Q&A with Evan George: Investigating disability insurance
Evan George graduated with a history degree from Occidental College. His mentor was legendary Los Angeles Times writer Bob Sipchen, who got George interested in journalism. George spent some time at the late, lamented LA Alternative and the Los Angeles Downtown News before joining the legal news team at the Los Angeles Daily Journal two years ago. At the Downtown News, George had written about skid row, which sparked an interest in public health that he has carried into his current beat, writing about the legal issues surrounding health care. Earlier this month, he wrote a powerful two-part series about disability insurance. The series is behind a pay wall, but you can read Part 1 here and Part 2 here, reprinted with permission for ReportingonHealth.
I reached George at his desk in Los Angeles. Below is the first part of our interview. It has been edited for space and clarity.
Q: How did you come up with the idea for this investigation?
A: It started the way a fair number of good stories start. I took somebody to lunch. It was a health law professor, and she was rattling off a couple of cases that had crossed her path. One of them was this gentleman who worked for Kaiser Permanente as a tech person and had a great salary of $100,000 a year, great health benefits and had myriad of health problems. He seemed to have suffered a stroke. His doctors told him to take it easy and
apply for long term disability. The Social Security Administration agreed that he was disabled. But the insurance company who manages their disability program did not agree. The professor said that the federal government had found him disabled and that alone was not an easy hurdle. His employer, Kaiser, had found him disabled, too. But the insurance company denied him benefits.
Q: What did you do after that lunch?
A: I mentioned that anecdote to a couple of lawyers I had interviewed before about health care lawsuits or long term care lawsuits and they said anecdotally that this happens all the time. Only certain lawyers will take these cases and it can be an uphill battle. But this was just anecdotal. Nobody had numbers on it. So I contacted of the state Department of Insurance, and they said, basically, the situation you are describing does not happen because people who get this kind of insurance through their work are not being paid by the insurance company. It's the employers' money. This conflict of interest where the insurance company doesn't pay doesn't happen because it can't happen.
Q: They were telling you, "There is no way this happens, so why are you even asking about it?"
A: They said it would be a very rare circumstance, because it's usually an employer paying these benefits, not an insurance company. I followed up with them at least twice because it didn't gel with what I was hearing from trial lawyers. If I wanted to do a story on this one case it wouldn't mean much. The next step was to examine the court record of whether this really happened as frequently as the lawyers were saying it did or as infrequently as the state was saying.
Q: You were doubtful that it happened very often.
A: It didn't sound like this was something that could happen on a widespread basis, so yes. I had the agency that is in charge of this market saying that this problem doesn't exist. You are wrong, is what they were saying. I usually don't have that response from state agency people. So I went about a methodical search of court cases in federal court. There wouldn't be any of these in state court because it's ERISA and through the employer you can't bring a state lawsuit over this. They all wind up in federal court.
Q: How did you approach the legal research?
A: I took the seven top insurers, which I got through an industry trade group that has a stake in this kind of insurance. They are a reinsurer. I saw some stories in '03 or '04 about Unum and that solidified that this has been an issue. So I looked at them and the rest of the top six, including MetLife and Prudential.
Q: What did you use for the legal research? Did you physically go to these courts? Did you use PACER or a combination of both?
A: I went to a couple of courts to meet lawyers and watch what were literally "stamp, next" proceedings, because these are not trials. The rest I did through PACER. I searched those companies for lawsuits filed between Jan. 1 2004 and June 1, 2009. I was doing most of this in May and June of 2009. I figured out through trial and error that there's a code in the federal court system for these kinds of ERISA suits. Typing in the name and this code would give me all the ERISA cases.
Q: Each time you found a new case, what did you do with it?
A: I would go through the docket survey. In more than half the cases, the records were completely electronic, so I could see the complaint. I could see the discovery. I could see if a judge had questioned, or in some cases, reamed the defense lawyers. I started saving everything to my desk top. Early on I started making a spreadsheet in Excel, case name, date it was filed, type of condition the plaintiff had, date of that condition or when they started seeking disability, the lawyers involved, if there was a settlement, if the case was pending. Through those fields, I just gleaned the most basic data. In most cases even if there was not a complaint from PACER, I could get most of what I needed from the docket survey. When I was finally done with all lawsuits from the top seven, I had 576 lawsuits. Then I went to work with Excel, with an editor who had done stuff on her own with Excel. And we plugged away.
Q: Did you talk with anyone before building the spreadsheet?
A: I got some suggestions from Evelyn Larrubia, my editor, which were key. And I should have thought about some things sooner, because I definitely did half of MetLife, about 80 cases, before realizing I should have been looking for a particular field, like whether there was already a settlement.
Q: You never know what you're going to need later.
A: I expected it to be about 100 cases total. I had the department telling me that this never happens. When it turned out there was more than 100 from just one company, I realized it was going to be a bigger spreadsheet. I had to step back and make sure I had everything.
Q: When did you decide to talk to the Kaiser employee?
A: I had lunch with the professor who mentioned his case mid-April and then called him a week later and got his whole case file. I wanted to see what kind of state this guy was in. I just felt like I needed to see what it was like to be in this position where you didn't feel up to working full-time but the insurance company said you could.
Q: What was he like when you met him?
A: He was very honest and a sympathetic character. Essentially, his case was denied because he had more than one problem, and they were all adding up to something that would make it hard to go back to his job. But any one of the problems by themselves might not have led to a complete disability. It was hard for him to form full sentences, for one. And he had crutches and was going in for a surgery that wasn't even related to his first problem. He was going in for gall bladder surgery. And that's what can happen when you're being treated for years for a variety of problems, you start to develop other problems.
Q: Were you worried at all about running up against the stereotype of the permanent disability case in the readers' minds - the guy who never worked a hard shift in his life and is just looking for a free paycheck?
A: Definitely. I had to talk to several of these people and see them in their homes. It's not a scientific way of doing with it, but I had to see them face to face and talk to them about their lives. I would meet with lawyer and client at their house on sort of short notice.
Q: How many did you meet that way?
A: About five in person, and I talked on the phone with another dozen.
Q: But did you do any additional vetting of the examples you used?
A: The ones I used I either spoke to multiple times or met in their homes. I asked lawyers for their strongest cases or the cases where the facts would be clear. Lawyers know what a strong case is and isn't. If a case isn't strong legally, that doesn't mean the person doesn't have a claim. It just means it doesn't jump out as much.
Q: Were there cases that you just knew smelled funny?
A: No. But, obviously, looking through 576 lawsuits there were about 40 or 45 where a judge sided with an insurance company. Sometimes it might seem that this person might be malingering or it might be more of a mental thing. Or maybe an anxiety issue. Certainly not every one of these people had a legitimate claim. The one thing I had working for me was that for somebody to file a lawsuit in federal court against an insurance company, they already had gone through a weeding-out process. A lot of people walk away or get a new job. It's not easy to find a lawyer to take these cases, because they so rarely win. The ones that have been filed have been certified by the social security administration and have jumped through several hurdles and clearly have a stronger case. It was almost its own vetting process.
Next week: Evan George tells how the insurance companies reacted when he asked why they were denying claims that Social Security said were legit.