Our client, a successful Timeshare Salesman on the island of Hawaii, had a long history of battling with ongoing chronic pain as a result of cervical disc herniations with nerve impingement and radiculopathy, in addition to thoracic and lumbar disc herniations. Needless to say his pain affected not only his ability to work, but also all other facets of his life. Unable to continue to work in light of his ongoing symptoms, our client filed a claim for short-term disability benefits under his employer’s policy with Reliance Standard, which was approved for the maximum 6 month period. From there his claim was transitioned to long term disability benefits. Again, Reliance Standard approved his claim for disability benefits. Our client thought his claim was “in the clear.” However, review of the claim file following the denial of his benefits indicated that shortly after his long term disability benefits were approved, Reliance Standard was already investigating the claim to find ways to deny benefits.
The Denial of Disability Benefits By Reliance
Less than 1 year after his long term disability claim was approved, and still during the “own occupation” period, Reliance Standard was conducting a full blown review of our client’s entitlement to continued benefits. This review included an Independent Medical Examination; an internal medical review with two doctors; video surveillance; and extensive research on the internet, which noted that our client had been doing extensive blogging on an almost daily basis. Although it would ultimately be determined that Reliance Standard took multiple liberties with interpreting the information it compiled (to include cherry picking the report of its own IME doctor) Reliance Standard terminated our client’s claim for LTD benefits.
The ERISA Long Term Disability Appeal
Our client contacted Attorneys Dell & Schaefer with a little over a month before his appeal was due. Attorney Stephen Jessup worked quickly to secure a copy of the claim file and requested a short extension of time with which to file the appeal to ensure that all of the medical records and information necessary for the appeal to have a chance of success could be obtained. Reliance Standard unequivocally denied the request for an extension. With no time to waste Attorney Jessup set out to undermine the basis of the information used by Reliance Standard in denying the claim – a feat that seemed daunting given the extent of Reliance Standard’s review of our client’s claim and the blogging information it obtained from the internet that shed a dark shadow on the claim.
Review of the claim file indicated that video surveillance had been performed during the course of the review. From experience, Attorney Jessup knew that the failure of an insurance company to refer to video surveillance in a denial letter was most often indicative of the surveillance finding nothing noteworthy – as was the case with our client. For two days his home was staked out, and not once was he observed. Attorney Jessup used this as evidence of his severe restrictions and limitations and the role his pain played in affecting all aspects of his life.
In the overwhelming number of ERISA disability claim denials, the insurance company does not subject the claimant to a physical independent medical examination, and instead relies on file reviews completed by either external or internal doctors. The reasons for requesting an IME are multiple, but in this case the overriding factors in our client’s claim were his age, benefit amount and his internet presence. Reliance Standard was trying to ensure that its review would not be deemed “arbitrary and capricious” by a court should the case go to trial.
There was only one problem with Reliance Standard’s plan – the IME doctor was actually supportive of our client’s claim in multiple ways and had provided suggested restrictions and limitations to our client’s physical ability to work. However, Reliance Standard, in a move usually reserved for an insured’s own medical records, cherry picked the information from the IME report that would support its agenda and discarded the rest. Attorney Jessup was quick to pounce on this and drive this fact to the forefront of the appeal.
Perhaps some of the most harmful evidence against our client was the extensive amount of blogging he performed on a near daily basis. Reliance Standard used this as a basis to argue that he would not only be able to work a full time sedentary job but also that the side effects of his medication were not impairing his cognitive ability. Reviewing the frequency of posts and discussing the blogging with our client, Attorney Jessup was able to minimize the impact of the blogging, noting that our client was able to blog at his leisure, take frequent breaks, did not have to worry about completing an entry, and that it was merely a way for him to stay mentally active. In the appeal, Attorney Jessup was able to differentiate the ability to blog as a hobby as opposed to the real life requirements of deadlines and work product required in a job setting.
The Counter Attack
Knowing there were several obstacles to overcome in the appeal, Attorney Jessup quickly set out to arrange for functional capacity testing to be performed in hopes of obtaining additional objective evidence of our client’s inability to perform even sedentary level work. The results of the test would be vital, as there was not enough time before the appeal was due to have updated MRIs performed to document and substantiate our client’s assertions that his pain had increased significantly since the inception of his claim. Attorney Jessup also reached out to our client’s treating physicians to obtain all relevant medical information and to provide additional statements and questionnaires tailored to counter the reasons and rationale of Reliance Standard’s denial of benefits. With the deadline to file the Appeal expiring, Attorney Jessup filed the administrative appeal, which contained as much argument as to Reliance Standard’s improper denial of benefits as updated medical records. Faced with the information presented in the appeal, prior to the expiration of the 45 day deadline to provide a response, Reliance Standard overturned its denial, reinstated our client’s benefits and forward a check for all back benefits owed.
Has your long term disability insurance claim been denied?
The most important take away from our client’s situation is the fact that insurance companies are constantly searching the internet and social media sites for information on their insured. We have seen on numerous occasions instances of an insurance company using information obtained from a Facebook, LinkedIn, Blog, Twitter, Instagram, etc. account as a factor in denying a claim for benefits. A disability insurance claimant must realize that information they put on the internet can and will be used against them by their insurance company. As such it is very important to make sure that if you are going to post anything to the internet that your privacy settings for the respective media are set so that the general public cannot view your information. Realize that the internet is the new “video surveillance.”
If your claim is being challenged by your insurance company, has been denied, or you are concerned that your carrier is investigating you, please feel free to contact Attorneys Dell and Schaefer for a free consultation.