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10th Cir. – Published – Own Occ Review Abuse of Discretion

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  • 10th Cir. – Published – Own Occ Review Abuse of Discretion

    Here’s a new case out of the Tenth Circuit, published, entitled Carl Van Steen v. Life Insurance Company of North America. Mr. Van Steen suffered a traumatic brain injury during an assault while he was walking his dog. Because of that, he pursued his long term disability benefits with LINA. LINA argues:

    LINA argues that its April 2013 termination was well-supported because it “based its decision to end the payment of residual LTD benefits to Van Steen on updated medical evidence and the review of that evidence by on-staff Nurse Case Managers, an on-staff physician Board Certified in Occupational Medicine (Dr. Vatt), and an independent Board Certified Clinical Neuropsychologist (Dr. Attfield).” (Appellant’s Br. at 28.) Yet, none of these reviewers actually determined from the medical evidence that Mr. Van Steen was capable of performing all of his material job duties on a full-time basis. For example, Dr. Attfield opined that Mr. Van Steen’s symptoms were not severe enough “to preclude occupational function,” so “a structured, graduated schedule of work reintroduction would appear prudent.” (Appellant’s App. at 608, 1280-81.) This conclusion is hardly revelatory. Mr. Van Steen was already working part-time as part of Dr. Reinhard’s graduated schedule of work reintroduction in which he would be periodically reevaluated to see if he could handle working more hours.

    LINA further contends that its denials of Mr. Van Steen’s two appeals were also reasonable based on “review of the medical evidence by two more independent Board Certified Clinical Neuropsychologists (Dr. Kolbell and Dr. Fiano) and an independent Board Certified Otolaryngologist (Dr. Grossman).” (Appellant’s Br. at 28.) Yet, none of these reviewers remedy LINA’s evidentiary deficiency. Dr. Kristin Fiano, an outside neuropsychologist, concluded that Mr. Van Steen’s “combination of psychological and cognitive symptoms would not be considered to be at a level that would entirely preclude continuous gainful employment.” (Appellant’s App. at 560, 564, 932-44.) Mr. Van Steen’s part-time work status already made it obvious that his symptoms did not entirely
    preclude him from engaging in “continuous gainful employment.” Like LINA’s other evidence, Dr. Fiano’s analysis provides no insight into Mr. Van Steen’s ability to perform all of his material job duties on a full-time basis.
    However, the court disagrees:

    Ultimately, LINA’s experts—whether medical or vocational—failed to evaluate Mr. Van Steen’s ability to perform his material job duties on full-time basis. LINA tries to dismiss this shortfall as “semantics,” claiming that, in concluding that Mr. Van Steen was capable of working in his occupation, its experts were impliedly referring to full-time work. (Appellant’s Response and Reply Br. at 29-32.) The plain language of the Plan cannot be dismissed so easily. The Plan’s residual disability clause requires a determination as to whether a claimant is able to perform each and every material duty of his job on a full-time basis. Here, where Mr. Van Steen is already working part-time, clear support and analysis are required to show that his restrictions and limitations do not prevent him from performing his material job duties full-time. This distinction is especially relevant for Mr. Van Steen’s case, as the record contains extensive descriptions of his cognitive fatigue, even on a part-time schedule. LINA would have us believe that Mr. Van Steen has the cognitive stamina to sustain an eight-hour work day for five days a week, yet offers no evidence to support that conclusion.

    The physicians and experts who did analyze the distinction between a part-time and full-time work schedule all concluded that Mr. Van Steen is not capable of working an eight-hour day with his current limitations. Doctors Reinhard and Berry both wrote letters to LINA in October 2013 opining that Mr. Van Steen could not manage a full-time return to work and should have his benefits reinstated. Similarly, Dr. Zierk—a psychologist who conducted a psychological and vocational evaluation of Mr. Van Steen as part of the first appeal—concluded that “[b]ased on Mr. Van Steen’s diminished cognitive functioning, it is recognized he is no longer capable of performing the higher order cognitive functions associated with his customary occupation on a full-time, uninterrupted basis and without the provision of considerable accommodations.” (Appellant’s App. at 1056.)

    LINA has discretion in interpreting and administering the Plan, but this discretion does not stretch so far as to ignore the language of the Plan itself. In order to be “wellreasoned,” LINA’s decision to terminate benefits must be based on medical evidence that Mr. Van Steen is capable of performing each and every material duty of his occupation as a Systems Analyst on a full-time basis. LINA has provided no such evidence. For this reason, we echo the district court in concluding that LINA’s decision was “unsupported by substantial evidence,” and is, therefore, arbitrary and capricious. (Id. at 233-35.)
    The Tenth Circuit concludes that it cannot overturn the District Court’s denial of attorney’s fees, but upholds the District Court’s finding of an arbitrary and capricious denial. The opinion is attached below.
    Attached Files
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