You already know that opinions by independent medical reviewers play a big role in the decision to grant or deny benefits.

The reasons why the independent medical reviewer came to the conclusions made are as important as the conclusion itself.

Don’t rely on the mere conclusions by the independent reviewer and inform your independent medical reviewer that the reasons for the conclusions are as important as the conclusions themselves.

That is because…your denial letter is only as good as the analysis/reasons stated in the IME report.

A case issued last week highlights the point: Westfall v. Liberty Life Assurance Company, __ F. Supp. 3d __ (N.D. Ohio March 1, 2018)(“Because Defendant’s denial letter relies on analysis [the independent medical reviewer] provided as to why his opinions controlled over the opinions of [two treating physicians], the Court will treat [the independent reviewer’s] analysis as Defendant’s purported reasons for relying on the review, rather than the opinions of Plaintiff’s treating physicians.”)

FACTS. In April 2015 Westfall’s son died at her place of work (Wal-Mart Distribution Center). Westfall then sought ERISA-governed long term disability benefits, stating she could not “bring herself to go back to that [work] site[.]” Liberty Life extended disability benefits from November 2, 2015-January 14, 2016. The plan vested discretion with Liberty Life. Liberty Life later discontinued benefits based upon an independent medical review that concluded that, while Westfall suffered from major depression, her records did not document “frequent and severe symptoms or corroborating mental status findings to support a finding of ongoing impairment.”  This lawsuit followed.

ISSUE:  Whether Liberty Life abused its discretion in discontinuing benefits?

DISTRICT COURT HELD: YES

  1. “[T[he Court may not overturn a plan administrator’s decision ‘if there is a reasonable explanation for the administrator’s decision denying benefits.””  Op. at 11.
  2. “Reliance on other physicians is reasonable so long as the administrator does not totally ignore the treating physician’s opinions.” Op. at 12.
  3. “Because Defendant’s denial letter relies on analysis [the independent medical reviewer] provided as to why his opinions controlled over the opinions of [two treating physicians], the Court will treat [the independent reviewer’s] analysis as Defendant’s purported reasons for relying on the review, rather than the opinions of Plaintiff’s treating physicians.”  Op. at 12.
  4. The independent medical review relied on for the denial failed to provide “sufficient reasons to show that Defendant’s analysis should have been preferred over the analyses of [two treating physicians].” Op. at 12.
  5. “‘[C]herry-picking symptoms…and then reverse engineering a diagnosis…is not the hallmark of a reasoned explanation.’”  Op. at 13.
  6. The independent medical reviewer ignored one treating physician’s express finding of “emotional lability”—which was not an accidental omission.  Op. at 13.
  7.  “Although evidence exists to support the conclusion that employment factors (i.e. working in the same place her son died) are central to Plaintiff’s impairment, the reasoning process Defendant used to deny Plaintiff benefits was flawed, as it ignored the emotional lability finding.” Op. at 14.
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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.