Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 12: The Games Liberty Mutual Will Play When Trying To Deny A Long-Term Disability Policyholder's Claim

November 16, 2020 Nancy L. Cavey Season 1 Episode 12
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 12: The Games Liberty Mutual Will Play When Trying To Deny A Long-Term Disability Policyholder's Claim
Show Notes Transcript

In this week's episode, Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey talks about "The Games Liberty Mutual Will Play When Trying To Deny A Long-Term Disability Policyholder's Claim".

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Nancy L. Cavey:

I'm Nancy Cavey an national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I have to say this. So I've said it, but nothing prevents me from giving you an easy to understand overview of the disability insurance world, the games that carriers play and what you need to know to get the disability benefits you deserve. So off we go in this episode, I'm going to talk about Liberty mutual notice , slippery mutual, unfortunately, many disability insurance carriers, like Liberty mutual aren't in the business of keeping the promises they made to you when you purchase your disability insurance policy, unfortunately, things haven't changed since Lincoln national purchased living usuals disability, insurance book of business in may of 2018. As a matter of clarification, I'm still going to use the name, Liberty mutual, or why Lincoln national kept all Liberty mutual employees and the renewables business model. We had hoped that the claims handling process used by Lincoln would have been used by Liberty in these cases. But unfortunately that has not happened. So I'm going to be talking about how Liberty uses the game of whack-a-mole to deny claims there is new moving target games and its failure to consider all of the disabling medical conditions. The myths that Liberty mutual disability insurance policy holders believe about their Liberty mutual disability insurance and the truth, and the story of how mr. Zoske overcame a wrongful Liberty denial based on an alleged lack of objective basis for the restrictions and limitations aside by his doctors. We're going to take a quick break, but when we come back, we'll get started. Stay tuned.

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Nancy L. Cavey:

Ready to go? Let's talk about how Liberty uses the game of whack-a-mole did an eye claims and liberties moving target games, and it's failure to consider all disabling medical conditions. I think that one of the favorite games is whack-a-mole you remember that game where you would whack the mole and it would up somewhere else on the game board. Leary's perfected that game. Let me give you the case of Susan versus PNC financial services group. It's a perfect example of the whack-a-mole game. When it comes to Liberty failure to consider all of the medical conditions and their moving target occupational analysis. This person was a financial analyst who participated in PNCs longterm disability plan. She stopped working because of a bipolar disorder for which she was psychiatrically hospitalized. Now, when she was discharged from the psychiatric hospital, her doctors applied that she could not work, not only because of her bipolar disorder, but because of fibromyalgia. So Liberty paid her, her short-term disability benefits and her long-term disability benefits based on psychiatric problems. Only she had told Liberty that she had been diagnosed with fibromyalgia and her medical records did document lumbar spondylosis, degenerative, cervical findings, and a disc protrusion at C five six seven. And so there were at least a number of , uh , physical medical conditions that were the basis of her claim for disability benefits. So Liberty had her file reviewed by a doctor , Catherine Siebel who had difficulty reading the records . She was supplied by Liberty. Unfortunately, dr. Siegel didn't speak with the treating physicians and a pine that the records did not support any psychiatric diagnosis. Despite the fact that she had a psychiatric hospitalization, the treating psychiatrist wrote a report disagreeing with dr. [inaudible] findings and provided Liberty with an explanation of the findings together with updated medical records, whacked one mole. So then Liberty decided they were going to get a second review by dr. Ratter , who confirmed the bipolar diagnosis, but he concluded that the medical records did not contain sufficient information regarding the occurrence of the symptoms, direct observation by providers of the mental status, examinations and information to support any impairment from a bipolar disorder. Now ratter actually spoke with a treating psychiatrist who disagreed in writing with ratters conclusions and recommended that ms. Hassan be seen by a pain specialist. So we whacked a second mole Liberty then had a third review by dr. Sudu, a family medicine provider who opined that none of her physical impairments caused any type of restrictions and limitations nor were there any objective findings of abnormality based on exam findings or diagnostic studies that has to do didn't think that any of the disc pathology caused any impairment and that there were no side effects of medication. So guess what? Liberty upheld the claim denial based on the bipolar and cognitive issues. So what happened next? Well, she filed an appeal that included her updated medical records, test results, including an EMG and nerve conduction studies of her upper extremity, which revealed carpal tunnel syndrome, an MRI of her right and left shoulder and neuro-psychological report medication change information, updated attending physician statement forms, and an audio recording of the treating psychiatrist reading his records. Okay. She whacked a third mole. Well guess what on appeal Liberty had her file review by dr. Panzer, a psychiatrist and dr. Klein , if physical medicine and pain management provider pans, or spoke with a neuropsychologist who pined that there was no functional or cognitive impairment. And as a result, Panzer in term opine that there were no restrictions limitations as a result of bipolar or cognitive issues. Klein spoke to several of the other medical providers who were treating her multiple medical conditions, and they were advised that she could perform her own occupation, Liberty obtained , then an occupational analysis on the same day as the claim was denied. But that analysis failed to address the carpal tunnel syndromes impact on our ability to perform her own occupation, which required repetitive use of her hand with handling and fingering. Now that was pretty sneaky. Wasn't it? She filed a lawsuit and the case was decided on what's called the arbitrary and capricious standard of review. So sawn argued that Liberty kept on moving the target with his occupational analysis without giving her an opportunity to respond and failed , to consider both her shoulder and her carpal tunnel issues. The court agreed, but unfortunately, the court rejected the argument that Liberty had improperly relied on the peer review providers over that of the treating physicians. And that's not uncommon, but the court, as I said, held that Liberty acted arbitrary and capricious by failing to address the carpal tunnel and the shoulder issues and failing to give Sussan an opportunity to respond Liberty lost his game of whack-a-mole. Hopefully you can see how disability carriers like Liberty mutual, keep on changing what they want, how they want it, who they want it from and the impact of , of the information that they get. They just keep on changing the target in the next segment, I'm going to talk about some myth-busting involving Liberty claims. So stay tuned. Welcome back. We're going to talk about the myths that Liberty disability insurance policy holders believe about their policy and the truth. Now, my job is to be a MythBuster and talk with you about the games that disability insurance carriers play to delay , delay, or deny your benefits and their carriers like Liberty mutual, who engage in these games every day , day in and day out. So what's today's myth. The myth is that a judge is not bound by liberties claim denial. I can make their own independent decision. So I want to talk with you about taking on Liberty mutual in court and filing a lawsuit to get the disability benefits you deserve. Now, if Liberty denies your administrative appeal, your only choice is to file a lawsuit before the time limit for filing that suit expires. As I've pointed out in the past, if you have an ERISA disability policy, you have to file that lawsuit in federal court. A federal judge is going to decide your case. They solely on what's in the file at the time of the last claims denial in an arrest case there's little discovery, no trial and decisions are based on what's called a motion for summary judgment. It's a legal argument made by both parties. Now you have to understand going in that the presumption is that the disability carrier like Liberty mutual is right and you are wrong. You've got an uphill battle to win. If the standard of review is called abuse of discretion, and that will impact whether or not the judge can substitute their own judgment for that of the disability carrier. Let me give you an example. I'm going to tell you the story of mr. Ritter in Ritter versus Liberty assurance of Boston. Unfortunately, Ritter had an uphill battle all the way. And the issue in this case was really what's the applicable standard of review. Now he was employed by care as a quality training liaison. He became disabled as a result of Parkinson's and dementia. His claim was denied and he filed a lawsuit. Ritter claimed that the Kentucky law required what's called a Denovo standard of review. That means that the judge can substitute their judgment for that of the disability insurance carrier and arc , uh , limited by a golden handcuffs with the problem in Ritter's case was the language in the policy. And I call it the , get out of jail, free card language. The language said that Liberty shall possess the authority in its sole discretion to construe the terms of the policy and to determine benefits eligibility Liberty's decision regarding the construction of the terms of this policy and benefit eligibility shall be conclusive and binding. Wow. The court found that this language was a clear grant of discretion and that satisfactory proof language was sufficient in the sixth circuit to apply the arbitrary and capricious standard of review. Now, the Kentucky department of insurance had an issued an advisory opinion. This approving , uh, was called discretionary closets and the court federal court said, look, we're not bound by this advisory opinion and reaffirmed that the advisory opinion did not invalidate Liberty's discretionary clause States that banned discretionary clause have to do that by statute or regulation and an advisory opinion just doesn't count. So what's clear about this case is that it should have been settled at mediation and not move , uh , move forward for a motion for summary judgment because he lost, he lost everything. The truth is that Liberty will use the discretionary clause will avoid using a deliberate principle and reason process inhaling your claim Liberty as most disability carriers do. We'll hide behind this clause to deny claims, knowing that they can get away with an unfair claim denial in federal court. So discretionary clause is get out of jail free card can make or break your case. That's the truth in the next segment, I'm going to tell you the story and I think it's a great story of how mr. Jose ski overcome a wrongful Liberty denial based on an alleged lack of objective basis for the restrictions and limitations assigned by his doctor.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. Sometimes court cases read like mystery stories. Sometimes they read like a fairytale and other times they read like horror stories. Let me tell you the fairy tale story of how mr. Zoske overcame a wrongful Liberty denial based on an alleged lack of objective basis for his doctor's restrictions and limitations. But one of the most common reasons that claims are denied is the argument that there is no objective basis for the restrictions and limitations assigned by the treating physician. This is why carriers will use forms called attending physician statement forms, and they're designed purposely. So they don't ask the right questions that would lead a doctor to the conclusion that a policy holder is limited to sedentary work or less than sedentary work worse. Yet disability carriers like Liberty, never ask about non exertional impairments that are recognized in the dictionary of occupational titles, which is used in most cases to determine whether or not you're going to work at your own occupation or any other occupation. So what is a non exertional impairment that can include the need to alternate sitting and standing? It's the impact of pain or stress on your ability to do your job functions? It's the side effects of medication, whether you have good days or bad days, whether you would miss time from work , uh, and how much work you would miss every week or every month and whether or not you could maintain the pace and concentration required of your occupation. So Liberty doesn't ask those questions. In fact, they don't even ask the right questions about the mental and psychological problems you might have because they don't want to know the truth about your physical functioning, your mental functioning , uh , and your social behavior in the workplace. They just don't want to know. Now, if Liberty doesn't like what your doctor has said about your physical abilities, or they're looking for a way to justify a claims denial Liberty is going to look at the dictionary of occupational titles, strength level of your occupation. Now, for example, if you're a mechanical engineer, it might be , uh , a sedentary job, but you spend a lot of time out in the field and is actually performed at the medium level. What Liberty is going to do is they're going to look at the forms that your doctor has filled out. And they're going to say, look, there's no objective basis for what your physician said about your functional capacity or your physician is relying on subjective complaints. So how does this play out? Let's talk about mr. [inaudible] . And I think this is a perfect example of a Liberty mutual claims denial on the basis that there's a lack of objective reasons for the restrictions and limitations assigned in this a ski versus Leary assurance , uh, case. Um, what happened was, is AC was a project manager and he system strategy, risk manager, he observed and , uh, dealt with , uh, associate customer and supplier behavior around the world. He traveled extensively with consecutive or extended overnight stays. Unfortunately, he became disabled as a result of low back pain and radicular apathy. It was caused by spinal stenosis. He was prescribed opioids. He had a member of lumbar nerve blocks, but unfortunately they didn't provide him with any pain relief. And as a result, his medication was increased. He applied for him, was granted his long-term disability benefits for several months. And in that period of time, he had repeated injections. He was prescribed Gabapentin, Robaxin oxycodone. Uh , and unfortunately none of those medications relieved his pain. All was good for him until Liberty decided it was time for a claims denial and it didn't employed its usual claims denial strategy. First up was a file review by the infamous dr. Stuart Glassman and other well-known physician player in the disability carrier, stable Glassman made the usual attempt to speak to multiple treating physicians. When he was unable to speak with them . He applied that while there was evidence of lumbar disc degenerative disease and back pain. There was no evidence of a disc herniation. And I say, who cares? It's not the diagnosis. That's the issue using spacious reasoning. He applied that JC could return to his own occupation and assigned medium duty restrictions with no restrictions on sitting or driving. Now, obviously that's outrageous. The gentleman can't sit, he can't drive. He has difficulty flying . Obviously he could not perform his own occupation. And despite the repeated comments in the medical records about the side effects of medication, Glassman dismissed them. And unfortunately you shouldn't be surprised by this two weeks after the claims denials ACE, he underwent an MRI that revealed and moderately sized lumbar disc herniation. Now Liberty upheld the denial on appeal and submitted the updated medical records, including the MRI to a, another Liberty peer review provider. Dr. Reaser who said, okay, here's the herniated disc. And I see the long-term narcotic use, but resear who said that he could work made no comment about the impact of medication side effects. He applied that Zoske could perform his own occupation with sitting and walking for one hour and standing for 30 minutes. Now, again, Liberty upheld the claims denial and a lawsuit was filed. Fortunately, judge Brooks held that Liberty abused its discretion because Liberty's peer review physicians ignored objective medical evidence. There was the MRI that showed the herniated disc that they complained about that was missing before they failed to appreciate that ACX condition had not improved over time. In fact, that had gotten worse and Liberty didn't address how the uncontrolled pain impacted his ability to walk, sit, lift, or travel. They failed to address how he could perform his occupational duties in view of that pain. And they fail to re re reconcile conflicting opinions of their own peer review physicians. So what are the lessons learned in dealing with Liberty mutual? Well, the first lesson is that well-documented medical records are the key. We need to be seeing your subjective complaints, physical examination, findings, diagnostic studies that correlate with those complaints. We need to see objective medical evidence, as I've said, diagnostic studies that confirm the diagnosis and correlate with the nature of your symptoms and complaints and difficulties. We need to make sure that the pain and the medication issues are vocationally addressed. What do I mean, I always have a vocational rehabilitation counselor take on the wrongful claims denial , uh , based on the carrier's vocational opinions, which are generally wrong and based on the wrong restrictions and limitations. I want my clients to take on the carriers, vocational evaluators opinions, and to not only address those opinions, but address the opinions , uh, of our physicians and, and discuss what impacts our treating physicians opinions about restrictions, limitations have on my client's ability to function and perform their own occupation or any occupation and attacking conflicting opinions of the peer review. Doctors is also key. We want to take their medical , uh, opinions apart line by line issue by issue opinion, by opinion. Those are the tips that I have for Liberty mutual policy holders and any other disability carriers that you might be confronted with in your claim? Well, that's it for this episode, please, if you liked this podcast, consider liking our page, leaving a review or sharing it with your friends and family. Remember this podcast comes out weekly. So tune in next week for another insightful episode of winning isn't easy.