Obtained summary judgment and declaratory judgment that client, a former IT director for Forbes Magazine, was “Totally Disabled” under both “Own Occupation” and “Any Occupation” phases of employer sponsored, group long-term disability insurance policy, and awarded attorney’s fees pursuant to ERISA statute. Court’s opinion addressed numerous cutting-edge ERISA issues, including scope of review of administrator’s adverse benefit determination, standard of review, vesting of rights under ERISA plan and admission of medical records not contained in “administrative record.” See Lijoi v. Continental Cas. Co., 414 F. Supp. 2d 228 (E.D.N.Y. 2006) and Lijoi v. Continental Cas. Co., 2007 WL 708238 (E.D.N.Y. 2007). Case featured as front-page story in Mealey’s Litigation Report: Disability Insurance (February/March 2006).
Obtained a $1 million dollar lump sum settlement for Tennessee healthcare executive who suffered from psychiatric disabilities. After paying the client’s claim for nearly a decade, the carrier suddenly terminated the claim and argued that the client was able to return to his demanding and stressful occupation. A lawsuit was filed in federal court in Tennessee and a team of experts was assembled to support the client’s disability claim and reveal the flaws in the carrier’s arguments. This team included the psychiatrist who had performed an independent medical examination for the carrier when the client initially filed his claim and who had found the client to be disabled. Discovery revealed that the carrier’s expert psychiatrist had been disciplined for altering and/or fabricating test results in a lab study during medical school, which severely impeached the expert’s credibility. The discovery helped lend to the successful settlement of this case shortly before an expensive and risky trial.
A high school teacher, was disabled by complications from Obsessive Compulsive Disorder (OCD), a disorder he had courageously battled for most of his life. When he sought to sue his long term disability insurer for his denied benefits, we convinced him to pursue an internal and administrative appeal with the carrier before resorting to costly litigation. We had our client undergo neuropsychological evaluation, which provided evidence from standardized neuropsychological tests that our client suffered demonstrable deficits in executive functioning that are related to his Obsessive Compulsive Disorder. In addition to obtaining an opinion from a neuropsychologist that our client was unable to perform the material and substantial duties of his occupation, we secured updated medical records and medical narratives from his treating psychiatrist and psychologist, as well as a copy of a psychological evaluation that had been performed by our client’s school district. Finally, we submitted a memorandum which outlined how the insurance carrier’s expert, who had never examined our client, had prepared a report that misstated and omitted critical medical facts concerning our client’s disabling conditions.
After being confronted with this new evidence, the carrier reversed its denial of our client’s disability benefits and reinstated his claim, which spared our client the stress, expense, and delay of litigating his disability insurance claim.
Won summary judgment and dismissal of equitable restitution claims brought by health insurer against regional fuel oil company on grounds that carrier’s claim for recovery of all claims paid under group health insurance plan did not constitute equitable relief within the meaning of ERISA Section 502(a)(3)(B). Discovery showed that group health policy was not obtained by fraudulent misrepresentation on policy application and carrier’s initiation of litigation was the result of efforts to engage in post-claim underwriting after group incurred large medical bills during third year of group health plan. SeeScarangella v. Group Health, Inc., 2009 WL 764454 (S.D.N.Y. 2009)(subsequent motion for attorney’s fees granted).
Prepared successful ERISA appeal and obtained reversal of denied long term disability benefits on behalf of service technician whose comorbid disabling conditions (back and neck disc herniations and advanced heart disease) prevented him from performing the material and substantial duties of his occupation. The carrier initially concluded that there were numerous sedentary occupations that the client could perform based upon its erroneous characterization of duties of his occupation, failure to perform an appropriate vocational assessment, and impermissible cherry-picking of the client’s medical records. On appeal, we submitted detailed occupational descriptions and personal statements of the client, the client’s family members, and the client’s co-workers, narrative reports from the client’s treating physicians and a renowned specialist which demonstrated that the carrier had mischaracterized the restrictions and limitations resulting from the client’s medical condition, and a thorough vocational assessment demonstrating that the client was not vocationally qualified for the alternate occupations the carrier claimed our client could perform. After reviewing the appeal, the carrier reversed its decision and reinstated the long term disability benefits, which spared our client the emotional stress and expense of litigating the claim denial.
Prepared successful ERISA appeal and reversal of denied long term disability benefits of estates and trusts attorney whose lower back problems and side-effects from narcotic pain medications prevented her from performing the material and substantial duties of her occupation. The carrier initially denied the claim based upon the opinion of its in-house physicians that, based solely upon a review of records and without the benefit of a physical examination of the client, the client was capable of performing the material and substantial duties of her occupation. On appeal, we submitted extensive personal statements from the client and her family members, along with a detailed narrative report from her treating physicist which demonstrated that the client’s subjective complaints of pain were consistent with the disc herniations demonstrated on her MRI’s. In addition, we cited extensive caselaw which establishes that a disability carrier cannot ignore subjective complaints of pain as evidence of disability and outlined the extensive instances in which the carrier had misstated or ignored evidence of disability documented in the client’s extensive medical records. After reviewing the several thousand page appeal submitted on behalf of the client, the carrier reversed its decision and reinstated the client’s long term disability benefits.
After sustaining disabling injuries while riding a horse in Arizona, a Connecticut physical therapist filed a disability claim. Because she ran her physical therapy practice in Connecticut and also spent a large amount of time in Arizona, where she and her husband also owned a home, the carrier argued that she was no longer practicing as a physical therapist at the time of her onset of disabling injuries. The carrier further argued that, even if she was, her injuries were not disabling. We assembled a team of experts to rebut the carrier’s arguments that the client’s injuries were not disabling and deposed non-party witnesses who confirmed the extent of the client’s activities as a physical therapist. We also deposed an orthopedic surgeon who had performed an independent medical examination of the client for the carrier when the client had initially filed her claim and who testified that the client was totally and permanently disabled from her occupation. Finally, we convinced the court to apply Arizona law, which allows insureds to recover compensatory and punitive damages for bad faith conduct in claims handling, as well as attorney’s fees, to the client’s disability claim. Ultimately, the carrier requested that the client participate in mediation and settled the claim. Pursuant to settlement, the carrier entered into a binding stipulation that the client was engaged in the occupation of a physical therapist at the onset of her disabling conditions and that her medical conditions were disabling. The carrier then paid 100% of her past benefits and put her back on claim. As a result of the stipulation, the carrier will be obligated to pay the client’s disability benefits for the rest of her life. The total value of this resolution exceeds $2.4 million.
Obtained $1 million dollar settlement for orthopedic surgeon disabled by rheumatoid arthritis. Because the client knew his surgical career would be cut short, he invested in an entity that set up MRI testing facilities in a number of East Coast states. When his arthritis deteriorated to the point that where he could no longer perform surgery, the client filed a claim, but the carrier refused to pay the claim by arguing that the client had a “dual occupation” as both surgeon and administrator of the MRI facilities. After a lawsuit was commenced in Maryland, extensive discovery and medical experts were obtained. Following the exchange of expert reports, and mediation statements, which included an extensive nationwide survey of the leading disability cases on the dual occupation issue, the carrier requested a mediation and bought out the client’s claim on a lump sum basis for $1 million.