The Law Firm of Kantor & Kantor, Llp Represents Plaintiff in a Case Against Aetna (Wible v. Aetna Life Insurance Co., 375 F.Supp.2D 956 (C.D. Calif. 2005) , Which Soundly Demonstrates the Need for Reform in Erisa Litigation.

Law Bulletin: October 18, 2005 Volume: 151 Issue: 204 - Death Apparently Not Enough to Prove Disability

By Mark D. DeBofsky, Esq.

The disability insurance policy at issue in a federal court decision acknowledged that the insurer was a fiduciary and had discretion to determine eligibility for benefits and construe the policy terms. The policy further stated that ERISA fiduciaries ''have an obligation to administer the plan prudently and to act in the interest of you and other plan participants and beneficiaries.''

Despite that language, the ruling in Wible v. Aetna Life Insurance Co., 375 F.Supp.2d 956 (C.D. Calif. 2005), shows that acting as the claimant's adversary rather than as her fiduciary results in a loss of discretion.

The plaintiff's decedent, Marianne Wible, worked for Boeing as a registered nurse in its health service unit, and in 1990, she was diagnosed with lupus by a leading expert on the disease, Dr. Daniel Wallace, chief of rheumatology at Cedars-Sinai Medical Center. With care and treatment, Wible was able to remain employed until early 2001, when she went on short-term disability.

Thereafter, she applied for long-term disability benefits, and on the attending physician statement, Wallace noted that Wible's condition had led to interstitial pneumonitis and that she had developed toxicity to steroid treatment, causing cognitive impairments.

The claim was approved, but shortly thereafter, the file was reviewed by Dr. Brent Burton, an in-house physician who acknowledged the lupus diagnosis but opined there was insufficient objective evidence to support disability due to breathing impairments and toxicity caused by steroids.

Consequently, Aetna requested an independent medical examination, which resulted in a determination that Wible was disabled from any and all occupations based on positive findings on objective testing and a biopsy. The exam found that the claimant had developed a seizure disorder, fibromyalgia and gastrointestinal impairments. The examiner also suggested the impairments were permanent.

Despite the examiner's findings, Aetna questioned why Wible could not work at a sedentary job. In response, the independent physician wrote that she was likely to become very tired after 3-4 hours. Aetna also performed surveillance over eight different days: during that period, Wible hardly ever left her home. The claimant also was awarded Social Security disability benefits at around that time, yet none of this evidence led Aetna to conclude Wible was disabled.

Instead, the insurer retained yet another physician to review the file. This doctor completely disagreed with both the treating physician and the independent examiner. The reviewing doctor even questioned the lupus diagnosis.

In response, the treating doctor wrote a rebuttal challenging the reviewer's qualifications since he was not a rheumatologist. The rebuttal asserted that the reviewer was ''extremely ignorant about lupus.''

Wallace detailed basic errors the reviewer made, wrapping up with this statement: ''To conclude, when you have a patient with documented seizures, organic brain syndrome with a mild dementia, hypertension, sun restrictions, inflammatory arthritis, immune suppression and scarred-down lungs, it does not take a rocket scientist to ascertain that this patient has significant restrictions.''

The reviewer wrote back, disagreeing with Wallace; Aetna terminated benefit payments shortly thereafter.

Plaintiff Immediately Filed Suit

Wible commenced an appeal, but died soon after due to complications of lupus, according to the death certificate. Despite being provided with the death certificate and records showing evidence of a lupus flare, Aetna upheld the denial without contacting any of the physicians or having the records reviewed by a medical professional. The plaintiff immediately filed suit.

Shortly after commencing litigation, the plaintiff moved for a determination as to the appropriate standard of judicial review. As part of that motion, the plaintiff asked the court to take judicial notice of the California Department of Insurance opinion letter prohibiting discretionary clauses, as well as references to books about lupus written by Wallace, the treating doctor, along with a Web page for the American Academy of Allergy Asthma and Immunology.

Over the defendant's objections, the court took judicial notice of the documents. The court then turned to the plaintiff's motion to summarily determine the appropriate judicial standard of review. Despite language in the policy giving Aetna discretion, the court found that de novo review would still result if the insurer had acted under a serious conflict of interest with proof that the insurer was influenced in its claim decision by self-interest.

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