Brown v. LINA – Can A Peer Review Physician Outweigh My Physician’s Opinion?

Can an insurer cut off benefits based on a two-day physical exam that missed the full picture? A federal court said no — ruling that uncontroverted opinions from three treating physicians beat a poorly-informed FCE and inconclusive surveillance footage.

Background

In Brown v. Life Insurance Company of North America, decided December 12, 2014 by the United States District Court for the District of Arizona, the claimant was a General Counsel/Commercial Lawyer at National Instruments who sought long-term disability benefits through a policy administered by Life Insurance Company of North America (“LINA”). She suffered from Complex Regional Pain Syndrome (CRPS), frequently referred to as Reflex Sympathetic Dystrophy (RSD), migraine headaches, Nutcracker Syndrome, connective tissue disease, synovitis, and autoimmune ailments diagnosed as scleroderma and lupus.

Under the terms of the LTD Plan, the claimant was considered disabled if, solely because of injury or sickness, she was unable to perform the material duties of her regular occupation and unable to earn 80% or more of her indexed earnings from working in that occupation. After 24 months of benefit payments, the definition converted to a stricter standard: she had to be unable to perform the material duties of any occupation for which she was, or could reasonably become, qualified based on education, training, or experience, and unable to earn 60% or more of her indexed earnings. The Plan required proof of both continued disability and earnings.

LINA paid LTD benefits for two years before terminating them at the end of the “own occupation” period, when the definition of disability converted to the “any occupation” standard.

Key Physician Opinions

The Plaintiff had numerous treating physicians who provided opinions in support of the disability claim, opining that she is disabled and providing medical documentation in support of the views.

Brown’s appeal was reviewed by Appeals Specialist Keith E. Jackson, internist Dr. Jacqueline E. Hess (a third-party physician), and Nurse Case Manager Linda Van Pelt. She was also surveilled before the FCE. A physical therapist, Ms. Lunda, conducted the FCE.

Procedural History: After her benefits were cut off, the Plaintiff timely appealed. LINA denied the appeal. The Plaintiff exhausted her administrative remedies and filed a lawsuit.

Issues

1. Whether the Functional Capacity Examination was sufficient.
2. A primary post-decision fight is whether or not the Plaintiff had cognitive impairment and was debilitated from the pain medication that she was taking. Whether applying the sedentary or occupational employment standards, pain and the medication required for pain is a primary issue.
3. Whether the Plaintiff has satisfied her burden of proof proving disability.

Holdings

1. On August 14, 2012 (after benefit payments stopped but before the decision on the appeal), the Plaintiff’s primary care doctor wrote that Brown continued to be disabled and that the FCE examiner was unaware or unappreciative of the medical complexity of Brown’s condition:
   
   “I have reviewed the Functional Capacity Evaluation (FCE) performed on February 13-14, 2012 and do not feel that it provided an adequate assessment of Rebecca’s situation. The physical skills and abilities measured by the FCE are a snapshot in time barely relevant to Rebecca’s complex overall medical conditions including the CRPS, Connective tissue Disorder, and medication-related side effects including fatigue.
   
   The mid-February timing of the FCE was immediately before a flare of symptoms from her (then) less appreciated Nutcracker Syndrome. The symptoms of pain were so severe at times at the beginning of March that I ordered additional testing and a referral to a specialist (Dr. Stephens) who referred Brown for more testing and to Dr. Trinidad who thought the condition warranted major surgery. Surgery was recommended in early April and performed May 23.”
   
   The Court stated, “The examiner was not well informed of the complexity of Brown’s medical problems prior to the exam.” (emphasis added).
2. “There is no basis for questioning Plaintiff’s credibility on this issue. In addition, at least three treating physicians’ opinions corroborate her pain level – from constant to flaring – and produced objective medical evidence for such.”
3. The Court stated, “After a de novo review, the Court finds that Plaintiff has met the burden of proof based on the treating physicians’ medical opinions derived before and through March 2012. Unfortunately, the Plaintiff has diseases and treatments for these diseases that are incompatible with working in her own occupation as an attorney or any gainful occupation over a consistent period of time.
   …
   Consideration of Plaintiff’s pain and the treatment for pain is a significant aspect of this conclusion, in conjunction with her physical impairments. All of her treating physicians have produced objective medical evidence of an underlying impairment that would reasonably be expected to produce pain. She was being treated for the pain, and Plaintiff claims that those treatments in combination with the pain and other physical impairments have a direct impact on her ability to function on a consistent basis.
   
   There is no reason to question Plaintiff’s credibility here. The FCE consisted of over a two-day period of physical tests observed by a physical therapist and the surveillance produced evidence of relatively no activity other than driving to and from locations. The Court accepts Plaintiff’s debilitating pain as true.
   …
   The fact is that three of Plaintiff’s treating physicians opined that she is disabled and those opinions are uncontroverted; disabled under both definitions of “disabled” under the Plan.”

Summary

“IT IS ORDERED that Defendants’ motion for decision on the administrative record is DENIED and Plaintiff’s motion for summary judgment is GRANTED. A Final Judgment shall enter separately in favor of Plaintiff which should include an award of retroactive benefits calculated from March 8, 2012, to the date of this Order set off by any SSDI income received on a monthly basis.”

Here is a copy of the decision: Brown v. LINA