Insured Succeeds Against MetLife Even Under Arbitrary and Capricious Standard of Review in the Seventh Circuit

By: Stephen A. Jackson

Hennen v. Metro. Life Ins. Co., 17-3080, 2018 WL 4376994 (7th Cir. Sept. 14, 2018).

Hennen worked as a sales specialist for NCR when she sought treatment for a back injury.  She was covered under her employer’s long-term disability plan insured by MetLife.  When physical therapy and surgery failed to resolve her injury Hennen applied for LTD benefits under the plan. Acting as the administrator, MetLife agreed Hennen was disabled and paid benefits for two years.  However, the plan had a two-year limit for neuromusculoskeletal disorders subject to several exceptions, one applies to radiculopathy.  Hennen argued she was entitled to benefits beyond the 2-year limitation because she has radiculopathy.

Hennen had a history of back problems with a surgery in 2003 and 2008 including fusing three vertebrae in her lower back.  In February 2012 she suffered a new back injury and sought treatment with a specialist in physical medicine and rehabilitation.  She was diagnosed with disc herniation and was treated with physical therapy and pain management techniques.  Failing conservative treatment an orthopedic surgeon recommended surgery and operated on Hennen’s L3-L4 disc herniation in September 2012.  At follow up appointments Hennen was struggling to sit for any extended period of time and she complained of bilateral radiating pain down the buttocks, posterior thighs, and to the knee.  An MRI was ordered that showed no nerve compression.

With no surgical option Hennen sought treatment from Dr. Buvanendran, an anesthesiologist who provided pain management.  The physician treated Hennen’s leg weakness and pain with a series of epidural injection.  He then diagnosed Hennen with post-laminectomy pain syndrome and lumbar radiculopathy.  The injections failed and so the anesthesiologist implanted a spinal cord stimulator.  It provided relief for a few weeks, but symptoms returned including recurrent leg weakness and tripping.  After the device was dislodged in a fall, Hennen had multiple surgeries to fix ongoing issues with it.

With the two-year limit on the horizon MetLife contacted Hennen’s doctors for information. Dr. Buvanendran responded that Hennen was unable to work due to post-laminectomy pain syndrome and radiculopathy.

MetLife then advised Hennen that her condition fell within the neuromusculoskeletal limit and that additional documentation was needed to support a diagnosis of radiculopathy.  Hennen had another MRI.   On October 13, 2014, MetLife wrote Hennen that her benefits were scheduled to end on November 11, 2014, under the neuromusculoskeletal limitation.  Dr. Buvanendran then faxed the MRI to MetLife, which showed a new annular fissure but no herniation or stenosis. MetLife’s reviewing physician opined the MRI did not show compression that would support a diagnosis of lumbar radiculopathy.

Hennen appealed and through help of counsel challenged MetLife’s conclusion.  She also submitted an EMG by Dr. Kipta, a neurologist.  Dr. Kipta found nerve-related abnormalities on the EMG and concluded it confirmed radiculopathy in four nerve roots as did an examination that showed diminished nerve sensation.  Another board-certified neurologist Dr. Malik, who supervised Dr. Kipta, agreed with his findings.

Dr. Adewumni, MetLife’s medical director reviewed Hennen’s appeal and agreed with Dr. Kipta that the EMG supported radiculopathy.  Concluding that Hennen satisfied the radiculopathy exception MetLife consulted with Dr. McPhee to assess her condition and asked him two questions, whether the medical file supported functional limitations and if so, what those limitations were. Despite the limited scope of these questions Dr. McPhee opined the EMG was negative for active radiculopathy with no abnormal activity recorded.  He also criticized Hennen’s self-reported pain levels as implausible and he found her doctor’s notes on muscle weakness inconsistent.

MetLife utilized Dr. McPhee’s assessment to reject the medical director’s conclusion and to decide that Hennen did not meet the exception for radiculopathy.  Dr. Buvanendran responded that the EMG confirmed radiculopathy without any doubt and that Hennen suffers from radiculopathy.  In response, Dr. McPhee prepared an addendum and opined it would be helpful for Hennen to have additional electrodiagnostic testing.  MetLife did not order an IME or additional testing as Dr. McPhee had recommended nor did MetLife explain why additional testing was unnecessary. Instead, MetLife upheld its decision the next day.

Hennen sued MetLife in the Northern District of Illinois seeking plan benefits under ERISA. Upon cross-motions the court granted summary judgment for MetLife, reasoning Hennen failed to offer evidence of active radiculopathy.  The court also found MetLife’s reliance on Dr. McPhee’s opinion was reasonable.

Upon appeal to the Seventh Circuit the court agreed that Hennen had shown MetLife’s decision to terminate benefits was arbitrary and capricious.  MetLife acted arbitrarily when it credited Dr. McPhee’s opinion over the opinions of four other doctors, including Hennen’s treating physician, two neurologists with clinical training in electrodiagnostic training, and MetLife’s own medical director. The arbitrary character is demonstrated by MetLife’s choice not to follow Dr. McPhee’s recommendation to order an IME and additional testing.

To reach the conclusion that that Hennen lacked “objective evidence” of active radiculopathy MetLife relied on Dr. McPhee’s opinion based solely on a file review without examining Hennen. MetLife acted arbitrarily in rejecting the opinions of every physician who examined Hennen who concluded she had radiculopathy. Those doctors’ opinions ad substantial medical support and Dr. McPhee was the only doctor who believed that radiculopathy was absent. But MetLife never asked McPhee to diagnose Hennen or make a finding of radiculopathy.  McPhee was only asked to assess Hennen’s functional limitations once Dr. Adewumni concluded Hennen met the plan’s radiculopathy exception.

Another indication of arbitrary decision-making was MetLife’s failure to heed Dr. McPhee’s recommendation to seek further testing and an IME.  MetLife chose not to follow up on Dr. McPhee’s advice and instead treated his original opinion as definitive and immediately sent Hennen a letter affirming the denial of benefits.

As a fiduciary, MetLife owed Hennen a duty to execute faithfully the terms of the plan. Here, MetLife took an extra step for its own benefit when it referred Hennen’s file to Dr. McPhee, but when Dr. McPhee recommend that MetLife take an extra step for Hennen’s benefit – to confirm whether his lone opinion was accurate – MetLife declined to take that step.  That was arbitrary and capricious.

The fact that MetLife acted arbitrarily and capriciously does not mean that Hennen is automatically entitled to benefits.  The remedy is to remand to MetLife, so it can reassess Hennen’s claim consistent with the court’s opinion and to correct the defective procedures and provide Hennen with the procedures she sought in the first place.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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