Attending Physician’s Certifications of Disability: How Important Are They for Disability Insurance Claims Under ERISA?

Many employees are covered by group short-term disability insurance and/or group long-term disability insurance.  These plans provide benefits to employees who cannot return to work because of illness or injuries that prevent them from performing their work activities.  The Employee Retirement Income Security Act of 1974 (“ERISA”) governs most of these insurance plans.  Unfortunately, sometimes an insured becomes disabled and must support his claim for disability benefits.  The insured’s attending physician typically has examined the insured and determines that he cannot return to work.  The insured will want to use his physicians’ certification of disability to support his disability by submitting it to his insurer.  A common question is:  Must an insurance company accept the treating physician’s opinion regarding the insured’s disability?

The answer is: not necessarily.  The insurance company need not always accept and give credence to the treating physician’s opinion.  The Supreme Court of the United States addressed this issue in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003).  In Nord, Kenneth Nord worked for Black & Decker.  Black & Decker had a disability plan that provided benefits when an employee suffered “the complete inability… of a Participant to engage in his regular occupation with” Black & Decker.  Id. at 825.  The disability plan was governed by ERISA.  Nord developed degenerative disc disease, which was confirmed by a Magnetic Resonance Imaging scan.  Nord consulted with an orthopedist.  Both his primary treating physician and the orthopedist agreed that Nord was disabled.

Nord applied for disability benefits, but Black & Decker denied his initial claim.  Nord filed an administrative appeal.  Black & Decker then referred Nord to a neurologist for an independent medical examination.  The neurologist determined that whereas Nord did suffer from degenerative disc disease, he could still work with minor accommodations and pain medication.  Black & Decker denied Nord’s administrative appeal.

Nord sued in district court to enforce his rights under ERISA.  Both parties filed motions for summary judgment.  The district court granted summary judgment for Black & Decker.  On appeal, the Ninth Circuit reversed the district court.  The Ninth Circuit relied on Social Security Disability law in determining that the treating physician must be awarded special deference and, if a plan administrator disagreed with a treating physician’s opinion, the administrator must provide specific reasons for its decision.  The Ninth Circuit held that the specific reasons must be supported by substantial evidence.

The Supreme Court reversed the Ninth Circuit’s ruling.  The Supreme Court explained that nothing in ERISA mandated that a treating physician’s opinion receive special deference from an insurance company.  On the other hand, in the Social Security context, regulations did in fact require such a result.  The Supreme Court explained that determining whether a treating physician should receive such deference was a question best left to Congress or an administrative agency.  The Supreme Court overturned the Ninth Circuit’s ruling and remanded the matter for further proceedings.  See id. at 834.

Just because an insurer need not give special deference to a treating physician’s opinion, that does not mean that an insurer can ignore the opinion.  The Supreme Court expressed sympathy for concerns that treating physicians, “as a rule, have a greater opportunity to know and observe the patient as an individual.”  Id. at 832.  The Supreme Court also did not question the “concern that physicians repeatedly retained by benefits plans may have an incentive to make a finding of not disabled in order to save their employers money and to preserve their own consulting arrangements.”  Id. (internal quotations omitted).  The Supreme Court emphasized that “Plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”  Id. at 834.  Nord makes clear that a treating physician’s opinion can serve as a significant piece of evidence, but the opinion may not, but often can, necessarily establish disability in of itself.

Courts have been critical of insurers that fail to adequately address a treating physician’s opinion.  For example, in Yox v. Providence Health Plan, 659 F. App’x 941 (9th Cir. Sept. 9, 2016), the Ninth Circuit examined whether an insurer had abused its discretion in denying a claim for dental services under an ERISA plan.  After the insurer denied the claim, the insured brought suit in district court.  The district court found that the insurer had abused its discretion in denying the claim.  The Ninth Circuit affirmed.  The court based its holding on three grounds: failure to follow certain procedural requirements; failure to properly assess the substance of the insured’s claim, including the assessment of a treating physician; and the presence of a structural conflict of interest.

With respect to the insured’s treating physician’s clinical evaluation, the court stated that, “Moreover, [insurer] arbitrarily refused to address the clinical evaluation submitted by Yox’s treating dentist.  When [insurer] did address the evaluation provided by another dentist, it discounted the dentist’s opinion as ‘insufficient’ without further explanation.  [Insurer’s] conclusory opinion does not satisfy its duty under ERISA.” Id. at 944.

Other circuits have also expressed skepticism and criticized plan administrators that fail to give the proper weight to the opinions of treating physicians.  See Evans v. Unum Provident Corp., 434 F.3d 866, 877 (6th Cir. 2006) (“The Supreme Court nonetheless admonished that plan administrators many not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”) (internal quotations omitted); Michaels v. The Equitable Life Assurance Soc’y of the United States Employees, Managers, and Agents Long-Term Disability Plan, 305 F. App’x 896 (3d Cir. 2009) (overturning a district court’s ruling in part for failing to credit evidence from a treating physician).  Insurers cannot rely upon conclusory statements when addressing a treating physician’s assessment.  The insurer generally must provide a more thorough and reasoned opinion as to why it will discount the treating physician’s opinion.

In fact, it is incumbent on an insurer’s reviewing doctors explain why his or her opinions differ from the physicians who actually examined the insured.  If this is not done, the opinion should carry little weight with a court.  See Carrier v. Aetna Life, 116 F. Supp. 3d 1067, 1081-1083 (C.D. Cal. 2015) (An insurer’s reliance on peer reviewers who present their opinions in a conclusory fashion, making it unclear how they reached contrasting opinions from those of the insured’s attending physicians, is improper, and such conclusions should not be relied upon over the opinions of the insured’s physicians).

Courts tend to give a great deal of respect to a treating physician’s opinions and without them, a disability claim may be denied.  Having a strong certification letter from a physician can be very helpful, if not critical, to a disability insurance claim.  If all of an insured’s doctors are in agreement that the claimant is disabled, then a court will likely be critical in its assessment of an insurer who denies that claim.

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