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 .
Majeski v. Metropolitan Life Ins.Co., 2009 U.S.App.LEXIS 28492 (7th Cir. December 29, 2009)(Issue: Scope of Review). The plaintiff, who had worked for MetLife as a nurse consultant, a job that required her to sit at a desk and use a computer and telephone for eight hours a day, made a claim for short-term disability on account of pain and numbness in her shoulders, arms and hands. Majeski was ultimately diagnosed with cervical radiculitis, and her claim was temporarily approved while she was undergoing treatment, but benefits were terminated shortly thereafter based on a conclusion that there was no "objective" support for functional impairments that would preclude her from working at her job.
Majeski submitted a pre-litigation appeal which included a report from a physiatrist who supported her claim, along with a report from a physical therapist who performed a functional capacity evaluation that found her incapable of performing her occupation. While the FCE examiner found Majeski could perform general work at the medium level of exertion, she was only able to sit occasionally, and could only type for a few minutes without experiencing significant pain. In response to Majeski's appeal, MetLife had Dr. Philip Marion review the file. While concluding that he did not deem Majeski occupationally impaired, Marion did not mention the physiatrist's evaluation and only focused on the FCE finding of medium work capability. Marion did not address the FCE findings of limited sitting and typing.
When plaintiff learned that Dr. Marion had been retained, she notified MetLife of that physician's predisposition to find against claimants, citing a deposition taken in an unrelated case. The deposition itself, which was more than 200 pages long, was mailed separately on a CD. Without reviewing the deposition testimony, MetLife upheld its determination.
Majeski was also approved to receive Social Security disability benefits, although that approval did not come until after litigation had been commenced.
During the district court litigation, although MetLife's plan contained discretionary language triggering a deferential standard of review, Majeski argued that MetLife's conflict of interest had to be taken into consideration in accordance with Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008). The district court rejected the plaintiff's argument that Glenn required a heightened standard of review, and the court also disallowed Dr. Marion's deposition testimony and the Social Security award.
The court of appeals upheld the finding that Glenn does not impose a "heightened" standard of review, although the court did note Montour v. Hartford Life & Accident Ins. Co., 582 F.3d 933, 936 (9th Cir. 2009) (introducing "more complex application of the abuse of discretion standard" in response to Glenn). The court further noted that the Seventh Circuit "is still pondering is just how to consider a plan administrator's conflict of interest." *9. Either the court is to consider the conflict in al cases, "mixing it in somehow with all relevant factors." Id. Or another reading, set forth inMarrs v. Motorola, Inc., 577 F.3d 783 (7th Cir. 2009), is to focus on the "gravity" of a plan administrator's conflict of interest. Marrs, 577 F.3d at 788-89. The court ended its discussion there, without resolving the tension between the two approaches.
The court then turned to the scope of review and whether the district court should have considered Dr. Marion's deposition and the Social Security award. As to the Social Security award, the court found no basis for requiring a plan administrator to reopen a claim to consider a Social Security award issued after the claim is concluded. Thus, the court rejected the plaintiff's reliance on Vega v. National Life Insurance Services, Inc., 188 F.3d 287, 300 (5th Cir. 1999), which allows supplementation of the claim record, deeming Vega an "outlier." The court also rejected the plaintiff's reliance on Sloan v. Hartford Life & Accident Insurance Co., 475 F.3d 999, 1004-05 (8th Cir. 2007), since that case was adjudicated under the de novo standard.
Nonetheless, the court concluded that deferential review "is not a euphemism for a rubber-stamp." *12. The court turned its attention to Dr. Marion's findings, explaining:
We find it troubling that Dr. Marion's report--the sole basis for MetLife's determination--concludes, erroneously, that Majeski did not submit objective evidence of functional limitations. Dr. Marion does not acknowledge, much less analyze, the significant evidence of functional limitations that Majeski offered. Dr. Marion notes Hardin's conclusion that Majeski could perform medium-level work, but he ignores Hardin's critical qualification that Majeski was nevertheless incapable of typing and sitting. Dr. Marion's statement that Hardin's evaluation "does not document, nor is it reasonable to conclude from it, that the claimant has functional limitations that precluded sedentary work activity requiring sitting, using a computer and telephone" is simply not true. Hardin explicitly says that Majeski cannot sit or type sufficiently to return to her former job as a nurse consultant. And Dr. Marion does not even mention Dr. Weiss's questionnaire (nor is it listed under the documents sent to him for review). *12-*13.
Those omissions, which either ignored or dismissed out of hand medical findings supporting the claimant, without explaining a basis for disagreement, required the court to overturn the benefit denial. The court noted "that procedural reasonableness is the cornerstone of the arbitrary-and-capricious inquiry." *14. The court elaborated by explaining that key elements in an arbitrary and capricious review include: 1) whether the claimant was afforded an opportunity for a full and fair review; and 2) whether there is an absence of reasoning supporting the plan administrator's determination. The court explained further that
a plan administrator's procedures are not reasonable if its determination ignores, without explanation, substantial evidence that the claimant has submitted that addresses what the plan itself has defined as the ultimate issue here , whether Majeski's functional limitations were objectively documented. See 29 C.F.R. § 2560.503-1(g)(iii) (requiring plan administrator to describe in adverse benefit determination "additional material or information necessary for the claimant to perfect the claim" and explain why). *15.
Despite those findings, instead of reinstating benefits, the court remanded the matter to MetLife for "further findings or explanations."
Discussion: The lesson to be taken from this ruling is that although functional capacity evaluations are of questionable scientific validity in establishing disability (See, e.g., Stup v. Unum Life Insur.Co. of America, 390 F.3d 301 (4th Cir. 2004), given the burden placed on claimants to objectively prove functional restrictions due solely to pain or fatigue, an FCE is virtually mandatory if the claimant wishes to overcome the findings of a reviewing doctor hired by an insurer to evaluate a disability benefit claim.
This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .