A Reread For Some ERISA Judges


Plenty of insurance company defenders point out that there seems to be a surge in Social Security and ERISA disability claims in the last few years. They do this to paint all disability claimants with a questionable brush.

What you don’t see is a flood of these same people pointing out that the reputation of disability insurers has suffered much greater hits in recent years. For some reason, these defenders quickly forget when insurance companies admit actual, far-reaching wrongdoing.

We only have to go back ten years to revive the memory of the UNUM settlement with 48 states because of the insurer’s deceptive handling of disability claims over many prior years. This was actuality, not innuendo. UNUM settled and paid because of its unsavory conduct in dealing with people who couldn’t work because they were disabled.

 Then we had the recent instance of MetLife and other insurers hanging onto life insurance proceeds belonging to decedents’ beneficiaries because they claimed they “didn’t know” the policyholders had died. At the same time MetLife somehow “knew” of these very same deaths because it immediately stopped paying annuity benefits to these very same deceased policyholders.

Now we are in the middle of another insurance company scandal, Cigna, settling disputes with state after state about its fairness in handling disability claims.

With this history, we can’t see why some courts automatically seem to put insurance company exam reports, where the physician doesn’t see, talk to or touch the patient, on a par with treating doctor reports. Nor can we see why some courts equate supposedly “independent” medical exam reports from doctors who make a good part or all of their income from these so-called “independent” reports, on a level with the treating doctor.

It is not fair for courts to put opinion evidence from one of these “bought and paid for’ insurance doctors on the same level as the report of a treating doctor. Yet, because of Black & Decker, 123 S. Ct. 1965 (2003), many do.

Yet, to do so is a misread of Black & Decker. That case clearly dealt with only whether an ERISA court should follow the Social Security rule favoring the report of a treating doctor in evaluating evidence in an SSDI case. The Supreme Court said “No” for reasons clearly stated in that opinion.

Nowhere in that opinion did the Supreme Court say the two genres of medical evidence should be treated equally or that a District Court should not apply judicial common sense in evaluating medical evidence. The Justices said you can’t apply the Social Security “treating physician”rule. It didn’t say that judges are barred from judicially evaluating medical evidence in ERISA cases.

It is upsetting that a treating doctor’s opinion gets no more respect from some courts than does the opinion of an insurance company doctor who never sees the claimant, has no professional obligation to the claimant and probably earns a good part of the doctor’s annual income from insurance companies.

Courts which treat medical evidence in ERISA this way should reread Black & Decker.






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