DuPerry v. Life Ins.Co. of North America, 2011 U.S.App.LEXIS 1399 (4th Cir. January 24, 2011)(Issues: Pain, Combination of Impairments, Failure to Exhaust). This ruling affirmed a judgment against the Life Insurance Company of North America. The plaintiff, who had worked as a payroll and benefits clerk for a company known as Railroad Friction Products Corporation, became disabled in 2006 on account of rheumatoid arthritis, osteoarthritis and fibromyalgia. Despite her physicians' support, and a report from her supervisor describing DuPerry's work ethic as "unsurpassed," LINA denied the claim based on a nurse case manager review. The claim denial was appealed and reviewed by Dr. Charles McCool, a LINA associate medical director whose report supporting the denial was described as "consist[ing] of a half-page of largely illegible, handwritten notes." A second appeal, which was reviewed by Dr. Marc Levesque, was also unsuccessful. However, the district court reversed, finding the insurer unjustifiably disregarded DuPerry's pain complaints since her objectively established impairments are typically associated with pain symptoms. The district court awarded benefits not only for the "own occupation" period but also as to the "any occupation" period, finding the evidence supported disability under both standards. The court of appeals affirmed, rejecting all of LINA's arguments.
The court began by noting two global issues - First, that despite DuPerry's ability for relatively brief periods to perform certain tasks involved in sedentary work, she could not perform at that level on a full time basis. Moreover, while none of DuPerry's conditions considered in isolation would be disabling, in order for DuPerry to work, "she would have to overcome the combined effect of all of the problems caused by her diseases, not just a select few." *24 (emphasis in original).
The court also addressed LINA's argument that the district court had improperly imported Social Security rules on evaluation of pain. The court found that if Social Security's rules on assessment of pain are consistent with plan terms, there was no harm in citing similar concepts; i.e., that "[o]nce an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence." The court pointed out:
The existence of objective evidence that DuPerry suffered from rheumatoid arthritis, osteoarthritis, and fibromyalgia is not disputed. That a person with these diseases would suffer significant pain and fatigue is also well established. DuPerry's subjective complaints served only to pinpoint the precise intensity of her symptoms and her inability to endure them over the course of a workweek. In the absence of any significant basis for rejecting the account of DuPerry and her treating physicians and in light of the structural conflict of interest that LINA faced as the result of its dual role as administrator and insurer, LINA's denial of benefits constituted an abuse of discretion.
Finally, the court ruled upheld the district court's award of "any occupation" disability benefits, rejecting LINA's argument that the plaintiff failed to exhaust remedies. The court relied on Oliver v. Coca Cola Co., 497 F.3d 1181, 1200 (11th Cir.), vacated in part on other grounds, 506 F.3d 1316, 1317 (11th Cir. 2007) (per curiam) and Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d 532, 534 (6th Cir. 2006) in holding that "while LINA has not yet passed on the question of whether DuPerry could satisfy the any-occupation standard, in this case there is no indication that the change in standard would affect the result." *39-*40. The court found a remand to the plan administrator would serve no purpose; therefore, the payment of benefits up to date was upheld. The court also upheld an award of fees.