Leger V Tribune Co Ltd Benefit Plan

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Leger v. Tribune Company Long Term Disability Benefit Plan, 2009 U.S.App.LEXIS 5108 (7th Cir. March 9, 2009)( Issues: Pain, Remand or Reinstate) . The plaintiff in this case, Lisa Leger, began receiving disability benefits in 1990 when, after several knee surgeries failed, she lost mobility and suffered from severe chronic pain and could no longer continue working as an accountant for a television station. Leger also qualified for social security disability as well at that time.

Following the onset of disability, Leger underwent numerous additional surgeries without experiencing any sustained relief. As a result, her benefits continued for fifteen years. First CNA, and then Hartford, administered the benefit claim; and in 2005, MetLife took over administration of the Tribune Company's long-term disability benefit program. In a report to MetLife, Leger's treating doctor described her as essentially wheel chair bound and unable to sit more than an hour during an eight hour period and not more than 30 minutes in a given hour. MetLife had those findings reviewed by R. Kevin Smith, D.O., who found the records confusing and who did not see any evidence that would support Leger's inability to perform sedentary work despite significant osteoarthritis of both knees. As a result of Dr. Smith's report, MetLife terminated Leger's benefit payments.

Leger appealed, and with her appeal, in addition to providing records and reports from her treating doctor along with witness statements, she also submitted a report from a functional capacity evaluation she had undergone. The FCE examiner found that Leger had exerted full effort during the evaluation and described her reports of pain reasonable and reliable, thus leading the examiner to conclude that Leger had significant limitations upon which her treating orthopedic surgeon elaborated and opined that Leger remained "severely disabled and needs crutches to ambulate" and that she could not perform "any job activity which requires standing, walking or prolonged sitting greater than thirty minutes." Yet another surgery also took place while Leger's appeal was pending.

In response to the appeal, MetLife retained another doctor to perform a file review. That physician, Michael Chmell, M.D., claimed there were inconsistencies in the treating doctor's findings and that he would deem Leger capable of working. Based on that report, MetLife upheld its decision. The district court refused to overturn that finding, and the case proceeded to the court of appeals.

The court of appeals reversed but not before disagreeing with many of the arguments presented by Leger. First, the court rejected the plaintiff's argument that MetLife v. Glenn, 128 S.Ct. 2343 (2008) altered the decision-making framework. The court did not accept plaintiff's argument that Glenn necessitated a more penetrating scope of judicial review than had previously been utilized. Instead, the court held the arbitrary and capricious standard of review applied. The court also found Glenn inapplicable because the claim administrator and claim payor were separate entities in this case.

Turning to the merits of the claim, the court began by disagreeing with the plaintiff that MetLife was obligated to show an improvement in a claimant's medical condition before terminating benefits. The court ruled that the previous payment of benefits is merely one circumstance or a factor to be considered, but that previous payment does not create a presumptive burden for the plan to overcome. *19.

The court also refused to abandon its prior rulings relating to the evidentiary value of file reviews versus examinations. Relying on Davis v. Unum Life Insurance Co. of America, 444 F.3d 569 (7th Cir. 2006), the court found justification for the plan's reliance on file reviews.

However, the plaintiff gained currency with the court by arguing tha, in terminating her benefits, the Plan cherry-picked the statements from her medical history that supported the decision to terminate her benefits, while ignoring a wealth of evidence to support her claim that she was totally disabled." *22. Although Leger had expressed satisfaction with the results of a right knee surgery shortly before the benefit termination, the court noted, "A statement that a surgery has been successful or that a patient is pleased with the results must be viewed in light of the patient's existing condition and future expectations." *22-*23. The court thus found that "seemingly inconsistent statements" had to be viewed in the full context of Leger's medical history. Hence,

Ms. Leger may have been pleased with results that diminished her pain and allowed her some additional mobility; her statement to that effect, however, is not inconsistent with the fact that she also still may rely on a wheelchair as her primary means of getting from one place to another. Indeed, one of the key shortcomings of the Plan's determination is that it fails to mention the voluminous medical record that both predates Ms. Leger's initial award of disability benefits and that spans the time between that award of benefits and Met Life's review of those benefits in 2005. *24

That record showed at least seventeen surgeries and procedures over a 20 year period due to a condition recognized as degenerative. Moreover, the court explained, "Ms. Leger's efforts are not designed to restore her condition to that of a normal, healthy individual, but instead are intended merely to improve her strength and stability from their existing levels. Her and her doctor's statements with respect to her progress and surgical successes must be evaluated with this history in mind." *24.

The court also zeroed in on the insurer's rejection of the functional capacity evaluation which limited Leger's capacity due to pain and other physical limitations. However, the insurer gave "short shrift" to the FCE as being based on "subjective complaints and ...not supported by any objectively documented deficit which would prevent maintaining a seated position for an extended period of time." *25. Rejecting that view, the court cited Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003), which "established that complaints of pain cannot be dismissed out of hand because they are subjective." *26. The court found Dr. Chmell's report suffered from the same shortcomings - even without precise identification of the source of pain, the court found the pain could still be real. And the court was further troubled by the Plan's disregard of the FCE examiner's finding that the pain complaints were reliable. The court held:

Under these circumstances, we believe it was incumbent on the Plan (or the Plan's consultant) to do more than just dismiss the complaints out of hand. Instead, the Plan must explain why, despite evidence to the contrary in the FCE, it nevertheless finds Ms. Leger's complaints of pain unreliable and why, if the complaints in fact are reliable, the pain Ms. Leger is experiencing is not completely debilitating. Without further explanation, there is an "absence of reasoning in the record" to support the Plan's conclusion that Ms. Leger is capable of sitting without limitation and, therefore, performing sedentary work. *28.

The court further pointed out that Dr. Chmell focused on the axial skeleton but did not address whether pain associated with osteoarthritis would be present if she sat in an office chair. The court added "the need for further explanation is even greater given the FCE's findings that Ms. Leger's complaints of pain were reliable." *29.

However, despite finding the plan acted arbitrarily and capriciously in terminating benefits, instead of reinstating benefits, the court remanded to MetLife. The court explained:

Here, we remand because the Plan failed to consider adequately Ms. Leger's lengthy history of medical treatment and to provide adequate reasoning for its rejection of portions of the FCE. However, on the record before us, we cannot say definitively that it was unreasonable for the Plan to terminate Ms. Leger's benefits. There is evidence in the record that Ms. Leger is able to engage in sedentary activities for extended periods of time and also is able to engage in some minimal physical activity. Consequently, we believe that the correct course of action is to remand this case for further findings and explanations. *30.

Because the court was remanding, the court also rejected Leger's request that she be awarded fees, on the ground that she was not the prevailing party.

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