The Court found that
the plan administrator was vested with discretionary authority to administer
the plan because employees were required to submit satisfactory proof of
disability in order to receive benefits. There was also a question about a potential
conflict of interest when the same entity both administers the benefit plan and
pays the claim.
The plaintiff
argued that it is always suspicious when a claimant is later found to no longer
be disabled without any change or improvement in his underlying medical
condition. In this case, “based
on a review of [the plaintiff’s] file, a [defendant] employee concluded that he
was no longer eligible for disability benefits because he was able to perform
his former job, a sedentary, indoor occupation.” When his benefits were terminated the next
day, the plaintiff protested on the grounds that his conditioned had only
worsened since his application and he would appeal. The defendant hired two other physicians to
review his claim.
While it is not per
se improper to rely on the opinion of a non-examining medical consultant,
whether a doctor has physically examined the claimant is a factor that may be
considered in determining whether a plan administrator acted arbitrarily in
giving greater weight to the opinion of its consulting physician. Kalish, 419 F.3d at 508. The plan administrator’s
failure to require a physical examination “may, in some cases, raise questions
about the thoroughness and accuracy of the benefits determination.” Calvert
v. Firstar Fin. Inc., 409
F.3d 286, 295 (6th Cir. 2005). Indeed, the lack of a physical examination may
be particularly inadequate where, as here, the file reviewer makes critical
credibility determinations.
This Circuit has
repeatedly criticized the rejection of the opinion of a treating physician that
is consistent with the medical record, in favor of non-examining file
reviewers.
While it is not an
abuse of discretion to give more weight to a consulting physician opinion than
that of a treating physician, in this case, the defendant’s physicians failed
to consult the treating physician about this issue at all.
Although the district
court did not wholly disregard the opinion of [the plaintiff’s] treating physician,
a court should not uphold a termination when there is an absence of reasoning
in the record to support it. McDonald, 347 F.3d at 172. The number of days [the
plaintiff] required to recover from a[n invasive] Moh’s procedure if working
from home is in large part a credibility determination. See
Calvert, 409 F.3d at 297. [Defendant’s]
exclusive reliance on the opinion of a physician who never physically examined
[the plaintiff], or even spoke to him about his recovery process, calls into
question the quantity and quality of the medical evidence and opinion.
Secondly, the Court
also found that the defendant’s expert underestimated the plaintiff’s
absenteeism by not including his absences for the less-invasive carcinoma removal
procedures and considering the period of time before his medical condition
worsened following the application for LTD benefits.
The vocational
expert’s opinion here, based upon calculating the average frequency of [the
plaintiff’s] surgeries over a timeline beginning prior to the time he claimed
to be disabled, results in an artificially low assumption as to the frequency
of his surgeries and work absences, and does not constitute substantial
evidence to support [Defendant’s] denial of benefits. Moreover, regardless of
which time period the Court considers, any one of the periods shows a number of
absences greater than what government statistics suggest could be accommodated.
Finally, the
defendant’s vocational expert also concluded – without citation to any
authority whatsoever – that the plaintiff’s anticipated level of absenteeism –
which the Court already found was artificially low – could be accommodated by “the
common practice of employers.” “Conclusory
medical and vocational opinions that fail to provide evidence or reasoning to
support the conclusions are insufficient to support a denial of benefits.” There was no evidence in the file that the
plaintiff’s employer would accommodate the anticipated level of absenteeism, or
that it would he qualify for paid sick leave for all of the anticipated
days. The Court then referred to evidence
that he was anticipated to miss more than 20 days (and perhaps almost 30) per
year, but that government studies showed that few employers paid more than 10
days per year in sick pay. (There was no
discussion about accrued paid leave benefits, presumably because they had long
since been exhausted).
Finding the termination of LTD benefits to be arbitrary and
capricious under the circumstances, the Court determined that the proper remedy
was to reinstate the plaintiff’s LTD benefits retroactively to the date of
their termination instead of remanding the matter for reconsideration by the
plan administrator. While the plan
administrator may conduct another review and ultimately decide to properly terminate
benefits, it cannot benefit from its prior arbitrary and capricious decision. “A
retroactive award of long-term disability benefits wrongfully withheld and
reinstatement of Neaton’s long-term disability payments is the appropriate
remedy in this case.”
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to different
results. Information here can change or be amended without notice. Readers
should not act upon this information without legal advice. If you have any
questions about anything you have read, you should consult with or retain an
employment attorney.
