A recent ruling from the U.S. Court of Appeals for the Sixth Circuit, Zuke v. American Airlines, Inc., 2016 WL 1258220 (6th Cir. March 31, 2016)(unpublished), was extremely critical of an insurer’s termination of disability payments that had been ongoing for thirteen years due to the claimant’s severe degenerative arthritis of the claimant’s entire spine. MetLife based its ultimate determination on file reviews performed by Drs. Siva Ayyar and Arousiak Varpetian, who both opined the file was lacking objective findings of neurologic impairments.The court of appeals rejected those findings and accepted Mar-Ya Zuke’s argument that MetLife ignored reliable, objective evidence from Zuke’s treating physicians on her condition, relying primarily on a 2015 appellate ruling, Shaw v. AT & T Umbrella Ben. Plan No. 1, 795 F.3d 538 (6th Cir.2015).

The contentions asserted by the disability plan in Shaw were similar to those made in this matter; i.e., an asserted absence of objective testing when in fact it was provided – range-of-motion studies, positive findings on neurological testing, and reports of functional limitations. The court noted cervical and lumbar MRIs indicating fairly extensive degenerative disc disease and a new disc herniation, Zuke’s positive Spurling test results confirmatory of radicular pain, and other objective findings.

The court was also critical of the consultants’ rejection of pain complaints.Citing Smith v. Cont’l Cas. Co., 450 F.3d 253, 263-64 (6th Cir.2006) and Fura v. Fed. Exp. Corp. Long Term Disability Plan, 534 F. App’x 340, 343 (6th Cir.2013), the court reiterated its earlier conclusion that non-examining doctors lack any basis to reject a treating doctor’s description of pain complaints.Moreover, the court explicitly found that “a treating physician’s notes detailing the functional capabilities of a patient are objective evidence.” (citing Brooking v. Hartford Life & Accident Ins. Co., 167 F. App’x 544, 549 (6th Cir.2006) (describing a functional-capacity evaluation as “objective evidence” of the claimant’s back pain)).

Returning to Shaw, the court held, “when a plan categorically states that there is no objective evidence when in fact there is such evidence–favorable or not–the plan acts arbitrarily and capriciously.” Among the contentions the court rejected was a file-review consultant’s remark that “returning to work would, in fact, likely ameliorate Ms. Zuke’s ongoing complaints of pain.” The court remarked, “Given the objective evidence ignored by the Plan as well as the cursory manner in which Zuke’s treating physicians’ findings were dismissed, we cannot find that the Plan’s termination of Zuke’s benefits was the result of a full and fair review.”

It is puzzling why insurers continue to permit the use of consulting physicians such as Drs. Ayyar and Varpetian since their names appear with frequency and their opinions are frequently rejected. See, Adams v. Metro. Life Ins. Co., 549 F. Supp. 2d 775, 794 (M.D. La. 2007)(discussing Varpetian).  The courts must also be aware of the Supreme Court’s admonition in Black & Decker v. Nord, 538 U.S. 822, 832 (2003): “Nor do we question the Court of Appeals’ concern that physicians repeatedly retained by benefits plans may have an incentive to make a finding of ‘not disabled’ in order to save their employers money and to preserve their own consulting arrangements.”(internal quotations omitted).The conduct of Drs. Ayyar and Varpetian in simply ignoring what the records state, using canned terminology to assert the non-existence of findings, and offering absurd opinions claiming that a return to work would “ameliorate” pain should be noted by any insurer or vendor considering their retention in future cases.

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