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Medical Records

Don’t Let Your Disability Insurer “Cherry Pick” Medical Records

L. Jason Cornell, Esq. Jan. 20, 2023

Disability insurers are typically profit-making enterprises. This means they are “in it for the money.” Yet at the same time, they provide a service that is vitally important – providing insurance coverage for employees who are no longer able to perform their normal duties at work. Insurers turn a profit by earning more in premiums than they pay out on claims.

To protect their profits, insurers sometimes become very selective with the medical records they choose when deciding whether to approve or deny benefits in a long-term disability claim. Meaning, it is common for insurers to rely heavily on medical records potentially suggesting an employee can return to work, while at the same time ignoring records clearly showing the employee’s disability.  Many courts recognize this practice of insurers “cherry picking” and will not hesitate to rule in favor of the employee if the court finds the insurer has abused its discretion.

That was the case in McGuire v. Life Ins. Company of North America, Case. No. SACV 20 01901 CJC, 2022 WL 4368140 (C.D.Cal. Sept. 21, 2022), where the court had to consider whether a disability insurer wrongly denied an employee’s long-term disability claim. The employee in McGuire was a community relations manager for a bank. Several years ago, she was injured on the job when she fell backward, injuring her spine.  Over the years the employee’s pain became so severe that she experienced pain radiating down her right arm and leg.

The employee eventually made a claim against her long-term disability policy with Life Insurance Company of North America (“LINA”).  The insurer reviewed the claim and determined, based on the conclusions of a doctor’s opinion hired by the insurance company, that the employee was not functionally limited.  The doctor never examined the employee but instead rendered his decision based on a review of the employee’s medical records.

The employee ultimately sued her insurer in federal court. The issue for the court to decide was whether the insurer abused its discretion in denying the employee’s disability claim.  The court issued a seven-page decision explaining why the insurer made the wrong decision. As the court explained, “LINA’s reliance on negative EMG results ignores the plethora of other objective evidence from, for example, x-rays and MRI’s, that confirm [the employee’s] subjective complaints of pain.” 

The judge was not done calling out the insurer’s decision to cherry pick medical records. The court considered the insurer’s basis for denial that the employee walked normally and did not take pain medication on a regular basis. Having none of this, the court explained “these grounds are at best replete with half-truths and in any event are neither here nor there.” The court concluded, noting the insurer “cherry picks a remark” from one of the employee’s doctors, that the employee should have been able to continue working.

The takeaway from McGuire is simple. Don’t let an insurer get away with selecting only those records and medical evidence that favors a denial. Create a full record showing all the evidence supporting the disability. When the insurer tries to deny a claim based on selective evidence, the employee has the option, after exhausting all administrative remedies, to sue the insurer and show the court how they abused its discretion in rendering a denial.