Unum Provident terminates disability benefits to woman with chronic fatigue syndrome (CFS) (Part I)
Unum Provident Reviews Approved Benefits to Assure Continuing Qualification
When Nancy Perryman stopped working on February 28, 1997 she was the Western Farm Bureau Insurance Company’s agency manager for metropolitan Phoenix and Northern Arizona. She supervised between 18 and 21 insurance agents who worked out of Western Farm Bureau’s various insurance offices. She’s earned around $300,000 each year in commissions, with average monthly earnings of almost $19,000 for the two years before she stopped working.
Perryman had spent her entire working career with Western Farm Bureau. She had begun working in the 1970s as a field agent and had worked her way up the ladder. Only when her chronic fatigue syndrome (CFS) became unbearable did she stop working. She filed a claim for long-term disability benefits in April 1997, with Provident Life and Accident Insurance Company (currently known as UNUM), the long-term disability insurance company which had issued the policy to Western Farm Bureau.
Disability Insurance Attorney Begins Representing Client Before Disability Is Filed
Perryman had already retained counsel before she had to stop working. In March 1995, two years before she stopped working, she asked Dr. Clark Hansen, the naturopathic physician she had begun seeing in July, 1994, to send a letter summarizing his findings to her disability attorney. He did so stating his findings of 1) chronic fatigue and immune dysfunction syndrome (CFIDS), 2) anemia, and 3) Hashimoto’s thyroditis.
To support her claim, Perryman provided evidence from both Dr. Hansen and Dr. Jerry M. Fioramonti, who was a family practitioner with experience treating CFS. Both physicians clearly supported her disability from CFS. Both of these doctors had begun treating her in 1994 and had observed how her disease had grown progressively incapacitating. She continued to see both of these Arizona doctors until she chose to move to Texas in 1998.
Provident Approves Long-Term Disability Under “Own Occupation” Provision
Provident confirmed the existence of Perryman’s disability by asking her doctors to provide mental status, behavioral capacity and physical capacity reports. After reviewing this information, Provident reached the conclusion in January 1998 that she qualified under the “Own Occupation” provision of the disability insurance plan. The long-term disability insurance company made the payments retroactive to June 1, 1997. Between June 1, 1997 and May 31, 1999, Perryman was the beneficiary of a sizeable long-term disability check because she was no longer able to perform the duties of her “Own Occupation.”
Meanwhile, Provident kept a close eye on Perryman’s condition. A Provident employee interviewed her former supervisor on February 19, 1998. The supervisor confirmed that during the last four or five months before she stopped working, her memory had become so bad that he could discuss something with her in the morning and when he called back to discuss it later in the day, she had no recall of their previous conversation.
A different Provident employee wrote a file memo on June 19, 1998 that it appeared that the medical information supported Perryman’s continued disability, but that two things should be done to confirm her ongoing disability. 1) Perryman should be asked to complete a 14-day activity log and 2) Provident should order video disability surveillance.
Social Security Disability Benefits Are Approved
Meanwhile, Perryman had applied for Social Security Disability Benefits. As part of the screening process, the Arizona Department of Economic Security asked Dr. Hal Breen, a psychiatrist, to examine Perryman as part of her Social Security disability benefits qualification review. She saw him on August 28, 1997. During his mental status examination, he found no evidence to support Perryman’s claims of short-term memory loss or confusion. Instead, he found that her immediate, intermediate and distant recall was well within normal limits.
Dr. Breen felt her prognosis was good, if she could obtain effective treatment for her CFS. It was his conclusion that the allegations that Perryman suffered from confusion and short-term memory loss were untrue.
The mental capacities form for work-related activities which he prepared reported that Perryman had a “Fair: seriously limited, but not precluded” ability to deal with work stresses, a “Good: limited, but satisfactory” ability to deal with the public, an “Unlimited/very good” ability to follow work rules, relate to co-workers, use judgment, interact with supervisors, function independently, and maintain attention and concentration. He also noted that she had a “Good; limited but satisfactory” ability to understand, remember and carry out complex job instructions, and an “Unlimited/very good” ability to understand, remember and carry out simple and de-tailed job instructions. He also commented on the form that “Patient’s fatigue is unexplained by this exam. Not confused; no memory loss.”
Based on this report, her initial application for Social Security disability was denied. This decision was reversed on August 26, 1998, when a Social Security Administration administrative law judge found that new information confirmed that Perryman was entitled to disability benefits. Social Security set the date of her disability as February 28, 1997, the last day Perryman had worked. The basis of the decision was the fact that her combined problems with CFS and depression made it impossible for her to work on a “regular and consistent basis” and that her physical and mental limitations meant that she did not have “transferable skills to perform other work.”
When Perryman moved to Texas in 1998, she first visited Dr. Clark Craig. His office notes from April, 1998 indicated that he had ordered a thyroid-stimulating hormone test, which came back normal, ruling out continuing Hashimoto’s thyroditis. He still agreed with her previous diagnosis of chronic fatigue syndrome “with features of fibromyalgia.” He continued to assess Perryman as having CFS in a July 31, 1998 visit.
Provident Orders Video Surveillance
Provident hired International Claims Specialists to conduct surveillance on Perryman from July 26 through 28, 1998. One the first day, Perryman was seen leaving her home with the companionship of her elderly mother. They went to church, stopping for gas on the way and Perryman filled the tank. They also stopped briefly at a friend’s on the way home from church. The two women returned later that afternoon to the same house and visited for about two hours, before returning to Perryman’s home.
Over the next two days Perryman was seen only briefly. She never left home, and her mother only came by once. In total, she was seen walking, driving, putting gas in her car, carrying a potted plant and bending at the waist to pick up something.
Provident Terminates Long-Term Disability Benefits Under “Any Occupation” Provision of Plan
Provident was aware of the positive Social Security disability benefit decision, but when May 31, 1999 rolled around, Provident terminated Perryman’s long-term disability benefit payments, because the insurance company concluded that she was no longer disabled from working in “any occupation.”
The policy clearly stated that Perryman would be considered disabled from any occupation if due to sickness or injury she was unable to earn at least the “Any Occupation” income level of 80% of the index earnings from any occupation which she was reasonably fitted by education, training or experience to perform. Indexed earnings were, according to the policy, to be based on the Department of Labor’s consumer Price Index for urban wage earners and clerical workers. In the “Any Occupation Period” was defined as the time span between Perryman’s qualifying for long-term disability benefits under the “Own Occupation” clause and the age of 65.
The policy also required Perryman to provide the insurance company with proof of her continuing loss, written evidence that could prove to Provident’s satisfaction that she was disabled and entitled to long-term disability monthly benefits under the “Any Occupation” clause.
What evidence did Provident use to reach this decision? It leaned heavily upon a March 1999 report generated by GENEX Services, Inc., a company owned by Unum Provident. The report drew the conclusion that Perryman’s new primary care physician, Dr. Sidney Shinkawa, had just passed on the opinions of prior physicians, thus they concluded her opinion was essentially meaningless. The report claimed that Dr. Shinkawa was not addressing Perryman’s CFS and Perryman exhibited an apparent lack of interest in meaningful activities.
Provident ordered a functional capacity evaluation (FCE). This was performed at HealthSound Industrial Rehabilitation Center on April 12, 1999. The examiner noted that Perryman was laboring by the end of testing to complete the activities. She was unable to complete the frequent lift test in a time frame that allowed the examiner to determine a frequency level for her. She also had problems with testing that required her to change positions quickly. The examiner found that she was able to walk for 12 minutes at 2 mph and that she had a normal aerobic capacity for someone of her age.
The physical capacities form the examiner filled out reported the following assessed abilities. Perryman could stand, walk, sit or drive for only 1/2 hour at a time. Over the course the entire 8-hour work day, she could be expected to tolerate standing, walking and driving for a total of two hours and sitting for a total of four hours. He stated that Perryman was able to lift something from the floor and bring it up over her head. She would be able to life and carry up to 20 lbs. and occasionally bend, twist, squat, kneel and reach.
Provident Orders In-House Medical Review.
Dr. E.C. Curtis, whose specialty at Provident was occupational medicine, reviewed Perryman’s claim. In his first report of May 12, 1999, he gave his opinion that Perryman appeared to be “quite capable of performing basic ADLs (activities of dailiy living).” In his opinion, the medical record was primarily a recital of what she had reported to her doctors. He found the findings that she had low grade fevers, intermittent swelling of her lymph nodes, etc. were not convincing evidence that she had CFS at all.
He felt that her reports of incapacitating fatigue seemed to be exaggerated when they were compared to the findings of the FCE. And he made it clear that he expected Perryman and her attending physician to argue that the test had been on one of her “good days” and that she would claim that she was “wiped out” for hours or days afterward.
He went on to address the FCE specifically, which stated that Perryman was capable of sedentary work. He claimed that much of the weakness seen during the exam could be explained by her lack of exercise over the last two years. He called it “de-conditioning.” He felt this might also be contributing to her blood pressure issues.
He claimed her chart failed to substantiate her concentration and short-term memory issues. He also stated that her fainting spells had not been independently verified. He pointed to recent lab results that failed to confirm her hypothyroidism. In his opinion, CFS wasn’t her problem at all. He opined that she really suffered from depression and this was the cause of her fatigue and inability to sleep. He also pointed to her recent divorce as the primary contributor to her reported problems with concentration and short-term memory.
He felt that Perryman’s depression had not been addressed adequately. He saw her problem primarily as a psychosocial issue where the long hours Perryman had been putting in before the onset of her symptoms had just been too much for her, and she had “understandably” become “tired of the struggle.” He accused her of developing a “disabled mind set.”
Ultimately, he concluded that Perryman just didn’t want to return to work and that she was seeing caregivers who seemed “less than inclined to encourage and facilitate” her abilities. Rather they were more inclined to support her disability. On top of this, he pointed to Perryman as “a claimant who reportedly has limited economic incentive to resume work.”
This report formed the primary grounds for Provident’s termination of Perryman’s disability benefits under the “Any Occupation” clause of the policy.
Disability Attorney Assists with Administrative Appeal.
Perryman’s disability attorney raised issues concerning the validity of Dr. Curtis’ report when Perryman filed her administrative appeal. He pointed to Dr. Fioramonti’s clinical notes, and Dr. Hansen’s statements. He also pointed to the testimonials that family, friends and former coworkers had supplied. Provident sent Perryman’s file back to Dr. Curtis for a second evaluation.
His second opinion, rendered on November 24, 1999 proceeded to claim that Dr. Fioramonti’s clinical notes from 1994 had failed to make a systematic listing of the items that are the accepted criteria for diagnosing chronic fatigue syndrome. He repeated his opinion that all the physician’s notes in Perryman’s files seemed to only recite or paraphrase what Perryman was telling them. He did not see them as independent observations. He gave no weight to the testimonials provided, for the same reason.
Dr. Curtis stated that no neuro-psychological testing had been ordered by Perryman’s physicians, proving to him that none of Perryman’s physicians had used the simple measures available to them, hinting at incompetence.
Dr. Curtis’s contension was not completely true. Perryman had gone to see Dr. J. Terry Wilkinson, a neurologist, whom Dr. Shinkawa recommended. In his notes from this June 16, 1999 visit, Dr. Wilkinson relayed the information that Perryman had shared with him. She had told him that she had felt constantly tired since 1994, although her symptoms waxed and waned. She reported that the Florinef she was taking to prevent her fainting spells, kept that problem under control. She also found that Prozac had helped with the symptoms of depression and possibly her symptoms of fatigue as well.
When Dr. Wilkinson went on to record his impressions, he stated that he didn’t find any “evidence of a primary neurological disorder” that could be causing the CFS or the orthostatic hypotension for which she was taking the Florinef. He concluded that Perryman’s memory issues were not the result of a true organic problem, but rather the result of being too tired to think clearly. He felt that the combination of Prozac and Florinef was improving her condition significantly.
Dr. Curtis considered Dr. Wilkinson’s report further confirmation, when compared with Dr. Breen’s earlier report in 1997, that Perryman’s short-term memory and inability to think were alleged difficulties, not real issues. He stated that while he recognized that CFS “has essentially no objective clinical findings,” individuals who have the condition can be assessed based on the functional abilities. He felt the scant objective evidence suggested that Perryman had enough functional capacity remaining to work in a job that required sedentary to light duties.
He realized that it would be difficult for Perryman to find work after having been out of the work force as long as she had been, but that if she had the least determination to do so, she could do so. He found no objective functional reason she should remain on disability instead of returning to the workplace.
Provident Orders In-House Transferable Skills Analysis (TSA)
Meanwhile, shortly after Provident terminated Perryman’s disability benefits, they asked in-house vocational rehabilitation consultant Pam Perdue to determine if there were any jobs that Perryman would be qualified to perform with her level of education, training and experience.
Purdue informed the disability insurance company in her first report, of May 26, 1999, that a number of possible positions existed: Special Agent at $615/week; Risk and Insurance Manager at $672/week; Insurance Office Manager at $536/week; Closer at $559/week; Brokerage Office Manager at variable salaries/week; and in-house on commission sales as long as the job was sedentary.
In her second report of December 28, 1999, Purdue added positions which would used Perryman’s insurance, sales and management experience; top marketing and sales, top administration, to claims and top underwriting positions. She noted that these executive positions correlated directly with many of the positions she had identified in her May 26 report.
Disability Attorney Secures Affidavit in Response to Physical Capacities Evaluation
Perryman’s disability attorney responded to the FCE by having his client prepare a sworn statement on October 24, 1999. Included in her statement was the following information:
At Provident’s request, I went to be evaluated at Healthsouth. I was only able to spend 13 minutes on the treadmill and then needed a 45 minute nap before I could continue any other exercises. Even though I did less than one hour of exercises while I was at Healthsouth, I was so exhausted that I spent the next four days in bed.
This was exactly what Dr. Curtis had told Provident to expect.
Initial Administrative Appeal Review Suggests that the Basis for Denial Is Weak
Provident employee Darragh Ferranti received Perryman’s file for review. In December 1999, Ferranti submitted an Appeal Recommendation to other Provident personnel, recommending that Perryman’s benefits be reinstated. In the document, which the Courts would later order be produced and attached to the Administrative Record, Ferranti pointed to the fact that Provident had paid the claim from 1997 without contesting Perryman’s diagnosis and pointed to the fact that their own independent medical evaluation in 1997 had supported the diagnosis.
Ferranti agreed that Perryman could likely return to some form employment where the work was sedentary, but seriously questioned Perryman’s ability to earn $160,000 a year, 80% of her indexed earnings in her prior occupation. Ferranti noted that the highest paid position listed on Purdue’s first TSA was only $32,000 a year. Ferranti also recognized that while many of the positions allowed for commission based income, this would require motivation and energy, something that Perryman seemed to lack.
Disability Attorney Receives Notice of Appeal Denial
After Ferranti spoke with Healthsouth about the FCE results and received Purdue’s second TSA, she changed her mind. She informed Perryman’s disability attorney in writing of Provident’s decision on December 29, 1999. Ferranti made it clear that the diagnosis of CFS was in question. Because Perryman had seen some improvement in her condition in response to anti-depression medications, it was also possible that she suffered from a sleep disorder that had not been diagnosed or treated. If a sleep clinic had indeed told Perryman that they could not help her, she had not provided records to prove this.
She also referred to office notes that went back to 1994 which applied the same symptoms – memory loss, loss of concentration, dizziness, blackouts, etc. while she was experiencing the severe stress of the dissolution of her marriage. Because the divorce was still ongoing in 1998, it was highly probable that her condition was stress related and not CFS at all.
She also referred to discrepancies in the medical records regarding her treatment. She pointed to the fact that the medical record was silent between January 1997 and April 1997, even though her last day of work was February 28, 1997. Perryman’s claim that she was completely bedridden for the 110 days after she was first affected by CFS could not be confirmed independently.
Then she gave the reasons Provident was upholding its decision:
- The FCE suggested that if Perryman had worked her way into it, she would have been able to resume work in June, 1999.
- There were positions in which Perryman could earn $160,000 a year that used her education, training and experience.
- If her concentrations and memory problems were so severe, then she had placed her 95 year old mother’s life at risk, as well as others on the road, by driving her car. She also seemed to be able to care for her essentially blind mother. The insurance company had also observed that she was able to travel and visit friends and family out of state.
Based on these facts, Provident determined that Perryman’s only reason for not returning to work was the lack of financial incentive. She had been receiving about $5000 a month. Provident claimed that she had at least sedentary work capacity that enabled her to work an 8-hour day and there were positions for which she was well qualified that would allow her to earn 80% indexed income as stipulated by the long-term disability plan.
Only Option Left is for Disability Attorney to Represent Disability Claimant in Court
Perryman had exhausted her administrative appeals. The only remaining option was to file a lawsuit in District Court. We will discuss the Court’s decision in our next article, Arizona Court rules Provident wrongfully terminated disability benefits to insurance manager with CFS (Part II).