Case Story: Our Client v. Bayer Corp. Long Term Disability Plan

Our client, the plaintiff, in this case, was a pharmaceutical sales representative for Bayer Corporation until he had to quit working due to depression, panic attacks, and bi-polar disorder.   The plaintiff’s treating physician, Dr. LeBuffe, diagnosed him with Bi-polar II, Attention Deficit Disorder, severe Major Depression, and Panic Disorder. Id. at 499.  Additionally, on a medical assessment form, Dr. LeBuffe rated our client as having “poor” abilities to (1) interact appropriately, communicate effectively, and engage in other aspects of social functioning (2) concentrate and keep a persistent and steady work pace; and (3) adapt to stressful events in work settings where the failure to adapt would lead to repeated episodes of deterioration or decompensation which would cause our client to withdraw or to experience increased anxiety and depressive symptoms. Id.

Kemper, Bayer’s third-party claims administrator, hired Dr. Burstein to review our client’s file. Id.  Dr. Burstein did not review our client’s medical records himself but just spoke with Dr. LeBuffe about our client. Id.  Dr. Burstein mischaracterized Dr. LeBuffe’s statements as saying that other than our client’s fear of having a panic attack, there were no barriers to our client returning to work. Id.  Kemper denied our client’s claim based on Dr. Burstein’s report. Id.

We appealed this denial to Bayer’s ERISA Review Committee.  The Review Committee submitted our client’s file to Dr. Mendelssohn for review. Id.  Dr. Mendelssohn reported that there was not sufficient evidence of objective mental status to preclude our client from working. Id at 500.  The Review Committee also hired Dr. Orr to perform an independent file review. Id.  Dr. Orr focused on the fact that our client had attended a real estate course and gotten their real estate license to report that our client was not disabled. Id.

While the claim was with the Review Committee, our client moved states, began working as a stocker at Target and began seeing Dr. McCool, a board-certified psychiatrist. Id.  Dr. McCool opined that our client would have significant difficulty maintaining the level of work required by their job as a pharmaceutical sales representative and that in the long term, our client may not be able to even maintain their work at Target. Id.  Dr. McCool noted that our client had suicidal thoughts, depressed mood, and lack of motivation and concentration. Id.  A vocational expert, Mr. Boatner, similarly declared that unless our client’s condition improved, he could not return to work at Bayer and that their work at Target was likely the most he could earn. Id. at 501-02.  Mr. Boatner expressed that there was no way to determine if or when our client’s condition would improve. Id. at 502.

The Review Committee then commissioned another independent medical evaluation to be performed by Dr. Burstein, a board-certified psychiatrist. Id.  Dr. Burstein, who never met our client in person, acknowledged our client’s diagnoses of Panic Disorder, Bi-polar Disorder II, and Attention Deficit Disorder, but nevertheless reported that “There is no indication of [our client’s] experiencing a degree of psychiatric illness that would interfere with their functioning satisfactorily as a pharmaceutical sales representative” or at any other job he is or could become qualified for.  Dr. Burstein emphasized that our client was not disabled from working because he had completed the real estate program, passed the real estate exam, gotten divorced and remarried, moved states, and found the job at Target. Id.  The Review Committee then reaffirmed its original denial. Id.  The Review Committee acknowledged that our client’s treating physicians and its hired experts disagreed but accepted the opinions of its experts. Id. at 502-03.

To qualify for benefits for the first sixth months after he stopped working, we had to prove that our client was unable to perform the essential duties of the occupation he regularly practiced before becoming disabled. Id. at 505.  The Sixth Circuit upheld the district court’s determination that Bayer’s denial of benefits under this “regular occupation” standard was arbitrary and capricious. Id. at 509.  First, Kemper had relied on experts who had never even met our client.  One of these experts, Dr. Orr, based his decision on our client’s involvement with the real estate course, but our client passed the real estate exam while he was still working at Bayer and before he claimed to be disabled. Id. at 507.  Additionally, there was no evidence that our client was able to actually enter the real estate profession. Id.  A second expert, Dr. Burstein, had emphasized that our client was not disabled because of events in their personal life and their job at Target.  The court, however, affirmed the district court’s holding that “the ability of an individual to divorce, remarry, and move to a different city for a low-paying job is ‘irrelevant to whether or not our client can persist at an occupation.’” Id.

The Court acknowledged that there is no bright-line rule requiring that the opinions of treating physicians be accepted over those of reviewing experts. Id. at 507-08 (citing Calvert v. Firstar Fin., Inc., 409 F.3d 286, 293-94 (6th Cir. 2005)).  However, “the failure to conduct a physical examination—especially where the right to do so is specifically reserved in the plan—may, in some cases, raise questions about the thoroughness and accuracy” of the claims evaluation. Id. at 508 (quoting Calvert, 409 F.3d at 295).  Here, Bayer’s plan reserved the right to take a physical examination. Id.  The court found that the failure to do so for a claimant with mental and emotional conditions was “both puzzling and troubling”, because a physical examination would have helped the plan administrator better evaluate the severity of our client’s symptoms. Id. at 508 (citing Sheehan v. Met. Life Ins. Co., 368 F. Supp. 2d 228, 254-55 (S.D.N.Y. 2005)(declaring, “Courts discount the opinions of psychiatrists who have never seen the patient for obvious reasons.  Unlike cardiologists or orthopedics, who can formulate medical opinions based upon objective findings derived from objective clinical tests, the psychiatrist typically treats his patient’s subjective symptoms” and that interviewing and spending time with the patient are “essential to understanding and treating the fears, anxieties, depression, and other subjective symptoms the patient describes.”)).

The fact that Bayer was able to find evidence from its hired experts supporting its denial did not protect its decision from review, because courts must “review the quality and quantity of the medical evidence and the opinions on both sides.” Id. (quoting McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)).  Bayer’s disregard for our client’s treating physician’s opinions and total reliance on its hired expert’s opinions was arbitrary and capricious, and Bayer breached its fiduciary duty to only rely on expert advice that is reasonably justifiable under the facts of the case. Id. (citing Gregg v. Transportation Workers of Am. Intern., 343 F.3d 833, 841 (6th Cir. 2003)). The Court held:

Given th[e] obvious shortfall in the analytical framework used by the experts credited by the plan administrator, in conjunction with the numerous factual errors, misunderstandings, and analytical omissions of those persons reviewing the findings of our client’s treating psychiatrists, the administrative record contained no reliable evidence to support the conclusion that [our client] was competent to return to their previous occupation.

Id. at 509.  Thus, our client was entitled to benefits for the first six months of disability under the “regular occupation” standard. Id.

After the initial six months of being disabled, we had to prove that our client was “totally disabled” or not able to work at any job for which he is or could become qualified for by education, training, or experience for him to qualify for benefits. Id. at 505.  Bayer argued that even if our client had been totally disabled after the first six months, he had forfeited their right to partial disability benefits by working at Target, because the plan terminated benefits if a claimant returned to work unless the work was an approved rehabilitation program. Id. at 513.  The court disagreed and explained that our client should not be penalized for not following the plan rules by working at Target, because when our client took the job at Target, Bayer was of the position that our client was able to return to their pharmaceutical sales job. Id.  The court explained:

Because [Bayer] improperly denied our client benefits under the plan, he was forced, in order to provide for them and their family, to accept some remunerative employment.  That act, occasioned by Bayer’s own arbitrary and capricious decision, cannot now serve as the basis for [Bayer’s] argument that further benefits are not due.

Id.  The court then remanded the claim for the plain administrator to determine whether our client was totally disabled or partially disabled during this time period. Id. at 511.

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