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Thoma v. The Fox Long-Term Disability Plan and LINA / CIGNA – December 11, 2018

Former Senior Television Producer Wins Reinstatement of “Any Occupation” Long-Term Disability Benefits

We succeeded in winning reinstatement of long-term disability benefits for our client, Ms. Christine Thoma, who was previously employed as a senior television producer at Fox News.  In a decision issued by the United States District Court for the Southern District of New York, Judge Robert W. Sweet held that “Thoma has shown by a preponderance of the evidence that her long history of health troubles related to her spine, hip, and other conditions, as well as the medications required to treat the pain associated with those difficulties, has left Thoma ‘unable to perform the material duties of any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience.'”  Judge Sweet ordered the plan’s insurance carrier and claim administrator, Life Insurance Company of North America (“CIGNA1“), to reinstate Ms. Thoma’s long-term disability benefits, with interest, and awarded Ms. Thoma her reasonable attorneys’ fees and costs.

We assisted Ms. Thoma prior to the termination of her claim (responding to CIGNA’s lump sum settlement offer and during CIGNA’s “any occupation” review), prepared her internal administrative appeal package in response to CIGNA’s termination of her claim, and then represented her during the lawsuit (after CIGNA denied Ms. Thoma’s appeal).

CIGNA’s Approval of Ms. Thoma’s Short- and Long-Term Disability Claims

Ms. Thoma was diagnosed as a child with severe scoliosis, i.e., improper curvature, of the spine.   At the age of 14 (1979), she underwent the first of what would turn into a series of major spine surgeries:   implantation of Harrington Rod instrumentation and a fusion from T4 to L4 (1979); correction of L3 pseudarthrosis (1982); further correction of L3 pseudarthrosis (with implantation of two small rods (1990); flatback revision surgery and extension of fusion from L4 to S1 (2011); and a cervical fusion from C5 to C7 (2013).

Meanwhile, Ms. Thoma had pursued a successful career in television.  After graduating college, she started work as a Page at NBC in 1987.  She worked there 13 years and was promoted to news writer, to segment producer, and, ultimately, to field producer.  She was hired by Fox News as a line producer in 2000, and, within a few years, she was promoted to Senior Producer.  With several short interruptions in 2007 and 2011 (to pursue specialized assignments), Ms. Thoma continued to work as a Senior Producer for Fox until her condition forced her to stop working in October 2013.  Ms. Thoma, her husband, and her physician all provided statements that described her dedication to her career.  As summarized by Judge Sweet, “[w]itness statements support the characterization of Thoma as someone who loved her work but is severely restricted in her actions as a result of her condition.”  He also observed that “[t]here has been no allegation from any of Thoma’s numerous examining or paper review physicians that she was exaggerating her pain.”

At the time of her 2013 surgery, Ms. Thoma commenced a short term disability leave.  Ultimately, Ms. Thoma applied for long term disability benefits, as well, because the recovery from her cervical fusion was incomplete and she was suffering from lower back problems and pain accumulated over a lifetime of spinal surgeries.

CIGNA approved Ms. Thoma for 6 months of Short-Term Disability benefits, and then approved her for Long-Term Disability benefits.  CIGNA cited the following factors in support of its repeated determinations that Ms. Thoma was incapable of performing the duties of her “own occupation”:  (1) her self-reported pain, (2) her ongoing spinal misalignment, (3) her potent opiate pain management regimen, (4) the accumulated surgical insult to her spine, and (5) her gait disturbance (as observed on clinical examination and on CIGNA’s covert surveillance film).  Under the terms of the Long-Term Disability Plan, “own occupation” benefits were payable for 2 years, after which Ms. Thoma would be entitled to continue disability benefits if she were “unable to perform the material duties of any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience” and “unable to earn 60% or more of . . . her Indexed Earnings.”

During the two-year “own occupation” period, CIGNA arranged for Allsup LLC (a Social Security disability advocacy service) to pursue Ms. Thoma’s entitlement to Social Security Disability Income (SSDI) benefits.  The Social Security Administration approved Ms. Thoma’s claim for SSDI benefits in April, 2015, after Allsup appealed an initial claim denial.  Under applicable SSD regulations, this meant that Social Security determined that Ms. Thoma was incapable of “substantial gainful activity,” i.e., unable to engage in any work sufficient to earn at at least $1,090.00 per month.

CIGNA’s Termination of Long-Term Disability “Any Occupation” Benefits

In anticipation of the transition from “own occupation” to “any occupation” disability benefits, which was scheduled to occur on April 8, 2016, CIGNA intensified its attention to, and evaluation of, Ms. Thoma’s disability claim.  First, CIGNA offered to settle Ms. Thoma’s claim in March, 2015, by paying out the remainder of her “own occupation” benefits (i.e., through April 8, 2016).  Ms. Thoma declined that offer.  After Allsup succeeded in obtaining approval of SSDI benefits for Ms. Thoma (April, 2015), CIGNA referred Ms. Thoma’s claim to its Special Investigations Unit (SIU), in May/June, 2015, to initiate surveillance.  The surveillance was conducted during dates in June and July, 2015.  Thereafter, in September and October, 2015, CIGNA requested, and Ms. Thoma and her physicians provided, claim forms, medical records, and other evidence in support of her disability.  In December, 2015, CIGNA required Ms. Thoma to undergo an “independent medical examination” (IME) with Dr. Arnold Berman.  Dr. Berman concluded that Ms. Thoma had no functional deficits whatsoever, and was able to return to her former occupation “full time full active duty.” Upon receipt of Dr. Berman’s IME report, CIGNA arranged for an in-house “Transferable Skills Analysis” (TSA) by its vocational consultant, which — based solely on Dr. Berman’s IME — concluded that Ms. Thoma was capable of performing the duties of her former occupation.  CIGNA terminated Ms. Thoma’s long-term disability claim by letter, dated May 13, 2016.

Ms. Thoma, through counsel, appealed CIGNA’s termination.  In support of the internal administrative appeal, she submitted a comprehensive evidence package that included, inter alia, updated medical records; reports and letter-responses to Dr. Berman’s IME report from Ms. Thoma’s treating physicians; information regarding Dr. Berman; materials obtained from Ms. Thoma’s Social Security disability claim file (including Social Security’s Disability Determination Explanation); an assessment completed by an independent medical consultant retained by Ms. Thoma; and the Vocational Evaluation report of Victor Alberigi, CRC, LPC, LSW, CDMS, ABVE-A.

On appeal, CIGNA obtained a paper-only peer consultant report from Dr. Howard Grattan.  Dr. Grattan acknowledged that Ms. Thoma’s condition warranted restrictions and limitations (in contrast to Dr. Berman’s opinion that no restrictions or limitations were supported), but concluded that Ms. Thoma nonetheless had functional work capacity that significantly exceeded the capacity reported by Ms. Thoma, her treating physicians, and her independent medical consultant.  CIGNA obtained an appeal-level Transferable Skills Analysis — again from an in-house vocational consultant, and again based solely on the medical assessment of its own retained consultant (Dr. Grattan).   The TSA purported to find alternate occupations Ms. Thoma was able to perform and that satisfied the “any occupation” wage requirement (60% of her pre-disability earnings) — even though that amount significantly exceeded the $1,060 per month that Social Security had recently determined Ms. Thoma was incapable of earning (at the urging of CIGNA’s designated agent, Allsup).

CIGNA upheld its termination and denied Ms. Thoma’s appeal in a letter dated January 27, 2017.

Ms. Thoma’s Successful Lawsuit

On June 9, 2017, we filed a lawsuit in Ms. Thoma’s behalf in the United States District Court for the Southern District of New York.  Ms. Thoma asserted that she was entitled to continued benefits under the Fox Long Term Disability Plan and that CIGNA had improperly terminated her claim.  Ultimately, Ms. Thoma and CIGNA both filed motions for judgment and made oral presentations to the court.  The case was submitted for decision on June 20, 2018.  On December 11, 2018, Judge Sweet issued an opinion awarding all the relief she had requested.  Judge Sweet reinstated Ms. Thoma’s benefits on a going-forward basis; ordered CIGNA to pay benefits retroactive to its termination decision (May, 2016), with interest on those benefits; and also ordered CIGNA to pay Ms. Thoma her reasonable attorneys’ fees and costs.

Judge Sweet conducted a detailed evaluation of the medical and vocational evidence and concluded that Ms. Thoma had demonstrated by a preponderance of the evidence that she was disabled from “any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience” and in which she could “earn 60% or more of her Indexed Earnings.”

In reaching this decision, Judge Sweet found fault with CIGNA’s reliance on the IME Report of Dr. Berman, the 2015 TSA, and the 2015 surveillance to terminate Ms. Thoma’s claim.  Dr. Berman “did not explain why he rejected Thoma’s complaints, the opinions of her treating physicians, or the medical literature corroborating her experience,” nor did CIGNA “attempt to reconcile Dr. Berman’s conclusions with LINA’s prior benefit payments to Thoma (which were based on several medical assessments made by LINA) or SSA’s determination that Thoma was incapable of ‘any substantial gainful activity.'”  The 2015 TSA “considered Dr. Berman’s opinion to the exclusion of all other medical evidence.”  With regard to the 2015 surveillance, Ms. Thoma’s “treating physicians … found that these activities are not inconsistent with Thoma’s reported disability.”

Judge Sweet also found fault with CIGNA’s appeal-level review and its reliance on the “paper review” of Dr. Grattan and the appeal-level TSA.  Judge Sweet concluded that Dr. Grattan “offered little by way of substantive analysis, particularly any discussion as to why his opinion differed from the opinion of other evaluators who had previously assessed Thoma’s condition and ability to return to work.”  CIGNA artificially limited the scope of the appeal level TSA, in that it “provided its vocational consultant with Dr. Grattan’s report, [but] did not provide her with Alberigi’s report or the SSA Disability Determination Explanation.”

In contrast, Judge Sweet found that “there is ample evidence in the record that Thoma is entitled to LTD benefits under the Plan.”  This evidence included:

  • Ms. Thoma’s Well-Documented Medical History:  “Thoma has suffered from scoliosis-related health problems for the majority of her life, having had her first correctional surgery at 14 years old and several more after that.  The abnormalities resulting from her condition and surgical history have been documented on multiple occasions by various evaluators….  Medical literature details the impairments associated Thoma’s first surgery, particularly the risk of developing flatback syndrome, and corroborates Thoma’s complaints more generally.”
  • CIGNA’s Own Prior Disability Determinations:  “LINA approved Thoma for disability benefits, after its own medical examinations, several times. The findings in those examinations echo Thoma’s present and past complaints, for example, that she has difficulty sitting for extended periods of time.
  • Social Security’s Disability Determination:  “LINA prompted Thoma to apply for social security benefits, apparently on the presumption that her disability would continue.  The SSA found Thoma’s claims credible and consistent with objective medical evidence, and that she was continuously disabled under Social Security’s rules.”
  • The Unanimous Opinion of Ms. Thoma’s Treating Physicians:  “Both of Thoma’s principal treating physicians have stated that Thoma is disabled from any regular employment. These physicians found Thoma’s complaints to be entirely credible and consistent with her lengthy medical history.”
  • The Vocational Evaluation Report Submitted by Ms. Thoma:  “Alberigi, who has 35 years of experience providing vocational and rehabilitation counseling and who has served as a Vocational Expert for the SSA and Vocational Case Consultant for the DOL, disagreed with several of LINA’s findings. Of particular note, Alberigi found that the TSA was based exclusively on the opinion of Dr. Berman, without consideration of countervailing evidence, and failed to take into account Thoma’s reliance on pain medications.  Additionally, Alberigi found that the TSA improperly calculated the wage data. For these and other reasons, Alberigi concluded that Thoma was disabled under the LTD Plan’s definition of disability.”

In accordance with these rulings, Judge Sweet reinstated Ms. Thoma’s disability claim, ordered CIGNA to pay LTD Plan benefits from May 13, 2016 to the present, awarded pre-judgment interest, and found CIGNA liable to pay Ms. Thoma’s reasonable attorneys’ fees and costs.

Conclusion

Judge Sweet’s opinion is a detailed and thorough vindication of Ms. Thoma’s entitlement to “any occupation” long-term disability benefits under the Fox Long-Term Disability Plan.  It finds fault with CIGNA’s decision-making on both procedural grounds (CIGNA’s failure to provide relevant documentation to its vocational consultants) and substantive grounds (CIGNA’s failure to reconcile inconsistencies in the opinions of its medical consultants, Drs. Berman and Grattan).  We were pleased to achieve this successful result on behalf of Ms. Thoma.

 


 

View or Download Thoma v. Fox Long-Term Disability Plan

For a more detailed legal analysis of Judge Sweet’s decision, see Mr. Wieber’s blog post on the Effect of the Halo Decision on ERISA Disability and Health Benefits.

Mark Scherzer Law :: Short- and Long-Term Disability Lawyers :: Attorney Chris Wieber :: Disability Benefits
New York Long-Term Disability Lawyers (including New York City, Long Island, Hudson Valley, Capital District,
Mohawk Valley, Southern Tier, Western New York, Finger Lakes, Central New York, and North Country)

 


Footnotes

1The Life Insurance Company of North America, or LINA, is a wholly-owned subsidiary of Connecticut General Company.   Connecticut General Company is a wholly-owned subsidiary of CIGNA Holdings, Inc., which, in turn, is a wholly-owned subsidiary of CIGNA Corporation.  Because LINA policies are typically administered under the CIGNA umbrella brand, this case description will refer to CIGNA throughout.

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