IME Report Supports Court Ruling in Favor of United of Omaha

Case Name: Tricia Kerridge v. United of Omaha Life Insurance Company

Court: U.S. District Court for the Western District of Michigan

Date of Decision: January 10, 2017

Type of Claim: Long Term Disability under the Employee Retirement Income Security Act of 1974 (ERISA)

Insurance Company: United of Omaha Life Insurance Company

Claimant’s Employer: SAF-Holland, Inc.

Claimant’s Occupation / Job Position: Business Unit Financial Analyst, a sedentary position that involved sitting and walking.

Disabilities: Kerridge submitted a claim for LTD benefits to United, claiming that she became disabled on October 22, 2013, due to “pass[ing] out unexpectedly, loss of memory, [and] can’t function normally.” In the Physician’s Statement, Dr. Wallace described Kerridge’s claimed disability as 9-CM 781.0 (abnormal involuntary movements), dystonia (a movement disorder in which the muscles contract involuntarily, causing repetitive or twisting movements), low Vitamin D, “possible genetic syndrome,” “chronic condition–idiopathic,” and “unable to perform [treatment] – etiology unclear.”

Definition of Disability in the Plan/Policy: The Policy defines “disability” and “disabled” as:

because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred in which You are:

(a) prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and
(b) unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness.

After a Monthly Benefit has been paid for 2 years, Disability and Disabled mean You are unable to perform all of the Material Duties of any Gainful Occupation.

Disability is determined relative to your ability or inability to work. It is not determined by the availability of a suitable position with Your employer.

Other Key Definitions in the Plan/Policy: Material duties are:

the essential tasks, functions, and operations relating an occupation that cannot be reasonably omitted or modified. In no event will We consider working an average of more than 40 hours per week in itself to be part of material duties. One of the material duties of Your Regular Occupation is the ability to work for an employer on a full-time basis.

An employee’s regular occupation “means the occupation You are routinely performing when Your Disability begins.

Basis For Denial / Termination of Benefits: On August 25, 2014, United sent Kerridge a letter stating that it had reviewed the medical evidence that Kerridge had submitted in support of her application for LTD benefits and concluded, in light of the pertinent Policy provisions, that “there [was] no medically based evidence to suggest restrictions and limitations to preclude [Kerridge] from any activity from [her] last day worked forward.” Therefore, United denied Kerridge’s application but informed Kerridge that she was entitled to appeal the claim decision within 180 days.

Procedural history: Subsequent to her denial, Kerridge retained counsel, who filed an appeal on behalf of Kerridge.

On May 8, 2015, United informed Kerridge’s counsel by letter that it had denied Kerridge’s appeal. United indicated that its decision was based on the records from Dr. Wilson and the Cleveland Clinic, the other records in Kerridge’s file, and Dr. Zafar’s report from the IME. United noted that “Dr. Zafar reported that Ms. Kerridge’s clinical examination and testing does not show any definite evidence for an intracranial structural or peripheral neurologic disorder.”

Thereafter, Kerridge filed a civil action in Federal Court seeking review of United’s decision.

Key Physician Opinions: Dr. Wallace restricted Kerridge from sitting, standing, and walking for more than one hour in an eight-hour workday, driving/operating equipment, lifting/carrying, use of hands in repetitive motions, use of feet in repetitive increments, bending, squatting, crawling, climbing, and reaching above shoulder level.

Other Physician Opinions: In connection with Kerridge’s appeal, United retained Mohammed J. Zafar, M.D., board-certified in neurology and clinical neurophysiology, to conduct an independent medical examination (IME) of Kerridge for evaluation of fainting, memory loss, insomnia, and sleep apnea.

Dr. Zafar also answered a series of questions posed by United. In particular, Dr. Zafar stated that Kerridge’s “[l]imitations appear to be more cognitive/neuropsychological in nature,” and suggested that “[n]europsychological evaluation may be considered to better evaluate reasonable restrictions and limitations.” Dr. Zafar also opined that, given the absence of any conclusive medical evidence suggesting a cause for Kerridge’s symptoms, “it would be difficult to suggest any major restrictions and limitations from a neurologic standpoint,” although he noted that a musculoskeletal syndrome may limit Kerridge from performing activities such as reaching or working overhead and that her sleep disorder may require restrictions and limitations as to driving. Dr. Zafar also noted a “paucity of findings both on exam and on the extensive testing (other than the sleep study) which do not reflect the impressions in the medical records.”

Issues: 

1. In order to show that she is entitled to LTD benefits, Kerridge must present objective evidence to support a finding that she is disabled within the terms of the Policy.
2. Kerridge argues that several cases suggest that the Sixth Circuit strongly prefers the medical opinions of treating physicians to those of physicians like Dr. Zafar, who are hired by insurance companies to conduct an IME.
3. Next, Kerridge faults United for failing to employ a vocational expert to support its determination that Kerridge was not unable to perform her job.
4. Kerridge next argues that United’s decision must be reversed because United engaged in selective review, or “cherry-picking” of the evidence in the medical file to support its denial of benefits.
5. Finally, Kerridge argues that United has an inherent conflict of interest because it determines eligibility for benefits and pays those benefits.

Holdings:

1. While it is true that, in the Physician’s Statement Kerridge furnished in support of her claim, Dr. Wallace specified various medical conditions or disorders as bases for Kerridge’s claimed disability and cited numerous restrictions, these statements are unsupported, and even contradicted, by evidence in the record.
   …
   Given the lack of any medical evidence in the record that Kerridge’s sleep apnea (which had improved with CPAP therapy) or her diagnosis of mitochondrial myopathy warranted restrictions or somehow limited Kerridge from performing the material duties of her Financial Analyst position, there is no sufficient basis to conclude that Kerridge is disabled under the Policy.
   …
   Finally, Dr. Zafar’s IME of Kerridge highlights the absence of any objective medical evidence supporting Kerridge’s claim that she was disabled. Dr. Zafar reviewed Kerridge’s medical complaints with Kerridge, reviewed her medical records, and physically examined Kerridge. Dr. Zafar reported mostly normal findings and indicated that he was unable to identify any restrictions and limitations from a neurologic standpoint given the absence of medical evidence suggesting a cause for Kerridge’s symptoms.
2. The cases Kerridge cites, … , do not support her argument. … [E]ven if the Court accepted Kerridge’s proposed rule and disregarded Dr. Zafar’s IME, the Court would still reach the same conclusion because the balance of the medical evidence does not show that Kerridge was disabled.
3. “[A] plan administrator is not required to obtain vocational evidence where the medical evidence contained in the record provides substantial support for a finding that the claimant is not totally and permanently disabled.”
4. Kerridge fails to support this argument by describing the evidence that United allegedly ignored. Thus, this argument also fails.
5. “If the standard of review is de novo, then the significance of the administrator’s conflict of interest evaporates.” … Because the Court has reviewed United’s decision to deny benefits under a de novo standard of review and has not deferred to United’s determination, any asserted conflict of interest is irrelevant to the Court’s analysis.

Noteworthy Court Comments: Although Kerridge argues that “the great balance of medical evidence in this case” supports her claim of disability, the medical evidence discussed above belies this assertion. [Ouch!]

Summary: For the foregoing reasons, the Court will grant United’s motion for judgment on the administrative record, deny Kerridge’s motion for judgment on the administrative record, and affirm United’s decision denying Kerridge LTD benefits.