Unum Provident denies short-term disability claim to woman with chronic fatigue syndrome (Part I)
Disability attorney concludes the medical evidence proves wrongful denial of disability benefits.
When Jean Strope’s disability attorney filed suit on her behalf in the Western District of New York September 15, 2006, he believed his client had a strong case for wrongful denial of short-term disability benefits. U.S. District Courts are holding disability insurance plans, such as the one issued to HSBC Bank USA (HSBC) by First Unum Life Insurance Company (Unum) accountable for denying benefits to claimants with fibromyalgia and chronic fatigue syndrome when the claimants are unable to provide objective evidence of their symptoms. By looking at the medical history behind Strope’s short-term disability claim, we will understand the foundation for why Strope had to take her claim to court.
Strope was one of HSBC Bank’s Senior Vice-presidents when she first began to experience extreme fatigue. She went to see Dr. Danuta Derkatz on April 1, 2005. She advised that Strope stay home from work until her next appointment in May. Based on her doctor’s orders, Strope applied for short-term disability benefits from Unum under the short-term disability plan she participated in as an HSBC Bank employee.
The short-term disability plan included an elimination period. If Strope was continuously disabled during this time, she would be eligible for the 26 weeks of short-term disability the plan provided for. The plan defined “disabled” as “limited from performing the material and substantial duties of your regular occupation” due to sickness or injury combined with “a 20% or more loss in weekly earnings” due to the same sickness or injury.
On the same day that Strope made her application, Unum mailed a letter to Dr. Derkatz asking the doctor to complete an Attending Physician’s Statement enclosed with the letter. This letter was followed 10 days later with a request for all of Strope’s medical records from April 1, 2005 to the present. Dr. Derkatz responded by sending a copy of her office notes from April 1, 2005. It noted that this visit was a follow-up for Epstein-Barr Virus and indicated that Strope felt “terrible; very, very tired.” The doctor also noted a need to follow up on a potential sleep apnea diagnosis. The physician ordered Strope to not return to work until May 6, 2005.
Unum finds evidence supporting disability inadequate.
On April 22, Unum notified Strope that her doctor had not provided sufficient information. Because Dr. Derkatz had failed to send back a report that listed the activities she could not do, along with medical explanations of why her symptoms prevented her from these activities. At the same time, Unum also asked Dr. Derkatz to send Strope’s medical records going back to January 1, 2005.
Dr. Derkatz sent the additional medical records and the Attending Physician’s Statement to Unum on April 28. The statement told Unum that Strope tested positive for Epstein-Barr Virus, a common cause of extreme fatigue. The physician noted that Strope’s symptoms included severe fatigue and the ability to only perform simple tasks. The doctor stated that Strope would probably be able to return to work on May 6, 2005.
Two nurse-consultants reviewed Strope’s file on May 5, 2005. They concluded that the medical records did not support the restrictions and limitations recommended by Dr. Derkatz. Unum notified Strope that the medical information was insufficient to verify her qualification for benefits. She was asked once again to provide a list of “activities you cannot and should not do along with an explanation of the medical reasoning supporting these restrictions and limitations.” Unum sent Dr. Derkatz an Estimated Functional Abilities form, asking her to complete it and submit any additional medical records from April 2 until May 13, 2005 that were available.
Application for short-term disability is denied for lack of “medical documentation.”
On June 1, 2005, Unum notified Strope that the short-term disability claim had been denied because her disability had not been supported by medical documentation. Unum said it was unclear why she was unable to work after April 1, 2005. Unum advised Strope to provide additional medical documentation, including sleep apnea records. She was given 180 days to do so.
Dr. Derkatz sent Unum a letter on June 6, 2005 stating that Strope was under her care for Epstein Barr virus which exhibited the typical symptoms of Chronic Fatigue Syndrome (CFS). She was also treating Strope for depression, hypothyroid, borderline sleep apnea and possible Lupus Erythematosis.” She noted that Strope’s symptoms included “profound fatigue, joint pain of her knees, hips, feet, hands and upper back with tenderness to palpation.” These symptoms according to the doctor were “currently debilitating and preclude[d] her from any type of work.” Dr. Derkatz noted that Strope had difficulty concentrating and moving around and had to rest frequently throughout the day.
This additional information proved ineffective at changing Unum’s denial decision. When a nurse-consultant reviewed it on June 13, 2005, the consultant found that Dr. Derkatz’s restrictions seemed overly restrictive because Strope had multiple diagnoses with multiple complaints. She also found “no apparent documentation in the medical records which would appear to reflect an impairment in physical or cognitive functioning capabilities.”
Based on this information, Unum notified Strope on June 20, 2005 that the disability insurance company was upholding its denial of her claim. The letter noted her symptoms, but pointed to a lack of “clinically supported restrictions and limitations” that would prevent her from performing the “material and substantial duties” of her position at HSBC.
Appeal of short-term disability benefits denial includes “medical evidence.”
Strope submitted an administrative ERISA appeal of the denial decision. In an effort to provide the necessary “medical evidence”, Dr. Derkatz sent Unum the following reports:
- January 12, 2005 lab report indicating that Strope tested positive for two of three antibodies associated with the Epstein-Barr Virus. The lab report stated that 90% of the population tests positive for these two antibodies if they have had a previous infection or exposure.
- April 2005 report from Dr. Edward Ventresca indicating that Strope suffered from a mild degree of obstructive sleep apnea.
- May 20, 2005 office notes from rheumatologist, Dr. Prem Tambar ruling out “any specific significant inflammatory rheumatic disease.” Dr. Tambar suspected that Strope’s symptoms were “soft tissue rheumatic in origin” and considered it a matter of semantics whether one calls this fibromyalgia or “symptoms secondary to underlying depression.”
- June 2005 report from Dr. Tambar observing the presence of osteopenia and bilateral carpal tunnel syndrome.
- Additional office notes from Dr. Derkatz through July 15, 2005.
Unum finds medical evidence insufficient to reverse denial of short-term disability benefits.
This information was reviewed by a nurse-consultant on August 5, 2005. The consultant found that Dr. Derkatz findings that Strope could not concentrate were not supported by any test that evaluated Strope’s cognitive difficulties. Likewise no tests or office notes substantiated the difficulties with ambulation. The medical records indicated a previous Epstein-Barr infection, not a current active infection. The records showed no evidence of Lupus, normal thyroid function and only mild sleep apnea. The consultant also determined that Strope’s symptoms failed to meet the criteria established by the U.S. Centers for Disease Control (CDC) for Chronic Fatigue Syndrome (CFS).
Unum denies short-term disability benefits but approves long-term disability benefits under a separate policy.
Based on this information Unum, upheld its decision to deny Strope’s claim for short-term disability benefits. Meanwhile, Strope had applied for long-term disability benefits from a separate policy carried by HSBC for its employees under the New York Disability Benefits Law. This policy was also managed by Unum. Even though, Unum initially denied this claim as well, after a Worker’s Compensation Board hearing in which Strope was determined eligible, Unum agreed to pay long-term disability benefits.
Disability attorney files suit against Unum for improperly denying short trerm disability claim for “subjective” illness – Chronic Fatigue Syndrome.
Seeking to recover the short-term disability benefits due her, Strope filed suit on September 15, 2006. Her disability attorney’s case would stand or fall based upon his ability to show that the medical records demonstrated that his client did indeed have a subjective illness that cannot be substantiated by objective medical tests. Would he be successful? Read more about the results of this case in Part II: Disability attorney wins claim for Chronic Fatigue Syndrome (CFS) client against Unum Provident.
Resources to Help You Win Disability Benefits
Get Your Unum Disability Application Approved
Prevent a Unum Disability Benefit Denial
Negotiate a Unum Lump-Sum Settlement
Our goal is to negotiate the highest possible buyout of your long-term disability policy.
Policy Holder Rating
Q: Does UNUM periodically review Group Long Term Disability Insurance claims/payments? For example, do they verify medical eligibility every five or ten years?
Q: My group long term disability insurance allows me to work part time up to 20% of my pre-disability earnings without affecting my benefit. If I take advantage of this, will Unum use this to deny my benefit?
After appeal filed by Attorney Jay Symonds, UNUM overturned previous denial of long term disability benefits for South Carolina Nurse
Unum Overturns Original Decision to Deny Benefits to Disabled Account Manager Following Appeal Submitted by Dell Disability Lawyers Appeals Team
After appeal filed by Attorney Jay Symonds, UNUM overturned its previous denial of long term disability benefits for Colorado Plumber
Court Rules Plaintiff's Medical Records Was Replete With Evidence Supporting Claim of MS & Was Not A Pre-Existing Condition
After paying for 13 years Unum Denies Disability Benefits to Woman with Lyme Disease and Endometriosis
Inexperienced Lawyer Handles Unum Disability Lawsuit and Fails to Provide Evidence to Support Occupational Argument
Massachusetts court overturns Unum's decision to terminate disability benefits after paying for nearly ten years
Reviews from Our Clients
Very satisfied with the work of this team. Took well care of my case and took all the necessary time to be responsive and attentive when I had questions. Guided me through recovery and returning to normalcy. All thanks to Jason & Tabitha, thank you!
I’m extremely satisfied with the experience I have had with this firm from day one. The lawyer who has handled my case, Alex, is very efficient and attentive to all my questions and concerns. They are always aware of how my case has gone and they care about my health. I feel optimistic with them because they are very attentive during the process of my claim. I would not hesitate to recommend families and friends if in any situation they need their services. Kathleen as well has been very well and assisted me with this case. I highly appreciate everything they have done for me.
It’s unfortunate when disability insurance companies come after older disabled policyholders just to help their bottom line. It can be a living nightmare the damage they can do to a family. Dell Disability Lawyers are polite, understanding and knowledgeable. They call you back and answer any question you have no matter how unimportant it can be. The amount of stress they took off of myself and family was incalculable. I recommend them highly to take care of any disability case whether it be filing for benefits or reversing a claim decision. They are outstanding.
I could not have been happier or more appreciative of the hard work they performed on my behalf. I was well briefed on my case and it was closed in a timely manner with a financially successful resolution.
Mr. Symonds and Sonia as well as everyone else we have worked with throughout this process have been very helpful, professional and caring to our situation. We are very thankful to have this great team on our side.
Without them my LTD company was dropping my plan with me still suffering from my accident, even with doctor’s statements I’m still disabled. The LTD company didn’t want to advance my policy to the next stage of years of pay. Dell Disability Lawyers saved my policy, and helped to enforce the LTD company’s own policy (for its policy holder, me) that I would be covered still under the LTD policy I had paid for at my previous job, when my accident occurred. These lawyers know what they are doing and can help you too. LTD companies will try to drop you when you still need coverage just because they don’t want to pay on your policy anymore. Don’t let them break contract with ya because they are trying to get out of it. Hit em with legal action to ensure the continuation of your policy you paid for. Dell Disability worked very well for me and continue to do so.
I was denied long term disability benefits from The Hartford after being on it for years. I found Dell Disability Lawyers after doing research online. In a matter of days they responded and explained to me everything that would be done. Dell Disability Lawyers were able to settle my suit against The Hartford very quickly and responded to me quickly. I would definitely recommend this team of lawyers for anyone that is fighting for their disability insurance.
I have had nothing but a great experience with Dell Disability Law Firm. Mr. Alex Palamara and his team went above and beyond my expectations. They will respond to emails and phone calls in a timely manner. Thank you once again for taking my case.
This law firm is the best so far. MetLife denied me two times, they appealed two times for me and they won of course. So if you are on disability and want a chance at winning your case use this firm Dell disability lawyers, kind courteous understanding and they get the job done. You won’t be disappointed.