Can administrator of the insurance plan abuse its discretion in denying long term disabilities benefits?

Its all depend upon the disability attorneys who interpret the language of the insurance policy. Can plan administrator adhere to his denial decision without any supportive evidence? Can he allow to neglect evidence in support of participant claim? Answer to all this questions you will find in this article.

Mr. Dale W. Gordon brought the lawsuit against Life Insurance Company of North America (LINA) in U.S.District Court, Division Minnesota. Court pronounced final judgment on March 18, 2009.

Let’s see how the Gordon’s disability attorneys found the clues from provision of the policy and how they interpreted the Gordon’s medical reports.

Gordon joined Northwest Airlines on 1998 at the age of 49 years.  His main problem started when he felt pain in his left knee in end of 2002. His orthopedist, Dr. Joseph T. Teynor advised to take MRI. In MRI report, it showed a tear in the meniscus and degenerative changes. In next visit Teynor drew fuid off of Gordon’s knee and injected with a corticosteroid. He described Gordon as majorly symptomatic.

In November 2002, Teynor did arthroscopic surgery on Gordon’s knee. In follow up visit Gordon’s range of motion was improved, but he was still under a significant pain after a long walk. Teynor referred an ultrasound to check any possibility of deep vein thrombosis (DVT). But it showed no signs of DVT.

On November, 2002, Teynor injected Gordon’s knee with corticosteroid for treatment of inflammation. As per the nurse opinion Gordon could join the office after a week with some restrictions. Teynor stated that Gordon had incapacitated pain in left knee. X-ray showed serious joint damage and Teynor advised for knee replacement surgery. And he also advised to take disability leave.

Gordon underwent knee replacement surgery on 7 April, 2003. But within a week he was admitted due to pain in his left leg. Ultrasound report showed no evidence of DVT and also gave a blood thinning medication as a precaution.

Gordon made a complaint of swelling pain and decreased range of motion in knee to Canfield. This time ultrasound revealed that Gordon did in fact have DVT. After that he gave an injection of Lovenox to cure DVT.

Again in May 21, 2003, Gordon was admitted in Emergency room due to pain in left leg. An ultrasound showed that DVT was not cured perfectly and it gotten worse than before. This time Doctor advised to avoid prolonged walking and prolonged sitting. Next ultrasound was conducted on June 5, 2003. It showed that DVT still remained in two arteries.

On June 9 Teynor stated that Gordon was needed to be disabled from work for at least few more months. After considering all the fact and medical reports LINA approved Gordon’s claim for disability benefits. In follow up visit with Teynor, he still opined that Gordon‘s physical condition was not improved.

In August 2003, the clinical report “profound” swelling in his leg and his DVT was stable. The clinic referred him to a vascular surgeon for consultation of the DVT. On September 2003, Teynor reported that Gordon’s knee did not move well and has some intolerable pain in knee in spite of knee replacement surgery.

In October 2003, Gordon went to his family clinic for ultrasound of his leg and CT scan of his chest. Report showed no evidence of progressive DVT. He also went through a gastric bypass surgery in January 2004. On July 30, 2004, canfield advised to conduct an electromyogram test that measured electrical activity in the muscles and could revealed nerve damage if any.

First Physical Ability Assessment (PAA) form

In first PAA form Canfield submitted that Gordon could do several activities continuously like sitting, reading, fine manipulation etc. In that form he checked only the boxes for “supported by objective finding” but he neglected to check in the boxes that would indicate that what was supported by objective findings.

He also mentioned in PAA that Gordon could climb on ladders and stairs, balance and stood occasionally. He also wrote that Gordon was unable to do activities of kneeling, crouching and crawling. He commented in the PAA that his left knee arthroplasty with weakness/stiffness limits physical functions.

In August 2004, Gordon mentioned in claim form that he could not work at his own or any occupation because he was unable to have full range if motion in left knee. He also stated that he frequently took hydrocodone, a narcotic pain killer whenever required.

Second PAA form

In mid August 2004, canfield completed a second PAA for LINA. This was far clear from previous PAA. With respect to climbing stairs and ladders and balancing activities, he mentioned that Gordon could do those activities continuously. Again it was not very clear that Canfield intended to say about Gordon’s ability to stand, walk, climb, balance, stood, kneel, crouch or crawl.

LINA’s help to Gordon for find work

In October 2004, LINA approached Mr. Christine Kambi and Mrs. Sandra Sehimizzi to help Gordon in searching for work. Both of them in opined that Gordon has sedentary restrictions and he has no transferable sills that transfer to the other labour market that match his physical limitations.

In November and December 2004, Gordon worked with Kampi and Weld, a job placement consultant. They tried in field of insurance, computer, quality assurance, claims administration etc. In late January 2005, LINA arranged interviews for the post of sales but interviewers said that Gordon would be unsuitable for even the easiest post of phone sales as he was much unpolished.

Functional capacity evolution (FCE)

LINA had arranged a FCE for Gordon. In FCE, evaluator found that Gordon was unable to work as an aircraft mechanic. In order to return to work, Gordon would need to sit for 66 % of the day and have the assistance of a co-worker mechanical device to lift more than 40 lbs. After the FCE, Mary Ann Caesar completed in PAA that Gordon could sit frequently but stand and walk occasionally.

After reviewing the FCE, Kambi concluded that Gordon had a limited communication skill, unpolished, lacked sales experience and no aptitude for customer service.

Report of Social Security Administrator (SSA)

In March 2005, SSA decided that Gordon was entitled to SSDI benefits. They also found that Gordon retained a residual functional capacity for unskilled sedentary work. Considering his age, education, experience and residual functional capacity, Gordon could not perform work that existed in labour market. Therefore they held that Gordon had been disabled since November 1, 2003.

Till December 2005, LINA paid benefits to Gordon. But after that LINA’s claim manager Mr. Dan Hissong wrote to Gordon that LINA was again going to review his claim because any occupation period would start soon.

Third PAA form

On May 26, 2006, Canfield submitted third PAA to LINA along with the statement of disability. He also wrote that due to continuous pain in left knee, he has limited standing, walking, bending, kneeling. Gordon could sit, stand, and walk only occasionally. He also submitted that he has limitations in respect of lifting of weight, climbing of ladders, working around machinery. After receiving this PAA, Hissong asked Vincent Engel to conduct a transferable skill analysis (TSA). Based upon the limitations mentioned in PAA, Engel concluded TSA and reported that he identified six jobs that Gordon could perform. Out of six jobs, four were classified as sedentary jobs and two were classified as light level jobs.     

Based upon the TSA and third PAA by Canfield, LINA decided that Gordon was not disabled under the any occupation definition and they correctly denied his claim and stopped paying him benefits from June 1, 2006.

Gordon retained disability attorney Mr. Diane Odeen, who argued that Gordon could not perform any of the six jobs which were suggested in TSA because of restrictions and limitations mentioned in all three PAA submitted by Canfield. He also submitted the medical reports related to Gordon’s SSDI award and his classification by Minnesota as a disable person.

LINA approached a medical director Dr. R. Norton Hall who reviewed Gordon’s file in November 2006. Hall mentioned in his report that Canfield reports and medical documentations showed that Gordon could perform a sedentary to light jobs. He also stated that clinical reports and medical records failed to prove Gordon’s status of no work. Again one more time, on the basis on Hall’s opinion LINA denied Gordon’s appeal.

Two additional evaluation reports

Two additional evolutions were conducted before again challenging the LINA’s denial decision. As per the first evolution conducted by physical therapist, Gordon could not climb, kneel and crawl at all. She also mentioned that his ability to lift weight was limited. She wrote in assessment portion of the form that Gordon demonstrated decreased range of motion in left knee and strength limiting ability to squat and ambulate up/down stairs without use of railing.

Second evaluation was conducted in February 2007 by independent medical examination (IME) by an orthopedic surgeon. Surgeon reviewed four of the five PAA forms and other medical reports. He concluded that Gordon had a total disability based on five conditions.

1)his knees 2) his gastric-bypass surgery 3) his pinched ulnar nerve. 4) his possibly arthritic right ankle 5) his recurrent DVT in his left leg.

In March 2007, Odeen requested to LINA to reconsider its denial decision in light of the IME and other medical reports. She also enclosed a letter from Gordon in which he wrote about his incapacity to sit on desk for more than one hour, Odeen enclosed a copy of IME and therapist report which were conducted recently and evidence that Minnesota had classified Gordon as disabled person.

After the receipt of request, LINA appointed a medical director who submitted that none of the medical reports support that Gordon has continued physical restriction. On the same day LINA informed Gordon’s disability attorney that we again upheld our denial decision on the basis of medical director’s finding which state that although Gordon has knee pain but sedentary jobs identified by them would not allow to stand up and change position to get comfortable. There was no evidence that would support his impairment to perform any occupation at the sedentary level.

After producing all the medical reports whether Court will grant relief to the Gordon? Now everybody’s eyes on the Gordon’s disability attorneys, how they will get the success to reinstate Gordon’s benefits back. We will discuss all the legal proceeding in our next article.