Disclaimer: This was not a long-term disability 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: Gilmore v. Liberty Life Assurance Company of Boston
Court: United States District Court for the Northern District of California
Type of Claim: Long Term Disability
Insurance Company: Liberty Life Assurance Company of Boston (hereinafter Liberty Life)
Claimant’s Employer: Wells Fargo & Company
Disabilities: Cervical arthritis; status post an anterior cervical spinal fusion surgery; a subsequent motor vehicle accident that fractured the screws, requiring an additional posterior spinal fusion; and resulting pain disorder due to constant neck and arm pain and headaches.
Benefits Paid: Short Term Disability benefits were paid. Long Term Disability benefits were initially approved and then cut-off.
Issues: The central issue raised by the plaintiff’s first cause of action is whether she is partially disabled under the terms of the Policy, and thus entitled to LTD benefits. The plaintiff bears the burden of establishing such entitlement by a preponderance of the evidence.
Holding: A Long Term Disability insurance company can waive the limitations period by failing to provide the policy document upon request.
Summary: In Gilmore, the plaintiff’s LTD benefits were initially approved as she was only capable of performing part-time work. Liberty Life requested that an “independent” physician review plaintiff’s file and prepare a peer review report. Two weeks later, Dr. Kopacz issued a two-page report, based on a review of the plaintiff’s medical records. Dr. Kopacz noted that the plaintiff had reported neck pain and right arm pain during her most recent visit to her doctor, but also concluded that “there is no additional diagnosis available to support the current complaints” and that “there would be no medical necessity for ongoing treatment.” Dr. Kopacz ultimately concluded that the plaintiff “should be able to work in a full-time occupation as of 5/25/11 with the only restriction to occasional work activities above shoulder level.” However, as the plaintiff pointed out, Dr. Kopacz’s conclusion was based entirely on a review of the plaintiff’s medical records, as no interview or in-person medical examination was conducted.
After receiving Dr. Kopacz’s report, Liberty determined that plaintiff’s part-time work restriction was not justified, because her job did not require overhead reaching. As a result, Liberty terminated the plaintiff’s LTD benefits.
The plaintiff filed an appeal of the termination of her LTD benefits. As part of her appeal, the plaintiff submitted her medical records from Dr. Qureshi and her physical therapy records, which included consistent reports of pain in her neck and right arm, which led to her 20 hours/week work restriction.
After receiving her appeal, Liberty requested a second peer review report from an independent physician (Dr. Kelly Agnew). Dr. Agnew, like Dr. Kopacz, based his report on a review of the plaintiff’s medical records, choosing not to conduct an interview or an in-person examination of the plaintiff. despite noting the plaintiff’s consistent reports of pain, Dr. Agnew concluded that “it does not appear that there is any lingering evidence of any significant neurologic problem to accompany those complaints,” and thus, “[a] restriction to twenty hours per week cannot be substantially substantiated.” Based on Dr. Agnew’s report, Liberty upheld the denial of the plaintiff’s LTD benefits.
The plaintiff filed a lawsuit against Liberty Life for her benefits. In their cross-motions for summary judgment, the parties disputed the type of
evidence needed to establish that plaintiff is partially disabled under the terms of the Policy. Liberty Life maintained that the plaintiff needed to present “objective medical evidence” supporting her self-reports of pain. Liberty’s argument was based on the Policy’s definition of “proof,” which included “the provision by the attending Physician of standard diagnosis, chart notes, lab findings, test results, x-rays, and/or other forms of objective medical evidence in support of a claim for benefits.” However, the plaintiff noted that the Policy’s full definition of “proof” includes introductory language stating that “‘Proof’ means the evidence in support of a claim for benefits and includes, but is not limited to, the following.” The plaintiff thus argued that, while objective medical evidence may be sufficient to support a disability claim, it was not necessary to do so.
In making its decision, the District Court heavily cited the case Saffon v. Well Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008), where the Ninth Circuit has discussed the impracticality of proving pain through objective evidence:
Like the plaintiff in this case, the Saffon plaintiff suffered from a cervical spine pathology that was aggravated by a car crash. 522 F.3d at 866. The insurer paid LTD benefits for one year, before determining that the plaintiff “no longer met the definition of disability” and terminating benefits. Id. As in this case, the insurer in Saffon based its initial denial on the report of a physician who reviewed the plaintiff’s medical records, but did not conduct an in-person examination. The reviewing physician found that the plaintiff’s medical record lacked “detailed, objective, functional findings or testing which would completely preclude” plaintiff’s return to work. [Foot note 3: “Notably, the Saffon plaintiff sought a determination that she was totally disabled, and thus unable to return to work on any basis, whereas the plaintiff in this case seeks only a finding that she is partially disabled and entitled to partial LTD benefits.] Id. at 869. The Saffon plaintiff appealed the benefits termination, and the insurer had a second physician review her records – but like the first reviewing physician, he “neither examined nor interviewed her.” Id.
The Saffon court noted that, in denying the plaintiff’s claim and appeal, the insurer was required to give her a “description of any additional information” that was “necessary” for her to “perfect the claim,” and was required to do so “in a manner calculated to be understood by the claimant.” 522 F.3d at 870 (citing 29 C.F.R. § 2560.503-1(g)). But instead of doing so, the insurer simply provided “a long series of unconnected adjectives” (purporting to require “detailed, objective, functional findings or testing” in order to perfect the claim). Id. The Saffon insurer failed to “explain why the information Saffon has already provided is insufficient” to establish that she was disabled. Id.
The Saffon court emphasized that “individual reactions to pain are subjective and not easily determined by reference to objective measurements.” 522 F.3d at 872; see also Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) (“[P]ain is a completely subjective phenomenon” which “cannot be objectively verified or measured.”). The Saffon court vacated the district court’s decision entering judgment in favor of the plan administrator, and remanded the case for a determination of whether the plaintiff was actually disabled. 522 F.3d at 873-74.
The court found the reasoning of Saffon to be persuasive:
The administrative record contains multiple self-reports of pain in plaintiff’s neck and right arm, and, importantly, plaintiff reported increased pain after working on a part-time basis. And as the Saffon court noted, pain is inherently subjective, and cannot be definitively proven by objective evidence. Also, as in Saffon, Liberty did not provide plaintiff with a description of the specific type of evidence that would be sufficient to perfect her claim, stating only that it was “in need of additional medical information,” requesting “office notes, diagnostic test results, therapy notes, treatment notes, procedure reports, and restrictions documentation.” … Liberty never described to plaintiff the type of evidence that would be sufficient to support her subjective experiences of pain. Indeed, the type of evidence that plaintiff did submit appears to be the best type of evidence available under the circumstances.
Rather than giving credence to these records, Liberty chose to defer to the findings of two physicians who neither examined nor interviewed plaintiff. See Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 634 (9th Cir. 2009) (refusal to order in-person examination “raise[s] questions about the thoroughness and accuracy of the benefits determination.”). And while Dr. Kopacz and Dr. Agnew did note plaintiff’s reports of pain, they disregarded those self-reports and focused on the lack of objective medical evidence to support plaintiff’s claim. In doing so, Liberty ran contrary to the holdings of Salomaa and Saffon, both of which recognized the shortcomings of objective medical evidence in evaluating reports of a subjective phenomenon such as pain. The court finds that plaintiff’s reports of pain are credible, and disagrees with Liberty’s counsel characterization (made at the hearing) of plaintiff’s part-time work restrictions as a “lifestyle choice.” In particular, the court finds plaintiff’s willingness to return to work only six months after spinal surgery to be inconsistent with an attempt to manufacture or exaggerate pain symptoms. The court also finds that plaintiff’s subjective reports of pain are supported by the objective indicia of her spine pathology – especially the broken screws in her neck that were noted in January 2011 (CF 00147-148), and the disc collapse that was noted in January 2012 (CF 00155). The court finds that plaintiff’s consistent reports of pain, noted by plaintiff’s physician and physical therapist throughout the relevant time period, combined with the objective evidence of plaintiff’s spine pathology, was sufficient “proof” of partial disability under the Policy. Thus, the court finds that plaintiff has shown that Liberty was incorrect in denying benefits based on the evidence in the administrative record, and GRANTS plaintiff’s motion for judgment on the first cause of action and DENIES defendant’s motion for judgment on the first cause of action.
Here is a complete copy of the court’s decision: Gilmore v. Liberty Life Assurance Company of Boston
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