McKenna v. Aetna – Failure to Order IME a Factor in De Novo Review

Disclaimer: This was not a case handled by disability attorney Nick A. Ortiz. The court case is summarized here to give readers a better understanding of how Federal Courts decide long term disability ERISA claims.

Case Name: McKenna v. Aetna Life Insurance Company

Court: United States Court of Appeals for the Sixth Circuit.

Type of Claim: Long Term Disability ERISA.

Insurance Company: Aetna Life Insurance Company (hereinafter Aetna).

Claimant’s Employer: Down Corning Corporation.

Disabilities: lower back pain due to a disc bulge with central protrusion at L3-L4 and L4-L5 with facet hypertrophy and mild bilateral foraminal narrowing at L4-L5.

Benefits Paid? Long Term Disability benefits were initially approved and then cut-off.

Issues: (1) The Appellant was unable to perform the material duties of her own occupation for a portion of the period for which she applied for benefits and, accordingly, Aetna granted the claimant LTD benefits from September 25, 2012 through February 23, 2013. The Sixth Circuit court’s task was to determine whether the evidence showed that the Appellant remained disabled beyond February 23, 2013.
(2) Aetna relied on a file review as opposed to a physical examination of Appellant. The Sixth Circuit held the failure to order an independent medical examination when one was available under the policy was a factor for the court to consider in reviewing the thoroughness and accuracy of the benefits determination in a de novo review.

Holding: The Sixth Circuit reversed the decision of the district court and remanded to Aetna to determine the scope of Appellant’s entitlement to benefits beyond February 23, 2013

Summary: The Appellant appealed the judgment of the district court affirming the partial denial of long-term disability (“LTD”) benefits in the case brought under the Employee Retirement Income Security Act of 1974. The Sixth Circuit Court reversed the judgment of the district court under a de novo standard of review.

The Sixth Circuit noted that the district court identified the proper standard of review, but did not appear to have applied that standard:

“The district court identified the de novo standard as the proper standard of review, but it does not appear to have applied that standard. Rather, the court appears to have treated Aetna’s decision as requiring deference, analyzing primarily whether Aetna’s reliance on a nonexamining physician’s opinion was permissible and whether Aetna provided an explanation for its disagreement with Dr. Adams’s conclusion that Plaintiff was disabled. On de novo review, the issue is not whether the administrator was allowed to rely on a file review or whether it provided an adequate explanation for its decision. Rather, the appropriate inquiry is whether the denial of benefits was correct given the medical evidence in the record.”

As explained above, Aetna approved Appellant’s claim for LTD benefits from September 25, 2012 through February 23, 2013 but denied her claim for benefits for any period thereafter. Thus, the Sixth Circuit limited its review to determining, de novo, whether Appellant was entitled to benefits beyond February 23, 2013.

Dr. Rubin, a non-examining physician, opined that the Appellant’s pain should resolve by February 23, 2013, and Aetna relied on that opinion in its determination. The Appellant argued that the Sixth Circuit Court of Appeal should give little weight to Dr. Rubin’s opinion because he conducted only a file review despite the fact that Aetna retained the right to conduct an independent medical examination, or physical examination, of the Appellant:

As Appellant concedes, there is “nothing inherently improper with relying on a file review, even one that disagrees with the conclusions of a treating physician.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 297 n.6 (6th Cir. 2005). Rather, whether Aetna relied on a file review as opposed to a physical examination of Appellant is just one factor courts consider in determining whether a plan administrator was arbitrary and capricious and “may, in some cases, raise questions about the thoroughness and accuracy of the benefits determination.” Id. at 295. While we do not apply an arbitrary and capricious standard of review in this case, we find the case law similarly applicable to our de novo review. James v. Liberty Life Assurance Co. of Boston, 582 F. App’x 581, 586 n.1 (6th Cir. 2014) (citation omitted). Accordingly, when determining whether Aetna properly denied LTD benefits beyond February 23, 2013, we will weigh Dr. Rubin’s report, considering the fact that he did not conduct a physical examination, while keeping in mind that there is nothing inherently improper with relying on a file review.

Upon de novo review, we give little weight to Dr. Rubin’s conclusion that Appellant could return to work on February 24, 2013. Dr. Rubin fails to explain the basis for his opinion that Appellant’s condition and symptoms—which he agreed both prevented her from performing the material duties of her occupation and had exhibited a chronic pattern—would continue only through February 23, 2013. Based on the record, we must guess that this estimated “recovery date” came from Dr. Adams’s August APS.

Reviewing the evidence in context, we conclude that a fair reading of the administrative record is that Dr. Adams’s initial opinion about Appellant’s return to work date was just that—an initial opinion. For this reason, and because Dr. Rubin neither conducted his own physical examination of Appellant nor offered any other explanation as to why he believed Appellant’s condition and symptoms would continue only through February 23, 2013, we give little weight to his opinion that her abnormal findings would be expected to continue only through that date.  Instead, we look at the entire administrative record to determine whether there was any indication of abnormal findings or continued disability beyond February 23, 2013.

Here is a PDF version of McKenna v. Aetna available for download:

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