Prior to disability, David Do was employed as an Analyst-Desktop services for IVZ, Inc. He was responsible to resolving and handling “all support calls relating to desktop software/hardware installation and maintenance.”
Mr. Do was insured under an employer sponsored long-term disability plan administered and funded by Metropolitan Life Insurance Company. In February 2013, Mr. Do injured his neck, back and shoulders while moving computer equipment, and as a result was forced to stop working and apply for workers compensation and short-term disability.
MRIs taken shortly after his injury showed degenerative disc disease and other abnormalities. Based on the objective and clinical findings, Mr. Do was diagnosed with lumbar disc disease and radiculopathy. MetLife approved Mr. Do’s long-term disability claim.
As the twenty-fourth month approached MetLife and its medical director, Dr. Joseph Monkofsky, reviewed the claim. Dr. Monkofsky reported that Mr. Do’s condition was consistent with right-side L5 radiculopathy, however, questioned whether Mr. Do suffered from significantly impairing effects which would prevent him from performing any gainful occupation. MetLife terminated benefits at twenty-four months claiming that the policy’s neuromusculoskeletal disorder limitation applied. The neuromusculoskeletal disorder limitation provided that “Neuromuscular, Musculoskeletal or Soft Tissue Disorder,” or a “disease or disorder of the spine or extremities and their surrounding soft tissue, including sprains and strains of joints and adjacent muscles,” had a maximum benefit duration of twenty-four months, unless he could show objective evidence of a number of exceptions, such as “Radiculopathies.”
Mr. Do appealed Metlife’s denial and submitted EMG and Nerve Conduction studies which confirmed that Mr. Do indeed suffered from bilateral lumbar radiculopathy. On appeal MetLife had Malcolm McPhee, a peer review physician, review the additional records and studies. Dr. McPhee quickly dismissed the EMG findings claiming that although “radiculopathy was considered” the clinical exam “revealed no focal findings in a nerve root pattern.” MetLife upheld its decision to deny benefits on appeal and Mr. Do filed suit in US District Court.
The Court examined whether Mr. Do had submitted sufficient evidence to establish that his conditions were the exception to the limitation, and found that not only was radiculopathy confirmed in Mr. Do, but that it was established by two EMG tests, MRI and clinical examination findings, contrary to Dr. McPhee’s findings. The Court also questioned Dr. McPhee’s credibility on account of his eagerness to so quickly dismiss the objective EMG findings when he had stated in a previous case that “[n]eedle electromyography [EMG] is the single most useful procedure diagnostically in cases of suspected radiculopathy.”
Judge Claudia Wilken ordered MetLife to calculate and pay all past benefits owed to Mr. Do and reinstate his claim.
Although this case was not specifically handled by Dell & Schaefer, the improper application of the neuromusculoskeletal limitation is an issue that we have dealt with many times and are very familiar with. If you have encountered a problem with MetLife or any disability insurer improperly applying a limitation provision to your disability claim, or claiming that your conditions which are exempt from limitation do not apply, please contact us.