Articles

The casenote of the month is from the Disability E-News Alert! a monthly newsletter describing new disability insurance developments.  For subscription information, e-mail Mark DeBofsky or visit www.disabilityenewsalert.com .

Byrom v. Delta Family Care Disability and Survivorship Plan, 2004 U.S.Dist.LEXIS 23325 (N.D.Ga. 9/29/2004)(Issues: Functional Capacity Evaluations, Surveillance, Scope of Review). The plaintiff, who had been employed by Delta as a cargo coordinator, a position requiring both office work and heavy lifting, became disabled in 1999 due to rheumatoid arthritis.  Byrom was initially approved to receive short term disability; and an independent medical examination conducted at Delta’s request confirmed that the plaintiff suffered from erosive arthritis complicated by pulmonary disease, thus disabling him indefinitely.  Byrom was also awarded Social Security disability.  Despite this evidence, Delta’s administrator, Aetna, requested that Byrom undergo a two day functional capacity evaluation performed by HealthSouth.  The examination, which showed numerous restrictions and limitations, was nonetheless interpreted by Aetna to be consistent with the ability to perform sedentary work that would allow for frequent position changes between sitting and standing.  As a result of the FCE, Byrom was informed that his claim for benefits was denied.  Byrom appealed, and he submitted a report from his long-time treating rheumatologist who reported that despite aggressive treatment, the rheumatoid arthritis was uncontrolled and was extremely limiting due to the condition’s effect on his musculoskeletal condition and lungs.  Upon further review, Aetna agreed with plaintiff’s contention that an epidural steroid injection may have caused Byrom to perform better than his normal capability on the FCE, and benefits were reinstated.  Subsequently, though, three days of surveillance was requested, which, on one of the days, showed plaintiff performing some farming activities.  No activities at all were observed on the other two days.  As a result of the surveillance, a new IME and FCE were requested, along with additional surveillance.  The only activity shown on the new surveillance was plaintiff being driven by his wife to a medical appointment.  

The IME consisted of an orthopedic evaluation which found extensive limitations due to rheumatoid arthritis, which included no climbing, crawling, kneeling, lifting, pushing, pulling repetitive hand grasping, twisting or turning of the spine, and lifting a maximum of 3-5 pounds.  The examiner concluded that Byrom was indefinitely precluded from returning to his original employment, and that his only foreseeable employment would be part-time sedentary work within the stated restrictions.  The doctor also completed a functional capacity evaluation worksheet finding the plaintiff’s restrictions were permanent and that he was unable to return to work indefinitely.  Despite those findings, Aetna’s medical director interpreted the report as releasing the plaintiff to work, particularly when the surveillance was taken into consideration.  A follow-up inquiry was then sent to the examiner, who responded without any additional examination or explanation that the plaintiff could work at a sedentary job.  Byrom appealed and explained that he rode his tractor for 5-10 minutes some days and occasionally fed his horse two pounds of sweet feed, but that he could not work.  Byrom’s doctors unequivocally supported Byrom’s claim that he was unable to work, and in addition to the internist and rheumatologist who had previously supported the claim, a treating pain management specialist also concurred in reporting total disability.  Two neighbors also wrote supporting letters reporting that they do most of his farm chores.  Nonetheless, Aetna upheld the denial.  Delta’s appeals committee affirmed the benefit termination decision based on he rationale that as a condition of receipt of disability payments, the claimant had to prove the inability to perform any job, including part-time work. 

Although the court noted that if it had conducted a de novo review, it would “readily find plaintiff disabled,” (*42), the court was required to apply a deferential standard of review based on plan language.  Nonetheless, the court’s analysis showed the benefit denial was arbitrary and capricious.  Despite the holding of Black & Decker v. Nord, 538 U.S. 822 (2003), which precludes courts from giving deference to the treating physicians’ opinions, the court pointed out that the decision “is not license for plan administrators to ignore the opinions of a claimant’s doctors” especially given the Supreme Court’s recognition that “treating physicians may have a greater opportunity to know and observe the patient as an individual.” *47 (emphasis in original).  The court therefore searched the record to see if there was rational support for Delta’s conclusions.  Obviously, the opinions of the treating physicians could not support Delta’s finding; nor could the opinion of the first IME examiner or the Social Security finding in favor of the claimant be supportive of defendant, so Columbo-like, the judge kept doggedly looking to see if there was any rational support for Delta’s conclusion. 

Turning her attention to the second medical examiner, the judge found the initial report made the day of the examination also could not sustain Aetna’s/Delta’s conclusions.  The court noted, 

Though Aetna would later seek clarification on the discrepancy between Dr. D'Auria's statement that plaintiff could possibly perform sedentary work for 4-6 hours per day and his conclusion that plaintiff was unable to return to work at any gainful employment, Dr. D'Auria's initial IME and FCE, with their inconsistencies and confirmation of plaintiff's impairments, do not support the Committee's denial of plaintiff's disability benefits. Because the Court concludes that the statements of plaintiff's treating physicians, Dr. Gottlieb's IME, the Social Security disability award, and Dr. D'Auria's initial IME and FCE do not provide a rational, good faith basis for the Committee's decision, the Court must delve further into the administrative record in an effort to find reasonableness. *52-*53.

Nor, according to the court, could the surveillance support the benefit termination either.  Five out of the six days, the only activity shown was attending the IME, and Byrom’s wife drove him to the examination.  Because Delta considered the letters from plaintiff’s neighbors, the court also examined whether those letters offered any support and found that those letters “obviously do not” provide any basis for the benefit termination.  That left only surveillance showing three minutes of the plaintiff driving on a tractor and a couple of minutes of spreading hay.  Although Delta made a big deal about the plaintiff’s activities, the court determined the record “does not support a conclusion that plaintiff could engage in a farming occupation on a part-time or full-time basis.”  *59.  The court elaborated:

Without additional evidence of substantial or even semi-substantial farming activity, the Court is unable to discern how surveillance showing plaintiff on a tractor for three minutes combined with plaintiff's general statement to the same effect form a reasonable basis for deeming plaintiff capable of engaging in an occupation for compensation or profit. At the time plaintiff's appeal was denied, even the Committee recognized that the degree to which plaintiff was engaged in these activities was unclear. (Id. at 258.) Given that uncertainty, if the Committee had wanted to use plaintiff's sporadic farm activity as a basis for its denial of plaintiff's benefits, the Committee should have ordered additional surveillance that might have confirmed or dispelled these suspicions. In the absence of any other evidence to establish that plaintiff was actually engaging in farming as an occupation, or capable of doing so, the Committee's extrapolation of a short tractor ride on one day into a conclusion that plaintiff engaged in farming activities for profit appears, to this Court, to be quite a stretch.  

That left only the HealthSouth FCE and the second examiner’s revised report as the only possible rational support for Delta’s conclusion; and the court found that evidence insufficient as well.  Although the FCE, standing alone, might provide some support for the benefit denial, the court ruled that it had to be weighed against the other evidence; and the court ultimately ruled that the ability “to perform these activities for a short duration during a physical therapist's test, however, does not convince the Court that he could do so on a sustained basis for an eight hour day. Indeed, as noted supra, the majority of medical evidence indicated that plaintiff could not engage in prolonged activity.” *62.  The court also noted that the plaintiff’s performance may have been enhanced by a recent epidural steroid injection, but that further injections could not be performed because of an ulcer perforation.  Thus, the court concluded,

Though the Court defers questions of judgment to the Plan, the Court deems unreasonable a decision that would credit a single FCE report prepared by a non-doctor over an IME issued by an Aetna-selected specialist, the opinions of plaintiff's treating physicians, the partial findings of an IME and FCE issued by a second specialist selected by Aetna, and the statements of plaintiff's neighbors. To hold otherwise would be to say that under the arbitrary and capricious standard of review, a plan administrator may point to any piece of evidence, no matter how weak in the context of the total administrative record, to support a denial of benefits. Though plan administrators are entitled to a great deal of deference under an arbitrary and capricious standard, the Court is not required to become a rubber stamp; were that the case, there would be no point in having a court review the decisions of plan administrators. *64

Finally, the court determined that the second report of the IME physician was inadequate to sustain the benefit termination.  The court’s suspicion was evidenced by the following comment:

In ordering the change to his previous report, Dr. D'Auria did not offer any explanation of how, without any further examination of plaintiff, he had reconciled his earlier statements that plaintiff could "possibly" engage in a sedentary four to six hour work day with his earlier conclusion that plaintiff was unable to return to his job or any gainful occupation. As noted, the doctor also did not explain how he had reached his newest conclusion that plaintiff was capable of working four to eight hours. *68.

Looking at the doctor’s findings, as opposed to his conclusions, the court held there was no basis for legitimately concluding that the plaintiff could work.  The court also made the following observation of its difficulty with the defendant’s conclusions:

Effectively, this means that the Committee chose to credit a physical therapist's FCE and an Aetna-selected doctor's conclusory and inconsistent statements over the opinions of plaintiff's treating physicians, an independent rheumatologist's IME, the Social Security disability award, Dr. D'Auria's initial IME and FCE, the majority of the surveillance conducted on plaintiff, and the statements of plaintiff's neighbors. Choosing to rely on this evidence and to totally discount the other evidence, including the medical opinions of four doctors, one of whom had been selected by Aetna, seems unreasonable to this Court.  *71.

The court also pointed out that the decision has to be made in good faith, which requires an “assumption is that the administrator is acting as an impartial referee who begins his inquiry, like any judge, with an intention to arrive at a fair and correct determination.”  *71.  The judge found Delta’s conclusion inconsistent with impartiality and therefore granted the plaintiff’s motion for judgment.

Discussion:      Like Diogenes with his lantern, Judge Julie Carnes labored mightily to try to find a rational basis for Delta’s benefit denial.  However, despite casting the lantern’s light on every piece of evidence, the court could find no support whatsoever for defendant’s actions.  This case is an excellent example of the court applying an arbitrary and capricious standard of review in a meaningful manner rather than a rubber stamp.  This benefit determination suffered from a clear abuse of discretion that the court properly remedied.

This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .