Chicago Daily Law Bulletin

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations

Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.

- See more at: http://www.debofsky.com/articles-and-archives/articles-by-mark-d-debofsky/chicago-daily-law-bulletin/#sthash.Qjs7kH7w.dpuf Chicago Daily Law Bulletin
Cherry-picking info has its pitfalls

October 4, 2004
by Mark D. DeBofsky

Charles Paterson was a computer-support specialist for UPS, and in a lawsuit he alleged disability due to psychiatric issues relating to anger and impulse control. Despite the substantial evidence that Paterson submitted in support of his claim, the plan denied benefits even though the evidence included four admissions to a stress center and a hospital admission due to a suicide attempt.
Applying a deferential standard of review, the U.S. District Court for the Southern District of Indiana concluded that UPS's decision was arbitrary and capricious. Paterson v. United Parcel Service Flexible Benefits Plan, 2004 U.S. Dist. LEXIS 14119 (S.D. Ind., June 25).

The court utilized a five-factor test prescribed by the 7th U.S. Circuit Court of Appeals: ''the impartiality of the decision-making, the complexity of the issues, the process afforded the parties, the extent of involvement by experts when needed, and 'the soundness of the fiduciary's ratiocination.' Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995).''

On the first ground, the court could find no evidence of partiality. Although the reviewers were hired by the plan, there was no evidence that the plan's decision was financially motivated.

However, the plaintiff was more successful in arguing the lack of soundness of the fiduciary's ratiocination. Although the initial claim was not well-supported, as the appeal developed, the evidence of Paterson's low frustration tolerance and the potential that he would be a threat to himself and others became clearer.

''At least on the surface,'' the court explained, ''the additional documents presented substantial evidence supporting [clinical psychologist Tom] Barbera's assessment of Paterson's inability to work. While ERISA does not impose a treating physician's presumption, it does not allow plan administrators to act arbitrarily or unreasonably in rejecting any reliable evidence such as the treating physician's opinions.

''An administrator's decision may be arbitrary and capricious if 'the decision-maker overlooked something important or seriously erred in appreciating the significance of evidence.' Patterson v. Caterpillar Inc., 70 F.3d 503, 505 (7th Cir. 1995). In relying on [psychologist Robert] Dawes' review to rebut the documentation about Paterson's severe depression, his memory problems, his attempted suicide and the risk of violence, the plan did just that. Either the plan overlooked the extent of Paterson's latest evidence or it failed to appreciate the significance.'' At *19-*20.

Although the defendant's reviewer noted that the plaintiff's cognitive abilities were normal, as the court pointed out, Paterson's cognitive abilities are not in issue - the crux of his claim was his inability to work with others. The court criticized the reviewer for overlooking the issue and minimizing the evidence showing a history of violent behavior and a suicide attempt.

The court elaborated: ''Requiring that a person's impulse control be 'continuously compromised' before the ability to work with others is impaired is unreasonable. Requiring persons to proclaim their desire to kill themselves or others before acknowledging that a threat of suicide might exist is also unreasonable. The frequency of Paterson's outbursts and lack of voiced threats are relevant. However, such evidence goes to degree, and Dr. Dawes had no evidence of his own on either issue. He has merely pointed out that Paterson's outbursts are not constant and that the risk of violence is not overt.

''Dr. Dawes ignored the questions that a reasonable plan administrator would ask. How often does the employee have emotional outbursts and to what degree? Can these outbursts be constrained by medication? What is the risk to co-employees? Paterson has made a prima facie showing that he is unable to perform at least one of the substantial duties of his position - the ability to work with others. He has offered as evidence a treating physician's assessment of his disability substantiated by other medical records.

''The issue is not whether there is a treating physician's presumption but the manner in which that physician's evaluation must be considered.'' At *21-*22.

The court suggested that the insurer could have requested documentation that the treating doctor relied on in formulating his opinions, or it could have arranged for an independent medical examination. However, the court faulted the insurer for simply denying the claim merely by pointing out discrepancies in the medical record.

''If that were the case,'' the district judge held, ''no court would likely ever find a violation of the arbitrary and capricious standard, at least when the claimant has a substantial medical record. The arbitrary and capricious standard is not an invitation to rubber-stamp an administrator's decision. Swaback v. American Information Technology Corp., 103 F.3d 535, 540 (7th Cir. 1996).'' At *22-*23.

U.S. District Judge Larry J. McKinney did a superb job in this case of analyzing the meaning of the arbitrary and capricious standard of review, and pointing out that such a review is not a rubber stamp. Cherry-picking the medical records for discrepancies is not a basis for denying a claim; as the court pointed out, there must be evidence on which the plan administrator could justifiably rely.

The court also did an excellent job of reframing the issue: Instead of diminished cognition, the court recognized that the most significant impediment to the plaintiff's ability to work was his ability to work with others. As with many disability cases, one of the key points made in this ruling is that insurers act at their peril in denying benefits without any first-hand evidence supporting their medical conclusions.

Even under a deferential standard of review, such a strategy is risky when the plaintiff presents evidence demonstrating a significant impairment that imposes obvious job restrictions and limitations.