Sixth Circuit: IME Results Doom Plaintiff's Disability Claim

In administering disability claims, ERISA plans often require claimants to undergo examination by doctors selected by the plans.  Even when a claimant’s treating physicians concur that he or she is totally disabled, the plans commonly seek opinions from an examining physicians regarding the claimant’s condition, prognosis, and impairment.  Many claims are denied based largely, if not exclusively, on the opinions of examining physicians.  It is common for claimants to challenge reliance on “independent medical evaluations” by plans and insurance carriers.  After all, examining physicians often spend very little time with a claimant, have not seen the affects of the claimant’s condition over time, and arguably have less ability to assess the claimant’s credibility.  What’s more, there are often allegations that the examining physician may be biased in favor of plans and carriers, which typically pay the examining physician’s bill. 


The bottom line is that the use of examining physicians can seriously affect the outcome of an ERISA claim.  Indeed, in Lupo v. Daimlerchrysler Corp., 2008 U.S. App. LEXIS 13658 (6th Cir. Jun. 24, 2008), the use of an examining physician became entirely conclusive.  Michael Lupo sought disability benefits under his employer's pension plan, which contained this eligibility language:

The medical opinions of the physician or physicians shall resolve the issue as to the individual's condition.  Provided they are consistent, such opinions shall be binding upon the Employee Benefits Committee which, following receipt thereof, shall render its findings in accordance with such opinions.  If the physicians shall disagree over the issue of whether the Employee is Permanently and Totally Disabled or as to the duration of such condition, the matter shall be submitted to an independent medical examiner.  Such independent medical examiner shall render his opinion which shall be binding upon the Employee Benefits Committee.  Following its receipt thereof, the Employee Benefits Committee shall render its findings in accordance with such opinion.   

Lupo’s treating physician affirmed that he was unable to work under the standards for Social Security total disability.  The opinion indicates that the defendant’s physician (presumably a doctor reviewing medical records, although the opinion does not say) did not agree with the treating physician’s finding of disability.  Under the plan language, the case thus came down to the opinion of the examining physician.  Although the examining physician found that Lupo was "likely suffering from a severe persistent mental illness, which does render him incapacitated and unable to work," the physician concluded that Lupo had not attempted to receive full treatment necessary to determine his disability status. 


Lupo sued pro se for disability benefits under the plan.  In affirming the federal district court’s ruling in favor of the plan, the Sixth Circuit found that the plan was bound by the opinion of the examining physician.  The court thus concluded that the plan had properly denied the disability benefits.  There was apparently no allegation that the examining physician’s conclusions were biased in favor of the plan.    


The plan language seems quite harsh, as it allowed the plan to rely solely on the opinion of the examining physician without consideration of the overall circumstances or an analysis of the varying opinions given by the physicians.  The opinions of the examining physician simply trumped the opinion of the treating physician. 


It is worth stressing that even the examining physician found that Lupo was unable to work.  The examining physician instead opined that Lupo had not received full medical care.  A strong argument can be made that Lupo is entitled to benefits based on the plan language and the finding of disability by the examining physician.  There is no discussion of whether the plan requires “appropriate care,” as many plans do, and whether Lupo had in fact sought or received such care.  It appears that the unrepresented plaintiff did not raise the issue.

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