The 8th U.S. Circuit Court of Appeals recently decided a disability benefits case involving a medical condition that is drawing increased attention among neurologists. Abram v. Cargill Inc., 2005 U.S. App. LEXIS 1142 (8th Cir., Jan. 24).
Plaintiff Ellen Abram applied for disability benefits in 2000 when she could no longer work due to post-polio syndrome, a condition experienced by polio sufferers years after the initial bout with the disease and which causes symptoms of fatigue, weakness and walking difficulties. Although Abram’s claim was strongly supported by her treating doctor, a reviewing nurse disagreed, and to resolve the dispute, the medical benefits plan (administered by Unicare Life and Health Insurance Co.), sent Abram for an examination.
The doctor concluded that Abram was capable of working at a job sitting at a desk or computer terminal, although the examining doctor made no comment about the plaintiff’s primary complaints of pain and fatigue. The examiner did suggest, though, that Abram undergo a functional capacity evaluation to get a better idea as to her functional abilities, and he expressed a belief that depression and obesity were the causes of much of her difficulty.
Although the treating doctor submitted a rebuttal, the plan denied Abram’s request for benefits.
Abram appealed, and with her appeal, she submitted her own functional capacity evaluation performed by a physician. That testing showed that while Abram performed at the sedentary level of exertion throughout the exam, her strength and physical function deteriorated during the examination and concentration diminished as demonstrated by Abram’s making increasing numbers of mistakes as the exam progressed.
The physician conducting the examination therefore concluded that Abram could work no more than 20 hours per week. However, Abram’s occupation was a 40 hour per week position; therefore, she argued that the examination findings supported her inability to perform her regular job duties.
In response to the appeal, the plan sent the information to the examining doctor who had originally seen Abram; he disputed the plaintiff’s limitations, and the plan upheld its determination.
The 8th Circuit focused its decision on section 503 of the Employee Retirement Income Security Act (29 U.S.C. §1133), which entitles claimants to a full and fair review of claim denials. That includes the right to a meaningful dialogue with the plan and the ability to consider and respond to evidence generated by the plan. Among the precedents cited, the court referenced Marolt v. Alliant Techsystems Inc., 146 F.3d 617, 620 (8th Cir. 1998), which holds that ERISA claimants are entitled to ”timely and specific” explanation of benefit denials, and may not be ”sandbagged” by post-hoc justifications of plan decisions.
The 8th Circuit concluded that the plan did not afford a full and fair review because it failed to provide the plaintiff with the examining doctor’s second report until after the appeal was denied.
Thus, the court reasoned, ”Without knowing what ‘inconsistencies’ the plan was attempting to resolve or having access to the report the plan relied on, Abram could not meaningfully participate in the appeals process.” The court added: ”There can hardly be a meaningful dialogue between the claimant and the plan administrators if evidence is revealed only after a final decision. A claimant is caught off guard when new information used by the appeals committee emerges only with the final denial. See Marolt, 146 F.3d at 620. Abram should have been permitted to review and respond to the report by Dr. Gedan.”
However, the decision did not end there. The court added that there was an additional significant reason to remand — the plan failed to consider all of the claimant’s conditions in combination with one another. The evidence showed that Abram suffered from obesity, which might have contributed to her fatigue, but the plan focused only on post-polio syndrome.
The court added the following significant comment about fatigue and disability in footnote 3: ”While fatigue is difficult to assess, disability plan administrators may not require objective medical evidence of the cause if there is consistent evidence of disability symptoms, and no finding that the claimant is not credible in her complaints. See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 442-43 (3rd Cir. 1997); Wilkins v. Hartford Life & Accident Insurance Co., 299 F.3d 945, 947 n.1 (8th Cir. 2002).”
Because there was evidence of a second condition that might have caused or contributed to the claimant’s alleged impairment, the court ruled the plan was required to consider that condition: ”Where a condition is specifically identified by the medical examiner on whom the plan relies, it must be addressed in the plan’s decision. The plan is not free to ignore evidence of this second, potentially disabling condition.”
The decision was therefore reversed and the cause remanded to the plan administrator.
Post-polio syndrome is a medical condition that is beginning to receive serious attention from neurologists and has been the basis of many disability claims as child polio victims have aged. It is now understood by physicians that although childhood polio victims may have seemingly recovered from that illness early in their lives, many experience the effects of polio later in life with resulting symptoms identical to those suffered by Abram. See, Social Security Ruling SSR 03-1p; Titles II and XVI: Development and Evaluation of Disability Claims Involving Postpolio Sequelae, 68 FR 39611 (July 2, 2003); DiPietro v. Prudential Insurance Company of America, 2004 U.S. Dist. LEXIS 5004 (N.D. Ill., March 26, 2004).
The court did a great service to the post-polio community with this decision, not only in its recognition of post-polio syndrome but also with respect to the court’s understanding of the disabling effects of fatigue.
However, where this decision really stands out is in the discussion of the interaction of medical conditions and how, while discrete conditions standing alone may not cause disability, when two or more medical conditions are viewed in combination with one another, the result may justify a finding that a claimant is disabled.
In Social Security law, it has long been established that the evaluation of disability requires consideration of the interaction of medical symptoms in determining an individual’s ability to work. See 42 U.S.C. §423(d)(2)(B); 20 C.F.R. §404.1523 (mandating consideration of the combined effect of two or more distinct impairments).
Some District Court cases have recognized the significance of considering impairments in combination. For example, Austin v. Continental Casualty Co., 2002 U.S. Dist. LEXIS 16654 (W.D. N.C., Aug. 23, 2002), was critical of an insurer’s failure to consider the combined effect of the claimant’s impairments in assessing disability. In addition, in Laser v. Provident Life & Accident Insurance Co., 211 F.Supp.2d 645 (D. Md. 2002), the court overturned a benefit denial due to the insurer’s failure to conduct an independent examination and for having ”failed to consider all of plaintiff’s medical evidence, failed to consider his injuries and illnesses in conjunction with one another, and took an ‘adversarial approach.’ ” Abram gives precedential authority to this proposition.
In addition, Abram is significant for its comments on how the review process was used to sandbag the claimant. For a review to be full and fair, if the plan develops evidence that forms the basis for its conclusion, the claimant must be granted the opportunity to comment.
The court pointed to the well-known case of Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461 (9th Cir. 1997) (citing the movie ”Cool Hand Luke” — ”What we got here is a failure to communicate”), to reinforce the need for dialogue between the parties to an ERISA appeal. Abram ensures that claimants are to be given the right to respond to the plan’s evidence developed after the appeal has been commenced. This decision will have significant lasting implications.
Originally published in The Chicago Daily Law Bulletin.