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.'”

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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).

LTD Attorney Fees

In Cockrell v. Hartford Life and Accident Insurance Company, 2013 U.S.Dist. Lexis 69017 (W.D.Tenn. May 15, 2013), the Court decided a dispute between the parties concerning LTD attorney fees.  After succeeding on the merits with her LTD claim in District Court, the Plaintiff filed a Motion for Attorney’s Fees.  The defendant insurance company opposed the Motion.  First, the Court noted that as a preliminary matter, the plaintiff must have had “some degree of success on the merits.”  This threshold requirement is satisfied if the plaintiff obtains a remand.  Or, as stated by the court, “had received another shot at benefits by winning a remand.”  After determining the threshold issue, the Court examined the five factor test from Schwartz v. Gregori, 160 F.3d 116, 119 (6th Cir. 1998).  The five factors include:

  1. Culpability or bad faith
  2. Ability to Satisfy Award
  3. Deterrent effect
  4. Common benefit
  5. Merits of the case

After analyzing the five factors, the Court held: “the circumstances of this case favors an attorney’s fee award. . . .”

Next, the Court evaluating the reasonableness of the award.  Plaintiff claimed attorney fees of $23,725, which was supported by Affidavits from the plaintiff’s attorney, and another attorney located in Memphis.  The Court noted that “the lodestar approach is the proper method for calculating the award. When using the lodestar approach, ‘in which the number of hours reasonably expended on litigation is multiplied by a reasonable hourly rate,’ . . . . there is a strong presumption that the lodestar figure represents a reasonable fee.”  The Hartford challenged the figure by arguing that the number of hours litigating the case was unreasonable.  The Court carefully scrutinized the hours spent by plaintiff’s counsel, and reduced the figure to $21,225.00.

11th Circuit Review of LTD Claims

The 11th Circuit has formulated a multi-step framework for reviewing an ERISA plan administrator’s decision:

  1. De novo review to determine whether the claim administrator’s benefits-denial decision is “wrong”; if it not, the decision will be affirmed.
  2. If the decision is “de novo wrong,” the Court will determine whether the administrator was vested with discretion in reviewing claims; if not, the decision will be reversed.
  3. If the administrator’s decision is “de novo wrong” and the administrator has discretion in reviewing the claim, the Court will determine whether “reasonable” grounds support the decision.
  4. If no reasonable grounds exist, the administrator’s decision will be reversed.  If there are reasonable grounds, the court will examine whether there is a conflict of interest.
  5. If there is no conflict of interest, the decision will be affirmed.
  6. If there is a conflict of interest, the court will consider the conflict of interest as a factor in determining whether the administrator’s decision was arbitrary and capricious.

Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011).

Self-Reported Symptoms Limitation

I have previously discussed the self-reported symptoms limitation found in many LTD policies (LTD Exclusions and  Soft Tissue Exclusion). In Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323 (7th Cir. 2011), the claimant’s benefits were discontinued by Unum under the plan’s self reported symptoms limitation.  The Plan also claimed an overpayment due to the claimant’s receipt of SSDI benefits.  The Weitzenkamp case provides a great discussion on the exclusion, and thus, rather than summarizing, I am quoting the important language from the decision with some emphasis supplied, as follows:

To determine whether the self-reported symptoms limitation applies here, we begin with the language of the plan, which provides in relevant part:

Disabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse have a limited pay period up to 24 months.

Self-reported symptoms means the manifestations of your condition which you tell your doctor that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

The plan limits payment for “[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms,” but the parties disagree as to what this clause means. Unum alleges that the focus is on whether the limitation on function is primarily based on self-reported symptoms. Although Weitzenkamp’s argument is convoluted at times, she argues at least in part that the focus must be on whether the diagnosis of the disease itself is primarily based on self-reported symptoms.

Although one can read the clause literally as Unum proposes (the plural self-reported symptoms clause modifies the plural “Disabilities” rather than the singular “illness or injury,” suggesting that if the inability to perform work is self-reported, the limitation applies), when the clause is considered in context and in light of actual application, the only viable conclusion is that the self-reported symptoms limitation applies to disabling illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than to all illnesses or injuries for which the disabling symptoms are self-reported. The contrary interpretation advanced by Unum would sweep within the limitation virtually all diseases, leaving only a small subset for coverage beyond that time period. For most illnesses or injuries, the disabling aspect is not the disease itself, but the pain, weakness, or fatigue caused by that illness or injury. Even diseases that are extremely likely to cause an inability to work, such as stage IV cancer or advanced heart disease, are disabling because of the pain, weakness or fatigue. Under Unum’s interpretation, however, those diseases would fall within the twenty-four-month limitation because pain, weakness and fatigue are self-reported symptoms that are difficult if not impossible to verify using objective medical evidence. In fact, at oral argument, Unum conceded that under its interpretation the provision would limit coverage for all conditions in which the disabling symptom is pain. Unum even maintained this was true regardless of the etiology of the pain, so that even if the underlying condition were highly likely to cause pain, the limitation would apply because the pain itself is self-reported and not verifiable. Despite this bold assertion, we have no indication that Unum actually applies or proposes to apply this limitation to disabilities based on diagnoses that can be objectively verified by clinical tests, procedures, and clinical examinations. Neither could this court countenance a reading that would allow Unum arbitrarily to disallow any illness or injury that it preferred not to cover while not making that explicit in its SPD. Although we must give deference to the administrator’s interpretation of the plan terms, see Marrs v. Motorola, Inc., 577 F.3d 783, 787 (7th Cir. 2009) (citing Ross v. Indiana State Teacher’s Ass’n Ins. Trust, 159 F.3d 1001, 1011 (7th Cir. 1998)), we cannot conclude that Unum’s interpretation is reasonable.

The remaining question is whether the diagnosis of disabling fibromyalgia in the present case was based primarily on Weitzenkamp’s self-reported symptoms or on objective medical evidence. Weitzenkamp was diagnosed following the 18-point “trigger test” for the condition. We have recognized that the trigger test can “more or less objectively” establish the disease where the findings of the test are consistent with fibromyalgia. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003). Chronister v. Baptist Health, 442 F.3d 648, 656 (8th Cir. 2006), held that the  [**17] claimant’s fibromyalgia was not within the self-reported symptoms limitation in light of that court’s having already accepted that the trigger test “qualifies as a clinical examination standardly accepted in the practice of medicine.” Significantly, even Unum does not dispute that the diagnosis is objectively verifiable. Because the disabling illness in this case, fibromyalgia, is not primarily based on self-reported symptoms, but rather can be based on the verifiable evidence of its manifestations, the self-reported symptoms limitation does not apply in this case. . . .

If you have a claim against Unum and need assistance, feel free to contact my office.

The American Society of Legal Advocates names Patrick Cruise as a Top 40 Litigation Lawyer under 40 in Tennessee

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Two Recent 6th Circuit Decisions

Two Sixth Circuit decision released last month upheld the denial of LTD benefits.  In one case, the 6th Circuit held that the decision to terminate LTD benefits was not arbitrary and capricious even though employer failed to properly address SSA finding of disability, but where there were six medical opinions adverse to the claimant, and only one in her favor.  Wooden v. Alcoa, Inc., 2013 U.S.App.Lexis 968 (6th Cir. Jan. 11, 2013).  Likewise, in Combs v. Reliance Std. Life Ins. Co., 2013 U.S.App.Lexis 819 (6th Cir. Jan. 10, 2013), the 6th Circuit upheld an ERISA plan administrator’s decision to deny benefits .  In Combs, a couple of facts are worthy of noting.  First, the claimant apparently refused to submit to an examination requested by the insurance company.  Second, the claimant’s condition seemed to involve primarily “subjective” complaints of limitations without much objective support. And finally, the Court found that it was proper to consider evidence obtained on remand.