ERISA Disability Claims & Outliers
Outliers within evidence or a data set may not mean much in many areas of the law. However, with ERISA, an outlier may be all that is needed for insurers such as Hartford to deny a claim. If a physician does not note or consider that a piece of evidence is an outlier, a hasty judgment can result in a termination of benefits for a patient as it did in a recent case.
Facts of the Case
Outliers are all too familiar to Robert Shupe.
He was an Executive Sous Chef for the Hyatt Corporation.
He was only 37 years old when he became disabled. He suffered from chronic osteomyelitis, degenerative disc disease, and spinal stenosis.
Fortunately, he was covered by a long-term disability benefit. When he was not able to work, he filed a claim.
His claim was paid initially and continued to be paid over the next five years while Robert underwent spinal surgeries. Unfortunately, the surgeries were not successful. He was left with severe pain. He had to take narcotic pain medications such as OxyContin, Oxycodone, Morphine, Percocet, and even a Fentanyl patch for the pain. He was in a catch 22 of sorts – the pain was lessened by the medication, but it impaired his ability to work.
Hartford, the long-term disability insurance company, apparently believed that this claim was going to be long-term and tried to buy it out in 2009. It was not enough. Robert did not even respond to it.
In 2013, Hartford wanted to determine whether Robert still was disabled. It requested that he undergo a functional capacity evaluation – an FCE. The FCE showed that Robert still could not work full-time and that his restrictions were permanent and not likely to improve.
In 2015, Hartford conducted surveillance on Robert. It did not show anything inconsistent with Robert’s condition. Robert had started treatment with a new doctor.
Hartford asked the doctor whether Robert remained disabled. She would need an updated FCE before she could give an opinion. Hartford asked Alyssa Wolf to perform the FCE. For the first time since 2004, she found that Robert could work an occupation full-time. Hartford quickly sent the FCE over to the new doctor with a form asking that she either agree or disagree with the FCE. The doctor checked the "I agree" box and sent it back to Hartford.
The Hartford terminated Robert’s benefits.
Robert appealed the decision. He submitted a vocational evaluation and two FCE's along with an independent medical evaluation, all of which confirmed his disability from full-time employment.
Hartford rejected his submissions, relying on the FCE from Wolf.
After the decision, Robert obtained a letter from his new physician wherein she reversed her previous opinion agreeing with the Wolf FCE. The new opinion was based on the entirety of the evidence including a new CT scan and an EMG report. The Hartford did not consider the additional evidence because it had closed its claim record.
The District Court ruled against Robert. He appealed. Shupe v. Hartford Life & Accident Ins. Co., No. 19-1854, __F.4th__, 2021 WL 5774728 (4th Cir. Dec. 7, 2021).
The court noted that the overwhelming medical evidence consistently reflected that Robert could not work full-time.
The outlier, the Wolf FCE, and the new physician’s original agreement were inadequate to overcome that evidence. The court agreed that Hartford did not have to review the late-submitted evidence.