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.