less the amount of any “Other Benefits,” including any benefits received by his dependents. Social Security disability income payments fell under the “other benefits” definition of the policy.
CIGNA required any plan participant who applied for long term disability benefits to also apply for Social Security disability benefits. When a Social Security application was successful, the plan stipulated that the disability plan participant reimburse CIGNA for any overpayment of benefits.
This provides the background for the claim of Alfano, the 51-year-old resident of New York, who worked at Cornell’s Weill Medical College as a wage and salary manager. He had been an employee of the college for almost 5 years when he was involved in an automobile accident. His injuries left him with back pain and weakness in his left leg.
Dr. Michael Alexiades, an orthopedic surgeon, continued to treat him. Over the next four years, Alfano’s condition worsened. At Dr. Alexiades recommendation, Alfano left his job at Weill, using family and medical leave. Dr. Alexiades ordered a lumbar MRI. The MRI revealed a number of conditions.
Alfano had moderate to severe spondylosis, commonly known as spinal osteoarthritis. The condition can be identified by osteophyte formations. Sufferers of spinal osteoarthritis often lose normal spinal structure and function. It is common for this condition to cause pressure on their roots which then causes pain and the feeling that electrical shocks are traveling through the limbs (paresthesia).
Alfano had moderate spinal stenosis at the L5-S1 level in his lower back. Spinal stenosis is identified by a narrowing of the spinal canal. The narrowing pinches the nerves, frequently causing pain in the buttocks, a limp, numbness, and if severe enough, the loss of feeling in the lower extremities. Cramping, difficulty with bladder and bowel function, and other impairments to physical activity may occur.
The results of the MRI confirmed Dr. Alexiades’ opinion that Alfano should not do any lifting, or stand or sit for a prolonged time. This opinion was confirmed by Alfano’s primary care physician, Dr. Keith Roach.
About the same time, Alfano underwent an electromyography (EMG). The results of the EMG were interpreted by Dr. Stephen Scelsa, a neurologist. The EMG results confirmed that Alfano either had an L5-S1 radiculopathy or polyneuropathy. Each word describes a slightly different set of symptoms. Radiculopathy is a term that describes different symptoms in the extremities, such as pain, numbness, tingling and weakness that occurs because of a problem with the nerve roots in the spine. Polyneuropathy describes a pattern in which the crucial nerves malfunction simultaneously. Common symptoms are similar to those of radiculopathy. One of the most notable is a recurring pins and needles sensation, though complete loss of sensation may occur in contrast to burning pain. A common symptom is an unsteady walking gait.
Dr. Alexiades gave Alfano epidural injections during this time. When he failed to respond to the treatment, his doctor recommended that he see Dr. Sean McCance, a spine specialist. Dr. McCance confirmed that Alfano was experiencing an impingement on his L5 nerve root at the L5-S1 level. He diagnosed Alfano with disc degeneration, back pain and L5-S1 radiculopathy. Dr. McCance recommended fusion surgery at L5-S1 and suggested that Alfano seek a second opinion.
Alfano did so. Dr. Robert Snow, a neurosurgeon, confirmed the L5-S1 radiculopathy, but considered this secondary to lumbar stenosis. He recommended that Alfano undergo a laminectomy, and possibly a diskectomy. Preferring to pursue nonsurgical alternatives before going the surgical route, Alfano then consulted Dr. James Farmer, an orthopedic spine specialist. This physician also diagnosed Alfano with degenerative disc disease at the L5-S1 level. He recommended physical therapy.
Alfano did not respond to his physical therapy treatment plan. Dr. Farmer confirmed the diagnosis of radiculopathy. He identified the probable cause as L5 nerve root compression. He renewed Alfano’s prescription for Vioxx and recommended further physical therapy.
In the early fall of 2000, Alfano applied for Social Security disability benefits. It took Social Security two years to process his application, but the conclusion was in his favor. He was found totally disabled both from his former job as a wage and salary administrator and any other work. The primary basis of the decision was Alfano’s “need to sit and stand at will and his need to lie down approximately 1/2 hour to 2 hours during each day.”
He also applied for long-term disability benefits under the CIGNA plan he participated in at Weill. His December 1, 2000 application required him to submit CIGNA’s Physical Ability Assessment (PAA) form from each of his treating physicians.
These disability claim mforms can be challenging to prepare. CIGNA’s PAA gives physicians three terms with which to describe their patients capabilities. If a physician indicates “continuously,” the disability insurance company will interpret this to mean that a person can perform that function for 5.5 hours of an eight hour workday. If a physician indicates “frequently,” CIGNA interprets this to mean that the patient is able to perform that function between 2.5 to 5.5 hours per eight hour workday. If the physician uses the term “occasionally,” the disability insurance plan will interpret this to mean that the person is able to perform that function for less than 2.5 hours in an eight hour workday.
Alfano’s treating physicians varied slightly in how they assessed his abilities. Dr. Snow concluded that Alfano could only sit occasionally (less than 2.5 hours). Dr. Scelsa suggested that Alfano could sit frequently (between 2.5 to 5 hours). Dr. Alexiades did not submit a PAA at this time.
CIGNA responded by ordering an independent medical exam (IME) after it received this information. The IME was ordered on February 5, 2001, and Alfano was given notice on February 7 that if he did not meet his obligation to go to the scheduled IME, CIGNA could choose to terminate present and future benefits. Then, without explanation, CIGNA canceled the appointment on February 9.
Alfano’s initial claim was denied on February 12, 2001. CIGNA claimed that he had not yet exhausted the 180-day waiting period. The long-term disability plan recognized that restrictions had been placed upon his ability to work, but CIGNA stated that none of the information provided by his treating physicians proved that he was unable to perform his own occupation which fell “within the sedentary physical demand level as outlined by the U.S. Department of Labor’s Dictionary of Occupational Titles.”
Alfano hired a long-term disability attorney, who appealed the decision on March 19, 2001. CIGNA upheld its denial, reiterating the same argument, on April 12.
Alfano’s disability attorney filed a second ERISA appeal of the CIGNA decision on April 15, 2002. This date was clearly past the 180-day waiting period. He supplemented his medical records a few months later with MRIs of his spinal cord and office notes and reports from four separate physicians – Drs. Alexiades, Farmer, Roach and Scelsa.
This time Dr. Alexiades reported that Alfano had to lie down for 1.5 – 2 hours per day. He made it clear that Alfano could not sit, stand or walk for more than 15 to 20 minutes at a time. He indicated that Alfano was unable to carry more than 5 pounds nor could he lift more than this amount of weight. Dr. Alexiades informed CIGNA that he had been treating Alfano since he had stopped working on June 5, 2000. Since that time his condition had not improved.
This report, prepared on July 12, 2002, agreed with an earlier report from February 7, 2002, which Alfano had included with his appeal. In that report, Dr. Alexiades pointed to a series of tests that he performed – positive straight leg raise, testing for weakness while walking on his toes, an MRI test results which once again confirmed L5-S1 spondylosis with stenosis and radiculopathy. Based on these test results, Dr. Alexiades concluded that Alfano practice of lying down for 1/2 hour to 2 hours three times during a normal 8-hour workday would make it impossible for him to work.
Dr. Roach also noted in a July 24, 2002 letter that Alfano was in constant pain. His conclusions mirrored those of Dr. Alexiades.
Both of these physician’s conclusions were confirmed by MRI results. Then Social Security also confirmed their conclusions by deeming Alfano as completely disabled as the day he stopped working, June 5, 2000. Alfano notified CIGNA of the decision on September 13, 2002.
CIGNA didn’t respond to the new information until December 2, 2002. The disability company announced that it needed to “consult a health care professional with the appropriate training and experience in the field of medic[ine] involved in the medical judgment.” Alfano’s file was sent to Dr. David Trotter, an orthopedic surgeon. He concluded, after reviewing the medical evidence, that Alfano had been unable to perform his regular occupation on a full-time basis from June 6, 2000 until the date he reviewed the file.
Dr. Trotter gave his opinion that Alfano would have difficulty even in a part time position unless it allowed him to change physical positions and to lie down throughout the day. He also gave his opinion that the severity of Alfano’s stenosis and nerve root impingment, precluded him from working full time in his sedentary occupation. This was an issue he felt would persist no matter what physical position he is in.
CIGNA also ordered a medical review conducted by nurse Karen Haley. She corroborated Dr. Trotter’s conclusions. The claims manager handling Alfano’s claim, reversed the decision to deny Alfano’s application for long-term disability benefits. On January 24, 2003 Alfano was sent notice that the decision had been reversed, and CIGNA would pay Alfano the benefits due from December 3, 2000 through February 2, 2003. He was informed that to continue receiving benefits he would have to demonstrate that he was unable to perform the essential duties of any occupation.
Alfano contested the change from “own occupation” to “any occupation. CIGNA reissued another letter on April 10, 2003, correcting the error. As stipulated in the plan, CIGNA reduce his long-term disability benefits by the amount of the Social Security disability benefits, and continued to request information confirming his continued eligibility. His physicians submitted periodic updates regarding his condition.
As of July 24, 2003, when Dr. Alexiades completed another PAA form supporting Alfano’s, CIGNA had the required information to find him totally disabled. CIGNA continued to pay benefits through October 2004, until it received a PAA from Dr. Roach in which he gave his opinion that Alfano could sit, stand and walk occasionally, that is for 2.5 – 5 hours per workday.
This PAA from Dr. Roach was the catalyst for a complete reassessment of Alfano’s qualifications for disability benefits. Despite the fact that a November 2004 report from Dr. Roach reemphasized his conclusions that Alfano was suffering from a classified physical impairment which made him incapable of even minimal sedentary activity, CIGNA ordered a transferable skills analysis (TSA) from Rosemary Jenkins, a vocational rehab counselor. In her November 18, 2004 analysis, she identified nine sedentary occupations that would accommodate the restrictions the October PAA indicated.
CIGNA ordered another TSA on December 1, 2004. Holly Jule, another vocational rehab counselor, reviewed the TSA prepared by Jenkins. She narrowed recommended positions down to four, one of which was Alfano’s former occupation as a wage and salary administrator. CIGNA sent the job descriptions for these four occupations to Dr. Roach on January 20, 2005, so he could review them and make comments. When they had not received a response by February 11, 2005, the case manager handling Alfano’s file informed him that Dr. Roach had until April 28, 2005 to respond. If a response was not received by this date, Alfano would have to participate in a functional capacity evaluation (FCE).
Dr. Roach’s response was sent on April 19, 2005. In it, he gave his opinion that Alfano would be unable to perform any of the jobs sent to him. He stated that Alfano’s inability to set for prolonged periods of time, as well as need for frequent changes in position, including lying down and using ice on his back, made it impossible for him to work in a sedentary position.
CIGNA’s medical director, Dr. Scott Taylor, who practiced in osteopathy, reviewed Alfano’s file, believing that there was a discrepancy between Dr. Roach’s earlier opinion and that of his April 2005 letter. He spoke with Dr. Roach, who stated that CIGNA was misinterpreting his use of the phrase “occasionally sit, stand and walk.” Dr. Taylor claimed that Dr. Roach said during the course of their conversation that he had meant that Alfano could work for 3 to 4 hours during the course of an entire workday, but was unable to sit for longer than 30 minutes. Dr. Taylor also maintains that Dr. Roach felt that an FCE would be useful.
Dr. Taylor reached the conclusion that Alfano’s medical record failed to support his inability to work in a sedentary position. He did agree with Dr. Roach that an FCE would be useful in determining whether Alfano’s functional capacity was reduced to the point where he would be unable to fulfill the duties of a sedentary position.
Dr. Roach’s conclusions that Alfano could only work up to 30 minutes at a time and not more than two hours total in an eight hour workday were confirmed by more than his observations during Alfano’s 20 to 30 minute office visit. A July 8, 2005 lumbar MRI showed that Alfano’s condition was deteriorating.
Alfano’s limitations were also confirmed by the functional capacity evaluation he underwent on July 26, 2005. Jacqueline Genovese of Sports Physical Therapy of New York reported that he was able to manipulate objects a desk level, push 20 pounds of pull 14 pounds. But she observed that he was unable to stoop, kneel, crouch, or crawl due to decreased range of motion as well as weakness and buckling of his lower extremities. She observed that he was very cooperative during the testing and did his best to perform all the tasks asked of him. She noted that he was unable to complete the lifting tests. He also could not perform the step test. She had to stop both tests because his inability to retain his balance had required her assistance to prevent him falling.
She recognized that his job required him to maintain a sitting posture for a prolonged time. She observed that during the testing time he was unable to sit for any longer than 10 to 15 minutes without making a drastic change in position. During the exam he had had to lie down frequently to alleviate his symptoms. When she compared his abilities with his medical record, she concluded that his results harmonized with the record. She also noted that his range of motion was severely limited both when Alfano knew she was watching him, and when he was unaware.
Somehow despite all these observations, Genovese concluded that Alfano could function at the sedentary level during an eight hour workday. This was in direct contradiction to the fact that he could sit for less than 2.5 hours per day, and for no more than 10 to 15 minutes at a time. The FCE also demonstrated that he could stand for less than 2.5 hours per day.
The FCE prompted CIGNA to order another formal TSA on July 9, 2005. Ginny Schmidt, a third VRC, used the results from Alfano’s FCE as well as the finding that Alfano could only work in sedentary occupations that involved no significant lifting or carrying, and allowed frequent changes in physical position. This time seven occupations were suggested, including Alfano’s own occupation as a wage and salary manager.
This convinced CIGNA that Alfano was no longer disabled according to the definition given by the policy. A letter dated September 28, 2005 notified Alfano that they were going to terminate his benefits effective October 27. The Disability insurance company informed him that his own occupation had been identified in their formal transferable skills analysis. The company claimed that it will continue to pay benefits through October 27 to prevent any financial hardship.
Alfano once again filed an ERISA appeal through his long-term disability attorney. The February 22, 2006 letter included additional medical records, including disability forms which Drs. Alexiades and Roach prepared on January 11, 2006 and January 6, 2006. Once again the reason for concluding that Alfano was disabled, including his need to lie down for 1/2 to 2 hours at a time during the day and total sitting limitation of two hours per eight hour workday was reiterated. MRI results were also evaluated. Both physician’s reports showed very similar conclusions.
A nurse case manager, Kay Rhodes, was given Alfano’s file on March 3, 2006. She concluded that the additional information failed to support a change in the severity of Alfano’s capabilities. She pointed to the FCE which had concluded that Alfano was capable of working in a sedentary level.
The file then went on to CIGNA’s long-term disability appeals team. Dr. Mendez, one of CIGNA’s medical Directors claimed to have reviewed the FCE along with the job requirements. It was his conclusion that Mr. Alfano was able to perform sedentary level work duties and was no longer disabled from his own occupation.
CIGNA’s March 29, 2006 letter informed Alfano that a medical director had concluded that he could perform sedentary work and that none of the new information he had submitted had altered the conclusion. He was told that CIGNA recognized that he did suffer from spinal stenosis, but the disability insurance policy maintains that “the presence of a condition, diagnosis or treatment plan does not equate disability under the policy.”
Alfano’s disability attorney once again assisted with another ERISA appeal. His September 15, 2006 appeal included another letter from Dr. Roach, dated August 24, 2006. This letter pointed out that Alfano was taking large doses of narcotic painkillers to manage his pain, and reiterated his opinion that Alfano was totally disabled from his spinal stenosis. Alfano also mentioned in his appeal letter that his medications often interfered with his ability to concentrate well enough to perform his occupation.
Once again CIGNA sent his file for review by a physician who was an orthopedic surgeon, Dr. Michael Weiss. He claimed to have unsuccessfully tried to contact both Drs. Alexiades and Roach. He then went on to claim that his review of the medical records he received (records from October 27, 2005 through to November 13, 2006) did not support Alfano’s contention that his condition prevented him from fulfilling the duties of his sedentary job description. He claimed that the opinions of Alfano’s physicians were not supported by “objective physical findings.”
This report confirmed CIGNA’s decision to uphold its decision to terminate Alfano’s long-term disability benefits. CIGNA sent out its final notice on December 7, 2006. It was ironic that the same claims manager who had determined that he qualified for long-term disability benefits sent him this final notice. The claims handler told him that his explanation of his “functionality and how his functional capacity prevented him from continuously performing the material duties of his occupation beyond October 27, 2005 was not clinically supported.”
With such a well-documented case of disability, how could CIGNA have reversed its finding that this man was disabled? Did the opinions of his treating physicians fail to demonstrate his inability to continue working, even in a sedentary position? Were the opinions of the professionals who reviewed Alfano’s medical records better than those of the doctors who had seen him over the course of over five years? Would it be worth pursuing an ERISA Lawsuit? See our article discussing Alfano’s lawsuit against CIGNA.