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 .
Perryman v. Provident Life & Accid.Ins.Co., 2010 U.S.Dist.LEXIS 20308 (D.Ariz. February 18, 2010)(Issue: Chronic Fatigue Syndrome). This ruling relates to a disability that began in 1997, when the plaintiff, Nancy Perryman, was 55 years old. At that time, Perryman was agency manager for the Western Farm Bureau Insurance Company, supervising 18-21 insurance agents working in Phoenix and Northern Arizona. Despite earning commissions of up to $300,000 per year, Perryman had to terminate her 17-year career with Western due to chronic fatigue syndrome. Provident, her employer's group disability insurer, approved her claim after it was supported by a rheumatologic independent medical examination requested by the insurer, but benefits were only paid for two years under the "own occupation" definition of disability. Benefits were terminated in 1999 when Perryman reached the policy's "any occupation" disability definition that nonetheless required the ability to earn 80% of indexed pre-disability earnings. Perryman also qualified for an award of Social Security disability benefits following an administrative law judge's determination entered in August 1998.
The court exhaustively discussed the medical evidence and procedural history of the claim. Conducting a de novo evaluation of the claim, the court found the issue before the court was whether the plaintiff met her burden of establishing she met the "any occupation" disability definition. The court found the burden to have been met. In addition to arguably establishing the diagnosis, the court made the valid point that a "mere diagnosis" is insufficient to establish disability. The claimant would still have to prove she was incapable of working. Although subjective complaints cannot be disregarded, such evidence requires corroboration with other evidence establishing functional limitations or restrictions. The court found such evidence was provided from the treating physicians. Although the court acknowledged that no special deference was due to the treating doctors' reports, such evidence also could not be disregarded.
The court made a number of important points as to its consideration of the medical evidence. First, "In weighing the evidence of non-disability rendered by Dr. Curtis, Provident's in-house medical consultant, the Court has taken into account the fact that Dr. Curtis' opinion was based only on a review of Provident's claim file on Perryman whereas Perryman's treating physicians collectively saw her literally dozens of times over the course of several years and all concluded that she is disabled from working." Second, just because the treating doctors based their opinions on subjective complaints, "they necessarily had to do so in reaching their conclusions regarding the nature and extent of her impairments because it is both medically and legally accepted that CFS is largely a self-reported illness that cannot be diagnosed through any objective medical test." Third, the lack of underlying objective support was a non-factor because the record "is in fact replete with evidence of physical examinations and various clinical testing done on Perryman by her treating and examining physicians." The court further found the absence of formal neuropsychological testing was not necessary to corroborate the opinions rendered by the treating doctors. Fourth, the court ruled "the subjective judgments of Perryman's treating physicians formed from their overall experiences with her must be considered in evaluating their opinions of the extent and effect of her impairments." The court added, "The treating physicians' subjective judgments are especially important in this case given the subjective nature of CFS, the fact that its symptoms are sporadical inasmuch as they fluctuate in frequency and severity, and the fact that it can exist even though physical examinations may be within normal limits." In addition, the consistency of the findings made during repeated examinations "can be viewed as objective medical evidence of her condition." (citing Lee v. Bellsouth Telecommunications, Inc., 318 Fed.Appx. 829, 837-38 (11th Cir.2009)).
Additional corroborative evidence supporting the court's findings included the Social Security determination which, while not binding, constituted evidence that must be considered in conjunction with the other evidence, particularly since the disability standard is more stringent than Provident's. Further, although Provident relied heavily on the results of a functional capacity evaluation, the court found the test did not demonstrate Perryman could perform sedentary work on a consistent, full-time basis. The court noted the test was short in duration and could not be extrapolated to the capacity to work a 40 hour week. Moreover, the testing did not show Perryman could meet the physical demands of sedentary work since the FCE concluded she could sit for only four hours during an entire work day and sedentary work requires the ability to sit for at least six hours. The FCE also was consistent with Perryman's claim that the testing wore her out. The court was also critical of Provident's consultants for not accurately recounting the FCE results and exaggerating the findings.
Like the FCE, the court was also unpersuaded by surveillance results. Driving short distances, picking up and moving some small potted plants, and other similar activities were not inconsistent with her claims; and the court found the "ability to perform limited and sporadic activities of daily living are consistent with CFS." The court also rejected the insurer's argument that Perryman's work activity after her diagnosis undermined her claim finding no incompatibility since her symptoms were taking an increasing toll on her functional ability. The court also was critical of Provident for only assessing whether Perryman could work at a sedentary job because she ha to be able to earn at least 80% of her indexed pre-disability earnings. Finally, the court rejected Provident's claim that benefits were limited by the policy's mental disorder limitation, finding the evidence established a physical condition and because the assertion of the limitation was a post hoc rationale. Hence, the court ordered benefits reinstated and also awarded attorneys' fees and prejudgment interest although the court declined to use the Arizona interest rate.
Discussion: This ruling contains a nice catalogue of cases from around the country on the issues discussed by the court.
This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .