Lack of Examination In Denying a Disability Claim

If your short term or long term disability benefits have been denied or terminated chances are high that the insurance company has utilized a record reviewing physician to review your medical records and conclude that you are not disabled, without having ever examined you in person. The utilization of record reviewing physicians has become the favorite tactic to deny claims by many of the disability insurance companies such as Cigna, Prudential, Hartford, Sedgwick, Liberty Mutual, Unum and Lincoln Financial. For many of our clients, there are significant medical records and reports from their treating physicians supporting their disability claim yet the insurance company denies the claim because a doctor, who never spoke to or examined the client, says that the client is not disabled and can return to work.

Over the past few several years, the courts have become less tolerant of claims administrators utilizing a bunch of record reviews to deny legitimate claims. Two recent cases from the Southern District of Indiana followed this trend and rejected the opinions of several record reviewing physicians while reversing the denial of benefits. In Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856 (S.D. Ind. 2010), Judge Hamilton held that three paper reviews were insufficient to overcome the medical records and reports from the plaintiff’s treating physician. Specifically, Judge Hamilton found:

At the very least, a mere record review is not sufficient to provide a reasonable basis for discounting Dr. Walker’s and Gessling’s accounts of his pain and resulting limitations. The court does not mean to suggest that it is reviving any requirement of special deference to a treating physician. Far from it. See Nord, 538 U.S. at 825, 123 S.Ct. 1965 (holding that ERISA does not require plans to provide such deference). But to disagree with an apparently sound opinion of a treating physician, a plan administrator needs something much more solid than the consulting physicians provided in this case. See id. at 834, 123 S.Ct. 1965 (reminding courts that plan administrators may not arbitrarily refuse to credit a claimant’s reliable evidence, including opinions of a treating physicians). The medical records did not show that Dr. Walker and Gessling must have been correct–the problems of subjective pain and resulting limitations are difficult to evaluate based on records alone. But after reviewing the records, the reviewing physicians failed to come to grips with the real problem, the whole person, and the history that corroborated his complaints of pain. For these reasons, the records reviews in this case did not provide a reasonable basis for denying the disability insurance benefits for which Gessling and his employer paid substantial premiums to Hartford Life.

Similarly in Anderson v. Hartford Life and Acc. Ins. Co. et al., 2010 WL 3703037, *7 (S.D. Ind. Sept. 10, 2010), Judge Lawrence rejected the opinions of three record reviewers to reverse Hartford’s denial of disability benefits and held:

Furthermore, Hartford’s reviewing physicians never examined Anderson. All three physicians relied on treatment records supplied by Hartford. The Court is not suggesting that it is recognizing a treating physician rule in the ERISA context. However, for Hartford to disagree with the apparently sound opinions of Anderson’s treating physicians, it needed to rely on something more solid than the opinions of the consulting physicians. See Nord, 538 U.S. at 834 (2003) (cautioning plan administrators that they may not arbitrarily discount a treating physician’s opinion). In short, the reviewing physicians “failed to come to grips with the real problem, the whole person, and the history that corroborate [her] complaints of pain.” Gessling v. Group Long Term Disability Plan for Emps. of Sprint/United Mgmt. Co., 693 F.Supp.2d 856, 866 (S.D.Ind.2010) (Hamilton, J.). Accordingly, the reviewing physicians’ opinions and their record review did not provide a reasonable basis for denying Anderson’s application for disability benefits.

Likewise, an Indiana jury has rejected an insurer’s attempt to terminate a legitimate disability claim based on a bunch of record reviews. In Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 698-701 (Ind. Ct. App. 2007), the plaintiff filed an action against her long term disability insurer, in Marion County under state law, alleging that the insurer wrongfully terminated her disability benefits. In terminating the claim, Lumbermens relied upon the opinions of six record reviewing physicians to reach the conclusion that the plaintiff was no longer disabled. The jury rejected the opinions of all six of Lumbermens’ record reviewing physicians to conclude that Lumbermens wrongfully terminated the plaintiff’s disability benefits and breached the insurance contract as well as Indiana’s covenant of good faith and fair dealing. As damages, the jury awarded the plaintiff $22,583 on the breach of contract claim and $1,500,000 for the defendant’s breach of the covenant of good faith and fair dealing.

Indiana courts, and an Indiana jury, have found that record reviews are not sufficient to overcome the medical records and reports from treating physicians who have the opportunity to observe, examine and treat the claimant. If your disability benefits have been denied or terminated without a medical examination, contact the O’Ryan Law Firm for further assistance and advice.