Mirick O'Connell Life, Health, Disability & ERISA Litigation e-Report

Life, Health, Disability & ERISA Litigation

May 2023| Download PDF

THE UTILIZATION OF IN-HOUSE AND CONSULTING MEDICAL EXPERTS

Today, we cover two recent decisions that demonstrate the importance of the detailed work product of in-house and consulting medical experts. The cases also discuss the professional licensure requirements of those resources and how they are deployed within ERISA’s regulatory scheme. In both cases, the courts credited the medical analysis of non-treating physicians over the insured’s treating physicians. In Abi-Aad, the court adopted the analysis of the non-treating physicians despite deciding the case using the de novo standard of review. In MacNaughton, the court used a somewhat less than deferential standard to find that the medical review on appeal successfully challenged the shifting views of the insured’s treating physician.

Both cases also made important findings on strategies that were employed by the plaintiffs to argue that the in-house consulting experts should be completely disregarded. Mr. Abi Aad was unsuccessful arguing that only doctors licensed in the state where he resided could provide opinions on his claim. The court found that the ERISA claim regulators require only that the insurance company consult a physician with the appropriate training and experience in the medical field involved in the medical judgment. Finally, in MacNaughton, the claim was remanded to the insurer so that the claimant could comment on a medical review completed on appeal. After the claimant had her own doctor comment on the appellate medical review, the insurer’s same in-house medical expert responded. That prompted the claimant to argue that the ERISA claim regulators required a different doctor to respond to the claimant’s critique. The court disagreed and held the remand was part of the original appeal and a new medical expert was not required.

COURT UPHOLDS DETERMINATION THAT CLAIMANT WAS DISABLED FROM A MEDICAL, NOT PHYSICAL, CONDITION

The U.S. District Court of Massachusetts in Daniel Abi-Aad v. Unum Group, 2023 WL 2838357 (D. Mass. 2023), upheld Unum Life Insurance Company of America’s (“Unum Life”) determination that Abi-Aad was disabled from a psychiatric, not a physical, condition.

Shortly before he was to be terminated for his employer performance issues, Abi-Aad began treatment for severe anxiety and depression and filed a claim for disability benefits. Unum Life approved the claim. It also alerted Abi-Aad to the ERISA plan provision that benefits for a psychiatric disability were limited to 24 months.

As the end date approached for benefits, Abi-Aad began complaining of orthopedic issues, primarily joint pain. Initially, his primary care physician suspected an arthritic condition. However, Abi-Aad was seen by two rheumatologists and underwent a batter of x-rays and lab tests which did not support arthritis. Abi-Aad’s primary care physician then changed the diagnosis to chronic pain.

Unum Life had Abi-Aad’s medical information reviewed by several physicians, including a rheumatologist. All found that he was not disabled from his occupation in information technology. On appeal, Abi-Aad submitted a functional capacity evaluation (“FCE”). That did not change the decision and Unum Life upheld its determination.

The ERISA plan did not provide discretionary review. Therefore, the court reviewed Unum Life’s decision using the de novo standard. Noting that Abi-Aad had the burden of proof, the court found that he had failed to show that there was objective evidence that his chronic pain rendered him unable to perform the duties of a gainful occupation. With regard to the FCE, the court found that Unum Life’s three medical reviewers relied on objective clinical evidence to discredit the FCE’s conclusion that Abi-Aad was unable to perform the demands of a sedentary occupation. The court also found that Abi-Aad’s treating physicians did not provide sufficient explanations to prove that Abi-Aad was not able to perform a gainful occupation.

Finally, the court addressed Abi-Aad’s argument that Unum Life’s physicians lacked the appropriate licensing and training to review his claim. Abi-Aad had argued that only Massachusetts licensed physicians were qualified to opine on his condition. The court disagreed, noting that under the ERISA claim regulations the plan need only consult with a health care professional who had appropriate training and experience in the field of medicine involved in the medical judgment. The court also cited the Department of Labor’s advisory opinion that an ERISA plan could consult a health care professional who was licensed, accredited or certified in the state where the professional services were rendered, or in the state where the claimant resided. Because the reviewing physicians held a license to practice medicine in the United States and were sufficiently qualified to render an opinion, the court rejected Abi-Aad’s argument.

The court entered summary judgment in favor of Unum Life.

Joseph M. Hamilton and Nancy E. Gunnard represented Unum Life Insurance Company of America.

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TERMINATION OF DISABILITY BENEFITS UPHELD UNDER ARBITRARY AND CAPRICIOUS STANDARD OF REVIEW

The U.S. District Court of Massachusetts in Mary MacNaughton, M.D. v. The Paul Revere Life Insurance Company, 2023 WL 2601624 (D. Mass. 2023), held that Paul Revere was not arbitrary and capricious in its determination that Dr. MacNaughton was no longer eligible for disability benefits due to an eye condition.

Dr. MacNaughton was a diagnostic radiologist in Kansas. She was part owner and an employee of her radiology practice. Her duties included reading x-rays, CT scans and MRIs. Dr. MacNaughton was covered as an employee under the practice’s group LTD plan that was funded by a policy issued by Paul Revere and governed by ERISA.

Dr. MacNaughton’s claim began in September 2007 after she was confined to bed rest because of pre-term labor. Dr. MacNaughton gave birth to twins in November 2007 and shortly thereafter she reported to Paul Revere that she was suffering from a series of post birth complications including blurred vision in her left eye. The left eye blurriness would persist and ultimately become the foundation of her claim.

Thereafter, the origins of Dr. MacNaughton’s blurred vision became the subject of inquiry by almost a dozen different ophthalmologists who either treated her or reviewed her claim.

Dr. MacNaughton’s initial treating physician diagnosed her primary cause of impairment to be from convergence insufficiency, a condition which prevents the eyes from focusing together at near distances, an ability that was crucial for

Dr. MacNaughton to perform her occupation. Early on, there were challenges to her claim by Paul Revere and Northwestern Mutual, which issued an individual disability policy to Dr. MacNaughton. However, an IME directed by Northwestern Mutual supported Dr. MacNaughton’s claim based largely on the excessive malpractice risk the IME physician opined would be imposed on her practice group. An internal medical review by Paul Revere that found no disabling impairment was countered by Dr. MacNaughton’s treating physician’s finding that her convergence insufficiency was worsening. Paul Revere continued to pay benefits.

In late 2017, during a routine check in call with

Dr. MacNaughton, she reported she did not have any restrictions and limitations. A review resulted in a decision to do an IME. Before the IME was scheduled, Paul Revere reached out to

Dr. MacNaughton’s attending physician and learned that he had retired. The physician who assumed his practice told Paul Revere he was not comfortable certifying to Dr. MacNaughton’s disability, and he agreed an IME was an appropriate next step. The IME found no impairment and the claim was closed.

Dr. MacNaughton appealed and engaged the services of a new treating physician. His opinion was that Dr. MacNaughton had been misdiagnosed with convergence insufficiency. His diagnosis was that she had optic nerve damage. On appeal, Paul Revere used the services of a consulting ophthalmologist who disagreed with the new physician and the claim was closed. The fact that an appellate medical review would be undertaken was disclosed to Dr. MacNaughton and her counsel. However, no request was made to view the report.

Dr. MacNaughton sued Paul Revere in federal court in Massachusetts. Efforts to transfer venue back to Kansas were unsuccessful. 405 F.Supp.3d 203 (D. Mass. 2019). Dr. MacNaughton attempted to strike documents from the Administrative Record that supported Paul Revere’s position that the claim was subject to discretionary review and she requested depositions of Paul Revere personnel. Both requests were denied. 2021 WL 5180238 (D. Mass. 2021). The parties filed cross motions for summary judgment and the court made two findings.

First, the court agreed with Paul Revere that the claim was subject to discretionary review. Second, the court agreed with Dr. MacNaughton that Paul Revere failed to provide a full and fair review because it had not sent her a copy of the medical review conducted on appeal so she could respond to it. The court remanded the case back to Paul Revere to allow a response. 589 F.Supp.3d 129 (D. Mass. 2022). The court then awarded

Dr. MacNaughton attorney’s fees for having achieved the remand. 2022 WL 17253701(D. Mass. 2022).

On remand, Dr. MacNaughton’s physician gave a new opinion. The earlier findings of visual acuity abnormalities were gone. Dr. MacNaughton was tested with 20/20 vision in her left eye. The afferent pupillary defect was no longer present. The physician previously submitted a sworn statement testifying that such abnormalities would still be present in 50 years. However, the defect was now reported as no longer present. The post remand response to Paul Revere reflected a shifting medical analysis based on the “Qualitative” aspects of vision. This new qualitative deficiency was supported by two new tests. One for stereo vision and the other for contrast sensitivity. Paul Revere’s consulting ophthalmologist reviewed the new submissions and rejected the new information point by point. The denial was upheld.

The court granted summary judgment to Paul Revere using a somewhat less than deferential standard of review based on what the court described as “procedural unreasonableness.”

Dr. MacNaughton argued that Paul Revere should have used yet a different consulting physician during the remand. The court rejected that argument stating that the remand did not create a new appeal warranting a new physician under ERISA’s claim regulations. As to the substance of the decision on remand, the court stated that Paul Revere, using the muted discretionary standard of review, was free to credit its consulting physician over the ever-changing diagnoses provided by

Dr. MacNaughton’s physicians.

J. Christopher Collins represented The Paul Revere Life Insurance Company.

LIFE, HEALTH, DISABILITY AND ERISA LITIGATION TEAM

Joe Hamilton, co-chair

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Chris Collins, co-chair

Judy Southland, paralegal

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Mirick O'Connell's Life, Health, Disability & ERISA Litigation Group represents clients throughout New England. With offices in Boston, Westborough and Worcester, our attorneys are within an hour of all the major courts in Massachusetts, Hartford, Connecticut, Rhode Island, and southern New Hampshire. In addition, our attorneys are admitted to practice not only in Massachusetts, but in Connecticut, New Hampshire and Rhode Island as well. We have repeatedly and successfully represented clients in each of these jurisdictions. So remember, we are not here for you just in Massachusetts - think New England!

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