Erick Vertein lost his home when an insurer declined his mental health leave request, for one reason

Erick Vertein gripped the steering wheel of his rented moving truck as he watched his dream home shrink from view in the rearview mirror for the last time.

Driving out Blackberry Road, he and his wife, Barbara, headed west through Wisconsin’s Driftless Region for an hour, then came to a stop on a sparse county road in Muscoda. They stared at their new home, a former schoolhouse roughly one-third the size of the place they left behind. Inside, rodents scuttled above the ceiling and woodchucks nested in the eroding garage foundation. 

Four years earlier, the couple had clinked glasses to celebrate their accepted offer on a four-bedroom home in Black Earth, 20 miles northwest of Madison, where they both worked. They imagined having children, building a fort in the backyard of the five-acre property, and finding creative ways to use the mother-in-law suite atop their detached three-car garage. They called the home “Blackberry on the Rocks,” a nod to the decorative stones studding the property. 

Today, saying the nickname aloud, Vertein, 35, smiles faintly.

They have fallen far off-script, all because a psychologist — hired through the insurance carrier — whom they never met, living several states away and not licensed to practice in Wisconsin, issued a report recommending Vertein’s insurer deny his request for long-term disability benefits due to a mental health condition.

His UW Health providers had determined he struggled with debilitating depression and anxiety, but the hired psychologist — using only chart notes — told the insurer he still could work. The insurer issued a denial Dec. 9, 2021.

That set in motion a spiral of events that left Vertein sapped, mentally and financially, forcing him and Barbara out of their house.

Shortly after moving to Muscoda, the couple learned they were expecting their first child. But this was not the life they'd planned for themselves or for her.

In theory, the role of a hired medical reviewer is to dispassionately assess the merit of a patient’s request for long-term disability benefits due to their medical condition. If approved, patients receive a monthly payment — typically 50% to 70% of their annual pay — while undergoing treatment.

They pick and choose the things they want to use against you. It's very frustrating. And it's very convenient for the insurance company.

Erick Vertein

In practice, thousands of court records analyzed by the Journal Sentinel show, there’s an incentive to tip the scale toward an insurer and recommend denials. In some cases, insurance companies relied on doctors who have had opinions thrown out in other cases.

“They pick and choose the things they want to use against you. It's very frustrating,” Vertein said. “And it's very convenient for the insurance company.”

Notably, insurance coverage for physical ailments has expanded steadily, while coverage for mental health issues remains out of step with advances in understanding its causes, impacts and treatment. Progress toward health coverage parity, in which mental health is covered in the same way as physical health, has been slow, even as America's mental health crisis continues to soar.

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Erick Vertein moves furniture in the converted schoolhouse in Muscoda, Wisconsin, that he and his wife moved to when his long-term disability leave was denied. Vertein is now working again, and his family has found a new home.

Mark Hoffman/Milwaukee Journal Sentinel

This fall, the Journal Sentinel examined legal filings associated with 56 independent medical professionals with ties to Wisconsin cases — and more than 3,500 cases nationally — then talked with patients, doctors, insurers and attorneys. Among the findings:

• In most cases reviewed, doctors hired by insurers and third-party vendors base their recommendations on medical paperwork and, at times, surveillance video. The absence of face-to-face interaction with patients or their treating physicians is particularly notable in mental health cases. A broken bone is fairly obvious on an X-ray; debilitating depression is hard to accurately observe solely on chart documentation. Of the court records analyzed, medical reviewers rarely if ever meet face to face with patients before opining on their cases. 
• Reviewer opinions have been challenged in court for being “infected by conflict and bias” ― a phrase that comes up again and again in court documents. That doesn’t seem to slow insurers from continuing to use challenged reviewers. The Journal Sentinel found a pattern of so-called "frequent fliers," medical professionals who show up time and again even though their opinions have been thrown out in other cases.
• Historically, some disability insurers have incentivized employees and in-house consultants to deny as many claims as possible. From the 1990s to 2002, one of the country's largest insurance companies held competitions for the most claim denials, with bell ringing and cash prizes for winners, according to court documents.
• Medical reviewers don't need to specialize in a medical field to weigh in on claimants' medical documents. In a case related to fibromyalgia, the opinion of Dr. James Bress, an internist, carried more weight with an insurer than the patient’s rheumatologist at the Mayo Clinic. The Eastern Louisiana District Court ultimately threw out Bress’ opinion, and his recommendations have been tossed in at least seven other cases between 2007 and 2013. Yet Bress’ opinion was utilized as recently as 2019 in Wisconsin, when he recommended against disability coverage for a woman claiming a major depressive disorder. He has no background or license in clinical psychology. He has offered his medical opinions on a wide range of diagnoses across at least 25 states, despite not having a license to practice medicine in those states. He is licensed to practice in New Hampshire. Bress did not return calls; on the last attempt, the line was disconnected.

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Jonathan Feigenbaum, an employee-rights attorney from Boston, has represented long-term disability cases for more than 40 years. He's been instrumental in shifting how disability claims are determined in Massachusetts.

Shawn G. Henry

“It’s frequently the same doctors offering opinions until a doctor gets deposed, or a document gets released in discovery which shows how busy the doctor is working for insurance companies,”  said Jonathan Feigenbaum, a Massachusetts-based attorney with close to four decades of representing individuals in disability cases. “The deposition testimony or document discloses that Dr. X is doing 1,500 file reviews a year for some insurance company (while) sitting in his living room. Sometimes that doctor disappears for a few years because the word gets out. But often the doctor returns years later doing reviews again for insurance companies.”

Supreme Court decision opened door to reviewers

The relationship between disability insurance carriers and medical reviewers — either on staff or hired through third-party vendors — has been allowed to flourish as a result of a 2003 landmark U.S. Supreme Court decision in Black & Decker Disability Plan vs. Nord. The Court held that disability carriers aren't required to give more weight to the opinions of treating physicians. That is, the doctors who are actually treating the person in question.

Mark DeBofsky, principal attorney at DeBofsky Law in Chicago, attended oral arguments of that case. DeBofsky had faced down disability insurers over long-term disability denials and Social Security disability claims for a couple of decades, including cases in Wisconsin.

The case paralleled many of the much more recent cases analyzed by the Journal Sentinel, including the Vertein case. Following a degenerative disc disease diagnosis, an employee at a subsidiary of Black & Decker applied for long-term disability coverage. MetLife hired an independent examiner whose opinion contradicted the employee's treating physicians. MetLife recommended denying the claim, and Black & Decker accepted.

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Mark DeBofsky, a Chicago-based attorney who litigates employee benefits cases, has pushed for mental health parity.

ETHAN ALEX

The question in the case was whether the claim administrator ― the insurance company ― was required to pay special deference to treating physicians' medical recommendations.

Before the case came to the Supreme Court, the Ninth Circuit Court of Appeals held that a rule followed by the Social Security Administration would be the standard. That regulation gave deference to treating physicians provided they were specialists, their opinions were consistent with the medical record, and they had a longstanding relationship with the patient.

But during oral arguments, DeBofsky said, he felt MetLife's defense team "misrepresented" the rule to the court, making it sound more ominous. The ultimate decision has led to a virtual industry of vendors who supply reviewers to insurers, DeBofsky said.

"It gave insurance companies carte blanche to rely on either in-house doctors or doctors they hire through third-party vendors," DeBofsky said.

One of the largest disability providers in the U.S. has drawn particular attention. Unum was characterized — in documents obtained by the Journal Sentinel — as having production quotas, claim denial competitions, incentive plans and other methods to ensure a certain percentage of claims were denied, according to a cascade of depositions by former Unum claims-processing employees conducted from 2003 to 2004 as part of a class-action lawsuit filed against Unum.

In particular, the most vulnerable claims were self-reported illnesses, from mental illness to chronic pain.

Two decades ago, Unum settled the class action lawsuit, paying $15 million in fines and an agreement to reassess 200,000 previously denied claims. This year, the company reached a separate settlement with the U.S. Department of Labor based on similar allegations.

One of Unum's in-house reviewers, Scott Norris, has had his opinion thrown out in a number of cases over the years, and as recently as 2022. Norris has been "the subject of judicial criticism as to his qualifications and ability to conduct an unbiased and objective assessment of a claimant’s disability," according to a 2023 legal complaint.

Unum even accepted Norris' reviews in a 2018 Maryland case where the courts later determined he was unethical in giving opinions on a patient with neuropsychological symptoms without a specialty license to do so.

Still, Unum relied on Norris’ opinion in a 2023 Wisconsin case. He recommended denying coverage, which led to the patient's two Mayo Clinic physicians responding that his review was incorrect and failed to provide necessary medical analysis. The Journal Sentinel attempted to reach Norris on multiple occasions, without success.

Emily Downing-Baer, Unum’s corporate communications director, declined to comment on how medical reviewers are vetted or make decisions, telling the Journal Sentinel in an emailed statement, “Claims and leaves for behavioral health are decisioned in the same manner as those for injury and illness, typically requiring evidence of medically supported restrictions and limitations that prevent the claimant from performing their occupation.”

She wanted coverage, but then felt abandoned

Naomi Hayes, 37, got serious about planning her future when she started her new job. She enrolled in the best health insurance plan offered and, for the first time, started paying for both short- and long-term disability coverage.

Hayes estimates she paid about $400 per month for health and disability insurance.

"It was optional (through my employer) to take short-term and long-term disability, but something told me, 'Take everything you can take,'" Hayes said.

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Naomi Hayes thought she was preparing for the worst. Then she needed a leave of absence and it was denied.

Mark Hoffman/Milwaukee Journal Sentinel

A graduate of the University of Wisconsin-Milwaukee with a double major in public health and intercultural communications, Hayes at one time was on a pre-med track.

Although student loans held her back from immediately pursuing more schooling, Hayes has worked for the CDC Foundation as a communicable disease investigator and then the Wisconsin Department of Health Services as a Medicaid consultant. Through those jobs, she honed her knowledge in public health.

Hayes has struggled her whole life with depression, anxiety and PTSD, which she attributes to a traumatic childhood and racism. She remembers being 6 years old the first time a man called her the N-word. It would be a word she would encounter again and again, to the point it all but paralyzed her with fear.

A Wisconsin native, she grew up feeling the weight of other people’s stares, especially outside Milwaukee and Madison. “If you go anywhere else, it gets a little bit suspect. I've been up north. I'm not welcome. They make it known,” Hayes said.

However, she had always managed her life, and been capable and resilient in a work setting.

Several recent events made Hayes feel uncomfortable in her skin, including a new sense of being unwelcome in work circles due to her race. Following a PTSD diagnosis, her psychiatrist, who has cared for Hayes for more than a decade, recommended a leave of absence.

Her long-term disability claim was denied, a result of a reviewer deeming her mental health conditions ― PTSD, major depressive disorder and severe social anxiety disorder ― pre-existing. Hayes attempted to handle the administrative appeal on her own without legal representation but was denied. Once administrative appeals conclude, no new evidence can be introduced to support the claim.

Her symptoms persisted and worsened, perhaps in part because at that point she had no income protection.

A year later, Hayes sought legal help from the Madison law firm Hawks Quindel to reopen the case. Hayes' letter from her psychiatrist ultimately made her case stronger and quashed the notion that her mental health symptoms were pre-existing.

“She is suffering from PTSD directly related to an incident of sexual harassment and intimidation in summer of 2022,” the psychiatrist wrote in February 2023, in records reviewed by the Journal Sentinel. “It is your legal obligation to overturn your denial of her LTD (long-term disability) payments.”

The insurance company still refused to pay Hayes’ claim, leaving her in debt and deprived of the financial protection from disability in her long-term disability plan.

Today, Hayes finds herself in a precarious position. She found a new job and was approved for short-term disability benefits under her new employer's plan. But she was almost immediately let go, and most of her short-term disability income now goes toward rent, bills, and medication. She's still waiting to see if she'll be approved for long-term disability benefits.

"That barely pays rent. I have car payments, student loans, bills, and I'm over the income (limit) to get certain assistance. How? I don't have any money," Hayes said.

Jessa Victor, a shareholder attorney at the Madison office of Hawks Quindel, has represented hundreds of clients pursuing disability lawsuits against their insurance companies. She's seen the fallout of these denials in real time. Many of her clients are forced to file for bankruptcy as a result of denials. Others move in with family members or make significant lifestyle changes.

“Insurance companies put people who are already suffering financially and medically in even more vulnerable positions," Victor said. "They call into question an individual’s lived experience, deem their reported symptoms invalid, and disregard their medical team’s insights into their condition, all while claiming, ‘No, no, we know better — you’re not as sick as you think you are.'”

What's especially frustrating for Hayes is that she paid for the coverage, she did her best to plan for just the type of situation that arose.

"It's just not the protection people think it is," DeBofsky said. "Employers use fringe benefits to recruit and retain employees. If you're looking at two job offers, and one offers disability benefits and one does not, you might very well make your choice based on who offers the best benefits, right? And then to find out that it's just an empty piece of paper is really disturbing."

Whit Cornman, a spokesperson for the American Council of Life Insurers, which advocates for 275 member companies, including Unum, the Hartford, and Prudential, wrote in an emailed statement, "Disability income insurers recognize the importance of mental health benefits and offer innovative supportive services."

Those services, Cornman said, included giving employees access to assistance programs that offer confidential counseling services, return-to-work support such as job coaching and workplace accommodation consultations, financial planning and/or legal support services, and workplace wellness programs.

Medical reviews especially affect mental health claim outcomes

Unlike Hayes, Vertein had no history of mental health problems before he experienced a series of work-related incidents in 2021 that shattered his sense of self. An actuary at an insurance company in Madison, he found himself unable to concentrate, hold a conversation or communicate his thoughts in a cohesive way. His work required critical thinking, problem solving, on-the-spot analyses, and the performance of tasks on tight deadlines. He struggled to keep up. 

In August 2021, a human resources representative from his company recommended Vertein take a leave of absence and get help from a professional. He started working with two medical providers from UW Health, a nurse practitioner and a psychologist. Each expressed concern about him returning to work before he was stable. They recommended he pursue long-term disability following his leave.

Vertein assumed he had an open-and-shut case. He began wading into the process, making phone calls to the representative assigned to him by his employer's insurance company.

“I called him probably 20 times or so before December 9," Vertein said. "Never got called back."

UW Health providers conducted a mental status exam on Vertein and diagnosed him with depression and anxiety. He started regular treatment with his providers.

On Dec. 9, 2021, Vertein received a letter denying his long-term disability claim. What he read shocked him. 

“If the claimant reports he isn't sleeping and is exhausted, it should be evident to the provider when they see him that he has dark circles under his eyes, or yawns frequently or has low energy,” wrote Julie Keaveney in the review, obtained by the Journal Sentinel. 

Later, she added, “The medical records I reviewed did not provide much in the way of observations from the provider, which is the basis for my saying there is not clinical evidence to corroborate the claimant’s self-reported symptoms.”

In the review, showing up on time to doctor appointments indicated he could show up for work. Being able to articulate his depression and anxiety demonstrated he didn’t have problems concentrating or communicating. And, because one of his providers included only minimal behavioral observations like grooming and eye contact in her notes, Keaveney wrote, she was left to conclude nothing much was wrong.

Keaveney, a psychologist licensed in Pennsylvania, has offered medical opinions across seven states, Wisconsin included, and has conducted paper reviews on behalf of Prudential, Life Insurance of North America, Unum and United of Omaha, through the third-party vendor PsyBar. This practice is neither illegal nor unethical, but criticized by other doctors and patient advocates.

I’ve never met this person and yet she’s calling out these notes, these observations, that my doctors never commented on

Erick Vertein

The Journal Sentinel reached out to Keaveney multiple times for comments, without success.

“I’ve never met this person and yet she’s calling out these notes, these observations, that my doctors never commented on,” Vertein said.

According to an invoice obtained by the Journal Sentinel, PsyBar paid Keaveney $1,600 for her May 2022 medical review on Vertein’s claim.

Since 2020, PsyBar has been owned by The IMA Group, which provides clinical evaluation and screening services to employers, payers and government agencies. Its earlier marketing boasted to long-term disability carriers it could reduce insurance claim liability by 70%.

Reviewers who rely only on records tend to lean one way

Vertein’s reaction to Keaveney’s review gets to the heart of why “paper reviewers” are so controversial, and demonstrates how little has changed over decades.

In an oft-cited 2009 case, Montour v. Hartford Life & Accident Insurance, the Ninth Circuit of Court Appeals determined that paper reviewers were neither independent nor objective. Paper reviewers consistently emphasized evidence of the employee’s ability to work, while ignoring and de-emphasizing evidence of disability, the judges said. 

The gold standard of any comprehensive medical review requires taking a careful and comprehensive history and performing a thorough physical examination, according to the National Institutes of Health.

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Brandon Bykowski, of UW Health's Behavioral and Psychiatry Clinic in Middleton, Wisconsin, often speaks with patients about their symptoms, medical histories and possible diagnoses.

Natalie Eilbert / Milwaukee Journal Sentinel

Brandon Bykowski, a mental health clinician at UW Health, said initial assessments rely heavily on listening closely to patients to gain insights into their history of mental health, their past medications, any psychotherapy trials, and what brought them in. Medical professionals document whether patients' thoughts are logical and linear or tangential and meandering. They may note if speech is loud or quiet, if a patient appears unkempt or dressed in a peculiar way.

But the exact notes vary from provider to provider, and something like yawning or appearing tired may not be entered.

"We want to pay attention to big discrepancies," Bykowski said.

Asked who this documentation is for, Bykowski said it's primarily for the providers themselves in order to keep track of changes over time and as a kind of "memory assist" since they work with many patients throughout the day.

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Brandon Bykowski, a mental health clinician at UW Health, talks with his colleague Mia Marquis, a licensed marriage and family therapist, at UW Health's Behavioral and Psychiatry Clinic in Middleton, Wisconsin.

Natalie Eilbert/Milwaukee Journal Sentinel

They might be writing notes for supervisors if they're a therapist who isn't fully licensed yet. They might also be documenting with other health care providers in mind — like psychiatrists and primary care physicians. Finally, Bykowski acknowledged, they might be thinking of insurance companies. "I think everyone kind of laments this, but it's just a reality of our field," Bykowski said.

What the provider has no control over is how the reviewer uses the notes.

Keaveney’s assessment of Vertein's mental health led to a three-month back-and-forth that culminated in a settlement, the sum of which shrunk as he paid medical bills, filing fees associated with the lawsuit, taxes and, eventually, the price of moving.

In the end, Vertein had a pittance of his original annual income left, and was jobless. He and his wife couldn’t afford to pay the mortgage on his wife’s accountant salary alone. And so they moved.

"That's what makes the loss so heavy. We went through the process, but if we just accepted the denial, it would have been a similar result to not doing anything," Vertein said. Added to that was "the mental toll, the meetings with lawyers, the doctors, looking for other jobs, all while I'm trying to get better."

Nick Penzenstadler, an investigative reporter for USA TODAY, contributed to this story.