Hartford cut Kristen Reetz ‘s benefits off as her chronic pain got worse. She was far from able to return to work. This time, however, the LTD claimant filed a lawsuit and won.
The message for LTD claimants is that if you were awarded benefits an insurer may have a hard time taking them away unless your condition has improved. The subtext is that courts seem increasingly wary of LTD disability denials that are based on records review alone.
LTD Benefits Awarded, then Taken Away
Ms. Reetz worked for Byram Health Care, Inc. as a senior customer service representative. It was a job that required sitting for seven hours a day. She took a leave in March 2014 because of persistent pain resulting from fibromyalgia and spondyloarthropathy, a condition that causes back pain.
She began receiving short term disability benefits and was approved for LTD benefits in June 2014. In April 2016, however, the plan terminated her LTD benefits, concluding that she was able to perform the duties of her own occupation. It further, although somewhat unnecessarily, concluded that she also met the “any occupation” standard necessary for continued receipt of benefits after 24 months.
The termination of benefits was based on a review of her treating physicians’ medical records by several third party reviewers retained by Hartford. These peer reviewers did not examine Ms. Reetz and appear not to have spoken to her doctors. In fact, their conclusions about her ability to return to work were directly contrary to the conclusions of her treating physicians.
A Clear Record of Debilitating Pain
Conditions that are characterized by chronic pain can be difficult to diagnose. Sometimes the pain is better; sometimes it seems worse. Ms. Reetz, however, seems to have a remarkably consistent record of misery. Her doctors noted on several occasions that her condition appeared to deteriorate, despite a history of treatment that included:
• injections of medicine into the small joints of her lower back;
• radiofrequency neurotomy;
• low impact exercise; and
• treatment at a specialized pain clinic.
Various doctors noted that her limitations "should be lifelong" due to her "irreversible joint damage." Her condition was "unchanged." One doctor starkly admonished, "Don't expect any improvement."
Cleared by Hartford to go Back to Work
The insurance company’s unlikely conclusion that Ms. Reetz could return to work as a senior customer service representative was based on three things. It questioned the diagnosis of spondyloarthropathy, based on what may have been a misreading of a treating physician’s note that a particular test did not rule that diagnosis out. The peer reviewer also noted some improvement in Ms. Reetz’s functionality following knee surgery, although her knee condition was not part of her LTD application.
More central to Hartford’s termination of benefits was the fact that, at an earlier time, one of her treating physicians had indicated on a standardized form that Ms. Reetz was able to sit for four hours at one time. In a later evaluation, the doctor did not indicate (by circling a number on a scale) how many hours per day Ms. Reetz could sit. The doctor failed to circle any number. Hartford interpreted the lack of response as indicating no restriction on the total number of hours she could sit in an eight hour work day. This would have been a truly remarkable eight-fold improvement.
On the day of the determination, her doctor remarked in her notes that "Ms. Reetz cannot sit for long periods of time," and she is "still having a lot of difficulty with the combination of her lumbar issues, as well as her fibromyalgia”. The doctor specifically noted that she "did not agree with the final assessment . . . of [Ms. Reetz] being able to work full time."
The Takeaway: Persistence Paid Off in Winning LTD Claim
The decision is unusual because both parties agreed to a de novo review of the basic underlying medical evidence. The court’s determination is heavily dependent on that review, rather than the usual evaluation of the appeals process. Nonetheless, two things stand out.
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Secondly, although there is no need to require a physical exam by a treating physician to uphold a new decision in a de novo review, the court noted that administrators may not "arbitrarily refuse to credit" opinions of treating physicians in a review of records. The third party reviewers seemed especially cavalier in their evaluation of the existing record of Ms. Reetz’s disability.
The ultimate takeaway may be that it is possible to prevail in a wrongly denied disability claim lawsuit with persistence and a carefully developed factual record.