Employee Relations Law Journal – From the CourtsMay 17, 2019 | Ian S. Linker |
Sixth Circuit Affirms District Court Decision That Anesthesiologist Was Not Disabled from His Own Occupation
The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s decision upholding a determination by the claim administrator of an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA) that the plaintiff plan participant, an anesthesiologist, was no longer eligible for long term disability benefits under the plan because he no longer satisfied the plan’s definition of disability.
The plaintiff worked for nearly 18 years as an anesthesiologist, but stopped working in 2013 after a fall that ultimately led to surgery. The plaintiff was cleared to return to work, but took leave two months later. He was diagnosed with superior semicircular canal dehiscent syndrome in his left ear, and he underwent surgery by a neurotologist, a physician who treats neurological disorders of the ear.
The neurotologist noted that the plaintiff was sensitive to certain noises (for example, a shoe dropped on a floor) but was not bothered by other sounds (for example, his motorcycle).
The first surgery was unsuccessful, and the plaintiff underwent two more surgeries by the neurotologist.
In September 2013, the plaintiff applied for long-term disability benefits under the plan.
The plaintiff asserted that the symptoms associated with superior semicircular canal dehiscent syndrome, such as “intense sensitivity to loud percussive noises,” diminished his ability to maintain focus and compromised patient safety. He also noted that his inability to work had caused him emotional distress and that, as a result, he had been admitted to a hospital “for treatment of depression, bipolar disorder, and suicidal ideation.” Under the plan, benefits for disabilities based on mental illness were limited to 24 months.
In November 2013, the claim administrator approved the plaintiff’s application for long-term disability benefits and notified him that benefits for physical conditions that affected his ability to work were not limited to 24 months, and that such benefits would continue if he continued to meet the definition of disability because of a physical condition.
By July 2014, the plaintiff’s balance had improved, but it still was unreliable due to dizziness induced by loud sounds and auditory hypersensitivity. His neurotologist noted that the plaintiff still was “disabled.”
Several months later, in December 2014, the neurotologist informed the claim administrator that the plaintiff’s “severe unilateral hearing loss” and “dizziness triggered by noise or straining” were limitations preventing him from working. However, the neurotologist also confirmed that the plaintiff could work full time within the functional parameters of “light work” with restrictions of “exerting up to 20 lbs. of force; [f]requent sitting, reaching, handling, fingering and talking; [o]ccasional standing and walking.”
In 2015, a physician conducted an independent review of the plaintiff’s records on behalf of the claim administrator and concluded that the plaintiff was “capable of performing full time work although it would be somewhat challenging to be an anesthesiologist.” The physician recommended that the plaintiff wear an earplug in his left ear and a hearing aid in his right ear to alleviate the problem “and allow him to return to work.”
In October 2015, the claim administrator notified the plaintiff that effective October 28, 2015 he was no longer eligible for disability benefits pursuant to the plan’s 24 month limitation for disabilities caused by mental illness.
The plaintiff appealed, claiming that his disability was physical and not mental. The claim administrator disagreed and upheld its determination, asserting that the medical evidence did not support the conclusion that the plaintiff’s physical symptoms rose “to a level of impairment that would limit [the plaintiff] from performing his regular occupation at least on a part-time basis” as performed in the national economy.
The plaintiff sued, seeking reinstatement of long-term disability benefits under the plan. Reviewing the benefit determination de novo, the U.S. District Court for the Western District of Michigan found for the claim administrator, concluding among other things that it had properly interpreted the plan when it determined that the plaintiff was ineligible for additional long-term disability benefits.
The plaintiff appealed to the Sixth Circuit.
The Sixth Circuit’s Decision
In its decision affirming the district court, the Sixth Circuit applied the de novo standard of review, because the parties had stipulated to application of that standard in the district court, and clarified that it would affirm the district court if the claim administrator correctly adjudicated the claim based on the plan and the evidence in the administrative record, applying traditional principles of contract interpretation. The court noted it was the plaintiff’s burden to demonstrate eligibility for plan benefits by a preponderance of evidence.
Under the plan, a physician was disabled when the claim administrator determined that the person was “limited from performing the material and substantial duties of [his or her] regular occupation due to [his or her] sickness or injury” and had “a 20% or more loss in [his or her] indexed monthly earnings due to the same sickness or injury.”
The plan defined “limited” as “what [he or she] cannot or [is] unable to do”; defined “material and substantial duties” as duties that were “normally required for the performance of [his or her] regular occupation; and cannot be reasonably omitted or modified”; and defined a physician’s “regular occupation” as:
[His or her] specialty in the practice of medicine which [he or she is] routinely performing when [his or her] disability begins. [The claim administrator] will look at [the physician’s] occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.
The court noted that, in December 2014, the plaintiff’s neurotologist advised the claim administrator that the plaintiff could work full time within the functional parameters of “light work” and with restrictions of exerting up to 20 pounds of force. The neurotologist also recommended that the plaintiff wear an earplug in noisy situations.
The court then observed that although the physician who conducted an independent review of the plaintiff’s medical records in July 2015 conceded that the plaintiff would face some challenges in working as an anesthesiologist, the physician nevertheless concluded that the plaintiff could perform his job functions with the proper accommodations – at a minimum, wearing an earplug.
The court found compelling that there was expert medical analysis that the plaintiff still could practice anesthesiology with appropriate accommodations.
The court stated that although there was “no question” that the plaintiff would need accommodations to perform the material and substantial duties of his occupation, it could not conclude that the plaintiff was eligible for additional long-term disability benefits or that the claim administrator had misinterpreted the plan. [O’Neill v. Unum Life Ins. Co. of America, No. 18-1382 (6th Cir. Nov. 19, 2018).]
Ninth Circuit Again Remands to District Court Plaintiff’s Suit Seeking Disability Benefits Due to Pain Caused by Fibromyalgia
The U.S. Court of Appeals for the Ninth Circuit remanded a lawsuit seeking disability benefits under an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) due to fibromyalgia to the U.S. District Court for the District of Nevada for the second time.
The plaintiff sought long-term disability benefits under the plan due to a physical illness: fibromyalgia.
The claim administrator determined the plaintiff was ineligible for benefits because it concluded that, although the plaintiff suffered from fibromyalgia, she was able to perform her duties as a dealer at a casino and, therefore, she was not disabled as that term was defined in the plan, i.e., the plaintiff did not have “a significant change in  physical or mental condition due to . . . [s]ickness . . . [that] prevent[ed] [the plaintiff] from performing . . . the Essential Functions of [her] Regular Occupation.”
The plaintiff sued the claim administrator, challenging its determination. The district court granted the administrator’s motion for summary judgment.
The Ninth Circuit reversed and remanded the case to the district court. Having previously recognized fibromyalgia “as a physical rather than a mental disease,” the court reasoned when it first considered the case that the plaintiff “never claimed to be disabled based on a ‘mental condition,’ . . . so [the claim administrator’s] conclusion that there was no warrant to explore those conditions could not have been a reason for denying benefits.”
On remand, the district court concluded that the Ninth Circuit’s decision “now obligates this court to evaluate plaintiff’s denial of benefits . . . without consideration to any alleged mental condition.”
The dispute again reached the Ninth Circuit, which vacated the district court’s decision and remanded the case again to the district court.
The Ninth Circuit’s Decision
In its original remand decision – holding that the plaintiff’s claim was based on a physical, rather than a mental, condition – the Ninth Circuit did not order the district court “to disregard evidence of mental symptoms caused by her physical condition.” The plaintiff argued on appeal, however, that the district court did precisely that: “In parsing evidence of a disability claim based on mental illness, [the district court] improperly disregarded mental symptoms caused by [plaintiff’s] fibromyalgia, a physical disorder.” The court agreed with the plaintiff that the district court should have considered “all relevant symptoms, both physical and mental, as long as they resulted from [the plaintiff’s] fibromyalgia. Symptoms caused by a separate mental illness may properly be disregarded.”
The court “[u]ltimately” remanded the case, though, because it was unclear whether the district court determined whether the plaintiff’s symptoms were “caused by fibromyalgia or a distinct mental illness” and it was unclear whether the district court determined whether the plaintiff “suffered from both depression and fibromyalgia, or the extent to which any symptoms that impaired her ability to perform her job were attributable to either her fibromyalgia or an unrelated mental illness.”
The Ninth Circuit stated that the district court should have determined whether the plaintiff met her burden of proof to establish that her depression, anxiety, and other mental conditions were symptoms resulting from her fibromyalgia.
The court also directed the district court to consider whether the negative impact of any symptoms that were attributable to the plaintiff’s fibromyalgia rose to the level of disability, as defined in the plan. [Decovich v. Anthem Life Ins. Co., No. 17-15324 (9th Cir. Dec. 3, 2018).]
Court Says Plaintiff Must Be Told Reviewing Physicians’ Salaries, and Given Their CVs
A U.S. magistrate judge has held that a claim administrator of an employee benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA) must produce to the plaintiff, who was seeking long-term disability benefits under the plan, the curriculum vitae and salary of each in-house physician who reviewed her medical records for the claim administrator during the administrative claim process.
The plaintiff applied for disability benefits under her employer’s ERISA-governed employee benefit plan. She received short-term disability benefits and, after the 26-week elimination period expired, she applied for long-term disability benefits.
She received long-term benefits for two days, and the claim administrator denied her further benefits.
The plaintiff sued the claim administrator. A discovery dispute arose regarding information related to the physicians employed by the claim administrator to review the plaintiff’s medical records (the Reviewing Physicians). Specifically, the plaintiff served interrogatories and document requests aimed at learning how long the Reviewing Physicians had been affiliated with the claim administrator, how much they were paid, whether they participated in any kind of profit-sharing or bonus plan, whether they had received any commendations or awards from the claim administrator, and whether the claim administrator had ever subjected them to any kind of corrective action.
The plaintiff also sought production of any documents concerning how the claim administrator evaluated claims of pain, minimum levels of pathology, and patient improvement and any training material provided to the Reviewing Physicians.
The claim administrator objected to the plaintiff’s discovery requests. At oral argument, counsel for the claim administrator represented to the court that the Reviewing Physicians were salaried employees of the claim administrator whose income did not vary with the number of files they reviewed or the nature of their conclusions. Counsel also represented that the Reviewing Physicians did not participate in any bonus or profit sharing plan and that they were not given any training materials beyond the claims manual, which already had been produced to the plaintiff. Counsel also indicated that the Reviewing Physicians had not received any commendations or been subject to any corrective action. Finally, counsel advised that the Reviewing Physicians rendered medical opinions only; they did not decide whether a claimant met the standard required to receive long-term disability benefits. In light of these representations, the court held the plaintiff’s requests for this information were moot. However, the plaintiff had other requests not covered by counsel’s statements.
The Court’s Decision
Applying the abuse of discretion standard of review in an ERISA case, a court typically limits its review of a benefit determination to the evidence in the administrative record; thus, discovery is typically limited to production of the record. Courts are split, however, regarding whether to allow additional discovery when the standard of review is de novo. The authority to order additional discovery in a particular case is firmly within the discretion of the court. The court noted that there were at least three separate meanings to the word “relevant.” “[R]elevance for the purposes of discovery is broader than relevance for the purposes of admissibility. Relevance is a matter of degree, and the standard is applied more liberally in discovery than it is at trial.” So there is relevance for purposes of discovery and relevance for purposes of admissibility. ERISA defines relevance, as well. Under Department of Labor regulations, 29 C.F.R. 2560.503-1(m)(8):
A document, record, or other information shall be considered “relevant” to a claimant’s claim if such document, record, or other information
- Was relied upon in making the benefit determination;
- Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;
- Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination; or
- In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.
The claim administrator argued that the plaintiff’s requested discovery was not relevant for discovery because it was not relevant under the DOL regulation. The court disagreed. Merely because evidence is relevant for purposes of discovery does not mean that it is admissible evidence, nor does it mean it is a relevant document under ERISA. A document is relevant under ERISA only if a plan administrator is required to provide it to a plan participant or beneficiary. Because the court’s review is generally limited to the administrative record, because of the case law holding that a court will not consider evidence outside the record absent good cause, and because of “significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt claims-resolution procedures,” the court agreed with the claim administrator that discovery is limited.
Although several of the plaintiff’s requests were moot, because the claim administrator’s counsel addressed them during oral argument, several of them were not moot and were, in fact, relevant. “To resolve this action, the [Article III] [j]udge will have to review the administrative record, which presumably contains conflicting medical reports, and make a de novo determination” regarding whether the plaintiff satisfied the plan’s definition of disability. Accordingly, to resolve the matter, the court would likely “have to determine the weight to be given to the medical evidence.” Discovery, the court said, would be helpful in making this determination. As factfinder, the judge’s “task in deciding the case is similar to the function a jury performs in any trial in which a party’s physical condition is in issue and medical evidence is offered. To aid jurors in this task, Rule 26(a)(2)(B) requires that certain disclosures concerning medical (and other) experts be made, including a statement of his or her qualifications and the compensation he or she is receiving.” Accordingly, the physicians’ “experience, specialties and board certifications are all relevant to the assessment. Similarly, in the unlikely event that [the claim administrator] pa[id] the Reviewing Physicians exorbitant salaries, that fact would also be relevant to an assessment of their opinions.” Therefore, the court concluded that allowing discovery into these two areas would assist the Article III judge in reviewing this matter and would not give rise to any significant cost or delay. Consequently, the court ordered the claim administrator to produce to the plaintiff’s counsel a statement of each Reviewing Physician’s income from the claim administrator for the year in which each reviewed the plaintiff’s medical records and the preceding year as well as the curriculum vitae of each of the Reviewing Physicians. The court sustained the claim administrator’s objections to the plaintiff’s discovery requests in all other respects. [Weinberg v. Unum Life Ins. Co. of America, No. 17 Civ. 8976 (RA)(HBP) (S.D.N.Y. Nov. 6, 2018).]
- Ian S. Linker