Graham Harrison, suffered from Tourette Syndrome which prevented him from working on a full time basis.  He applied for partial disability benefits under a disability insurance policy his employer had with Prudential Insurance Company of America.  His treating physician, a neurologist and specialist in Tourette Syndrome had recommended that he consider reducing his work schedule to less than full time to accommodate his condition which have led to chronic anxiety, a disrupted sleep pattern and agitation.  His doctor felt that a four day work week with a mid week break would benefit him immensely.

Prudential denied the request for benefits.  Prudential's position was that since he had suffered Tourette's Syndrome for many years his records did not document a significant recent change that would warrant a change in his work patterns.  Prudential also felt that if he could work four days there was no reason that he could not work five days in a week.

At first Prudential relied on the opinion of its "medical director", Jill C. Fallon, M.D., a doctor who was Board Certified in occupational medicine but had absolutely no expertise in neurology or Tourette's Syndrome.  This doctor did not even examine the claimant.

Prudential also looked at the wrong definition of disability in denying the claim.

Mr. Harrison appealed the denial of benefits and included additional reports from his well qualified physicians.  On appeal, Prudential showed the file this time to Albert Kowalski, M.D. another one of its employed physicians.  Not only did Dr. Kowalski not have Board Certifications in neurology or psychiatry, he had absolutely no experience in the treatment of Tourette Syndrome and indeed had not had any clinical practice since 1987.  Dr. Kowalski did not examine the claimant.  Despite the lack of qualifications and any current experience in actually seeing patients, Dr. Kowalski was of the opinion that the claimant's condition should have improved over time.

On the basis of Dr. Kowalski's opinion, Prudential denied the claim.  In denying the appeal Prudential once again quoted the wrong definition of disability.  The plaintiff again appealed and this time consulted with yet another expert in Tourette Syndrome.  He was evaluated by Oliver Sacks, M.D. a clinical professor of neurology at Albert Einstein College of Medicine and an adjunct professor of neurology at the New York University School of Medicine.  Dr. Sacks had authored numerous books and articles on Tourette Syndrome.  It was Dr. Sacks' opinion that Mr. Harrison could maintain his effort and function very effectively for only two days at a time and then must take a break of a day to recover.  He cannot function on a "standard" five day week.  On the basis of this letter Prudential reversed its original decision and awarded benefits to the plaintiff.  Prudential however continued to misstate policy provisions and indeed quoted language that appeared nowhere in the plan.

Two months after approving the claim Prudential began re evaluating the claim.  This time Prudential took the position that the plaintiff's disability was caused at least in part by a mental psychoneurotic or personality disorder and that benefits were limited to 24 months.  Prudential advised the claimant that his claim would most likely terminate the next month.

The problem with Prudential's denial of benefits this time was that there was no 24 month limitation in this policy.

Prudential also referred the file to Stephen N. Gerson, M.D.  Dr. Gerson was Board Certified in psychiatry and geriatric psychiatry but listed his major professional activity as "administration."  There was no evidence in the file that Dr. Gerson had any experience in the treatment of Tourette's Syndrome.  He did not examine the claimant.  It was Dr. Gerson's opinion that the various treating physicians and the claimant himself were simply making a "preference" for not working a five day work week.  Shortly thereafter Prudential terminated benefits yet again.

Mr. Harrison filed suit under ERISA.

The court reversed Prudential's denial.  The court found that "In the worst light, such conduct [misquoting policy provisions] indicates a conscious attempt on the part of Prudential to manufacture a reason for denying plaintiff benefits."

The court also found that the decision to terminate benefits was not supported by substantial evidence.  The court said that Prudential had ceased on one piece of information that one of the doctor's had relayed to it to terminate benefits.  The court found that Prudential had not relied on any new information to terminate benefits after it had previously approved benefits on the same information.  The court also was critical of Prudential for using doctors who had no expertise in Tourette Syndrome and who never examined the claimant.

Fairfax, Virginia attorney Ben Glass represents doctor, dentists, lawyers and business executive in long term disability benefit claims.

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