A nice surprise was waiting for me upon return from vacation this morning. Our client, "Paul", received a decision from the Seventh Circuit Court of Appeals in his favor. Paul enjoys disability insurance as a fringe benefit of his job. He stopped working in June 2002 because of a hernia and back pain. The hernia was repaired surgically, but Paul did not return to work. After a psychiatrist diagnosed Paul with dysthymia and major depression, Prudential started sending him long-term disability payments. But "long-term" means two years, the Plan's limit when inability to work is caused even in part by a mental illness (which the policy defines to include depression). At the end of January 2005 Prudential ended the disability benefits, citing the two-year cap. After exhausting his administrative remedies, we filed suit on Paul's behalf under the Employee Retirement Income Security Act (ERISA).
After filing suit, we had proposed to take discovery in order to generate evidence about Paul's medical and mental conditions, and the extent (if any) to which his mental condition affects his ability to work. Prudential opposed all discovery, contending that the suit should be resolved on the administrative record. The district court concluded that no discovery at all is appropriate and barred all discovery on medical questions. We then asked some of Paul's physicians to provide affidavits describing his spine condition and prognosis, and we tendered these to the judge-who struck them from the record, writing:
The submission of materials outside of the administrative record contradicts the scope and intent of the Court's protective order. While that order was directed towards future discovery, [Paul] cannot circumvent the force of the protective order by surreptitiously filing information outside of the administrative record in support of his motion papers.
Having barred us from offering any evidence, the judge then granted summary judgment to Prudential, relying on the two-year cap and the fact that the administrative record contains two medical evaluations implying that Paul is able to work. The judge did not mention the contrary evidence in the administrative record.
The Court of Appeals criticized the district court, holding that, "we cannot imagine any justification for refusing to admit evidence that one party has procured at its own expense, such as the medical affidavits that [Paul] tendered. Tellingly, the district judge did not cite authority for throwing out the affidavits, and Prudential's brief does not supply any."
This case makes clear the importance of submitting evidence of disability in the form of affidavits and to request the court to allow discovery for purposes of challenging the opinions of the insurance carrier's reviewing doctors. If the district court will not listen to reason, the Court of Appeals may come to the rescue, as it did in this case.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@Employee-Advocates.com
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