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A Judge in Federal Court in Vermont found against Hartford in a Disability ERISA case, ruling its termination of a claim, paid for many years, failed to satisfy the standard to be upheld. A highly compensated vice president at a major brokerage company was seriously hurt in a car accident and suffered significant back, shoulder, and neck injuries. Since the accident occurred, 19 years ago, he’s had multiple surgeries, some of which have failed, and lives with chronic pain. He’d been receiving benefits from a primary group ERISA disability policy and a supplemental group ERISA disability policy for many years, when the insurance company for the primary policy decided they’d paid enough, and he should go back to work.

The supplemental group disability insurance policy continues to be paid. It retains the own occupation coverage throughout the entire period of disability, paying 66-2/3% of monthly earnings, with a cap of $3,500 per month. This benefit is reduced by Social Security Disability Insurance, which he receives. Eligibility for Social Security Disability Insurance is often harder to obtain than for ERISA group disability benefits, which indicates how bad his health is.

The primary disability insurance policy provided coverage for the first 60 months (five years) if the employee is unable to perform their own occupation. After the first 60 months, the coverage shifts to any occupation for which they are qualified by education, training, or experience.

Hartford notified him that he was no longer qualified as disabled under the primary policy, stating that a physician had said he could perform sedentary work on a full-time basis. The physician has since revoked the opinion.

The reality is that he is unable to sit for more than an hour at a time or stand or walk for 15 minutes at a time and it takes him roughly three hours to recover from sitting, standing, or walking before he is able to attempt another activity. The record revealed that he is also unable to move his neck or lift five pounds. According to the opinion, complications from surgeries, including infections from devices placed in his body, have worsened his condition, and he’s suffered a stroke and cardiac events. His condition was so poor as to rule out the possibility of physical therapy.

Over the years, medical examinations consistently found his limitations to be permanent, but the insurance company focused on results from one FCE (Functional Capacity Examination), and isolated findings to mount a large-scale attempt to keep him from getting disability benefits under the primary policy. The focus was a grip test. He failed two grip tests, but Hartford’s assessment was he failed because his effort was consistently poor, and that a third grip test should have been administered.

Hartford also claimed his self-reported pain should not be considered when evaluating his disability. The court disagreed, stating that while validity testing and objective measurements are needed, subjective self-reporting should be considered, especially when there is a long history of complaints dating back to a verified event (the car accident) and multiple evidence of injuries and related health issues.

The court further noted the plaintiff received LTD benefits under the primary policy for 18 years, and for 13 years under the “any occupation” definition of disability. The only way a denial would be correct would be if there was a change in his medical condition, but there is no evidence of that, and in fact he has lost and not gained health and ability.

Despite the deference the Court noted to be afforded to the determinations under ERISA, the Court found that the evidence was too overwhelming in favor of the claimant, and the decision needed to be reversed.  The court thus overturned Hartford’s claim termination and he is being paid from both the primary and the supplemental policy. It determined that basing the denial upon the one doctor’s report was unreasonable, arbitrary and an abuse of discretion.

Thus, even under an arbitrary and capricious standard of review, advocacy can demonstrate conduct which departs from acceptable and to support a claim in litigation.


Justin C Frankel

Written By Justin Frankel

Disability Insurance Lawyer

Justin C. Frankel is committed to fighting for the rights of clients when their long term disability insurance claims have been denied, delayed or terminated.

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