The Hartford has developed its own specific “playbook” for denying LTD claims that has been particularly effective with claims that are based primarily on symptoms of pain and fatigue. Many if not most individuals who become disabled due to physical conditions are not disabled because of the condition itself, but rather due to the pain and fatigue that results from that condition or combination of conditions.
Although it is commonly recognized that symptoms of pain and fatigue flow from certain conditions, there are few if any objective means for measuring the severity of those symptoms or the degree to which they produce impairments of work activities. These claims depend heavily on the claimant’s own credibility and consistency. Hartford’s internal Special Investigation Unit (SIU) has established a multi-step process designed to attack these claims.
First, Hartford conducts hidden video surveillance of the claimant’s activities. Next, a Hartford investigator interviews the claimant (who is unaware of the surveillance) to obtain statements from the claimant about his or her normal daily or weekly activities. Finally, Hartford sends the surveillance, claimant statements and medical records to one of the outside companies it regularly uses for a review. The idea, of course, is to “catch” the claimant performing activities that the claimant disavows, which Hartford offers both as proof of the claimant’s ability to perform more strenuous activity and to impeach the claimant’s overall credibility.
Video can be powerful evidence and Hartford not only uses it for its own medical reviews, but also frequently sends the video to a claimant’s treating physician to try to change opinions that support the claim. Hartford has enjoyed a great deal of success in obtaining court approval of decisions to not only deny new claims, but also to terminate payments on claims that it has already approved through this process. Not surprisingly, however, Hartford routinely abuses this process to further its own economic interests.
Hartford frequently focuses on a few minutes of activity to suggest that a claimant is capable of similarly strenuous activities over long periods of time. In one case in which a district court found Hartford’s methods to be arbitrary and capricious, the court noted that Hartford’s private investigator had only filmed the claimant engaging in a total of 11 minutes of activity outside the home over the course of 42 hours of surveillance.
Hertz v. Hartford Life and Accident Ins. Co., 3:12-CV-00141-LRH-RAM (D. Nev. 1/9/14). That court also aptly observed that Hartford regularly used that particular private investigator firm and it was “at least plausible that these financial ties incentivized [the investigator] to record those portions of… activity that most convincingly portrayed her as a non-disabled person….”
Another example of Hartford’s misuse of the surveillance is where the video shows the claimant performing activities that are no greater than those for which the claimant’s physician has released her to perform. See eg. Bertelsen v. Hartford Life and Accident Ins. Co., 2:12-CV-01440-TLN-GCH (E. D. Cal. 2/13/14). Hartford nevertheless uses the video in order to obtain opinions from its consulting physicians that the claimant can do even more. Hartford’s use of video can present an extremely difficult hurdle in a disability insurance case; however, a diligent and experienced practitioner can frequently reveal the misuse of this evidence.
Perhaps the insurer’s greatest advantage in defending a claim under a long term disability policy governed by ERISA is the policy language that invariably reserves to the insurer discretion to make determinations of benefits under the policy. Federal courts enforce that language by giving deference to the insurer’s decision and will overturn that decision only where it is found to be arbitrary and capricious.
A limited exception to that standard applies where the insurer’s financial conflict of interest in both insuring the payments of claims and deciding whether to pay those claims has an effect on its decision-making process. Of course it does. However, courts continue to labor under a false notion that an insurance company can somehow ignore its conflict and act impartially. Hartford routinely offers affidavits from management that tout purported steps it takes to insulate the decision-makers from the obvious influences of this conflict.
In the mid 1990s, internal Hartford documents showed that Hartford routinely evaluated and incentivized its claims handlers based on their performance in areas such as the numbers of claimants they could return to work “RTW” and the frequency with which they procured opinions from claimants’ treating physicians of the claimants’ “functionality” thereby moving the claimants off claim and saving the company money. Documents uncovered in more recent cases show that Hartford’s claim handlers are still very much aware of the financial impact that their decisions have for the company.
In Hertz v. Hartford Life and Accident Ins. Co., the court was persuaded by internal Hartford documentation showing that Hartford continued to evaluate its claim handlers on the frequency with which they referred claimants to its SIU unit for surveillance, which Hartford referred to as a “cost containment program,” and based on the number of claims the evaluator “closes.”
That court was also troubled by Hartford’s close relationship with the MLS Group, the company that routinely provides the physicians who review surveillance videos and medical records for Hartford. The court noted that a sampling of the 752 medical reviews MLS had conducted for Hartford from January 2010 and November 6, 2012 revealed that approximately 95% of the time, the physician reviewing the file for Hartford found that the claimant could perform some work. When facts like these are proven, it becomes more clear that Hartford’s purported role as a plan fiduciary gives way to its own conflict of interest in these claims.