Long Term Disability – Subjective Complaints

In cases where the claimant’s subjective complaints are the primary disabling impairment, an insurance company’s credibility findings concerning those complaints are not valid without conducting a medical examination.  If you have a claim against a long term disability insurance company, and your claim has been denied on the basis that your complaints are purely subjective, feel free to contact my office for a free consultation.

See: Shaw v. AT&T, 795 F.3d 538 (6th Cir. 2015); Godmar, (6th Cir. 2016).

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Absence of “objective findings”

In Dunda v. Aetna Life Ins. Co., 2016 U.S.Dist. Lexis 85549 (W.D.N.Y. June 30, 2016), Aetna denied a claim for LTD benefits based on the absence of “objective findings” verifying the plaintiff’s subjective complaints of limitation.  Thus, Aetna’s denial of the claim was based essentially on a credibility determination. The Court found the determination to be arbitrary and capricious:

The Plan afforded Aetna the authority to require that Plaintiff undergo an IME. Under these circumstances, the Court finds that Aetna’s decision to not perform this examination supports the finding that its determination was arbitrary and capricious.

Dunda v. Aetna Life Ins. Co., 2016 U.S. Dist. LEXIS 85549 * (W.D.N.Y. June 30, 2016)

 

6th Circuit: denial on basis of credibility without physical examination supports finding of arbitrary and capricious

In Godmar v. Hewlett-Packard Co., 631 Fed.Appx. 397 (6th Cir. 2015), the Court re-affirmed the notion that when LTD carrier denies a claim based on credibility findings concerning the plaintiff’s pain, without conducting a physical examination,  it will support a finding that the decision was arbitrary.

Like the administrators in Smith and Shaw, Sedgwick decided that Godmar’s pain was subjective without examining him, and that failure weighs in favor of a determination that the denial of his claim was arbitrary and capricious.

Godmar v. Hewlett-Packard Co., 631 Fed. Appx. 397 *, 2015 U.S. App. LEXIS 21467, 2015 FED App. 0801N (6th Cir.), 2015 WL 8290186 (6th Cir. Mich. 2015)

Contacting the Treating Physician

In most ERISA LTD claims, the insurance company will hire a physician, usually an employee of the insurance company, to review the medical records and give an opinion on the claimant’s functional limitations.  Said physicians are often called “reviewing physicians.”  Generally, the insurance company’s reviewing physician will try to contact the claimant’s treating physician(s).

In Shaw v. AT&T Umbrella Benefit Plan No. 1, 795 F.3d 538 (6th Cir. 2015), the Court made specific note of the fact that the Plan failed “to make a reasonable effort to speak with” the claimant’s treating physicians.  In Shaw, the reviewing physicians attempted to contact the claimant’s treating providers; however, the treating providers were only permitted 24 hours to return the phone call.  The Court noted: “the cursory manner in which the Plan attempted to contact Shaw’s treating physicians is evidence that the Plan’s decision was not ‘the result of a deliberate, principled reasoning process.'”

Ignoring Favorable Evidence

LTD carriers are not permitted to ignore favorable evidence in a long term disability claim. “A plan may not reject summarily the opinions of a treating physician, but must instead give reasons for adopting an alternative opinion.”  Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006).

What guides the Court’s decision?

In Shaw v. AT&T Umbrella Benefits Plan No. 1, 795 F.3d 538 (6th Cir. 2015), the 6th Circuit Court of Appeals outlined the standard of review as follows:

Under the arbitrary-and-capricious standard, we must uphold the plan administrator’s decision if it is “the result of a deliberate, principled reasoning process” and “supported by substantial evidence.” DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 444 (6th Cir. 2009) (quoting Glenn v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006)). “When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal quotation marks omitted). However, arbitrary-and-capricious review is not a “rubber stamp.” Cox v. Standard Ins. Co., 585 F.3d 295, 302 (6th Cir. 2009). “Several lodestars guide our decision: ‘the quality and quantity of the medical evidence’; the existence of any conflicts of interest; whether the administrator considered any disability finding by the Social Security Administration; and whether the administrator contracted with physicians to conduct a file review as opposed to a physical examination of the claimant.” Fura v. Fed. Express Corp. Long Term Disability Plan, 534 F. App’x 340, 342 (6th Cir. 2013) (quoting Bennett v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 552-53 (6th Cir. 2008)).

Shaw v. AT&T Umbrella Benefit Plan No. 1, 795 F.3d 538, 2015 U.S. App. LEXIS 13194, 2015 FED App. 0171P (6th Cir.), 60 Employee Benefits Cas. (BNA) 1723 (6th Cir. Mich. 2015)

If your long term disability claim has been denied, contact The Hamilton Firm for a free consultation: 423 634 0871

Pre-existing Condition Exclusion

In Genoff v. United of Omaha Life Ins. Co., 2012 U.S. Dist. Lexis 124402 (E.D. Mich. Aug. 31, 2012), the plaintiff suffered a stroke a few weeks after becoming covered under his employer’s LTD plan.  His claim was denied by the defendant under the preexisting condition exclusion found in the Policy. The Policy defined preexisting condition as “any injury or sickness for which you received medical treatment, advice or consultation, care or services including diagnostic measures, or had drugs or medicines prescribed or taken in the the three months prior to the day you became insured under this policy.”  The Court reviewed the denial applying the de novo standard of review.

The Court noted that there was nothing in the record to indicate that the plaintiff had received any treatment for a stroke before the effective date of coverage:  “To the contrary, the symptoms for which Genoff sought treatment were determined to be caused by an ear infection. Thus, United’s denial of Genoff’s claim simply because he presented symptoms that could be associated with a later-diagnosed disease and consulted with a doctor during the look-back period in connection with those symptoms cannot stand.  Plaintiff’s treating physician did not diagnose or treat the specific disability that resulted in Plaintiff’s long term disability.”