Credibility Judgments Without IME Lead to Remand Back to Libery Life for Full and Fair Review in Kentucky ERISA Disability Lawsuit
Author: Attorney Alex Palamara
Background and History of the Claim
The Plaintiff in this case, Ms. L, applied for Waiver of Premium benefits with her Plan’s administrator, Liberty Life Assurance Company of Boston, also known as Liberty Mutual. She claimed disability due to her medical conditions of insulin-dependent diabetes mellitus type II, chronic pain, degenerative joint disease, degenerative disc disease, myofascial pain syndrome, morbid obesity, obstructive sleep apnea, peripheral polyneuropathy, physical deconditioning, right knee osteoarthritis and hyperparathyroidism.
Liberty Life denied Ms. L’s initial claim for disability benefits and said denial decision was based on a report prepared by Liberty Life’s consulting physician, Dr. Schwartz. Dr. Schwartz reviewed the paper records only and opined that none of Ms. L’s physical conditions, either by themselves or in combination, precluded her from performing sedentary, light or medium work duties on a full-time basis.
Ms. L appealed the benefit denial and submitted in support of her appeal, her own video statement, a vocational opinion report and a sworn deposition statement from her treating physician, wherein he disputed the findings of Dr. Schwartz and maintained that Ms. L was unable to perform any type of sedentary work due to her physical and cognitive limitations. He notes that it is the severity of each of her physical conditions and their particular cumulative effect which prevented her from being able to work.
Liberty Life upheld the denial of Ms. L’s claim for WOP benefits and the second denial decision was based on the peer review report of its consultant, Dr. Marella. Dr. Marella noted that Ms. L’s diagnoses were supported by objective medical evidence contained in her file. He did not speak with either Ms. L or her treating physician, but he did review the treating physician’s deposition statement. Dr. Marella concluded that Ms. L had no physical condition that precluded her from performing a sedentary, light or medium duty occupation. A vocational analysis was also conducted which was based on Dr. Marella’s description of Ms. L’s physical capabilities and found that Ms. L could perform a number of entry level positions.
Liberty Life Improperly Made Credibility Determinations When Evaluating The Severity Of Her Subjective Conditions
Ms. L’s primary objection stated in her ERISA lawsuit, was that Liberty Life improperly relied on the opinions of the physician consultants, who only performed paper reviews of the medical records, with regard to Ms. L’s subjective pain complaints. Ms. L argued that Liberty Life should have performed a physical examination instead of the file review and the Plan specifically reserved the right to conduct a physical exam.
The Court noted that some of Ms. L’s disabling conditions, and their severity, were fundamentally subjective and Ms. L claimed that she was unable to work mainly due to severe and persistent pain.
In his report, Dr. Marella did note that Ms. L’s pain was related to her conditions which included peripheral polyneuropathy, myofascial pain, cervical spine spondylosis, cervical spine degenerative joint disease and osteoarthritis of the knee. However, without ever examining Ms. L, he made a credibility determination regarding the severity of her pain. He stated that “[m]illions of patients have pain and continue to work in a modified aspect of their job or find a new one.” The Court recognized that without having physically examined Ms. L, “such a dismissive statement cannot be a basis for negating the severity of her pain.”
Dr. Marella also implied in his report that Ms. L may have been faking or being deceitful about her condition or its severity. He stated, “even without being a malingerer, she may have other reasons she feels she cannot return to work and these may not be factual or accurate.” The medical records provided various tests and office notes which confirmed her pain complaints, even though the extent of her pain cannot be quantified. Dr. Marella acknowledges the references in the records regarding Ms. L’s pain, fatigue, and neuropathy, and also states that he could not decipher some of the treating physician’s notes.
Where this dispute existed regarding the severity of Ms. L’s pain and whether it impaired her ability to work, Liberty Life could have performed a physical examination of Ms. L to obtain a more accurate assessment. However, the Court noted that it chose not to and instead made its own determination regarding the severity of her symptoms based “on a review of medical records that Dr. Marella found difficult to read. That necessarily involved a credibility determination.”
Ms. L’s credibility was also questioned regarding the severity of her diabetes and how, if at all, it affected her ability to work. Her treating physician maintained that Ms. L’s insulin-dependent diabetes aggravated her other medication conditions and that it was “the sum total of all her medical problems that can be related as severe.” However, Dr. Marella opined, based on his review of the paper records, that Ms. L’s diabetes was not disabling and that “[m]illions of patients have diabetes and very few require any degree of work restrictions.” Again, without having physically examined Ms. L, Dr. Marella made a credibility determination regarding the effect of her insulin-dependent diabetes.
The Court orders a remand back to Liberty Life
The Court noted that it conducted a thorough review of the administrative record and could not single out any objective medical evidence that Liberty Life relied on in its denial of benefits that did not involve some “material element of a credibility determination.” As such, Liberty Life did not perform a full and fair review of Ms. L’s claim and its decision to deny benefits was arbitrary and capricious. However, because the administrative record was unclear as to whether Ms. L was, in fact, “totally disabled”, the Court determined the proper remedy was to remand the case back to Liberty Life for a full and fair review of Ms. L’s claim for benefits.
Attorneys Dell & Schaefer did not represent Ms. L 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.