:: “Unexplained Gap” In Reviewing Physician’s Opinion Results In Decision For ERISA Plaintiff

Based on our review of the record, these conclusions do not reflect a rational connection between the known facts and the decision to deny benefits. . . Unlike the cases the Plan relied upon in this case, an unexplained gap exists between Dr. Pollack’s report finding disability and his explanation for this finding and the conclusory report of Dr. Chao, who found no disability.

Bernardo v. Am. Airlines, Inc., 2008 U.S. App. LEXIS 22163 (5th Cir. Tex. Oct. 22, 2008)

The Fifth Circuit draws a line of distinction between cases in which an administrator’s reviewing physicians disagree with the treating physician and cases in which the physcians pass one another like ships in the night.

Most readers will be familiar with Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829-34 (2003), the case in which the Supreme Court held that the opinions of treating physicians are not entitled to any greater weight than that of non-treating physicians performing a paper file review. Bernardo is interesting for its illustration of an instance in which the conclusions of the treating physcian and the reviewing physician may differ, and the treating physician’s view prevail.

The Fifth Circuit carefully noted that the reviewing physician, though finding the claimant not disabled, failed to engage the opinion of the treating physician on the key points offered in justification of the disability claim. The Court stated:

Significantly, Dr. Chao does not purport to explain why the severe symptoms found by Dr. Pollock and Dr. Rice were not disabling. This is not a situation in which the reviewing physicians reached a different medical conclusion from the medical evidence in a claimant’s file or where other evidence of the claimant’s condition contradicts the diagnosis of the treating physician, such as occurred in cases relied on by the Plan.

The “unexplained gap” resulted in a substantial defect in the reasoning of the plan administrator’s benefit denial. The Court reversed the decision of the district court and remanded for entry of judgment in favor of the claimant.

The plan administrator and the reviewing physicians have presented no evidence that contradicts the treating physicians’ conclusion that Bernardo “is 100% disabled from work, and likely has been since the onset of Cyclosporin A usage.” Based on this record, the Plan abused its discretion in denying long-term disability benefits to Bernardo and the district court erred in granting summary judgment in favor of the Plan on this record.

Note: This case may be profitably compared with the holding in another recent case, Post v. Hartford Ins. Co., 2008 U.S. Dist. LEXIS 76916 (E.D. Pa. Oct. 2, 2008), in which neglect of the treating physician’s opinion resulted in a finding of bias. See, :: Neglect Of Treating Physicians’ Opinions As Evidence Of Bias.

Neglect Of TPO as Bias – The Third Circuit view, in Post, was recounted by the district court as follows:

Specifically, the Court held that where courts have found evidence of procedural anomalies, bias, or unfairness, significantly greater scrutiny has been applied to the administrator’s decision. Id. Examples of procedural anomalies include an administrator who:

(a) relies on the opinions of non-treating physicians over those of treating physicians without explanation, Kosiba v. Merck & Co., 384 F.3d 58, 67-68 (3d Cir. 2004); (b) fails to follow the plan’s notification provisions and conducts self-serving paper reviews of medical files, Lemaire v. Hartford Life and Accident Ins. Co., 69 Fed. Appx. 88 (3d Cir. 2003); (c) bases its negative decision on inadequate information and incomplete investigations, Friess v. Reliance Standard Life Ins. Co., 122 F.Supp. 2d 566, 574-75 (E.D. Pa. 2000); (d) reverses an earlier decision allowing benefits without any new evidence that supports the reversal, Pinto, 214 F.3d at 394; (e) ignores the recommendations of its own claim managers that benefits should be awarded. Id.

(emphasis added)