Can a long-term disability plan adhere to its denial decision without any supportive evidence? Can a long-term disability plan neglect evidence in support of a participant claim? If a disability plan does these things, what kind of evidence will a disability attorney look for before pursuing a lawsuit against the disability insurance plan? Answers to all these questions may be found in the case of Dale W Gordon.
Gordon joined Northwest Airlines as a machinist in 1998 at the age of 49 years. His problems started when he felt pain in his left knee toward the end of 2002.
His orthopedist, Dr. Joseph T. Teynor advised an MRI. The MRI report showed a tear in the meniscus and degenerative changes. In his next visit, Teynor drew fluid off of Gordon’s knee and injected it with corticosteroid. He described Gordon as majorly symptomatic.
His condition worsened, making arthroscopic surgery on Gordon’s knee necessary in November 2002. In his follow up visit, two weeks later, Gordon’s range of motion was improved, but he reported significant pain after a long walk. Dr. Teynor referred Gordon for an ultrasound to check any possibility of deep vein thrombosis (DVT). But it showed no signs of DVT.
On November 27, Dr. Teynor injected Gordon’s knee with corticosteroid to treat the inflammation. He responded well to the injection, and the nurse practitioner who saw him a week later was optimistic that he would be able to go back to work within a week as long as certain restrictions were observed. A week later, Dr.Teynor agreed that he was making excellent progress, but noted that he expected Gordon to have problems again because he had significant arthritis in his knee.
In February 2003, Gordon went to his family-practice doctor complaining that his knee had been very painful for three days. He was sent to Dr. Teynor, who found that Gordon had incapacitating pain in left knee. The X-ray showed serious joint damage, and Dr. Teynor advised knee replacement surgery. And he also advised Gordon to take disability leave.
Gordon underwent knee replacement surgery on April 7, 2003. But within a week he was admitted due to pain in his left leg. Ultrasound report showed no evidence of DVT, but his doctor prescribed a blood thinning medication as a precaution.
In mid May, Gordon was still complaining of swelling, pain and decreased range of motion in his knee. His family practitioner, Dr. John Canfield, referred him for another ultrasound. This time the ultrasound revealed that Gordon did in fact have DVT. He was hospitalized for a few days. Upon release, he continued taking Coumadin, and a nurse visited him in his home to administer injections of Lovenox to cure his DVT.
Then on May 21, 2003, Gordon was admitted to Emergency due to extreme pain in his left leg. An ultrasound showed that his DVT was even worse than before. This time he was advised to avoid prolonged walking and sitting. When the next ultrasound was conducted on June 5, 2003, it showed that DVT still remained in two arteries.
CIGNA Approves Long-term Disability Claim
On June 9, Dr. Teynor stated that Gordon needed to be disabled from work for at least a few more months. Dr. Canfield reported that Gordon’s leg was still swollen. After considering all the facts and medical reports CIGNA approved Gordon’s claim for disability benefits in late June 2003.
Gordon still had only limited movement in his left knee in late July. In late August, the clinical report found that he had “profound” swelling in both his leg, though his DVT was stable. The clinic referred him to a vascular surgeon for management of his DVT.
When he saw Dr. Teynor again on September 29, Gordon’s knee did not move well. Dr. Teynor reported that Gordon’s inability to work through the normal pain of rehab was preventing successful results after his knee replacement surgery. Dr. Teynor scheduled a surgical “manipulation” of Gordon’s knee. Gordon’s response after the surgery was disappointing.
Once again toward the end of October, Gordon returned to the family-practice clinic complaining of swelling in his legs. The ultrasound of his leg and CT scan of his chest showed no evidence of progressive DVT, though it confirmed that the problem was persistent.
Dr. Teynor recommended bypass surgery to address Gordon’s weight problem. He finally went through this procedure in January 2004. He lost over 70 lbs. over the next several months. Losing weight did not resolve the problem with swelling in his legs. In mid-May, Dr. Canfield prescribed the Jobst pump treatment, which uses inflatable stockings to treat swelling of the legs.
By mid-July 2004, Gordon was complaining of back and neck pain, as well as pain and numbness in his right arm, and weakness in his right hand. An MRI failed to show a cause of these symptoms, so Dr. Canfield advised Gordon undergo an electromyogram test to measure the electrical activity in his muscles and could reveal whether Gordon had any nerve damage.
LINA Asks for First Physical Ability Assessment (PAA) Forms
In the first PAA form Dr. Canfield submitted at LINA’s request, he reported that Gordon could do several activities continuously, like sitting, reading, fine manipulation etc. In that form he checked only the boxes for “supported by objective finding” but he neglected to check in the boxes that would indicate what was supported by objective findings. He also mentioned in the PAA that Gordon could climb on ladders and stairs, balance and stoop, but only occasionally. He also wrote that Gordon was unable to kneel, crouch and crawl. He commented in the PAA that his left knee arthroplasty with weakness/stiffness limits physical functions.
It must be observed that the design of the PAA tended to create some confusion as to how to properly fill it in. A second PAA prepared in mid-August appeared to support Gordon’s ability to lift over 50 lbs., climb stairs and ladders continuously. Yet, the PAA clearly contradicted the evidence in his medical records.
In August 2004, Gordon had to be treated for a hernia. Based on his medical history, LINA concluded that he would probably never return to medium-duty work.
LINA’s Pursues Efforts to Rehabilitate Claimant
About this time, LINA determined that Gordon would need assistance with finding a new type of work. Several jobs were discussed, including sales and insurance. Gordon was of a more mechanical bend, so hospital equipment repair was of interest to him. Unfortunately, LINA was not willing to train him for a job that required some walking and standing.
In October 2004, LINA approached Mr. Christine Kambi and Mrs. Sandra Sehimizzi to help Gordon in searching for work. Both of them opined that Gordon had sedentary restrictions, and that he had no transferable skills that matched his physical limitations.
In November and December 2004, Gordon worked with Kampi, Intracorp, and Wedl Placement, a job placement consultancy. They explored the fields of insurance, computer, quality assurance, claims administration etc. Gordon failed to show competency in any of these areas. In late January 2005, LINA arranged interviews for the postion of sales, but the interviewers said that Gordon would be unsuitable for even the easiest post of phone sales as he was much too unpolished.
LINA Orders Functional Capacity Evaluation (FCE)
LINA finally arranged a FCE for Gordon. During the FCE, evaluator found that Gordon was unable to work as an aircraft mechanic. In order to return to work, Gordon would need to sit for 66 % of the day and have the assistance of a co-worker or a mechanical device to lift more than 40 lbs.
The results of the FCE were used by Mary Ann Caesar to complete a PAA. She concluded that Gordon could sit frequently but stand and walk occasionally. He could also only lift 21-50 lbs. or carry this amount of weight occasionally.
After reviewing the FCE and considering the results of other efforts, Kambi concluded that Gordon had limited communication skills. He was unpolished, lacked sales experience and had no aptitude for customer service.
Report of Social Security Administration (SSA) Finds Claimant Disabled
In March 2005, the SSA decided that Gordon was entitled to SSDI benefits. While they also found that Gordon retained a residual functional capacity for unskilled sedentary work, considering his age, education, experience and residual functional capacity, Gordon could not perform any work that existed in the labor market. Therefore they held that Gordon had been disabled since November 1, 2003.
LINA paid benefits to Gordon until December 2005. But a that time LINA wrote to Gordon informing him that LINA was again going to review his claim because the “Any Occupation” period would start soon. LINA continued paying benefits while it was reviewing his claim.
Third PAA Form is Submitted
On May 26, 2006, Canfield submitted his third PAA to LINA. He also included an official statement of disability. He also wrote that due to continuous pain in Gordon’s left knee, his patient had limited standing, walking, bending, kneeling abilities. Gordon could sit, stand, and walk only occasionally. He also submitted that Gordon had limitations in respect to lifting, climbing ladders, and working around machinery.
After receiving this PAA, the LINA case manager ordered a transferable skill analysis (TSA). Based upon the limitations mentioned in PAA, six jobs that Gordon could perform were identified. Out of the six jobs, four were classified as sedentary jobs and two were classified as light level jobs.
Based upon the TSA and third PAA by Canfield, LINA decided that Gordon was not disabled under the any occupation definition. The long-term disability plan denied his claim and stopped paying him benefits from June 1, 2006.
Gordon retained a disability attorney, who argued that Gordon could not perform any of the six jobs which were suggested in the TSA because of the restrictions and limitations mentioned in all there of the PAAs submitted by Canfield. He also submitted the medical reports related to Gordon’s SSDI award and his classification by Minnesota as a disabled person.
LINA approached its medical director, Dr. R. Norton Hall. who reviewed Gordon’s file in November 2006. Hall mentioned in his report that Canfield’s reports and medical documentations showed that Gordon could perform a sedentary to light job. He also stated that clinical reports and medical records failed to prove Gordon’s status of not being able to work in any occupation. Again one more time, on the basis on Hall’s opinion LINA denied Gordon’s appeal.
Disability Attorney Arranges for Two Additional Evaluation Reports
Two additional evaluations were conducted before Gordon’s disability attorney again challenged LINA’s denial decision. The first evaluation, conducted by physical therapist, confirmed that Gordon could not climb, kneel and crawl at all. The evaluation also mentioned that his ability to lift weight was limited. The assessment portion of the form noted that Gordon demonstrated decreased range of motion in his left knee and strength, limiting his ability to squat and ambulate up/down stairs without using support such as a railing.
The second evaluation was conducted in February 2007 as an independent medical examination (IME) by an orthopedic surgeon. The surgeon reviewed four of the five PAA forms and other medical reports. He concluded that Gordon had a total disability based on five conditions:
- his knees;
- his gastric-bypass surgery;
- his pinched ulnar nerve;
- his arthritic right ankle; and
- his recurrent DVT in his left leg.
In March 2007, Gordon’s disability attorney asked LINA to reconsider its denial decision in light of the IME and other medical reports. The attorney also enclosed a letter from Gordon in which he wrote about his inability to sit at a desk for more than one hour. The attorney also enclosed a copy of the IME and therapist’s report and evidence that Minnesota had classified Gordon as a disabled person.
After the receipt of this request, LINA appointed a medical director to review the information in Gordon’s file. The director submitted his opinion that none of the medical reports supported Gordon’s continued physical restrictions. LINA informed Gordon’s disability attorney that the disability plan was once again upholding its denial decision on the basis of the medical director’s findings, which stated that although Gordon had knee pain, the sedentary jobs identified by the TSA would accommodate his needs. There was no evidence that would support his inability to perform an occupation at the sedentary level.
In order to get his benefits reinstated, Gordon’s disability attorney would have to assist him with filing an ERISA Lawsuit. Ultimately the question to be answered would now be whether Gordon’s medical records supported his right to claim disability under the “Any Occupation” terms of the disability plan. The ERISA attorney had the evidence presented here to work with. Would she be successful in presenting Gordon’s claim before the Court? We will discuss the court’s decision in Part II.