Prudential Flip Flops on LTD Benefits for Over Two Years

Thinking about my last post, I thought it appropriate to note that sometimes an insurer’s reinstatement of LTD benfits is short-lived.  In a matter in which we are presently engaged, Prudential has denied benefits, reinstated, denied again, and reinstated again since May 2008.   So even when an insurer relents in the face of a meritorious appeal, it rarely gives up.

The facts of my client’s claim with Prudential are not uncommon.  She stopped working in March 2006 and the medical records and her treating physicians’ opinions confirmed her inability to perform the duties of her regular occupation for a bank.  Prudential approved her claim and paid benefits from May 2006 through May 2008.  On review under the any occupation definition of disability, Prudential decided based on a file review by its nurse consultant that our client could be gainfully employed in other occupations.  It refused to pay benefits beyond May 31, 2008. 

The client hired Shook & Johnson and we prosecuted a first level appeal.  We won.  On March 30, 2009, Prudential determined to reinstate LTD benefits.

But Prudential warned that it would continue to obtain and evaluate medical records to assure that our client continued to meet all the contractual requirements for benefits.  On August 25, 2009, Prudential thought it found another way and it terminated benefits again.

As required under the Plan, and as a pre-condition to filing a lawsuit against Prudential, we submitted a first level appeal.  Of course, there is pre-appeal submission work to be done to address and overcome the denial rationale of an insurer.  And so there was in our matter with Prudential.  We submitted the appeal and all appropriate additional medical records in January 2010.   

Prudential denied the first level appeal in April 2010.  In reasoning that was mind-boggling, Prudential decided our client had no significant impairment, restriction, or limitation that would prevent her from doing “whatever she wanted to do.”  

We pursued a voluntary second level appeal to expose the flaws of an IME relied upon by Prudential (and doing so would improve our record for judicial review if we latered sued).   We submitted our second level appeal, along with appropriate additional records, in September 2010.   Again, Prudential yielded.  In November 2010, Prudential determined our client was eligible for benefits and reinstated the same back to September 2009. 

I wish I could say that our 62 year-old client will be free from further hassle by Prudential.  With all her medical problems, she’s entitled to a little peace.  But I can’t say what I don’t believe.  More often than not, winning on appeal with an insurer in an LTD claim means you’ve won a skirmish but the war continues.

If your battling an insurer over an LTD claim, call us for a free, no obligation consultation at (877) 293-1122.

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AETNA Reverses Termination Decision on Appeal

For claimants who have read the doom and gloom all over the Internet about how difficult it is to win against insurers — some good news. We recently appealed AETNA’s decision to terminate our client’s LTD benefits and they reversed themselves.

Why did our client prevail?

Candidly, he prevailed because he engaged a competent ERISA lawyer to prosecute his appeal. Too many claimants call our firm to discuss the denial/termination of their LTD benefits and they do so AFTER the final appeal decision has been made.  This blog won’t address in detail why that is such a bad decision, but suffice to say, your appeal is the ONLY opportunity you’ll have to make your best case.  An experienced ERISA lawyer knows he has one shot (generally) to overcome the insurer’s decision.  At the risk of appearing self-serving, claimants should call an experienced ERISA lawyer to prosecute an appeal of an adverse claim decision.

Our client did and AETNA had little choice but to reverse itself based on the evidence.  

The client had long suffered from lumbar disc disease and was also diagnosed with cervical disc degeneration.  He had undergone five back surgeries and tried a spinal cord stimulator implant to address or resolve his chronic pain. AETNA approved his claim for LTD benefits under an “own occupation” definition of disability and suggested he apply for Social Security disability benefits. 

Later, AETNA began to reevaluate our client’s claim under the “any occupation” definition of the policy.  It arranged for our client to be subjected to a functional capacity evaluation.  As reflected in the record, however, the FCE was a ”short FCE” conducted by a physical therapist rather than a qualified physician (which in this case was a violation of the applicable Plan).  The short FCE tested for matters which were meaningless to the question of our client’s ability to engage in sustained work activities every workday.  The value of the short FCE was significantly diminished because it did not provide prolonged or subsequent day observation.  At best, it was an extrapolation based on a single episode, limited time frame encounter with our client. 

AETNA received the FCE report and said it fails to support functional impairment.  It used the FCE to conduct an employability assessment. As they say, ”garbage in, garbage out.”  Suddenly, according to AETNA, our client could perform work in several sedentary to light occupations and the medical documents did not support totally disability under the any occupation definition. 

We prosecuted the appeal and in so doing obtained the entire claim file.  We noted and called out the procedural irregularities in the claim handling process.  We highlighted the self-serving behavior of AETNA’s claims personnel in deciding to terminate benefits.  We specifically noted the objective evidence in the form of physical examinations, MRI’s, and x-rays which supported the opinions of our client’s treating physicians as to his functional limitations.

We gathered and submitted medical records confirming our client’s spine abnormalities, pain, and related treatment.  We presented the results of a consultative examination confirming significant range of motion restrictions and pain in our client’s lumbar and cervical spine.  Our appeal letter and submissions truly could only lead to one reasonable conclusion — our client had been continuously unable to work in any occupation since his disability onset date.

If you’ve been denied disability benefits or had your previously-approved benefits terminated, don’t give up.  We might be able to help.

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The First Blog

Shook & Johnson has just put up this ERISA website and this is my maiden blog. Consequently, I’ll keep it short.

I practice ERISA law on behalf of individuals, primarily in the context of company-provided disability benefits. ERISA law decidedly favors plan administrators and insurance companies, and unless a claimant knows that at the outset of an ERISA-governed claim, he or she is in for a rude awakening. Likewise, lawyers who merely dabble in ERISA-governed claims frequently fall victim to the perils and pitfalls of the law. My intent for this blog is to present information which may be useful to ERISA claimants and my fellow lawyers.

Stay tuned as Shook & Johnson enters the brave new world of the blogosphere.

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Welcome to the blog…

Welcome to the oklahomaerisalawyer.com blog.

Brought to you by Shook & Johnson, PLLC.

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