Georgia Insurance Lawyers are well familiar with CIGNA and its unique claims practices.  We have successfully overturned dozens of CIGNA long term disability claim denials.

CIGNA, through its subsidiaries, Life Insurance Company of North America (“LINA”), Connecticut General Life Insurance Company, and CIGNA Health and Life Insurance Company is one of the major insurers of long term disability benefits. In 2009, the state insurance commissioners from the states of Maine, Massachusetts, California, Connecticut, and Pennsylvania initiated an investigation into CIGNA’s claims handling practices with respect to disability income insurance policies issued in those states. That investigation resulted in a regulatory settlement agreement (“RSA”) between the CIGNA subsidiaries and the insurance commissioners from those states in 2013.

In addition to being required to pay approximately $925,000 in fines, CIGNA agreed to implement certain claims handling procedures to ensure a more fair, reasonable, and accurate claims process. The RSA also allows for the review of claims decisions from January 1, 2009 through December 31, 2010 (January 1, 2008 – December 31, 2010 for California) to determine whether adverse claims decisions would be impacted if the CIGNA companies had implemented the new procedures at the time of those decisions.

Among the enhanced claim procedures required under the RSA are new requirements regarding the weight CIGNA must give to Social Security disability awards, procedures regarding gathering of medical information, documentation of conclusions, and guidelines for the use of external medical resources such as independent medical evaluations and functional capacity evaluations. While federal case law is clear that Social Security disability decisions are not binding on claims administrators such as CIGNA, CIGNA had been routinely disregarding these awards without meaningful consideration.

Generally speaking, CIGNA has committed to providing more meaningful review and consideration of Social Security disability awards under the RSA, and whenever CIGNA contends that the basis for the SSD awards render them of lesser or no relevance, the CIGNA claims managers must document their rationale for that determination. Specifically, CIGNA has committed to begin making an effort to obtain the records contained in Social Security disability files that may have supported the SSA’s favorable decision provided those records are “obtainable with reasonable effort” and cooperation of the claimant.

However, the RSA preserves many of CIGNA’s favorite justifications for giving little or no weight to Social Security decisions, such as where CIGNA has more current or additional records available to it, or where the SSA has relied on factors such as a claimant’s advanced age that CIGNA is not required to consider under the terms of its policies. It remains to be seen what, if any, real impact this provision will have on CIGNA’s practices in considering Social Security awards in future ERISA disability claims.
A few of the additional requirements imposed upon CIGNA under the RSA include forwarding all of a claimant’s medical and vocational information to any medical experts who review information for CIGNA. Most of the claims review procedures are qualified by terms such as “may” in the RSA so as to provide CIGNA with wiggle room. One exception is where there is a lack of agreement between a treating physician and one of CIGNA’s internal medical resources. Under those circumstances, CIGNA has agreed that it “should” seek an independent medical examination or functional capacity evaluation.

Once again, however, CIGNA can avoid this requirement if its own medical director has reviewed the claim, performs his own separate analysis, and concludes that the position of the internal medical resource is correct after having determined that the treating provider’s opinion is not well supported by medically accepted clinical or laboratory diagnostic techniques and is inconsistent with the other substantial evidence in the claim file.

Many claimants believe that when their treating physician gives an opinion that he or she is disabled from working this should be sufficient to qualify the claimant for benefits under an LTD policy. It is well established that claims administrators are not required to follow a treating physician’s opinion. In fact, even in the RSA, CIGNA was allowed to state that vague statements of impairment by treating or certified physicians generally do not provide enough detail to make determinations about the nature or degree of functional impairment and are not binding. In light of all the vagaries contained in the RSA, it remains unclear how the RSA will impact CIGNA long term disability claim denials in the future.

CIGNA’s medical director, Dr. John Mendez, is well known to attorneys representing claimants in long term disability matters. One of Dr. Mendez’s favorite justifications for denying claims where impairments are supported by medical evidence is his assertion that the supporting medical evidence is not “time-concurrent” with the claimant’s entire period of disability. Under CIGNA policies, in order to receive benefits, a claimant is typically required to show that he has been continuously disabled according to the policy’s definitions. When accepted, this “time-concurrent” defense can pose great difficulty for a claimant.

Many, if not most, claimants first become aware of the types of diagnostic or clinical evidence needed to support a disability claim when that evidence is vaguely outlined by CIGNA in a denial letter. The denial letter may not be received until 6 months or more have passed since the date the claimant first stopped working. In Phillips v. Life Ins. Co. of North America, Case No. 1:10-cv-00064-r (W.D.K. 2011), a district court accepted Dr. Mendez’s “time-concurrent” argument where an FCE was performed six months after the disability onset date.

More recently, however, in Barbu v. Life Ins. Co. of North America, Case No. 12-cv-1629 JFB (EDNY 2014), a different court reached a contrary decision. In that case, Dr. Mendez expressed his view that in order for medical testing to be “time-concurrent” it would need to occur within a month from the date on which the claimant must prove that he was disabled. The court rejected that argument noting that CIGNA’s policy contains no requirement that the medical testing be performed at any particular time and there was no evidence suggesting that the claimant’s condition had changed over time before he obtained his FCE. The court cited numerous cases in which Dr. Mendez’s opinions had been found unreliable.

It is critical that claimants are diligent in seeking to obtain the appropriate types of clinical medical evidence to support their claims in order to avoid the potential “time-concurrent” pitfall. Nevertheless, where this issue is raised, an experienced ERISA litigator has arguments available to minimize the relevance of the delay in most circumstances.  Georgia Insurance Lawyers are standing by to assist with your CIGNA long term disability claim denial. To learn more, read our article Should I Handle My Own Appeal?