In-Person Exams Versus Paper Reviews by Non-Treating Physicians
Long-term disability insurers under ERISA have the option of referring their insureds to a physician for an in-person exam or performing a “paper” review of the medical records to determine whether that person is “disabled.” Typically, insurers do a paper review.
While paper reviews are not inherently objectionable, Siegel v. Conn. Gen. Life Ins. Co., 702 F.3d 1044 (8thCir. 2012), the decision to conduct a paper review “raise[s] questions about the thoroughness and accuracy about the benefits determination.” Bennett v. Kemper National Services, Inc., 514 F.3d 547, 554 (6thCir. 2008).
This is especially true when a disability claim is based on self-reported subjective complaints (such as fatigue or pain), which could have been better assessed by an in-person evaluation. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 634 (9thCir. 2009).
File reviews are particularly “questionable as a basis” to deny claims based on “subjective symptoms,” which are most accurately ascertained through “interviewing the patient and spending time with a patient,” that a purely record review will not provide.Smith v. Bayer Corp. Long Term Disability Plan,275 Fed. Appx. 495, 508 (6thCir. 2008).
If an insurer elects to perform an ill-advised paper review and thereby avoid an independent medical examination, that insurer must suffer the consequences. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 674-675 (9thCir. 2011).
However, whether it's an in-person evaluation or a paper review, an insurer must select amedical professional with appropriate training and experience in the relevant filed of medicine. While ERISA does not demand an examination by the narrowest of specialists,failure to consult with a healthcare professional with appropriate training and experience constitutes an improper basis for denying benefits. 29 C.F.R. §2560.503-l(h)(iii); Hamma v. Intel Corp., 642 F. Supp. 2d 1144, 1151 (9thCir. 2010).
Reliance on opinions of non-examining physicians, who do not sufficiently support their disagreement with treating physicians or do not adequately investigate the reasons for the treating physicians' conclusions, is an abuse of discretion. Zavora v. Paul Revere Life Ins. Co., 145 F.3d 1118, 1122-23 (9thCir. 1998). In Ladd v. ITT Corp., 148 F.3d 753 (7thCir. 1998), the court held that an administrator abused his discretion in relying on a “perfunctory” non-treating doctor's report.
It is well settled that “plan administrators ... may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed. 2d 1034 (2003)
Under ERISA, a treating physician's rule “is not that a treating physician's opinion trumps all other evidence, but that a court must give it appropriate weight.” Conley v. Pitney Bowes, 176 F.3d 1044, 1049 (8thCir. 1999), cert. denied, 120 S. Ct. 979 (2000).
In Lavino v. Metropolitan Life Ins. Co.,779 F. Suppl 2d 1095, 1112-1113 (C.D. Cal. 2011), the court held that where the “treating physician's disability opinion is unequivocal and based on a long-term physician-patient relationship, reliance on a non-examining physician's opinion premised on a record review alone is suspect and suggests that the insurer is looking for a reason to deny benefits.”
The Supreme Court in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 L.Ed. 2d 1034 (2003), pointedly remarked that “physicians repeatedly retained by benefit plans may have an ‘incentive to make findings of ‘not disabled' in order to save their employers money and preserve their own consulting arrangements.'” (quoting Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1143 (9thCir. 2001).