Success Stories: ERISA Appeals

Success Stories: ERISA Appeals

We Overturn AETNA’S ERISA Denial for Client with Fibromyalgia and Spinal Condition

Our client is a 52 year-old woman who worked as an Assistant Branch Manager for a bank of a major financial institution. She stopped working in 2011 after suffering injuries in a car accident that exacerbated an already bad spinal condition and fibromyalgia.

Our client spent 30 years building her career, and would have spent another 20 years working if she had not become disabled. She trusted the promises of her HR department that purchasing LTD insurance would ensure she was protected if she was unable to work. However, Aetna representatives made it clear from the very beginning of the claim that the company wanted to accept liability for as short of a time period as possible. There was no interest in being fair and evaluating whether or not our client could work in any occupation that she was reasonably qualified for based on her training, education, and experience.

An in-house nurse reviewed her claim to determine if she continued to be disabled. This is a commonly seen protocol, where nurses, and not doctors, render medical opinions on impairment for insurance companies. The usual procedure includes the nurse rejecting the opinions of a claimant’s own treating physicians based on a review of the medical file alone.

This review was selective at best and the nurse kept insisting that the medical records did “not include comprehensive physical examination findings” indicative of total disability. This nurse omitted reviewing all of our client’s physical therapy records, which (along with the medical records from all of her treating providers) provided a plethora of comprehensive physical examination findings supportive of disability. Rather than have our client examined in person, Aetna had an in-house medical director review her medical records only.

In its denial letter, Aetna indicated that “a peer review was completed by an independent peer review doctor who is a Board Certified Physician in Orthopedic Surgery, Occupational Medicine, and Family Practice.” Aetna also claimed that a Board Certified Physician in Neurology had completed a peer review as well. Neurology peer review was never conducted, and the peer reviewer was not board certified in orthopedic surgery. Aetna’s peer reviewer was an occupational medicine doctor.

We discovered that Aetna’s peer reviewer had been chastised by the Court for his lack of knowledge about fibromyalgia and yet continued to be hired to evaluate fibromyalgia cases. In Burkhead v. Life Ins. Co. of N. America, 2012 U.S. Dist. LEXIS 52040 (Dist. of CO, 2012), the court noted that “the plaintiff rightly criticizes LINA’s reliance on Dr. Snyder’s opinion. His emphasis on his reported conversation with Dr. Richman is not a proper basis for developing his opinion. He failed to recognize that Dr. Richman had not seen this patient since May, 2008, and there is nothing to show that Dr. Snyder understands fibromyalgia.” (Emphasis added)

A Transferable Skills Analysis (TSA) and Labor Market Survey (LMS) was completed in August 2013 through Coventry Health Care. There was even an invoice for the analysis in the claim file to show that Aetna paid Coventry Health Care $678.30 for the TSA and LMS. What Aetna failed to note was that it had acquired Coventry Health Care in May 2013. Aetna wrote itself a check for $678.30 to get the desired results.

When the LMS was conducted, the vocational specialist used a 100-mile radius from our client’s home on Long Island when looking for jobs he felt she would be capable of performing. He used the “New York City-Long Island-White Plains-Wayne, NJ Metropolitan Statistical Area,” which was completely unrealistic. Aetna’s expectation that our client could spend two hours driving in a car, (which requires her to sit, without being able to get up and change positions – something her treating providers have advised her to refrain from), and then work a full 8-hour day, followed by the evening commute home, was simply absurd.

The TSA resulted in four occupations that our client was allegedly capable of performing. Two of these occupations had an SVP of 7, indicating the length of time required for training and to become proficient is more than two years and up to four years. These two jobs were not even a realistic match. Of the two remaining occupations that the vocational specialist came up with, one did not meet the wage requirement. The other job met the wage requirement, but there were only 730 jobs in the entire Metropolitan Statistical Area. Upon further investigation, we found that any available jobs within the Metropolitan Statistical Area for this occupation required far more education than our client had.

We appealed with an aggressive response, citing the inadequate and incomplete paper medical reviews and the outlandish career evaluation and job recommendation. Aetna reversed its claim decision and is continuing to pay on the claim. Our client is thrilled, and can now focus on recovering from her accident and managing her fibromyalgia.