If you are an attorney practicing in the area of ERISA disability litigation,(or even if you are not an attorney) you may want to read the recent decision by the First Circuit in McDonough v. Aetna Life Ins. Co., 2015 WL 1684079 (April 15, 2015) It is instructive in several respects. First, the case illustrates a common situation that insurers use to deny or terminate benefits. Second, and more importantly, the court clarified the insurer’s obligation when it evaluates a claimant’s “own occupation.”
The claimant, Joseph McDonough, worked in a high-level, high-pressure position as a Senior Analyst III, in the information technology department of Biogen, Inc. In that position he provided support to the server infrastructure of this global company.
Aetna began paying the claimant long-term disability (LTD) benefits after he suffered from stroke-like symptoms of right-sided numbness, dizziness, blurred vision and loss of balance. He also suffered from frequent panic attacks, anxiety and sleeplessness.
Aetna terminated his LTD benefits after it received a report from his physician that said he had a “sedentary level of functionality” and could work 8 hours a day. In terminating his benefits, Aetna ignored highly contradictory reports from his mental health care providers. Aetna’s action was typical of many long term disability insurers. They will cherry pick one comment from a treating physician, take it out of context and use it to terminate or deny benefits.
I see this often in the clients that I represent in appeals. For example, one client who was getting short term disability benefits due to chronic fatigue syndrome, decided to try riding his bike. Before the onset of his CFS, he used to ride over 100 miles per week. He went on a 20 minute bike ride and then needed an entire day to recover. He reported this to his physician who duly noted it in his office notes. As soon as the insurer, Unum, saw the office note, it terminated his benefits despite there being no change in my client’s medical condition. It goes without saying that Unum also denied his application for long-term disability benefits because of the bike ride. We are awaiting a decision on that internal appeal.
In the McDonough case, the claimant lost his internal appeal and lost in the U.S. District Court (Woodlock, J.) which granted summary judgment to the insurer, Aetna. The claimant then appealed to the First Circuit.
The First Circuit criticized Aetna and its so-called independent reviewers for their failure to compare the claimant’s “symptoms or impairments to any description of the physical or cognitive demands of his own occupation . . . .” The court called Aetna’s internal assessment “little more than a waif in the wilderness.” It noted that “while the record is rife with accounts of the [claimant’s] medical and psychological symptoms, Aetna never took the obligatory step of assessing whether and to what extent (if at all) the appellant’s impairments compromised his ability to carry out the material duties of his own occupation as normally performed in the national economy.”
The analysis that Aetna performed, or rather failed to perform, is fairly typical of long-term disability insurers, especially when the claimant has a job that requires a high level of cognitive function and executive decision making. Too often, the insurer’s analysis focuses on whether the claimant can sit upright for 8 hours and ignores the impact of fatigue and pain on his or her ability to make decisions, develop strategic plans and organize information. The opinion in McDonough v. Aetna should be cited by practitioners in their internal appeals and in lawsuits brought in the U.S. District Courts.
Unfortunately for Joseph McDonough, the First Circuit remanded the case back to the District Court for it to remit back to Aetna for further evaluation. We still do not know the final outcome.
By Susan Sachs, Esq.