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 her position.1
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 decision.)
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 work.
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 qualified plan.
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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