Liberty Mutual and Wachovia interpret migraine headaches to be psychiatric and not disabling (Part I)

As an employee of Wachovia, Sharon Creel had participated in her employer’s short-term and long-term disability plan. After she was hospitalized for chest pain and partial paralysis in July 2002, she applied for short-term disability. Her application was approved.

When her short-term disability coverage expired in January 2003, Liberty Mutual approved her application for long-term disability benefits, but continued to monitor her condition because the two initial attending physician statements submitted by Creel listed her primary diagnosis as major depression, anxiety and panic disorder. One physician listed migraine headaches as secondary.

Liberty Mutual requested medical records from Creel’s attending physicians on a regular basis. When the January 2005 24-month anniversary of her long-term disability coverage arrived, Liberty Mutual informed Creel that her continued qualification for disability benefits was undergoing review as her definition of disability changed from “own occupation” to “any occupation”. Informing her that they would continue her benefits through the “any occupation” review process, Liberty Mutual asked Creel to obtain specific medical documents from both her psychiatrist and her neurologist. She was also asked to keep a headache diary.

Creel kept the diary as requested from January 19, 2005 through February 26, 2005. She documented her activities prior to the onset of each migraine. Over the 39 days, she reported incapacitating migraine headaches on eight separate occasions. Some of her migraines lasted more than a day, bringing the total time her migraines incapacitated her to 11 days. She also sent Liberty Mutual the requested medical documents.

Liberty Mutual sent this information along with the rest of her file to a board-certified neurologist. After reviewing the file, this neurologist concluded that Creel did not suffer from migraines, but rather her headaches were secondary to her depression and anxiety. Even though the neurologist saw a weather-related pattern in the onset of Creel’s headaches, he saw nothing in her file to indicate that her headaches were incapacitating. He discredited Creel’s subjective complaints that her headaches were incapacitating and concluded that they could not “be considered the main cause for any inability to work.”

Liberty Life notified Creel that her benefits would be terminated effective April 26, 2005. The reason given? Liberty Life pointed to the 24-month mental limitation in her disability insurance plan.

It took several months for Creel to collect the documentation needed to appeal the termination of her benefits. It appears from the Court records that Creel hired a disability insurance attorney to assist her with the administrative appeals process. In October 2005, she submitted additional medical records spanning from February 2004 to September 2005. She claimed that the records demonstrated that her migraines were disabling and were physical not mental in their source.

Around this time, Creel’s disability attorney petitioned the Court to depose the neurologist hired by Liberty Mutual. This petition was denied in April 2006, and Liberty Mutual set a June 10, 2006 deadline for submitting any evidence she wanted the claims handler to consider. Creel met the deadline.

Among the evidence provided, she included office notes from one of her treating physicians that reported she was showing early signs of dementia as well as reporting severe headaches 10 days a month. A neurologist also provided a report in which he found a diagnosis of a typical migraine syndrome; which was supported by Creel’s medical records, lab test results, responses to at least 10 different migraine medications and her self-reported symptoms. This neurologist did not find that there was a discernable pattern to the onset of Creel’s migraines, and noted that she could expect to miss work for 10 days every month.

Liberty Mutual sent all of the additional medical information to a psychiatrist for review. This doctor concluded that the record suggested that Creel’s cognitive problems were episodic and minimal in nature and more likely to be connected with her mental symptoms of depression and anxiety. In the absence of mental tests to confirm dementia, she questioned that diagnosis. She stated that she found it odd that none of the doctors treating Creel for migraine had ever seen her while she was having one. At the same time, she recognized that Creel was suffering from migraines. Feeling unqualified to evaluate the level of impairment this might cause, she recommended that Liberty Mutual have the file reviewed by a neurologist.

Liberty Mutual did so. This neurologist spoke with Creel’s neurologist as well as reviewing all of the documents in her file. He reported to Liberty Mutual that he found no evidence of a neurological abnormality that would cause migraines. Based on her history of depression, anxiety, and panic attacks, he felt that her headaches were more likely psychogenic or psychiatric in nature. He admitted that migraine headaches normally render a patient unable to work but felt that Creel’s medical records failed to provide the evidence that she fell within this group.

Liberty Mutual sent Creel notice that her appeal had been denied. She was informed in a July 25, 2006 letter that she could ask Wachovia’s Benefits Committee to review the Liberty Mutual decision. Creel did so in a timely manner. She added to the record a September 7, 2006 opinion from her neurologist that was based on a recent examination and her medical records. Her disability attorney pointed to the fact that her neurologist’s conclusions were in direct contradiction to those of the Liberty Mutual neurologist.

The Wachovia Benefits Committee affirmed Liberty Mutual’s denial of further long-term disability benefits. The mental illness limitation was once again cited. The Committee failed to recognize the most recent submissions as additional medical documentation with the power to controvert the denial.

Creel’s only remaining option in order to obtain long term disability benefits was to file a lawsuit in federal court. Her disability attorney filed suit on her behalf in the U.S. District Court for the Middle District of Florida. There in the Tampa division, they would have to face the abuse of discretion or arbitrary and capricious standard of review. This meant that Creel’s disability attorney had to prove that Wachovia’s final decision failed the test of reasonableness in the light of the facts.

Even though Wachovia operated its plan under a conflict of interest, the Court found Wachovia’s argument that its requirement that Creel present objective evidence of her qualification to disability benefits was a legitimate means to prevent self-interest coloring decisions. As a result, the District Court found Wachovia’s termination of Creel’s long-term disability benefits met the demands of being a reasonable decision in light of the facts. The Court issued summary judgment for the disability insurance plan and ordered the case closed.

At this stage, Sharon Creel had a decision to make. Would she accept defeat or appeal the District Court’s decision to the 11th Circuit US Court of Appeals? Find out in Part II: Appellate Court finds Wachovia and Liberty Mutual’s review of objective evidence of disabling migraine headaches was unreasonable.


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