Principal Reinstates Benefits of Orthopedic Surgeon Unable to Work Full-Time After Attorney Rachel Alters submits Appeal
Author: Attorney Rachel Alters
Dr. S is 47-year-old left hand dominant Orthopedic Surgeon who was forced to stop working full-time effective May 2, 2016, due to progressively worsening left arm pain which significantly impacted his ability to perform the material and substantial duties of his occupation on a sustained basis. He has a well-documented history of degenerative disc disease, spondylosis with C5-6 neuroforaminal stenosis, and C6 radiculopathy confirmed by EMG studies.
Dr. S was initially treated on August 13, 2015, with complaints of left arm pain which had progressively worsened over the prior three months. He reported the pain radiated from his left posterior shoulder, trapezius, posterior triceps, down his radial forearm to his left thumb, a pattern consistent with C6 dermatome. The pain was described as severe tingling, pins, and needles and rated it as 7 out of 10. The pain significantly affected his quality of life, daily activities, and job function. Physical examination demonstrated Dr. S to have positive Spurling’s and shoulder abduction tests. In addition, the range of motion of his cervical spine was limited due to pain. MRI studies performed confirmed multi-level degenerative changes, with central spinal and neural foraminal stenosis at C3-C6 and at C5-6, broad-based disc osteophyte complex with uncovertebral/facet arthropathy, left sided bulge and foraminal narrowing worse than the right side. Based on Dr. S’s physical and diagnostic examination findings, it was determined that he was a good candidate for surgical intervention and an anterior cervical discectomy and fusion at C5-6 was recommended. However, as Dr. S feared the possibility of losing the ability to continue practicing orthopedic surgery, he was hesitant to proceed with surgery.
Dr. S continued working while enduring significant pain. It was very painful for him to work a full clinic day as he had to be in a static position lifting and using his arms repetitively for surgery. This repetitive movement, performed continuously throughout the work day, significantly aggravated his symptoms. Therefore, his treating doctor restricted him to activity modification to include avoiding repetitive bending and lifting. He also advised him to lighten his workload, to reduce it by 30%. He was approved for Residual disability benefits with Sun Life and continued to work on a reduced schedule as recommended by his physician.
Sun Life Terminated Benefits Based on Biased Peer Review Physician Opinion and Surveillance
Sun Life improperly terminated Dr. S’s benefits based primarily on a biased medical opinion received from its peer review physician and the footage of insignificant surveillance which purportedly showed Dr. S hitting tennis balls at an indoor tennis facility for no more than eight minutes on two separate occasions. Without the benefit of examining Dr. S, the peer review doctor baselessly concluded, that Dr. S had no reasonable restrictions and/or limitations. He utilized the surveillance footage as a basis for this illogical assessment as if hitting balls for no more than 8 minutes equated to an ability to perform the precise and challenging occupation of an orthopedic surgeon on a full-time basis. The courts have longed ruled that heavy emphasis on surveillance was an abuse of discretion, finding it unreasonable to extrapolate from a brief video (15 minutes in this case) a conclusion that one was capable of working on a full-time basis (see Lalli v. Hartford Ins. Co. No. 1:10-cv-00152, 2012 U.S. Dist. LEXIS 23312 and Hanusik v. Hartford Life Ins. Co. No. 06-11258, 2008 U.S. Dist. LEXIS 7520). Focusing solely on the surveillance footage, it is evident that Sun Life completely ignored the consistent and relevant diagnostic and physical examination findings which in fact substantiated and correlated with Dr. S’s severe pain symptomatology and physical limitations.
After receiving Dr. S’s Appeal, Sun Life requires him to attend an IME
According to the physician who performed the IME at Sun Life’s request, he clearly has mild neurological symptoms, a positive Spurling’s test and some mild loss of sensation in a C6 distribution of his left upper extremity. His MRI and EMG findings all indicate a chronic C6 radiculopathy. Functional impairments are: He can sit for 30 minutes at a time for a total of 2 hours in an 8-hour workday. He can stand for 1 hour at a time for a total of 4 hours in an 8-hour workday. He can walk for 1 hour at a time for a total of 4 hours in an 8-hour workday. He can lift/carry/push/pull up to 20lbs occasionally and 10lbs frequently. He can bend, squat, reach and kneel occasionally. He can use both hands for fine manipulation and drive frequently. He can never climb. The IME doctor felt Dr. S’s claim for partial disability was appropriate and the reduced work schedule was necessary in order for him to be able to bear his chronic pain.
Sun Life Determines Its Decision Was Wrong
After Attorney Alters submits a lengthy appeal accompanied by several physicians’ opinions and medical records all supporting the claimant’s inability to work as well as Sun Life’s IME physician’s opinion rendering him partially disabled, Sun Life overturned its denial and reinstated the claimant’s LTD benefits. Attorney Alters will continue to manage the claim to help ensure that his benefits are paid until he is able to return to work full-time.