This 40-year-old salesperson for a major east coast real estate development company underwent surgery in April 2016. After that, she developed a very, very rare neuromuscular syndrome known as “Stiff Person Syndrome.” This syndrome causes the muscles of the body to spontaneously and unpredictably develop severe and painful cramping. The cramping is so unpredictable that most individuals with the disease will not attempt to walk across a street for fear that they will become immobilized in the middle of the road. Most neurologists see no more than 1-2 cases of “Stiff Person Syndrome” in their careers.
The claimant was insured under an ERISA governed long term disability policy issued by Mutual of Omaha (“MOO”). During the initial claim, MOO conducted video surveillance which, it reported, showed that the claimant was not disabled. MOO then had the claim reviewed by a 77-year-old physician with no active clinical practice, no patients, and no experience with “Stiff Person Syndrome.” Through extensive Internet research, we established that his “office” was really his house somewhere in California.
Evaluation of the ERISA claim file revealed that MOO had grossly mischaracterized what was in the video and that MOO had failed to reveal that of 10 completed days of video surveillance only four days showed any activity by the claimant at all.
Richard Restak, M.D. performed an IME on the claimant, and after first agreeing that the claimant was disabled he changed his mind based on the limited information that MOO had provided him. Dr. Restak, we contended, also had no demonstrated experience with “Stiff Person Syndrome” and is best known as a best-selling author of books about the brain.
As part of the ERISA appeal, we downloaded and transcribed a YouTube® video where one of the world’s leading experts on the syndrome discussed (1) how difficult it was to diagnose and (2) how devastating the illness is. (The claimant was not aware of this expert before our appeal work, and she has since become a patient of the expert.)
Plaintiff’s Expert: Michael Sirdofsky, M.D.
Defense Experts: Robert Marks, M.D.; Richard Restak, M.D.
Practice Tip: There are many “expert” videos available on YouTube® that can be downloaded, transcribed, and used in an ERISA appeal. The insurance companies are often using retired physicians with no real practice and no meaningful experience in these rare disease cases. The “battle of the experts” must be won in the appeal process as there are no new experts allowed in litigation.