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 .
Ettel v. Unum Life Ins.Co. of America, 2008 U.S.Dist.LEXIS 103419 (W.D.Wash. December 10, 2008)(Issue: Scope of Review; Pain). The court in Ettel cited Unum's history of biased claims administration in its conclusion that the insurer's adjudication of this case was biased against the claimant. The plaintiff, a customer service manager for Costco, developed severe back pain due to facet degeneration in the lumbar spine. Despite undergoing facet injections and a rhizotomy procedure, the relief was only temporary and Ettel had to cease working.
Ettel's physicians deemed her incapable of tolerating more than 30 minutes of sedentary activity at a time and limited her sitting, standing and walking. However, Unum found the limitations unsupported and denied the claim. Subsequently, Ettel underwent a physical capacity evaluation performed by Dr. Theodore Becker who was described by the court as a doctor who receives referrals from the State of Washington Department of Labor & Industries, from the Boeing Corporation, and from several insurers including Aetna, Unum, and Hartford. Dr. Becker determined Ettel was unable "to sustain work functions." Ettel also submitted additional medical reports and a vocational evaluation which all supported her claim.
On appeal, Unum had the file reviewed by a nurse and then by a physician who reported Ettel was capable of working if she underwent a pain management program. The physician also suggested that there was a psychological component to the claimed disability due to impaired pain coping abilities. Thus, Unum upheld the denial. The court reversed.
Despite language in the policy giving Unum discretionary authority the court cited Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (en banc) and Metropolitan Life Ins. Co. v. Glenn, U.S. , 128 S. Ct. 2343, 2350 (2008) for the proposition that an insurer's conflict of interest is a factor to be considered.
The court pointed out,
It is undisputed that Unum has a history of denying valid claims. Saffon v. Wells Fargo & Co. Long Term Disab. Plan, 511 F.3d 1206, 1210 (9th Cir. 2008)("Unum-Provident Corp. . . . boosted its profits by repeatedly denying benefits claims it knew to be valid. Unum-Provident's internal memos revealed that the company's senior officers relied on ERISA's deferential standard of review to avoid detection and liability") (citing John H. Langbein, Trust Law As Regulatory Law: The UNUM/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 N.W. U. L. Rev. 1315, 1317-21 (2007) (describing Unum-Provident's behavior)). *9-*10.
Despite Unum's protestation that the conflict was mitigated because it had retained several professionals to review the file, the court pointed out that "only one was a physician practicing in an area relevant to plaintiff's claimed disability." *10. The court added, "In addition, all but one of the reviewers were in-house Unum professionals. In light of Unum's history of parsimonious claims granting, the fact that Unum relied on multiple in-house reviewers does not lessen the conflict." Id.
The court then concluded that Unum abused its discretion. Unum's decision was based primarily on a claim of lack of objective findings. The court deemed that rationale insufficient on several grounds:
However, the Plan language does not require claimants to provide objective evidence of a disability. Nor did Unum appear to take into account the fact that "individual reactions to pain are subjective and not easily determined by reference to objective measurements." Saffon, 511 F.3d at 1216; id. at 1216 n.2 ("disabling pain cannot always be measured objectively"). Unum completely discounted plaintiff's descriptions of her chronic pain and inability to work, even though its own investigator and her treating and examining physicians consistently found her credible. In fact, none of the treating, examining, or reviewing physicians cited a reason to disbelieve plaintiff's descriptions of her own pain. Yet Unum denied her claim in large part because her complaints were subjective. *12-*13.
Unum was also faulted for its failure to consider the doctors' explanation for a lack of objective findings. One of the physicians had written "that plaintiff's pain was 'most likely on the basis of facet joint injury. . . . [I]t is well known in orthopedic literature that to actually visualize the facet surface, . . . , unless there is an inflammatory condition in the joint, it will be below the resolution of the current technology of CT scanning and MRI'" *14. Another treating doctor had similarly opined: "It is not an uncommon scenario for people who have a spondylitis-type syndrome to have no blood test abnormalities, no radiographic abnormalities, etc. . . . We don't necessarily have to have objective findings to support this diagnosis because they don't always exist even when they're there". Id. Yet, those opinions were ignored; and Unum also disregarded the existing objective findings. The court cited Glenn to emphasize that Unum's evidentiary assessment was similar to what the Supreme Court had criticized in its finding that MetLife abused its discretion when it "emphasized a certain medical report that favored a denial of benefits, [and] de-emphasized certain other reports that suggested a contrary conclusion." * 15 (citing Glenn, 128 S. Ct. at 2352).
The court was also critical of the insurer's focus on personal activities such as travel. The insurer deemed a trip to Hawaii and a car trip to Eastern Washington inconsistent with claimed limitations. However, the court rejected that argument, pointing out that Ettel submitted eight witness statements describing her impairments that Unum ignored. The court found the insurer's disregard of the witness statements particularly problematic "because Unum focused heavily on plaintiff's personal activities." *16. Among the witness statements were descriptions of the difficulties the plaintiff had while traveling and that she spent most of the trip lying down. The court noted: "Unum does not explain how plaintiff's car trip spent lying down in pain shows that she could perform a full-time sedentary job. Unum's consideration of the lay evidence and plaintiff's personal activities was impermissibly one-sided." Nor did Unum ever bother to ask Ettel about the trips even though she was interviewed, a deficiency deemed "inconsistent with the 'meaningful dialogue between ERISA plan administrators and their beneficiaries' that is the heart of the statute's protections." *18 (citing Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)). The court added,
Instead of considering the available evidence, Unum made assumptions about the trips and used them to discount both the medical and personal evidence in plaintiff's favor. Similarly, Unum did not consider the fact that plaintiff had significantly reduced her personal activities. For example, although she used to mountain bike, roller blade, ski, hike, and garden, she no longer engaged in any of those activities. Id.
Accordingly, by considering these factors along with Unum's conflict of interest and history of denying valid claims, the court found an abuse of discretion. The court did throw a bone to Unum, however, in explaining:
This was an extremely close call for the Court. Unum did much more in this case to conduct multiple levels of review and even, on one occasion, brought in a doctor not associated with the company. Clearly the company has paid a continuing price for its parsimonious and often unfair processing of claims in prior cases. The Court agrees it would be equally unfair to punish Unum forever for past failures. However, the Court ultimately finds that Unum's failure to take the steps discussed above and its decision not to use "truly independent medical examiners or a neutral, independent review process" tilts the final result toward a decision in favor of the plaintiff under this abuse of discretion standard. *19.
Also, because this ruling was made on a motion for summary judgment filed by the defendant, and because the plaintiff had not filed a cross motion, the court refused to award benefits at this time and merely denied Unum's application for summary judgment.
Discussion: This is an extremely useful case for both plaintiffs and defendants. Unum would certainly have won had it obtained an independent medical examination, assuming such an examination would have supported a benefit denial, which is highly dubious in view of the other evidence. Instead, the court had sound grounds for rejecting Unum's file review.
From the plaintiff's perspective, this case illustrates measures that can significantly enhance a claim:
- The importance of clarity and detail in medical reports. The court was plainly impressed by the doctors' opinions relating to the inability to image the pathology causing the claimant's pain.
- The value of witness reports. The claimant's participation in long-distance travel can be damaging to a claim, but when the apparent inconsistency of being disabled and taking a trip can be adequately explained, the damage is significantly mitigated.
- Corroboration. Particularly in a claim such as this, which is highly dependent on the veracity of the claimant's pain complaints, corroboration from multiple sources is extremely valuable. Here, the plaintiff's complaints were corroborated by multiple physicians, by functional capacity testing (performed by a doctor who has a stronger affiliation with insurers than claimants), and by lay witnesses. Unum had absolutely no means of rebutting that evidence based on the nature of its review and assessment of the claim.
- The Glenn ruling also worked to the plaintiff's advantage here in three respects: 1) the recognition of Unum's past history of biased claims administration; 2) the insurer's emphasis on evidence supporting a denial while ignoring the full context of the record; and 3) Unum's conjecture about personal activities without any reliable evidentiary support.
This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .