© 2014 by Michael A. McKuin

Attorney at Law

Post Office Box 10577

Palm Desert, CA 92255

(California State Bar No. 103328)

 

The information provided at this website is intended for educational and promotional purposes only. It is strictly general in nature and under no circumstance should it be considered legal advice.  Every case is unique and a competent, qualified lawyer must be consulted for legal advice regarding any specific case. 

Please reload

Recent Posts

Rickey Thomas Sebo v. Metropolitan Life Insurance Company, Allstate Long Term Disability Plan, CV  99-10770 HLH;  (9th Cir. Case No. 00-55765)

I h...

We’ve changed our mind. We don’t want to pay you anymore.

August 26, 2019

1/10
Please reload

Featured Posts

Sorry, we don’t believe you and no amount of evidence will change our mind.

March 5, 2017

Elizabeth W.  

 

Elizabeth W. worked for large auto manufacturer as a Logistics Specialist for more than 10 years prior to her disability.  Her position required that she work at duel computer monitors, using a keyboard, answering phones and radio calls, and dispatching incoming and outgoing freight. Physically, her work consisted of constant sitting, writing, gripping/grasping, and typing/ performing data input. She would frequently twist and would occasionally stand, reach, squat, and pull and lift up to 10 pounds.  90% of her work day was done sitting, with occasional standing and frequent twisting of the neck and frequent grasping with the right hand and occasional pushing and pulling.

 

She experienced a gradual onset of pain in her right hand, elbow, shoulder, wrist, and then in her left hand, wrist, right leg, back, neck, and head, as a result of cumulative trauma operating a keyboard, telephone, and mouse.  It got to a point where she could not keep up with the pace of her work because of the pain, which she rated as 9 on a scale of 0 to 10. Her cervical range of motion was also noted to be significantly below normal.

 

An MRI showed disc bulges in multiple areas of the thoracic, lumbar  and cervical spine.  Her orthopedic surgeon noted objective findings on examination:  Cervical spine: tenderness upon palpation; axial compression test was painful at the base of the neck; significant decrease in range of motion of cervical spine and of forearms and wrists. Lumbar spine: tenderness to palpation in one region; significant decreased range of motion.   He also noted partial loss of sensation of the right lateral leg; and that x-rays of the right wrist revealed “subchondral cyst in the navicular and into the scaphoid”.  His diagnosis was:  1.  Muscololigamentous sprain, cervical spine, with radiculitis;  2. Overuse syndrome, both upper extremities;  3. Tendinitis, both shoulders; 4. Medial and lateral epicondylitis, right elbow;  5. Medial epicondylitis, left: elbow;  6.  Cubital tunnel syndrome, right elbow; 7. Carpal tunnel syndrome, both wrists;  8.  De Quervain's tendonitis, both wrists; and  9.  Muscololigamentous sprain, lumbar spine, with lower extremity radiculitis.  He stated a “Disability Status” of:  “Temporarily partially disabled” and listed the following Physical Restrictions:  No heavy pushing or pulling.  No heavy lifting or repeated bending. No repetitive twisting.  No typing or keyboarding more than 25% of the workday.  A second orthopedic examined Elizabeth W. and confirmed the findings and diagnosis of the first doctor.  It was the opinion of both doctors that she could not return to her own occupation.

 

Elizabeth submitted a Short Term Disability (STD) claim to the insurer. It denied the claim based on a review by an in-house registered nurse, who concluded that the medical records “gave no clarity as to current functional deficits”. She referenced a “failing of this (information)” and an inability “to support (restrictions)”.  However, at no time did it ever request any needed “clarification” as to anything.

 

Elizabeth administratively appealed the denial of the STD claim.  The appeal was accompanied by updated records from her treating orthopedic surgeon.  The insurer ordered a paper review by its in-house reviewing physician, who found, “there remains no time-concurrent documentation of significant measured physical limitations to support (the) claim of inability to perform her regular work duties .  .  .”  A letter from the insurer parroted the remarks of the paper-review doctor and upheld the initial denial of the STD claim on that basis.

 

Elizabeth directed a letter back to the insurer, referring the benefit representative to numerous reports of her treating / examining physicians which did in fact provide “time concurrent” documentation.  The insurer refused to budge and re-affirmed its denial.

 

Thereafter, Elizabeth submitted a Long Term Disability (LTD) claim.  The insurer first tried to deny her access to the LTD claim by telling her that she wasn’t eligible to apply as she had never received STD.  After consulting with me, Elizabeth persisted with submission of her LTD claim, which the insurer ultimately accepted.

 

The insurer’s next move was to conduct yet another in-house review by an RN, who reiterated the previous findings of its paper-reviewer, in relation to the STD claim.  It initially denied the LTD claim, based on a finding of insufficient evidence to support total disability from a sedentary occupation, “Due to no time-concurrent documentation of significant measured physical limitations.”   The absurdity of that position was apparent to the Managing Counsel of auto manufacturer, who directed a letter to the insurer, calling attention to the specific findings of the treating physician.  The insurer ignored that letter too.   

 

An administrative appeal was taken. The insurer had an additional paper review doctor look at the file, who opined that “work restrictions are not supported by the measured limitations”.   It upheld the denial of the LTD claim based solely on the paper-review doctor’s report. 

 

Result:  A lawsuit was filed.  The case was resolved satisfactorily.

Please reload

Search By Tags