California Judge Reverses Hartford in Chronic Fatigue Disability Case Based on Credibility of the Evidence
A California Judge recently issued a decision in an ERISA disability case using a term that we do not often see in ERISA cases – “credibility.” In Nagy v. Group Long Term Disability Plan for Employees of Oracle America Inc., the District Judge boiled the case down to nuts and bolts, evaluating the evidence on its face to decide what was the most believable. There were three key parts of the evidence for the Judge which anyone fighting an ERISA case needs to know about.
1. Classic ERISA Disability Case – Treating Doctor Reports vs. Paper Reviewers
The case involved a denial of disability benefits by Hartford Life and Accident Insurance Company. Like most ERISA cases, the disability claim involved reports from treating physicians and physicians hired by the disability insurance company.
Though Hartford had the file reviewed by 4 physicians, none of them actually examined the disabled claimant. These “paper reviews” are very common in ERISA disability cases, because insurance company’s can win cases using the less expensive paper review in many jurisdictions. In this case, Nagy suffered from Chronic Fatigue Syndrome (often abbreviated CFS). Despite being diagnosed with CFS by his treating doctors, 2 of Hartford’s paper reviewers wrote that Nagy did not have the signs or symptoms needed to prove he had CFS.
As part of the Court’s review, the Judge noted that neither of these 2 Hartford doctors ever identified what they objective signs, physical examinations, lab or other tests they would expect to see with someone who had Nagy’s condition. This is significant, because Chronic Fatigue Syndrome is not a condition which can be objectively verified by testing. Hartford put Nagy in a Catch-22: its doctors said he could not prove he had CFS, but there is no way to medically prove one has CFS, because it is a diagnosis of exclusion. Hartford never examined this point, nor questioned its doctors about what signs or symptoms Nagy would have needed to prove disability – a key credibility factor.
2. Hartford Did Not Tell Nagy That Its Doctors Were Unsuccessful In Contacting the Treating Doctors
During the lawsuit, Nagy filed a motion for the court to allow an affidavit from his treating doctor to add new evidence about his condition. This is rare, because ERISA cases are usually decided only on the evidence in the papers found in the disability insurer’s claim file. Why did Nagy ask to have the doctor’s affidavit admitted after the claim file was closed?
It turns our that Hartford denied the claim on the strength of its paper reviewing doctors discussed above. However, Hartford’s doctors said they tried to contact the treating doctor, but were unsuccessful in reaching Nagy’s doctor. More importantly, Hartford never told Nagy that their doctors could not reach his doctor, and that left Nagy with no way to comment on the Hartford doctors actions or views as they were putting their paper in the claim file.
Nagy sought to introduce an affidavit from his treating doctor to document the history of his illness, and the symptoms that his doctor would have told Hartford’s paper reviewing doctors had they actually spoken to him. The Court allowed the Affidavit, because it allowed the court to “in essence, recreate what the [claim file] record would have been had the procedure [of calling the treating doctor] been correct.”
Failed efforts to contact treating doctors are incredibly common in ERISA disability claims. Unlike many of the insurance company doctors that do peer review reports, doctors who actually practice medicine are very busy and often do not have time for phone calls. Paper reviewers often will not wait even a day or so for a return phone call before writing their reports. Without saying so, the Judge in this case was giving Nagy the chance to address the credibility of the peer reviewing by introducing a complete set of facts that Hartford should have obtained when it was handling the claim appeal.
3. The Social Security Disability Determination
Recognizing that the decision in Nagy’s case was based on the credibility of the parties, the Judge also allowed into evidence another piece of paper that was not in the Hartford claim file – the Social Security Disability decision. The court reasoned that an Administrative Law Judge had actually taken testimony from the Nagy and evaluated the medical evidence when making the SSD decision. Although the SS Disability decision was not binding in the ERISA case, the Judge viewed it as offering further insight into the credibility of Nagy and the doctors.
Conclusion: Credibility Can be a Good Tool When Fighting an ERISA Disability Denial
Why someone should be believed or should not be believe is a powerful weapon when you are fighting a disability insurance company’s denial. Even when you are dealing with written reports (instead of oral testimony in court), whether someone should be believed is crucial. All too often, doctors and other people working for insurer’s leave key facts out of reports. They may cherry-pick facts from other reports. Experienced disability attorneys learn to pick apart these reports to show why the basis for the insurance company denial is not credible.
BONUS CLAIM TIP: Anyone with a Chronic Fatigue Syndrome Claim should read the Nagy decision, because the Judge discusses medical literature and diagnostic criteria for CFS