Judge Takes Insurer to Task for Denying Claimant with MS

This article was initially published in the Chicago Daily Law Bulletin on May 17, 2018.

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].

A recent federal court ruling from Washington state was harshly critical of a disability insurer's treatment of a benefit claimant suffering from multiple sclerosis.

The case, Gorena v. Aetna Life Insurance Co., 2018 WL 2113952 (W.D. Wash., May 8, 2018), involved Sarah Gorena, who worked as a staff analyst at Boeing for more than 10 years before ceasing work due to progression of her MS.

Gorena had worked with the progressive disease for more than eight years before applying for disability benefits. Gorena also had a number of other co-morbid medical conditions, but sought disability benefits solely on account of her MS.

Although Gorena's claim was strongly supported by her treating neurologist, who was also an MS researcher, Aetna denied her claim and upheld the denial when the plaintiff sought reconsideration, arguing there was no evidence of functional limitations sufficient to preclude sedentary work.

The court overturned that determination.

The court expressed deep concern about Aetna's treatment of the case, finding the insurer had the benefit of multiple examination findings over time, which included MRI evidence showing increasing severity of MS symptoms and a significant decline in the plaintiff's overall functioning.

In response to that evidence, the court observed that Aetna "either ignore[d] or misstate[d] those portions [of the evidence] which did not support their decision to deny or cherry-pick statements out of context" in an effort to deny benefits.

The court further observed that despite reviewing years of records - 10 MRIs, 14 psychological reports and 16 attending physician statements all of which confirmed the plaintiff's inability to work - Aetna's medical consultant found otherwise and "justified this conclusion by cherry-picking every phrase or sentence from the materials which was indicative of some aspect of plaintiff's condition that was 'stable' or 'normal'" or by simply misstating what was reported by the treating doctor."

The court found the most "egregious example" was Aetna's total disregard of a functional assessment completed by the treating neurologist which stated "unequivocally" that Gorena could not stand or sit for sufficient time in an eight-hour day due to fatigue and cognitive dysfunction, that "she has poor strength and balance due to her MS"; that she is "likely to fall over if too much motion of arms is required"; and that she had visual limitations due to "optic neuritis in left eye." A subsequent report from the treating neurologist was also disregarded.

The court pointed out that "where defendant's reviewing physicians could not selectively quote isolated statements out of context to support a denial, they either misstated those conclusions or simply ignored the evidence and conclusions presented by plaintiff and her treating physician."

The court also expressed concern with Aetna's refusal to consider the plaintiff's subjective symptom complaints without stating any basis for questioning those reports or her credibility.

Although the court acknowledged the defendant's argument that it was not required to give deference to the treating doctor's opinions, the court pointed out that the plaintiff never made such an argument.

Instead, the plaintiff had argued the objective weight of the treating doctor's records and reports was greater than the evidence relied upon by Aetna, and the court agreed.

The court cited several factors as to why the plaintiff's evidence was given greater weight:

"One is the weight of the evidence of plaintiff's limitations concerning standing, sitting, walking, continence, cognitive abilities and MS-related psychological/emotional dysfunction, as outlined in the preceding pages.

"Another is the credibility and reliability accorded to Dr. Reif, a physician of unchallenged credentials (including a 20-year history of MS-related research and teaching) ... who treated plaintiff for years leading up to the LTD [long-term disability] application and who has consistently and credibly chronicled the factors (which she observed first-hand and through MRI scans) contributing to her conclusion that plaintiff could not return to work."

Finally, the court found Aetna's position was undermined by its reliance on reviewing doctors instead of obtaining its own evaluation and held that Aetna's decision was wrong based on both the weight of the evidence and that Aetna's actions constituted a breach of its fiduciary duty under ERISA [Employee Retirement Income Security Act] to 'discharge [its] duties with respect to a plan solely in the interest of the participants and beneficiaries.'"

Further, pursuant to the ERISA provision 29 U.S.C. Section 1132(a)(1)(B), which allows a plan participant to sue to "clarify [plaintiff's] rights to future benefits under the terms of the plan," the court determined the plaintiff not only established her inability to perform her own occupational duties, but also proved her inability to perform the duties of "any reasonable occupation" and that benefits were to continue "[u]nless defendant can establish that plaintiff is capable of performing such work productively, full-time and without undue disruptions and/or absences due to her MS and its related symptoms, she is to continue to receive LTD benefits to the plan's maximum duration."

In determining that the insurer presented no viable arguments supporting its decision, the court's recitation of its rationale for crediting the plaintiff's evidence is a useful roadmap that can be used in future cases.

The most interesting part of the ruling, though, was the court's finding with respect to ongoing benefits.

Most courts would not have addressed future benefits, particularly in the face of a change in the definition of "disability" during the pendency of the litigation that Aetna never had the chance to address.

However, the court deemed Aetna's conduct so egregious that it utilized a little-used provision (section 502(a)(1)(B)) to "clarify" the plan participant's right to future benefits and put the burden on Aetna to justify any prospective departure from the status quo.

The ERISA statute clearly empowers courts to invoke that declaratory-judgment-like provision and not just limit its ruling to addressing a breach-of-contract type of action.

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