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Can a disability insurer rely on a treating doctor's outlier opinion?

The recent ruling in Broderick v. Hartford Life and Acc. Ins. Co., 2017 WL 652451 (D. Minn. February 16, 2017) presents an interesting challenge - if a doctor gives an opinion that his patient can work which contradicts the doctor's treatment notes and other contemporaneous statements, would that be a sufficient basis to deny benefits?  The court answered that question by making it clear that a disability insurance company needs to look at all of the evidence and cannot reasonably rely on an outlier opinion.

The Broderick case involved a claimant who underwent multiple surgeries following a car accident.  Although the treating doctor had repeatedly advised both Broderick's employer and Hartford that he could not work more than 4 hours a day, 5 days a week, the doctor responded to an inquiry from Hartford by checking off on a form that Broderick could work both on a full-time and part-time basis.  Hartford immediately terminated Broderick's benefits after receiving that form. The court overturned that decision after asking a series of rhetorical questions in the opinion that clearly pointed out the unreasonableness of Hartford's reliance on an outlier opinion: 

If nothing had changed since Dr. Roushdy's December 29, 2014 form stating Broderick was capable of full-time sedentary work, why had Dr. Roushdy limited him to part-time work in January 2015 and taken him off work completely in February 2015? Why had he indicated on February 6, 2015 that it was "undetermined" whether Broderick had a permanent disability and ordered a work hardening program on February 16, 2015? Why did he continue to refill, and at times increase, Broderick's opioid pain medication? Why was he willing in March 2015 to adjust Broderick's workability to what the physical therapist scheduled? Why had he noted in May 2015 that Broderick's RFA procedure was followed by a slow return to work with limitations as to the number of hours worked and that Broderick was unable to tolerate that? 

The court brushed away Hartford's explanation that Broderick's medical records did not objectively support his pain complaints by pointing out that Hartford failed to offer that rationale when it terminated Broderick's benefits and subsequently upheld that decision.  Nor do the claim notes mention a lack of corroboration of pain complaints or the absence of objective evidence.  Hence, the court refused to permit Hartford's "post hoc rationale." 

The court also rejected Hartford's reliance on Wakkinen v. UNUM Life Ins. Co., 531 F.3d 575, 583 (8th Cir. 2008), which was presented for the proposition that if a treating doctor finds a claimant not disabled but then issues a conflicting opinion, the plan administrator can reject the latter opinion.  There, however, the treating doctor had documented that Wakkinen was urged to return to work just a few days before the doctor issued a contrary opinion finding him disabled.  The situation here, though, was the opposite of Wakkinen.  The treating doctor had repeatedly documented that Broderick was limited to part-time work prior to authoring a conflicting ambiguous opinion.  The court thus concluded that "Wakkinen undermines Hartford's position because it holds that a treating physician's conclusion regarding disability may be rejected as unreliable if the conclusion is contradicted by the physician's own treatment records." 

The issue presented here is not unique to this case; and, as in other rulings, the solution to a seemingly inconsistent attending physician statement is to examine the full context of the medical records and consistency of the opinions documented in the treatment records.  For example, in Cook v. Liberty Life Assurance Co. of Boston, 320 F.3d 11 (1st Cir. 2003), the U.S. Court of Appeals for the First Circuit found it was arbitrary and capricious for an insurer to refuse to accept a treating doctor's retraction of an opinion misstated on an attending physician certification form.  Both the Sixth Circuit and Supreme Court came to the same conclusion in Glenn v. MetLife, 461 F.3d 660 (6th Cir. 2006); aff'd 554 U.S. 105 (2008).  Hartford was also criticized for the same behavior it exhibited here in Kouns v. Hartford Life and Accid.Insur.Co., 2011 U.S.Dist.LEXIS 7861 (N.D.Ohio January 19, 2011).  The lesson taught in this case is that disability insurance companies have to examine all of the records and the full context of the claim documentation before seizing on an outlier contrary opinion. 

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DeBofsky, Sherman & Casciari, PC