Form Over Substance: District Court Decision Highlights the Importance of Attending Physician Statements in Long-Term Disability Claims Governed by ERISA

Kay v. Hartford Life and Accident Insurance Company, No. 19-CV-209-MMA (AHG), 2021 WL 1378742 (S.D. Cal. Apr. 12, 2021) involves a lawsuit for ERISA-governed long-term disability (“LTD”) benefits brought by a former registered nurse, Anne Kay, who claimed disability due to disc degeneration, disc bulges, and chronic pain syndrome. Hartford Life and Accident Insurance Company (“Hartford”) approved and paid LTD benefits before it later determined that she no longer met the Policy definition of “Disabled.” After submitting an unsuccessful appeal to Hartford, Kay filed suit against Hartford alleging claims under ERISA § 502(a)(1)(B) and § 502(a)(3). After conducting a bench trial on the “administrative record” under a de novo standard of review, the court determined that Kay did not meet her burden of proving her disability by the preponderance of the evidence. What is noteworthy about this decision is the significance the court put on the absence of certain information in Kay’s treating doctor’s Attending Physician Statement (“APS”). The court also overly emphasized the ability to perform certain activities, such as lifting/carrying/pushing/pulling, over other factors that inform whether one can perform each of the material duties of a registered nurse.

The Hartford Policy contains the following definition of “Disabled:”

“You are prevented from performing one or more of the Essential Duties of…Your Occupation.”

“Essential Duty means a duty that 1) is substantial, not incidental; 2) is fundamental or inherent to the occupation; and 3) cannot be reasonably omitted or changed.”

Your Occupation is defined as “Your Occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job You are performing for a specific employer or at a specific location.”

While Kay’s LTD claim was pending, Hartford asked Kay’s treating orthopedic surgeon, Dr. Larry Dodge, to clarify what prevented Kay from returning to alternate work. Dr. Dodge reiterated his opinion that Kay was disabled “but did not explain the basis for his conclusion.” Hartford sought an “independent” medical opinion from Dr. Vicki Kalen, who allegedly attempted unsuccessfully to reach Dr. Dodge on three occasions. Dr. Kalen opined that Kay did not have any restrictions or limitations supported by clinical findings of impairment. This was despite an MRI showing some disc bulges at L2-4 and an X-ray showing degenerative endplate changes at these levels. Dr. Kalen claimed that these findings did not correlate with the magnitude of Kay’s symptoms or her reduced lumbar ROM due to her perceived pain. Dr. Kalen sent her conclusions to Dr. Dodge for comment, but he did not respond. Hartford then terminated Kay’s claim.

After Kay appealed Hartford’s decision, Hartford obtained an occupational analysis of Kay’s occupation. It determined that it is a combination of Training Representative and General Duty Nurse, for which the essential duties are in the range of light to medium level work, with occasional lifting/carrying, pushing or pulling up to 50 pounds. Hartford then obtained a second “independent” review of Kay’s claim from Dr. Kevin Kohan. He reviewed Kay’s record and concluded that she could work full time and lift/carry/push/pull up to 25 lb. Hartford sought clarification from him regarding the “25 lb.” and he stated Kay could reasonably tolerate 25 pounds and that Kay is capable of “DOL medium duty level, with lifting up to 50 lbs. occasionally.” Based on this, Hartford upheld its decision to terminate Kay’s benefits.

In deciding Kay’s claims, the court first disposed of Kay’s § 502(a)(3) claim, which she abandoned at trial. The court explained that even if Kay did not abandon this claim, she would not be entitled to judgment. “It is well-settled that section 502(a)(3) is merely a safety net to remedy injuries where section 502 does not elsewhere provide an adequate remedy.” See, e.g., Moyle v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 959 (9th Cir. 2016) (quoting Varity Corp. v. Howe, 516 U.S. 489, 512 (1996)). Here, Kay “pleads an injury that section 502(a)(1)(B) adequately and clearly remedies. Thus, she cannot also seek recovery under section 502(a)(3).” The court dismissed this claim with prejudice.

With respect to the claim for benefits under § 502(a)(1)(B), the court found that Kay failed to demonstrate she is disabled under the terms of the policy. Kay needed to “prove by a preponderance of the evidence that her medical diagnoses prevent her from performing an essential duty of her occupation as it is recognized in the general workplace after June 30, 2016.”

The court focused on the Department of Labor definition of “light” and “medium” work, the latter of which requiring “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 CFR § 404.1567(b). Thus, the court explained, Kay must demonstrate by a preponderance of the evidence she is unable to perform one of those activities. The court seemingly did not pay any attention to the other Essential Duties of Kay’s own occupation.

The court concluded that Kay’s treating physicians’ notes, the APSs, and Dr. Dodge’s letter did not show by a preponderance of the evidence that Kay cannot lift, carry, push, or pull up to 50 pounds. The APSs completed by Dr. Dodge did not explain how Kay’s condition limits her and he left blank the sections on the forms addressing her lifting and carrying ability. In this letter, Dr. Dodge opined that based on Kay’s specific job’s “vigorous travel schedule,” “prolonged or constant standing,” and “carrying of objects which at times could be quite heavy,” it was impossible for Kay to continue in her occupation. The court accepted these statements as true but noted that the test for disability is not based on the claimant’s specific job, but on how the occupation is performed in the general workforce. Because Kay did not establish by a preponderance of the evidence that she is unable to lift, carry, push, or pull up to 50 pounds, the court concluded Kay did not meet her burden of demonstrating that she is unable to perform an essential duty of her occupation.

By focusing simply on the ability to lift/carry/push/pull, the court seemed to misinterpret the definition of disability which requires that a claimant be unable to perform one or more of the essential duties of their occupation. The court did not analyze any of the other essential duties of Kay’s occupation, instead focusing myopically on the DOL definition of medium work. This opinion does stress the importance of APS forms being completed as thoroughly as possible. Many treating physicians will skip over certain sections of these forms, believing a statement that a claimant is disabled is sufficient. To the contrary, when weighed against an insurance companies’ allegedly independent review stating that a claimant has no restrictions, it is not enough for a treating doctor to make a conclusory statement about their patients’ ability to work.

If Hartford has denied your claim for long-term disability benefits, it is important that you consult with an experienced ERISA attorney before you attempt to appeal on your own. Roberts Disability Law, P.C. has helped many clients with denied Hartford claims obtain their benefits. If Hartford has terminated your claim for benefits, contact us for a complimentary case evaluation.