Court grounds claims by insurer in airline pilot's disability case

This article was initially published in the Chicago Daily Law Bulletin on December 5, 2017.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at [email protected]

Perhaps the most difficult task in evaluating disability benefit claims is assessing the weight to be given to subjective symptoms.

In Cline v. Aetna Life Insurance Co., 2017 WL 5490853 (W.D. N.C., Nov. 15, 2017), the court addressed that issue head-on. The plaintiff, Larry Cline, a commercial pilot for Netjets, suffered from lumbar stenosis and other musculoskeletal impairments that ultimately led him to file for disability insurance benefits in 2014. However, Aetna denied Cline’s claim after asserting that his impairments were not severe enough to preclude him from working as a pilot.

Cline appealed that determination and he submitted evidence establishing that while his condition did not preclude FAA medical flight certification, the flight surgeon who had examined him nonetheless found him unable to meet a number of specified job requirements such as:

  1. "Climbing on wings."
  2. "Run while carrying or pulling suitcase, kitbags, etc."
  3. "Yaw (leg) control expecting 150 lbs. of force."
  4. "Bending the body downward and forward by bending leg and spine."

Another treating physician deemed Cline unable to safely fly at all.

After reviewing the medical evidence relating to Cline’s ability to perform those duties, the court conclusively rejected Aetna’s determination, deeming it an abuse of discretion and found the decision was tainted by Aetna’s inherent conflict of interest.

The court ruled the "primary fallacy" in Aetna’s decision-making was in its failure to consider subjective evidence, which had been the focus of the plaintiff’s reports to both Aetna and the treating doctors from the inception of the claim.

The court added: "Subjective evidence is not only relevant, but may be sufficient in itself to support the claim. It tends to show that his right leg intermittently collapses, and that this condition disqualifies him from safely piloting a plane. See DuPerry v. Life Insurance Company of North America, 632 F.3d 860, 873 (4th Cir. 2011) (noting that plaintiff, who had fibromyalgia, "produced the only types of evidence a claimant in her situation could produce, her own description of the severity of her subjective symptoms, videos showing how she moved in her condition and her treating physicians’ opinions that the pain and fatigue rendered her unable to work.

"As the policy contained no provision precluding [plaintiff] from relying on her subjective complaints as part of her evidence of disability, [defendant] could not reasonably deny her claim because of such reliance."). Similarly, in Cosey v. Prudential Insurance Company of America, the court held that ‘the district court erred in concluding that [the administrator] could deny [claimant’s] STD [short-term disability] and LTD [long-term disability] claims on the basis that her proof lacked such objective evidence.’ 735 F.3d 161, 171 (4th Cir. 2013)."

The court thus concluded that Aetna’s failure to account for Cline’s subjective complaints "demonstrates an errant process" and "led to an unreasonable decision to deny benefits."

The court agreed with the treating doctors’ dismissal of negative electromyography and ultrasound findings and accepted the treating doctors’ clinical judgment that the plaintiff was suffering from radiculitis.

Aetna had refused to accept that diagnosis, however, deeming the evidence of causation insufficient. Rejecting that rationale, the court found Aetna’s focus on causation "off point" since it was the effect on the insured’s ability to function that mattered.

Moreover, the court was impressed by the consistency of Cline’s complaints of leg weakness and by the absence of any challenge to his credibility. The court was also troubled by Aetna’s seeming disregard of the issue of safety as it relates to a pilot’s duties and by the reviewing doctor’s lack of firsthand knowledge and apparent misstatement of what he had been told by one of the treating doctors during a telephone conversation.

The court summarized its dismay by noting: "As indicated earlier in this opinion, the entire place of occupational licensure or medical certification, and the FAA posture, such as it may have been, is overblown. To keep one’s eye on the ball in this case is to focus on the language of the plan, and what it means for plaintiff’s medically ascertained inability to perform certain material particulars of his own occupation. The defendant failed to keep that focus."

Finally, the court also took into consideration Aetna’s conflict of interest.

Turning to the appropriate remedy, the court ordered Aetna to pay the benefits due under the own occupation definition of disability and refused to order a remand. The court explained that reinstatement was the most appropriate remedy because of the defendant’s demonstration of "a manifest unwillingness to give fair consideration to plaintiff’s evidence in the record." The court emphasized that the evidence showed it was "unsafe for plaintiff to pilot an airplane, a condition of his employment."

The court added that it was unwilling to accept the report from a doctor who merely reviewed records and found it "an unreasonable abuse of discretion to disregard plaintiff’s treating physicians’ recommendations." The court was also disturbed by Aetna’s refusal to reassess the evidence after the flaws in the reviewing doctor’s report were pointed out and characterized such actions as "an indicator of defendant’s unwillingness to give fair consideration to plaintiff’s evidence."

The court also ordered payment of prejudgment interest at the North Carolina statutory rate of 8 percent and attorney fees.

In rendering a finding that Cline was entitled to benefits, the court here clearly conjured up an image in its mind of a pilot who would be unable to effectively deal with an in-flight emergency due to his physical impairments.

The court also issued a stinging rebuke of Aetna, finding its evaluation of the plaintiff’s claim deficient, particularly in the insurer’s refusal to consider Cline’s subjective symptoms.