Benefit plan took the necessary steps
Chicago Daily Law Bulletin
October 29, 2007
by MARK D. DEBOFSKY
In LaSalle v. Mercantile Bancorporation Inc. Long Term Disability Plan , 2007 U.S.App.LEXIS 19573 (8th Cir. Aug. 17), the plaintiff, who suffered from severe liver disease and had undergone two liver transplants, began receiving benefits in 1998. Benefits were paid on account of LaSalle's physical limitations until June 2001. At that time, an independent medical examination found LaSalle no longer had any physical or cognitive limitations that would prevent him from working; however, he did show psychiatric symptoms that would preclude work. Benefits therefore were continued on psychiatric grounds until 2004. At that time, LaSalle was required to undergo an independent psychological evaluation that found ''probably malingered neurocognitive dysfunction,'' especially since he was admittedly capable of such activities as paying bills, trading stocks on the Internet, cooking, and playing eighteen holes of golf multiple times per week. Although the treating doctor was critical of the neuropsychologist's findings for not diagnosing depression or anxiety, the examining psychologist responded by reporting that there were not enough findings to make any such diagnoses and that LaSalle could return to work following a short period of rehabilitation. Based on the independent evaluation and further analysis, benefits were then terminated.
LaSalle appealed; and two doctors, Milton Jay, an educational psychologist, and Maureen Smith, M.D., a psychiatrist, reviewed his file. Both doctors found no evidence of cognitive, mental, or emotional impairments that would interfere with LaSalle's ability to work. However, LaSalle provided as part of his appeal a neuropsychological evaluation that criticized the earlier one for relying on an unpublished test and a test that is infrequently used to detect malingering. The psychologist also found that LaSalle did suffer a cognitive decline and could not perform his occupation. Hartford's consultants disagreed, though, and maintained the tests that were initially used were legitimate neuropsychological tests that are well-known and frequently utilized. Accordingly the denial was upheld.
LaSalle was unsuccessful in the district court, and the court of appeals affirmed. Applying a deferential standard of review, the 8th U.S. Circuit Court of Appeals rejected the plaintiff's assertion of procedural irregularities in the claim process. Turning to the substantive merits, the court expressed the following rationale:
''The Subcommittee had sufficient evidence to support a reasonable conclusion that LaSalle was able to work. Dr. Denney found LaSalle's performances on memory tests strongly indicative of malingering. On one test, his overall performance was over seven standard deviations below the average of patients with severe brain damage. According to Dr. Denney, '[s]uch a score is statistically impossible for an individual giving their best appropriate efforts ... especially an individual who was not obviously, and grossly, impaired in their activities of daily living.' (Appellant's App. 110). While Dr. Denney found LaSalle may have some 'very mild cognitive difficulties,' he opined that LaSalle's performance met the criteria for 'probable malingered neurocognitive dysfunction.' (Id. at 114). Dr. Denney found no substantial impairment to LaSalle's ability to perform any occupation, noting that LaSalle engages in a number of physically and mentally demanding tasks outside of work (including regular rounds of golf and trading stocks on the Internet) that are generally inconsistent with an inability to perform 'any occupation.' The two doctors consulted during the administrative appeal likewise opined that LaSalle was able to perform some work.''
The court also pointed out the opinions given by LaSalle's treating doctor and by the neuropsychologist he hired did not provide ''a strong contrary opinion on the ultimate issue.'' The evaluating neuropsychologist found LaSalle could not perform his past work, but the benefit plan required his inability to perform any work for which he was qualified or could be trained. The treating doctor also reported that there were jobs LaSalle could probably perform.
This ruling presents compelling grounds for upholding the claim determination. No doubt, anyone who has undergone two liver transplants suffers from a serious illness. However, it appears the treatment was successful, leaving only the psychiatric impairment as grounds for the continuation of benefits. In view of LaSalle's activities, it is hard for anyone to imagine that he would not be capable of working if he could frequently golf and perform so many other activities. Indeed, in Osborne v. Hartford Life & Accident Insur.Co., 465 F.3d 296 (6th Cir. 2006), the court was troubled by a claimant who played cards at his country club, an even less stressful or physically demanding activity than golfing. To make matters worse, the degree to which LaSalle's performance on the neuropsychological testing was so evidently misstated was enough to convince the court that the claimant's credibility was deficient. Nonetheless, the court respectfully addressed all of the plaintiff's arguments, coming to the conclusion that even looking at the case in a light most favorable to the claimant, even his own doctors did not support an inability to work at any job.
One issue that does cut the other way, though, was the independent neuropsychologist's comment that LaSalle should be able to work after undergoing rehabilitation. In Govindarajan v. FMC Corp., 932 F.2d 634 (7th Cir. 1991), the 7th Circuit held that an opinion the claimant should be able to return to work following ''work hardening'' was not a sufficient basis to terminate benefits. Here, too, LaSalle's skills may have diminished to the point where he was not capable of working without retraining; and unless rehabilitation is mandatory, which would be unusual since most states prohibit mandatory rehabilitation, it would have been helpful if there had been additional vocational testing and evaluation.
All in all, this is one case where the standard of review was inconsequential. Even if the court were to have weighed the evidence without giving deference to the benefit plan's decision, the judgment would have undoubtedly remained the same. This is a claim where the benefit plan thoroughly evaluated the claim, had the claimant evaluated first-hand by an appropriate specialist, and reviewed and addressed all of the issues.
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