Unfair ruling against reasoning behind ERISA
Chicago Daily Law Bulletin
July 16, 2007
by MARK D. DEBOFSKY
Alison Weidner, who worked for FedEx for more than 15 years, experienced a flare-up in her multiple sclerosis and applied for long-term disability payments when she became unable to work. The plaintiff's treating neurologist certified her disability; and Broadspire, the claim administrator for the FedEx disability benefit plan, acknowledged that Weidner could not perform her occupation and began paying benefits. After two years, however, the disability definition changed and required the claimant to establish her inability to work at any occupation. Moreover, the plan specified that the disability be substantiated by significant objective findings, defined as signs that are noted on a test or medical exam and considered significant anatomical, physiological or psychological abnormalities, which can be observed apart from the individual's symptoms.
Although Weidner submitted a report from her neurologist supporting total disability under the more stringent standard, a reviewing doctor, Vaugh Cohan, disagreed and reported that the objective evidence failed to support total disability, which led to the termination of benefit payments. When Weidner appealed, Broadspire retained a second neurologist to review the file; and his concurrence that the evidence was insufficient to support total disability led Broadspire to uphold the termination. Plaintiff then filed suit.
Weidner v. Federal Express Corp., 2007 U.S.App.LEXIS 15813 (8th Cir., July 3).
The district court sided with FedEx after applying a deferential standard of review. The court pointed to a lack of progression of the MS on annual MRI scans, and a two-year-old functional capacity evaluation that found Weidner capable of working 25 hours per week, the standard set forth in the FedEx disability plan. The court also determined the treating physician was the "only physician" to support disability, thus diminishing the persuasiveness of his opinion.
The 8th U.S. Circuit Court of Appeals affirmed. The court overruled Weidner's argument that the determination was tainted by procedural irregularities; i.e., the disregard of the treating doctor's findings, failure to consider a Social Security disability benefit award, and reliance on an outdated functional capacity evaluation. The 8th Circuit held that Weidner's contentions were "without merit because they reflect substantive disagreements with the Committee's analysis of the administrative record, not procedural irregularities." The court concluded that Broadspire did review but appropriately discounted the treating doctor's findings and also deemed the Social Security determination irrelevant because it was based on criteria that differed from the plan's. The court also found the FCE reliable because the MRI scans showed the claimant's MS plaques were stable since the FCE was performed.
The court also ruled that reliance on the peer review conducted after the denial of benefits was appropriate because the review was conducted in response to the appeal and was consistent with what the ERISA regulations permit. The plaintiff's argument that the court should have considered internal Broadspire guidelines did not persuade the court because the guidelines were not part of the claim record. The court considered the argument a confusion of "the Committee's administrative review of Weidner's claim with the court's judicial review of the Committee's final decision." The court of appeals also rejected Weidner's claim that the decision was tainted by a conflict of interest and contrary to Broadspire's fiduciary obligations by stating, "Broadspire served as Claims Paying Administrator, not in a fiduciary decision making capacity."
Ultimately, the court accepted Broadspire/FedEx's finding that the claim record failed to contain "significant objective findings" of total disability, relying on the lack of progression of multiple sclerosis on the brain scans. Although the court acknowledged it was a "close question," the court ruled that since Broadspire was not obligated to give discretion to the treating doctor's findings, there was no basis for overturning the claim decision.
Despite the Supreme Court's pronouncement that the ERISA law was never intended to create "a uniformly lenient regime of reviewing benefit determinations" (Rush Prudential HMO Inc. v. Moran, 536 U.S. 355, 385 (2002)), both the district court and the appellate review accorded Weidner's claim for benefits appear to have been excessively lenient. There was no dispute as to the plaintiff's multiple sclerosis diagnosis, and the approval of disability by Social Security substantiates her functional incapacity since the statutory definition of "disability" applied by Social Security is the inability to engage in "any substantial gainful activity." 42 U.S.C. [sec] 423(d)(1)(A). One court within the Northern District of Illinois has characterized the findings made by Social Security as "compelling evidence of disability." LaBarge v. Life Ins.Co. of North America, 2001 U.S.Dist.LEXIS 1033 (N.D.Ill.). Another court characterized Social Security's findings as "relevant" and "instructive." White v. Airline Pilots, 2005 U.S.Dist.LEXIS 5980 (N.D.Ill.). Thus, the Social Security finding should have at least alerted the court to express some skepticism regarding Broadspire's conclusion rather than ignoring the finding altogether.
Moreover, the court seemed to interpret Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), which ruled that a plan administrator need not accord special deference to the treating physician's opinions, to give license to practically ignore the treating doctor's opinion. However, that is not at all what Nord concluded; and as the 7th Circuit explained in Hawkins v. First Union Corp. Long Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), when the plan's consultant has not examined the claimant, the treating doctor is likely to possess more knowledge than a physician who has merely reviewed the records.
Further, even if the treating neurologist's opinion in this case was the only supportive medical opinion, it should not be disregarded in the face of two or more contrary opinions. The 7th Circuit's Pattern Jury Instructions, which are representative of pattern instructions utilized in most jurisdictions, point out:
"1.17 NUMBER OF WITNESSES
"You may find the testimony of one witness or a few witnesses more persuasive than the testimony of a larger number. You need not accept the testimony of the larger number of witnesses."
Further, the supposed lack of "objective" support for Weidner's disability was merely the unsubstantiated ipse dixit conclusion of doctors retained by Broadspire to review the file. As the 8th Circuit itself pointed out in Chronister v. Baptist Health, 442 F.3d 648 (8th Cir. 2006), clinical findings are as "objective" as X-rays and blood tests. Perhaps for that reason, the Supreme Court concluded in Richardson v. Perales, 402 U.S. 389 (1971), a social security disability benefit case, that the only physicians whose reports may be considered as substantial evidence in disability benefit disputes are those who have examined the claimant. Moreover, judges are not medical experts; and stability in the MRI findings does not compel a conclusion that Weidner's multiple sclerosis had not worsened, when physicians recognize MS as a progressive disease.
For that reason, the court's acceptance of an outdated functional capacity evaluation is puzzling, not to mention the questionable reliability of such reports. Even in the professional journals, the scientific validity of FCEs has been questioned. See. e.g., King, et al., "A Critical Review of Functional Capacity Evaluations," Physical Therapy 78(8):852-866 (August 1998). The courts have been equally skeptical about such tests. For example, in Stup v. Unum Life Insur.Co. of America, 390 F.3d 301 (4th Cir. 2004), the 4th Circuit ruled that a functional capacity evaluation, a test that lasts for only two hours and is performed by a physical therapist, could not reliably predict functionality over an eight-hour day or work week. The court also found the insurer could not reasonably rely on such testing as the basis for denying benefits when all of the other evidence of record conclusively established the claimant's disability.
Finally, the court's comments about the claim administrator and its guidelines are contrary to opinions issued both by the Supreme Court and other courts of appeals. Because Broadspire had discretionary responsibility for determining claims, it plainly met ERISA's definition of "fiduciary" according to Aetna Healthcare Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 2501 (2004), which explicitly found, "A benefit determination under ERISA ... is generally a fiduciary act."
The Aetna court elaborated, "ERISA itself and its implementing regulations confirm this interpretation. ERISA defines a fiduciary as any person 'to the extent ... he has any discretionary authority or discretionary responsibility in the administration of [an employee benefit] plan.' [sec] 3(21)(A)(iii), 29 U.S.C. [sec] 1002(21)(A)(iii)." 124 S.Ct. at 2501-2.
The 7th Circuit similarly ruled in Ruiz v. Continental Casualty Co., 400 F.3d 986 (2005) that "classifying any entity with discretionary authority over benefits determinations as anything but a plan fiduciary would ... conflict with ERISA's statutory and regulatory scheme." Thus, the 8th Circuit's purported distinction between claim paying administrator and fiduciary decision maker has no support; and Broadspire was subject to the fiduciary obligations set forth in 29 U.S.C. [sec] 1104(a)(1), which require that the fiduciary act exclusively in the interest of the plan participants for the purpose of paying benefits.
Finally, the significance of internal guidelines and procedures in assessing the reasonableness of the plan administrator's conduct cannot be disregarded. In Glista v. Unum Life Ins.Co. of America, 378 F.3d 113 (1st Cir. 2004), the 1st Circuit found such documentation was significant in determining whether an insurer treated similarly situated claimants in a similar manner. The court referenced the ERISA claim regulations as requiring disclosure of such information in order to make clear that, "in making the adverse benefit determination, the plan complied with its own processes for ensuring appropriate decision making and consistency." 65 Fed. Reg. 70,246, 70,252 (Nov. 21, 2000). Glista also cited Egert v. Conn. Gen. Life Ins. Co., 900 F.2d 1032 (7th Cir. 1990), where the 7th Circuit relied on an internal memorandum in finding arbitrary and capricious the plan administrator's denial of a claim for health benefits. Because the internal guidelines differed from the claim determination, the court deemed the insurer's conduct improper and stressed the importance of "uniformity of construction" when evaluating whether an action was arbitrary and capricious. For all of these reasons, the Weidner ruling appears both unfair and contrary to the pro-claimant Congressional intent behind the ERISA statute.
I was counsel of record in the LaBarge case cited in this article.