Seven pieces of medical evidence and disability company still denies claim for lack of "objective evidence"

When Suzanne Lee first had to miss work on January 18, 2005 for chronic back pain, she had been a manager at BellSouth for almost 10 years. She applied for short-term disability benefits under the BellSouth Short-term Disability Plan she participated in. If Broadspire Services, Inc., the company BellSouth hired to administer its health care trust and disability benefit plans, had approved her application, her continuing absence from work would have been excused.

Instead Broadspire denied her application on February 4, 2005, claiming that he had not received information supporting her claim. A letter dated February 25 informed her that they had received her medical records, but that she would have to file a formal appeal in order for her medical records to be reviewed.

Meanwhile, Lee had taken advantage of the Family and Medical Leave Act, using the time required by the legislation to keep her job. The medical leave expired on April 26, 2005. When she was still unable to return to work, BellSouth notified her that she was terminated effective May 4 for failure to return to work. She filed a formal appeal of the denial of her short-term disability benefits claim.

First Piece of Evidence Supporting Disability

Lee had included with her application detailed statements and records from a number of treating physicians. One letter dated February 3, 2005, noted that the physician had been treating Lee for chronic pain syndrome since January 28, 2004. It also went on to state that she was unable to sit for more than 1-1/2 hours at a time, stand for more than 15 minutes, and walk for more than 10 to 15 minutes of time. The letter concluded by stating that Lee was unable to work more than a 2 to 4 hour day.

Second Piece of Evidence Supporting Disability

A February 7 attending physician report, prepared by a different physician, summarized the results of a series of functional impairment tests Lee had taken. The report stated “Lee could lift no more than 10 pounds, carry no more than 10 pounds, sit for no more than 15 minutes, and stand for no more than 10 minutes.” The report went on to state that Lee “could rarely bend or stoop, push or pull, complete repetitive motions, undertake fine manipulation, or climb or traverse heights.” She was only able to walk or reach occasionally and was no longer able to drive a car or operate machinery.

Third Piece of Evidence Supporting Disability

A third physician prepared a detailed statement on February 7 as well. He noted that he had seen her three times and that she was suffering from severe muscle spasms, which made treating her condition complicated. He noted that he put her on Valium, which helped relieve the muscle spasms to some extent, but left her seriously limited by sedation. He noted that at her most recent appointment on January 20 , 2005, she was barely able to walk into her appointment and her unsteady gait thoroughly alarmed doctor.

His statement went on to note that he had interviewed her boyfriend and her mother to confirm that he was seeing her in a typical condition. When he found that Lee was consistently experiencing the level of functioning observed in his office, he recommended that she be put on disability, and that she quit trying to work part-time.

This third physician also interviewed the physician who had evaluated her work limitations. He discovered that she was only able to sit for 1-1/2 hours when she was under the sedating influence of her medications, and that she still experienced extremely distracting pain.

Fourth Piece of Evidence Supporting Disability

Yet another physician reviewed Lee’s medical record. This physician noted that her condition had clearly worsened between November of 2003 and February 2004 based on MRI readings. He reported that her symptoms of pain were consistent with the medical findings. He stated that because there was no definitive treatment for the type of pain Lee experienced. He stated that it was clear that she was permanently and totally disabled because of her condition and met the Department of Labor criteria for finding an individual vocationally disabled.

Fifth Piece of Evidence Supporting Disability

Lee also presented with her appeal the thoracic MRI taken on April 5, 2005 along with the accompanying medical report. The report pointed to right-sided and left-sided disc herniations revealed in the MRI. The physician, the fifth treating physician to report on Lee’s condition, noted that her pain had begun as intermittent pain and had progressed to constant knifelike pains which were treated by heavy narcotic doses of Oxycontin, yet with minimal relief.

Sixth Piece of Evidence Supporting Disability

Lee also presented the results of an April 30, 2005 CAT scan. It revealed disc herniations and protrusions. Surgery on her back was recommended, and Lee underwent what she hoped would be a pain relieving procedure on May 16, 2005.

Additional Medical Evidence Supporting Disability

As a last piece of evidence that Lee submitted, she included her medical record that supported her claim that she had been suffering from chronic pain and degenerative disc disease since October 2003 when she was first diagnosed. At this time, epidural steroid injections had proved ineffective. Shortly after, on January 26, 2004, she had attempted to participate in a functional capacity evaluation. Unfortunately her pain so limited her at the time, that she was unable to complete the evaluation.

Broadspire Considers Initial Application for Short-Term Disability.

On February 17, 2005 Broadspire sent her short-term dsiability benefit claim to a physician to perform a peer review. This physician was charged with determining whether the information supported a functional impairment “from 1/18/2005 to the present.” This physician reported back to Broadspire that Lee had failed to support her impairment for the entire time period. He claims that her physicians were exaggerating the level of pain she should be experiencing from the abnormalities revealed by the MRIs. He went on to state that there was “no” neurologic defects and that her file lacked objective data to support her disability from any occupation.

Based on this report, Broadspire notified Lee that it was going to place her disability application on hold until it received all of the materials she wished to present to support her claim. After BellSouth terminated her on May 4, 2005, Broadspire stopped contacting her health care providers.

Broadspire Appeals Review Committee Considers Appeal of Short-Term Disability Denial.

Lee’s file was sent to another physician for peer review on July 19, 2005. This physician found that the medical data didn’t support Lee’s disability beginning on May 16, 2005, but claimed that her medical record failed to support coverage between January 25 and May 15. He discredited the physician’s conclusions that Lee could not work for more than 2 to 4 hours per day, because he stated that they had not provided any objective documentation to substantiate their statements. He concluded that Lee’s physicians were only reflecting her subjective claims.

The appeals review committee upheld the denial of Lee’s claim for short-term disability benefits on August 5, 2005. The denial letter stated that without objective documentation to substantiate their claims, the opinions of three of Lee’s treating physicians failed to be convincing. The committee informed her that her record did not include a “description of an examination of the back in terms of response to palpation, range of motion testing, or presence or absence of muscle spasm,” and likewise failed to reference a description of muscle power sensation being tested. And they repeated the conclusion that her thoracic spine MRIs did not indicate that she should be suffering a degree of pain that would prevent her from working in a sedentary job.

Disability Attorney Files Lawsuit against BellSouth Short-Term Disability Plan.

Lee’s long-term disability attorney filed a lawsuit in the U.S. District Court for the Northern District of Alabama, alleging that BellSouth had arbitrarily and capriciously denied Lee benefits under both the short-term disability benefit plan and the long-term disability benefit plan. The District Court upheld BellSouth’s denial of benefits after applying the arbitrary and capricious standard of review.

It reached the conclusion that BellSouth had acted reasonably when it denied Lee’s application for short-term disability benefits. The court considered the review Broadspire conducted thorough and agreed with the conclusion that her physicians had failed to provide objective evidence to support their claim that she was unable to perform sedentary employment.

Lee and her disability attorney had a decision to make. Would they appeal the District Court decision? Was the evidence in Lee’s file sufficient to demonstrate that BellSouth had made an arbitrary and capricious decision when it denied Lee her application for short-term disability benefits? This is always a decision that has to be made carefully. There is always the risk that an ERISA lawsuit will not obtain the desired results and the claimant could be subject to paying the insurance company’s attorney fees.

At the same time, Lee had presented what the Court has traditionally considered objective medical evidence. Her denial was based on a lack of “objective evidence.” How could the Broadspire decision be reasonable?

It must be noted that at the District level, only one judge reviews the evidence. If a decision is appealed, three judges will be looking at the evidence. For this reason, and the apparent strength of her claim, pursuing an appeal would appear be the logical next step. Read more about this case in our article Disability company ignores evidence of disabling back pain and Federal Court reverses disability benefit denial.