Plaintiff v. Hartford Life & Accident Ins. Co., (2023, post-concussive syndromw)

***The Plaintiff, a family practice physician, became unable to continue to practice medicine full-time as the result of a serious bicycle collision, which caused her to “fl[y] off [her] bike” and land on her face and the right side of her body. She lost consciousness, suffered “quite a bit of amnesia in the hours after the accident,” and was diagnosed with a concussion, right maxillary fracture, and contusions. Plaintiff was diagnosed with post-concussion syndrome (“PCS”), and suffers chronic fatigue, decreased concentration and “brain power,” vertigo, headaches and other PCS symptoms. Despite many months and rounds of treatment, with physical, occupational and speech therapists and physical medicine/concussion specialists, Plaintiff was unable to return to and continue her full-time medical practice. Hartford denied her disability claim, asserting that, contrary to Plaintiff’s assertion, based upon its file reviews, she could perform the essential duties of her occupation on a full-time basis. Hartford also denied Plaintiff’s pre-litigation appeal of its denial decision, again, citing file reviews.

The district court issued a 60-page decision rejecting Hartford’s denial decision, and ordering Hartford to reinstate and pay Plaintiff’s disability claim. The Court noted that as the result of her “significant accident,” Plaintiff had suffered “a broken jaw and mTBI, carried the diagnosis of PCS, and complained of symptoms consistent with PCS, including, but not limited to, fatigue, decreased stamina, and headaches,” and that her “primary care physician…determined that Plaintiff was unable to work forty hours per week/full-time (i.e., an essential duty) as a family medicine physician,” and that “Plaintiff’s other treating and examining medical providers’ findings and observations are largely consistent with and captured by Dr. Laughlin’s opinions.” The court found the ‘opinions of Plaintiff’s treating and examining medical providers… persuasive evidence that she is disabled under the terms of the LTD plan.”

The Court found Hartford’s “medical consultants’ reports only minimally persuasive,” citing conclusions that were contrary to numerous medical facts, assertions they made that did not support their conclusions that “Plaintiff could work full-time in her own occupation as a family medicine physician,” and their failure to “adequately [] address what evidence was required to find disability based on PCS symptoms.” 

The Court also rejected Hartford’s argument that the Plaintiff failed to provide proof of treatment during an entire one-year period, from “March 13, 2020 until . . . January 2021.” First, the Court found, “Defendant is asserting a new reason for denying LTD benefits,” which is improper and disallowed” and therefore, “decline[d] to adopt Defendant’s post-hoc rationalization here.” In addition, the Court found, “Plaintiff was under [the care of her primary physician] at the beginning and through the close of the record, and [this physician]

Plaintiff v. Unum Life Ins. Co. of Am., (2022, Long COVID, cognitive impairment)

***Plaintiff, a trial and appellate lawyer for a large law firm, became disabled from his regular occupation as a trial lawyer, and virtually home-bound, as the result of near-daily fevers, brain fog, decreased attention and concentration, malaise, and other symptoms. The illness began suddenly, in April 2020, in Seattle, where the first cases of COVID-19 were identified in the United States. Medical specialists, including infectious disease specialists and others, diagnosed “long COVID” or chronic fatigue syndrome (CFS). His disability had caused him to exhaust his life savings, sell his house, and draw on his retirement savings, underscoring the seriousness and severity of his condition. Plaintiff sued his firm’s disability insurer, Unum, after Unum denied, and refused to pay, his disability claim. Unum cited the lack of a positive COVID test, asserted that Plaintiff could perform his occupational duties as a trial lawyer on a full-time basis, and questioned the accuracy of his reports of near-daily fevers. Plaintiff refuted these assertions with additional evidence, including medical records, witness statements, and logs, photos and videos of his temperature readings. Unum upheld and affirmed its denial decision, and Plaintiff sued Unum.  

The Court overturned Unum’s claim denial, concluding that regardless of the correct diagnosis, clearly, Plaintiff’ subjective symptoms are disabling. The Court noted, “In April 2020, Plaintiff’s family, his doctors, and his colleagues all saw a significant shift in his demeanor and abilities” in that he “went from training for a marathon and working 12-hour days to being housebound” and “suffered almost daily fevers, brain fog, decreased attention and concentration, and malaise.” The Court observed, “Plaintiff’s doctors agree that he is sick. Three medical doctors diagnosed…‘long COVID,”… and four medical doctors diagnosed…CFS… Neuropsychological testing revealed that Plaintiff was not malingering. Plaintiff’s primary physician also consistently noted his disability, stating that he would be ‘unable [to work] for more than 0-2 hours per day’ and would ‘not be able to put together 1-2 workdays or partial workdays in a given week.’” The Court observed, “If Plaintiff were able to work, then he would have done so prior to selling his home and exhausting his savings” but that “[i]nstead, [he] remains housebound and unemployed.” The Court ordered Unum to pay Plaintiff LTD benefits retroactively to the onset of disability in 2020, and to continue to pay benefits under the policy, “absent a showing of improvement such that a reasonable physician would conclude that plaintiff can return to work in his regular occupation, without undue disruptions or absences due to his illness and its related symptoms.”

Plaintiff v. Reliance Std. Life Ins. Co. (2016, vision impairment, headaches, dizziness)

Plaintiff v. Metro. Life Ins. Co. (2016, degenerative disc disease)

Plaintiff v. Prudential Insur. Co., (2014, Meniere’s disease)

***Our client filed a long-term disability claim through her employer’s group plan because of severe, debilitating Meniere’s disease. She experienced frequent attacks of spinning vertigo, dizziness, nausea and vomiting, and other symptoms. Prudential denied her claim and appeal, despite clear evidence to the contrary, asserting that she had improved with treatment. Overturning Prudential’s denial, the Oregon Federal District Court agreed with us that Prudential mischaracterized certain key facts, such as that her job was “sedentary,” her vertigo mild and episodic rather than frequent and severe, and that she did substantial driving when the record showed she ceased driving post-surgery. The Court held that “[i]n addition to a limited and skewed presentation of Delaney’s work history and medical record, Prudential’s denial hinges on record reviews by two physicians and a mere hour of video surveillance.” None of that evidence showed anything inconsistent with Delaney’s claims of limitations. In summary, the Court found Delaney should be awarded “LTD benefits under both the ‘regular occupation’ and the ‘any gainful occupation’ provisions of Prudential’s policy until she is no longer disabled.”

Plaintiff v. Unum Life Insur. Co., (2013, Post-Traumatic Stress Disorder, PTSD)

***Our client worked as a principal real estate project manager until she became unable to work due to depression, anxiety and delayed onset PTSD. Her treating physicians all concluded that her symptoms prevented performance of her regular occupation. She applied for disability and Unum denied the claim, asserting that her symptoms were moderate, in part, because she had not taken psychotropic medication. The Oregon Federal District Court was persuaded by our arguments and concluded Unum abused its discretion when it denied Plaintiff’s claim for disability benefits. It found numerous errors with the insurer’s review: Unum’s evaluation of Plaintiff’s claim had been cursory and inadequate, Unum misstated the facts, Unum failed to investigate medication issues sufficiently, Unum failed to order an independent medical examination and it failed to analyze whether our client could still perform her job. One key aspect of this victory was that the Court also did not remand the case for further benefit determinations, which would have given Unum another opportunity to mishandle the claim and get another “bite at the apple.” Instead, it granted our request and awarded Plaintiff benefits based on the record.

Plaintiff v. Life Insur. Of N.A., (2013, leukemia and graft versus host disease)

***Plaintiff became ill with acute myeloblastic leukemia at age 50 and submitted a claim for short-term disability. He underwent stem cell transplant surgery and then developed significant complications including chronic graft versus host disease. After two years, LINA reviewed his eligibility for long-term disability benefits under the “any occupation” definition, and paid those benefits for ten months until it terminated claiming our client was no longer disabled and could perform sedentary work. The Oregon Federal District Court reviewed Plaintiff’s claim and decided LINA incorrectly terminated benefits. The Court agreed with us that LINA gave inadequate consideration to the conclusions of treating physicians who supported disability, and improperly determined our client was capable of “medium” or “light” work. The Court awarded our client long-term disability benefits and the Magistrate even stated there might be cause to grant prejudgment interest above the statutory rate if evidence was presented to show our client suffered financial losses as a result of LINA’s withholding of LTD benefits. Judge Simon upheld the Magistrate’s determinations on disability and decided that the Magistrate could also consider evidence to support prejudgment interest, which our client later received. This was a big victory, justly deserved.

Plaintiff v. Prudential Insur. Co., (2013, post-concussion syndrome, PCS)

***Plaintiff worked as a partner with an accounting firm for almost 30 years when he was diagnosed with sick sinus syndrome, syncope (fainting spells), migraine headaches, and cognitive problems. Prudential approved his long-term disability claim but did so under a Plan provision allowing for only 24 months of payments for mental illness (depression, in this case). Prudential terminated those payments after 24 months, claiming our client’s problems were caused by major depression, malingering and a poor attitude. We sued in Oregon Federal District Court for long-term medical disability through retirement and argued the mental illness limitation did not apply because his disability was due to PCS which qualifies as “dementia caused by trauma” and is not a mental illness. We prevailed, persuading the Court with the medical evidence and Plaintiff’s physicians’ coherent explanation of PCS and his rapid deterioration and symptoms after a 30-year work history. The Court awarded our client long-term disability benefits through retirement, and it wrote that Prudential’s approach to his claim had been “sloppy,” and ignored , key evidence, such as updated doctor reports.

Plaintiff v. Standard Insur. Co., (2012, Familial Mediterranean Fever, FMF)

***Plaintiff worked as a computer help desk technician when he became disabled due to a FMF condition which he had suffered from since childhood. Plaintiff’s FMF had worsened, causing severe chronic pain, flares of fever, joint swelling, difficulty walking, insomnia, and inability to concentrate. Standard granted short-term disability but when that expired, it denied Plaintiff’s long-term disability claim, asserting there was no evidence his condition had deteriorated. Standard relied upon the opinions of reviewing consultants who did not examine our client. Overturning the denial, the Oregon Federal District Court agreed with us and found disability was proven because of medical evidence of his chronic pain and FMF symptoms, as well as his treating doctors’ support of his permanent disability. The Court also rejected Standard’s argument that Plaintiff’s work problems were more tied to narcotic dependency, for it found “narcotic dependency and chronic pain are not mutually exclusive conditions.”

Plaintiff v. Life Insur. Of N.A., (2012, chronic fatigue syndrome)

***Our client worked as a lawyer at a well-established firm in San Francisco. In 2002 he filed a claim for LTD benefits under the firm’s Policy because he had become incapacitated due to chronic fatigue syndrome (“CFS”), fibromyalgia and depression. Defendant LINA initially approved the LTD claim but later terminated based on a mental illness limitation. Plaintiff sued in Oregon Federal District Court seeking to recover LTD benefits owed him. The Court decided in his favor, granting him LTD benefits through retirement. It found the evidence was “undisputed that his cognitive difficulties prevent him from practicing law,” and that “CFS is a physical condition to which the MIL does not apply.” It also found Plaintiff met his burden of proving that his cognitive impairments were caused by CFS. This case also involved an issue with a prior SSDI payment, which the insurer sought to recover. Yet we were able to convince the Court that a triable issue of fact existed over whether LINA acted in bad faith. The Court found “circumstantial evidence [existed] that LINA falsified, concealed or changed medical records on which it relied to terminate Ayers’ LTD benefits under the MIL.” The insurer then became motivated to avoid a full trial on its bad faith, and we reached a settlement favorable to our client on the SSDI overpayment portion of the case. This case was a significant double win.

Plaintiff v. Metro. Life Ins. Co. (2011 chronic active Epstein Barr virus, chlamydia & mycoplasma pneumonia) (settled after favorable ruling)

Plaintiff v. United of Omaha Life Insur. Co., (2010, computation of disability benefit payment)

***Plaintiff, a former real estate agent, became disabled and sought disability payments from Defendant. Defendant agreed that Plaintiff was disabled and entitled to benefits, but it disputed the monthly benefit amount claimed by Plaintiff. The Oregon Federal District Court interpreted the insurance contract to resolve the dispute and determined that Defendant offered the most plausible interpretation of “Basic Monthly Earnings.” This interpretation was that the benefits be calculated based on the prior two calendar years, if applicable. The Court preferred Defendant’s interpretation because it was consistent with the wording of the policy and plausible from the perspective of an ordinary purchaser of insurance. Thus, Plaintiff prevailed in receiving disability benefits but did not secure the amount sought.

Plaintiff  v. Prudential Ins. Co. of Amer. (2010, liver failure)

Plaintiff v. Metro. Life Ins. Co. (2009, chronic neck and back pain due to spinal stenosis)

Plaintiff v. Prudential Ins. Co. of Amer. (2008, lumbar disc disease)

Plaintiff v. Broadspire Nat’l Servs (2006, fibromyalgia)

Plaintiff v. Regence Health and Life et al, (2006, traumatic brain injury, post-concussive syndrome)

***Our client was a Portland lawyer who suffered traumatic brain injury when he fell from a ladder in 2004. Although he continued to work and his initial MRI did not reveal significant abnormalities, months later he did experience a range of cognitive impairments as well as fatigue, balance problems, cranial pressure. He was diagnosed with PCS. When he sought long-term disability benefits because of his PCS symptoms that prevented him from working, Defendants denied his claim. Regence claimed he could perform his regular occupation of managing partner and trial lawyer. We sued in Oregon Federal District Court and prevailed. The Court concluded our client was totally disabled and awarded LTD benefits. The Court stated the evidence did show Plaintiff was unable to perform “all of the material and substantial duties of his occupation,” and that he could only work for one or two hours a day. The Court wrote that if he were not totally disabled given the facts of “his impairments” and “the high cognitive demands required of a lawyer,” then the “coverage of the LTD Policy would seem to be triggered only if Plaintiff ‘were essentially non-conscious.’”

Plaintiff v. Sumco USA Group Long-Term Disability Plan and Standard Insur. Co., (2004, chronic fatigue syndrome CFS)

***Plaintiff was employed as a Human Resources Generalist at a big tech company when she became unable to work due to CFS. She had symptoms of severe and unrelenting fatigue, concentration difficulties, dizziness, headaches and fevers. She applied for long-term disability benefits and Defendant denied claiming that she suffered from mental illness instead of a medical condition, and that there was no objective evidence of CFS. In an important legal victory for her and ERISA plaintiffs in general, the Oregon Federal District Court was persuaded by our arguments and concluded that the policy did not require objective evidence. The Court found that Plaintiff presented evidence of “classic symptoms of CFS to Standard,” and that this evidence was sufficient. The Court further determined that Defendant “abused its discretion by successively imposing extra-contractual eligibility criteria that contradict[ed] the plain language of the Plan.” It awarded long-term disability benefits to plaintiff for her CFS and stated the 24-month limitation applicable to mental illness did not limit her benefits.

Medical/Residential Treatment

Plaintiff v. Legacy Health Plans, (2023, medical claim for residential treatment for minor)

***In 2016, the plaintiff, a minor, was admitted to New Haven Residential Treatment and Boarding School, located in Utah, after suicide attempts, multiple hospitalizations, and treatment in a short-term residential facility. Plaintiff successfully completed treatment at New Haven in 10 months and graduated from high school shortly afterwards. After the admission, New Haven called PacificSource, which administered the Legacy Health Plan, regarding coverage. The PacificSource representative told New Haven that there was no coverage for out-of-network services, which was incorrect. Following that discussion, the plaintiff’s mother repeatedly contacted PacificSource to try to get any coverage available for New Haven’s treatment.  Subsequently, PacificSource issued a denial in which it asserted that “Services rendered by nonparticipating providers and facilities are not a covered benefit of the plan.” Another notice stated, “Service not covered based on medical review.” In yet another, PacificSource asserted that in-network residential treatment facilities were available, but cited a facility that only treats adults, whereas plaintiff was a minor. And in another letter, PacificSource made a similar assertion, but cited no specific facility. The plaintiff’s mother appealed PacificSource’s denials on her daughter’s behalf, but PacificSource affirmed, denying coverage. 

Our law firm sued PacificSource, and the district court overturned PacificSource’s claim denial, concluding that the decision was an abuse of PacificSource’s discretion, meaning that it was “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts on the record, Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011).

First, the Court concluded, PacificSource failed to issue a qualified decision. “In denying Plaintiff’s first appeal, Defendants relied on the medical opinion of a doctor certified in family practice, rather than in any relevant mental health specialty,” the Court noted. “That doctor, and [a reviewing committee], determined that appropriate care could be provided by [a local facility]” that “does not provide care to minors and so was plainly not an appropriate placement for Plaintiff.” The second appeal, the Court noted, “which relied on the medical opinion of a doctor certified in internal medicine and nephrology, fared no better in that it offered only the vague statement that there were available in-network services, but without identifying any such services.” The Court concluded that “the failure to consult with a medical provider certified and experienced in the field of mental health before determining that there were appropriate services available in-network weighs in favor of finding an abuse of discretion.”

Second, the Court concluded, the basis of the denial decision, PacificSource’s assertion that there were “appropriate services available to treat Plaintiff within the Legacy+ Network,” was “illogical and without support in inferences that may be drawn from the facts on the record,” leaving the Court “with a definite and firm conviction that a mistake has been committed.” The Court concluded “that Defendants abused their discretion in denying Plaintiff’s claim” and that “an award of retroactive benefits is appropriate because Defendants’ denial of benefits is contrary to the factual record.”

Plaintiff v. Providence Health Plan, (2013, medical claim for dental treatment)

***Plaintiff experienced a seizure and suffered a fall that fractured her jaw. Plaintiff’s dental surgeon recommended extensive dental treatment and surgeries including bone grafts that were “a result of jaw fractures” and “associated with” her fall. Defendant denied coverage for the services claiming that they were dental rather than medical, and not covered by the Plan. Plaintiff proceeded to two internal appeals of the denial with Providence which led to its Grievance Committee recommending coverage for removal and implant surgery for one tooth. We sued in Oregon Federal District Court and prevailed, showing that Providence abused its discretion in denying Plaintiff’s claim for medical benefits. The Court concluded Providence failed to explain why it rejected Plaintiff’s expert’s opinions, or why it relied instead on a consultant’s review without any examination. The Court also found Providence committed ERISA violations by not giving Yox adequate notice and by consulting with experts who lacked “training and experience related to Plaintiff’s claims for dental reconstruction.” In addition, we convinced the Court that Providence violated ERISA notice requirements. For all these reasons and more, it concluded Providence’s denial was unsupported by rational evidence and so it granted Yox’s Motion for Summary Judgment, finding her entitled to medical coverage for the dental procedures.

A.F. and A.P. v. Providence Health Plan, (2014, autism)

***A.F. and A.P. were minors from different families both insured as dependent-beneficiaries under group health plans provided by Providence. Each minor was diagnosed with autism and had been denied coverage of an autism therapy known as Applied Behavioral Analysis (“ABA”) therapy. Plaintiffs brought suit as a class action since each case involved Providence’s denial under its “Developmental Disability Exclusion.” Plaintiffs sued in Oregon Federal District Court and won, showing that this exclusion of Providence violated two state laws, the Oregon Mental Health Parity Act and the Oregon Mandatory Coverage for Minors with Pervasive Developmental Disorders Act, and a federal law. The first violation concerned how Defendant’s exclusion did not provide equal coverage for mental health and medical conditions as required by the Parity Act. A second violation of state law occurred because Defendant’s exclusion permitted Providence to deny coverage for services “related to a developmental disability” that otherwise would be covered for plan members who did not have developmental disabilities. Furthermore, the Court found a violation of the Federal Parity Act, for similar reasons as with the state Parity Act. The Court granted Plaintiffs’ Motion for Partial Summary Judgment.

Plaintiff v. PacificSource Health Plans, (2010, autism therapy)

***Plaintiff’s minor son had autism and PacificSource denied coverage for his ABA therapy on the grounds that 1) the therapy was experimental, 2) the plan excluded academic or social skills training, and 3) the provider was not eligible. We sued in Oregon Federal District Court and it upheld PacificSource’s denial. The Court ruled in Plaintiff’s favor on some grounds, finding PacificSource failed to establish ABA therapy was experimental or skills training under the Plan. The Court concluded ABA therapy did not fall under any Plan exclusions and was covered but it also found Plaintiff’s provider was not eligible. Thus, it found Plaintiff not entitled to reimbursement for the services provided. We filed a Motion for Reconsideration arguing Plaintiff’s provider was eligible and that PacificSource violated ERISA’s notice requirements. The Court agreed with us, finding a breach had occurred and it awarded benefits for the therapy provided after the date of eligibility. The parties settled for an amount of reimbursement to be paid by PacificSource, but PacificSource later refused to pay so we returned to court, seeking an order of contempt. The Court urged the parties to resolve their differences by negotiation.

Plaintiff v. Providence Health Plans, (2010, treatment for malignant brain tumor)

***This case involved insurance coverage for Plaintiff’s high dose chemotherapy enhanced by Blood Brain Barrier (“BBBD”) disruption to treat her primary central nervous system lymphoma (PCNSL), a rare malignant brain cancer. Providence denied coverage for the BBBD-enhanced high dose chemotherapy claiming that it was investigational and experimental. In litigation in Oregon Federal District Court, Plaintiff prevailed on numerous points, such as that de novo standard of review should apply and Providence failed to provide a fair and objective appeal review process for the initial denial. The Court considered the main dispute to be whether Plaintiff’s BBBD-enhanced high dose chemotherapy was a covered benefit under the Policy. It found most aspects of Plaintiff’s hospitalization and treatment for PCNSL were covered services under the Policy. As to the BBBD protocol, the Court found it was medically necessary because it provided “clearly significant health benefits,” including greater survivability and less toxic side effects. As to Providence’s argument that BBBD is excluded from coverage as investigational and experimental, the Court was not persuaded because our evidence showed “all treatments for PCNSL are under continued research and …because this disease is so rare…there have been no Phase II trials for treatment,” and so there were not any gold standard treatments for PCNSL. The Court ruled in our favor, finding coverage for Plaintiff’s high dose BBBD-enhanced chemotherapy as it did not fall within any exclusions and was covered. On appeal, however, the Ninth Circuit reversed, finding that the District Court should not have reviewed the case de novo. Under the more deferential review it found applicable, the Ninth Circuit Court found Providence’s determination had not been entirely unreasonable.