If doubts arise, in-person exam needed

This article was initially published in the Chicago Daily Law Bulletin on April 16, 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 ruling from the 6th U.S. Circuit Court of Appeals emphasized the importance of in-person examinations in relation to disability benefits.

In Guest-Marcotte v. Life Insurance Company of North America, 2018 WL 1578090 (6th Cir. March 30, 2018)(Unpublished), the plaintiff, Kimberly Guest-Marcotte, filed a claim for disability benefits due to Ehlers-Danlos syndrome Type III, a condition that caused her to experience constant joint pain and fatigue.

Although she submitted supporting evidence from multiple physicians, including a renowned expert on EDS, her claim was denied following an in-house medical director's file review. Two presuit appeals were also denied based on reviews performed by nonexamining doctors.

Following the exhaustion of her appeals, the plaintiff filed suit, but lost her case after a U.S. District Court adopted a magistrate judge's report and recommendation finding the defendant had not acted unreasonably in denying the disability benefit claim. The court of appeals reversed.

The court began its critique of Cigna's actions by observing:

"Under the terms of the [p]lan, LINA [Life Insurance Company of North America] had the option to conduct a physical examination; yet it elected to discount Guest-Marcotte's claims of disabling pain without exercising that option, even though it is undisputed that she has a hereditary disease known to cause chronic and severe pain, and she submitted a host of evidence indicating she in fact suffers from such pain."

Although the court acknowledged the standard of judicial review, arbitrary and capricious, is extremely deferential, the court's function is not to act as a "rubber stamp of the administrator's decision." In view of the consensus acceptance of the EDS diagnosis, the court harshly criticized the defendant's dismissal of the claimant's pain complaints without conducting an independent examination. The court remarked:

"In particular, when an employee contends that she is disabled by chronic pain, and the relevant ERISA [Employee Retirement Income Security Act] plan gives the administrator the right to physically examine the employee, we have held that a plan administrator's decision to discount those complaints of pain without conducting a physical examination "weighs in favor of a determination that the denial of [the employee's] claim was arbitrary and capricious."

"While it is true that 'there is "nothing inherently objectionable about a file review by a qualified physician,"' we have repeatedly cautioned that plan administrators should not make 'credibility determinations concerning the patient's subjective complaints without the benefit of a physical examination.'"

The court further pointed out that since multiple doctors had reported the plaintiff could not drive, sit still or concentrate due to severe pain, "it was not reasonable for LINA to brush aside her claims of debilitating pain without first performing a physical exam."

The court rejected Cigna's rationale that the plaintiff failed to present objective evidence as to how her pain limited her functionality, calling the logic of that argument "flawed ... because Guest-Marcotte's fundamental claim is that her pain is so severe and persistent that it precludes her from sitting still and concentrating long enough to do her desk job. To deny her benefits, LINA necessarily had to disbelieve this claim, and that is the essence of a credibility determination."

The court similarly rejected the insurer's argument that the burden was being shifted to defendant to prove the plaintiff was not disabled. The court explained:

"[N]owhere does the [p]lan specify that only proof of objectively observable limitations will suffice. Guest-Marcotte has offered plenty of proof that she suffers from EDS, which causes severe chronic pain that could well make it impossible for her to perform the mental functions of her job. She has, at the very least, produced enough evidence of her disability to require LINA to respond by conducting a physical examination."

The court distinguished this case from other situations where the underlying disabling impairment may be difficult to diagnose, such as fibromyalgia or back pain. Since the Ehlers-Danlos diagnosis here was undisputed, and EDS is well-known to cause frequent joint dislocations and chronic pain, the court deemed LINA's denial of benefits without obtaining a physical examination arbitrary and capricious. Hence, the court ordered a remand for the insurer to "conduct a deliberate and principled review of Guest-Marcotte's claim."

While the insurance company was entirely within its rights to argue that symptom complaints alone fail to provide objective proof of functional limitations, as Bob Dylan explained in "Subterranean Homesick Blues" - "You don't need a weather man to know which way the wind blows."

In some instances, the condition itself inherently causes such severe symptoms, it should be obvious that no one could successfully work in the face of such distractions.

Since the plaintiff's diagnosis was accepted without question, if Cigna disbelieved Guest-Marcotte's symptom complaints, it could not reasonably rely on non-examining doctors to resolve the credibility question. It is logically impossible to deny a treating or examining doctor's clinical findings in the absence of contrary examination results.

The same rationale has also been applied in behavioral health claims where courts have pointed out that observations made by psychiatrists and psychologists cannot rationally be disputed by nonexamining doctors. Seeing is believing and empirical evidence triumphs over induction lacking an adequate foundation.