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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 .

Abram v. Cargill, Inc., 2005 U.S.App.LEXIS 1142 (8^th Cir. 1/24/2005)(Issues: Fatigue, Combination of Impairments, Administrative Review).  The plaintiff, who suffers from post-polio syndrome, a condition experienced by polio sufferers years after the initial bout with the disease and which causes symptoms of fatigue, weakness, and walking difficulties, applied for disability in 2000 when she could no longer work.  Although Ms. Abram’s claim was strongly supported by her treating doctor, a reviewing nurse disagreed, and to resolve the dispute, the plan (administered by Unicare), sent Abram for an examination to a doctor who concluded that Ms. Abram was capable of working at a job sitting at a desk or computer terminal, although the examining doctor made no comment about the plaintiff’s primary complaints of pain and fatigue.  The examiner did suggest, though, that Abram undergo a functional capacity evaluation to get a better idea as to her functional abilities; and he also expressed a belief that depression and obesity were the causes of much of her difficulty.  Although the treating doctor submitted a rebuttal, the plan denied benefits.   

Abram appealed; and with her appeal, she submitted her own functional capacity evaluation.  That testing showed that while Abram performed at the sedentary level of exertion throughout the exam, her strength and physical function deteriorated during the examination and concentration diminished as demonstrated by Abram making increasing numbers of mistakes as the exam progressed.  The physician conducting the examination therefore concluded that Abram could work no more than 20 hours per week.  However, Abram’s occupation was a 40 hour per week position; therefore, she argued that the examination findings supported her inability to perform her regular job duties.  In response to the appeal, the plan sent the information to the examiner who had previously seen Abram; he disputed the plaintiff’s limitations, and the plan upheld its determination. 

The appellate court focused its decision on §503 of the ERISA law (29 U.S.C. §1133), which entitles claimants to a full and fair review of claim denials.  That includes the right to a meaningful dialogue with the plan and the ability to consider and respond to evidence generated by the plan.  Among the precedents cited, the court referenced Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998), which holds that ERISA claimants are entitled to timely and specific" explanation of benefit denials, and may not be "sandbagged" by post-hoc justifications of plan decisions). 

The Eighth Circuit concluded that the plan did not afford a full and fair review because it failed to provide the plaintiff with the examining doctor’s second report until after the appeal was denied; thus, “Without knowing what "inconsistencies" the Plan was attempting to resolve or having access to the report the Plan relied on, Abram could not meaningfully participate in the appeals process.”  *10-*11.  The court added, “There can hardly be a meaningful dialogue between the claimant and the Plan administrators if evidence is revealed only after a final decision. A claimant is caught off guard when new information used by the appeals committee emerges only with the final denial. See Marolt, 146 F.3d at 620. Abram should have been permitted to review and respond to the report by Dr. Gedan.” *11.

However, the decision did not end there.  The court added that there was an additional significant reason to remand – the plan failed to consider all of the claimant’s conditions in combination with one another.  The evidence showed that Ms. Abram suffered from obesity, which might have contributed to her fatigue, but the plan focused only on post-polio syndrome.  The court added the following significant comment about fatigue and disability in footnote 3: “While fatigue is difficult to assess, disability plan administrators may not require objective medical evidence of the cause if there is consistent evidence of disability symptoms, and no finding that the claimant is not credible in her complaints. See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 442-43 (3rd Cir. 1997); Wilkins v. Hartford Life & Acc. Ins. Co., 299 F.3d 945, 947 n.1 (8th Cir. 2002).” 

Because there was evidence of a second condition that might have caused or contributed to the claimant’s alleged impairment, the court ruled the plan was required to consider that condition: “Where a condition is specifically identified by the medical examiner on whom the Plan relies, it must be addressed in the Plan's decision. The Plan is not free to ignore evidence of this second, potentially disabling condition.”  *15.  The decision was therefore reversed and remanded to the plan administrator.

Discussion:      Post-polio syndrome is a medical condition that is beginning to receive serious attention from neurologists and has also been the basis of many disability claims as child polio victims have aged.  It is now understood by physicians that although childhood polio victims may have seemingly recovered from that illness early in their lives, many experience the effects of polio later in life with resulting symptoms identical to those suffered by Ms. Abram.  See, Social Security Ruling SSR 03-1p; Titles II and XVI: Development and Evaluation of Disability Claims Involving Postpolio Sequelae, 68 FR 39611 (7/2/03)(August 2003); DiPietro v. Prudential Insurance Company of America, 2004 U.S.Dist.LEXIS 5004 (N.D.Ill. 3/26/2004)(April 2004).  The court did a great service to the post polio community with this decision, not only in its recognition of post-polio syndrome, but also with respect to the court’s understanding of the disabling effects of fatigue.

However, where this decision really stands out is in the discussion of the interaction of medical conditions and how, while discrete conditions standing alone may not cause disability, when two or more medical conditions are viewed in combination with one another, the result may justify a finding that a claimant is disabled.  In Social Security law, it has long been established that the evaluation of disability requires consideration of the interaction of medical symptoms in determining an individual’s ability to work.  See: 42 U.S.C. §423(d)(2)(B); 20 C.F.R. §404.1523 (mandating consideration of the combined effect of two or more distinct impairments).  Some district court cases have recognized the significance of considering impairments in combination.  For example, Austin v. Continental Casualty Co., 2002 U.S.Dist.LEXIS 16654 (W.D.N.C. 8/23/02)(September 2003) was critical of an insurer’s failure to consider the combined effect of the claimant’s impairments in assessing disability.  In addition, in Laser v. Provident Life & Accident Insur.Co., 211 F.Supp.2d 645 (D.Md. 2002)(August 2002) the court overturned a benefit denial due to the insurer’s failure to conduct an independent examination; and for having “failed to consider all of plaintiff’s medical evidence, failed to consider his injuries and illnesses in conjunction with one another, and took an ‘adversarial approach.’”  Abram gives precedential authority to this proposition. 

In addition, Abram is significant for its comments on how the review process was used to sandbag the claimant.  For a review to be full and fair, if the plan develops evidence that forms the basis for its conclusion, the claimant must be granted the opportunity to comment.  The court cited the well-known case of Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461 (9th Cir. 1997)(citing the movie, Cool Hand Luke – “What we got here is a failure to communicate”) to reinforce the need for dialogue between the parties to an ERISA appeal.  Abram insures that claimants are to be given the right to respond to the plan’s evidence developed after the appeal has been commenced.  This decision will have significant lasting implications.aHaHhh  HHH

This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .