Nestle Waters employee sues Assurant for denial of disability benefits under ERISA

A disability attorney recently filed a Federal lawsuit in Pennsylvania against Assurant, Inc. (Assurant), Assurant Employee Benefits (AEB), and Union Security Insurance Company (Union).

The plaintiff was employed by Nestle Waters North America Holdings, Inc. (Nestle), who contracted with Assurant, AEB, and Union to provide long-term disability benefits to its employees. By virtue of his employment, the plaintiff was covered by Nestle’s Group Long-Term Disability Plan (The Plan).

The plaintiff filed a disability lawsuit under the Employment Retirement Income and Security Act (ERISA) to recover long-term disability benefits that were wrongfully withheld by the aforementioned Defendants.

The Facts of the Case Against Assurant, AEB, and Union

The disability policy issued by Assurant, AEB, and Union to the Plaintiff defines “disability” according to the following terms:

Plaintiff has suffered from severe residual affects secondary to displacement of cervical, thoracic, and lumbar discs, resulting in bilateral lower extremity pain and numbness, neck pain, back pain, decreased range of motion, radiculopathy, and myofascial pain syndrome since August 6, 2008.

Defendants approved Plaintiff’s claim on September 3, 2009 for benefits through June 26, 2009.
Payments were made to the Plaintiff from February 3, 2009 to June 26, 2009.

Plaintiff’s medical history is well documented via Dr. Robert Sing’s (Dr. Sing) December 15, 2009 correspondence. He has treated the Plaintiff since March 2009, diagnosing fibromyositis of the cervical, dorsal, and lumbosacral spine that has resulted from the musculo-ligamentus sprain and strain of the cervical, dorsal, and lumbosacral spine, the cervical disc herination at C6-7, post-traumatic myofascial pain syndrome, exacerbation and aggravation of degenerative disc and joint disease of the cervical, dorsal, and lumbosacral spine. Dr. Sing concluded that Plaintiff will continue to have significant pain and muscle spasms on a permanent basis.

On June 25, 2009, Plaintiff underwent a functional capacity evaluation (FCE) under the supervision of Jim Schickling, P.T., at the direction of the insurer. The FCE showed that the Plaintiff could exert up to 50 pounds of force occasionally, up to 25 pounds of force frequently, and up to 10 pounds of force constantly.

Denial of Nestle’s Group Long-Term Disability Plan

After Defendants concluded Plaintiff could still work for Nestle as a Bakery Driver, Defendants denied Plaintiff long-term disability benefits via a letter on September 3, 2009.

Dr. Sing addressed the results of the June 25, 2009 FCE and stated that “the patient is suffering from pain and this would limit his ability to function in the work place.” Dr. Sing also mentioned that the patient could only lift 10 pounds on occasion, rarely 20 pounds, and never 50 pounds. Dr. Sing also mentioned that Plaintiff’s pain and other symptoms would prevent from concentrating to perform simple tasks.

Plaintiff responded to defendants’ decision to terminate his benefits via a letter sent on or around January 4, 2010, stating that the defendants’ Labor Market Survey was for a driver, not for a Route Salesperson, as he was prior to his injury and present condition, and the opinion of Dr. Sing that the Plaintiff could no longer work effectively due to his present condition.

Defendants upheld their decision to deny long-term benefits via letter to Plaintiff on April 7, 2010, claiming that Plaintiff could handle the occupations of a driver based on the definition of a driver under “Dictionary of Common Occupations.”

Plaintiff submitted final appeal via letter to Defendants on or about April 15, 2010, again stating that the Plaintiff’s former occupation was that of a “Route Salesperson” and not that of a “Driver.” Defendants denied Plaintiff’s final appeal on June 1, 2010.

Disability Lawyer Files Lawsuit Against Assurant, Assurant Employee Benefits, and Union

According to the lawsuit filed, the plaintiff alleged that Assurant, AEB, and Union failed to provide the following to the plaintiff:

Relief Sought By The Plaintiff In The Assurant, Assurant Employee Benefits, and Union Lawsuit

Due to the actions of Assurant, AEB, and Union, Plaintiff seeks the following relief from the Court:

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  • My husband is off-work at this time for an approved medical illness. As a teacher there is a clause in the Assurant long term disability plan to convert the calculation for benefits from a 10 month contract to a 12 month division that ultimately results in a reduction of his 75% payment. Contrarily the calculation they are using for his sub offset differential is the daily rate $66,000 divided by approx 200 days. His cost to pay his sub is $212 a day and the insurance company states he is receiving the difference which is not true. Ultimately he ends up receiving approximately 48% of his salary. The lady who is working with us is speaking to us like we are stupid and just don’t understand the way its calculated. We understand very well that the adjusters are reducing his monthly salary by calculating it at 12 months not 10 and then using the 10 month calculation to factor back in his sub differential. Crooks. I am contacting the State Insurance inspector. This is fraud.

    Terri MitchellNov 21, 2012  #1

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