Unum relies on independent medical exam as basis for denying long-term disability benefits (Part I)

A disability insurance claimant’s medical records and the support of a treating physician are vital to supporting a long-term disability claim. The case of Blackwell v. Unum Insurance Company of America highlights this once again. In this article, we will look at one man’s medical records and the disability insurance plan’s response to the records. There may be lessons to learn in the process.

Paul Blackwell had worked for Beverly Enterprises, Inc. as the Vice president of Quality Management when he chose to participate in his employer’s ERISA governed long-term disability income plan. His position involved extensive travel evaluating the quality management standards of over 550 Beverly facilities across the United States. Unum Insurance Company of America (Unum) issued the policy on January 1, 1999. The policy defines disability as occurring when he became “limited from performing the material and substantial duties of [his] regular occupation due to [his] sickness or injury;” and he experienced “a 20% or more loss in [his] indexed monthly earnings due to the same sickness or injury; and during the elimination period” he could not “perform any of the material and substantial duties of [his] regular occupation.”

In 2000, Blackwell began experiencing severe pain and stiffness in his joints and back. As time passed, he found the strain of long hours on the road and in the air became too much to bear. He stopped working on December 18, 2001 and applied, at the age of 52, for long-term disability benefits from his Unum policy. Unum denied the claim on July 26, 2002. Blackwell appealed the denial, but Unum upheld its decision on December 16, 2002. Blackwell’s disability attorney filed an ERISA disability lawsuit against Unum.

Here are the medical records that Blackwell’s disability attorney would encounter when trying to prove that Unum’s decision was arbitrary and capricious.

  • A May 16, 2000 visit to Dr. Mouhammad K. Sheikkha diagnosed Blackwell with “left shoulder pain and bursitis, and also acute upper respiratory tract infection.” The doctor prescribed Vioxx and recommended that Blackwell use a Z-Pak.
  • A July 27, 2000, CT scan of Blackwell’s lumbar spine showed that the 3-4 disc was showing some mild annular bulging but no focal protrusions. Mild facet hypertrophy was noticed at this level. 4-5 also showed diffuse bulging, mild ligamentum flavum hypertrophy and facet hypertrophy with overall slight canal stenosis. 5-1 also showed mild disc bulging. Again, no focal protrusion was observed.
  • A July 31, 2000 another lumbar spine MRI was performed at St. Edward Mercy Medical Center, Department of Radiology, Nuclear Medicine and Medical Imaging. The purpose of the MRI was to identify the source of Blackwell’s lower back pain. The results were comparable to the July 26 CT scan.
  • A June 6, 2001, visit to Dr. Sheikha at the Cooper Clinic resulted in the renewal of his Vioxx prescription, an additional prescription for Allegra and advised to stop smoking. Dr. Sheikha summarized his final diagnosis as follows: “1. The patient was diagnosed with chronic pain. 2. Cough related to allergic rhinitis.”
  • An October 5, 2001, visit to osteopath Dr. Daniel C. Martin, D.O., resulted in a set of nearly illegible notes, though the check box for musculoskeletal system was checked for “abnormal.”
  • A November 9, 2001, visit to Dr. Martin shows more illegible notes though it appears that he stated that Blackwell’s chief complaint would be found in his records. Musculoskeletal system was once again marked as “abnormal.”
  • A November 26, 2001 visit to rheumatologist James McKay, D.O., resulted in the diagnosis of Symmetrical polyarthralgias, weakly positive rheumatoid factor with a history of low back pain. Dr. McKay reported Blackwell’s description of his pain as well as his findings that Blackwell’s “passive range of motion was normal in cervical spine, shoulders, elbows, wrists, hips, knees, and ankles. The PIPS of each hand were reduced 50% in flexion range of motion. There were no signs of actual joint effusion, nodulosis, sclerodactyly, cutaneous vasculitis, digital ischemia, or RA like deformity.” Dr. McKay concluded that Blackwell had symmetrical polyarthralgias which went about a year back. He wasn’t sure whether this represented osteoarthritis alone, or whether an inflammatory component may have also been involved.
  • A December 12, 2001 visit to Dr. Martin appeared to diagnose Blackwell with arthritis.
  • A December 27, 2001 visit to Dr. McKay noted Blackwell’s joint pain and “weakly positive RA.” Dr. Mckay ordered a bone scan.
  • The January 2, 2002 bone scan of Blackwell’s hands and feet showed suspicious findings at L3 that suggested mild compression deformity or posttraumatic deformity. The bone scan also showed suspicious diffuse mild localization to the feet, knees, wrists, hands, and elbows suggesting some mild degenerative process was occurring.
  • A January 3, 2001 visit to podiatrist Maureen L. Crotty notes that Blackwell claimed to have difficulty trimming his toenails because of the stiffness in his back, knees and fingers caused by his arthritis. After attending to his ingrown toenails, Dr. Crotty noted that the muscle tone and strength of Blackwell’s dorsiflexors, plantarflexors, invertors and evertors were within normal limits even though they were somewhat splinted due to pain. She found no overt bony deformities.
  • A January 9, 2001 visit to Dr. Martin indicated it was a follow-up visit for Blackwell’s arthritis. Dr. Martin added rheumatoid arthritis (RA)to his diagnosis.
  • A January 21, 2001 follow-up visit to Dr. McKay confirmed the diagnosis of osteoarthritis (OA) with Blackwell’s RA being weakly positive, but not significant.
  • A February 9, 2002 visit to Dr. Martin resulted in the doctor concluding that Blackwell needed disability forms filled out for rheumatoid arthritis.
  • A March 4, 2002 visit to Dr. McKay concluded that Blackwell’s condition had not changed. He saw no synovitis and found Blackwell had a normal range of motion in all his joints.
  • A March 7, 2002 visit to Dr. Martin resulted in Dr. Martin ordering a C-reactive protein test to measure the level of inflammation in Blackwell’s body. The results came back in the normal range.
  • An April 18, 2002 visit to Dr. Martin resulted in the doctor reiterating his primary findings as OA and RA.

When Blackwell applied for disability benefits on February 6, 2002, he prepared both the Attending Physician’s Statement and the Claimant’s Statement. Dr. Martin signed the Attending Physician Statement which stated that Blackwell was diagnosed as RA positive on October 5, 2001. It pointed to the bone scan which showed mild diffuse degeneration to multiple joints. Under symptoms, Blackwell listed: “Pain & Stiffness bilateral hands. Pain in shoulders, wrists, knees, feet & back.” Blackwell indicated that his symptoms first appeared in 2001, and RA appeared in October 2001.

The Attending Physician’s Statement asked, “Has patient ever been treated for the same or similar condition?” Dr. Martin agreed that Blackwell’s osteoarthritis began in 2000. He also agreed with the list of restrictions Blackwell came up with: “Writing & typing which would aggravate symptoms. Excessive activity which irritates joints.” He also approved the following list of limitations: “Cannot lift luggage & laptop computer. Cannot fly, or drive for extended periods. Cannot sit or stand without changing position frequently. Cannot bathe or dress without assist. Cannot climb stairs.”

Unum acknowledged it had received Blackwell’s claim on February 18, 2002. After reviewing the medical records Blackwell had provided, Unum found that they did not support Blackwell’s loss of work capacity. On February 28, Unum faxed Blackwell’s health care providers requests for medical records. When these were received, Unum asked D. Scott Farley, RN to conduct an in-house clinical review. On April 8, Farley found that the restrictions and limitations seem to be excessive when compared to the findings of lab tests and examinations.

Farley then sent the file on to Dr. Laird D. Caruthers, Vice-President and Medical Director of Unum, for a full medical review. Dr. Caruthers noted that Dr. Martin’s office notes weren’t readable, and while Dr. McKay had postulated that Blackwell might have RA during Blackwell’s first visit; subsequent visits had not found evidence of an inflammatory process. He saw no evidence in the medical documentation to support Blackwell’s work capacity impairment except self-reported joint pain. He recommended an independent medical examination (IME) and a functional capacity evaluation (FCE).

Unum sent this medical file review to Dr. Martin on April 15, 2002, asking him to respond. They also asked him to send a prescription for an FCE.

Dr. Martin responded on April 23, 2002. He did not disagree with the medical file review. He updated the current restrictions and limitations to “no lifting” and “no repetitive hand movements.” He stated that his prognosis for Blackwell returning to work full-time was guarded and recommended part-time, sedentary-type work. He also revealed that he had filled out the Attending Physician’s statement with the assistance of Blackwell and had signed the form. He also agreed to set up the FCE.

Unum arranged for NovaCare/VerNova to conduct the FCE. The disability insurance plan sent a copy of Blackwell’s job description along with a description of the limitations Dr. Martin had recommended. Blackwell took the FCE on June 5, 2002. The test demonstrated that Blackwell could lift at a medium level low lifts and mid lifts. He could do light lifting at a light level. He could also walk, kneel, reach to the immediate right or left, finger, push or pull a cart weighing 40 lbs., and carry 20 lbs. frequently. He could stoop, crouch, handle, climb stairs, sit and stand on an occasional basis.

The person performing the test noted that Blackwell’s performance had failed to demonstrate his ability to continue with any activity for an extended time. He observed that the longer Blackwell walked, the more unbalanced his gait became. He saw clear evidence of fatigue. He noted that Blackwell could not sit in one position for more than 2 – 3 minutes. The FCE recommended that Blackwell be permitted occasional changes in position and regular breaks.

Unum responded to this report by asking Blackwell to go to Dr. Timothy Pettingell for an independent medical examination. He did so on July 2, 2002. Dr. Pettingell observed that Blackwell appeared to have no difficulties with filling in the intake questionnaire and other paperwork. He also noted no problems with Blackwell’s ability to unbutton his shirt or handle his belt buckle when asked to change into the examination robe. Blackwell also showed no difficulty getting up on and getting down from the examination table.

Dr. Pettingell spent 62 minutes performing the physical exam. He noted that Blackwell reported that he was doing better with his new medication, Azulfidine. He did find that Blackwell was suffering from degenerative arthritis. He also found mild symptoms of rheumatoid arthritis, but no significant joint mobility issues. After considering both Blackwell’s concept of his job duties and his employer’s description, Dr. Pettingell found no evidence that Blackwell could not perform the work duties associated with his position as a vice president of quality management.

Dr. Pettingell went on to suggest that the medical record failed to adequately support even the provision of temporary total disability. He recommended that Blackwell continue seeing Dr. McKay because a rheumatologist was more qualified to evaluate Blackwell’s limitations should the question of disability status arise.

Unum sent both the IME and the FCE to Dr. Caruthers. He completed his final Medical File Review on July 22, 2002, concluding that there was zero evidence to support Blackwell’s alleged impairment. Unum sent Blackwell notice of its denial on July 26, 2002. Blackwell appealed on November 1, 2002.

Unum responded by conducting a Full Clinical Review on December 4, 2002. The clinical consultant confirmed that nothing in the record provided verifiable, demonstrable evidence that Blackwell had lost functional abilities. A second look at the record by Unum’s in-house Occupational Medicine and Forensic Medicine physician Jacob Martin drew the same conclusions as Dr. Pettingell. Unum’s Dr. Martin reached the conclusion that while Blackwell did have signs of OA and RA, none of the findings demonstrated that they currently limited his functional abilities in the work place.

In the light of these conclusions, Unum upheld its decision to deny Blackwell’s claim for long-term disability benefits. Blackwell received notice on December 16, 2002. His administrative appeals were exhausted. If he wished to pursue his rights, he would have to file a lawsuit.

It should be noted that Dr. Daniel Martin’s failure to write legible notes worked against him when Unum’s physician’s reviewed his medical record. It should also be noted that test results failed to demonstrate the level of limitations that the doctor recommended. Would these factors work in Unum’s favor when Blackwell’s disability attorney argued on his behalf? That will be discussed in Part II of this article: Court agrees with Unum’s denial of long term disability benefits to man suffering with rheumatoid arthritis and osteoarthritis.

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