Thursday, May 26, 2011

In The United States District Court For The Middle District Of Tennessee

Barry Schmittou,                                No. 3:05-0013                           
Plaintiff,                                                Honorable Judge Trauger

V.                                                                  
Metropolitan Life Insurance                           
Company and TMG Solutions Inc.                
d/b/a Mosaic Sales Solutions 
Fourth Addendum To Motion and Memorandum Requesting Court to Appoint A Special Prosecutor To Investigate The U.S. Department of Labor and U.S. Department of Justice’s Failure To Stop Insurance Companies and Doctor’s Paid By Insurance Companies Who Are Ignoring Life Threatening Medical Conditions of Numerous Patients, and Similar Crimes That Are Being Committed By Insurance Companies In Five Different Types of Insurance
Introduction
Court Records Show CNA Insurance Company Withholds Important Documents. Quotes From Twelve U.S. Judges’ Prove MetLife Also Withholds Important Documents.

Index
(1)        ProPublica writes “CNA withheld portions of the investigators' findings”

and “the Labor Department seldom took action to enforce the law”

(2)        Exhibit S has quotes from twelve U.S. District and Court of Appeals Judges who wrote that MetLife also withholds and ignores very important evidence.
Part One
Here are quotes from a ProPublica article written yesterday,  May 23rd, 2011 that are seen in Exhibit T of this Addendum :
“Reporting in 2009 by ProPublica, the Los Angeles Times and ABC's 20/20 revealed deep flaws in the program. Workers fought long battles for medical care, including such things as prosthetic devices and treatment for post-traumatic stress disorder. The Labor Department seldom took action to enforce the law. One official called the system a "fiasco."
“CNA withheld portions of the investigators' findings when it submitted the claims to the Labor Department, court records show.”
“Another CNA file shows that another translator killed in the ambush was sole support for his family, which "could be described as very poor. But those pages were missing from the information CNA submitted to the Labor Department. As a result, Labor officials accepted CNA's declaration that there were no dependents to pay in any of the nine cases.”
In a ruling this week [3], administrative law Judge Daniel Solomon ordered CNA to begin making payments to the families. In an unusual move highlighting the government's concern over potential fraud, the judge also told the Labor Department, which oversees the program, to investigate whether the insurance carrier should face criminal charges. A Labor spokesman said the agency would "fully investigate" the allegations to determine whether to ask the Justice Department to prosecute the case.”
“Under a federally funded program, Chicago-based CNA Financial Corp. provides insurance coverage to contractors killed or injured while working overseas for the United States. The slain translators were helping to train Iraqi police recruits.”
“Instead of paying out benefits, however, CNA withheld information from the federal government and avoided making payments to nine families who lost relatives in a 2006 attack, according to court files and interviews. One widow lost her home, unable to keep up payments after her son and other translators were ambushed by insurgents in the southern city of Basrah, one of her attorneys said.”
“CNA's failure to pay out benefits underscores the continuing problems with the Defense Base Act, essentially the workers compensation system for overseas federal contractors.”
(end of quotes from the ProPublica article)
Here are case quotes written by Administrative Law Judge Daniel Solomon :
“Claimant relied on the agent's statements and believed she took the necessary action to receive compensation. See CX lIA, ~~ 12-17,19. Claimant was never informed of her rights under the Act, or the statute of limitations under the Act. See CX 7A, ~~ 12,18. Furthermore, Claimant did not receive a copy of Employer's Notice of Controversion, filed on January 25, 2007, nor was she served the October 20, 2008, Compensation Order issued by the District Director. See CX 7A, ~ 12; EX I (Certificate of Filing and Service). None of the above renditions offacts are controverted by Employer. Considering all of these factors, which are substantiated by the record, I find Claimant reasonably relied on the statements and actions of _ _ an agent of Employer and Garrier, and was lured into a false sense of security concerning her claim for compensation. Therefore, I conclude Employer is estopped from asserting the statute oflimitations as a defense. Moreover, I note that the unstable environment in Iraq also provides extraordinary circumstances which support this conclusion.”
Claimant alleges Employer, and its Carrier, intentionally omitted portions of the investigation reports concerning the dependency of Claimant on the decedent from the submissions to the Department of Labor. As a result, the District Director's Compensation Order, issued on October 20, 2008, found the decedent had no eligible beneficiaries.”

“Investigatory functions regarding alleged fraud lies with the District Director; I have decided to refer this matter to the District Director for an investigation if warranted by the facts. Accordingly, I grant Claimant's request, and the Section 31(c) claim is hereby referred to the District Director for further investigation.”

(End of Judge Solomon’s Quotes)
Here is a link to the full ruling made by the Court :

I assert the evidence in this article and Court ruling that shows CNA appears to be engaged in withholding evidence in Defense Base Act cases, combined with the quotes from numerous U.S. Judges that is seen in Exhibit S seen below that proves MetLife is withholding documents in U.S. Title 29 cases, and additional evidence I have provided that proves patterns of crimes are being committed by multiple insurance companies and the DOL and DOJ have done nothing to stop this, is another reason this Court should appoint a Special Prosecutor to Investigate The U.S. Department of Labor and U.S. Department of Justice’s Failure To Stop Insurance Companies and Doctor’s Paid By Insurance Companies Who Are Committing Similar Crimes In Five Different Types of Insurance.

Exhibit S is seen after the certificate of service. There are also quotes from many more Judges’ seen in Exhibit A that was filed on May 13th, 2011.

Respectfully Submitted,
_____________________
Barry Schmittou

Plaintiff



Exhibit S

Eight Cases Prove MetLife’s Complex Fraud of Withholding Medical Evidence. (Bold print indicates withholding of evidence)


(1) The following quotes were written by the Honorable Judges from the 6th Circuit in the case of Wanda Glenn verses Metlife, (Case Number 05-3918)

“This inappropriately selective consideration of Glenn’s medical record was compounded by the fact that the occupational skills analyst and the independent medical consultant were apparently not provided with full information from Dr. Patel on which to base their conclusions.”

(2) Here are quotes written by the Honorable Judges in the 6th Circuit in the case of Janice Spangler, v. Lockheed Martin Energy Systems, Inc.; Metropolitan Life Insurance Co., No. 01-5770, File Name: 02a0424p.06.

“Why Met Life did not also send Dr. Rice's report or the rest of Spangler's file to Crawford for review by the vocational consultant is inexplicable. Indeed, we can only conclude that Met Life, as Spangler contends, "cherry-picked" her file in hopes of obtaining a favorable report from the vocational consultant as to Spangler's ability to work.”

“Met Life's action in sending only Dr. MacKay's September 14, 1999, report to Crawford was arbitrary and capricious. Met Life should have provided Crawford with all of the medical records relevant to Spangler's capacity to work. As a result, the report by Crawford's vocational consultant was an incomplete and inaccurate representation of Spangler's ability to work.”

(3) Here are quotes from the Report and Recommendation written by U.S. Magistrate Judge Jennifer Guerm in the case of Wright verses Metlife :

"MetLife relied on clearly erroneous findings of fact in making its benefit determination. MetLife’s review of Plaintiff’s appeal consistently omitted or misrepresented relevant information in several ways."

"On October 18, 2004, Dr. Barnett wrote a letter to MetLife stating:

"I am gravely disturbed by your misrepresentation of the facts with regard to my discussion with your independent physician consultant and your lack of due diligence in collecting further medical information regarding Mr. Wright’s health condition."

"You indicate in your letter that “it was concluded that you are out of work primarily due to work related stress.” I spent over 30 minutes on the phone with your independent physician consultant explaining that this was definitely not the case. Indeed, this consultant seemed to have had a preconceived notion that stress was why the patient was out of work and that there was no cardiovascular disease contributing. I very clearly explained that this was not the case. Indeed, Mr. Wright has ongoing cardiac disease including ischemia and loss of function due to previous myocardial infarctions."

"Each time I expressed the belief to your consultant, she would return to the fact that she felt that stress must be the major issue that was keeping him out of work.... Furthermore, I carefully explained to your physician that Mr. Wright has nonunion of the sternum resulting in severe pain and contributing to his disability, and yet you fail to mention that at all in your note."

(End of Dr. Barnett’s quotes that Judge Guerm included in her report)

(4) Reimer and Associates website shows the court wrote this quote in the case of Winkler v. MetLife, 2006 U.S. App. LEXIS 5447 (2d Cir. 2006).

“An administrator may, in exercising its discretion, weigh competing evidence, but it may not, as MetLife did here, cherry-pick the evidence it prefers while ignoring significant evidence to the contrary.”

(5) In the separate case of Palmiotti V. Metlife, 2006 U.S. Dist. Lexis 13598 (S.D.N.Y. 2006) Reimer and Associates quoted the court as writing the following :

“MetLife's decision on Palmiotti's appeal was unsupported by substantial evidence because it was not based on a full and fair review of the initial decision and because material information was either ignored or was not solicited, and the information upon which MetLife did rely was fraught with errors.”

(6) The following quotes were written by Honorable U.S. District Judge Honorable Timothy J. Savage in the case of JACQUELINE ADDIS v. THE LIMITED LONG-TERM DISABILITY PROGRAM :

“MetLife relied almost exclusively upon the report of Dr. Gary Greenhood, an internist specializing in infectious diseases hired by MetLife, who did not examine Addis and did only a records review. Dr. Greenhood selectively viewed Addis’s medical records, and MetLife then selectively adopted parts of Dr. Greenhood’s report to support denial of the claim.”
“Significantly, there is no discussion of the records of Doctors Lavdas, McDonald, Gray, Files and McCarel, which he lists as having been submitted to him. Dr. Greenhood simply ignores them.”


“Dr. Greenhood selectively extracted portions of Dr. Tatarian’s treatment notes to support his conclusions, which are contrary to those of Dr. Tatarian. At the same time, he ignores parts that bolster Addis’s complaints and support her doctor’s diagnosis and prognosis.”

“Dr. Greenhood states that there were no objectively abnormal findings in the materials he reviewed, creating the impression that the absence of such findings rules out a disabling condition. He also ignores the MRI reports evidencing MS, November 2, 2000, and December 9, 2003. To the contrary, Dr. Tatarian documents a variety of spinal problems; and, MRIs consistently showed the presence of lesions and plaque on the brain. Dr. Greenhood ignores Dr. Tatarian’s report of a positive Babinski sign, which is indicative of nerve damage consistent with Addis’s complaints of stumbling and falling.”

“Both MetLife and Dr. Greenhood ignored the Multiple Sclerosis Medical Source Statement of Functional Abilities and Limitations completed by Dr. Ana Lavdas, one of Addis’s treating doctors. Dr. Lavdas reported that her patient’s prognosis was poor and she had significant functional limitations. Among the symptoms were pain in the lower extremities, fatigue, weakness and shaking in lower and upper extremities, poor coordination, bladder and bowel problems, blurred vision, and other physical problems. She noted that Addis had “significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movement or gait and station.” Dr. Lavdas concluded that her patient was “unable to work,” and could not sustain a job.”


(7) The following quotes are from the Opinion written by Honorable U.S. District Judge Richard Alan Enslen in the case of Zanny v. MetLife :
“Metropolitan Life Insurance Company has arrived at a formula for operating a profitable insurance business. It simply does not allow piddling things like facts to intrude upon its employee benefit claims decisions.

“On May1, 2002, MetLife requested Ann Tacl (a rehabilitation counselor) to provide a written report concerning Plaintiff’s employability. The Tacl report, for the most part, completely ignored medical information supporting disability, psychiatric hospitalization records, or the reports of examining psychologists and previous rehabilitation counselors who concluded that Plaintiff was not employable at any occupation nor able to operate a for-profit business. (Id.)”
“Tacl’s report is dated May 14, 2002. In it, she concludes that there is “no objective evidence that she [Plaintiff] has cognitive deficits . . . .”

“This conclusion is wildly inaccurate and wholly ignored the opinions of every psychiatrist or psychologist who has physically examined Plaintiff, including the most recent such examinations.”

“This record is an open indictment of MetLife’s practices and treatment of the mentally-ill and long-term disability benefits.”

“And What About those “Independent” Medical Exams and Reviews? Overall, the Tacl report is explainable only as the product of a professional who has been directed to reach a conclusion, has focused on data only in support of such conclusion, and who has scrupulously ignored all contrary data.”


(8) On January 25th 2007 U.S. Magistrate Judge Bryant wrote the following about fraud committed against me in my personal case by the Defendant’s at Metlife disability :



“In particular, plaintiff has already more than sufficiently alleged defendants’ “fraudulent” abuse of prescribed claims procedures”

In 2008 U.S. Magistrate Judge Bryant wrote the following,

“Metlife’s administration of plaintiff’s claim and appeal is troubling, particularly when compared to the regulations which govern such administration.”

“The record does not reflect that Metlife, at any point, during the Administrative process, disclosed to plaintiff Dr. Greenhood’s identity as a consulting medical expert or the content of his narrative report, despite Metlife’s apparent reliance on that report (AR 15), verses the restrictions imposed by plaintiff’s treating sources, and despite plaintiff’s repeated requests for same. Metlife apparently even failed to produce this information after issuing its decision on his appeal, when it purported to mail plaintiff “copies of the information which was used to make a decision on your claim.”

“the record is utterly devoid of any glimmer of recognition by Metlife of plaintiff’s attempt to assert an LTD claim, despite plaintiff’s repeated attempts to ascertain the status of the claim(e.g. AR 10, 11 ,25, 28, 33, 81)”

“the record reflects that Plaintiff did not receive timely notice of the initial denial of his STD claim ( AR 8-10); nor of the denial of his administrative appeal, nor of certain documentation upon which the denial was based, in particular the report of independent physician consultant Dr. Greenhood. In addition Metlife failed to make a timely response to several attempts by plaintiff to ascertain the status of his claims.”



In addition, the “Diary Review – Report” contained in the record reveals that Dr. Greenhood was consulted in connection with the initial determination of plaintiff’s disability claim ( AR 6) as well as the determination on appeal. Contrary to defendant’s argument, the undersigned finds that these violations by Metlife of the claims procedures prescribed by ERISA and its interpretive regulations must in fact be corrected in further administrative proceedings, as further justified below.”
(9) In the case of Solomon v. Metlife, Judge Robert Sweet wrote that Metlife trained appeals specialists to ignore evidence from the Social Security Administration (SSA). Here’s one quote from Judge Sweet :

"In addition, as in Glenn, MetLife urged plaintiff to apply for government benefits, but then disregarded the SSA’s grant of benefits.  Indeed the appeals specialist assigned to decide Solomon’s appeal stated that she had been trained by MetLife to disregard SSA decisions and that the decision was only relevant if MetLife was paying benefits and could use it for an offset.”

(10)        Here are quotes written by Honorable Judge Malachy Mannion in the case of JAMES KNOBLAUCH v. METROPOLITAN LIFE.

** Judge Mannion wrote the first quotes regarding the questionable relationship Metlife has with the company Metlife pays to perform FCE’s that evaluate the claimant’s ability to work.

** Judge Mannion also details how there are far more limitations on the patients than Metlife is reporting :

“The court has noted, however, that there are several documents in the file which appear to contradict the defendants’ assertion that there was no questionable relationship between Isernhagen and Metlife or Synchrony. For example, there is a document titled “Isernhagen Work Systems Functional Capacity Report” which is on Metlife letterhead.”

“There is another document titled “Isernhagen Quality Providers/MetDisAbility (sic) Referral Form” which gives specific directions to the FCE provider as to how Metlife FCEs are to be handled procedurally. This form requires the reviewer to“[C]ontact MetDisability with a verbal report 1 day after the FCE is completed.”

“There is a Metlife/Synchrony log entry dated April 5, 2002, which states:

...telephone call on voice mail from Cindy from Isernhagen
at 2:52 pm. FCE done 4/3 and 4/4...ee (sic) did pretty well. He
was compliant, cooperative, no self limiting. Unstable BP first
day, said she had to call MD his pressure was so high. On the
second day his heart rate was unstable and he was having
abdominal pain, so limitations were more medical [than] strength
factors...” (Doc. No. 20, p. 42)(emphasis added).”

“This more contemporaneous statement of the FCE results is telling in that it suggests far more limitations on the part of the plaintiff than later statements made by Metlife/Syncrony to the plaintiff in support of its decision to terminate benefits.”

“Also disturbing is the fact that Ms. Oxendine testified that she had not been provided with a copy of the plaintiff’s job description prior to performing the FCE. Ms. Oxendine stated, “...I did not have available to me at the time of his FCE a job description...[It] was not available at the time I performed the FCE.”
“Ms. Oxendine’s testimony also undermines the post-termination, post- appeal records review performed on July 9, 2002, by Joseph M. Nesta, M.D. For example, Dr. Nesta assumed that the plaintiff’s job description was before Ms. Oxendine at the time the FCE was performed.”

“After the plaintiff appealed the determination, the
defendants had a physician consultant, Joseph M. Nesta, M.D., review the record. No independent medical examination was performed.”

“When Dr. Nesta did his records review, he stated, “...[B]y July 20, 2001 this individual was cleared by his surgeon to return to work.” He either did not know, or failed to include, the fact that the plaintiff’s surgeon, Dr. Scagliotti, released the patient “to return to light physical activity...as tolerated,” and that the plaintiff was “instructed to progress as tolerated.”. No interpretation of Dr. Scagliotti’s records could suggest that he was released to return to unrestricted full time work.”
“Dr. Nesta further stated in his report, “This individual also has had a chronic pancreatic insufficiency. This is treated with pancreatic replacement therapy.” As can be seen from Dr. Brislin’s above referenced report, the plaintiff’s ongoing pancreatic insufficiency was stated to be very difficult to control despite high doses of pancreatic supplements, and enzyme supplements.”

“There was never any discussion concerning the plaintiff’s other medical complications including the inability to control the pancreatic insufficiency with medications, or fatigue. Fatigue is documented profusely in the FCE, but never mentioned by the defendants. There is no acknowledgment that neither of the plaintiff’s treating physicians ever released him to full time work. In fact, the only treating, or examining physician who released him without restrictions was the orthopedic physician, whose actual name was never mentioned, and who clearly was referring only to the plaintiff’s shoulder capsulitis problem.”

MIDDLE DISTRICT OF PENNSYLVANIA CIVIL ACTION NO. 3:02-1801


Exhibit T

ProPublica Article

U.S. Insurance Firm Neglects Survivors of Iraqi Translators, May Face Criminal Charges

By T. Christian Miller

Under a federally funded program, Chicago-based CNA Financial Corp. provides insurance coverage to contractors killed or injured while working overseas for the United States. The slain translators were helping to train Iraqi police recruits.
Instead of paying out benefits, however, CNA withheld information from the federal government and avoided making payments to nine families who lost relatives in a 2006 attack, according to court files and interviews. One widow lost her home, unable to keep up payments after her son and other translators were ambushed by insurgents in the southern city of Basrah, one of her attorneys said.
In a ruling this week [3], administrative law Judge Daniel Solomon ordered CNA to begin making payments to the families. In an unusual move highlighting the government's concern over potential fraud, the judge also told the Labor Department, which oversees the program, to investigate whether the insurance carrier should face criminal charges. A Labor spokesman said the agency would "fully investigate" the allegations to determine whether to ask the Justice Department to prosecute the case.
CNA said it was also looking into the case.
"We are investigating the matter and will take all appropriate actions," said Katrina Parker, a company spokeswoman.
Attorneys for the families said they believe CNA withheld documents to avoid making payments.
"These were people who helped the U.S. in Iraq," said Agnieszka Fryszman, an attorney for the families. "Their families were kicked to the curb when they were most in need of help."
CNA's failure to pay out benefits underscores the continuing problems with the Defense Base Act, essentially the workers compensation system for overseas federal contractors.
The system was little-used until the wars in Iraq and Afghanistan sent hundreds of thousands of private contractors onto the battlefield. All told, the government has paid out nearly $1.5 billion in premiums since 2001.
Reporting in 2009 by ProPublica, the Los Angeles Times and ABC's 20/20 [4] revealed deep flaws in the program. Workers fought long battles for medical care, including such things as prosthetic devices and treatment for post-traumatic stress disorder. Foreign workers, including Iraqi and Afghan translators, often did not receive payments or treatment. The Labor Department seldom took action to enforce the law. One official called the system a "fiasco."
Congress subsequently held hearings [5] that showed that American insurers were reaping large profits from the program. Documents showed that CNA reported the highest profits margins, taking in nearly 50 percent more in premiums than it paid out in benefits.
The case decided this week began on Oct. 29, 2006, when insurgents boarded a bus and killed 17 Iraqi-born translators working in Basrah for Sallyport Global Services, a logistics and security contractor. The insurgents later scattered their bodies around the city.
Under the law, CNA was responsible for paying death benefits to the translators' dependents. CNA paid when translators had children and spouses, according to interviews and court records, but not to other survivors. Several translators had no children, but supported parents or other family members.
In such cases, the Labor Department demands proof that survivors relied on contractors' earnings. CNA hired investigators who interviewed nine families, confirmed their eligibility, and even set up bank accounts. But CNA withheld portions of the investigators' findings when it submitted the claims to the Labor Department, court records show.
One CNA file shows that the slain translator had supported his mother, a widow, since his father was killed in the Iraq-Iran war. The town council even issued a statement of support, confirming the translator was his mother's "sole provider." Another CNA file shows that another translator killed in the ambush was sole support for his family, which "could be described as very poor."
But those pages were missing from the information CNA submitted to the Labor Department. As a result, Labor officials accepted CNA's declaration that there were no dependents to pay in any of the nine cases.
The translators' attorneys at Cohen Milstein, a well-known Washington firm doing pro bono work on the case, estimated that CNA owed a total of about $500,000 to the nine families. Instead, CNA paid about $45,000 into a special federal fund set up to help support the workers compensation system.
The company subsequently recovered some of that money plus additional fees under an obscure law—the War Hazards Compensation Act—that allows insurance carriers to recoup costs for contractors killed in hostile acts, court documents show.
In one case, CNA paid $5,000 into the special fund and $518 to a translator's family for burial expenses, but was reimbursed $9,289 by the federal government for investigating and handling the claims.
A Sallyport official said the company believed that CNA had made payments to all of the translators' families except one, which declined to accept money because of security concerns.
In an emailed statement, the company declined further comment due to the litigation. It said it would "continue to monitor the situation and support the families within our remit."