January 13, 2010 was a good day for Kelly Lavino. U.S. District Court, Central District of California Judge Stephen V. Wilson ruled that Metropolitan Life Insurance Company (MetLife) wrongfully denied disability benefits and abused its discretion when it decided to terminate Lavino’s long-term disability benefits. Let’s review what Judge Wilson considered as he made his decision.
Long-term disability benefits defined
Typical of most long-term disability plans, the plan included an elimination period. This was followed by 24 months, where benefits would be paid if Lavino was unable to earn more than 80% of her pre-disability earnings in her own occupation, defined by the job she was currently performing at Malcolm Pitnie.
After the 24 months, she would continue to qualify for long-term disability benefits if she was unable to earn more than 80% of her pre-disability earnings from any employer in her local economy working at a job she was reasonably qualified to perform because of her training, education and experience.
In order to remain qualified for long-term disability benefits, the plan required evidence of continuing disability.
History of short-term and long-term disability
In 2003, Lavino was diagnosed with breast cancer. She had a mastectomy and returned to work in 2004 while undergoing chemotherapy. On January 3, 2006, she took a leave of absence from work. In October 2006 she applied for short and long-term disability coverage. Her physician, Dr. Michael Flaningam, prepared an attending physician statement which she included in her application. Dr. Flaningam stated that Lavino displayed all the symptoms of fibromyalgia, including widespread pain and exhaustion. He stated that he expected Lavino to return to work on January 2, 2007.
But in early January, Dr. Flaningam faxed MetLife notifying them that he was extending her disability through June 30, 2007. He noted that he was skeptical that she would ever be able to work on a daily basis, or for more than several hours straight.
MetLife’s response to short-term disability claim
In order to evaluate Lavino’s claim, MetLife asked Malcolm Pitnie to fill out a job description form. This is how Malcolm Pitnie broke down the physical requirements of the job.
- 3 to 4 hours of sitting and standing
- 1-2 hours of walking
- 7 to 8+ hours a foot control for both feet
- 7 to 8+ hours of repetitive use of both hands
- 1-2 hours of grasping with both hands
- 3 to 4 hours of fine finger dexterity in the right hand
- 3 to 4 hours of use of the neck in a static position
- 1 to 33% of the time lifting up to 10 pounds
- 34 to 66 frequency of interpersonal relationships to perform the job
- 1 to 33% frequency of stressful situations necessary to perform the job.
Malcolm Pitnie also indicated that Lavino was not required to drive cars, trucks, forklifts and/or other equipment. She was not required to be around moving equipment and/or machinery or to walk on uneven ground. Exposure to dust, gas or fumes was not part of her job. And she was not exposed to marked changes in temperature or humidity during her workday. Overtime was not routine.
Malcolm Pitnie complained that the job description form was very unprofessional and was not satisfied with the information they provided. In response, MetLife interviewed Lavino, asking her to describe what her job consisted of. She reported that her job consisted of “preparing reports, overseeing projects, marketing, office work, driving to see clients, and monitoring construction sites.”
After considering this information, MetLife categorized Lavino’s job as “Medium.”
They approved her short-term disability claim on January 17, 2007, approving benefits from January 4, 2006 to March 28, 2006. The records prepared on this date indicate that MetLife changed the classification of Lavino’s job to “sedentary” and described her job based on the forms filled out by Malcolm Pitnie, not based on the interview with Lavino. Despite this error in the January 17 notation for job activity level, the claim notes stated that Lavino was not able to safely perform the essential duties of her job.
MetLife’s first denial of long-term disability benefits
Only 12 days later, MetLife turned around and denied Lavino’s application for long-term benefits, claiming that she had filed too late. MetLife reconsidered this denial when Malcolm Pitnie took responsibility for the late submission. MetLife agreed to complete a full review of Lavino’s claim.
MetLife requested additional medical information from Dr. Flaningam on February 16, 2007.
Dr. Flaningam responded by describing her symptoms. He said she had total body pain in her muscles and joints, that she was tired all the time and have difficulty concentrating. He reported that she could not deal with stressful situations and struggled with interpersonal relationships. He went on to describe Lavino’s physical capabilities. He said that she could sit for three hours intermittently and she could walk for two hours intermittently. But she could not stand for an hour. He expressed his opinion that she could not work due to her fatigue and limited ability to concentrate. He supported his diagnosis by providing MetLife with Lavino’s complete medical treatment record beginning with January 2006.
Lavino’s record also included a report by rheumatologist Dr. Carolyn Dennehey who have examined her in May 2006. This report confirmed that Lavino did have fibromyalgia and also had positive FABER and positive straight leg raise.
MetLife approves long-term disability benefits
MetLife approved Lavino’s application for long-term disability benefits on March 12, 2007. Lavino was encouraged to apply for Social Security benefits, and MetLife directed her to an attorney who specializes in Social Security applications.
Dr. Flaningam faxed MetLife on April 11, 2007, providing notes from Lavino’s appointment that day. His notes indicate that Lavino had not responded to medication in the past, but that she was going to try a new medicine, Lyrica, to treat her fibromyalgia. He noted that she took Ambien so she could sleep.
Dr. Flaningam saw Lavino again on May 11. He faxed the results of this appointment to MetLife on May 14. He noted that the plaintiff had not responded to the new medication, and concluded that a medication that would provide significant relief might not exist for Lavino. The increased pain that resulted from using Lyrica was so severe that Lavino didn’t want to try anything new for a while. He concluded that she would not be able to return to work on July 1st as they had hoped. He reset her target return to work date at January 1, 2008.
MetLife requested that Lavino fill out a “personal profile” form in August of 2007. In the form, she noted that she had trouble sleeping, suffered from constant joint and muscle pain and that she had limited abilities to concentrate and solve problems. She noted that she expected to return to work “as soon as I can sit in a chair or stand for longer than one half hour without pain, as soon as I can carry on a conversation without forgetting what we were talking about.”
Social security denied Lavino SSDI benefits in October 2007. MetLife advised her to appeal the denial and referred her to an attorney once again.
Dr. Flaningam sent another update to MetLife on November 9, based on notes from Lavino’s October 24 appointment. He stated that Lavino felt like she was getting worse. He noted that she complained that she was “in pain all the time, all over.”
MetLife’s doctor’s don’t see evidence of disability
Meanwhile that same month, MetLife referred Lavino’s file for review to Network Medical Review (NMR). NMR retained rheumatologist Dr. Dennis Payne. Dr. Payne reviewed Lavino’s file and spoke with Dr. Flaningam. His notes reflected that Dr. Flaningam did not report that there was any evidence of the destructive features that are common to inflammatory rheumatic diseases and that Dr. Flaningam had not seen any evidence of other disease processes that would produce restrictions and limitations on activities. Dr. Payne reached the conclusion that there were no objective findings that would lead to restrictions or limitations on activities.
Objective evidence impossible for fibromyalgia pain
Dr. Flaningam was asked to respond to Dr. Payne’s assessment. In his letter of December 10, 2007, Dr. Flaningam said he felt that during their conversation Dr. Payne had agreed with him that patients who had symptoms similar to Lavino’s were challenging to treat because there were no objective findings. He pointed out that most experts accept the fact that there is no good way to measure pain and fatigue in a patient with fibromyalgia or any one of the other chronic pain syndromes. He pointed to the fact that if MetLife were expecting clinical findings to support her disability, that they would have to understand the difficulty in providing this.
He asked MetLife to provide more specific guidelines so he could provide the best information for showing her disability existed. MetLife forwarded his request to Dr. Payne.
Dr. Payne responded by saying that restrictions in activities have not been shown to change symptoms or improve functional improvement in a meaningful way, thus fibromyalgia syndrome was not a limiting condition. He stuck to his conclusion that there are no objective reasons to restrict or limit activity, thus Lavino was not disabled. Dr. Payne did not recommend any tests that would support Lavino’s case.
MetLife changes its job classification again
MetLife interviewed Lavino once again, on December 4, 2007, regarding her job description. She told them that her job involved marketing, speaking with clients and preparing and presenting proposals. She added that when she was awarded a project, she managed staffing, assignments, budgeting and overseeing construction. She reported that her job included travel, occasionally crossing state lines. MetLife updated her job classification to “light.”
MetLife terminates long-term disability benefits
Based on Dr. Payne’s recommendations, MetLife terminated Lavino’s benefits on January 7, 2008. Lavino claimed she never received the letter which was supported by the fact that she asked Dr. Flaningam to faxed MetLife his notes from her January 23 appointment. Once again, his notes reiterated the fact that she was in pain and that she was not able to return to work.
MetLife resent the denial letter. In it, they explained that Dr. Payne had not been able to find objective reasoning for the restrictions and limitations the plaintiff claimed she had. The letter went on to inform her that the medical information in her file did not support the existence of a condition severe enough to prevent her from performing the essential duties of her job. The letter also let her know that she could appeal the denial, and to do so in writing.
Lavino did so. She included additional documents from Dr. Flaningam that described her symptoms, her physical limitations and the course of treatment that she was following. It also included a second report from Dr. Dennehey. Dr. Flaningam reiterated that Lavino met all the diagnostic criteria for a diagnosis of fibromyalgia, and Dr. Dennehey reconfirmed this diagnosis.
MetLife sends long-term disability file for second paper review
When MetLife received Lavino’s documents, it requested another review from NMR. This time rheumatologist Dr. Tanya Lumpkins reviewed Lavino’s file. She found that the medical record did not demonstrate rheumatological diagnosis of sufficient severity to impair Lavino’s ability to perform routine duties in a sedentary position. She noted that Dr. Dennehey had diagnosed Lavino with a positive FABER and positive straight leg raise, but she concluded that the data wasn’t sufficient to support any functional limitations based on these observations.
Dr. Lumpkins was asked if Lavino’s pain prescriptions could impact her ability to perform her job safely. Dr. Lumpkins recommended that Lavino not work at unrestricted heights, drive company vehicles, work with heavy machinery or safety sensitive material. She recommended that Lavino’s psychological impairment be evaluated by a neuropsychological exam.
Dr. Flaningam faxed MetLife on February 12, 2008 with his notes from Lavino’s February 8 appointment. He included a fibromyalgia residual functional capacity questionnaire. Both his notes and the questionnaire reemphasized Lavino’s fatigue, confusion, inability to concentrate and over all pain. The next day, Dr. Lumpkins responded with the conclusion that the additional medical information did not change her original opinion.
MetLife faxed Lavino on February 18, 2008, informing her that they had faxed a consultant’s review to Dr. Flaningam. She was warned that if he did not respond by the 25th, MetLife would make its final decision based on the existing record. Two days later, Lavino wrote MetLife objecting that the policy language did not require an objective finding for her disability. But, she argued; the functional capacity questionnaire and her doctor’s diagnosis should be considered objective findings. She wrote again on the 23rd, asking for specific instructions regarding the information MetLife wanted her to provide.
Metlife upholds its long-term disability denial decision
On February 27, 2008 MetLife sent Lavino a letter that upheld their denial of her long-term disability benefits. The letter noted that her medical records failed to demonstrate a rheumatologic diagnosis of sufficient severity to prevent her from performing the routine duties of a sedentary job.
Dr. Flaningam’s office faxed a letter to MetLife on March 18, 2008 in response to their February 18 letter. He included his notes from Lavino’s March 13 appointment. MetLife acknowledged the receipt of the additional information on March 21, but they let Lavino know that it did not change their denial decision.
At this point, it became obvious that administrative appeals were futile. There was no place left to go but to court. We will look at what Judge Wilson of the U.S. District Court, Central District of California saw in this history in my next article, MetLife abused its discretion when it terminated long-term disability benefits.