Erisa Law, FAQs and Links
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OREGON DECISION CHANGES ERISA REVIEW Through a series of court decisions including Firestone v. Bruch, 489 U S 101 (1989), and continuing with various court interpretations, disability claimants have most often been left with an "abuse of discretion" standard when appealing insurer denials under ERISA. The abuse of discretion standard has allowed insurers to hire in-house doctors who never see or talk to the claimant to make the final determination that a claimant is not disabled. This determination, even if contrary to the well-reasoned opinion of a treating physician, was all the insurer needed to meet the abuse of discretion standard in the Ninth Circuit. In Palmer v. University Medical Group and Standard Insurance Co., 994 F Supp 1221 (D Ore 1998), we successfully obtained a change in that approach in the District of Oregon. Palmer borrows at least two important analytical tools from social security law:
In Palmer Judge John Jelderks held that the opinion of a treating physician is entitled to more weight than the opinion of an examining physician or of a non-examining physician (typically hired by the insurance company). The court held that opinion of a treating physician may be rejected only for "clear and convincing" reasons (if uncontradicted) or for "specific and legitimate reasons" (if contradicted by other medical evidence in the record). The court also held that the opinion of an examining physician is entitled to greater weight than the opinion of a non-examining physician, and that "clear and convincing" reasons must be given if the uncontradicted opinion of an examining physician is to be rejected. "Specific and legitimate reasons" must be given if the examining doctor's opinion is contradicted. The judge held that the opinion of a non-examining physician cannot by itself constitute substantial evidence to reject the opinion of a treating or examining physician.
Judge Jelderks held that a claimant’s allegation that she or he suffers disabling pain or fatigue cannot be rejected if it is supported by evidence of an ailment that could cause pain or fatigue, without "specific, clear and convincing reasons for doing so." Thus long-term disability insurers may not, as they have in the past, reject subjective claims of pain or fatigue solely on the ground that they are not objectively verified. The Palmer court notes that, in most cases, neither pain nor fatigue can be measured objectively. Under Palmer, disability insurers must evaluate claimants' subjective complaints along with objective tests, the opinions of treating and examining physicians, the claimant's medical history, the claimant's activities, the claimant's cooperation in treatment, the anatomical plausibility of symptoms, and whether there is evidence of the underlying impairment that could produce the sort of pain or fatigue alleged. The Palmer decision also holds that the reasons given by the insurer for its denial are the reasons on which the denial will be judged. The court will not credit arguments made by counsel on appeal if those arguments were not fairly part of the insurer's reason for denial.
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