Man with fibromyalgia faces Prudential Insurance in appeals court (Part II)

On January 19, 2010, the United States Court of Appeals, First Circuit handed down a decision based on arguments heard between the disability attorney of Edward F. Richards and Prudential Insurance Company of America on October 7, 2009. This is another case that highlights the difficulties faced by disability claimants suffering with fibromyalgia. It demonstrates how important it is to hire an attorney who pays attention to the fine details and has a clear understanding of what his or her clients need to do in order to win their case.

We discussed the background leading up to Richards’ filing of a lawsuit in Prudential denies disability benefits to man with fibromyalgia after paying benefits for 10 years. Now, we will look at how the district and appellate court reviewed Prudential’s decision to deny benefits.

Richards’ disability case goes before the district court first.

Richards had exhausted his administrative remedies, having appealed Prudential’s disability benefits termination decision three times. His disability attorney filed an ERISA suit in Federal Court, seeking reinstatement of his disability benefits retroactive to June 2001. They also sought attorneys’ fees and roughly $43,000 in sanctions against Prudential for failing to provide certain documents during the administrative process. Prudential and Richards filed cross motions for summary judgment. This led to a magistrate judge issuing a report and recommendation, known as an R&R.

In the 56 page R&R, the magistrate rejected all of Richards’ arguments, including the claim that Prudential should have given special weight to the Social Security administration’s favorable benefit determination, and that Prudential should have given more weight to the opinion of Richards’ treating physician, Dr. Hryniewich. The District Court judge agreed with the R&R. Richards appealed the First Court of Appeals.

The Court of Appeals determines how to review the disability insurance case.

The first order of business before the Court of Appeals was to determine which standard of review to apply to Richards’ case. Prudential wanted the court to review the administrative record using the abuse of discretion standard. Richards’ disability attorney urged that a de novo review was needed. De novo which requires the judges to look at the entire record afresh, also provides a better environment in which to address Richards’ grievances. The Court agreed to apply the de novo standard of review.

Now, it was the Court’s job to weigh the evidence in Richards’ claims file, known as the administrative record. Did the record there demonstrate that he was disabled under the terms of the long-term disability policy? Because the review is de novo, the court did not have to give deference to the administrators’ opinions or conclusions. The court would be able to sit in the administrators chair and determine whether the administrator had made the correct decision. Everything rested on whether Richards had proven his inability to perform the material and substantial duties of any job in that record.

The disability insurance attorney bases appeal on three arguments.

  1. Richards’ disability attorney argued that Prudential failed to give weight to Dr. Hryniewich’s opinions. This argument included the accusation that in 2001, Dr. Brachman had failed to consider Dr. Hryneiwich’s notes.
  2. They argued that Prudential erred by failing to give any weight to the Social Security Administration’s positive disability ruling.
  3. Finally his disability attorney argued that giving weight to a paper consultation in which the physician recommended a psychiatric treatment for a non-psychiatric condition was not justified.

Did Prudential fail to give weight to attending physician’s opinion?

The court may have wondered if Richards’ disability attorney had looked through the administrative record. They found that Dr. Brachman’s report mentioned office notes from visits made in 1997, 1999 and 2002 to Dr. Hryniewich’s office. She also mentioned the attending physician statements from 1997 and 1999. In these statements, Dr. Hryniewich stated that Richards’ ability to perform work duties was “unknown.” It wasn’t until 2006 when Richards filed his final appeal, that Dr. Hryniewich finally stated that Richards was disabled from any work.

The court was unprepared to give Dr. Hryniewich’s assessment controlling weight over Prudential’s decision, even though none of the doctors who reviewed his filed had examined him. Existing law makes it clear. The opinion of a claimant’s treating physician is not entitled to special deference. Add on top of this the fact that Dr. Hryniewich’s office notes, written over the span over four years, never referred to any disability connected with Richards’ fibromyalgia, and the Court saw no reason to challenge existing case law.

Richards’ disability lawyers had failed to convince the court that Prudential should have given more weight to Richards’ attending physicians’ opinion.

Should Prudential have given more weight to Social Security Disability?

The court’s reaction to this argument was not positive. The court had already determined in the past that Social Security determinations could be relevant to an insurer’s decision, but that a Social Security disability decision did not have controlling weight unless the statutory criteria were identical between Social Security and the insurance plan. Richards’ disability attorney made no effort to compare the criteria used by Social Security against the insurance companies plan, effectively waiving the right to argue this point.

The record indicated that Prudential was prepared to review and consider the documentation that had led to Social Security approving Richards’ Social Security disability benefits. When this documentation was reviewed, the court found that Richards’ disability was approved because he was unable to perform a full range of sedentary work activity. The insurance policy required Richards to prove that he was disabled from all sedentary work, not just to have some limitations in performing sedentary work.

In addition, Richards began receiving Social Security disability benefits in 1992. Prudential’s termination occurred nine years later. While only Prudential terminated Richards’ disability benefits, the disability attorney failed to produce evidence that Social Security had ever reviewed Richards’ ongoing qualifications for continuing to receive Social Security disability benefits.

The Social Security argument had no merit before the court. It is likely that the court would have given more weight to the SSDI decision had the decision to award SSDI benefits been made closer in time to the Prudential denial of benefits.

Should Prudential have ordered a physician exam to evaluate disability?

Would the final argument presented by Richards’ disability lawyers be successful? They argued that Prudential’s policy language which gave the long-term disability insurance company the right to order a physical examination of a claimant, obligated Prudential to use physical exams. The disability attorney argued that the policy language was vague and must be strictly construed against Prudential during the de novo review.

The court found these arguments unsupported by the policy language itself. It would take a strained reading of the policy’s language to conclude that Prudential had to order a physical exam in order to comply with the policy language. Prior court rulings have always upheld the right of an insurer to make decisions based on reviews of the medical records, and to not require a physical exam unless one of the doctors reviewing the medical records recommended a physical exam as the only way to make an informed decision.

The disability attorney also argued that Prudential discontinued his benefits because the plan had a 24 month maximum payout for any disability caused in whole or part by a mental health issue. They claimed that Dr. Brachman falsely diagnosed Richards with a psychiatric condition – depression. This argument failed. The court found that Dr. Brachman mentioned Richards’ history of depression, but she focused more on the lack of evidence for his physical impairment. Also, the administrative record proved that Prudential had terminated Richards’ benefits on grounds based on evaluation of his current physical condition at the time of denial.

This argument also failed to convince the Court that Prudential had made a wrong decision to terminate Richards’ long-term disability benefits.

The Court rules in favor of Prudential’s disability termination.

While the court felt sympathy for Richards’ troubles, the Court’s decision could not be based upon emotion. This case was not about whether Richards had fibromyalgia or chronic fatigue immune dysfunction. The case was about whether Richards provided sufficient proof to Prudential that he was unable to perform any of the sedentary jobs for which he was qualified. The court reviewed the record and found that Richards had failed to do this. The court had no choice but to uphold Prudential’s decision and affirm the decision of the District Court.

Practical Tip: Many claimants do not realize that disability insurance benefits are evaluated on a monthly basis by disability insurance companies. I have seen cases in which benefits have been denied to a claimant after receiving benefits for 18 years. In order to help avoid denial by a disability insurance company here are a few actions a claimant can take:

  1. See your treating physicians at least once every 3 months;
  2. Make sure your treating physician is documenting all of your restrictions and limitation in detail. It is not enough for your doctor say that you cannot work. Your medical records should be reviewed regularly;
  3. Complete any diagnostic test which are recommended by your doctor. If your doctor has not performed any objective diagnostic testing, you should ask your doctor to have objective testing completed so that you can further document your disability. Be aware that if the test results do not support your disability, then the insurance company may use this information against you. If it has been more than 2 years since conducting diagnostic test, then the test should be repeated. ;
  4. Keep a daily or weekly journal of activities that cause pain;
  5. Take photographs of any swelling or videotape yourself on days you are experiencing disabling pain.

Comments (2)

  • Jonathan, it sounds like you may be confusing workers compensation insurance and long term disability insurance. Worker’s compensation insurance covers injuries that occur at the workplace or within the scope of employment. A long term disability insurance calim can be made regardless of whether a person’s injury or sickness developed while working. If a disability claimant has a pre-existing condition, then most employers will not be responsible if the claimant becomes disabled by that pre-existing condition within the first 12-24 months of the policy being issued. Long term disability insurance covers disability caused by both injury and sickness. The person that you have described below was entitled to make a long disability claim as they were disabled by a sickness that became disabling while working for his or her employer. This person must have been working for his employer for at least one year without any pre-existing condition, otherwise the disability insurance company woudl have denied his claim. With regard to disability insurance cases regarding fibromyalgia, please check out the fibromyalgia section of our website.

    Gregory Dell Sep 7, 2010  #2

  • A friend recently told me about someone they know who has been on full disability plus other benefits for over 10 years for what was initially claimed to be an injury or condition that was developed at the individuals place of work.

    It turns out that there was no injury or developed condition from the duties at the individuals place of work but actually an undiagnosed case of fibromyalgia which aggravated this individuals existing back issues with scoliosis which lead to the collecting of full disability and benefits.

    Since fibromyalgia is not a condition inherited or contracted from an activity or injury, why or how can this individual be entitled to receive a disability allotment for a condition that has no connection to their duties while working for their employer?

    It’s terrible that this or any individual suffers with a condition like this? I understand that but in no way understand this to be the repsonsibility of the employer or their insurance provider ultimately affecting the intire insurance market with increased premiums.

    Say an individual is born with FAP (Familial Adenomatous Polyposis) without their knowledge via autosomal dominant inheritance, developes colon cancer while they are employed, can this individual claim the colon cancer is work or work duty resultant, hold their employer liable and expect, receive some form of monetary compensation or settlement to all matters related to the cancer?

    Furthermore, should the individual make a claim in the future that the colon cancer episode has caused an enormous amount of mental anguish, suffering that the company should also cover all associated expenditures even to the point where the individual claims the extreme mental anguish, trauma they are suffering has rendered them unable to continue working in any capacity, seek a disability settlement and be rewarded?

    Another scenario could be where an individual suffers a debilitating physical injury during an exercise routine in an effort to lose weight because they felt peer pressure from co-workers who may have made offensive comments or perceived offensive comments about their weight.

    Then hold their employer liable for this injury claiming had it not been for the perceived or actual peer pressure and supposedly offensive weight related comments from co-workers they would have never initiated the exercise routine which placed them in the position of being injured.

    Obviously the two examples are entirely fictitious yet in concept I see no difference than the fibromyalgia case. I cannot see how any employer could possibly be held liable in such a case. Are the rulings in favor of the fibromyalgia case a result of the judges interpretation of the law, possibly influenced by compassion?

    JD Sep 6, 2010  #1

Leave a comment or ask us a question

Questions About Hiring Us

Do you help Prudential claimants nationwide?

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

Can you help with a Prudential disability insurance policy?

Our disability insurance lawyers help policy holders seeking short or long term disability insurance benefits from Prudential. 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 Prudential.

How do you help Prudential claimants?

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

Our experienced lawyers can assist with Prudential:

  • ERISA and Non-ERISA Appeals of Disability Benefit Denials
  • ERISA and Non-ERISA Disability Benefit Lawsuits
  • Applying For Short or Long Term Disability Benefits
  • Daily Handling & Management of Your Disability Claim
  • Disability Insurance Lump-Sum Buyout or Settlement Negotiations

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 telephone, e-mail, fax, 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 800-682-8331 or by email. Lawyer 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.

Dell & Schaefer Client Reviews   *****

Michael M.

To describe my experience with Dell & Schaefer is pretty simple, I had no hope of getting any settlement from my LTD company and have been sorely miss treated. When I reached out to Dell & Schaefer I truly expected to get nothing. After several long conversations and rants with Rachel Alters, I slowly raised hope for some kind of relief. Without Rachel and her team I am convinced I would’ve received nothing from the insurance company. Rachel and her team got to know my case better than my doctors even did. I never experienced this kind of care and compassion from a legal team before. I am pleased and thrilled to recommend Dell & Schaefer, do not give up, do not despair, they will win in the end. Thank you for your support and especially the settlement.

***** 5 stars based on 202 reviews

Speak With An Attorney Now

Request a free legal consultation: Call 800-682-8331 or Email Us