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Defense Friendly Victory – D.S.C.

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  • Defense Friendly Victory – D.S.C.

    Here’s a new case out of the District of South Carolina, Greenville Division, entitled Angela Hines v. The E.I. DuPont de Nemours and Company Long Term Disability Plan. I know the attorneys on both side of this one and they are all well experienced ERISA attorneys. However, this is a pretty sound defense victory. Under the abuse of discretion, the court finds that DuPont’s determination was supported by substantial evidence. Probably most problematic for the plaintiff was the following.

    First, Plaintiff’s treating physicians opined that Plaintiff is capable of working. Plaintiff’s most recent primary care physician, Dr. Lemley, stated he thought Plaintiff was able to do sedentary work. This is consistent with his earlier notes, in which the only limitation listed was prolonged standing.6 In addition, Plaintiff’s most recent treating cardiologist, Dr. Sorrentino, stated that Plaintiff does not have any cardiovascular impairments and is capable of full-time work. Dr. Sorrentino’s opinion is corroborated by his earlier discharge notes, which stated that Plaintiff had “no restric[tions]” from physical activity. None of Plaintiff’s other treating physicians ever imposed any permanent restrictions or limitations that would prevent Plaintiff from working in any capacity.
    The court continues on to discuss that the objective medical testing consistently failed to establish a confirmed diagnosis and that the defendant got two board certified physicians to complete peer reviews. The biggest point of note that I see in the case is the following.

    The Court notes, however, that it is concerned with the comments of DuPont's Medical Director—Dr. Suzanne Sherman. In an email to a DuPont Human Resources representative, Dr. Sherman addressed an incident where Plaintiff burned herself while
    frying chicken. Dr. Sherman stated:

    Notably, the final assessment of record 16 Oct 2016 is for medical care obtained for a second degree burn obtained while frying chicken (McDuffie Medical Associates). This action on the part of the claimant, that is the choice to fry chicken in her home is inconsistent with an individual who perceived herself to be completely disabled.
    This comment is inappropriate and factually inaccurate. People who are disabled struggle on a daily basis to take care of their activities of daily living. They also have to eat, and often have to feed their family. Such absurd commentary is inappropriate in the context of a LTD appeal, and the Court has expressly disregarded this opinion in its review of this case.
    While it is still a defense victory, I think that this paragraph is important. Very frequently I see comments like these that don’t address the actual issue or definition of disability and, instead, relate to activities of daily living, which are not standards used by LTD plans. Either way, the opinion is attached below.
    Attached Files
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