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"Paper Review" v. Right to Examine: 6th Cir.

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  • "Paper Review" v. Right to Examine: 6th Cir.

    In a recent case from the Sixth Circuit, the court weighs the opinions of the Plaintiff's doctors with those of the reviewing physicians. By way of background, the Plaintiff was wheelchair bound when he began working at Maxim Crane Works where he was covered under the Defendant's insurance policy. While employed and covered under the policy, the Plaintiff broke his right femur and was prevented from working by severe leg pain. While the Plaintiff's doctors contend that he is unable to return to work, the reviewing physician, who did not conduct an in-person examination, believes that the Plaintiff is "merely lying."

    American argues that Wagner’s evidence has two problems. First, it contends that Wagner’s doctors gave different opinions at different times. On one form that Dr. Sullivan sent DRMS, for example, he remarked that Wagner might be capable of “light clerical work only if able to take frequent breaks[.]” But Dr. Sullivan also said (among other things) that Wagner’s condition was “[u]nchanged” and that he could perform “0” hours of sedentary work. Dr. Sullivan never opined that Wagner was able to return to work. The neurologist did give such an opinion, but later said that his opinion was in error. Second, American suggests that Wagner’s doctors failed to rely on “objective medical evidence,” i.e., evidence other than Wagner’s self reported symptoms. Although the absence of that evidence has sometimes justified the denial of disability benefits, in those cases the insurance policies expressly required it. See, e.g., Boone v. Liberty Life Assur. Co. of Bos., 161 F. App’x 469, 473 (6th Cir. 2005). Nothing in American’s policy does.

    American also contends that another doctor’s opinion outweighs the above opinions. DRMS’s medical reviewer, Dr. Russell, examined Wagner’s file during the appeals process. He concluded based on anecdotal evidence—namely video surveillance and Wagner’s self-reported activities—that Wagner could work and that Wagner was merely lying. That type of credibility opinion is entitled to little weight when based on a paper review—especially when the insurer can order an in-person examination. See Judge v. Metro. Life Ins. Co., 710 F.3d 651, 663 (6th Cir. 2013). Here, Dr. Russell did a paper review even though the policy gave American “the right to have [Wagner] examined” by an independent doctor. Moreover, the surveillance video captured Wagner for 20 minutes over a two-hour period, and only for a few minutes at a time. It is weak evidence of anything beyond those minutes, given that (according to Wagner and his doctors) his pain would come and go. And Wagner’s ability to live alone and to engage in sporadic activities says little about his ability to go to work. Cf. Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 648 (7th Cir. 2007). He need not be bedridden to receive benefits. Thus the opinions of Wagner’s doctors deserve more weight. As shown above, they say that he was still disabled when his benefits ended.

    That leaves the question of remedy. American must pay Wagner benefits “as long as Disability continues provided that proof of continued Disability is submitted to [American] upon request and [he] is under the regular attendance of a Physician.” That is true even beyond month 36—when the “total disability” standard changes—unless American affirmatively and correctly determined that Wagner is no longer disabled. We have no such determination here, and Wagner has otherwise met the policy conditions for the continuation of benefits.

    American argues that Wagner should receive benefits only for months 35 and 36, since (it says) Wagner might be ineligible for benefits under the stricter “total disability” standard that applies beyond then. Specifically, American contends that DRMS should decide in the first instance whether Wagner has met that standard, i.e., whether he “cannot perform . . . any gainful occupation” for which he is reasonably suited. DRMS could have made that decision at month 36. But it instead chose to forgo that opportunity when it (wrongly) decided that Wagner was no longer entitled to benefits at month 34. Moreover, the usual remedy in cases like this is to reinstate benefits retroactively, and there is no reason to depart from that practice here. See Glenn v. MetLife, 461 F.3d 660, 674-75 & n.5 (6th Cir. 2006). Whatever American and DRMS might decide about Wagner’s eligibility in the future, therefore, American must pay him the three years of benefits that he has missed.
    Ultimately, the court reversed the district court's judgement and remanded the case for entry of judgement in favor of the Plaintiff. The opinion is attached below.
    Attached Files