© 2014 by Michael A. McKuin

Attorney at Law

Post Office Box 10577

Palm Desert, CA 92255

(California State Bar No. 103328)

 

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The impossible disability dilemma – choosing between insufferable pain or impairment from medication.

October 6, 2016

John S. (CIGNA)

 

John was a competitive swimmer in high school and college, competing in a "Master’s program", and setting 7 county records.   He also enjoyed mountain biking, and playing bridge at a high level.  He was employed by a major telecommunications company, where he worked for many years, first as a Senior Software Engineer, then promoted to Principal Engineer and ultimately promoted to Engineering Manager.  His occupation required a high level of cognitive ability and application of analytical skills.

 

One day when John was at a hotel swimming pool with his wife, a young boy jumped into the pool landing squarely on John’s neck and back.  Since that day he suffered chronic pain, increasing in intensity.  He tried chiropractic and physical therapy treatments, but neither helped.  He first tried a low-level narcotic pain killer, but found that he was unable to work while taking that drug, as it affected his concentration and problem-solving ability and this impacted both the quality and quantity of his work.  So he adjusted the usage of the drug throughout his work day to try to limit its impact on his work performance. 

 

For the next three and a half years, John struggled to continue working, but had increasing difficulty juggling the pain and the effects of the medication.  He would reach a point in the work day, where the pain simply became too intense for him go on.  But then, when he took the pain medication, he was too "zonked" to get any work done at all.  He took time off work and used up all of his sick time for the year -- something he had never done before in his life.  He tried shifting his hours around to try to work around the pain. If he couldn't work a full day on one day, he would try to make the time up on another day.

 

Eventually, John reached a point where he could no longer endure it.  His doctor told him that a medical leave from work was "long overdue" and took him off work for 3 months.  While on leave, his doctor prescribed a higher-level narcotic drugs to control pain.  The effect was dramatic, reducing his pain to a point where he could tolerate it, but there were still some days when his pain was not controlled at all, even with the new drugs.  Unfortunately, the side effect of the pain medications was that he was "even more zonked" than before and the cognitive impairment caused by the drugs increased significantly.   But it was a trade-off he felt willing to make after years of dealing with constant pain.  The cognitive effects were present 24 hours a day, 7 days a week, leaving him completely unable to work.  He was lethargic, drowsy and unable to concentrate.  But if he stopped taking the medications, his pain level became unbearable.  This is the unfortunate dilemma faced by many people, impaired by debilitating pain.

 

Unable to return to work, John submitted a claim to CIGNA for Long Term Disability benefits, well supported by the medical records and reports of his primary treating physician.  CIGNA denied the claim, stating that there had been no formal cognitive testing done. Pointing to an absence of testing or other information in the file as a reason for denying a claim is a common tactic of LTD insurers.  But since no such neuropsychological testing had been requested or conducted by CIGNA, the absence of such tests provided no rational basis for the initial denial of the claim. Under existing case law, if an insurer wants more specific information it must ask for it.  Booton v. Lockheed Medical Benefit Plan 110 F.3d 1461 (9th Cir., 1997), the denial of a claim “without explanation and without obtaining relevant information is an abuse of discretion.”   “(I)f the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it. There is nothing extraordinary about this; it's how civilized people communicate with each other regarding important matters.”  Id at 1463.  “If the plan is unable to make a rational decision on the basis of the materials submitted by the claimant, it must explain what else it needs” Id.  See also, Salomaa v. Honda Long Term Disability Plan 642 F.3d 666, 680 (9th  Cir., 2011). “An administrator does not do its duty under the statute and regulations by saying merely ‘we are not persuaded’ or ‘your evidence is insufficient.’ Nor does it do its duty by elaborating upon its negative answer with meaningless medical mumbo jumbo.”      

 

John submitted an appeal of the denial, along with additional medical reports by a neurologist, numerous other examining specialists and the findings of the Social Security Administration, all of which provided further support for his disability claim.  At that point,CIGNA sent the claim for what is called a “peer review” by its own chosen specialist, as well as an “Independent Medical Examination” (IME) by a neuropsychologist.  The paper-reviewing doctor took issue with the use of narcotic medications to control pain, but neither doctor disputed the impairment resulting from either pain or medication.    CIGNA also arranged for three days of surveillance of John by a private investigator, which found nothing of any significance.   The result of this “investigation” was that CIGNA simply ignored or re-stated every shred of evidence in support of John’s claim and issued yet another absurd denial, unsupported by any evidence. 

 

At that point I was retained in the matter.  Fortunately, the CIGNA plan provided for an optional second voluntary appeal, if the claimant had any additional information to submit for CIGNA’s consideration.   I directed a letter to both the Employer’s “Benefit Plan Committee” (the “plan administrator of the LTD plan) and to CIGNA.  In that letter, I summarized the history of the claim and stated my opinion that a "full and fair" review of John’s claim had not occurred, as required by ERISA and the Federal Regulations.   I specifically stated my reasons for my opinion.  I called attention to the fact that CIGNA’s denial letter selectively focused on certain medical conclusions, while conveniently ignoring others.  I called attention to the fact that there was a complete absence of any vocational evidence defining the material duties of John’s occupation and that the denial of the claim rested entirely upon the misguided notation that since his occupation was described as "sedentary"; and since he was capable of "sedentary" activity, ergo, he didn’t not meet the definition of "total disability".    I also called attention to the fact that the CIGNA denial letter did not contain any instruction regarding further administrative appeals procedures, as required by the federal regulation.   I also called attention to what appeared to be an improper delegation of authority by the employer's Benefits Plan Committee to CIGNA.  I requested a copy of the entire claim file, as well as a copy of any and all Plan documents, describing LTD benefits; as well as a copy of any and all Plan documents, granting to CIGNA any discretion to construe the terms of the plan or to determine eligibility for benefits.   I received a letter in response from CIGNA, which acknowledged receipt of my letter and stated that if I wanted to direct a second appeal to CIGNA to please do so.

 

I received a letter from a representative of the employer's Benefit Committee, disavowing all responsibility for making any benefit decisions, because the plan was said to be fully insured by CIGNA.  The plan was indeed insured by CIGNA, but that delegation of fiduciary responsibility was directly contradicted by what was actually stated in the Summary Plan Description (SPD). Nevertheless, the letter instructed me to direct all further communications to CIGNA. 

 

I sent another letter to both CIGNA and to the Benefit Committee.  I stated that I would submit an administrative appeal to the Benefit Committee, as per the precise terms of John’s SPD and that I was not directing any appeal to CIGNA. However, I said that I would gladly copy CIGNA on any appeal documents that I submitted so that the Benefit Committee and CIGNA could confer and exchange information.  I also requested that CIGNA provide me with the raw data of the neuro-psychological testing done, so that I could have it examined by an independent neuropsychologist.

 

CIGNA responded with a letter stating the it didn’t have any raw data and that I had been provided with a copy of the IME report that was the basis for the claim determination.   This prompted yet another letter from me, stating that regardless of whether CIGNA or the Benefit Committee had possession of the raw data, to please instruct the doctor to release the information or to provide me with a written authorization so that I could get it directly from the doctor. Predictably, CIGNA refused that request.

 

I submitted an administrative appeal.  In support of the appeal I included a letter from John’s former supervisor, which described how he had struggled to continue working in pain.   I included a neuropsychological report of additional testing conducted by a well-known and respected independent neuropsychologist.  The testing showed measurable impairments in cognitive function.  I also submitted an expert vocational assessment report from a very well respected vocational expert. It too was highly supportive of his LTD claim.  I also submitted reports from John’s Social Security Administration investigation and its finding that he was found disabled under the SSA rules.

 

Result:  The claim denial was administratively reversed and the claim paid in full.

 

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