Our New Jersey disability lawyers can assist you with questions you have regarding your claim, no matter what insurance company is administering your case. Use the contact form located on our website to tell us about your claim and we will respond within 24 hours. Or, you may call us to give us the information over the telephone. Our sensitive, caring staff is eager to provide assistance. Disability lawyer Bonny Rafel handles ERISA(group)long term disability and individual disability insurance cases filed throughout the country. She is nationally recognized by her peers for her outstanding knowledge and experience in this specialty of law. Her high demand as a lecturer demonstrates her talent, see Articles and Engagements Section for some of her appearances and papers published on disability issues.

WHO IS THE ULTIMATE DECISION MAKER ON MEDICAL ISSUES POST-NORD?

The Treating Physician Rule Quagmire

This rule requires the fact-finder to defer to the treating physician’s opinion and to provide substantial reasons if they decide to reject his opinions.  The treating physician rule had its birth in Social Security Disability cases where Administrative Law Judges recognized the distinction between a physician who has not “treated” the patient and the physician, who examines the claimant once briefly or, in the case of a "paper reviewer", never sets eyes on the claimant.  The treating physician rule as applied in a Social Security setting requires that the administrative law judge determining the claimant’s eligibility for benefits give deference to the opinions of the claimant’s treating physician, because “he is employed to cure and has a greater opportunity to know and observe the patient as an individual”. Morgan v. Commr. of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). See C.F.R. §404. 1527(d) , 416.927 (d) (2001).   Claimant's attorneys in disability cases have argued for years that the treating physician rule should apply to cases in the non-Social Security venue.  That argument came to rest with the Supreme Court's decision in Black & Decker Disability Plan v. Nord, 538 U.S. 822; 123 S.Ct. 1965; 155 L.Ed. 2d 1034. In Nord, the Supreme Court vacated the judgment of the U.S. Court of Appeals for the 9th Circuit which had required ERISA plan administrators to follow a "treating physician rule".  The Supreme Court concluded that courts have no warrant to order application of a treating physician rule to employee benefit claims made under ERISA.  In doing so, the Court compared and contrasted social security to ERISA benefit plans. For instance, the Court noted that in determining entitlement to Social Security benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria, which is contrary to the evaluation of ERISA benefit claims which are determined based "on the interpretation of terms in the plan at issue."  However, the Court warned that plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician.
What survives after Nord? 
As a result of Nord, courts cannot ipso facto give the treating physician's opinions more weight merely by virtue of their status as such. But the courts are almost universally recognizing that a physician who has developed a long-term clinical analysis of the claimant over a period of time may have the most insight to the claimant's disabling condition. The courts have refocused their viewfinder, and have concluded that a treating physician knowledge of the status of his patients medical condition, based on hands on treatment and evaluation may validate his conclusions regarding disability.
Generally, ERISA plan administrators may engage medical physicians to assist them in making disability determinations, and plan administrators may credit the opinions of these consulting physicians over the opinion of a treating physician.  That said, plan administrators may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician. Black v. Unum Life, 324 F. Supp. 2d 206 (D. Me. 2004). 
"While the United States Supreme Court has said that, in reviewing the denial of disability benefits under an ERISA plan, treating physicians are not due any routine deference, reason dictates that the assessment of an impartial physician who has actually examined a particular patient is likely to be more reliable than the assessment of an equally impartial physician who has only reviewed the paper file.” Black v. Unum Life, Id at 216.

   
In Black v. Unum Life, Black's two treating cardiologists categorized him as unable to do physical activity, including his work as a land clearing manager. UnumProvident's in- house nurse agreed that the medical records supported the disability, and benefits were paid based on his cardiac impairment.  A year later, a review by in- house medical consultant, Dr. DiDonna prompted Unum to deny benefits although he did not speak with either the treating physicians or Mr. Black to learn of his current condition. Dr. DiDonna failed to compare the initial stress testing to the recent testing which would have shown there was no improvement to his test results.  In finding against Unum, the Court rejected Dr. Donna’s review as unreliable. They concluded it was unreasonable for Unum to rely on this review while ignoring, without explanation, the other medical information contained in the administrative record that overwhelmingly suggested that Blacks’ condition had not improved to the extent that he could perform the material duties of his occupation.   
    Recently, a court had the opportunity to evaluate a self-insured plan and the LTD Plan Committees’ evaluation of the medical evidence.  In Byrom v. Delta Family Care-Disability and Survivorship Plan, 2004 U.S. Dist. LEXIS 23325 (N.D. Ga. Sept. 29, 2004), the Court declared, “while it is true that plan administrators do not have to accord extra respect to the opinions of treating physicians, Black & Decker (a/k/a "Nord") is not a license for the plan administrator to ignore the opinions of a claimant’ s doctors. Instead, the Black & Decker Court recognized as a rule, compared to consultants retained by a plan, a treating physician may have a greater opportunity to know and observe the patient as an individual”. Here, the Committee totally disregarded all the treating physicians’ conclusions that plaintiff was disabled and unable to work in any position.  The arbitrary and capricious standard does not mean that an administrator is entitled to blind deference merely because, after reviewing substantial and independent medical evidence that points to disability, the administrator has finally been able to find one or two pieces of evidence that could be sued to play lip service to a decision to deny disability benefits.  
As a claimant’s representative, you want to convince the decision-makers on your case, be it the claim administrator or the court that the medical opinions of the doctors treating your client merit the most weight.  In order to do so, you should be prepared to demonstrate that the treating physician offers a reasonable assessment and basis for his conclusions. This would be grounded on his personal experience in treating and examining your client. 
If you are the company defending its decision to deny benefits, you would, on the other hand, justify why you credit the in-house paper reviewer's analysis with more weight than the treating doctor. Blacks. at *217.
De Novo vs. Discretionary Review
There is a difference in the amount of deference the court will give to the decision making process of the plan administrator depending on the type of review being conducted.  For example, In Black v. Unum Life, Id. the court was conducting a de novo review. Thus, they reasoned, “faced with the task of conducting a de novo review of Dr. Alappat's (treating cardiologist) and Dr. DiDonna’s in-house medical consultant contradictory assessments, the Court finds that absent some particular suggestion that Dr. Alappat’s assessment is biased or otherwise not credible, Dr. Alappat’s assessment is entitled to more weight. Black at*25.
De novo review impacts the Court’s review of the treating doctor's opinions, for as the 2nd Circuit in Locher recently illustrates, "Upon de novo review, a district court may render a determination on a claim without deferring to an administrator's evaluation of the evidence. Cf. Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 135 (2nd Cir. 2001) (noting that, upon de novo   review, a district court is "free to evaluate [a treating physician's] opinion in the context of any factors it considered relevant, such as the length and nature of their relationship, the level of the doctor's expertise, and the compatibility of the opinion with the other evidence"); Locher v. Unum Life 2004 U.S. App. LEXIS 23776 (2nd Cir. 11/12/04).
Litigants may not fair as well if their claim is evaluated under the discretionary standard of review.  In Gannon v. Metropolitan Life Ins. Co., 360 F. 3d 211,214, (1st Cir. 2003), when conducting a review the First Circuit ruled that under the more deferential arbitrary and capricious standard, it is not appropriate for the Court to “to determine precisely how much weight” a plan administrator should have given to different evidence within the administrative record.

In Roig v. The Limited Long-Term Disability Program, 2004 U.S. Dist. LEXIS 16528 (E.D. La 8/18/04), Roig's treating physicians diagnosed her with herniated disc and degenerative disc disease, and concluded she could not travel which was an important duty of her occupation.  MetLife denied her claim relying on an IME, a Transferable Skills Analysis and a Labor Market Survey. MetLife's determination that jobs existed in her local area which she was capable and qualified to perform was not arbitrary.  The Court reasoned that it is not a per se abuse of discretion if the administrator does not accord special weight to the opinion of the treating physician.  Nor is it a per se abuse of discretion for MetLife to accord greater weight to the opinions of independent reviewers  than her attending physicians even though MetLife selected the independent reviewers.  Nor does the insurance company have a discrete burden of explanation as to why it may have accorded less weight to Roig's attending physician's opinions. See also Donato v. Metropolitan Life Ins. Co., 19 F. 3d 375, 380 (7th Cir. 1994), (holding that administrator's denial of benefits was not arbitrary and capricious when its "decision simply came down to a permissible choice between the position of the administrator's independent medical consultant and the position of the claimant's physicians").
Nevertheless, it is important to note that a vocational report will not provide sufficient support for rejecting the opinion of the plaintiff’s treating physician if that vocational assessment fails to take into account all of the claimant’s functional limitations.  Bruce v. New York Life Ins. Co., 2003 U.S. Dist. LEXIS 7225 (N.D. Ca. April 28, 2003).
Despite the initial grant of discretion in the Plan, sometimes the administrator's use of a non-examining physician or a biased decision maker will motivate the Court under a conflict analysis to apply a less deferential standard of review. Depending on what Circuit you are in, a conflict analysis may cause the Court to apply the de novo standard or slide the scale to heighten the standard of review.   After all, the claims administrator has a fiduciary obligation to act in the interest of the plan participants for the purpose of paying benefits. 29 U.S.C. § 1104a(1)(A) ; see Friedrich v. Intel, 181 F. 3d 1105 (9th Cir 1999) (de novo review applied when evidence showed that administrator acted like an adversary determined to deny the claim).  A company's departure from the accepted diagnosis and pursuit of a medical opinion to support a denial may demonstrate the company was motivated by  its financial interests to deny benefits, contrary to its ERISA obligations.  “Especially when the administrator is operating under a conflict of interest, a court may view skeptically that administrator’s decision to accord decisive weight to the opinions of its own staff and to minimize those of the treating doctors as defendant did here”.  Laser v. Provident Life and Accident Ins. Co., 211 F. Supp. 2d 645; 2002 U.S. Dist. LEXIS 13860 (July 25, 2002).
Selective Use of Medical Information is a Problem
The claims administrator may not conduct an evaluation of the claim based on what is termed, "selective use" of information. The claims administrator's termination of benefits based on its use of selective information from the medical records is improper when the entire context of the records consistently establish disability.  Courts have frequently criticized insurers for their selective review of evidence. Thorpe v. Cont’l Cas. Co., 2002 Dist. LEXIS 24405 *12-13, (E.D. Pa. 2002); See, Skretvedt v. E.I. DuPont De Nemours and Co., 268 F. 3d 167, 182 (3d Cir. 2001).
In general,  it is unreasonable to review only portions of the medical records, when assessing the claim. However, the decision in Sweeney v. The Standard Ins. Co., 2003 U.S. Dist. LEXIS 14028 (E.D. Pa. 8/13/03) illustrates that sometimes the Court will conclude the failure to review all the medical records is indicative of arbitrariness but not enough to overturn the denial.  The Court did not find objectionable Standard's reliance on its non-treating physician's reviewers over those of the treating doctors. Nor did the court find the review of some of the medical records inadequate to support the denial in view of its conclusion that the evidence demonstrated that Mr. Sweeney did not qualify for benefits.
Sometimes the administrator decides the claim based on a single sentence in a medical chart. The recitation of a patient's progress noted in a few simple words should not defeat a valid claim.  Especially following a surgical procedure, the surgeon will often note that his patient is “improved.”  The first question might be, improved from what prior status?  The second question should be, does this improvement cause the patient to be capable of performing occupational duties.  Often, the administrator will grab onto a word completely out of context of the entire disability picture to support its denial posture.  See Gawrysh v. CNA, 8 F. Supp. 2d 791, 795 (N.D. I. 1998),  where the Court rejected, as arbitrary and capricious, a denial based on “a single sentence indicating Ms. Gawrysh was feeling a ‘bit’ better after starting a new medication" because it did not indicate how the doctor viewed Ms. Gawrysh’s medical problems in terms of her ability to work.
In Petroff v. Verizon North, 2004 U.S. Dist LEXIS 8138, (W.D. Pa. 5/4/2004) MetLife, the administrator for the self-insured Verizon Plan, recommended denial of benefits based on a paper reviewer's review of medical records.  The medical reviewer concluded that Petroff's complaints of pain were far beyond what would be expected for the objectively documented medical condition.  Verizon's Benefits Committee upheld MetLife's decision, and denied Petroff's claim.  The Court found that the paper reviewers' "pick and choose" approach in reviewing the medical records supported a heightened degree of scrutiny.  The Court concluded that the Plan either ignored medical evidence or excerpted portions out of context.  The Plan was criticized for relying on an in-house medical reviewer who reviewed "cold test results", contrasted with Petroff's treating doctors who formed professional opinions based on what they personally observed.   The court noted that objective evidence may include x-ray reports and a claimants’ physicians' observations and examinations.
In some cases, the administrator will conduct a co-morbidity analysis of the claim, but inconsistently review the medical evidence in order to support its denial.  Fiorentino v. PNC Bank Corp., 2004 U.S. Dist. LEXIS 15396 (E.D. Pa. 7/19/04), provides an example where the Plans' inconsistent and selective treatment of the medical evidence caused the court to conclude that its decision to deny was arbitrary and capricious.  Mr. Fiorentino became unable to work due to fibromyalgia.  He was under the care of a rheumatologist as well as a psychiatrist for help dealing with the pain of the disorder.  At first, Unum Nurse Dotson referred to a lack of diagnostic testing or medical data to support the diagnosis of fibromyalgia and although she concluded there was no psychiatric component to the claim, suggested the psychiatric claim should be investigated.  The psychiatric in-house doctors, Drs. Kertay and Curtis disagreed with Nurse Dotson and concluded that Fiorentino's limitations were the result of psychological factors although not disabling.  The court concluded Unum’s denial was arbitrary and capricious in part because Unum failed to resolve the discrepancy between their own in-house consultants and proceeded to selectively rely on medical records to buttress their denial.
Hawkins v. First Union Corp., 326 F 3d 914 (7th Cir. 2003) unpublished), a case of deferential review provides further credence for the conclusion that a denial should rarely be based on an in-house medical consultant’s review without any independent support.  Hawkins suffered from fibromyalgia and his treating doctors attested to that fact. The medical consultant concluded that because Hawkins' disability was related to his pain, and his reporting of the pain was subjective, there was no objective proof of his disability and he was not disabled.  In balancing the opinion of the treating physician with the consultant, if the incentive of the treating physician to side with the patient, compared to the consultant's financial incentive to be hard nosed are roughly equal, they cancel each other out, and the superior knowledge of the treating physician makes his opinion more reliable.  According to the court, the record contained “nothing more than scraps to offset the evidence presented by the clamant and his treating physician.” The administrators reliance on a company doctor who generalized that the majority of individuals with fibromyalgia are able to work, created great doubt in the court’s mind regarding the denial, as the court found this to be “the weakest possible evidence" that Hawkins can work.   

Cases after Nord demonstrate that although no special deference need be accorded the treating physician’s opinion, it must still be weighed and considered for it may be the most credible. 

In cases where the plan administrator rejects the findings of the claimant’s treating physician, the court must evaluate whether such a rejection is rational and justifiable.  The denial of LTD benefits is arbitrary and capricious where the decision was based on a conclusion by a non-examining physician whose opinion was based upon incomplete information and who did not take into account the results of relevant objective medical tests. Carugati v. Long Term Disability Plan for Salaried Employees, 2002 U.S. Dist. LEXIS 4774,  at *6 (N.D. Ill. Mar 21, 2002)  In Carugati, the paper reviewer did not examine the entire medical record and discounted relevant medical evidence.
In Adams v. Cigna Group Ins. Life Accident Disability Co., 2004 U.S. Dist. LEXIS 4983 (N.D. Ill. January 22, 2004), Adams' treating doctor reported that she could not work based on his findings on examination and her severe pain. Cigna denied benefits based on a reviewing doctor’s opinion, but the reviewing doctor had not considered the Social Security Administrations grant of benefits or the most recent reports of the treating doctors.  The records submitted had detailed the severity of Adam’s pain from her condition, but the reviewing doctor ignored it.  The reviewing doctor’s findings were unreliable because there was no clinical evidence to support his conclusions.  It is important to remember that where an independent physician reviews the claimant’s medical records without performing an exam, the physician’s conclusions must be supported by competent medical evidence.  Hightshue v. AIG Life Ins. Co., 135 F. 3d 1144, 1148 (7th Cir. 1998).
The Court failed to confirm the denial of benefits in Smetana v. Reliance Standard Life Ins. Co., 2003 U. S. Dist. LEXIS 19564 (E.D. Pa. 9/30/03) because Reliance failed to satisfactorily explain its rejection of evidence provided by the claimant's treating and examining physician that supported an award of LTD benefits.  Smetana worked for Pane Webber as a stock broker and claimed she was unable to work due to cervical, back and cognitive deficits.  The paper reviewer, Dr. Hauptman, reviewed the medical records, notes and tests but did not contact the treating physician or the plaintiff. There was no IME conducted.  The Court explained,  the "Court finds it suspect that defendant would have so easily accepted his report (Dr. Hauptman’s) over the findings of plaintiff's treating physicians and plaintiff's objective complaint of pain."  While defendant's reports summarize the information it had before it, it did not engage in any discussion of why it credited certain information, certain evidence or how it reconciled Dr. Hauptman's analysis with that of plaintiff's treating and examining physicians.    The Court found nothing in the record to indicate that Dr. Hauptman's opinion was anymore supportive or reliable than the treating doctors. 
In Bright v. LINA, 2004 U.S. Dist LEXIS 14969 (D.Ha. July 21, 2004),  Bright suffered from rheumatoid arthritis which rendered her unable to perform her prior nursing duties.  At first, LINA approved benefits.  LINA disallowed further disability benefits two years later following a review by its claims examiner who appeared to focus on whether Bright could sit.  LINA did not obtain an IME, and during the appeal, submitted the file to a reviewing rheumatologist who reviewed Bright's records and concluded that Bright is not completely precluded from working at sedentary duties.  In finding for Bright, the Court reasoned,
LINA relies heavily on a recent Supreme Court ERISA case holding that Courts need not automatically accord special weight to treating physician’s evaluations. See Black and Decker v. Nord.  Under Nord, there is no heightened burden of explanation if administrators reject treating physician's opinions.   Nord, however, certainly does not mean that treating physician’s evaluations can be ignored. In the particular case at hand, if the Court were to accept Dr. Allens’ qualified review of records over the reports and opinions of the five treating and consulting physicians who have examined sometimes repeatedly Bright, the Court would have to ignore those physicians. Bright was examined by a rheumatologist, neurologist, orthopedic surgeons, and her general practitioner. All agree she is disabled. She has had multiple neurological examinations, joint examinations, laboratory tests, x rays, and a cervical MRI.  Even given Nord, the weight of the evidence still clearly favors Bright.” *15.

See also Harris v. Holland, 2004 U.S. App. LEXIS 1665 (4th Cir. 2004) where the trustees of the plan ignored the essentials of the report of the treating doctor, but failed to provide any basis for doing so.  The court found the opinion of the treating doctor would be afforded great weight, for he had treated the plaintiff for many years before her disability. 
What to do with the treating physician's opinion, if it supports return to work
When a client approaches us with a denial letter in which the claims administrator explains that the treating doctor supported the return to work decision, is the case over???  Not always.  Sometimes a treating doctor will release his patient to return to work based on a misunderstanding of the occupational requirements, or the definitions of disability under the policy.   In Caldwell v. LINA, 287 F. 3d 1276 (10th Cir. 2002), a physician who treated Caldwell only a few times opined that she could return to work. However, evidence demonstrated that this doctor was without relevant information about the physical requirements of her occupation.  “A release to work without clear knowledge that  Caldwell had to engage in heavy lifting does not provide substantial evidence that Caldwell could perform all the essential duties of his job.” Id. at *1285. The doctor whose opinion LINA had relied upon for the denial was the primary physician, who referred Caldwell to specialists to care for his condition. 
It is also good to remember that not all treating physicians will agree to provide an opinion regarding their patient’s ability to work. Some refuse to complete any forms seeking information on the ultimate issue.  “In disability benefit cases, physicians typically provide two types of opinions: medical opinions that speak to the nature and extent of a claimant’s limitations, and opinions concerning the ultimate issue of disability, i.e. opinions about whether a claimant is capable of any work, given her or his limitations." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). Sometimes, if a treating doctor is unwilling to provide an opinion regarding his patient’s ability to work, the claimant must resort to an evaluation by a third party of his own choosing to establish his disability status.
 In Curtin v. Unum Life, 2004 U.S. Dist. LEXIS 544 (D. Me. January 12, 2004),  Ms. Curtin sustained severe orthopedic injuries as a result of an automobile accident. Her treating doctor, Dr. Troy, provided somewhat contradictory information on a Unum form submitted to the company. Although Dr. Troy concluded that Curtin could not stand for more than 20 minutes, walk for more than 10 minutes and must use a cane, he checked off the box next to “sedentary activity”.  In- house nurse concluded that Curtin was capable of working, and called Dr. Troy to discuss his opinion. Dr. Troy told the nurse that Curtin could not sustain working an eight hour workday, even in sedentary activity.  Unum’s Nurse decided to resolve the conflict between her conclusion that Curtin could work a sedentary job and Dr. Troy’s conclusion that she could not, by referring the file to Dr. Lawrence Broda, Unum’s onsite physician.  He reviewed the office notes of the treating doctors and the objective testing but ignored the information provided by the treating doctor during his conversation with Nurse Reynold.  In his medical consultant report, he recorded as Dr. Troy’s conclusion that Curtin had sedentary work capacity for eight hour days.
Unum argued that it is entitled to consult and rely on its own experts and is not required to accept the word of Curtin’s doctors or Curtin herself.  The Court rejected Unum’s reliance on Nord as support for its position because Nord does not allow an insurer to disregard the opinion of a treating physician in the absence of medical evidence contrary to the treating physicians’ opinion. Unum claimed that Dr. Troy exaggerated the extent of Curtin’s disability, but UNUM had not developed any support in the record for its position. The court also held that a Social Security finding of total disability is relevant to the determinations of whether Curtin suffered a permanent total disability under the policy. Remember, the possibility of being able to work is an insufficient basis to terminate benefits.  McDonald v. Western-Southern Life Insur. Co., 347 F. 3d 161 (6th Cir Oct. 10, 2003).
 See also, Cook v. Liberty Life Assurance Co. of Boston, 320 F. 3d 11 (1st Cir. 2003), where Liberty had not developed any evidence to contradict the treating physician’s conclusions that Cook was unable to work.   The Court added there was no reason to conclude that the treating physician was colluding with the claimant.
In Smith v. Aetna, 2004 U.S. Dist. LEXIS 6028 (S.D. Ohio 3/29/04), Smith was a press operator/laborer with a gas company, disabled due to syncope and bradycardia.  Aetna paid him for 7 years and then terminated the benefits claiming his syncopal episodes did not prevent him from gainful employment.  The court focused its analysis on the medical and vocational evidence in the record and found Aetna's conclusion was in contrast to all of Smith's long term treating physicians' opinions.  Aetna's medical reviewers pointed to no objective test results or other medical documentation to refute his treating doctors' conclusions.  "While the Court is not bound to accept an undocumented conclusion of a treating physician, it may also place little weight upon a conclusory opinion rendered by a non-examining physician who offers no medical evidence or other justification while contradicting the medically supported conclusions of treating physicians."  The Court was struck by the lack of evidence to demonstrate any significant change in his condition warranting a termination of benefits. 
The claims administrator should not use outdated medical information in its evaluation of benefits.  In Napier v. Hartford, 2003 U.S. Dist LEXIS 16950 (E. D. Ky. 9/17/03), Hartford used the services of in- house medical consultants from Medical Advisory Group  to review the claim and sent Napier for an IME.  The company rejected the conclusions of the then current treating doctor, in favor of the findings of physicians, some of whom had not treated Ms. Napier for years.  Although the IME doctor suggested that further testing was necessary, Hartford held onto testing from years earlier, presumably concerned that more recent testing would further document the medical condition, the thoracic outlet syndrome.  The court reasoned, "It is obviously not rational to make decisions as to Napier's current ability to perform her occupation on the basis of outdated information.” Id at *20, *21.  Hartford at the very least had a duty to base its decision regarding Napier's benefits on current data regarding her present condition.  In addition, it seemed odd to the court that, when faced with inconsistent findings, Hartford did not order recent EMG testing to determine the true nature of Napier's disability.   The Court added that the treating physician's opinions "should at least be considered in the same manner as those of physicians hired by Hartford"... It appears that the concerns of Napiers' treating physician, who had been seeing her consistently for almost 10 years, should have at least been taken into account and addressed by Hartford in its decision-making process." ID at*22.
    In Paese v. Hartford Life and Accident Ins. Co., 2004 U.S. Dist. LEXIS 6040, (S.D. N.Y.  4/9/04) Paese suffered from cervical herniated discs at several levels as a result of a car accident.  Applying a de novo standard of review, the court found the views of his treating doctors most persuasive because they are most familiar with his medical condition and their impressions were supported by MRIs, other objective tests and studies.  Hartford's evidence that he was not totally disabled was rejected for several reasons.  The Court pointed out that neither of the reviewing doctors actually examined Paese and were "straining to reach a conclusion to Hartford's liking" in their reports. The doctors pulled statements from the medical records out of context and wrongly concluded his job was sedentary.  In the Court's opinion, one doctor was "hardly disinterested" because he was an "Associate Medical Director" of the Hartford.  The Court noted that the other doctor was paid $2,430.00 for his report and was "straining against Paese as he concluded there were no serious injuries, even though he ultimately had to have spinal surgery and a bone graft."
TO IME or NOT TO IME, that is the question.
Are there situations requiring the use of an IME?  Common sense suggests that a claim administrator must not be forced to resort to an IME, with its attendant costs in order to deny a claim.  Yet, there is a stream of cases in which the Courts are using the lack of obtaining an IME against the decisionmaker.  In  Cook v. Liberty Life Assurance Company of Boston, 320 F. 3d 11 (1st. Cir. 2003), Liberty initially had accepted the opinions of the treating physician, Dr. Blackwood, who supported the restrictions and limitations prohibiting work based on chronic fatigue syndrome, and later rejected his opinion without developing any contradictory medical evidence in the record to support its decision.  The Court suggested that if Liberty seriously questioned the veracity of Dr. Blackwood’s opinion, they could have required Cook to get an IME or subjected Dr. Blackwood's notes to review by another physician.  In DiPietro v. Prudential Insur. Co. of America, 2004 U.S. Dist. LEXIS 7939 (N.D. Ill. 5/4/04),  Prudential failed to credit the treating doctor where there were no medical findings to the contrary. Prudential failed to have an IME which the Court said would have been evidence of a thorough investigation into the claim.  The treating physician’s information would likely be superior to the consultant who never examined Di Pietro or contacted the doctor.
The failure to consult an IME doctor was a deciding factor in Morgan v. Unum Life Ins. Co. of America, 2002 U.S. Dist. LEXIS 17663, (D. Minn. 2002). Morgan suffered from fibromyalgia, but Unum Life consulted only one on-site physician and an on-site neuropsychologist to contradict the opinions of Morgan's three physicians: a primary pain specialist with experience in fibromyalgia treatment, an internist, and a sleep specialist.  The court reasoned that if UnumLife was unsatisfied with the evidence submitted by Morgan's physicians, it could have submitted him to an independent medical examination.  "Had it done so, it could have relied on any resulting contrary opinion of an independent examiner.” See Donaho v. FMSC Corp., 74 F.3d 894, 901 (8th Cir. 1996).  The Court found in favor of Morgan, finding Unum Life’s failure to seek an outside medical evaluation or to address the diagnoses of Morgan's treating physicians, combined with a financial conflict of interest evidence of arbitrary and capricious claim handling.
As part of the UnumProvident ReAssessment Agreement entered on December 20, 2004, Unum Life and its affiliates Provident Life and Accident Co., Provident Life & Casualty Insurance Company and the Paul Revere Life Insurance Company agreed that its claim procedures going forward shall include certain protocols regarding the manner in which the medical evidence of a claimant’s disability will be considered.  The agreement states that the claim procedure shall include the objective of: 
“Increased focus on policies and procedures relating to medical and related evidence, including appropriate use and consideration of in-house medical resources, obtaining complete medical records needed for the decision and needed for the decision and obtaining an IME or FCE in appropriate circumstances and fairly interpreting or applying the IME or FCE without any attempt to influence the impairment determination of professionals conducting the IME and/or FCE.”  

In an individual disability claim, the use of in- house medical review as a pretext to end disability benefits may  support the bad faith cause of action if the medical review is contrary to the weight of the medical evidence.   In Hubka v. Paul Revere, 215 F. Supp. 2d 1089 (S.D. Cal. 2002), the court held that evidence of bias, a failure to investigate and the use of the in- house medical opinions as a pretext to deny claims may be construed as a conscious disregard for his rights and support for an award of punitive damages.  Hubka, at 1091.
Credentials of Medical Commentators

Claimants are entitled to the curriculum vitae of all doctors reviewing the claim since it has been determined that it is an abuse of discretion for a plan administrator to rely upon the report of a doctor who does not have the requisite expertise. This includes information regarding the procedure by which the claim was reviewed and analyzed, medical review criteria, medical reviewers’ credentials, as well as their rationale used in denying the claim, for all of these are “pertinent” documents to which the claimant is entitled to under 29 C.F.R. § 2560.503-1 (g). 
The failure to have someone of the proper medical specialty review the claim may evidence an arbitrary decision was made. In Woo v. Hartford Life Ins. Co, 144 F.3d 1157 (8th Cir. 1998), the Eighth Circuit determined that a procedural irregularity existed where the plan administrator did not obtain the opinion of a specialist when confronted with an uncommon disease and only used the opinion of an in- house consultant to contradict the records and opinions of two treating physicians.  Woo, 144 F. 3d at 1161.   However, in Malinczak v. The AB Dick Long Term Disability Plan,  D. C. Cal 2004. (unpublished opinion), the Court found that an in-house nurse with 15 years experience may be qualified to determine whether plaintiff is disabled. At the beginning of the appeal stage of administrative review, counsel should always request the qualifications of all who made decisions on the claim. In Malinczak, such evidence was presumably not requested, and thus not provided. Regardless, the court permitted evidence of her qualifications into evidence although it was outside the administrative record. Interestingly, the Court considered clinical examinations of the claimant and muscle spasms as "objective evidence" of the disability. When a claimant reports that she suffers from a medical condition, the plan administrator should accept this evidence unless they have substantial evidence to discredit these reports.   The holding in favor of the claimant notwithstanding, (the Court decided that CNA arbitrarily ignored plaintiff’s reliable evidence including Malinczak's reports of pain and physical restrictions) the medical consultant's qualifications should have been obtained. 
A recent case where the Court weighed the competing evidence is Smith v. Reliance, 2004 U.S. Dist. LEXIS 11533, (D.Co, 6/16/04) Smith suffered from CFS. His disability claim was supported by voluminous medical records, up to date medical opinions and expressions about limitations on his ability to work.  Reliance gave those opinions little or no weight, barely mentioning them in the denial letters.  The Court used the often cited rule which has come to stand for Nord more than its success at defeating the treating physician rule,, "while it is true that treating physician opinions are not to be given any special weight in ERISA cases, by the same token, they can not be arbitrarily ignored." Nord  supra at 823. Where the record contains competing credible opinions, and the Court is performing a de novo review, it is not obliged to give deference to the conclusion of the claims administrator.
Here the Court found plaintiff's position to be the more persuasive. The court took issue with the IME doctor's general comments with regard to the abilities of most people who suffer from CFS.    The Court questioned the bias of the second IME doctor, concluding he "cherry picked" from the records of the treating doctor reasoning, this "raises questions about whether the review was objective or was designed to "substantiate the desired decision to limit benefits".  (citing Lemaire v. Hartford Life and Accident Ins. Co., 69 Fed. Appx., 88, 90. 2003 WL 21500334, *4 (3rd Cir, 2003)).  Other unreasonable decision-making was proven by the failure of Reliance or its doctors to provide any reasons for rejecting the opinions of the treating doctor who had examined the plaintiff on numerous occasions and wrote a letter challenging the conclusions of Reliance Standard's doctor.   " At no place in the record does Reliance or its consulting physicians provide any reasons for disregarding the observations and conclusion of Dr. Helffenstein." The Court reasoned,
"accordingly, this Court accept the opinion of Dr. Helffenstein, as it has no reason not to. In so doing, this Court is not stating that a plan or claim administrator is bound to provide an explanation for the reasons rejecting opinions of any physician, a requirement that might run afoul of the Supreme Court's holding in Black and Decker .  Rather, this court is applying the teaching of that case that a "plan administrator may not arbitrarily refuse to credit a claimant's reliable evidence... "Nord, supra, 538 U.S. at 823.  

Recently commentary by United States District Judge Richard Enslen in Loucks v. Liberty Life , 2004 U.S. Dist LEXIS 19664, (W.D. MI. 10/1/04) provides some perspective on the current decision making conundrum in ERISA. The court writes its dismay about the ERISA system,
"Caveat Emptor! The vendor of disability insurance now tells us, with some legal support furnished by the United States Supreme Court, that a woman determined disabled by the Social Security Administration because of multiple disabilities which prevent any kind of work cannot be paid on the disability insurance she purchased through her employment. The plan and insurance language did not say, but the world should take notice, that when you purchase insurance like this you are purchasing an invitation to a legal ritual in which you will be perfunctorily examined by expert physicians whose objective is to find you not disabled, you will be determined not disabled by the insurance company principally because of the opinions of the unfriendly experts, and you will be denied benefits.  Fortunately, the law, though left moribund by the Supreme Court's legal interpretations, does not allow the purveyor of such empty promised to win the day.

Loucks was an administrative sales assistant with fibromyalgia, osteoarthritis and dry eyes.  Liberty Life used an IME doctor, an internist w/ no specialty in Louck's condition (who saw Loucks for 5 min.) and another doctor to do a paper review who also lacked the credentials as a specialist.  Neither doctor considered the accepted criteria for fibromyalgia and failed to review all the medical records.  SSA appeal was successful.  In house doctor Gale Brown, reviewed the claim and a denial was issued.  The Court reasoned that the administrator of the claim must be principled, unbiased and above abject standards.  This claim was originally paid and later selected for review because the Social Security application for benefits had not been approved, hence depriving Liberty of the offset.  Then Liberty issued a denial, by ignoring the opinion of specialists who regularly treated the plaintiff and embracing the opinion of the uncredentialed, biased IME doctor. The financial motivation driving the denial was apparent to the Court.  The Court concluded "while a claim administrator and the independent physicians of the claim administrator need not specifically address the opinions of a treating physician, the administration of the claim must be principled, unbiased and above abject standards.  In this case, the claim administration failed to meet even those basic standards." Id. at *14.
This area of disability claims analysis continues to develop as the Courts interpret what is reasonable claims handling under ERISA. With the expected demise of discretionary review under the new NAIC Model Act, it is expected that a universally applied de novo standard of review will breathe new life into the once thought deceased treating physician rule.