Case — continued from Page 72
During the handling of individual disability-insurance claims, defense-mind- ed insurers often try to seed the file with documents that will help it establish a genuine factual or legal dispute later. From day one, most claims are analyzed with an eye towards the defense’s motion for summary judgment or summary adju- dication, should the claim end up in liti- gation. A favorite defense tactic for creat- ing a factual dispute to avoid bad-faith damages is to use biased medical examin- ers and medical record reviewers to rebut the treating physicians’ opinions regard- ing the extent of the claimant’s disability. The insurance company’s medical record reviewers can be either in-house doctors or contracted “peer reviewers” who opine
on the patient’s medical condition and fitness for work without ever having examined him. Often, the insurance company will
supplement this by having the claimant surreptitiously videotaped performing everyday activities. The insurer will then have their in-house medical expert review the video to support its allegation that the non-work activities performed for short periods of time can be extrapolated to create a genuine factual dispute regard- ing the insured’s total disability from his own occupation. But such a dispute is disingenuous, at best, in light of the California definition of “total disability,” which involves the ability to perform with reasonable continuity the substantial and
material acts necessary to pursue one’s usual occupation in the usual and custom- ary way. (Moore, 150 Cal.App.3d at 632.) Further defense tactics often involve
the use of functional-capacity evaluators, vocational-rehabilitation consultants, and financial consultants whose expert opin- ions are lined up to cast reasonable doubt on the claimant’s evidence of disability and proof of earnings loss. Any number of these bad-faith tactics, in combination, is used in almost every individual disabili- ty insurance claim. For example, in Hubka v. Paul Revere Life Insurance Co. (S.D. Cal. 2002) 215
F.Supp.2d 1089, the insurance company unsuccessfully attempted to show a genuine factual dispute existed based on an Independent Medical Examination, a medical review by its in- house expert, surveillance reports and videotapes. Medical, vocational and financial
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expert reports serve two purposes for the defense: to show the insurer’s efforts to investigate the claim before denial, and to rebut the claimant’s evidence of disability, thereby creating a genuine dispute. But these tactics can be overcome by pointing out that such investigative methods are neither fair nor thorough, and by highlighting facts that were ignored by the biased experts in reaching their conclusions. Frank N. Darras is the founding partner
of Darras Law, the nation’s largest disability insurance practice. He is A-V Rated and has been honored as one of the Outstanding Lawyers in America, Best Lawyers in America, Top Lawyers in America by Corporate America, and Top 100 Trial Lawyers by American Association of Justice. Susan B. Grabarsky is a senior litigation
attorney at Darras Law in Ontario. She repre- sents individual and group policyholders in health and disability insurance bad-faith actions. Prior to becoming a lawyer, she worked in claims as a cost-containment analyst for major insurance companies and large self- insured employers in California. She is a fre- quent speaker on ERISA, insurance bad faith, and disability law topics.
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