In a Seventh Circuit Court of Appeals case decided last week, Metropolitan Life Insurance Company ("Met Life") terminated the disability payments that "Lisa" had been receiving since 1990. Lisa filed an action under the Employee Retirement Income Security Act of 1974 ("ERISA") for payment of benefits due under the long-term disability benefits plan ("the Plan") provided by her employer, the Tribune Company.
Lisa suffers from osteoarthritis in both knees. Over the years, several physicians have treated Lisa's condition with a regimen of exercise and with arthroscopic surgery. Between 1986 and 1990, Lisa underwent three arthroscopic procedures. After the surgeries, she enjoyed increased mobility and was able to engage in a rehabilitative exercise program.
In June 1990, however, as a result of chronic pain in both knees, Lisa ceased working as a program planning manager for WGN-TV, part of the Tribune Company. Lisa began receiving disability benefits under the Plan in December 1990.
In 2005, Lisa's treating physician, Dr. Hill, informed Met Life that Lisa's condition prevented her from sitting more than one hour during an eight-hour period and from sitting for more than thirty minutes in any given hour. Dr. Hill also stated that he had not advised Lisa to return to work because she was "wheel chair bound [,] essentially unable to walk." These materials, as well as Lisa's medical history, were provided by Met Life to Dr. Kevin Smith for review. In his report, Dr. Smith stated that, "the medical records do not indicate objective clinical evidence on examination and testing, surgical report, diagnoses or pathology of a severity that would preclude her from gainful employment within a wide array of jobs within a sedentary work capacity level."
Grace Choi, a vocational rehabilitation consultant, conducted an employability assessment based on Dr. Smith's evaluation. The assessment identified several sedentary employment positions for which Lisa possessed the necessary qualifications. Met Life therefore determined that Lisa was capable of performing sedentary work and terminated her benefits.
Lisa appealed the decision internally and supplied Met Life with additional personal information, witness statements and medical documentation. She also submitted a Functional Capacity Evaluation ("FCE"), which indicated that Lisa had exerted full effort during the tests and that her subjective reports of pain and associated disability were both reasonable and reliable.
Met Life retained Dr. Michael J. Chmell, an orthopedic surgeon, to review Lisa's file. In Dr. Chmell's report, he perceived some inconsistency in the information that Dr. Hill had provided stating, "It is very confusing to me that at one point Lisa is noted to be doing well and then next is noted to be wheelchair bound. Also, the fact that it is stated Lisa cannot sit for more than 30 minutes at a time, is not consistent with being wheelchair bound, which would mean that she is sitting passively. "
When Met Life upheld the decision to terminate Lisa's benefits on May 26, 2006, Lisa filed suit. The crux of Lisa's argument was that, in terminating her benefits, Met Life cherry-picked the statements from her medical history that supported the decision to terminate her benefits, while ignoring a wealth of evidence to support her claim that she was totally disabled. The Court found merit to Lisa's position.
The court reasoned that if an otherwise healthy person underwent an arthroscopic procedure, proclaimed afterward that she was pleased with the result, but less than two months later claimed that she was dependent on a wheelchair for mobility, the Plan would be well within its discretion in viewing the claim with skepticism. However, in this case, the seemingly inconsistent statements had to be viewed in light of Lisa's lengthy medical history. Lisa may have been pleased with results that diminished her pain and allowed her some additional mobility; her statement to that effect, however, is not inconsistent with the fact that she also still may rely on a wheelchair as her primary means of getting from one place to another. "Indeed, one of the key shortcomings of the Plan's determination is that it fails to mention the voluminous medical record that both predates Lisa's initial award of disability benefits and that spans the time between that award of benefits and Met Life's review of those benefits in 2005." Her and her doctor's statements with respect to her progress and surgical successes must be evaluated with this history in mind.
Another key concern of the court with the Plan's determination was its treatment of the functional capacity evaluation. The evaluator concluded, as did Dr. Hill, that Lisa was limited in her ability to sit in one position for extended periods of time. Although this determination was based on Lisa's subjective complaints of pain, the evaluator concluded that Lisa's complaints of pain, and accompanying physical limitations, were both reasonable and reliable. Dr. Chmell discounted the recommended limitation in the FCE because it was based on Lisa's subjective complaints of pain as opposed to any identifiable physiological source. The court agreed with Lisa's cited precedent that complaints of pain cannot be dismissed out of hand because they are subjective. Applying prior case law involving a claimant with fibromyalgia, the court found that even if the source of pain cannot be located, it nonetheless can be real. "It was incumbent on the Plan to explain why if the complaints in fact are reliable, the pain [Lisa] is experiencing is not completely debilitating." Without further explanation, there is an "absence of reasoning in the record" to support the Plan's conclusion that Lisa is capable of sitting without limitation and, therefore, performing sedentary work , the court held. "Because the Plan's determination failed to consider Lisa's complete medical history and rejected, without explanation, important aspects of the FCE, we believe that the Plan acted in an arbitrary and capricious manner in terminating Lisa's benefits."
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@Employee-Advocates.com
Permalink
