Winning Isn't Easy Season 3 Episode 6: The Hartford Disability Insurance Carrier

Welcome to Winning Isn't Easy, the podcast that dives into the complex world of disability insurance claims and legal battles. In Season 3 Episode 6,  Nationwide Long Term Disability Attorney Nancy L. Cavey to discusses the challenges of dealing with The Hartford Disability Insurance Carrier.

Navigating the disability insurance claims process can be overwhelming, especially when dealing with a carrier like The Hartford. With decades of experience representing clients in disability claims against major insurance carriers, Attorney Cavey offers her unique insight into the tactics used by insurance companies to deny or terminate claims, and how to effectively fight back.

In this episode, we'll explore the common issues that arise when dealing with The Hartford, including the importance of medical evidence, the use of surveillance, and how to handle a denied claim. Attorney Cavey will share her strategies for successfully advocating for her clients and navigating the appeals process.

Whether you're a disability insurance policyholder, a healthcare provider, or an attorney representing clients in disability claims, this episode is packed with valuable information to help you navigate the complex world of disability insurance claims and come out on top. Join us for Winning Isn't Easy Season 3 Episode 6: The Hartford Disability Insurance Carrier by Nationwide Long Term Disability Attorney Nancy L. Cavey.

"Winning Isn't Easy" is a podcast dedicated to exploring the complexities of the Employee Retirement Income Security Act (ERISA) long-term disability world. Each episode, we delve into the challenges and triumphs of navigating this intricate landscape and bring to light the key issues affecting disabled individuals seeking benefits under ERISA. Get ready to listen in on a captivating listen as we uncover the truth behind "Winning Isn't Easy."

Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

Dr. Braun's Website and Information: https://www.bayareaorthofl.com/david-t-braun/

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Transcript

Nancy L. Cavey Disability Attorney: 0:15

I am Nancy Cavey, national ERISA and Individual Disability Attorney. Welcome to Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association says I have to say this. So now that I've said it, nothing is gonna prevent me from giving you an easy to understand overview of the disability insurance world, the games that carriers play, and what you need to do to get the disability benefits you deserve. So off we go. Do you have a Hartford short-term or long-term disability insurance policy, or are you the beneficiary of an employer provided Hartford Disability Plan? If so, today's podcast is for you, and I'm gonna be talking about three things today. First, what happens if you file an ERISA claim in federal court? Secondly, how a general workplace standard of occupation in a medical trainer's nurse disability policy doomed her disability insurance claim and what you can learn about the standard of an occupation in your policy. And lastly, I'm gonna talk about Hartford's failure to share the opinions of the long-term disability medical file reviewers with a policy holder before the claim denial didn't bother a New York Federal Court notwithstanding ERISA regulations. So let's take a break for a moment before we get started.

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Nancy L. Cavey Disability Attorney: 1:56

Welcome back to Winning Isn't Easy. I'm gonna first talk about what happens if you file your ERISA claim in federal court and a concept called ERISA pre, uh, preemption. Most, uh, disability insurance policies are governed by the erisa, uh, disability law, and that is a federal law, not a state law. Most disability insurance policies are issued through employers not on the basis of, uh, buying your own individual disability policy. If you have purchased your own individual disability policy and your claim is, uh, denied. The, the difference is really crucial here because, uh, you have a contract with yourself and the insurance company to provide you the benefits. It's a contract, and if the individual, uh, disability claim is denied, you'll be bringing a claim in state law, not in a federal court. And so your rights under a breach of contract claim are broader than those under an ERISA claim. In a breach of contract case, you have the right to discovery, you have the right to jury trials, you have the right to claim not only what's owed you, uh, but bad faith compensatory damages. Now, on the other hand, if your employer offered you a disability policy or plan, your claim is most likely governed by the ERISA Act. There are two exceptions. The first exception is if you work for a municipality or a state type agency. In other words, a governmental agency, that's probably a better way to put it. And the other exception is going to be if you work for an employer such as the Catholic Church, uh, a church plan is not covered under the ERISA statute. So those are two exceptions. Now, what's important about the Employer Retirement Income Act is that your remedies are extremely limited and you can only sue for back benefits. You might be awarded attorney's fees if you win, and if the judge agrees that you're entitled to attorney's fees. The bad news is that an ERISA claim is most likely governed by something called the arbitrary and capricious standard of review. Now, most lawyers haven't heard of this, and it's not something that we're taught in law school, but the importance of the arbitrary and capricia standard of review is that it's unlike any burden of proof, uh, that you're familiar with. For example, in the criminal context, the state has to prove that you're guilty, uh, beyond a reasonable doubt. But in an ERISA case, uh, it's a bit of a reverse. You have to prove that the uh, decision, uh, that the carrier made denying your claim or the plan made denying your claim is what's called arbitrary and capricious, and I'll talk about that in a moment. But you need to understand that there is limited discovery and no right to a jury trial. So it's important that we understand this distinction. So why is that important? Because if you have a lawyer who doesn't understand that an ERISA claim is a federal claim, more often than not, what they'll do incorrectly is to file the claim in state court. And as a result, the uh, carrier's gonna file what's called a motion to remove your case from state court to federal court. And that's a lesson that I think is worth learning. And an example of that is the Felicia Patterson case. Now, Felicia was not represented by an attorney, and she made this mistake on her own, and she sued Hartford Life in, uh, a Dave County State Court. Now, when she filed this lawsuit, the carrier Hartford found a motion to remove the case to federal court. And she appealed saying, no, no, no, this should be in state court. Well, ultimately this case went all the way up to the 11th circuit in Atlanta, and the 11th Circuit said that her case had been properly removed under the preemption doctrine. Preemption means that when a federal statute displaces, the state law case has to be filed in federal court. And so preemption is one of those, um, legal concepts that lay people don't understand. And quite frankly, some lawyers don't understand. But ERISA is, is one of those statutes that preempt state law. And as a result, the claim has to be brought in federal court. Now, this wasn't the only mistake that Ms. Patterson made. The court dismissed her complaint, but allowed her to amend the complaint. But the court said, look, you have to plead exhaustion of remedies. What's exhaustion of remedies? You have to exhaust all your rights to appeal, uh, based on the appeal rights that you have in your disability policy or plan. And if you don't, the i the carrier can say, okay, they didn't exhaust their administrative remedies, judge, you don't have jurisdiction. And what happens then is if there's 180 days in which to appeal, by the time you get through all this rigmarole with the court, I assure you that more than 180 days has passed. And so while she probably tried to file a pleading that explained that, that she had exhausted her remedies, most likely she hadn't. And I suspect that the claim ultimately gets dismissed again. So you can see that there's a couple of mistakes that can be made, uh, by representing yourself or having a lawyer who's not experienced in handling an ERISA and disciplinary case. The first one is failing to complete or exhaust your administrative remedies by filing all the appeals. And the second is filing the lawsuit in the wrong court. You need to understand that the appeals process is crucial to any claim. You've got 180 days in which to file an appeal, and my appeals are anywhere from 25 to 65 pages long because the appeal is the trial of your case, so you don't wanna delay and not the properly, um, and timely filing an appeal. And if your claim gets denied, of course you need to file it in the right court or have a lawyer who knows what the right court is to file your lawsuit in. So let's take a break, and when I come back, I'm gonna talk about how the standard of occupation in your disability insurance policy can do your claim. We're gonna talk about the standard or definition of occupations, and I think the best way to explain this is to tell you the story of, uh, a nurse by the name of Ann K and how her general workplace standard of occupation in her disability policy doomed her disability claim. Now, you've heard me say many times that one of the most important definitions in the disability insurance policy is the definition of occupation. Why is that? Well, to get your disability benefits, you have to prove that you're unable to perform generally, the material and substantial duties of your occupation and how your policy defines the terms occupation and what your occupation was at the time you became disabled can make all the differences to whether or not you get the disability benefits you deserve. Now, Kay worked as an operating remorse nurse for 13 years, and she developed some spinal problems, and as a result, she changed her occupation and she was a clinical specialist and was paid on a per die basis. She underwent low back surgery and she returned to work to her employer Syron. But Syron emerged with another company called the Canula Corporation, and they hired her as a full-time clinical specialist and a senior medical device trainer. Now, unfortunately for her, her surgery was not completely successful and her low back pain return, and that caused limited range of motion of her spine. Her treating doctor took her out of work and said, look, I'm gonna do a set of x-rays. And when they did the x-rays, they noticed that she had Lombard degeneration above her old fusion. And on physical examination, she had mild radiculopathy as well as chronic L five S one radiculopathy. That means she had leg pain radiating down her leg, and she also had severe cervical degenerative changes in narrowing in her spine without nerve impingement. So she filed a short-term disability claim and she was paid those benefits. But as she became eligible for long-term disability benefits, Hartford terminated her benefits, noting that she had to prove based on the terms of her policy, that she couldn't perform the essential duties of her occupation as generally recognized, uh, in the workplace. Now, Hartford, of course, was looking for a reason to deny her claim, and they had a vocational evaluator look at her occupational history and a description of her occupational duties, and they decided that her occupation required her travel customer to customer locations move devices, and that required her to sit and stand for hours, push and pull up to 20 pounds, lift and carry up to 20 pounds. So they did this, uh, vocational analysis and then gave it to their paper review doctor to look at her medical records. And of course, what happened? The paper review doctor said she could perform those duties. Now she appealed saying, wait a second. That's not the correct patient nor these duties that that I actually have, they're, they're not what you described. In fact, I have to lift more than your va, um, analyzed my occupation to be. And she of course, argued that as a result of her diagnosis, she couldn't meet the strength levels of her occupation. So on appeal, Hartford gave the file back to their vocational evaluator, uh, and the VA performed that, sorry, concluded that her occupation was a combination of a training representative and a general duty nurse, and that the occupation's essential duties involved administering, uh, treatment, uh, consistent with nursing techniques and preparing medical, uh, equipment. Now, the other part of her job required her to conduct individual and group training programs for employees of industrial, commercial or governmental clients of this, uh, company, and that the physical demands were in the range of light and medium with occasional lifting, carry pushing or pulling up to 50 pounds. Hartford then had a second physician review, uh, her medical records, and of course, that physician disagreed with her treating physician about her restrictions and limitations. And as a result, Hartford upheld the denial and away we go to federal court. So the court starts out this analysis by looking at the definition of disability, and the policy said that a person was disabled if they were prevented from performing one or more the essential duties of their occupation. And the term your occupation was not subjective and it didn't consider her, um, specific duties. Rather, there was an objective definition of occupation, and that was as recognized in the general workplace. In other words, she had to prove by a preponderance of the evidence that her medical diagnosis prevented her from performing an essential duty of her occupation as recognized in the general workplace, not as how she performed it. Now, the problem was that Kay did not explain why her medical condition prevented him from performing her occupation. And she failed to challenge Hartford's vocational conclusions. And that was really the key that led to the court denying her claim because the judge wanted to see that she had a, had addressed what in fact her occupation was, what her occupational duties were, and that there was, uh, hard medical evidence that she was unable to perform those essential duties. So as a result, the court was left with no choice but to accept Hartford's paper, reviewing doctor's opinions about her restrictions and limitations, and why her diagnosis didn't prevent her from performing at the medium level. As a result, the court upheld the claim denial. Now, lessons to be learned here obviously, is you need to understand what the definition of disabilities in your policy. If the carrier has a vocational evaluation, you need to have your own vocational evaluator take apart the carrier's, uh, analysis and, uh, come up with an opinion as to in fact what your occupation is and what your level of, uh, physical functioning is required in that particular occupation. You should have either an I M E or a functional capacity evaluation to measure your strength and then have your physician endorse those findings. That's, I think, the best way to rebut a misclassification of a person's occupation and a carrier's conclusion that your restrictions and limitations are something, uh, other than what your treating physician has had to say. So in the next session, I'm gonna talk about Hartford's failure to share the opinion of its medical reviewers before the claims denial and what happened in that case. Let's take a break.

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Nancy L. Cavey Disability Attorney: 15:19

Welcome back. ERISA Claims regulations govern the conduct of an ERISA disability carrier or plan, and they require the carrier or the plan to provide beneficiary with any adverse material it has before the disability carrier issues a claims denial. Now, one of the common tools in the carrier's toolbox denial toolbox is to have your medical records and the forms reviewed by their liar. For higher physicians. They're called peer review Doctor. Now, peer review doctors make excellent living, uh, by writing reports for disability carriers in which they reject the opinions of treating physicians. And they do that because they're paid to do so. It gives the carrier a reason to deny the claim. Now, the ERISA regulations were developed so that the disability carrier couldn't sandbag a policy holder or plan beneficiary. They can't hide the ball or come up with even new reasons for a claims. Now, once an appeal has filed, the appeals process is opposed to be full and, uh, fair and if the carrier's hiding the ball, I think that it's, it's a violation of the ERISA regulations because it prevents you from rebutting whatever the carrier's relying on. But unfortunately, not all judges will see it that way. Let me tell you about the case of Archer versus Hartford Life. It's a Eastern District of New York case. Archer was the assistant, uh, manager at TJ Max's department store, and she became disabled as a result of spinal stenosis and carpal tunnel syndrome. Her claim was denied. She submitted an appeal, uh, and that appeal had additional medical records statement from her physician clarifying their responses to the APS forms and further medical documentation taking outta the work. Now, the claims denial was upheld when Hartford had his lawyer for hire physician issue new reports, rebutting the new medical evidence, and Hartford in violation of that ERISA regulation didn't give her that material. She ultimately sued. And you would think that the, the judge would have fairly and accurately applied the ERISA regulations. But in this case, the judge upheld the denial on the basis that Hartford had, under the terms of policy, the right to reject the opinions of the treating physician and rely on his liar for higher doctors. He completely ignored the violation of the ERISA regulations that required the production of the subsequent unfavorable peer review reports. In other words, the judge gave lip service to the regulations and failed to rule on that issue implicitly saying that it didn't matter that Archer didn't have the opportunity to rebut the evidence because Hartford had the right to reject archer's rebuttal. Much, I, I think that this I is an incorrect decision, and that the carrier's violation of the ERISA regulations should have resulted in at least a remand to the, uh, to, uh, uh, to Archer to, to the claimant, to give her the ability to file a subsequent appeal. This ruling is sort of like saying, look, you don't have to stop at a red light because at some point the light's gonna turn green. I, I just don't get the reasoning here. And we want the carriers to read and apply ERISA sa regulations, uh, so that they're held accountable for a providing you with a full and fair review. So what are the lessons that we've learned today? I think that one of the most important lessons is that the terms and definitions in your policy matter, and you should get out your disability policy and look at the definition of disability, your own occupation or any occupation, so you understand what it is you have to prove. Secondly, we know that the disability carrier's conduct is governed by ERISA rules and regulations, and that's not always filed, followed by the disability carrier and unfortunately not, uh, upheld by the courts. And the last lesson we need to understand is that the review process isn't always fair, not withstanding the regulations, and it doesn't always allow for a full and fair review. That means that you may have to go into federal court and hopefully you get a judge who understands the ERISA regulations and applies them fairly. I hope that you've enjoyed this week's episode. If you like this podcast, please like this page, leavere a review or share it with your friends and family. Remember, this podcast comes out weekly, so stay tuned for our next episode, and I look forward to seeing you again in, uh, this next episode o f Winning Isn't E asy. T hanks.