Under the provisions of ERISA, a disability insurance company must provide claimants “with a reasonable opportunity for a full and fair review of a clam and adverse benefit determination.” 29 C.F.R. § 2560.503-1(h)(3). That section also requires an ERISA plan to, among other things:
“[provide] that in deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment, including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate, the appropriate named fiduciary shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment.”
The key phrase applicable to a review by a nurse consultant is whether the nurse made a “medical judgment.” One case held that a nurse’s conclusion that a plaintiff’s “‘neck and shoulder pain fell within the preexisting condition exclusion’ did not violate the regulation, when the nurse thoroughly reviewed the record and did not have to ‘resolve a difference of opinion between two physicians.'”
The case of Karl Meche v. Metropolitan Life Insurance Co. (MetLife) provides guidance as to when the review of a registered nurse consultant complies with the mandate of ERISA and when it does not. In that case, Plaintiff suffered an accident at work that seriously injured his back at level L2-3. He previously had undergone a spinal fusion for level L4-5.
MetLife had Plaintiff’s medical records reviewed by a nurse consultant in order to determine whether Plaintiff had been treated for the same back injury within a certain period of time in order for MetLife to decide if it should deny Plaintiff’s claim for (LTD) benefits on the grounds that he had a pre-existing condition.
The Louisiana District Court held the nurse used the wrong standard in her review when she recommended to MetLife that it should deny benefits since Plaintiff’s new problems were “related” to his pre-existing condition. The policy language required the disability to “result” from the pre-existing condition. But the fact that the review was conducted by a nurse consultant was not a factor in the Court’s decision that LTD benefits were illegally denied.
It is Not a Violation of ERISA When the Nurse Consultant Does Not Offer an Opinion on Appropriateness of Medical Treatment or Resolve a Difference of Opinion Between Physicians
The Meche Court outlined why, in this case, the nurse consultant’s review was appropriate and not a violation of ERISA.
- It was undisputed that Plaintiff had previously undergone a spinal fusion at level L4-5. The nurse consultant was charged with reviewing the file to determine if Plaintiff had medical treatment for this specific back injury in the time frame that would designate it a pre-existing condition.
- The nurse consultant made no medical judgments.
- The nurse consultant did not comment on the appropriateness of any medical care.
- The nurse consultant did not disagree with any medical diagnosis.
- The nurse consultant did not have to resolve a difference of opinion between two physicians.
Under these circumstances, it was not an ERISA violation for the nurse consultant to review Plaintiff’s claim.
It is Not an ERISA Violation for a Nurse Consultant to Conduct a Review When She or He Has the Proper Qualifications
ERISA allows for qualified nurse consultants to review claims. Courts have not held that a file review by a nurse “is an insufficient form of review.” One court accepted the opinion of a nurse consultant who reviewed x-rays, MRIs, and doctors notes and concluded there was “no objective evidence of medical impairment” and therefore, the claimant was denied benefits.
The Court in that case stated that “the Court cannot point to any material documents that, as presented in the record, would prove understandable to a doctor but not a nurse.” Accordingly, the nurse consultant review was not a violation of ERISA.
“Challenges to ERISA procedures are evaluated under a substantial compliance standard.” Although failure “to consult a specialist can contribute to a finding that an administrator did not substantially comply with ERISA procedures,” the record as a whole may indicate substantial compliance if:
- The claimant knows what evidence the decision-maker relied upon in denying the claim.
- The claimant has an opportunity to address the accuracy and reliability of the evidence.
- The decision-maker considers “the evidence presented by both parties prior to reaching and rendering his decision.”
If the file review by a nurse consultant meets these criteria, courts may find the insurance company has substantially complied with the ERISA mandate.
Contact Dell & Schaefer
If you have questions about a nurse consultant reviewing your claim for disability, or any question about your disability claim for either short-term disability benefits or long-term disability benefits, contact one of our disability attorneys at Dell & Schaefer for a free consultation.