Case Story: Our Client v. Hartford Life & Accident Insurance Company

After working for Navy Federal for thirty-two years, our client had to stop working due to Gorlin’s Syndrome, a rare genetic defect that caused them to develop numerous skin cancers which had to be removed by either a curettage and cautery procedure or a Moh’s surgery. By September of 2007, our client was having such frequent procedures that they could no longer remain employed, so they filed a claim for long term disability benefits with Hartford under the plan established by their employer. Id. at 477.

On December 19, 2007, Hartford approved our client’s LTD benefits. Id. at 478.  Hartford recognized that the sunlight and fluorescent lighting of a normal office setting would increase our client’s skin cancers. Id.  Hartford additionally found that the no-work limitation suggested by our client’s treating dermatologist, Dr. Schuldenfrei, was supported by medical evidence. Id. Although Hartford approved our client’s benefits, it expressed that it would be exploring whether our client could work at home. Id.

In May of 2008, Navy Federal agreed to allow our client to work from home. Id. at 479.  Hartford hired Dr. Kates, a dermatologist, to conduct a peer review of Dr. Schuldenfrei’s restrictions. Id.  Dr. Kates was unable to contact Dr. Schuldenfrie, so without the input of our client’s treating dermatologist, Dr. Kates reported to Hartford that “‘the effect of fluorescent light [wa]s minimal’ and that our client could work indoors with protective clothing and sunscreen.” Id.  Dr. Schuldenfrie later provided information that he disagreed with Dr. Kates, declaring that Dr. Kates’ opinion seemed to be based on “common” basal cell carcinomas (skin cancer) rather than Gorlin’s syndrome. Id.  Despite this disagreement, Hartford relied on Dr. Kates’ report to determine that our client was no longer eligible for disability benefits. Id. at 480.

After our client filed an administrative appeal, Hartford sent their file to Dr. Petronic-Rosic, another dermatologist, for a second peer review. Id. at 480.  Dr. Petronic-Rosic reported that if our client was working from home, they would need only three to four days to recover from a removal procedure. Id.  This conflicted with Dr. Schuldenfrie’s opinion that it took our client several days to recover from curettage and cautery procedures and at least a week to recover from a Moh’s surgery. Id. at 478-79.  In February 2009, Hartford again denied our client’s claim. Id. at 480.  Hartford relied on Dr. Petronic-Rosic’s estimated recovery time, its own calculation of the frequency of our client’s surgeries, and the opinion of its own vocational expert who declared that “the common practice of employers” could accommodate our client’s absences. Id. at 480-81.

The court held that Hartford’s denial was arbitrary and capricious, because Hartford did not have sufficient evidence that our client’s recovery time was only three to four days, did not accurately calculate the frequency of our client’s surgeries, and relied on the vocational expert’s opinion that did not cite any evidence or data. Id. at 487.  First, the court noted that recovery time is a credibility determination because it depends upon a patient’s pain. Id. at 482.  While it is not per se improper for a plan administrator to rely on the opinion of a non-examining consultant, not conducting a physical examination may “raise questions about the thoroughness and accuracy of the benefits determination”, particularly where the file reviewer makes critical credibility determinations. Id. at 482-83 (citing Smith v. Cont’l Cas. Co., 450 F.3d 253, 263-64 (6th Cir. 2006); Kaish v. Liberty Mut., 419 F.3d 501, 508 (6th Cir. 2005); Calvert v. Firstar Fin. Inc., 409 F.3d 286, 295 (6th Cir. 2005)).  Additionally, the court declared that courts must “review the quality and quantity of the medical evidence and the opinions on both sides” and that the Sixth Circuit has often been critical when a plan administrator rejects a treating physician’s opinion that is in line with medical evidence for the opinion of a non-examining file reviewer. Id. at 483 (citing Kalish, 419 F.3d at 509-10; Calvert, 409 F.3d at 297; Con’t Cas. Co., 450 F.3d at 263; McDonad v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)).  Hartford’s reliance on the opinion of Dr. Petronic-Rosic who never examined our client, spoke with our client, or spoke with Dr. Schuldenfrie made the court call into question the quantity and quality of the medical evidence and Dr. Petronic-Rosic’s opinion. Id.

Secondly, Hartford’s denial was arbitrary and capricious, because Hartford miscalculated the frequency of our client’s surgeries.  The court explained that “A vocational expert’s opinion that a claimant can perform certain jobs is only substantial evidence to the extent that the vocational expert had a complete, accurate understanding of the claimant’s restrictions and limitations. Id. at 485 (Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994)).  Here, Hartford had included in its calculation dates when our client was still working which created an artificially low frequency. Id.  Hence, Hartford’s calculation did not sufficiently support its denial. Id.

Third, Hartford’s reliance on the vocational expert’s opinion that an employer could  accommodate our client’s level of absences was arbitrary and capricious, because the vocational expert cited no evidence or data other than “the common practice of employers.” Id.  As a fiduciary, the plan administrator has a duty to evaluate the opinions of its hired experts to make sure the opinions are justified under the circumstances. Id. (citing Gregg v. Transp. Workers of Am. Int’l., 343 F.3d 833, 841 (6th Cir. 2003)).  Furthermore:

A determination whether a fiduciary’s reliance on an expert advisor is justified is informed by many factors, including the expert’s reputation, and experience, the extensiveness and thoroughness of the expert’s investigation, whether the expert’s opinion is supported by relevant material, and whether the expert’s method and assumptions are appropriate to the decision at hand. (Citing Gregg, 343 F.3d at 841-43. [A] conclusory medical [or] vocational opinion that fail[s] to provide evidence or reasoning to support [its] conclusions are insufficient to support a denial of benefits. (Citing Elliot v. Metro Life Ins. Co., 473 F.3d 613, 618-19 (6th Cir.2006)).

Id.  In light of Bureau of Labor Statistics data showing that workers do not receive enough sick days to accommodate Our client’s absences and Hartford’s failure to simply inquire with Navy Federal regarding how many absences it would tolerate, Hartford did not have a reasoned explanation for its conclusion. Id. at 486-87.

The court awarded our client the benefits wrongfully withheld and reinstated our client’s benefits going forward. Id. at 488.

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