• David Martin

ERISA Cards: Does a Clinical Consultant Trump a Treating Doctor?


In the recent case, Bayer v. Unum Life Insurance Company of America, et al., No. CV 18-9702, 2020 WL 2558218 (E.D. La. May 20, 2020), Judge Fallon addressed whether an insurance company could rely on the conclusions of its clinical consultants over the contrary opinions of the plaintiff’s treating physicians. Insurance companies frequently push the envelope of what is permissible in their zeal to improve bottom line profits. In this case, Judge Fallon held that Unum went too far.


Ms. Bayer had multiple sclerosis (“MS”) and applied for short-term disability (“STD”) benefits. MS can impact people in many different ways, but Ms. Bayer had problems with balance, gait, standing for long periods of time, fatigue, and memory. Unum denied her claim and subsequent appeal. Undeterred and wisely, Ms. Bayer applied for long-term disability (“LTD”) benefits. It is important for claimants to exhaust all claims for both types of benefits before filing suit (as long as the statute of limitations or a time bar in the plan does not prevent it).


Unum took a different approach with the long-term disability claim. It contended that the MS was a pre-existing condition. Ms. Bayer had been to the doctor for an eye condition during the subject look-back period. The look-back period for a pre-existing condition is contained in the plan. It is often one year before the LTD benefit plan became effective. Ms. Bayer’s visit to the eye doctor fell within that range, so Unum argued that it must have been MS-related.


Ms. Bayer appealed that decision and provided an affidavit from her doctor that while the eye condition may have been a symptom of MS, not everyone with such an eye condition actually has MS. Unum’s clinical consultants reviewed Ms. Bayer’s record, including the affidavit. Unum denied the appeal based upon its clinical consultants’ opinions. Ms. Bayer, having exhausted all claim remedies, filed a lawsuit.


The principal issue was whether there was evidence in the record when Unum made its decision that supported its position that the visit to the eye doctor was treatment for MS. In other words, was the work of its clinical consultants sufficient evidence? One was a "Disability Benefits Specialist" who did not have any medical degree. The other was a nurse with a BSN degree. Neither was a medical doctor, let alone an MS specialist. Unum argued that their qualifications were good enough to fulfill the requirement for of a full and fair review.


In the ERISA card game, it played these two cards to trump the opinion of a treating medical doctor.


The court said, “Although Unum was not required to ‘automatically accord special weight to the opinions of [Plaintiff's] physician,’ Unum also ‘may not arbitrarily refuse to credit [Plaintiff's] reliable evidence, including the opinions of treating physicians,’ Schexnayder, 600 F.3d at 469, as it appeared to do here.” Bayer v. Unum Life Ins. Co. of Am., at *18.


Ms. Bayer played her cards well. She won. There is often more to card games than meets the eye. ERISA is like that. Common sense does not always carry the day. Having a partner who knows “when to hold ‘em and when to fold ‘em” is important to increasing your odds of success. Hire experienced long term disability lawyers and ERISA attorneys for long term disability claims.