OB-GYN Receives Confidential Settlement After Filing Federal Lawsuit Challenging Unum’s Denial of Multimillion-Dollar Claim for Lifetime Disability Benefits
Our client was an obstetrician/gynecologist (OBGYN) who became disabled following his fourth back surgery. Provident (later UnumProvident and now Unum), the insurance company, approved the doctor for disability benefits.
Unum, however, described the OBGYN’s disabling condition as “degenerative disc disease,” which was a major problem. Ordinarily it is the existence of a disabling condition that is central to the dispute with the insurance company, but in this case, it was the cause of disability that was important. The Unum policy at issue distinguished between disability caused by “sickness or disease” and disability caused by “accidental injury”. Disability caused by accidental injury would result in lifetime benefits, whereas the benefits for disability caused by sickness or disease would be limited to a maximum of 48 months for this client.Read More
By characterizing the disability as a “disease,” Unum hoped to avoid paying the OBGYN lifetime benefits. Based on actuarial life expectancy tables, combined with the amount of the monthly benefit, Unum was looking at lifetime exposure of millions of dollars.
The central issue to the dispute, then, was whether the OBGYN’s disability was caused by injury or disease. According to the OBGYN, he had suffered four separate traumatic back injuries relating to the condition of his lumbar spine that was now disabling him.
The first had occurred in 1982, during Atlanta’s so-called “Snow Jam.” The OBGYN attempted, along with others, to assist a motorist whose car had become stuck. While in the process of trying to move the car, the OBGYN injured his back. Afterward, he had to undergo a lumbar discectomy. After recovering for 2 to 3 months, the OBGYN returned to work.
Then, in 1992, the OBGYN had another injury to the same location of his back. This time, he was thrown from a horse during an equestrian competition. Another surgery resulted - a repeat of the previous discectomy, which also required the removal of fragments of disk tissue or scar tissue impinging on the nerve.
In 1998, the OBGYN was again thrown from a horse, this time at his home. Again, the same area of his back was involved. A lumbar fusion was performed, and the OBGYN spent 6 months recovering before he could return to work.
Finally, in 2007, the OBGYN was working out with a personal trainer when he was injured yet again. He had been using an assisted pull-up machine when he was hit with the same pain he had experienced three times before. Afterward, he underwent a fourth spine surgery. Unfortunately, this time the OBGYN was unable to return to his practice due to pain and limited mobility.
EWR set about gathering as much medical evidence relating to the past injuries as possible. Unfortunately, the records of the first two injuries and surgeries no longer existed and the witnesses that we were able to locate could no longer recall anything useful. Luckily for us, the burden of proof was on our side.
The burden of proof often becomes an important factor in cases such as this one, where the insurer attempts to enforce an exclusion, exception or limitation in the policy against the claimant. Under ERISA and Georgia insurance common law, the claimant always has the burden of proving that they are preliminarily entitled to benefits. This is called making a prima facie (latin for “at first appearance”) case.
The burden of proof then shifts to the insurer if the insurer is attempting to enforce a provision of the policy that will allow it to avoid or limit its payments of benefits. Once the OBGYN had demonstrated that he was disabled by his back condition, which occurred when Unum accepted the claim, the burden shifted to Unum to prove that the “sickness or disease” limitation applied.
Furthermore, a general doctrine of contracts law applies in such situations that is called contra proferentum (latin for “against the offeror”), that requires the policy to be construed in a manner that is favorable to the insured and against the insurer.
Under EWR’s (correct) interpretation of the policy, the OBGYN’s disability would be considered to have been caused by “accidental injury” if the court found that any injury had contributed to it in any meaningful way. It was Unum’s burden to prove that the disability had not been contributed to by any injury.
With the burden of proof and the doctrine of contra proferentum in our favor, EWR filed a “Declaratory Judgment Suit” against Unum, wherein we asked the federal court to issue a judgment ruling that the OBGYN’s disability was caused by accidental injury, as that term was defined in the policy, and that the OBGYN was therefore entitled to lifetime disability benefits.
Arguably the biggest driving factor in the litigation was the relative quality of medical experts addressing the causation issue on either side. EWR retained a world-renowned spinal surgeon who made a very convincing case that these were spinal injuries and not a “disease.” Our expert explained that the term “degenerative disc disease” is a misnomer; it really describes a normal aging process and not a disease – the “gray hair of the spine” as he called it.
This could be contrasted with the quality of expert on Unum’s side, a retired orthopedist who Unum paid $250k per year by Unum to review files. When Mr. Warncke questioned Unum’s reviewer on deposition, he could not name a single time, out of more than 100 occasions, when he found an insured disabled by an “accident” leading to lifetime benefits. Every one of the files he reviewed somehow fell under the limited “sickness” benefit. Unum’s reviewer also admitted that he understood the financial consequences of his opinions to his employer; i.e., that saying something was caused by a “sickness” saved Unum a great deal of money. EWR felt we had a very strong case that this Unum and its doctor had not handled our client’s claim fairly.
With millions of dollars at stake, and neither the law nor facts in their favor, Unum agreed to settle the OBGYN’s claim on confidential terms.
Orthopedic Surgeon Overcomes Pre-Existing Condition Denial to Recover Millions in Benefits
Our client, a renowned and highly successful orthopedic surgeon who specialized in hip and knee-replacement surgery, took out a high-premium, high-coverage disability policy with Certain Underwriters of Lloyd’s. High-end disability policies are often referred to colloquially as “Cadillac” policies. In this case, it was more like a “Rolls-Royce” policy. The orthopedic surgeon paid very high premiums for high-end coverage that only Lloyds makes available in the marketplace to doctors.
Many people do not realize just how physically demanding the job of orthopedic surgery really can be. For example, during an anterior approach hip-replacement surgery the surgeon stands on a hard floor for hours at a time and must manipulate and control the dead weight of the patient’s leg – which is essentially disconnected from the rest of their body during the surgery. To put that in perspective, the leg of a 150 lb person weighs an average of 26 lbs. A larger person could easily have a leg weighing 50 lbs. The surgeon must manipulate that weight throughout the surgery, which often requires the surgeon to remain in very non-ergonomic positions. Furthermore, orthopedic surgery often requires the use of heavy, battery-powered drills that the surgeon must hold and operate while leaning over the patient. The orthopedic surgeon was performing these types of surgeries back-to-back-to-back. Lastly, in many procedures the surgeon wears a lead apron weighing 50 pounds in order to take intraoperative x-rays to confirm that the procedure is being done properly.Read More
Our client, also an accomplished athlete, tolerated this heavy physical work for many years at a level of productivity very few surgeons ever achieve. This kind of physical work is hard on the body, particularly on the spine. Our client had a seemingly innocent low back strain while moving heavy boxes. Despite conservative treatment his pain did not go away. After attempting for several weeks to maintain his surgical schedule while receiving treatment for his pain, the surgeon had to accept that the strenuous physical exertion of surgery was exacerbating his injury. He decided that he would no longer perform the most physically demanding surgeries or anything requiring him to wear the heavy lead apron, but he would continue performing easier procedures. After a while, he realized even that was too much for him. Just being on his feet for hours would cause his low back pain to become so intense that he could not concentrate or take the time he wanted in order to do a good job. His patients’ safety had to come first.
When the surgeon finally admitted that he could no longer perform the material duties of his own occupation, he retained EWR to assist him with filing a claim for long-term disability benefits with Lloyd’s. By that time, he had seen several prominent spine specialists and had been diagnosed with discogenic back pain. Unfortunately, this condition is not well-suited to surgical treatment or any other “cure”. It has a low probability of successful surgical treatment and an unacceptably high probability of complications leading to even greater disability.
When the claim was filed, Lloyd’s began an investigation. As is true of all disability policies, the orthopedic surgeon’s policy contained a pre-existing condition clause. The clause precluded the payment of benefits if the surgeon’s disability was caused by an injury or sickness that the surgeon received treatment (etc.) for during the twenty-four months before the policy became effective.
During its investigation, Lloyd’s ordered our client’s pharmacy records and found a prescription for a topical analgesic (pain-relieving) cream that the surgeon had filled during the pre-existing condition exclusionary period. The cream had been prescribed by his medical partner. There was no note associated with the prescription that explained the reason for the cream. Lloyd’s thus contacted the surgeon’s medical partner, who told Lloyd’s that the surgeon had been experiencing post-exercise muscle soreness.
Lloyd’s did not inform the orthopedic surgeon of what they had uncovered or give him an opportunity to comment on the prescription. There was no documentation of any injury or sickness associated with the prescription of the cream. There was no medical examination or noted treatment associated with the prescription of the cream. Nevertheless, the underwriters asserted that the orthopedic surgeon had been suffering from a pre-existing condition and unilaterally denied his claim.
In short, our client was denied millions of dollars of benefits based on a prescription for cream. Unfortunately, it is not unusual for an insurer to look for any reason to avoid paying such a massive claim.
Taking advantage of the grievance procedures in the policy, EWR drafted a response to the denial. We interviewed all the relevant witnesses, including the physician partner who prescribed the cream to our client. We retained highly credentialed medical experts to analyze the same evidence that Lloyd’s had relied upon. We cited legal authority demonstrating that it was the underwriters’ burden to prove that the disability was medically caused by the pre-existing condition for which the surgeon used the analgesic cream. We pointed out that Lloyds had no evidence that there was any pre-existing condition at all. We sent a demand under Georgia’s Bad Faith Insurance Statute, arguing that Lloyd’s denial crossed the line into “bad faith”, subjecting them to additional liability for penalties and attorneys’ fees were we to file suit.
EWR’s demand also addressed the fact that the underwriters never consulted any medical professional in the denial of the claim. They made what amounted to a medical determination of causation without even engaging a medical expert, which is one of the more outrageous denials of a large claim we have seen.
In response to our demand Lloyd’s retained one of the most prestigious insurance defense law firms in New York. After some posturing and heavy negotiation, Lloyd’s ultimately agreed to voluntarily pay the surgeon’s disability claim, without our client ever having to resort to litigation. The orthopedic surgeon remained on claim for a couple of years, receiving millions of dollars in benefits, eventually ending with a negotiated lump sum buyout of the policy on confidential terms.
Delta Sales Analyst Disabled by Difficult-to-Diagnose Fatigue Illness
EWR overcomes Sedwick/Delta denial of benefits for Positional Orthostatic Tachycardia
The claimant in this short-term disability case became disabled following a vacation to Dubai. While in Dubai, the claimant contracted a serious upper respiratory infection, thought to be viral in nature. As a consequence, he began suffering from severe fatigue and insomnia, as well as dizziness, shortness of breath, pain, weakness and inability to focus. His symptoms did not resolve when he returned home. In fact, they got worse.
Over the course of three years and while still working, the claimant underwent extensive and invasive medical testing in an attempt to figure out what was wrong with him and to return to his former high level of activity. He was diagnosed with mononucleosis, fibromyalgia, and eventually Postural Orthostatic Tachycardia Syndrome (POTS). In short, he was given multiple diagnoses by specialists and sub-specialists from across the country, but none of his doctors could determine exactly what was wrong with him. One thing was clear, however, he was suffering from a form of severe and chronic, but intermittent, fatigue. His symptoms came and went, but his ability to work was destroyed.Read More
Before becoming ill, he had lived an extremely active lifestyle. He was in the prime of his life, had a very successful career as an executive-level analyst for Delta, he exercised several times a week, he traveled extensively, he participated heavily in his political organization and with his church, and he led an active social life. Suddenly these things were no longer possible. His periodic fatigue left him completely drained and out of commission for hours or days at a time.
After struggling for months to continue working, including on reduced duty and from home, he had to concede that he could no longer perform the material duties of his occupation. Even simply sitting and working at a computer was impossible to do on a sustained basis because of his periodic episodes of extreme fatigue and dizziness. Finally, he filed a claim for short-term disability (STD) benefits.
Insurance companies always seem to be skeptical of chronic fatigue diagnoses. In this case, Sedgwick temporarily approved the Sales Analyst’s STD benefits until he had completed another visit with his treating cardiologist, whom Sedgwick asked to fill out an “Attending Physician’s Statement (APS)” form in support of his disability. Sedgwick then cherry-picked statements from the APS, took them out of context, and used them as purported evidence to terminate the Sales Analyst’s benefits. According to Sedgwick, the statements in the APS along with the medical record suggested that his condition had improved and that his symptoms were not severe enough to support his disability. This was despite the Sales Analyst having been objectively tested three times to confirm his diagnosis with POTS.
How We Won
At this point, the Sales Analyst retained EWR to assist him with his administrative appeal. EWR’s first task was to objectively document the disabling effects of his condition. To that end, the Sales Analyst was sent for a Functional Capacity Evaluation (FCE), widely recognized as the “gold standard” test for establishing functional limitations. The results of the FCE demonstrated that, despite giving his full effort, the Sales Analyst was incapable of working even a sedentary-level job (the lowest level of physical activity required for any occupation). He was also sent for a Cardiopulmonary Exercise Test (CPET) – the “gold standard” test for the assessment of patients with chronic fatigue and similar conditions. The results of the CPET demonstrated significantly reduced functioning and delayed recovery after exercise. The expert that performed the test determined that the Sales Analyst’s safe limit for sustained activity was an oxygen consumption level that was below what is required for even normal office tasks.
Next EWR had to refute Sedgwick’s assertions that the Sales Analyst’s condition had improved and refute those statements that Sedgwick had cherry-picked and mischaracterized from the cardiologist’s APS. Who better to do so than the cardiologist himself? So EWR reached out to the treating cardiologist and obtained a signed statement from him refuting Sedgwick’s position and explaining the real meaning of the mischaracterized statements. EWR also got supportive statements from the Sales Analyst’s other treating physicians.
Combining all of these forms of evidence – the medical records establishing the Sales Analyst’s thrice-confirmed diagnosis with POTS, the FCE and CPET demonstrating the disabling effects of that condition, the statements from his treating physicians refuting the insurance company’s arguments, and the legal authority supporting our position – EWR crafted an administrative appeal package. Less than a month later, Sedgwick had reinstated the Sales Analyst’s benefits, including retroactively paying benefits for the period of time between the denial and reinstatement.
EWR is now assisting the Sales Analyst with his claim for long-term disability (LTD).
Client v. Prudential Life Ins. Co.
Accidental Death & Dismemberment, ERISAMan with 22 year work history as commercial airplane mechanic injured in explosion at work for Delta. His doctors felt he had a traumatic brain injury causing total, permanent disability. Prudential and Delta's workers compensation carrier relied on non-treating doctors who accused the client of exaggerating and malingering. We arranged a battery of very sophisticated testing which objectively confirmed a brain injury resulting in serious and permanent cognitive deficits. We also uncovered emerging medical literature on the unique nature of brain injury from explosive blasts, working alongside renowned experts at the famed Shepherd Center in Atlanta. Compiling all this and other information, recovered more than $950,000 in AD&D benefits for client in less than 6 months.
Life Insurance Trusts v. Indianapolis Life Insurance Company
Life Insurance, Bad FaithThis case involved the pre-suit settlement of several life insurance claims for $6,500,000.00, over 93% of the value of the policies. The Insurer wrote $7,000,000.00 in coverage on an 80 year old man with a history of bladder cancer, longstanding high blood pressure and a first degree atrioventricular block. The insured died less than two years after becoming insured, and the insurer denied the family’s claims, asserting that the deceased had not disclosed important information about his cardiac history on his policy applications. Counsel developed expert proof demonstrating that the insured had in fact disclosed everything of which he was aware, that the insurance company knew everything it needed to know to make its underwriting decision, and that its asserted defense was illegal. After considering counsel’s demand for reconsideration, the insurer settled the claims out of court for $6,500,000.00.
Anthony v. Aetna Life Insurance Company
ERISA Long Term Disability | U.S. District Court for the Northern District of GeorgiaThis disability case involved a rare middle ear condition known as “endolymphatic hydrops,” a precursor to Meniere’s disease. This condition causes balance problems, nausea and sensitivity to pressure changes. The firm assisted in developing persuasive medical evidence, including additional testing for the plaintiff, which explained his diagnosis, exactly how it arose, and how it was disabling. Although the insurer’s medical consultants asserted Mr. Anthony was not disabled, counsel proved serious flaws in their methodology and reasoning. At the conclusion of discovery the case went to mediation and settled on confidential terms.
Cheal v. Life Insurance Company of North America
ERISA Long Term Disability | U.S. District Court for the Northern District of GeorgiaThis was a fairly straightforward claim for disability benefits, but before the case settled it yielded a reported decision generally helpful to ERISA claimants in this jurisdiction. Over the insurer’s objection, Judge Thrash held that the insurer could be held liable for statutory penalties for failing to produce documents despite not bet being the named “plan administrator.” The order also confirmed that our ERISA clients are was entitled to prejudgment interest on wrongfully denied benefits.
Doe v. Metropolitan Life Insurance Co.
Private Long Term Disability and Insurance Bad Faith | U.S. District Court for the Northern District of GeorgiaOur client was a former family practice doctor disabled by chemical dependency, who also became blind in one eye after his disability started. Client’s submissions to the insurer did not address his blindness. We filed suit, and asked the insurer to re-evaluate its position in light of the client’s vision problems. The case eventually settled confidentially.
Disabled Attorney v. Standard Insurance Co.
ERISA Long Term DisabilityOur client graduated first in his class from a highly respected private law school. After practicing successfully for more than twenty years he suffered a "mild" traumatic brain injury when his car was rear-ended by a speeding car. He became unable to handle the cognitive and emotional demands of his sophisticated law practice. Standard denied the claim asserting his disability was caused by a preexisting, and previously well controlled bipolar disorder. We developed a massive body of evidence concerning the cause of disability, then filed suit in federal court. After obtaining two important favorable rulings from the judge, obtained a favorable settlement of past and future benefits.
Tippitt V. Reliance Standard Life Ins. Co.
ERISA Long Term DisabilityThis case resulted in a favorable reported decision from the Eleventh Circuit Court of Appeals. The Court rejected a reading of disability policies which would unfairly deny a broad class of claims, and adopted a more practical, realistic analysis of competitive employment for analyzing disability claims.