US Pharm. 2007;32(4):60-67.
Does the following describe your job as a
pharmacist? Light work and physical demands involving occasional lifting of
five to 15 pounds, sitting 5%, standing 50%, walking 25%, bending 10%, and
reaching 10%. This analysis of a pharmacist's daily workday is used by several
large insurance companies and is similar to descriptions used by many national
chain pharmacies. It was also the description used by a federal district court
in determining whether a pharmacist was disabled from performing the duties of
Facts of the Case
The plaintiff began working as a pharmacist for a large national discount
store in September 1988. At some point in her career with this employer, she
was promoted to manager of the pharmacy. In this position, she was responsible
for overseeing the operation of the pharmacy department, including customer
service, profitability, investment, control and compliance with federal,
state, and local laws, regulations, and the company's policies and procedures.
She was also responsible for supervising the work of the pharmacy technicians
and customer service team and for receiving and filling prescriptions.
In February 1998, she began to experience pain in
her lower back. She frequently worked 12-hour shifts, which seemed to
aggravate her condition even more. The pain developed to the point where she
could no longer perform her job functions. Her last date of work was July 21,
1998. Initially, she received full short-term disability payments from her
employer. She then applied for long-term disability benefits from the
insurance company that her employer used to administer this insurance benefit.
That company notified her that she qualified for long-term disability payments
and that she would begin being paid in January 1999. Her monthly payment was
calculated as $2,878.73.
Disability Insurance Policy: In this
case, the insurance policy defined "disability" or "total disability" as "when
the insured employee, because of injury or sickness, is: (1) continuously
unable to perform the Substantial and Material duties of the Insured
Employee's Regular Occupation; (2) under the regular care of a legally
qualified Doctor other than the Insured Employee; and (3) not Gainfully
Employed in any occupation for which the Insured Employee is or becomes
qualified by education, training or experience."1 The policy
also sets forth the type of information that an individual must submit to be
eligible to receive long-term disability benefits. In this regard, the policy
requires the following information:
• Proof that you are receiving
appropriate and regular care for your condition from a doctor, who is someone
other than you or a member of your immediate family, whose specialty or
expertise is the most appropriate for your disabling condition(s), according
to generally accepted medical practice.
• Objective medical
findings that support your disability. Objective medical findings include, but
are not limited to, tests, procedures, or clinical examinations accepted in
the practice of medicine for your disabling condition(s).
• The extent of your
disability, including restrictions and limitations that are preventing you
from performing your regular occupation.
The policy defined "appropriate and regular care"
as "regularly visiting a doctor as frequently as medically required to meet
your basic health needs" and specified that "the effect of the care should be
of demonstrable medical value for your disabling condition(s) to effectively
attain and/or maintain maximum medical improvement." In addition to describing
the information that must be provided for initial coverage, the policy goes on
to state that the individual "may be asked to submit proof of continuing
disability and proof of continuing to receive appropriate and regular care of
a doctor." The policy states that "proof of continuing disability may be
requested only as often as the insurer feels reasonably necessary."1
Finally, the policy indicates that the insurer has
the right to have a doctor examine the insured "as often as reasonably
necessary while the claim continues," and that "failure to comply with this
examination will suspend or terminate benefits" unless the insurer agrees that
the insured has "a valid and acceptable reason for not complying."
1 This is usually referred to as an "Independent Medical Examination"
(IME) and is often conducted by a doctor chosen by the insurance company at
the company's expense. (This fact will become relevant to the judge's
Physician Visits and Medical Procedures:
The number of physician visits, the number of different physicians the
plaintiff was referred to, and the number of treatments she underwent in 1998
and 1999 is too extensive to fully describe here. She saw at least 10
different doctors, ranging from generalists to orthopedic specialists to a
chiropractor and a spine surgeon. She underwent physical therapy, had MRIs, CT
scans, discograms, and a myriad of other tests and procedures. Her situation
was reviewed several times from physicians and others in her Ohio-based health
system and in the Mayo clinic, where she saw several specialists and underwent
more tests over three days. During this period, she saw a physician in the
psychology department who observed that she exhibited signs of depression,
frustration with her medical condition, irritability, and hopelessness. She
finally underwent surgery to fuse two of her lumbar disks. During these
events, the disability insurer sent her to three different physicians for
IMEs. In each case, the IME physicians agreed with her own doctors that she
had severe spinal degeneration, which rendered her totally disabled. This was
clearly not a case of a goldbricker complaining of back pain to get out of
She saw her own pain management physician in
January 2000. That doctor certified to the insurance company that she was
totally disabled and that she was in a pain management program and being seen
by a counselor for her depression. He estimated that she might be able to
return to work as a pharmacist by July 1, 2000. However, when he saw the
patient again on June 16, 2000, he again certified that she was totally
disabled and would not be able to return to work until at least March 1, 2001.
On September 15, 2000, in response to a request from the insurance company,
this physician reported that the patient's function had not improved and that
it would never improve enough for her to return to full-time work. He also
stated that she has chronic pain and would not tolerate any work environment
unless she improves substantially or new treatment procedures are developed.
The insurer then contracted with a work-evaluation
company to determine the patient's current physical/functional capabilities
and to determine her ability to perform a pharmacist's job. She was scheduled
to undergo a "Functional Capacity Evaluation" (FCE) on November 15 and 16 of
2000. The FCE was discontinued on the first day following the musculoskeletal
portion of the evaluation. She was reported to be weeping throughout the
evaluation and indicated pain in her lower back. Note that this was the fourth
IME that the insurer had asked her to undergo.
On December 5, 2000, the insurance company asked
her physician for his opinion on the state of her disability. He responded
that there had been no improvement and future improvement was uncertain. The
current treatment noted by the doctor was continued pain management, physical
therapy, and medications.
Application for Social Security Benefits
On February 22, 2001, at the request of the insurance company, she filed for
social security disability benefits. The Social Security Administration (SSA)
determined that she became disabled on July 20, 1998, and was entitled to
social security disability benefits beginning February 2000. However, she
remained qualified to receive the monthly insurance benefit along with the
social security payment.
Her physician again evaluated her in September and
December of 2001 and indicated that she could not perform full-time work and
that she continued to have severe limitations in her ability to sit, stand,
walk, and concentrate.
On October 24, 2002, the insurance company offered
a lump sum of $105,000 to settle her disability claims. The insurer determined
that this would be the value of payments she would receive under the
applicable policy. She declined the offer, and the insurer's monthly payments
to her continued.
Change of Insurance Companies
This is where an otherwise normal disability claim gets dicey. In late 2003,
the employer switched its disability insurance company to Hartford Life
Insurance Company ("Hartford"). When the new organization reviewed the woman's
file, they must have thought they smelled a goldbricker and set out to
discredit her and terminate the disability payments that it had inherited.
This was probably a case of the Hartford's promise that it could lower the
employer's disability costs by being more aggressive in assessing new and
ongoing claims. The first note in Hartford's file showed that her primary care
physician saw her on November 12, 2003. He stated that she was still totally
disabled and that he could not anticipate any change in the foreseeable future.
On June 1, 2004, Hartford asked the woman for a
"periodic update" of her records. She responded by completing a Claimant
Questionnaire and an "Attending Physician's Statement" (APS), dated July 28,
2004. She reported that she had "arachnoiditis,2 severe back
pain, can only be standing up for short periods and when sitting down, keeping
her feet up, using ice, TENS unit, and medication" and that there had been no
change in her condition. She also reported that she had been treated by her
primary care physician and a pain management doctor within the last 18 months.
The APS diagnosis was listed as arachnoiditis and severe back pain and lists
October 28, 2004, as the latest treatment date. The APS also indicated that no
treatment is available for this condition. The primary care physician was
asked for his patient records, and he supplied copies, which showed that he
had seen the patient four times between August 2003 and June 2004. Each
recorded visit showed that she continued to have a diagnosis of arachnoiditis.
For reasons that are not explained, Hartford
referred the file to its Special Investigation Unit (SIU). That department
hired a private investigator to perform surveillance of the woman. The
investigator conducted video surveillance of her on two occasions. On the
first occasion, she was not seen outside of her residence for the first two
days and was observed outside her residence for 39 minutes on the third day.
She was seen on the video only for approximately six minutes. The surveillance
report indicated that she traveled to a nearby dry cleaner, a fast-food
restaurant, and a department store. She was seen driving, walking, entering
and exiting her vehicle, squatting, bending at the waist, reaching, lifting,
and pushing a shopping cart. The second surveillance occasion was about one
month later. This time, she was not observed outside her residence on the
first day. On the second day, she was observed outside her residence for two
hours and 10 minutes. She was seen on video for almost seven minutes. The
surveillance report indicated that she traveled to a private residence, a
medical center, and then back to her residence. She was seen walking, bending
at the waist, carrying a baby in a car seat, reaching, pulling, and driving.
(A little help with the math: She was captured on tape for a total of 13
minutes during five days of surveillance. This will become important to the
judge later on.)
Hartford followed up the surveillance with an
interview of the woman. She told the interviewer that she had been watching
her granddaughter during the surveillance because the child's mother had been
beaten by the child's father. She indicated that she was prevented from
returning to work because of severe back pain caused by arachnoiditis and that
she could not sit or stand for any extended period of time. She also indicated
that she could walk for only 20 to 25 minutes, stand for 15 to 20 minutes at
most, lift and carry items that weigh less than five pounds, and push an empty
shopping cart. She indicated that she could bend and twist at the waist,
squat, kneel, and reach to the front and side. This is what she had been seen
doing during the surveillance.
Here is the not-so-surprising result: Hartford,
based on 13 minutes of video surveillance, now thought it had conclusive
evidence that she could return to full-time employment as a pharmacist. The
company sent the videotape to her primary care physician with a note that her
functionality exceeded his assessment. The doctor did not respond to the
company. Hartford then arranged for the woman to have a fifth IME by a fifth
physician on November 22, 2004. The doctor concluded that the patient was
credible and had ongoing pain. He also concluded that she should be assigned
to sedentary job classification--meaning that she could lift up to 10 pounds
but would require frequent shifts of body position from standing to sitting
and lying. After reviewing the physician's initial report, the insurer decided
to send the surveillance videos to him. After seeing the videos and based
solely on the videos, the physician changed his assessment to a determination
that she was capable of lifting up to 25 pounds on an occasional basis, was
capable of frequently lifting up to 10 pounds, and was capable of standing and
walking as needed on a frequent basis. This, according to the doctor, put her
in the light duty classification and showed that she was capable of performing
the duties of a pharmacist.
On February 1, 2005, Hartford notified her that it
was terminating her long-term disability benefit, effective that day. She
responded by making an appointment to see the pain management physician whom
she had seen several times between 1998 and 2002. That physician examined her
on February 23, 2005. He reported that she had complaints of constant low back
pain and an intermittent heavy sensation and pinching sensation in her lower
right extremity. He also reported that she was seeing a counselor to help her
with some psychological adjustment issues. He found that she had stable
chronic back and leg pain and that she was not physically capable of work. He
also concluded that he thought her history and physical findings were
legitimate. Hartford asked for and received the counselor's records that
showed she had been treated on a regular basis since April 2003 for mood and
anxiety disorders that kept her from being employed. The woman appealed
Hartford's decision to terminate her disability benefits to an internal
committee that had been established to hear appeals.
Hartford hired two consulting physicians to review
the records of the medical and physiological conditions. In a report dated
September 22, 2005, the doctor reviewing the medical records concluded that
she was not disabled and that she was capable of doing light work. The doctor
reviewing her physiological records also concluded in a report dated the same
day that she did not have any mental disorders that would keep her from
working as a pharmacist. On October 4, 2005, Hartford denied her appeal. She
decided to take her complaint to a federal district court.
District Court Proceedings
It is fairly unusual for cases of this sort to generate a published decision.
3 The judge assigned to this litigation issued a 25-page opinion in
which he carefully and decidedly set forth everything that had happened to the
plaintiff in her ordeal and how Hartford and its attorneys attempted to
manipulate the system to defend its decision to terminate her benefits.
After the shenanigans Hartford engaged in, there
was no way this judge was going to find in favor of the insurance company. The
way he constructed his opinion, it would be doubtful that he could be
overruled by the Court of Appeals. First, he decided that under the applicable
rules, he was empowered to review the case de novo. This means he was
free to look at all of the evidence and not consider whether Hartford's
position on the issues should be given deference.
One of the first issues the judge considered was
whether there was a conflict of interest when Hartford hired physicians to do
medical records reviews. He noted that Hartford has a clear incentive to hire
doctors sympathetic to Hartford's interests. He also noted that these
physicians only looked at records and talked to one or two treating doctors.
This in spite of all five doctors who examined the plaintiff to give the
insurance companies an IME determined that she was suffering pain and was
disabled to one degree or another.
He next considered that the SSA had reviewed her
case and concluded that she was permanently disabled. The judge noted that an
SSA determination, while not binding, is also not meaningless. He wrote, "The
SSA determination, at a minimum, supports the conclusion that an
administrative agency charged with examining the claimant's records found
support for the treating physicians' opinions. Further, it is inconsistent for
[the insurer] to ignore the SSA's favorable determination, after [it] had
expressly requested the claimant to apply for SSA benefits."1
As to the surveillance tapes, the judge had no
trouble discounting their value. He stated that 13 minutes of observation
showing her doing routine things is "hardly evidence that she could return to
full-time employment as a pharmacist. With regard to the pharmacist
occupation, the job analysis used by Hartford requires standing for 50% of the
time and walking for 25% of the time. Yet Hartford relied almost entirely upon
a total of 13 minutes of video to conclude that [she] could stand and walk for
these percentages of an entire work day."1
The judge found that the woman was permanently
disabled and ordered Hartford to reinstate disability benefits. But this is
not the end of the story, at least as far as the law is concerned. It is a
very rare occurrence that a judge castigates attorneys in writing as part of
an opinion. Yet, this is exactly what happened. The judge wrote:
Attorneys have a responsibility to advocate for
their clients. However, that responsibility does not go so far as to permit
misstatement of the law or the facts to the court. The Court normally would
not address this issue sua sponte.4 However, in this case
the frequency of misstatements and the time burden placed on the Court to
ascertain the correct law and facts are too great. Without reaching
conclusions on the misrepresentations in Hartford's briefs at this time, the
Court will identify some of the instances where Hartford's counsel may have
gone beyond merely advocating for its client.1
The judge observed at least 11 instances where
Hartford's attorneys failed to accurately state the facts and laws at issue.
While he did not go so far as to accuse them of intentional misrepresentation,
he might as well have made the allegation. Hartford took the hit when the
judge ordered it to pay the costs for the appeal, including the attorney fees
paid by the pharmacist.
Just because you may have a disability benefit associated with your position,
do not assume that disability claims will be easily honored. Insurance
companies do not make money by paying out benefits, and it is in their best
interests and the interests of the stockholders to deny benefits of even
remotely questionable claims. Do not make the mistake of thinking that because
your employer is genial and genuinely concerned about the well-being of its
employees that its benefit administrators and insurance providers will view
you in the same way.
Here, one insurance company took over from
another, and overnight, with no advance notice, the rules of playing the
disability game completely changed. Nothing was altered from the perspective
of the pharmacist. She cooperated completely and provided information whenever
she was asked to. At least five separate IME physicians who examined the
pharmacist, as arranged for and paid by the insurance companies, concluded
that she was having back pain and that she was disabled. The last one of those
physicians changed his mind only after he observed the 13-minute surveillance
tape. Two physicians hired by Hartford who only did record reviews, including
the surveillance tapes, found that she was not disabled. Hartford had the
audacity to complain that there was only minimal evidence in the file
supporting her claims. That minimal evidence included evaluations by at least
10 different physicians, including those at the Mayo clinic, and a large
number of physician visits for tests, procedures, and follow-up, during the
1998 to 1999 time period. Hardly minimal, there was extensive objectively
verified and revivified proof that this woman has serious problems that
rendered her completely disabled.
If nothing else, learn this: When it comes to
work-related employment benefits, keep accurate and detailed records of
everything you do and say and what is said to you so that you will have
evidence of your entitlement to the benefit. If you see any health care
provider for something even remotely related to your work, or if you buy a
brace or use hot or cold pads, take note of when you saw someone or when you
bought something so that you have a record of events. You keep accurate and
detailed records of the medications you dispense to your patients. Apply that
same dedication to keep records about yourself. You just never know if someday
it is going to be youraching back.
1. Plummer v. Hartford Life Insurance Company, Slip Op No C-3-06-094
(January 5, 2007), USDC Ohio, 2007 US Dist Lexis 488.
2. "Arachnoiditis is inflammation of the arachnoid membrane covering the
spinal cord." Dorland's Illustrated Medical Dictionary.
29th ed. Philadelphia, PA: WB Saunders Co.; 2000:120.
3. The federal district courts are given authority to hear and decide cases
involving ERISA benefit plans. The disability provisions were part of an ERISA
4. Latin for "of one's own accord," this is a legal term that means to act
spontaneously without prompting from another party. The term is usually
applied to actions by a judge, taken without a prior motion or request from
the parties. Information available at: en.wikipedia.org/wiki/Sua_sponte.
Accessed March 10, 2007.
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