ERISA Disability and Life Insurance Litigation
Oral arguments from various courts of appeal across the federal circuits involving long term disability or life insurance claims governed by ERISA.
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ERISA Disability and Life Insurance Litigation
How Does the Claimant's Pre-Existing Condition Affect His Claim for Long-Term Disability Benefits?
The claimant, a former truck driver, was diagnosed with two primary medical conditions. Initially, he was diagnosed with Posterior Vitreous Detachment (PVD) in his right eye. Subsequently, a retina specialist diagnosed him with Macula-off Retinal Detachment, a more severe condition where the retina detaches from its normal position. In the claimant's case, this led to significant vision loss after three unsuccessful surgeries.
Following this diagnosis, the insurance company, Life Insurance Company of North America (LINA), denied the claimant's claim for long-term disability benefits, citing the Pre-Existing Condition limitation outlined in the disability plan. LINA contended that the PVD, diagnosed during the look-back period, was highly likely to have caused a retinal tear, which in turn led to the retinal detachment and the claimant's subsequent vision loss. This presumed causal connection between the pre-existing PVD and the later disability was pivotal in their decision to deny the claim.
In response, he appealed the denial of his long-term disability benefits by adhering to the procedures set under the Employee Retirement Income Security Act (ERISA). The appeals revolved around disputing the insurance company's interpretation of the Pre-Existing Condition clause and their assertion of a direct causal link between his diagnosed PVD (considered a pre-existing condition) and the subsequent retinal detachment that resulted in his disability.
This is the oral argument in the 10th circuit court of appeals.
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Selena has attempted to distinguish Meyer for the purposes of our case, but what's relevant under Meyer is that you look to what caused the disability and not leap to what caused the disabling condition.
Speaker 2:But you caused the disability. You're back to the word cause. Why is that word so determinative here?
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Speaker 4:This is Green versus Life Insurance Company. You may proceed. Good morning, good morning. My name is Elizabeth Walker you might pull the mic closer to you. Is that better?
Speaker 1:That's much better. Great Good morning. My name is Elizabeth Walker and I'm here on behalf of appellant Mr Michael Green. I'd like to take just a minute and deal with the arguments regarding the sliding scale and the deference that should be given to Lena's decision in this case. First, I'll say that, with all due respect, the district court was incorrect with its conclusions regarding the questions that were put to Lena's second medical reviewer, Dr George Yannick. The district court concluded that there was nothing improper about those questions and stated specifically that Lena did not submit the same questions three times.
Speaker 4:With respect, that was not the issue that or maybe just those first two questions were irrelevant, poorly stated, not really to the point, that is certainly possible, your Honor.
Speaker 1:But as though we made to the point we made in our reply, brief, lena is a very sophisticated operation. They regularly submit these questions to medical reviewers. They submitted the first question. They submitted to Georgianic. That doesn't mean all questions given by such organizations are always good, that's true, your Honor, but the first question submitted to Georgianic was also submitted to their first medical reviewer, Dr Sammy Kamju, and they seemed to have no problem with that because Dr Kamju's response permitted them to deny Mr Green's benefit.
Speaker 2:Was it your position that, just because they asked multiple questions, that there's some irregularity associated with that?
Speaker 1:No, your Honor, it's not that they asked multiple questions. The questions seem to be phrased such to elicit their ability to deny Mr Green's benefit.
Speaker 2:But they were phrased so that they can ask more precisely a question, and if we're not assuming the doctor lied, then why is that a problem? If they asked inartful questions and they realized that they weren't getting an answer that clearly responded to the point in question, what's wrong with that?
Speaker 1:I believe, your Honor, that what's wrong with that is that they asked the question that elicited the response that they wanted. So the final question that they asked was the posterior vitreous detachment, the PVD, that Mr Green suffered in the look-back period, directly related to the retinal detachment that occurred under cover, and that seemed like a pretty precise question, the exact question they should have asked the first time. Respectfully your Honor. They were capable of doing so so what?
Speaker 2:Their being incompetent doesn't mean that they were doing anything irregular, does it?
Speaker 1:Not irregular, your Honor, but perhaps arbitrary and capricious, okay.
Speaker 2:Incompetent equals arbitrary and capricious.
Speaker 1:I would say that the insurer does have the responsibility to their insurer to conduct a competent investigation.
Speaker 2:But this goes towards bias. We're talking about whether there's something that's in this is some indicia of bias, are we not?
Speaker 1:No, sir, we are. I would point out that they returned to Dr Yannick with such frequency that they actually delayed the second determination which I believe that Lena argues shows. We argue shows a desire to elicit a basis for denial.
Speaker 4:So your point is they kept pounding on him until they got the answer they wanted.
Speaker 1:Yes, your Honor. In addition, on the reduced deference element, the district court was also incorrect regarding the universality of the opinions of the doctors. In this case it stated explicitly that all five doctors in the record stated that the PVD was conclusively linked to the retinal detachment and, with respect, we disagree. First, our experts the treating physician, Dr Kenoff, and our expert, Dr Wise, clearly distinguish between the two conditions.
Speaker 2:I thought that those doctors said it didn't cause, but that's not what we're talking about. The standard is broader than causing. The standard is whether it contributed to. Those are two different things, right.
Speaker 1:With respect, your Honor, our belief is that there is a single causal link permitted under FOUT between the disability and the disabling condition.
Speaker 2:Does the language use more than one word. That phrase is in question. I'm going to pull it up here in a second. It doesn't just say cause, does it?
Speaker 1:In FOUT sir no.
Speaker 4:Or contributed to.
Speaker 1:No, so the language in the policy reads any period of disability caused or contributed to by, or resulting from, a pre-existing condition Okay, and so your experts say it didn't cause it.
Speaker 2:That doesn't answer the question of whether it contributed to, does it?
Speaker 1:No, but he couldn't state. None of the experts can say conclusively that it contributed to either. Posterior vitreous detachments occur with much greater frequency than retinal detachments. In fact, the vast majority of us will suffer one in a lifetime.
Speaker 2:They said it was likely. Their experts certainly said that it was likely, did they not?
Speaker 1:They did, sir, but in no way did so. Their original medical reviewer, dr Kamju, said that he, for example, he specifically reached out to the doctor who diagnosed the PVD but made no attempt to speak to the doctor who diagnosed the retinal attachment. So there was no discussion with that diagnosing doctor of whether there was some other risk or possibility in Mr Green's medical history that would have caused a retinal detachment to occur. Given the frequency of PVD and given the fact that the vast majority of cases resolved without even diagnosis, much less treatment, we can't say conclusively that those things were related. And because he didn't go to the doctor actually diagnose the retinal tear sorry, the retinal detachment and asked for his opinion on that, it seems likely that Lena was looking for a basis on which it could deny this claim we're under a substantial evidence standard.
Speaker 2:You've used the word conclusive more than once. Why do we have to used the word conclusive more than once? Why do we have to find anything is conclusive?
Speaker 1:This court does not have to find that anything is conclusive. Your Honor, you're correct. However, lena, under its responsibilities to its insured, certainly has a responsibility to at least seek the opinion of the diagnosing and treating physician, which it did not do. In addition, dr Kamju misstated or at the very least failed to cite his supporting evidence from the American Academy of Ophthalmology. There is conflicting evidence in the record. Dr Kamju states that the AAO's practice standards list as a risk factor for detachment a PVD. Dr Wise, who actually cited to those standards in his note, which Dr Kamju did not, says that it is not listed as a risk factor for detachment.
Speaker 4:And even if so it may not be listed, but everybody's different, don't? We know that? And if they looked at this particular individual situation, they could say in this case, his PVD contributed to the retinal detachment.
Speaker 1:But in this case, your Honor, nobody considered any other potential risk factor besides the PVD. Everyone is different. You're absolutely correct, and under GOATS it states that these sorts of evaluations are incredibly fact-specific. But Meyer which Lena took issue with in our brief states explicitly that if an insurer wants to include risk factors, so if we assume that it is in fact a risk factor based on Dr Kamju's report, meyer specifically states that if insurers want to include risk factors as limiting under preexisting conditions, they are free to do so clearly such that their insurers can understand that.
Speaker 2:Meyer required the condition be the same, did it not?
Speaker 1:No, Meyer did not require that the condition be the same. They required that there be a substantial linkage between the two. Lena has attempted to distinguish Meyer for the purposes of our case, but what's relevant under Meyer is that you look to what caused the disability and not leap to what caused the disabling condition.
Speaker 2:But you caused the disability. You're back to the word cause. Why is that word so determinative here?
Speaker 1:For example, sir PVD is not a risk factor for blindness. There is no way. No doctor has stated that.
Speaker 2:If it is a risk factor for retinal detachment and retinal detachment leads to blindness and you've got a contributing standard. I'm missing it. Why is there a link there?
Speaker 4:Aren't they talking generalities?
Speaker 1:Generally, it doesn't lead to that In exceedingly rare cases, your Honor, in fact, we don't actually know and there was no evidence submitted by either side in the record of the likelihood that PVD would lead to a retinal detachment. Certainly there are other risk factors and many other ways that a retinal detachment can occur, and none of those were investigated by Lena in this case. I'd also like to just go forward saying that, even if we accept the linkage that Lena has put forward between PVD and the retinal detachment, PVD still doesn't trigger the pre-existing condition limitation because, under FOUT, to permit the exclusion under this basis would be to inappropriately extend the breath so that the limitation would swallow the benefit.
Speaker 2:And there are five intervening steps here.
Speaker 1:No, there are not five intervening steps.
Speaker 2:So why is that even relevant?
Speaker 1:I believe, sir, it's because there is a presumptuous change. So what each of the experts did, whether they were treating our patient on our side or on Lena's side, stated it's likely that the PVD then caused a tear, which then it's likely permitted the entry of vitreous gel which then is likely to have caused the retinal detachment. So there are, if not, five intervening steps here. Your Honor and I would just like to return to two specific cases that Lena relied on heavily, saying that the cases reviewed in FOUT were relevant and on point for our position here, the first, cash, and the second, holsey. I'd just like to say that those cases are wholly distinguishable because in both Cash and Holsey the pre-existing condition had as a potential risk factor the ultimate condition, the ultimate disability right. So in cash the court specifically stated that one needs diverticular disease in order to have diverticulitis. It's an absolute prerequisite. In whole Z, all of the resources in that case stated that blindness is a common side effect of diabetes and blindness was ultimately the disabling condition in that case.
Speaker 4:Here was the language and the policy in those cases, like the broad language here.
Speaker 1:Yes, your Honor, it was, and so I'd just like to say that, in our view, Lena did not perform a satisfactory investigation of Mr Green's claim and arbitrarily and capriciously denied him his coverage, and I'd like to reserve the remainder of my time, thank you.
Speaker 5:Good afternoon your Honors, jackie Mingler Jr, on behalf of Life Insurance Company of North America. The investigation was reasonable and there was more than substantial evidence in this case to establish the requisite linkage between the PVD and the later retinal detachment, the disabling condition. Ms Owen, or Ms Walker, tries to overlook the evidence that Lina obtained. First of all, as she noted, they contacted the optometrist who diagnosed the PVD and that optometrist, in his discussion with Dr Kamju, agreed that the PVD likely caused the retinal attachment. He noted the linkage and he noted the close time factor and that there were no other risk factors other than the PVD.
Speaker 5:Then you have Dr Kanoff, the treating physician, who did the eye surgery on the retinal attachment. He said in his letter, quote or he said that PVD quote is certainly a risk factor, close quote. So there you have a treating and diagnosing physician acknowledging that the PVD certainly is a risk factor. Then you have Dr Kamju, the independent, board-certified ophthalmologist, whom I now retain for use. In the first appeal for use in the first appeal, dr Komju said that the PVD most likely caused the later retinal detachment. He discussed the mechanism by which that happened, which was most certainly not attenuated. He described how the PVD would cause the vitreous gel to separate from the retina, lead to a tear that allows liquid in, and then you get the retinal attachment.
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Speaker 5:Case he didn't say it was the only way in which this could occur, but he identified it as a specific risk factor and in the case of Mr Green, with the PVD, followed less than three months later by the retinal detachment, he explained why the PVD was, as the district court said, a culprit in this retinal detachment. Then you have Dr Wise, whom Mr Green's counsel retained to be a peer review expert and he said that the PVD was a prior event to the development. In other words, it's the same thing. Everybody else is saying the PVD is an event that leads to the retinal detachment because of the way this mechanism works.
Speaker 5:Dr Wise focused on cause. He said that the PVD did not cause the blindness. No one has ever said that is the case. That wasn't the issue here, as the honors have shown out or raised during this argument. The issue is did the PVD contribute to it and was it a close enough contributing factor that it's properly identified as a pre-existing condition under the language of the plan and the precedent of this court? And the answer to those questions is yes. It's significant that Dr Wise, the retained expert for them in the first appeal and by this point they had access to Dr Kamju's report.
Speaker 5:Dr Wise didn't say Dr Kamju's wrong. Dr Wise didn't challenge Dr Kamju's discussion of the mechanism. He just said the PVD didn't cause the blindness. But he had to acknowledge, as he must and a fact that no one has disputed, that the PVD is in fact a prior event in this not attenuated chain of events that leads to the retinal attachment and the blindness that results from it. And then, finally, we have Dr Yannick. An interesting thing about Dr Yannick is that there's been so much attention directed to the questions presented to him.
Speaker 2:And why should one not infer that you pounded on him until you got the answer you wanted? Oh, this is my answer. Let me ask you a different way. It doesn't take rocket science to know that you're not giving you the answer you want it doesn't.
Speaker 5:Actually, your Honor, all you have to do is read the report and the answer was already in the report. In the report, in the initial report, dr Yannick, in describing his findings about the evidence, described the PVD as a precedent condition that most likely caused the retinal detachment, and he went on to describe the mechanism in the link and he commented that the mechanism that Dr Hanju had described was accurate and so he didn't go into the same level of detail and he actually had, in the report before it, an opinion from Dr Yannick about the PVD being this preceding condition most likely causing the later retinal detachment. That really answered the question.
Speaker 2:Yes, but that really doesn't help you, because I think the inquiry here is about bias and if you've got an answer in the report that says A and you keep pounding on the person until they tell you B, doesn't that suggest, boy, I'm working really hard to get to B?
Speaker 5:No, it doesn't, your Honor.
Speaker 2:Why is?
Speaker 5:that Because, for whatever reason whether you want to call it incompetence, not thinking or whatever these questions were not artfully phrased and, as the district court pointed out, each question was very distinct and asking a different thing. The point that opposing counsel is trying to make. We might have a biased situation if the first question was did the PVD cause or contribute to the blindness? And he said no. And then the second question was let's put it to you this way Could it be that if you thought about this a little harder, maybe this caused or contributed? And then you keep pounding on the guy Give me the answer I want, but instead all three questions were totally different. The first question was did the medical treatment in the lookback period back in the earlier period, did that medical treatment treat the later condition? The answer is no, because the later condition was the retinal detachment, which you didn't have yet. So it's a totally different question, totally irrelevant to really the issue. We don't know what was going on in the thought process of the person drafting it, but it wasn't well drafted, for whatever reason. Then the next question was just plain silly. The second question was Did the treatment or medical services in this look-back period cause the condition in February 2015? Did this treatment cause the retinal detachment? Of course not. It's a ridiculous question. Finally, the third question, as your Honor Holmes pointed out, was the right question Did the PVD cause or contribute or result in this retinal detachment? And Dr Yannick said yes. And I'm surprised in a way. Dr Yannick didn't say yes and if you'd read my report a month ago, you would have seen I've already said this and then he described the mechanism in exactly the same way that Dr Kamju had described it. So these questions don't amount to a hill of beans. They're totally distinct. The answers are what you would expect and Dr Kamju Dr Yannick, excuse me was responding to each question, answering it appropriately. It wasn't his job to try to figure out what they were asking. They asked him a question, he answered the question to figure out what they were asking. They asked him a question, he answered the question. The reason the answer to the question didn't help things is because the question was poorly drafted and it didn't relate to the issue of importance. It had nothing to do with bias. There's no way that these questions linked together in any way indicate bias.
Speaker 5:This case is dramatically different from the Myers case, for example, out of the District of Kansas on which they placed great reliance. That's a case where the district judge just jumped all over the claim administrator which I'm pleased to say wasn't my client because they had used an on-staff doctor. The district court cited all sorts of examples that this on-staff doctor was biased and had given a biased report and that the claim administrator had not gone out and sought independent review by someone outside the company. Those were the biggest factors in that case. It led the district court to give heavy weight to conflict of interest. It led the district court to dispute the conclusions and everything else on down the line, including the policy interpretation, and of course none of that is present in here. The decisions on which Lina relied were, first of all, mr Green's own treaters. Dr Armanjoran, I said that wrong, but the first, we did it yes.
Speaker 4:The first guy.
Speaker 5:The first guy then, and then the second one, dr Wise, their retained expert, and Dr Canoff. But, as I've already discussed and we've briefed, there was evidence from all three of those that actually supported the conclusion. And then the two independent peer review ophthalmologists Board certified independent and, significantly, apart from disagreeing with their conclusion, there's nothing in the record to say that what they said was wrong. Most significantly from Dr Wise, another independent peer physician retained by them in the appeal. And although Dr Wise didn't have the report of Dr Yannick because that came later in the second appeal, he most certainly had the report of Dr Kamju and he could have rebutted it, criticized it, done anything. Instead, he didn't. He made his point about what the causal factor was, but he had to concede that there was this prior event factor there that leads us into whether or not the PVD contributed.
Speaker 5:And the critical factor here is this is an arbitrary and capricious standard of review case and the precedent of this court is very clear on that point. Substantial evidence is more than a scintilla but less than a preponderance of the evidence. And if the court looks at the decision and there's substantial evidence and it's a reasonable decision this court has held on multiple occasions that the court must uphold that rule and that's what the district court here did. And of course the court is not bound by the district court and you're not deciding whether or not the district judge was erroneous. You're making your own de novo review here.
Speaker 5:But his review is a good benchmark. He made a very detailed, careful analysis of the evidence and found that there was reasonable evidence. There was nothing in the record to support the conduct of Lina being arbitrary and capricious and therefore he upheld it. Under the court's precedent relating to the deferential standard review and when you conduct your own de novo review of the evidence administrative record, I would submit that the same conclusion should occur here. I have nothing further unless you have further questions for me. Your Honors.
Speaker 4:Thank you.
Speaker 5:Thank you, your Honor.
Speaker 1:I have just a few short points to make your Honors. First, with all due respect to opposing counsel, we're not overlooking anything in the file. I think that it's of vital importance that, with all the weight that they're placing on Dr Kamju's report, that doctors explicitly made zero effort to get in touch with the diagnoser of the actual disabling condition. There's nothing in the record that contradicts that. There's nothing that said he tried Certainly the independent medical reviewers commonly state attempted to reach doctor et cetera, but instead they went straight to the preexisting condition diagnoser because that was the person who could provide a basis for denial.
Speaker 4:In addition, they were looking at preexisting condition. So why would you start at the end to say, okay, we have retinal detachment.
Speaker 1:Because the diagnoser of the retinal detachment is the person most likely to give you the potential diagnostic factors of how that occurred. I would submit that he's the most important of the doctors in the entire treating set here.
Speaker 4:Is it key? Do you think that you have the PVD occurring? Was it three months before the retinol? How many months?
Speaker 1:Yes, roughly, your Honor. That was diagnosed on December 4th and the retinol detachment was diagnosed on February 25th of the following year Almost exactly.
Speaker 4:And doesn't that indicate something, if there's a causal connection?
Speaker 1:Not necessarily your Honor. A PVD can resolve in as little as a month in my understanding, and it's really given that there was zero investigation to any other potential factor.
Speaker 4:I think not perhaps as much it didn't resolve in a month here, did it.
Speaker 1:We don't know, your Honor. He didn't see anyone in that intervening period of time who could state whether or not it had resolved. It certainly didn't worsen. He had no increased visual effects as one might have if they had developed a tear and then were experiencing the entrance of that viscerous gel.
Speaker 2:And did anyone indicate an intervening risk factor during this three-month period?
Speaker 1:There was no intervening risk factor in the record.
Speaker 2:Your Honor, that's what we got right. I understand, yes, Okay.
Speaker 1:I do want to draw your attention to the fact that, with all the weight that they're putting on Dr Kamju's report and his discussion with Dr Van Amorogian, dr Amorogian would not have identified any risk factors for retinal detachment or anything like that in his treatment records of Mr Green, because Dr Amorogian did not treat him for a retinal detachment and at that point said this will resolve on its own. You have no problem.
Speaker 1:He also specifically stated in his notes that there was no tear present when he treated Mr Green. I'd also like to point out on the question of the Dr Yannick question. Opposing counsel makes the point that Dr Yannick stated in his original report the answer to the final question or the answer that they wanted, and therefore there's no evidence of bias in the inartical questions posed in the interim. However, if Dr Yannick answered the way that they desired, or at least in a way that it would accept in that report, then why did it persist in getting a specific answer to that question when it didn't with Dr Kamju? So they posed a specific question. The first question of Dr Yannick was the same as the question posted. Dr Kamju wrote a report that said what Lena would like it to say that this was a pre-existing condition. But they never hammered him for a specific answer on that question and I think that greatly undermines the explanation of no bias or that there was no reason for going that direction.
Speaker 4:I have nothing further if the court has any further questions, hearing none.
Speaker 1:Thank you very much, thank you.
Speaker 4:Thank you both for your arguments. This case is submitted. Court is in recess until nine o'clock tomorrow.
Speaker 3:The proceeding has been a production of Ben Glass Law, a Fairfax, Virginia-based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at benglasslawcom or call us at 703-591-9829.