John B. Dupree, Attorney at Law

Knoxville Lawyer for ERISA Relief

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713 Market Street

2nd Floor - Cate Building

Knoxville, TN 37902


Life Insurance – Sometimes it Kicks a Man When He is Down

Wednesday, July 13th, 2016 | Uncategorized | No Comments


Sometimes life insurance companies deny a claim because it alleges that it did not receive a premium payment, sent a cancellation notice and received no response. But what if an insured goes into the hospital with an extended illness and cannot physically or mentally respond to cancellation notices sent to the home address? What if the insured has not given a power of attorney to someone else to handle his affairs if he becomes ill? Isn’t this a likely situation as folks grow older? Perhaps the life insurance companies know this and rely upon this as a way to deny claims.

Tennessee and many other jurisdictions follow a common law presumption that a letter has been received, provided it was enclosed in a envelope, correctly addressed and stamped, and placed in the mail. Wilson v. Blount County, 207 S.W.3d 741, 749 n. 2 (Tenn.2006) (citing Warmath v. Payne, 3 S.W.3d 487, 492 (Tenn.Ct.App. 1999)). A creditor is not “forced to take responsibility for lost mail or the debtor’s refusal to accept properly delivered mail.” R & J of Tenn., Inc. v. Blankenship-Melton Real Estate, Inc., 166 S.W.3d 195, 204 (Tenn.Ct.App.2004); Griffin v. General Accident Fire and Life, 94 Ohio App.403, 410 (1953); Simpson v.Jefferson Standard Life Insurance Co., 465 F.2d 1320,1323 (6th Cir. 1972).

But this presumption may be rebutted, and a question of fact created, if there is testimony the insured did not receive the notice.

We represented a client beneficiary once who filed a claim with a life insurance company but the claim was denied because the insurance company asserted that it mailed a cancellation letter to the insured – but the insured was in the hospital in a very bad condition at the time of the alleged mailing.  The insured was not at his house to receive the notice and his daughter stated that she never saw such a letter arrive at the home.  During litigation, the insurance company filed a motion to dismiss asserting that its normal protocol was to mail such notices.  However, the claimed notice was nowhere to be found in the claim file.  We brought this to the attention of the court and, low and behold, the insurance company found the letter!

So we asked for a digital copy of the letter in its native format so we could determine when the letter was generated.  Interestingly, the life insurance company desired to settle the claim before it had to provide the documentation.  I wonder why?

The point of this post is that if you are a beneficiary, be aware of payments and notices relevant to a life insurance policy.

Life Insurance Companies Can Surprise You Sometimes

Tuesday, July 12th, 2016 | Uncategorized | No Comments

Sometimes – but rarely – a life insurance company will relent and do the right thing because it is the right thing to do – not because it would be legally required to approve a claim or because it is in a pinch. I have seen it happen.

We represented a lady who came to us because her husband had been killed in a freak skydiving accident and the life insurance company had denied the claim. The reason it was denied was because the policy contained an exclusion for those killed in an airplane related accident. After unfruitful negotiations, we filed suit and, much to our surprise, the life insurance company called us the day after they were served with process and stated that they were going to pay the claim. And they did pay.

When the client first came to our office, we were convinced that we would have to take the case all the way to the Tennessee Supreme Court due to the circumstances of the death and the aforementioned exclusion. However, I suppose luck intervened and our client was able to close that chapter of her life shortly thereafter.

Perhaps your case looks hopeless – but maybe there is a way to overcome the denial. We would be happy to take a look at your case to determine if there is an avenue of recovery.

Life Insurance Denial

Tuesday, July 12th, 2016 | Uncategorized | No Comments

Has a life insurance company denied your claim? The last thing that you need in a time when a loved one has passed away is a hassle from an insurance company. There are always unexpected bills and, with all of the other things that you have going on and matters you have to handle now, how are you going to work and do it all? Life insurance is supposed to help you through.

But the first think that a life insurance company will do upon the filing of a claim is look to see if there is an exclusion that applies to the claim. Basically, they are looking for a way NOT to pay a claim. They NEVER look for a way to pay a claim.

Now, the adjuster is human – they have family just like you and me. They live in a community, go to church, go to the store, have kids etc… – so it sounds like you can trust these folks. If they were not working for an insurance company as an adjuster, that would be true. However, THEY HAVE A JOB TO DO AND IT IS NOT TO HELP YOU. They make their living determining whether to pay claims or not – and they are looking as hard as they can for any facts supporting a denial.

So keep that in mind when you are faced with making a life insurance claim. Also, let us know if we can help you with the process. We have negotiated and dealt with insurance companies for years and we would be happy to assist you with the claim.

Top 5 Reasons Life Insurance Claims Are Denied

Tuesday, December 11th, 2012 | Uncategorized | No Comments

1) Proof of loss was not timely made. When an insured dies, there are usually time limits within which to file claim the benefits under the policy. Usually, the time limit is a “reasonable” time but the general idea is that the insurance company should have the time to investigate the death thoroughly to see if it can weasel out of paying the claim. If too much time passes, the insurance company might be suffer “prejudice” and might not be able to find a way out. So, make sure the claim is opened as soon as possible after the insured passes away.

2) The insured never changed the beneficiary designation on the life insurance documents. Usually this involves two potential beneficiaries (most of the time it is a wife – ex-wife or wife – girlfriend dispute). I have had situations where the insured filled out the form but never submitted it to the insurance company so the beneficiary did not change. I have had situations where the insured did not complete the form in the correct way thus leading to a dispute. Typically, the insurance company is caught in between and files the money with the court and lets the potential beneficiaries fight it out in litigation. One thing that some folks don’t know is that in Tennessee, there is no common law marriage. You have to have the ceremony and paper to complete the deal. So if the beneficiary is listed as a spouse, be advised that you need to get formally hitched in order to qualify as a spouse.

3) The death did not arise out of an “accident.” From time to time, a potential client will come to the office with a claim that has been denied because the death did not arise out of an accident as defined under the policy. It may be that the insured passed away because of a one-car wreck and alcohol was found in his blood. Or, perhaps there was an unfortunate suicide. But don’t give up hope, just because an insurance company says it is not a “accident” doesn’t mean it is not an accident. You have to have all of the facts and the policy to know for sure.

4) Some exclusion allegedly applies. Let’s face it, the “Exclusions” portion of a typical insurance policy is usually 10 times bigger than the “Insuring Clause” portion of a policy. It’s like those pharmaceutical commercials on TV that tell you how great this drug is and show an actor gathering flowers in a field and having a great time but the voice over is blabbing on about all the bad things that can happen if you take the drug. But as I stated above, don’t give up hope – insurance companies have been found wrong many times before and they will continue to misinterpret (ie.- intentionally read the policy in the wrong way) policies in the future.

5) Some definition is used to deny the claim. Ever really looked at the “Definitions” section of a policy? Each one is a way for the insurance company to get out of paying a claim. Excuses prevail like: He wasn’t an “employee,” He wasn’t and “insured,” He didn’t satisfy the requirements of “(fill in the blank here with just about anything). Insurance companies will do absolutely everything they can to avoid paying claims. It’s not fair and you should pursue the claim to its end.

Don’t let a denial phase you. Give us a call or send us an email and we will take a look at the claim to determine if there is any way to help. If there is, we’ll tell you. If there isn’t, we’ll tell you that too. Either way, you have an answer.

Here’s a Copy of Our Final Submission in Mr. Gupton’s Case. Prudential Still Denied.

Wednesday, April 4th, 2012 | Uncategorized | 2 Comments

Meredith Formon
Appeals Specialist
Prudential Insurance Company of America
Disability Management Services
P.O. Box 13480
Philadelphia, P.A. 19176


Re: Control Number: 41113
Claim Number: 11094912
Plan Holder: Dealertrak
My Client: Steven L. Gupton
Date of Birth:

Dear Ms. Formon:

I am in receipt of your November 23, 2011 correspondence with regard to your extension of time. In that regard, I would like to clarify for the record what happened with Dr. Mazzeo. First, your hired third-party expert finding service scheduled the initial appointment without first consulting with Mr. Gupton relative to his schedule. We advised your office and Dr. Mazzeo’s office that Mr. Gupton could not go to the evaluation on that day. Further, it was not just a trip across town. Dr. Mazzeo’s office is in Beaufort, South Carolina. Mr. Gupton lives in Mount Pleasant, South Carolina. The trip is 75 miles one way.

In support of our appeal, we submit the following:

Exhibit 1 – A disability evaluation by Results Physiotherapy confirming that the restrictions and limitations set by Dr. Jacques and Dr. Houser are reasonable and appropriate.

Exhibit 2 – A Physician’s Permanent Restriction/Limitation Sheet signed by Mr. Gupton’s new treating doctor, Robert Locklear, M.D.. In addition to assigning restrictions and limitations, Dr. Locklear opined that Mr. Gupton cannot work at any employment due to a degenerative neurological condition, not a mental condition. Be advised that Dr. Locklear is board certified in both internal medicine and sleep medicine. I attach his profile for your records. These restrictions and limitations preclude Mr. Gupton from even sedentary employment.

Exhibit 3 – Fourteen (14) statements of people who know Mr. Gupton and knew him before he was forced to stop employment. These statements show that Mr. Gupton was not suffering from the symptoms commonly associated with a bi-polar condition prior to his disability. Of course, Mr. Gupton continues to treat with physicians who opine that he has sustained a degenerative neurological condition. Feel free to have any or all of your consultants contact any of these witnesses. In addition, I attach a well-supported article relevant to bi-polar disorder and the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). As you can see from this article, bi-polar disorder is characterized by cycles of manic episodes, normalcy, then depressive episodes. Mr. Gupton’s medical history does not reflect such a cyclical pattern.

Exhibit 4 – Copies of the Restriction forms signed by Dr. Jacques and Dr. Houser.

Exhibit 5 – Another copy of the report of Dr. Houser and his CV. This report shows that Mr. Gupton is not suffering from a mental condition but is suffering from a degenerative neurological condition.

Exhibit 6 – Another copy of vocational expert Michael Galloway’s report setting forth the specific details about why Mr. Gupton is totally disabled.

Exhibit 7 – An O*Net Online “Details Report” for 11-2022.00 – Sales Managers. As Prudential is aware, the O*NET program is the nation’s primary source of occupational information. O*NET is being developed under the sponsorship of the US Department of Labor/Employment and Training Administration (USDOL/ETA). A cursory review of theses job duties in this type of employment shows that Mr. Gupton cannot perform this occupation.

Exhibit 8 – Documents from the Social Security Administration file for Mr. Gupton. Therein you will find Mr. Gupton’s wage history. As you will see, Mr. Gupton made $71,708.79 in 2007, $76,898.92 in 2008 and had already made $30,346.17 in the first five months of 2008. Since the inception of his disability, he has struggled to pay his bills and has had to seek help from his friends and family. His only source of income since Prudential’s denial has been Social Security – which amounts to $1,284.00 per month. Even if Prudential was paying the benefit, Mr. Gupton would only clear $4,015.91 per month – slightly more than half annually of what he was on track to earn at Dealertrak in 2008. Hence, there is absolutely no financial incentive for Mr. Gupton to seek disability.

Exhibit 9 – A Wikipedia article, which appears to be well-supported, explaining in great detail the symptoms, prognosis, diagnosis, treatment and histopathology of Multiple System Atrophy (MSA), the condition from which Mr. Gupton’s neurological difficulties most likely arise. I also attach a Review Article from the ACNR – a bi-monthly journal for neurology. Further, I attach a Medscape article from March, 2010. I include this information because one of your consultants, Dr. Richard Day, noted that there is specific criteria to make the diagnosis of MSA including “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures.” Dr. Day also noted that, “This information is not in the medical records reviewed. Because of this lack of information the criteria for this condition is not met.” These articles point out that confirming the presence of the aforementioned inclusions and structures is made through post-mortem examination of brain tissue. Although we do not have this information yet, I am fairly certain that we will be able to provide this information sometime in the future. Nevertheless, even if this information could be gathered when the patient is still alive via biopsy, this type of invasive procedure is not compulsory under the law or the Plan – especially if the procedure would be for the purpose of diagnosis only instead of treatment. See Royal Free Hampstead “Information for Patients Having a Brain Biopsy” ; Dockery v. USG Corp. Retir. Plan, No. 08-13249, 2009 WL 2960471 (E.D. Mich., Sept. 11, 2009); Heller v. Equitable Life Ass., 833 F.2d 1253 (7th Cir., 1987).

Exhibit 10 – The opinion and an exhibit from Mullins v. Prudential, No. 3:09-CV-00371-S, 2011 WL 2295265 (W.D. Ky., June 8, 2011). Specifically, the exhibit is a MES Solutions “Peer Review Services Overview.” Prudential has used MES Solutions in this case, therefore such an overview is relevant. Furthermore, attached are several exhibits from Testa v. Hartford Life Ins. Co., No. 08-cv-816(FB)(RER), 2011 WL 795055 (E.D. New York, March 1, 2011). These exhibits reflect upon MES’ relationship with its insurers and shows a report of Dr. Topper, one of Prudential’s consultants in this case.

Exhibit 11 – PsyBar documents including an online article entitled, “Top 10 Reasons to use PsyBar to provide IMEs,” a summary of PsyBar Video presentations found on its website, a “Abbreviated PsyBar LLC IME Evaluation Interview Outline”(please note that page three of this outline provides that raw scores will be set forth in the body of the report or as an attachment), a PsyBar “IME/Treating Doctor Report Critique Referral Form,” the “For Insurers” section found on the homepage of PsyBar’s website, a PsyBar “Independent Contractor Agreement,” a PsyBar “Expert Questionnaire; Practice Particulars” form, and the “Report Critique Services from PsyBar,” section found on the homepage of PsyBar’s
website. Finally, attached are two screenshots of a PsyBar power-point type presentation showing that PsyBar rates the reports of its panelist consultants. PsyBar was used by Prudential in this case, therefore this information is certainly relevant.

Exhibit 12 – With regard to MLS Group of Companies, which assisted Prudential in finding its consultants, I attach the following case law: Carroll v. Prudential Ins. Co. of Am., No. 2:08-cv-737, 2010 WL 3070187 (S.D. Ohio, Aug. 5, 2010); Barteau v. Prudential Ins. Co. of Am., No. CV08-02733 RSWL (FMOx), 2009 WL 1505193 (C.D. Cal., May 26, 2009); Hall v. MLS National Medical Evaluations, Inc., No. 05-185-JBC, 2008 WL 130845 (E.D. Ky., Jan. 9, 2008); Hall v. MLS National Medical Evaluations, Inc., No. 05-185-JBC, 2006 WL 2873174 (E.D. Ky., Oct. 5, 2006)(Exhibit C to Motion also attached); MLS National Medical Eval. Services, Inc. v. Templin, No. 08-11653, 2008 WL 2704672 (E.D. Mich., July 9, 2008). I also attach herewith the deposition of G. Joseph Schimizzi, one of the owners and operators of MLS, which is located in Southfield, Michigan. Further, I attach Secretary of State records for several MLS business entities. With regard to this deposition, Joseph Schimizzi confirmed that his father, Tony Schimizzi, is the owner of Medicolegal Services, Inc. – a company located in Southfield, Michigan that arranges IME’s within the state. (Medicolegal Services has operated under the assumed name MLS National Medical Evaluation Services in Michigan. MLS National Medical Evaluation Services is also an assumed name for The MLS Group of Companies, Inc. – which is incorporated in Texas but is located in Southfield, Michigan). Further, I attach screen shots from the Disability Management Employer Coalition (DMEC) website showing that Denise Pretzer-Zucker sits on the Board of DMEC as an officer/chair. Ms. Pretzer-Zuckerberg is an employee of the Schimizzi owned Medicolegal Services, Inc.. Prudential is listed as a National Sponsor for DMEC. How can MLS be truly independent under these circumstances? Ms. Pretzer-Zuckerberg’s resumé (attached) states that while she worked for MLS, her duties would be “Market and selling independent medical examinations for corporations associated in the insurance industry.”

In addition to the foregoing, attached are screenshots from the website of MLS explaining the details of a secure system called eC@se Manager. According to this information, eC@se Manager is a web application program that allows claims professionals secured on-line access to track status of cases and “Supervisory/Management access to all cases.” MLS simply cannot be “independent” under these circumstances

Exhibit 13 – With regard to Prudential’s medical director, Dr. Richard Day, I attach the following case law in which Dr. Day’s opinions are discussed: Kuhn v. Prudential Ins. Co. of Am., 551 F.Supp 2d 413 (E. D. Pa., 2008); Nicolas v. MCI Health & Welfare Plan No. 501, No. 2:05-cv-442 (TJW), 2008 WL 4533728 (E. D. Tex., Sept. 29, 2008); Slupinski v. First Unum Life Ins. Co., 554 F.3d 38 (2d Cir., 2009); Besser v. Prudential Ins. Co. of Am., No. 07-00437 BMK, 2009 WL 2045695 (D. Hawaii, July 13, 2009); Pettway v. Prudential Ins. Co. of Am., No. 5:08-cv-283 KS-MTP, 2009 WL 2973393
(Sept. 11, 2009); Porco v. Prudential Ins. Co. of Am., 682 F.Supp.2d 1057 (C.D. Cal., 2010).
It appears that the courts will not hesitate to call his opinions in to question.

Exhibit 14 – With regard to Prudential’s consultant, Dr. Melvyn Attfield, I attach the following case law in which Dr. Attfield’s opinion is discussed: Pfluger v. U.S. Group Long-Term Disability Ins. Plan No. 505, No. 03-c-0710, 2007 WL 130193 (E.D. Wis., Jan. 16, 2007)(Attfield’s opinion fraught with qualifications and inconsistencies).

Exhibit 15 – With regard to Prudential’s consultant, Dr. Leonid Topper, Prudential submitted his curriculum vitae with what it has sent to me thus far(attached). Without question, his expertise is in pediatric neurology. Attached are several court opinions in which the opinion of Dr. Topper have been called into question. This includes Manriquez v. Abbott Laboratories Ext. Disab. Plan, No. CV-09-00099-PHX-GMS, 2010 WL 3023260 (D. Ariz., July 30, 2010); Pauley v. Hartford Life and Accident Insurance, No. 2:09-cv-00896, 2010 WL 2836746 (S.D. W. Va., July 20, 2010); Testa v. Hartford Life Ins. Co., No. 08-cv-816(FB)(RER), 2011 WL 795055 (E.D. New York, March 1, 2011); Langston v. North Am. Asset Dev. Corp., No. C 08-02560 SI, 2009 WL 941763 (N.D. Cal., April 6, 2009); Finley v. Hartford Life & Acc. Ins. Co., No. C 06-06247 CW, 2009 WL 3517648 (N.D. Cal., Oct. 26, 2009).

Exhibit 16 – A copy of a Motion for Contempt filed against Prudential in Grams v. American Medical Instruments et al, No. 3:08-cv-1060, (M.D. Fla., Oct. 6, 2008. Exhibit A to this motion shows that Prudential has produced copies of its Group Disability Memos, Best Practices Memos and portions of its DMS Training Manuals. This Exhibit also shows that Prudential has produced servicing agreements with third parties concerning outside medical reviews.

Exhibit 17 – Prudential’s response to Interrogatories and Requests for Production in Myers v. The Prudential Ins. Co. of Am., No. 3:09-cv-00371 (E.D. Tn., March 7, 2009). This document shows that Prudential can and does keep track of the reviews that a particular physician performs for its claims. Further, the document shows that Prudential can disclose how many reviews its third parties have performed in a particular time-frame and how much Prudential has paid to these third parties. The document also shows that Prudential can find and produce other documentation related to a disability claim such as Mr. Gupton’s.

The foregoing is all of the information that we will be submitting for this matter(480 pages total with this package). Prudential should now have a digital video recording of a neurological exam by one of Mr. Gupton’s treating physicians, Dr. Jacques. Interestingly, your consultant rejected the observable results of this exam by either misrepresenting the contents of the exam or simply failing to review the video. I specifically showed how in my April 29, 2011 correspondence. You also have Mr. Gupton’s video statement and Social Security wage records that show there is no reason to malinger and no incentive to seek disability. These records also show that Social Security awarded benefits to Mr. Gupton on the first application, with no attorney assistance and for cerebral degeneration. Prudential has 21 witness statements attesting to Mr. Gupton’s total disability. Prudential has 14 witness statements that support the diagnosis of a neurological condition instead of a mental condition. You have two treating physicians and an evaluating psychiatrist that have assigned restrictions and limitations that preclude Mr. Gupton from pursuing even sedentary employment. You have a physical capacity examination that supports these restrictions. You have the vocational report of Michael Galloway attesting to the specifics of Mr. Gupton’s vocational disability. Your own neurologist, Dr. Dew, found that Mr. Gupton had cognitive impairment. Your own neuropsychologist, Robert Moss, Ph.D., did not rule out multiple system atrophy. The remainder of your consultants and third-party administrators have serious bias issues or are simply unqualified to render an opinion in this case. Therefore, we request that Prudential overturn its decision and award benefits in this matter.


John B. Dupree


Here’s the Referenced Pages from the Prudential Denial

Wednesday, April 4th, 2012 | Uncategorized | No Comments

The consultant calls Mr. Gupton’s condition a “somatoform disorder” or a “conversion reaction.” Somatoform disorder is mental condition that causes physical symptoms. Conversion reaction is also mental – but a true conversion reaction is rare. Incidence has been reported to be 11-300 cases per 100,000 people. Conversion disorder may present at any age but is rare in children younger than 10 years or in persons older than 35 years. Sex ratio is not known although it has been estimated that women patients outnumber men by 6:1.

Prudential’s Denial


Did Prudential Hire a Blind Guy to Review a Video Evaluation?

Wednesday, April 4th, 2012 | Uncategorized | 2 Comments

I represent a man named Steve Gupton (Mr. Gupton has given me permission to post this). Mr. Gupton’s physicians believe that he has a neurological condition called Multiple System Atrophy (MSA). MSA is a degenerative neurological disorder associated with the degeneration of nerve cells in specific areas of the brain. This cell degeneration causes problems with movement, balance and other autonomic functions of the body such as bladder control or blood pressure regulation.

Mr. Gupton filed a claim for long term disability with Prudential. Prudential then engaged in the usual tactic of asserting that his condition is mental and is thus limited by the terms of the policy to only two years of benefits. In my opinion, Prudential does not want to pay this claim because Mr. Gupton is relatively young and his monthly benefit would be significant.

Prior to his disability, Mr. Gupton was making nearly $80,000.00 per year as a salesman – living independently in Greene County, Tennessee. Now Mr. Gupton has moved in to live with his mother in South Carolina and receives Social Security disability benefits. Mr. Gupton applied for, and received, Social Security disability on the first try without the assistance of an attorney.

Prudential has gone to great lengths to deny Mr. Gupton’s claim. It paid a neuropsychologist $4,500.00 for a report that said Mr. Gupton was faking his condition and symptoms. It hired private investigators to stake out Mr. Gupton’s house. Mr. Gupton believes that they are still watching his mother’s house as I type this today.

But to the blindness thing. This posting is for the purpose of showing anyone who comes to this site, including the general public, the truth about Prudential’s behavior in Mr. Gupton’s claim.

Prudential has ignored a landslide of support for Mr. Gupton’s neurological disability. For example, as part of our proof, we submitted a video-taped neurological evaluation performed voluntarily and without charge by Mr. Gupton’s treating neurologist – Dr. Jacques. On February 23, 2011, Prudential sent a denial letter for the claim relying upon the opinion of its medical “file reviewer.” I’ll not pull punches here – Prudential’s consultant should not practice medicine on any human or animal if his observations related to the video evaluation are truly reflected in the denial letter. You make the call.

Here are some direct quotes from the denial letter, our response and the relevant clip from the video evaluation.


-On page 8, third paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“Dr. Jacques asked Mr. Gupton to touch his nose with the pointer finger. . . . Mr. Gupton was able to touch the tip of his nose very precisely on the first attempt with the right hand, and on the second attempt with the left hand.”


Viewing the video at the 2:00 – 2:10, Mr. Gupton was all over the place with his fingers before “precisely” landing on the end of his nose.

\"Precise\" Nose Touching?


-On page 8, fourth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“. . . Then Mr. Gupton performed finger to nose to finger maneuver, fine motor finger tapping of both upper extremities, and rubbing his heel up and down his shin. All these maneuvers were performed with significant tremor of both upper extremities and both lower extremities but the heel rubbing over the shin was fairly precise. . . .”


While the Prudential consultant seemed to notice tremor, we vehemently disagreed that anything about the testing was “precise.” Observing these tests on the video from 2:20-3:27, if that heel rubbing can be called “precise,” I guess “imprecise” would be closer to an all out seizure. Mr. Gupton’s heel rubbing is anything but exact and sharply defined.

Precise Shin Rubbing?


-On page 8, fourth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“. . . Then Mr. Gupton was asked to walk on a straight line, heel to toe. The camera did not show the whole body but demonstrated only the feet which were placed fairly precisely on the line. . . .”


Again with the “precisely” wording. How about the stumble before it all started? How about Dr. Jacques holding his arm the whole time? This test can be observed from 3:30 – 3:56 on the video.

Precise Line Walking?


-On page 8, sixth paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“Mr. Gupton was able to stick out his tongue, feel light touch in all three trigeminal branches on both sides, was able to close his eyes tight, and to shrug his shoulders symmetrically. . . .”


I am not sure what this statement is intended to convey but Dr. Jacques had to tell Mr. Gupton to keep his tongue hanging out. She also had to tell him to put his shoulders back down. These tests can be found at 5:28-6:04.

Huh? Is Mr. Gupton Doing Good Prudential?


-On page 9, first full paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“. . . He knew that if a person stands on a cliff he would grab him. While answering this question, Mr. Gupton’s tremor decreased substantially. . . .”


First, it took ten seconds for Mr. Gupton to come up with that answer. From 10:39-10:49 on that video. Second, of course you would not observe shaking during this time period (10:19-10:49) because Mr. Gupton was sitting down, because his left hand was resting in his lap and because his right elbow was resting on the examination table and his right hand was almost constantly glued to his face. HOWEVER, it can be clearly observed that at 10:21 and 10:24, Mr. Gupton’s right hand and pointer finger were shaking.

This is a cliff hanger


-On page 9, second full paragraph, the denial letter sets forth the observation of Prudential’s “file reviewer:”

“Mr. Gupton was able to show how to squeeze toothpaste on a toothbrush and started showing how to brush his teeth but showed how to brush using his finger and not the toothbrush. Dr. Jacques inquired if Mr. Gupton does have trouble brushing his teeth since his hands experience shaking problems. He answered “yes” to this leading question.”


First, thankfully Mr. Gupton did not have a real toothbrush and toothpaste. He might have trashed the examination room. Mr. Gupton’s pretend teeth brushing can be observed at 9:41 – 10:16.

To Prudential: Gingivitis is the number one cause of tooth decay

But never mind about this trifling visual proof, how about scientific support for Mr. Gupton’s MSA diagnosis? Prudential’s Medical Director, Dr. Richard Day, noted that there is specific criteria to make the diagnosis of MSA including “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures.” Dr. Day also noted that, “This information is not in the medical records reviewed. Because of this lack of information the criteria for this condition is not met.” Thus the claim was denied. The only problem is that you can only get “neuropathic demonstration of CNS alpha-synuclein-positive glial cytoplasmic inclusions with neurodegenerative changes in striatonigral or olivopontocerebellar structures” THROUGH POST MORTEM HARVESTING FROM THE BRAIN! But you would be dead and the policy says that’s when benefits stop so you lose any way!

Behold what you are in for if you file a disability claim with Prudential! If you want to know more of the story, read the final submission letter I sent to Prudential included in this blog. If you want the complete picture, wait a few months after this post and check the Pacer system in the federal courts for the administrative record. By then, the case will have been removed by Prudential lawyers from pesky state court to the federal court.

If you want to know, here are some of Prudential’s paid external and internal medical advocates in Mr. Gupton’s case:

Dr. Leonid Topper

Dr. Richard Day

Dr. Melvyn Attfield

Robert Moss, Ph. D.

Dr. Charles S. Jervey


Little Known Facts About Insurance Companies

Thursday, May 12th, 2011 | Uncategorized | No Comments

1) Dead people usually qualify for disability benefits. Anything short of death and they can find a job for you.

2) Apparently insurance companies are in the hardwood flooring business. You can’t watch a basketball game without seeing an insurance logo emblazoned on the court.

3) The Hartford elk is really just two kids in one of those double-guy costumes. It looks more realistic now that they moved the horns to the head instead of the rear-end.

4) The Geico gecko is really just a baby komodo dragon.

5) MetLife’s first cartoon front man was Pigpen, not Snoopy.

6) The CIGNA logo, while apparently representing a benign tree, actually represents a many-headed hydra. Hydra (“water serpent”) is the name of the Lernaean Hydra, a many-headed serpent in Greek mythology. The Hydra had the body of a serpent and many heads (the number of heads deviates from five up to one hundred there are many versions but generally nine is accepted as standard), of which one could never be harmed by any weapon, and if any of the other heads were severed another would grow in its place (in some versions two would grow). Also the stench from the Hydra’s breath was enough to kill man or beast. When it emerged from the swamp it would attack herds of cattle and local villagers, devouring them with its numerous heads. It totally terrorized the vicinity for many years. Nowadays it just emerges when you file a claim, stinks up the place and then starts denying claims.

7) The AFLAC duck moonlights as one of their panel physicians.

8) SunLife is known risk for skin cancer.

9) If you look real close, the Mutual of Omaha Indian is a real sourpuss.

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Top 5 Things to Remember About Disability Claims

Wednesday, May 11th, 2011 | Quick Pointers | No Comments

If you have filed a disability claim with an insurance company, here is what some disability attorneys would say are generally the most important things to remember:

1) Know What You Have to Show to Get Your Benefits.

If you don’t have a copy of your policy or summary plan description, you will not know what you have to show in order to be eligible for benefits. Also, you will not know what exclusions and limitations might be problematic for your claim. If you do not have a copy, go get your policy from the insurance company or your employer.

2) Check the Insurance Company Calculations.

Sometimes the insurance company will miscalculate the benefit that is due under the policy. Look at the policy and make sure they did it right. You also might have to obtain some of your pay records in order to be sure that the underlying numbers are correct. I once found a claim that had been miscalculated to the tune of an extra $1,000.00 per month.

3) The Less You Can See of Your Medical Condition, the Harder It is to Get Your Benefits.

I once had an old insurance defense attorney tell me, “I pay for blood and broken bones.” What he was telling me was that insurance companies like to be able to “see” the injury. Over time, adjusters and others in the insurance industry become cynical because sometimes claimants exaggerate their injuries, or are dishonest about pre-existing conditions or just make up an injury and make a claim for the resulting alleged pain. So it is a lot easier for an adjuster show that a correct claim decision was made if he or she can point to an MRI, or refer to a blood test or show some other objective test that leaves no question about the nature of the disability. From time to time, an independent auditing company will come in and review the claim files to make sure that everything is going the way it should with the claims. This auditing company will be paid a lot of money to perform this service. Now, how do you think the paying client would react if the auditing company failed to find anything wrong with the claim files? These auditing companies feel that they need to justify their existence – so even if the claims are adjusted correctly, they are going to find SOMETHING. Quite naturally, when the auditing company is looking for a scapegoat to justify its existence, this makes adjusters and their supervisors a little nervous. Hence, medical conditions that cannot be seen will be under more scrutiny. This does not mean that the condition is not real, it just means that the adjuster will look at it harder.

4) You Are Either Disabled or Not. Period.

There is no such thing as “halfway” disabled under your normal disability policy. Of course, there is always a “partial disability” benefit, but I have never seen an insurance company pay such benefits. Someone may be out there collecting these benefits, but I have never seen it happen. From what I have seen, if you can raise your head off of a pillow, you can work a full time job according to the insurance companies. So, in my opinion, a disability claimant needs to sit down with his or her family and consider whether there is any meaningful employment that can be performed by the claimant. If not, then perhaps it is time to make a claim for total disability. Most disabled claimants want to work but simply cannot given their medical conditions. If that is the case, then make a claim for the benefits that you are due.

5) Remember That Insurance Companies Have No Soul.

No matter how many commercials you see that might that try to convince you that an insurance company is such a cuddly and nice entity, it is still a COMPANY. It has a fiduciary obligation to its investors to maximize its profits. That means getting premiums and not paying claims. You’re not in good hands and you won’t have a good neighbor.

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Scrapping with the Insurance Companies Takes Time

Friday, February 6th, 2009 | Uncategorized | No Comments

I have not posted for some time now for a simple reason – I’ve been into an intense period of litigation in my cases.  I was recently reviewing the blog of a law professor and noticed that he was posting about 4 or 5 items per day.  That’s fine for an academic.  However, for those of us out in the streets, it is almost an impossibility.  But that does not mean we litigators are not doing our part.  Since Obama was elected, I sent my previously posted letter to the Department of Labor for a second time.  I mentioned in my cover letter that I sent the same letter to the Department during the tenure of the Bush Administration – I never heard a peep.  Hopefully, the Obama Administration will hear my appeal.  Claimants need help now.  I will promptly report when and if I receive some reply from the Department

For your general information, I typically file my disability cases in state court.  There are two reasons:  First, usually the filing fee in state court is much lower (in Knox County, Tennessee, the filing fee in Chancery Court was $57.00 until this past summer; now it is about $125 or so; filing in the Eastern District of Tennessee costs $350.00!) and because I believe that the state courts may be more sympathetic to a claimant’s case than the federal courts.  In almost every case, the insurance company removes the case from state court to federal court pursuant to the ERISA statutes.  While it is appropriate to file in state court, it is also appropriate to remove the case to federal court (although I do not agree with the premise that the federal courts are more prepared to handle these cases).  But why would the insurance companies want the case in federal court?  Hmmmmmm……   At any rate, in a recent case the insurance lawyers did not remove the case.  Hence, I am excited to be able to litigate in a state court and I have been preparing a host of different pleadings in the case.

On another note, keep an eye peeled for Edwards v. Cigna/Lina here in the Eastern District.  This case is ripe for decision and I just pray that Mr. Edwards prevails.

For claimants reading this blog – here’s a few things to keep in mind:  I have represented insurance companies in the past – that’s how I cut my teeth in the legal profession.  What I learned is that insurance companies aren’t in the business of paying claims, they are in the business of denying claims.  How do I know?  Because I was regularly hired by insurance companies to take a look at files – evaluate the facts, review the policy and determine if there was any way to deny the claim.  I was expected to find a way to get it done for the insurance company.  So, make no mistake – if you have a claim, there are people evaluating whether there is a way to deny your claim.  On the flip side, if you have an claims agent or adjuster who really cares – who listens and doesn’t treat you unfairly – then personally thank them and tell others about your experience so that the company is rewarded for its fairness.

Other things to watch out for:  Don’t let the insurance company just schedule a evaluation without even consulting you to determine if the evaluation comports to your calendar.  It is rude for an insurance company or its agent to just tell you when and where you are to report for the evaluation.  You may be disabled from work, but this doesn’t mean you stop living life – you have appointments too.  Let them know if you have a conflict and make them reschedule.  In addition, don’t let an insurance company back you into a corner and make you decide which of your multiple problems you intend to claim under the disability policy.  If you have a constellation of medical difficulties, you have the right to CLAIM THEM ALL!  Finally, be aware of the limited disabilities in your policy – specifically “self-reported” or mental claims.  These are usually limited to two years of benefits.  So don’t let the insurance company force you into one of those categories if you have disabilities that lie elsewhere.

I will have more tips and gripes later.  Good luck with your claims and hang in there.  John.


John B. Dupree, Attorney at Law

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