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Michigan Long Term Disability Insurance Lawyer Blog

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Long Term Disability Insurers love to use surveillance to find a way to terminate benefits. Think about it it from a business perspective. They can hire a private investigator and pay them $500 or a $1000 dollars to follow a claimant around for a few days and maybe save tens or hundreds of thousands of dollars if they can just get something on tape that they can use to terminate the claim. This is the story of one such claim.

SMDA was hired by Mr. S who last worked as a senior programmer for EDS when his significant and progressive back problems stopped him from working. He had been diagnosed with lumbar post laminectomy syndrome with lumbar radiculopathy, lumbar spondylosis with low back pain and lower extremity pain. As a result, he had severe low back pain with aching, shooting, sharp, and throbbing pain with numbness, tingling, burning and stiffness on a daily basis. Objective testing including multiple MRI’s and EMGs have confirmed his significant deficits. The LTD Insurer originally approved his claim and paid his LTD benefits for years.

Despite the overwhelming medical evidence demonstrating his progressive disability, the LTD Insurer hired a private investigator to follow Mr. S around. During the first several days the private investigator saw nothing but the outside of the client’s house. The last day, Ms. S left the house and went to Walmart. The videotape shows Mr. S slowly getting out of his car and walking into the store leaning heavily on both his cane and then the grocery cart. The private investigator followed him into Walmart and up and down several aisles as he surreptitiously videotaped Mr. S. The video shows Mr. S picking up and looking at several items each of which weigh less than 2 pounds, leaning on his shopping cart and going through the check-out.
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Mr. Z was employed by the public works department of a local municipality. Initially, his LTD insurer approved and paid his claim for LTD insurance benefits finding he was Totally Disabled. After paying benefits for 24 months, the Insurance Company denied Mr. Z’s claim “because there is no medical evidence substantiating the fact that you are unable to work in a sedentary occupation.” Mr. Z then hired SMDA.

SMDA prepared an administrative appeal confirming Mr. Z has been diagnosed with degenerative disc disease, L3-4 disc herniation impinging the Left L3 nerve root, L4-5 disc bulge with annular tear, L5-S1 diffuse disk bulge with annular tear to the left with impingement of the bilateral nerve roots. As a result, he had severe back pain on a daily basis. His back pain was aggravated by any physical activity. As a result of his medical condition and the severe and disabling back pain it caused he was unable to sit or stand for any period of time. As a result, he was unable to perform the material duties of any occupation, which involve sitting, standing, walking, lifting or carrying. Mr. Z was also approved for Social Security Disability benefits.

SMDA was recently able to reach a pre-lawsuit settlement with Mr. Z’s LTD insurance carrier which included the resolution of all future benefits. In other words, the insurance company paid a significant sum of money for both Mr. Z’s past due benefits and his future benefits. This type of settlement has numerous advantages, not the least of which is to terminate the need for the client to have any future contact with the LTD insurance company. The claim settled pre-suit in large part because the insurance company realized that it likely faced an adverse court decision due to the administrative appeal prepared by SMDA. If you have a claim for LTD benefits that has been recently denied give SMDA a call to see if we can help.

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SMDA partner Patrick Derkacz recently attended the America Conference Institute’s Long Term Disability Insurance Seminar in New York City. The two day conference was attended by some of the top practitioners in the Long Term Disability Insurance Arena.

The conference agenda included many cutting edge topics including:

Discovery Scope & Limitations “360”: Key Strategies to Make Discovery Useful and Meaningful to Your Case and How to Tailor and Narrow Broad Requests
Innovative Pre-Trial Strategies for Disability Insurance Claims: Settlement, Mediation, Attorney’s Fees and More
The Current Role of the IME’s Evaluation‚ the Treating Physician’s Opinion‚ the FCE‚ and Medical Records in the Disability Claims Process Continue reading

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Four Michigan Supreme Court Justices (Young, Markman, Kelly and Zahra) issued a decision changing 30 years of No-Fault Insurance law finding that automobile insurance companies no longer need pay No-Fault benefits to a person who is injured while closing their car door.

In Frasier v Allstate, the claimant, Mona Lisa Frasier had put some personal belongings in the passenger side of her car and was in the process of closing her car door when she fell on some ice and was injured. Mona Lisa made a claim with her car insurance company, Allstate to get her medical bills paid. Why? because the the Michigan No-Fault statute says the car insurer has to pay for your medical care if you are hurt as “a direct result of physical contact with equipment permanently mounted on the vehicle[,]” or if the injury occurs “while occupying, entering into, or alighting from the vehicle.”
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Our client last worked as a RN at a local hospital when she developed significant orthopedic problems following hip replacement surgery. She filed a claim for LTD benefits with the insurance company who provided group disability insurance through her employer, Oakwood Hospital. The insurer paid her disability claim for the first 24 months and then terminated her benefits claiming she was capable of working in a sedentary capacity.

After the insurer denied the administrative appeal filed by the firm, SMDA filed suit to compel the disability insurer to reinstate her LTD benefits. On the eve of the date the Court was to consider the party’s briefs the insurance company threw in the towel and voluntarily agreed to reinstate the client’s LTD benefits and pay the attorney fees incurred. This result is a clear lesson that it is critical that the administrative appeal be handled correctly as the administrative record in this case was overwhelmingly favorable to the client. The insurance company realized there was little chance of convincing the Court that it was correct in terminating her benefits.

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According to a CDA press release disability companies paid out more than 8 billion dollars in disability insurance payments in 2010. This included more than 139,000 new disability claim approvals, a small increase over the previous year’s numbers.

Diseases of the musculoskeletal system and connective tissue–such as arthritis, spine disorders and back pain were the leading cause of both new and continuing claims. The overwhelming majority of claims (90%) were caused by illness rather than accicdent.

For more information visit the CDA’s website here.

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We recently received notice that another administrative appeal of the denial of a client’s LTD claim has been successful.

When a claim for LTD benefits is denied, pursuant to the ERISA regulations the claimant must file an administrative appeal of the denial decision with the entity that denied the claim, usually an insurer. This is part of the requirement that the claimant exhaust their administrative remedies before suit can be filed.

In this claim, despite ongoing treatment our client continued to experience disabling Migraine headaches on a regular basis multiple times per week. When she experiences these headaches she is disabled from any activity. As a result of the ongoing headaches she experiences severe difficulty with focus and concentration. Her headaches are aggravated by routine physical activity. She also experience phonophobia and photophobia and nausea. As a result of her medical condition, the client has functional limitations related to any activity including sitting, standing, and routine computer usage.

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SMDA had the opportunity to represent a registered nurse who stopped working in the Emergency Department after two level cervical disc fusion surgery. Several months after the surgery the LTD insurer terminated her benefits when it determined “that the medical on file does not appear to support any significant functional impairment other than that contributed by your cervical fusion.” The insurer ignored the fact that after the surgery she developed significant fatigue and was referred to a rheumatologist. She has been diagnosed with Lupus, Sjorgen’s Syndrome, Mitral Valve Prolapse, Migraine Headaches and Raynaud’s Syndrome. As a result of her illness she experienced marked fatigue, joint pain and shortness of breath. She also had significant sit/stand restriction.

SMDA succesfully argued that her occupation as a registered nurse working in the emergency department required a high level of cognitive functioning. She must be able to effectively assess and immediately determine the appropriate response to emergent life-threatening medical developments. Given her cognitive limitations related to her fatigue and multiple medications, her ability to satisfactorily perform is impaired.

Upon considering the Administrative Appeal, the insurer reversed its denial decision and reinstated the client’s LTD benefits retroactive to the termination date.

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It has been quite awhile since I last posted a blog. I have not had the time to post because while I was away I tried several cases.

In addition to handling Long Term Disability cases our firm also handles various other types of matters including automobile accident insurance claims.

In December I tried a case for a client who was injured in a 2005 motor vehicle crash. She had neck surgery for a herniated disc but continued to have pain and problems for which she received ongoing treatment. Her Insurance company, which I will not identify, (State Farm) refused to pay for any of her medical care. When a person is injured in a car crash their insurer is responsible for paying their personal injury protection (PIP) benefits, including lifetime medical care.

My client is the nicest person who takes care of an adult child with profound disabilities. The Insurance company did everything it could to try and avoid paying her medical bills going so far as to argue that she could perform physical therapy on herself at home.

I am glad to say that the jury completely rejected the Insurance Companies arguments and decided they should pay every single penny that we sought.
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Michigan Lawyers Weekly recently published an article “Long term Disability Insurance and ERISA” written by SMDA Partner, Patrick Derkacz. Following is an excerpt from the article.

THE SET-UP

So your client got sick or hurt and hasn’t been able to work for months. They applied for LTD benefits when their doctor told them they cannot work anymore and haven’t had a paycheck for months. They are behind on their mortgage and car payment. They are getting hammered by late fees and might lose the house. They are holding on by their fingernails. They call in a panic because they just received a letter from the LTD insurer, explaining that the claim has been denied because the Insurer’s in-house nurse determined “there is no objective evidence that you are unable to perform the material and substantial duties of your occupation.”

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