Banker | Own Occupation, CEO | ERISA
Claimant, an investment banker, became disabled with clinical depression and attention deficit disorder. He continued working for over a year, but his condition deteriorated and he began experiencing anxiety, exhaustion, dysphasia and impaired concentration. His treating doctor recommended in-patient treatment and prescribed a host of medications including Lexapro, Trazodone, Levothyroxine and Phentermine, He was fired for non-performance, sued his employer for wrongful termination and filed a disability claim with his long term disability carrier.
His policy defined Totally Disabled for the first two years on claim as the inability to perform the duties of his own occupation. After two years the definition changed to the inability to perform the duties of ANY occupation for which he was qualified by reason of the insured’s education, training or experience.
The insurer initially denied his claim saying that there was insufficient evidence of clinical depression and that there was no proof that the claimant could no longer perform his job duties. Following a detailed demand letter setting forth the basis for the disability claim the insurer reversed its decision, paid back benefits and made a $60,000 offer to buyout the policy. The low buyout was in part justified by the insurer on the basis that the insured could perform other occupations for which he was qualified, besides investment banking.
The $60,000 offer was countered by a buy out demand of $149,381, which was the present value of the future benefits reduced to present value. This demand was based on the contention that the claimant would not be able to perform any occupation in the future.
Court Reporter
Our client could no longer continue her work as a court reporter due to cubital tunnel syndrome and related wrist injuries. Her insurance company, pointing out that Total Disability was defined in its policy as the inability to perform “the” important duties of her occupation, not “any one” of the important duties. The insurer cut her off saying that she could still perform most of her professional duties. These included “scoping,” (proofreading), the certification of transcripts for appellate courts and the use of specialized equipment that she was trained to use.
The insurer also argued that its definition of disability in the policy required that to be totally disabled, the insured could not be “gainfully employed” in any occupation. Since she was earning income by summarizing depositions (a task she could perform because in doing so she could work at her own pace and take breaks whenever she needed to) that she did not meet the ‘no gainful employment’ requirement.
The trial court, and a unanimous court of appeals, ruled that (1) because the Claimant could no longer work as a court reporter, she was disabled under the law whether or not she could still perform some of the duties of her profession; and (2) that the ‘no gainful employment’ provision in her policy was not enforceable and was in violation of the very concept of total disability insurance. This case reaffirmed the concept that an insured does not have to be unable to do anything in order to qualify for benefits under an own-occupation disability policy. He/she only needs to be unable to perform the substantial and material duties of their occupation, in the usual and customary manner and with reasonable continuity.
A seven-figure jury verdict was upheld by the trial court and the court of appeals.
CPA | Financial Planner
Claimant, A CPA and financial planner, suffered from lumbar degenerative disc disease, [L4-5], medial epicondylitis, sleep apnea and clinical depression. He was treated with lumbar facet injections Zimbalta, Vyvanse, Lamicaol, Morphene, (for one month), Codeine and Lamactol. As a result of his conditions and the medications he was taking, Claimant was restricted in his ability to sit or stand for long periods, play golf (which he did for marketing purposes), drive to seminars (which he conducted regularly, again for marketing purposes), concentrate on his work involving tax preparation and planning, stay current with IRS and state tax board regulations and communicate effectively. He became frustrated, forgetful and his business deteriorated substantially.
His insurer argued that the recession had hurt his business, that he wanted to retire, that he was still playing golf, and that his golf game was actually improving. The insurer also argued that Claimant would have little juror sympathy because of other issues which it believed would be admissible at trial.
PV subject to dispute.
Settled $875,000
Dentist
Disabled Dentist Case Settlement Exceeds $1.5 Million
Our client was unable to continue practicing dentistry on a full-time basis due to the mal-union of a severed clavicle suffered in a bicycle accident. The injury could not be repaired by surgery or other means and caused pain whenever our client was required to maintain certain positions in performing dental procedures on patients. The insurer argued that (1) the insured had employees who could perform procedures that he said he could no longer perform; and (2) that it had surveillance videos showing him exercising, weight lifting and carrying bags of groceries to his car. If he could do these things, said the insurer, he could perform dentistry.
We responded with medical and functional capacity opinions and information in testimony presented by our client’s former colleagues and employees showing that our client could not maintain the positions required in his dental practice without experiencing pain in the process. He could not even take pain killing drugs without the side effects impairing his performance.
The case settled during trial in excess of $1.5Million.
Doctor
E.R. Doctor Receives Substantial Settlement for Disabling Psychiatric Conditions
An emergency room doctor suffered from a variety of psychiatric conditions which caused him to exhibit behaviors which resulted in his services being terminated by his medical group.
These behaviors included hollering and screaming at nurses and colleagues, hiding during a Code Blue alert to avoid having to treat the patient and pouring Wintergreen on a patient because he was offended by the patient’s odor;
The insurer argued that the Claimant was simply burned-out and didn’t want to practice Emergency Room medicine any longer.
The case resulted in a seven figure settlement following the depositions of the Plaintiff, his former employer and of several key expert witnesses.
Insurance Salesman
Insurance Salesman Denied Disability Benefits
Recovers Verdict from Unanimous JuryOur client, an insurance agent, became disabled due to phobias, depression, and other psychiatric conditions. His disability claim was denied and the case went to trial.
The insurer claimed its insured could still work as evidenced by his attempts to obtain a job as a grammar school teacher. The Company’s argument was that if the Claimant could withstand the pressures of classrooms filled with grammar school students, he could sell insurance.
The trial established that although the Claimant had attempted to work as a teacher, he was not able to continue with it.
The treating psychiatrist testified that he would never be able to hold down any position for which he was qualified “by reason of his education, training and experience” for more than a short period of time.
Our client recovered a seven figure verdict from a unanimous jury.
Joan Hangarter
Joan Hangarter: The Precedent Setting $7 Million plus Own-Occupation Disability Insurance Case
The precedent-setting Hangarter v. Paul Revere, Unum verdict was unanimously upheld by the Ninth Circuit Court of Appeals and stands as the landmark disability bad faith case in the United States. Due to arm and shoulder injuries Joan became unable to continue her work as a chiropractor and was forced to sell her practice. Paul Revere/Unum terminated her benefits claiming that its “independent” medical examination raised questions about the severity of her injuries and found that in any event she should have been able to continue her work by modifying her duties and taking breaks. The insurer also argued that Joan was, in fact, continuing to perform some chiropractic work, post disability, and that therefore she was not “totally” disabled.
* Case study contents have been modified to conform with confidentiality provisions in settlement agreements with insurers and clients.
As a result of the termination of her benefits, Joan, a single mother of young children, lost her home to foreclosure and was forced into bankruptcy.
Federal Judge James Larson and a unanimous jury found that (1) Joan was totally disabled and could not perform her substantial and material duties in the usual and customary manner; (2) that Joan’s failed attempt to return to work did not preclude her from receiving benefits; and (3) that Paul Revere/Unum had acted unreasonably and with “malice, fraud and oppression” in the termination of her benefits, thus justifying the imposition of punitive damages.
Before having contacted our firm, Joan, believing her insurers’ assertion that she had no right to sue for bad faith because her claim was governed by a law known as ERISA, had simply given up and moved to Los Angeles to live with her sister.
Orthopedic Surgeon
Disabled Orthopedic Surgeon Obtains Insurance Settlement of More Than $3 Million
Our client, an orthopedic surgeon, could no longer practice surgery due to numbness in his hands and fingers, among other infirmities caused by diabetes.
His insurance company denied his Total Disability Claim on the grounds he was still practicing medicine even though he was no longer performing surgery
The insurance company argued that he was actually earning more money without the surgery part of his practice because of income he was deriving from diagnostics, physical rehabilitation and other aspects of his continuing practice.
The Federal Court Judge ruled that under the terms of his policy and California law, the amount of money he was making was not relevant to his entitlement to his own-occupation disability benefits and that the issue was simply whether or not he could still perform his duties as an orthopedic surgeon. He clearly could not.
The case was settled for over $3 Million
Periodontist
Claimant, a periodontist, fell in his home running to answer the phone.
He suffered compound, comminuted fractures of his left (minor) wrist. Surgery was not successful in restoring full use of the hand and arm. Following several failed attempts to return, normally, to work, Claimant was forced to modify his surgery practice by eliminating most difficult/complex procedures while continuing the less difficult ones.
For over a year, the insurer paid Claimant on the basis of the Residual Disability provision in its policy. The insurer asserted that the insured was able to perform most of his duties; that he was right handed and the injury was to his left wrist; and that he was still performing many, if not all, of his duties. RBA responded that there is no such thing as a one handed surgeon, that the Claimant needed both hands to perform his duties and that under the law if he was not able to perform his duties “in the customary and usual manner and with reasonable continuity” he was entitled to Total Disability benefits. Because the amount of the monthly Residual Benefit was based on a “formula” that considered Claimant’s continuing income, and because the Residual Benefit under the policy ended at age 65 rather than at his life expectancy measured from his current age (83), the insurer stood to gain hundreds of thousands of dollars over the life of the policy by characterizing the claim a Residual rather than a Total Disability claim. The PV (Present Value) of the Residual claim was somewhere in the vicinity of between $500,000 to $1.1 million.
Result: Case settled, within three months for $3 Million, including a buy-out of future policy benefits.
Podiatrist
Podiatrist Unable to Practice Due to Injuries Receives 7-Figure Insurance Settlement
Our client, a podiatrist, was unable to perform his duties due to debilitating back and neck injuries. The disability carrier denied his claim contending that there was insufficient objective evidence of injuries that could prevent him from performing the procedures requires in his practice.
The insurance company argued, among other things, that the Claimant was partially, and not totally, disabled.
This formula set forth in our client’s policy for Residual Disability provision of his Disability Insurance policy provided for only a fraction of the benefits allowed by the disability insurance provision.
The case settled with a 7-figure settlement.
Printer
Disabled Print and Media Broker
Claimant was a print and media broker who suffered a heart attack while hiking. His doctors recommended that he not return to work as a print broker due to the fact that it was a stressful occupation and could exacerbate his condition and subject him to a continuing risk of future heart attacks. The insurer, following an IME, stated that there were no restrictions and limitations on his job duties.
The insurer claimed that the insured’s heart attack was caused by the strenuous uphill climb in which he was engaging at the time and was not caused by anything related to his job duties.
Claimant countered that he had developed coronary arteriography ventriculography, had to wear a pacemaker and defibrillator and had hyper-coagulation syndrome which caused his blood to clot more easily in stressful situations.
Present value of future benefits was approximately $440,000
Psychiatrist | AIDS
$4 Million settlement for HIV Positive Psychiatrist Denied Benefits though Disabled by HIV and Coronary Artery Disease.
Our client, a board certified psychiatrist, was disabled with Coronary Artery Disease, clinical depression and AIDs.
His disability company terminated his benefits based on a “paper review” of his medical records performed by an in-house nurse employed by the insurance company. The nurse neither examined nor spoke with the insured.
When our firm filed suit, the insurer immediately put its insured on claim and said it couldn’t understand why we were refusing to drop the lawsuit. Our response was that its denial had forced our client to retain us, to sue them, to incur costs and legal fees in order to get the benefits restored and to endure emotional distress and consequential losses as a result of the denial. Furthermore, the insured wanted nothing further to do with the carrier.
The case settled for approximately $4 Million.
