Case Name: Christopher Esbensen v. Life Insurance Company of North America
Court: United States District Court for the Middle District of Pennsylvania
Date of Decision: March 21, 2016
Type of Claim: Long Term Disability under the Employee Retirement Income Security Act (“ERISA”)
Insurance Company: Life Insurance Company of North America (“LINA”)
Claimant’s Employer: Sears Holding Management Corporation
Claimant’s Occupation / Job Position: Service Technician
Disabilities: Severe pain and limited mobility throughout his body, without injury or trauma. A rheumatologist diagnosed the plaintiff with undifferentiated spondyloarthropathy and possible ankylosing spondylitis.
Definition of Disability in the Plan/Policy: Plaintiff is entitled to LTD benefits under the policy only if he is “Disabled” as that term is defined in the policy. The policy defines “Disability/Disabled” as follows:
“The Employee is considered Disabled if, solely because of Injury or Sickness, he or she is unable to earn more than 80% of his or her Indexed Earnings from any Employer in his or her local economy at any occupation for which he or she is reasonably qualified based on education, training or experience.
After Disability Benefits have been payable for 24 months, the Employee is considered Disabled if, solely due to Injury or Sickness, he or she is unable to earn more than 60% of his or her Indexed Earnings from any Employer in his or her local economy at any occupation for which he or she is reasonably qualified based on education, training or experience.”
Benefits Paid? Yes. LINA granted benefits for three months through May 26, 2013, as plaintiff had started on new pain medication on February 26, 2013, and it would be reasonable to expect a three-month period of adjustment.
Basis For Denial / Termination of Benefits: ”Defendant terminated the benefits again three months later on May 26, 2013, as plaintiff had provided no medical documentation that suggested a) the pain medication had not worked within the expected three-month window or b) plaintiff had an ongoing disability that prevented him from doing any occupation.”
Key Physician Opinion(s): ”To evaluate the appeal, defendant obtained a peer review through a consulting company, MES Solutions. MES Solutions retained a doctor, Denise Beighe, M.D., to conduct the peer review. Dr. Beighe, after reviewing the medical documentation, concluded that the plaintiff had certain physical limitations. Specifically, she found that plaintiff: a) could only walk or stand one (1) hour a day; b) could only lift/push/pull ten (10) pounds or less; and c) could not stoop, bend, crawl, kneel, crouch, or squat at work.”
The defendant’s peer review consultant appears to derive the bulk of her opinion to deny benefits from the records of Dr. Vito Loguidice. Loguidice is an orthopedist who completed a physical ability assessment in March 2013. He concluded that plaintiff could constantly reach, perform fine manipulation, grasp, lift 20 pounds, carry 20 pounds, balance, stoop, kneel, crouch, crawl, see and hear. He further concluded that plaintiff could frequently stand, walk, lift 50 pounds and carry up to 50 pounds and that he could occasionally, sit, lift up to 100 pounds, carry up to 100 pounds, push or pull 50 pounds and climb.
“The consultant’s reliance on Loguidice’s opinion, however, does not provide support for her conclusion. She examined only one office record from Loguidice and the physical assessment form he completed a year and a half after he saw plaintiff. Defendant claims that “[a]s Plaintiff was asserting a disabling spinal condition, his orthopedist’s assessment was particularly pertinent.” We disagree. Instead of treating plaintiff himself, Loguidice referred him to a rheumatologist in November 2012, after seeing plaintiff once.
The record reveals that plaintiff did indeed begin treating with doctors who specialized in rheumatology. Jolanta Zelaznicka, M.D., a rheumatologist, diagnosed plaintiff with undifferentiated spondyloarthropathy and possible ankylosing spondylitis in December 2012.
Zelaznicka treated plaintiff with injections of an Ankylosing Spondylitis medicine, Enbrel, which improved plaintiff’s condition according to a January 22, 2013 progress note. Dr. Zelaznicka indicated that plaintiff was not able to return to work, and continued to have the same opinion a month later. Dr. Zelaznicka last saw the plaintiff in June 2013 and opined he had a severe disease and was unable to do any manual work. Dr. Zelaznicka completed a Physical Ability Assessment for use by the defendant’s peer review consultant. The peer review report indicates that Dr. Zelaznicka opined that plaintiff could lift less than ten (10) pounds and carry less than ten (10) pounds. In a telephone call to the consultant, however, Dr. Zelaznicka emphasized that she considered defendant to be unable to do manual labor, but that she had not treated him for approximately nine (9) months and could not comment on his disability since that time. Regardless, it appears that the peer review consultant relied on the assessment that Dr. Zelaznicka completed in rendering her decision.
At the time of the review, plaintiff was being treated by Ellen M. Field, M.D. another rheumatologist. Dr. Field wrote a letter on plaintiff’s behalf stating: “Christopher Esbensen is a patient of mine who suffers from Ankylosing Spondylitis. He is incapacitated from any job. He has marked limitation of motion and pain.” This letter is dated March 5, 2014, approximately a month before the issuance of the peer review report.
Dr. Field gave the same opinion to defendant’s consultant when she called to discuss plaintiff’s health status three days before the issuance of the peer review report. The consultant reported that: “Dr. Field stated the [plaintiff] had no insurance for a while and was unable to get Remicade so AS (ankylosing spondylitis) flared. Now the claimant is back on Remicade and his AS is not under control yet. Lyrica was added to help reduce pain. Dr. Field feels the claimant is unable to work at all at this time. She thinks that maybe in 1 year he may be able to do sedentary work.”
Key Vocational Expert Opinion(s): Defendant ordered a transferable skills analysis to determine if any sedentary occupations existed that plaintiff could perform based upon the limitations Dr. Beighe noted. An occupation specialist concluded that several jobs existed in the relevant market that plaintiff could perform. Defendant thus denied plaintiff’s request for long-term disability benefits.
Issues: ”Here, the defendant argues that plaintiff is not disabled under the plan and that this conclusion is supported by the medical records and the report of its peer review consultant. Plaintiff, on the other hand, argues that defendant improperly based its decision on the report of a peer review doctor who did not examine plaintiff but merely did a “paper-review” consultation that came to a conclusion contrary to the treating and examining physician’s consistent and concurring opinion that plaintiff is disabled. After careful review, we agree with the plaintiff.
We must review the medical records to determine if defendant made an arbitrary and capricious denial of benefits.”
Holdings: ”Based on all of the above, the defendant’s decision is an abuse of discretion. It should have been clear when reading the report of the consultant that her conclusion was based on stale records of a doctor who was not treating plaintiff and that the records of plaintiff’s treating physicians were ignored or minimized. Generally, “[t]he Courts have frequently expressed concern where, as here, the administrator denies a claim with reliance on the reports of paper-review consultants, in opposition to the treating and examining physicians’ consistent and concurring opinions that the claimant is disabled.” Schwarzwaelder v. Merrill Lynch & Co., 606 F. Supp. 2d 546, 559 (W.D. Pa. 2009). Such concern increases, where as here, the conclusions of the paper-review consultant is simply not supported by the medical records.”
Summary: ”In summary, defendant relied upon its consultant’s report to deny benefits. The consultant did not physically exam the plaintiff, but merely reviewed his medical records. The evidence that defendant’s consultant relies on to find that defendant is not “disabled” under the plans, is from a doctor who, as far as the records the consulted reviewed are concerned, examined plaintiff one time and then referred him to the rheumatologists. Moreover, both rheumatologists who treated plaintiff opined that he was indeed disabled. According to the peer review report, both of the rheumatologists reported their conclusion to the consultant in telephone conversations. The conclusion by the peer review consultant is without reason when the evidence of record is examined. Thus, defendant acted arbitrarily and capriciously when relying on the peer review report to deny benefits.”
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