The casenote of the month is from the Disability E-News Alert! a monthly newsletter describing new disability insurance developments. For subscription information, e-mail Mark DeBofsky or visit www.disabilityenewsalert.com .
Baker v. Metropolitan Life Ins. Co., 2006 U.S.Dist.LEXIS 92556 (M.D.Tenn. 12/20/2006)(Issue: Pain, Fibromyalgia). The plaintiff, a senior partner at the prominent Tennessee law firm of Baker, Donelson, Bearman & Caldwell, P.C., alleged he became disabled on account of spinal injuries received in a 2001 rear-end automobile collision. Although Baker returned to work and continued to work for approximately a year after the accident, his pain steadily increased and his production level declined until he had to cease working altogether and enter an intensive treatment program on account of “relentless” pain. MetLife initially approved the claim, as did a separate insurer which had initially disapproved benefits. However, after 24 months of payments, MetLife determined that from a physical standpoint, Baker was capable of working, and that any cognitive limitations on his ability to work due to pain and depression were minimal. MetLife obtained a neuropsychological evaluation; however, Baker had his own evaluation done which criticized MetLife’s evaluator for not retaining test materials and for the use of outdated and inadequate testing materials. Baker also submitted letters from colleagues and others, including a minister, describing the decline in his abilities, along with a personal statement and a “pain diary” documenting how his pain interfered with daily activities.
MetLife had the record reviewed by Dr. Philip Marion who found no objective evidence that would preclude Baker’s ability to work as an attorney. A neuropsychologist also reviewed the file, and suggested the prior test results showed poor effort but that she was unable to comment on pain. Consequently, MetLife denied the claim.
Despite applying an arbitrary and capricious standard of review, the court found that heightened scrutiny should be applied due to MetLife’s financial interest which created “the potential for self-interested decision-making.” In applying that standard, the court agreed with Baker that MetLife’s doctors mis-applied a generalized definition of disability. By only looking at whether Baker could perform a “sedentary” job, MetLife’s doctors ignored the significant cognitive demands of Baker’s corporate law practice, which was necessary under the “own occupation” disability policy at issue.
The court also agreed with Baker’s contention that MetLife improperly insisted on the production of “objective” evidence in support of disability when pain cannot be detected and evaluated by such means. Citing numerous cases holding that MetLife and other insurers had been found to have acted arbitrarily by insisting on “objective evidence” when there is no requirement under the policy supporting such a demand (e.g., May v. Metropolitan Life Insur.Co., 2004 U.S.Dist.LEXIS 18486 (N.D.Cal. 9/9/2004)(October 2004)), the court found MetLife’s insistence on objective evidence arbitrary and capricious. Moreover, the court identified objective test results that correlated with the pain complaints although the court acknowledged that fibromyalgia, which had been diagnosed, was not susceptible to objective medical tests other than trigger point examinations, which Baker had undergone and which were independently corroborated by two examining doctors.
In addition, the court found the neuropsychological examination MetLife administered was flawed. The examiner was not certified and the tests were administered by a receptionist/office assistant. Moreover, the tests were obsolete, and the examiner submitted different versions of his report. The examiner had also been suspended from practice for his failure to retain supporting data and for reporting unqualified conclusions.
The court also concluded that MetLife engaged in a selective review of the evidence. For example, MetLife quoted a portion of the neuropsychological evaluation Baker obtained on his own, but neglected to comment on the examiner’s conclusions. MetLife also completely ignored Baker’s own personal statement, his pain diary or supporting letters.
The court also was critical of MetLife’s paper reviewers:
Where the ERISA administrator relies on consultants who perform only a paper review of a claimant's medical record, such reliance can be considered arbitrary and capricious. "Whether a doctor has physically examined the claimant is indeed one factor that we may consider in determining whether a plan administrator acted arbitrarily and capriciously in giving greater weight to the opinion of its consulting physician." Kalish v. Liberty Mutual, 419 F.3d 501, 508 (6th Cir. 2005); See also Calvert, 409 F.3d at 295 ("[W]e find that the failure to conduct a physical examination ... may, in some cases, raise questions about the thoroughness and accuracy of the benefits determination."). To be sure, a plan administrator is not required to accord special deference to the opinion of treating physicians, but the administrator may not arbitrarily refuse to consider the opinions of treating physicians. Black & Decker, 538 U.S. at 834.
Baker's disabling sickness is his chronic pain syndrome. Drs. Elam and Akin are the only physicians to have personally treated and repeatedly observed Baker during the entire course of his dispute with Metlife. Both treating physicians have consistently and unequivocally opined that, because of his chronic pain syndrome and the effects of his pain medication, Baker is unable to perform the essential duties required of him as a partner and attorney at Baker, Donelson. The CRPC physicians deferred to Drs. Elam's and Akin's opinions. Dr. Auble, who also personally evaluated Baker for a neurological assessment, concurred. Drs. O'Connor and Marion disagreed, but did not examine Baker. Dr. O'Connor also concluded that Baker lacks "significant cognitive problems undermining his functional abilities," (AR 0071), but Dr. O'Connor expressly declined "[a]ddressing the issue of pain [that] would be outside [her] area of expertise." Id. n7 Neither Dr. O'Connor nor Dr. Marion discussed their opinions with Drs. Elam, Akin, or Auble about Baker's condition and his ability to perform the essential duties of his previous position at Baker, Donelson.
n7 Although Dr. O'Connor appears to suggest Baker is a "malingerer," Metlife had previously advised Drs. Kilburn and Greenhood that Baker was not a malingerer. (AR 0006, 0014, 0078). *60-*62.
Consequently, the court found MetLife’s determination arbitrary and capricious based on these factors. The court also found MetLife’s conclusion arbitrary and capricious on account of the plaintiff’s receipt of Social Security award which Baker applied for based on MetLife’s demand and which resulted in a substantial reimbursement to the insurer. While not binding, the court found the social security award “relevant,” and also pointed out that MetLife accepted the benefit of the award while rejecting the conclusion. That court noted "that a decision by a plan administrator to seek and embrace an SSA determination for its own benefit, and then ignore or discount it later, 'casts additional doubt on the adequacy of their evaluation of... [a] claim, even if it does not provide an independent basis for rejecting that evaluation.'" Calvert, 409 F.3d at 294-95 (quoting Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998) with emphasis added).” *64.
In addition to an award of benefits, the court also awarded attorneys’ fees and prejudgment interest.
This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .