I have been in a friendly golf game where the players agreed to three mulligans or do-overs per game. I've also played games with small children, and if they messed up, I allowed them a do-over. However, when it comes to long-term disability claim decisions, you are dealing with a serious matter—most often, impacting the financial survival of a long-term disability claimant. That is not a time to allow do-overs, or mulligans, and certainly not when only one side holds the privilege.

Prudential Ins. Co. played the do-over game in its claims handling recently (See Paquin v. The Prudential Insurance Company of America, 2018 WL 3586397, D. Colo. July 26, 2018).

Facts of the Case

• Mr. Paquin contracted encephalitis from a mosquito carrying the West Nile virus. Brain damage and cognitive difficulties resulted.
• He first claimed short-term disability and then long-term disability benefits, and Prudential paid them.
• In fact, Prudential regularly reviewed the long-term disability claim and paid the benefit for 11 years.
• After 11 years, Prudential—probably through an overaggressive adjuster—decided it needed to terminate the claim benefit.
• It hired three doctors to provide the needed opinions to deny the claim. These doctors ignored 11 years of claims handling and 16 healthcare professionals in various fields who supported the claimant's disability.

Prudential denied the claim and rejected the appeal as well, forcing Mr. Paquin to file a lawsuit.

However, the court was not impressed with the game Prudential played. It noted:

The evidentiary scoreboard, if you will, reads as follows: 16 healthcare professionals (all doctors of medicine or neuropsychology, aside from one occupational therapist and one speech-language pathologist, including one doctor who was hired by Prudential) support a finding that Mr. Paquin is disabled; three doctors hired by Prudential found that Mr. Paquin is not disabled under the terms of the policy. In addition, per ERISA case law, the Court views the fact that Prudential paid Mr. Paquin LTD benefits for 11 years while conducting regular reviews as favorable to Mr. Paquin's claim. As recently as February 2014 Prudential Claim Manager Mary Stratton noted in Mr. Paquin's file that his cognitive issues were not likely to improve, and that there were no gainful employment options for Mr. Paquin based on the evidence in Prudential's record.

Clearly the court was not impressed with the game of do-overs. Long-term disability insurers are not permitted to disregard years of claim decisions and then claim a do-over to string together some evidence to deny the claim. The challenge here is for a claimant to find an attorney with the experience needed to properly develop the claim during the claim process and familiarity with the law to press the case during litigation.

ERISA is not fair, but we have seen this game played many times. It is nice to see a court make the right call. We can help if one of your clients encounters this game.