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The "Arbitrary and Capricious" Standard and clarifying information: D. Colo

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  • The "Arbitrary and Capricious" Standard and clarifying information: D. Colo

    In this case, the court tackles the arbitrary and capricious standard as it relates to a Plaintiff who was denied STD benefits after being injured on the job. The court most notably seems to rely on the Plaintiff's assertion that the Defendant failed to perform an in-person medical examination when recommending the decision be reversed and remanded.

    However, the Court must bear in mind that Mark sought disability benefits and pursued her appeal without representation. The AR clearly indicates that she was trying her best to cooperate with Aetna and provide the requested documentation. In truth, Dr. Chang dropped the ball on his end, a fact that Aetna knew or should have known. “An ERISA fiduciary presented with a claim that a little more evidence may prove valid should seek to get to the truth of the matter.” Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 808 (10th Cir. 2004). Aetna had a mechanism to obtain that additional evidence: an independent medical exam. While Defendants are technically correct that the Plan does not mandate an in-person medical examination (AR 24), Aetna could not “shut [its] eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary’s theory of entitlement and when they have little or no evidence in the record to refute that theory.” Id.at 807. Given the obvious deficiencies of Dr. Andrew’s record review concerning Mark’s objective conditions, coupled with Dr. Chang’s inexplicable inability to gather clinical data, an independent medical exam was warranted. See Mason v. Reliance Standard Life Ins. Co., No. 14-CV-01415-MSK-NYW, 2015 WL 5719648 (D. Colo. Sept. 30, 2015) (unpublished). Aetna’s failure to conduct one, under these circumstances, was arbitrary and capricious.
    The court also touches upon the objective tests that the Defendant used in evaluating the Plaintiff's appeal, finding that they again failed to fully evaluate the claim:

    Moreover, while the Appeals Determination references the functional movement screens, it fails to address how these objective test results affected Mark’s ability to perform her job duties. For instance, the August 8, 2018 functional movement screen indicates that Mark had an “extreme” lack of balance, lacked core strength, and had stability issues. (AR 273-74.) The Court can easily see these conditions impairing Mark’s ability to “move and lift 55 pounds,” consistently bend/twist at the waist and knees, and operate, clean, and repair “binding and other auxiliary equipment,” all of which are indisputably part of her job responsibilities. However, Aetna failed to analyze this information. Instead, Defendants now argue that the functional movement screens offer no context for the resulting scores or explain how the test results implicate Mark’s ability to perform her job duties. If Aetna had trouble interpreting the screens of placing them in context, it could and should have asked for additional or clarifying information. See Gaither, 394 F.3d at 807 (“‘[I]f the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it.’” (quoting Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003) (further citations omitted) (emphasis in original)). Aetna failed to do so, and thus acted arbitrarily and capriciously.
    As such, the court recommended the decision be reversed and remanded. The opinion is attached below.
    Attached Files

  • #2
    Statement that no “significant objective findings” existed without additional explanation is an abuse of discretion – D. Co.

    Attached is a case out of the District of Colorado, Mark v. Aetna Life Insurance Company, et. al. The case is before the court on Aetna’s objection to the magistrate judge’s report and recommendation. Plaintiff seeks short term disability benefits under an ERISA governed plan. As part of meeting the definition of disability, plaintiff’s disability must be “substantiated by significant objective findings which are defined as signs which are noted on a test or medical exam and which are considered significant anatomical, physiological or psychological abnormalities which can be observed apart from the individual’s symptoms.” Defendant denied plaintiff’s claim based on that definition, alleging that there were no significant objective findings indicating disability. The court found that such a blanket statement without a corresponding explanation constituted an abuse of discretion.

    Aetna discontinued benefits because it believed there were “no significant objective findings to substantiate that a functional impairment exist[ed] that would render [Mark] unable to perform [her] heavy job duties.” (R. at 392.) This refers to Plan language requiring “significant objective findings which are defined as signs which are noted on a test or medical exam and which are considered significant anatomical, physiological or psychological abnormalities which can be observed apart from the individual’s symptoms.” (R. at 6.)

    The Appeal Decision’s rationale—lack of significant objective findings—is a non sequitur compared to the medical evidence it summarizes. As described in Part II, above, Aetna had before it evidence of (among other things): left knee swelling; reduced range of motion in the knees (95%); antalgic gait (i.e., limping); increased, rigid arch in the right foot; “multilevel thoracic mechanical dysfunction”; “tight hamstring, calf, right posterior tibialis and thoracolumbar paravertebrals”; limited range of motion in the neck; and hypomobility at certain areas of the spine. (R. at 391–92.) All of these appear to be “anatomical[] [or] physiological . . . abnormalities which can be observed apart from the individual’s symptoms.” The Appeal Decision nowhere claims otherwise.

    Aetna’s response brief dismisses all of these medical observations as “‘symptoms’ that were expressly insufficient alone to meet the definition of disabled under the [P]lan.” (ECF No. 33 at 13 (footnote omitted).) But the Appeal Decision does not characterize any of these observations as “symptoms.” See Scruggs, 585 F.3d at 1362 (“When reviewing a plan administrator’s decision to deny benefits, [the Court] consider[s] only the rationale asserted by the plan administrator in the administrative record . . . .” (internal quotation marks omitted)). Moreover, Aetna nowhere explains, in the Appeal Decision or otherwise, why these observations do not reveal “anatomical[] [or] physiological . . . abnormalities which can be observed apart from the individual’s symptoms.” (R. at 6.)

    To the extent Aetna means to say that a claimant could fake these conditions, the argument still fails. Absent outlandish scenarios (e.g., purposeful re-injury before an exam), conditions such as swelling and muscle tightness cannot be faked. Moreover, the Plan does not define “significant objective findings” with respect to whether a claimant can fake a condition. The Plan says only that there must be evidence of abnormalities which can be observed apart from the claimant’s symptoms. So even a condition that might be faked, such as a limp, may not be disregarded solely on that basis.

    On three occasions the Appeal Decision refers to observations about limited range of motion but discounts these observations for lack of “measured findings.” (R. at 392.) This appears to imply that Aetna cannot determine, without numerical measurements, whether an objective finding is a “significant objective finding[]” (emphasis added). But this only emphasizes a more systemic problem in the Appeal Decision. To properly discount the observations contained in the medical record, Aetna needs to conclude as to each observation that it is (1) not “objective,” or (2) objective but not “significant.” Again, Aetna nowhere declares any of the above-recited observations to be non-objective. The Court is forced to presume, then, that Aetna concluded the observations were not “significant”—but Aetna never says as much, with one exception. That exception is a supposed lack of “significant measured deficits and range of motion,” apparently referring to the 95% range-of-motion measurement on two occasions. (See R. at 391–92.) Assuming for present purposes that 95% range of motion is not a “significant anatomical[] [or] physiological . . . abnormalit[y]” (R. at 6), the rest of the Appeal Decision comprises only an announcement, not an explanation. Aetna invokes the “significant objective findings” requirement and then says that none exist despite having just summarized a substantial record of objective observations, none of which are obviously insignificant.

    Aetna also overlooks, or fails to see the probative value of, objective observations found in three “functional movement screens” administered on Mark by a physical therapist. (See R. at 273–74, 278, 376.) These evaluations tested abilities such as “deep squat,” “hurdle step,” “inline lunge,” “shoulder mobility,” and similar gross motor functions. Each evaluation resulted in a numerical score. The Appeal Decision acknowledges that two of these functional movement screens took place (one on July 20, 2016, and another on September 26, 2016) resulting in scores of 14 and 11, respectively. (R. at 392 (referring to R. at 278 & 376).)1 But that is the extent of the Appeal Decision’s recognition of the functional movement screens. Notably, the Appeal Decision says nothing about the physical therapist’s narrative description of Mark’s performance during the September 26, 2016 evaluation. That narrative twice describes “loss of balance,” and also states that Mark was “unable to touch [her] knee to [the] ground” in a lunging exercise. (R. at 376.) The Appeal Decision also says nothing about a third functional movement screen that took place on August 8, 2016. (R. at 273–74.) In that evaluation, the physical therapist’s narrative notes “lack of balance,” “extreme lack of balance,” “lack of stability,” and difficulty touching the knee to the ground during the lunge test. (R. at 274.)

    In short, Aetna’s final decision in Mark’s case displays two instances of arbitrary and capricious analysis. First, Aetna summarized a substantial record of what appear to be objective findings and then announced that no “significant objective findings” existed, without explanation as to why the findings just summarized were neither objective nor significant. Cf. Zuke v. Am. Airlines, Inc., 644 F. App’x 649, 654 (6th Cir. 2016) (“when a plan [decision] categorically states that there is no objective evidence 1 The significance of these scores is not explained. Case 1:17-cv-00441-WJM-NRN Document 48 Filed 08/24/18 USDC Colorado Page 10 of 13 11 when in fact there is such evidence—favorable or not—the plan acts arbitrarily and capriciously”). Second, Aetna overlooked potentially important additional objective findings available in the record, namely, the functional movement screen narratives. Lamont v. Connecticut Gen. Life Ins. Co., 215 F. Supp. 3d 1070, 1080 (D. Colo. 2016) (“in the substantial evidence analysis, the denominator (all available evidence) is as important as the numerator (the evidence relied upon to reach a decision)”).
    Attached Files

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