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 .
Fontana v. Guardian Life Ins., 2009 U.S.Dist.LEXIS 3303 (N.D.Cal. January 12, 2009)(Issue: Pain). The plaintiff in this case initially qualified for short-term disability benefits; and she also received long-term disability payments under an "own occupation" definition of disability; however, the insurer refused to pay additional benefits after the "own occupation" period was concluded, arguing the plaintiff failed to demonstrate her inability to work at "any occupation" in order to continue receiving benefits. The court overturned the defendant's determination and ordered benefits reinstated.
The plaintiff was able to show that she suffered from thoracic outlet syndrome as demonstrated on MRI/MRA/MRV testing; and the neurologist who rendered that diagnosis found Fontana incapable of performing any sustained work activity, adding that efforts to exceed her limitations would increase the neural damage. Defendant ignored that report, though, contending that the neurologist did not examine the plaintiff until months after the date of the transition to the "any occupation" standard and Guardian also maintained that Fontana's enrollment in graduate school was inconsistent with her claimed disability. Both arguments were rejected.
As to the neurologist's report, the court found instructive the guidance from social security law on the relation back of medical findings:
First, in the social security context, the Ninth Circuit has held that "reports containing observations made after the period for disability are relevant to assess the claimant's disability. It is obvious that medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis." Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). The same reasoning applies in the ERISA context. Medical reports made after the period of disability may or may not be relevant to determine if a beneficiary was disabled at an earlier date, but they are not irrelevant solely because of their date. *9-*10.
The court also pointed out that the neurologist's report explicitly stated it was applicable to the relevant dates; and there was nothing in the record to suggest that what was shown on the MRI/MRA/MRV testing did not exist earlier. Citing Silver v. Executive Car Leasing Long-Term Disability Plan, 466 F.3d 727 (9th Cir. 2006), which involved an angioplasty performed weeks after the disability date, the court found the Ninth Circuit's analysis supported a conclusion that such evidence is relevant to show the existence and progression of a disease process. The court also citedAllenby v. Westaff, Inc., 2006 U.S. Dist. LEXIS 92568, 2006 WL 3648655 (N.D. Cal. Dec. 12, 2006), which involved the same neurologist, the same diagnosis, and the same argument made by the defendant, where the court concluded:
Defendants argue that Dr. Newkirk's diagnosis is irrelevant and should be ignored because he did not examine or treat Plaintiff during the "relevant time period." Defendants, however, do not cite any authority for the proposition that courts must ignore a later diagnosis because it was not made contemporaneously with the date of the claimed disability. Indeed, such a rule would penalize anyone who is not properly diagnosed by the initial treating physician(s). Further, it is within a physician's normal exercise of his or her duties to make medical judgments about the onset or cause of a condition, disease, or set of symptoms based on a current examination and review of medical history. The Court also notes that the time gap at issue (between June 2002 and Dr. Newkirk's August 2003 examination of Plaintiff) is not a lengthy one of five or ten years but roughly 14 months.
Other authorities cited by the court include Crespo v. Unum Life Ins. Co. Of America, 294 F.Supp.2d 980, 986, 994-95 (N.D. Ill. 2003) (holding that insurer abused its discretion by refusing to consider medical reports prepared after disability date; the insurer "made no effort to place these reports in context to determine if they were consistent with earlier diagnoses by other doctors"); Thompson v. Standard Ins. Co., 167 F.Supp.2d 1186, 1194 (D. Or. 2001) (holding that "[t]he fact that a diagnosis is not made contemporaneously within the period that a claimant is insured does not undercut the viability of a later diagnosis based upon medically acceptable techniques. A diagnosis of plaintiff's condition may properly be made several years subsequent to the onset of the disability.") (internal quotation marks and citation omitted). Although the defendant cited Salomaa v. Honda Long Term Disability Plan, 542 F.Supp.2d 1068 (C.D. Cal. 2008), the court found that ruling "easily distinguishable." In Salomaa, the plaintiff submitted evidence of a cognitive impairment; however, none of the doctors who had treated him during the relevant time period made any mention of such an impairment. In this case, the symptoms that were later diagnosed as thoracic outlet syndrome were all reported during the relevant time frame.
The court also found Fontana's school attendance was likewise not a basis to discontinue benefits since the record showed that the plaintiff's impairments were impeding her academic progress, that she had been granted accommodations, and that she had hired a note taker. The court found "there is no information in the record that suggests that her school work means she can work full time." *15.
Finding the benefit denial was an abuse of discretion, the court focused on the remedy. Although remand would have been an appropriate remedy, the court was guided by Pannebecker v. Liberty Life Assurance Co., 542 F.3d 1213 (9th Cir. 2008), which held that benefits needed to be reinstated pending re-determination of the claim.
Discussion: The court did a remarkable job of cataloguing cases involving the relation back of medical opinions. It is not an unusual tactic, particularly from CIGNA, to simply refuse to consider any medical reports generated subsequent to the relevant date of disability; and this case should put an end to that practice.
The issue relating to attending school not being incompatible with the claimed disability was also well-handled. Clearly, the record was well-documented and corroborated the effect of the disability on the claimant's ability to handle school work. Another excellent case on this issue is Cohen v. Secretary of Department of Health and Human Services, 964 F.2d 524 (6th Cir. 1992).
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