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7th Cir. – Plaintiff Friendly NM Limitation/Radiculopathy Opinion

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  • 7th Cir. – Plaintiff Friendly NM Limitation/Radiculopathy Opinion

    Here’s a new case out of the Seventh Circuit entitled Susan Hennen v. Metropolitan Life Insurance Company. Hennen made a claim for LTD benefits and was paid 2 years. However, at the 24 month point, MetLife denied her claim under the neuromusculoskeletal disorder limitation. Hennen brought suit arguing that she is entitled to continued benefits because of her radiculopathy. The court finds that MetLife acted arbitrarily when it discounted the opinions of the four doctors who had diagnosed Hennen with radiculopathy in favor of the opinion of one physician who ultimately disagreed, but also recommended additional testing that MetLife failed to pursue.

    That said, MetLife engaged in arbitrary decision-making in this case. To start, every physician who examined Hennen after her 2012 spine operation concluded that she had radiculopathy: Dr. Buvanendran, her treating physician; Dr. Kipta, who performed the EMG; and Dr. Malik, who oversaw the EMG. Doctors Margolis and Calisoff also recorded nerve-related symptoms and diagnosed Hennen with radiculitis (meaning inflammation of the nerve roots) before Hennen’s 2012 surgery to fix a herniated disc. Dr. Adewumni, MetLife’s medical director, reviewed Hennen’s file and concluded that she had objective evidence of radiculopathy.

    Those doctors’ opinions had substantial medical support. Hennen’s medical file contains at least five doctors’ clinical observations—from Drs. Margolis, Calisoff, Buvanendran, Kipta, and Malik—of muscle weakness and sensory loss, two symptoms of nerve root damage. Those observations both pre-date and post-date Hennen’s 2012 surgery to relieve nerve compression. In addition, the EMG showed several abnormalities that Dr. Kipta, Dr. Malik, Dr. Buvanendran, and Dr. Adewumni thought were consistent with radiculopathy. Dr. McPhee was the only doctor who believed that the abnormalities were too few to show radiculopathy. (Dr. Peters agreed with Dr. McPhee that a 2014 MRI did not show radiculopathy, but he did not examine Hennen or consider evidence beyond the MRI itself.)

    Faced with these various diagnoses of radiculopathy, Met-Life chose to credit Dr. McPhee’s opinion that Hennen did not have objective evidence of radiculopathy. But MetLife never asked Dr. McPhee to diagnose Hennen or to make that finding. In fact, MetLife referred Hennen’s case file to Dr. McPhee after its own medical director, Dr. Adewumni, concluded that she actually met the plan’s radiculopathy exception. Once Dr. Adewumni made that decision, MetLife asked Dr. McPhee only to assess Hennen’s functional limitations given her physical condition and any side effects from medication. Dr. McPhee took it upon himself to assert that Hennen did not have radiculopathy—or at least, not objective evidence of it—at all.
    The court further states:

    It’s not just that all the examining doctors disagreed with Dr. McPhee on the key issue. Another indication of arbitrary decision-making was MetLife’s failure to heed Dr. McPhee’s recommendation to seek more electrodiagnostic testing and an independent medical evaluation. When Hennen and Dr. Buvanendran challenged his opinion, Dr. McPhee responded “that additional electrodiagnostic testing would be helpful” and that “consideration should be given to an independent medical examination” to “further assess the issue of possible radiculopathy.”

    MetLife chose not to follow up on Dr. McPhee’s advice. Instead, MetLife treated his original opinion as definitive and immediately sent Hennen a letter affirming the denial of her benefits. The letter asserted that MetLife found Dr. McPhee’s opinion “more compelling” than other doctors’. MetLife did not address Dr. McPhee’s recommendation for additional testing and examination to settle the dispute between his view and the views of all the doctors who had examined her. “Met-Life’s reliance on the opinions of its reviewing doctor[] here is all the more arbitrary in light of the fact that it ignored the key final recommendation” of that doctor for further testing to re-solve the dispute more reliably. Holmstrom, 615 F.3d at 775.
    The court notes: “MetLife took an extra step for its own benefit when it referred Hennen’s file to Dr. McPhee for review. But when Dr. McPhee recommended that MetLife take an additional step for Hennen’s benefit – to confirm whether his lone opinion that she did not suffer from radiculopathy was accurate – MetLife declined to take that step. That was arbitrary and capricious.”

    Hennen raises two more points that concern us and that need to be addressed on remand. First, Hennen argues that MetLife unreasonably interpreted the radiculopathy exception to require ongoing compression of a nerve root when that is only one potential cause of radiculopathy. As Hennen points out, the plan does not define radiculopathy as nerve root disorders resulting from ongoing compression. And at oral argument, MetLife agreed that nerves can remain dam-aged after compression is relieved by surgery.

    Second, Hennen argues that neither MRIs nor EMGs are conclusive for radiculopathy. Hennen cites articles saying, for example, that “radiculopathies may occur without structural findings on MRI, and likewise, without EMG findings.” Timothy Dillingham, How to Evaluate Patients with Suspected Radiculopathy, AANEM Basics with the Experts, 9 (2013). Met-Life does not point us toward any medical opinions to the contrary. MetLife responds only that it reasonably concluded that the MRI did not confirm radiculopathy, that the causes of inflammation to nerve roots are unclear, and that EMGs are rarely falsely positive for radiculopathy.

    MRI and EMG findings could be relevant—even highly relevant—in diagnosing radiculopathy, but MetLife’s unpersuasive responses in this appeal are troubling. Although it is reasonable for MetLife to require objective support for a diagnosis of radiculopathy, it would be unreasonable to discount clinical observations of Hennen’s treating physicians in favor of testing that is inconclusive for the condition. This issue needs further attention on remand.
    The court notes that “Dr. McPhee never examined Hennen, so he was not in the position to determine whether she was reporting her pain reliably, exaggerating, or a mix of both.” The opinion is attached below.
    Attached Files