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Failure to Annihilate May Mean You Lose

Posted by David P. Martin | Aug 18, 2021 | 0 Comments

The recent case Leghorn v. Prudential Ins. Co. of Am., Civil Action No. 5:20-CV-217 (MTT) (M.D. Ga. June 23, 2021), provides another illustration of the importance of making the claim record as strong as possible during the claim process (and before proceeding to litigation) when handling an ERISA case.

Ms. Leghorn was in an auto accident and suffered four small fractures in her lower back and pelvis. After failing to make a recovery without significant pain and restrictions, she filed a claim for long-term disability benefits. Prudential paid the claim for a while, but at the one-year mark terminated benefits because the definition in the policy changed from being disabled from one's own occupation to being disabled to any gainful occupation. (A gainful occupation is usually defined in the policy and varies from policy to policy. It is typically defined as a wage that will pay a lower percentage of the wages previously earned. For example, if Leghorn was earning $20 per hour, her gainful wage might be $12 per hour- which is 60%.) Prudential obtained updated medical records. However, it was missing a few, so it terminated the benefit.

Upon further review, what was actually missing was some information on an attending physician statement form – some blanks were not filled. Prudential contended that it, “was incomplete, as [her doctor] did not give an estimated return to work date, did not outline any specific restrictions or limitations, and did not outline any work accommodations as requested.” Second, there were medical records that were actually missing. Ms. Leghorn contended that she sent the records. She had a handwritten notation on a letter that she alleged was the cover page with which she sent the records via facsimile. And there was a facsimile stamp on it. The court noted that she had proof of a letter arguably sent via facsimile but no proof the records were actually sent with the letter. The court found this to be inadequate proof that the records were sent.

The court said, “Leghorn appealed through counsel on November 14, 2019, arguing she was disabled because of ongoing pelvic pain, herniated discs, and side effects of medication,” and that the Social Security Administration had deemed her disabled. “Prudential again denied benefits, noting (i) that the SSA had different rules and guidelines from Prudential's disability plan and (ii) that “[w]hile the occupation of a Food Checker is performed seated, it is performed in environments such as cafeterias, dining establishments, and food courts where Ms. Leghorn would be able to readily change her position from sitting to standing as needed throughout the workday.”

Ms. Leghorn claimed that two of her doctors actually found she was limited to occasional sitting, and therefore she did not meet the requirements of the job Prudential said she could perform – that of Food Checker. Under the Dictionary of Occupational Titles, she could only sit for up to 33% of the workday and the occupation required the ability to sit most of the day. Prudential responded that one of her doctors actually clarified his opinion, noting that in order for her condition not to become any worse she should sit frequently. A vocational consultant for Prudential contended that the occupation was performed in a variety of environments which may permit positional changes from sitting to standing so that she could easily work within a frequent sitting (2/3 of the workday) restriction. The lack of any challenge to the opinion of one of her doctors, and the lack of any challenge to Prudential's vocational consultant, gave Prudential all the ammo needed to deny the claim.

The standard of review in a case like this is arbitrary and capricious. That is a very difficult standard to overcome. It's a much higher standard than the preponderance of the evidence, which applies in most other cases. It was critical to have in the claim record the facts and evidence which demonstrated that every reason Prudential used to deny the claim was wrong and unsupported. Ms. Leghorn would have to spend money on expert testimony in order to have a shot at winning her case.

Clients may want to soft-peddle handling their ERISA case, not spending too much on case expenses. But that is the wrong approach. It is critical to pull out all the stops and treat the case as if the insurer was a trial court – utilizing expert testimony such as vocational consultants, treating physicians, independent physicians, physical therapists, and others. It is also important to have eyewitness statements supporting the credibility of the claimant, such as those who observed the pain, and the need for restrictions and limitations. If any physician has given an inconsistent or unclear opinion, it must be clarified.

While complete annihilation maybe a little more than is necessary, this case underscores the importance of doing whatever is necessary not the minimum. Experience in ERISA cases matters. Diligence and determination matter too. When your disability claim has been denied, it is time to make sure you have the right disability attorney for the case.

About the Author

David P. Martin

Senior & Managing Attorney


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