Success Stories: ERISA Appeals

Director of Finance, New York

Our client is 62 year-old man who had been the Director of Finance for one of NYC's well-known not-for-profit workforce development organizations. Our client was initially diagnosed with inferior left inguinal lymphoma and radiation therapy was recommended by his physicians. He received intensive radiation treatments for over a month, and while his cancer was in remission, managing the side effects from radiation treatment was difficult.

Subsequently, he was diagnosed with a neurocognitive disorder and severe cognitive dysfunction, reducing his cognitive functionality which made it virtually impossible for him to complete his occupational duties as a Director of Finance.

In addition, he suffered from numerous co-morbid conditions including chronic fatigue syndrome (CFS), degenerative disc disease, spinal stenosis, foraminal stenosis, cervicalgia, paresthesias, hypertension, headaches, Vitamin B12 deficiency, Vitamin D deficiency and depression.

Although there was no corresponding change in his medical records or in the opinions provided by his treating physicians, Guardian started by asserting that his restrictions and limitations were no longer supported and that he could return to his previous occupation. Guardian commenced a review of his claim which amounted to actively seeking information which could be distorted and manipulated in order to support its predetermined position, culminating in the wrongful termination of his claim.

He had been on claim two years when Guardian terminated his long-term disability claim on the basis of its erroneous conclusion that the medical information no longer supported his inability to work in his regular occupation.

Guardian relied on the opinions of its in-house medical staff, who distorted and misconstrued medical findings, so as to claim that our client could somehow return to his previous occupation. The exact same medical evidence had previously led Guardian to determine that he was totally disabled.

He retained Frankel & Newfield to fight for him with an ERISA appeal that would reinstate his disability claim. We provided Guardian with a detailed unbiased neuropsychological report outlining our client's ongoing cognitive impairments. Additionally, we presented Guardian with a vocational analysis of our client's occupation and medical support identifying specific reasons why our client could no longer work.

Collaborating with our client and his treating physicians, we were able to develop powerful support for his claim and rebut the positions advanced by Guardian. By attacking Guardian's medical reports conducted by its in-house reviewers and a flawed vocational review, we established strong evidence to compel an overturn of the terminated claim.

Soon after the appeal was submitted, Guardian overturned its decision, and found our client to be totally disabled and unable to work in his own or any occupation. Our client's benefits have now been reinstated.

Anesthesiologist, New York State

Our client is a 62-year old anesthesiologist who had worked for many years at one of the top 25 ranked best hospitals in New York State. She was diagnosed with disseminated shingles resulting in severe postherpetic neuralgia, chronic pain, complex regional pain syndrome, and numerous orthopedic conditions.

As a result of her disabling conditions, her physician advised her to work only on a part-time basis in a less demanding work environment involving less strenuous activities, due to the exacerbation of her conditions. Lincoln approved our client's claim and began paying her disability benefits.

Despite the opinion of our client's treating physician and after she was on claim for nine months, Lincoln terminated our client's claim.

She was told that Lincoln's decision to terminate her residual disability claim was based on a report from a well-known pro-insurer consulting physician that our client had the physical ability to return to her own occupation, on a full time sustained basis. This rationale was based on a completely inaccurate understanding of the material and substantial duties of her own occupation as an anesthesiologist.

The source was no surprise: the report was provided by physician who is paid by Lincoln to review claims files. This physician never saw, treated or examined our client, but rendered an opinion completely contrary to our client's treating physician's opinion.

Additionally, Lincoln failed to complete a fair and appropriate vocational analysis, instead focusing solely on the physical aspects of our client's occupation and the fact that she was able to engage in this work on a part-time basis.

Lincoln never undertook any type of occupational analysis that truly appreciated the mental and cognitive demands of our client's occupation and the fact that lives were at stake every time she encountered a patient.

Nor did Lincoln appreciate the numerous side effects she suffered from due to the medications she was required to take to combat her chronic pain. We worked closely on the appeal with our client's physician, helping him to articulate his position that our client simply was not able to sustain the mental or the physical demands of her occupation on a full-time sustained basis and challenged the opinions of Lincoln's peer reviewing physician.

We aggressively attacked Lincoln's biased paper review and flawed vocational analysis, which was the crux of its termination of benefits. Our client's claim is now reinstated with her significant monthly benefit paid in arrears.

Computer Engineer, Florida

Our client, a 39 year old computer engineer from Florida, had her claim terminated by Met Life after being paid for more than eight years. She is unable to work due to numerous co-morbid conditions including asthma, allergic rhinitis, recurrent sinusitis, recurrent bronchitis, fatigue, depression, anxiety, insomnia, obsessive compulsive disorder, and cognitive dysfunction.

In our appeal, we demonstrated that Met Life terminated our client's benefits without showing that there had been any improvement in her condition.

Met Life also failed to conduct any type of vocational analysis or have a medical doctor of the appropriate specialty perform an examination or even a thorough review of our client's medical records.

We demonstrated in the appeal why our client continues to be totally disabled and unable to perform any occupation for which she would be qualified for based upon her training, education and experience.

Our appeal was successful and today our client continues to be paid the monthly benefits that she is entitled to.

Paralegal, New York with Meniere's Disease

Frankel & Newfield successfully appealed a Unum long term disability insurance claim termination for a Paralegal, aged 44, from New York and suffering from Meniere's Disease and Tinnitus.

Unum had terminated the claim upon the basis of a paper review conducted by a well-known pro-insurer consulting physician. This doctor has not been a practicing clinical physician treating patients for more than 15 years and has a significant amount of experience in the area of disability consulting.

In other words, this is a physician for hire, working solely for the disability insurance companies, so it is hard for us to believe that any medical opinion is completely unbiased.

Unum actually disputed our client's diagnoses despite the significant amount of medical support on file and the consistent support of her treating medical providers.

On appeal, our client's treating physicians were able to effectively refute the medical reviews. Coupled with our attack on the medical and vocational evidence utilized by Unum for their claim termination, the development of compelling supportive statements from our client, and her co-workers and supervisors, as well as the exhaustive medical support we were able to develop, including the providing of audio of what tinnitus sufferers deal with on a constant basis, compelled Unum to overturn the claim determination and reinstate benefits to our client.

She continues to be paid her substantial monthly benefit.

Intelligence Specialist

Our client is a 49 year-old-man who worked as an Intelligence Specialist for one of the largest state-of the-art intelligence companies that serves the U.S. government and its allies as well as some of the world's most prestigious corporations.

He was diagnosed with numerous orthopedic conditions including spinal stenosis, spondylosis/spondylolisthesis, anterolisthesis, degenerative disc disease, radiculopathy, as well as chronic pain. He had worked for many years after the initial diagnoses, struggling to complete his occupational duties with his profound overbearing pain.

After many years, he simply could no longer continue working because of his numerous co-morbid conditions. His ongoing spinal restrictions and limitations precluded his ability to effectively and efficiently perform the material and substantial duties of his occupation or any occupation on a full-time sustained basis.

After Aetna agreed that he was disabled and paid disability benefits for three years, his benefits were wrongfully terminated. We were retained to fight for him and to submit an appeal on his behalf that would reinstate his benefits.

We began strategizing, working closely with our client and his physicians, as well as collecting powerful vocational and medical support. We identified specific reasons as to why he could no longer work on a full-time sustained basis, attacking the improper vocational analysis completed by Aetna, as well as the biased peer reviews conducted by Aetna's in-house medical staff. We developed strong support for our client's claim to be continued, and within a few weeks after the appeal was submitted, our client's benefits were reinstated.

Claims Representative, Auto Insurance Company, New York

Our client is 55 year-old man from New York who worked as a Claim Representative for a well-known auto insurance company. He suffers from a long history of Complex Regional Pain Syndrome (CRPS), also known as Reflex Sympathetic Dystrophy Syndrome (RSD), chronic pain syndrome, and multiple orthopedic conditions including degenerative disc disease, lumbosacral neuritis/radiculitis, radiculopathy, neural foraminal stenosis, as well as migraines.

After numerous attempts of trying to treat and control his pain, he could no longer cope, and was advised to stop working by his treating physicians. His chronic pain, ongoing symptoms, restrictions and limitations precluded his ability to effectively and efficiently perform the material and substantial duties of his occupation.

For more than three years he received benefits from his CIGNA long term disability insurance policy. There was no change in his functionality, restrictions or limitations, but suddenly, his benefits were terminated.

CIGNA conducted numerous erroneous paper reviews by its well-known pro-insurer doctors and terminated our client's claim, even after our client completed a Functional Capacity Evaluation (FCE) at the request of CIGNA and was found disabled by CIGNA's own consultant.

He retained Frankel & Newfield to fight for him with an ERISA appeal that would reinstate his disability claim. It was our job to provide CIGNA with a detailed vocational analysis of our client's occupation and medical support identifying specific reasons why our client could no longer work.

Collaborating with our client and his treating physicians, we were able to develop powerful support for the claim and to rebut the positions advanced by CIGNA in their claim determination. By attacking CIGNA's medical reports and its flawed vocational review, we established strong evidence to compel an overturn of the previously terminated claim.

Soon after the appeal was submitted, CIGNA overturned its previous decision, and found our client to be totally disabled and unable to work in his own or any occupation. Our client's benefits have now been reinstated and we were pleased to provide our client with a surprise New Year's present.

Senior Customer Sales Rep, Pharmaceutical Company, Long Island, NY

Our client, a 45 year-old-man who worked as a Senior Customer Sales Representative for one of the world's largest pharmaceutical companies, was diagnosed with Multiple Sclerosis. He worked for many years after the initial diagnosis. At a certain point, the physical and mental toll of this debilitating and progressive disease made it impossible for him to continue working.

He applied for disability benefits and was being paid by CIGNA for several months, when his benefits were suddenly and wrongfully terminated.

He retained our firm to submit an appeal on his behalf that would reinstate his benefits. We began strategizing, working closely with our client and his treating physicians while collecting all of the medical studies and reports as well as the appropriate vocational reports.

We identified specific reasons as to why he could no longer work, attacking the improper vocational analysis completed by CIGNA, as well as the biased peer reviews conducted by CIGNA's in-house consultants. We were able to develop powerful support for our client's claim and soon after the appeal was submitted our client's benefits were reinstated. Our client continues to receive a significant disability payment each month from CIGNA.

Vice President, Financial Advisory Firm Long Island, NY

Despite a lengthy history of numerous debilitating spinal conditions, which required multiple surgeries, our client, a 55 year old woman, tried her best to continue working as a Vice President/Financial Manager for a financial advisory and asset management firm. At a certain point, however, she simply could not continue to work because of the terrible pain she was in and the difficulties it presented.

Her first step in the claims process was to consult with numerous medical professionals for evaluation of her condition. Every single one of them agreed that she was permanently disabled. She filed for disability benefits with Unum and was on claim for a little over a year and a half, until her claim was terminated.

She retained us to file an appeal, and we worked with her and her physicians to provide Unum with ample support of why she could no longer work on a full-time basis. The appeal contained subjective medical support, a vocational review and a plethora of medical literature informing Unum of the severity of our client's conditions.

A few weeks after the appeal was submitted, Unum reversed its decision and our client's benefits were reinstated.

Customer Resource Manager, Technology Company Dallas, Texas

Our client, a male in his mid-fifties, worked as a Customer Resource Manager for a best-in-class technology services and solutions company. He suffers from a long history of scoliosis, spinal arthritis, multilevel degenerative disc disease, muscle spasms and chronic joint pain. After numerous surgeries, which required a great deal of medical hardware, our client could no longer continue working. He filed for disability claims and was accepted.

After receiving benefits from Lincoln Financial for two and a half years, his benefits were suddenly terminated. He retained our firm to fight for him and to submit an appeal that would reinstate his benefits. It was our job to provide Lincoln with a detailed vocational analysis of our client's occupation and medical support identifying specific reasons why our client could no longer work.

Collaborating with our client and his treating physicians, we were able to develop powerful support for the claim and to rebut the positions advanced by Lincoln in their claim determination.

We are pleased to report that not long after the appeal was submitted our client's benefits were reinstated, and he continues to receive a significant benefit payment each month.

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.