Case shows difficulty in assessing impact pain or fatigue has on job

April 11, 2012 By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of Daley, DeBofsky & Bryant. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law.

The most difficult disability claims to adjudicate involve symptoms that cannot be objectively verified. Medical science has yet to develop tests that can verify or quantify pain or fatigue, although many medical conditions are associated with such symptoms.

A recent example of such a case is Heim v. Life Ins. Co. of North America. 2012 U.S.Dist.LEXIS 38257 (E.D.Pa. March 21, 2012). There, the plaintiff, Sheryl Heim, worked as a cardiac rehabilitation nurse for many years until she stopped working in 2008 due to an autoimmune disorder that caused her to experience pain, fatigue and weakness as well as a claimed cognitive impairment that was correlated with abnormal findings on an MRI of her brain.

Heim applied both to the Life Insurance Company of North America (LINA) and the Social Security Administration for disability benefits. The Social Security claim was approved; however, LINA denied the long-term disability claim, asserting an insufficiency of evidence and the absence of a neuro psychological evaluation providing evidence of a functional impairment.

Heim appealed LINA's decision and submitted a substantial amount of additional evidence including formal psychological testing, the results of which corroborated her claimed cognitive deficiencies. Nonetheless, after a review performed by a LINA medical director, the denial was upheld. Heim appealed again and requested that LINA provide her with an independent medical examination; however, the claim adjuster talked her into accepting a file review instead.

The review was performed by Dr. Harvey Schwartz, a rheumatologist, who spoke with the treating doctor. Although Heim's doctor reconfirmed his certification of Heim's disability, Schwartz rejected his findings because he claimed the assessment was based on what the claimant had told him. Heim then filed suit.

The court applied the de novo standard of review because the policy only required the submission of "satisfactory proof," which the court explained was inadequate language to trigger a deferential standard of review according to Viera v. Life Ins. Co. of N. Am. 642 F.3d 407 (3d Cir. Pa. 2011) (evaluating a LINA policy and finding "the mere requirement to submit 'satisfactory proof' does not confer discretion upon an administrator"). Turning to the merits, the court began its discussion of the evidence by criticizing LINA for requiring objective evidence to prove a subjective condition. Citing Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), the court pointed out the arbitrariness of requiring objective proof of a condition that cannot be objectively proven such as fatigue. The court also found LINA's failure to conduct an examination undermined its conclusion, citing Mishler v. Met. Life Ins. Co. 2007 U.S. Dist. LEXIS 10403, *20 (E.D. Mich. Feb. 15, 2007) ("Performing a file review when a plan provides a right to an independent medical examination can raise a question about the thoroughness or accuracy of a benefits determination").

The court implied it was underhanded for LINA to convince the plaintiff that a file review was more appropriate than an examination. Although the court determined that an examination was not an absolute requirement, and added that an examination would not even necessarily have been determinative, the court ruled that an examination would have "provided additional information for use in analyzing Heim's claim for benefits."

The court then turned to vocational and other considerations that further undermined LINA's decision. First, the court pointed out that LINA utterly failed to make a determination as to whether Heim could perform her occupational duties (citing Miller v. Am. Airlines, Inc. 632 F.3d 837, 855 (3d Cir. 2011) for the proposition that in evaluating a claimant's occupational disability, the duties of the occupation have to be taken into consideration).

The court explained that LINA only looked at the physical requirements of the plaintiff's occupation but ignored the nonphysical requirements. Heim herself had described her duties as a cardiac rehabilitation nurse: "My job was moderately physically strenuous and highly mentally stressful. As the cardiac rehabilitation nurse I was required to have the ability to think quickly and accurately and to possess extraordinary critical thinking ability as well as the ability to make split second decisions and carry them out." Nor did LINA even accurately assess the plaintiff's physical limitations. Hence, the court concluded:

"LINA did not review the full range of requirements of Heim's occupation and did not relate those requirements to her diagnoses, which it concedes, or to her symptoms, which it unreasonably rejects as lacking any objective medical bases. LINA made absolutely no attempt to establish Heim's physical or mental capabilities by way of an IME, a vocational assessment, a functional capacity exam or any other means. Instead, LINA simply rejected her reports of pain and fatigue, ignored the Social Security Administration's determination that she is disabled and declared she was able to perform the 'essential duties of her job' without ever noting those duties or explaining how her symptoms would impact her responsibilities."

The court, therefore, awarded benefits, rejecting LINA's request for a remand. The court found that the evidence was conclusive in supporting Heim's occupational disability and that evidence included a Social Security award, leading the court to conclude that substantial evidence firmly supported a conclusion that the plaintiff was disabled.

Three key points are made by this ruling: First, in assessing symptoms such as fatigue, so long as there is a correlation between the diagnosis made and the reported symptoms, the insurer cannot simply dismiss the symptom complaints as self-reported. Instead, the insurer must evaluate the symptoms in determining whether such symptoms would interfere with the claimant's ability to perform her job.

Second, a disability determination involving an occupational disability claim; i.e., is the claimant precluded from performing the material duties of her regular occupation, cannot be limited strictly to the physical aspects of an occupation. The insurer must consider cognitive and other nonphysical job requirements in addition to the physical requirements.

Finally, insurers' reliance on file reviews raises judicial skepticism, particularly where subjective symptoms need to be assessed. The court clearly grasped the significance of all of these issues.