In the first part of this article discussing a lawsuit against Sun Life we addressed whether ERISA applied and if so what standard of review would the court apply. The court ruled ERISA applied and determined that the more favorable De-Novo review should apply. Click here if you have not read Part I of this article. Unfortunately the court determined that they could not make a decision on entitlement to benefits and regrettably gave Sunlife another chance to review the file. Let’s take a close look at the court’s analysis.
Facts Reviewed By The Court
Ms. G, an optician and office manager for an eye care facility, was placed on disability leave by her physicians due to severe pain, weakness and numbness in her legs and arms, and worsening recurring headaches. She was diagnosed with complex regional pain syndrome (also known as reflex sympathetic dystrophy), fibromyalgia, migraines and chronic fatigue. Her physicians opined that she could not sit in one place or drive for more than 90 minutes, could not use her right hand or firmly grasp with her left hand, and could not lift more than 10 pounds. Ms. G underwent diagnostic testing which was mostly normal. However, all of her treating physicians consistently noted obvious visual abnormalities with her right hand, describing it as red, swollen, noted temperature differences and sweating. Ms. G underwent an FCE that concluded that Ms. G did not have functional capacity to maintain sustained work activity.
At the request of Sun Life, Ms. G underwent an IME. In his initial report, the IME doctor noted that she appeared to be in significant pain and could not use her right hand. She had to be assisted to move by her husband. He noted that her pain medication helped her to function for a period of time, but then she would go downhill again after it wore off. The IME doctor confirmed the diagnoses given by Ms. G’s treating physicians and opined that she was unable to return to her prior occupation, or any occupation, even part-time.
Although all of her treating physicians, the FCE, and Sun Life’s IME physician all supported her disability, Sun Life had previously conducted surveillance on multiple occasions over the course of several months, including the day before the IME and the days following the IME. Much of the surveillance depicted little activity. However, there were 3 days where Ms. G was observed performing activities both she, and her doctors, claimed she could not do. On one day she drove for an hour and ½ to her mother’s house, with a brief stop at a rest area along the way. On another day she was shopping at K-mart with her step-daughter and bent down to reach items on a lower shelf, reached above her head to get items, and kneeled to look at items. On the day before the IME, she was observed at a gas station pumping gas using her right hand and then she drove for 2 hours to a hospital, with a brief stop halfway through the drive. Then 2 hours later, she drove home and it was not known if she again stopped to take a break or whether she drove the entire 2 hours straight through.
What could not be derived from the surveillance video, was that on the day prior to the IME, she received a call that her mother suffered a medical emergency, possibly a heart attack, and had been admitted to the hospital.
After receiving the original opinion from their IME doctor, Sun Life sent the IME doctor the surveillance video. The IME doctor amended his report and completely changed his opinion. He stated that Ms. G was able to function very well without any difficulty and appeared neurologically normal even the day prior to the IME exam. He stated that she appeared to use both upper extremities quite well and did not appear to be in any pain or discomfort the day prior to the exam.
Sun Life also had a paper review of Ms. G’s records performed by another physician consultant who also noted that the surveillance video “undermined” Ms. G’s reports of pain and functional limitation. Based on these opinions, Sun Life denied Ms. G’s claim for long term disability benefits.
In her lawsuit, Ms. G argued that Sun Life gave unjustified weight to the surveillance video and wrongly depicted the activity she was seen doing as inconsistent with the reports of her treating physicians. She noted that Sun Life failed to take into account, and failed to inform its medical consultants, that her mother was in poor health and suffered a medical emergency.
Upon de novo review of the medical evidence, the appellate court noted that the medical evidence was adequate to prove Ms. G’s entitlement to disability benefits. Further, there was also evidence which supported Ms. G’s credibility in reporting her subjective symptoms, such as pain and fatigue. The court, however, recognized that the surveillance video did raise a legitimate question about whether Sun Life “made a bona fide effort to determine [Ms. G’s] capabilities.” In our opinion the court should not have given Sun Life another chance to review the claim. The court should have awarded past due benefits and then Sun Life has a right to determine continued eligibility for benefits.
Because the appellate court could not make a determination, without question, that Ms. G was in fact entitled to benefits, the court ordered for Ms. G’s claim to be remanded back to Sun Life for reevaluation and reconsideration. The court ordered that Sun Life will have the opportunity to address the concerns raised by the surveillance video and purported inconsistencies in her reported and observed symptoms, and that Ms. G must be given the opportunity to respond. The appellate court also ordered that the district court should hear from the parties about whether the parties should be allowed to enter additional evidence in support of their claims.
Even though her claim was remanded back to Sun Life for reconsideration, rather than benefits being awarded by the court, there is still a chance that, given the opportunity to properly refute the surveillance video and provide additional medical evidence supporting her disability, Ms. G may be able to prove her entitlement to long term disability benefits. This case is a sad example of the problem with the ERISA regulation. After more than 5 years since benefits were denied, this claimant is still waiting to get paid benefits. Most cases are resolved within 12 months of filing a lawsuit, but this case is an example of what can happen when there are multiple appeals and extensive litigation.
Attorneys Dell & Schaefer did not represent Ms. G in her disability claim, appeal or lawsuit. If you have questions regarding your claim for disability benefits, or if your disability claim has been denied, feel free to call Disability Attorneys Dell & Schaefer for a free consultation.
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