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Lawsuit Against IME Physician Alleging Fraudulent Misrepresentation By IME Physician Dismissed by US District Court

Attorney Cesar GavidiaAuthor: Attorney Cesar Gavidia

Prior to her disability, Angel Dix was employed with Blue Cross / Blue Shield of Louisiana and insured under the company’s long-term disability insurance plan. After enduring years of chronic back pain resulting from degenerative disc disease, and having undergone multiple spinal cord surgeries with no resolution of her chronic back pain, Mrs. Dix was forced to stop working and file a claim for disability benefits under her long-term disability plan. Initially, Mrs. Dix’s claim was approved, and was paid for over three years before her benefits were terminated.

Following the termination of her long-term disability benefits, Mrs. Dix timely appealed the decision with Blue Cross / Blue Shield. As part of its review of her appeal for long-term disability benefits, Blue Cross / Blue Shield ordered an independent medical examination of Mrs. Dix by a physician selected by them or their third-party vendor. Dr. Scott Kale, an arthritis and internal medicine physician, was hired to conduct the medical review of Mrs. Dix. Following his review, Dr. Kale opined that Mrs. Dix could return to work with no restrictions. Based on Dr. Kale’s review, Blue Cross / Blue Shield upheld its decision to terminate Mrs. Dix long-term disability claim.

Claimant Files Suit Against Long-term Disability Insurance Company and IME Physician Seeking Recovery of Disability Benefits

Following the denial of her appeal, Mrs. Dix proceeded by filing a lawsuit against both Blue Cross / Blue Shield and the IME Physician, Dr. Kale. In her lawsuit, Mrs. Dix sought to recover the benefits under the long-term disability plan, attorney fees and costs, arising from alleged fraudulent behavior by Dr. Kale for misrepresenting the finding of her treating physicians. Of course, both Blue Cross / Blue Shield and Dr. Kale denied that they committed any fraud whatever, and claimed that Mrs. Dix’s claim should be dismissed as they were completely preempted by ERISA.

Federal Court Finds That Suit Against IME Physician Must Be Dismissed And Is Not Permissible Under ERISA

Shortly after Mrs. Dix filed her federal complaint, Dr. Kale filed a motion to be dismissed from the lawsuit. The US District Court for Louisiana found that Mrs. Dix could not properly maintain a cause of action against the IME Physician, Dr. Kale, since 1) Dr. Kale was neither a representative of the long-term disability plan or an administrator, and, as Mrs. Dix acknowledged, he was merely serving as an independent contractor, and therefore had no authority to make a decisions concerning the payment of benefits, and as such was not a proper defendant and 2) Mrs. Dix could not show that her state law claims for fraud and misrepresentation were not intricately bound to her ERISA claim for recovery of benefits, and therefore not preempted.



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