Our client, Richard, was working as an insurance agent when he began experiencing pain in his lower back. After consulting a physician and undergoing a CT scan and MRI, a ruptured lumbosacral disk was discovered. As an insurance agent, Richard understood the importance of maintaining disability insurance and he had personally purchased an individual disability insurance policy, insuring him for both total and partial disability from his occupation as an insurance agent.
Following the diagnosis of his ruptured disk, Richard’s physicians recommended surgical laminectomy and discectomy to repair the lumbosacral space. Ten days following his surgery Richard began experiencing severe pain in his low back and right side. Richard presented to the ER, where they treated him conservatively and sent him home. Richard’s pain persisted so he returned to the hospital where an MRI was performed, which revealed to be mostly normal. He was once again treated conservatively and sent home with instructions to remain on bed rest. Richard continued to suffer severe pain to the point that he returned to the Emergency Room and a repeat MRI showed definite discitis and destructive inflammation.
With treatment, therapy, and medication, Richard’s inflammation soon lessened, but, his pain persisted. Richard eventually returned to work, but his chronic back pain only allowed him to work part-time. Despite his best efforts to generate income similar to the income he was generating prior to his surgery, Richard’s sales and revenue suffered. It was simply impossible to generate his pre-disability income working only ten hours per week, when he had previously worked 50+.
Richard contacted his disability insurer and informed them that would need to file a claim under his policy. Richard was not surprised when his disability insurer, after reviewing his claim, determined that he was indeed unable to spend as much time at his occupation as he did before his disability started, and that he had at least a 20% loss of income, thus qualifying him to receive partial disability benefits.
For the next 21 years Richard’s long-term disability in surer paid his partial disability claim. Although Richard left his employer soon after his disability claim was approved to run own insurance agency, where he could manage his own hours and accommodate his medical issues, his disability insurance company, paid faithfully for the entire period.
Around year 21 of the disability claim, the claim transferred to a new claim representative. The new claim representative requested updated medical records, which they had reviewed by their internal medical consultant. Following the medical consultants review, they determined that they should obtain surveillance video of Richard, and request an Independent Medical Examination (IME) by a physician outside of the disability insurance company. The IME examined Richard and reviewed the surveillance video provided by long-term disability insurance company, which showed Richard getting in and out of cars, engaging in conversations, running errands, walking, rolling a suitcase, and using a cane.
The IME concluded, based on a brief examination of Richard’s lower back, but without reviewing any recent MRI, that Richard was capable of working full-time as an insurance agent and in any sedentary occupation. In reaching his opinion, the IME never discussed Richard’s occupation with him, much less his specific occupational duties or the physical, intellectual and cognitive demands of working in insurance sales and operating your own agency. No mention of any of Richard’s occupational duties appeared in the IME’s report. Without knowing anything about the actual physical demands of his job in insurance sales, the IME opined that Richard was capable of not only performing the sedentary duties of an insurance agent, but also those of a light duty occupation. At the conclusion of his IME he acknowledged that he based his opinion without an updated MRI, and stated that he did not have enough information to say whether or not additional treatment including surgery would be of benefit to Richard.
The long-term disability insurance company decided to terminate Richard’s claim, and its decision essentially mirrored the opinion of its IME. It claimed that Richard was not only capable of the sedentary duties of an insurance agent, but also those of a light duty occupation.
For a short time, Richard attempted to resolve the matter directly with his disability insurance carrier. He wrote letters, provided more medical records and spoke numerous times with the claim representative. However, none of his strategies and efforts proved to be fruitful, and he contacted Dell & Schaefer, hiring Attorney Cesar Gavidia to represent him.
Richard and his long-term disability insurance carrier, with their attorneys, agreed to participate in a pre-suit mediation, where Attorney Gavidia and the disability insurance company’s in-house general counsel gave compelling and well-prepared presentations and arguments. The evidence, including Richard’s recent medical treatments, MRI’s, and even the surveillance videos were discussed and argued over. After many hours of negotiation and presenting evidence and arguments, the parties reached a confidential monetary settlement to their mutual satisfaction.