This game is a little complicated, but most ERISA games are. Long-term disability (LTD) claims administrators are supposed to consider all information provided by the claimant. However, the claims administrator determines the weight given each piece. If an insurer gives too little weight to credible information, it could be found to have acted arbitrarily and capriciously. Therefore, the claims administrator must have a reason for giving harmful evidence little weight. Carty v. MetLife illustrates one of the games played by insurers dealing with such information.

Mr. Carty worked in the information technology department of Eastman Chemical Company. The company had a self-funded long-term disability plan. MetLife was the plan's claims administrator. In 2013, Carty stopped working due to Bipolar II disorder. He was approved for long-term disability benefits. A year and a half later, MetLife terminated his claim. A Metlife senior psychological clinical specialist determined that Carty was not visiting one of his treating professionals enough. So, he recommended a full review of Carty's file. MetLife determined that Carty was no longer disabled and terminated his claim. Carty filed an appeal with ample evidence. It fell on deaf ears.

Carty filed suit. The court found Carty was in fact disabled and that MetLife's decision was wrong. It found that MetLife's reasoning was conclusory and confusing. It also noted that MetLife had relied on opinions that it sought and ignored symptoms and opinions of the treating psychiatrist and psychologist. The court said that while MetLife has discretion in choosing which professional opinions to credit it still has to consider them all along with documented symptoms. The court found that MetLife had acted arbitrarily and capriciously. Despite this finding, the court gave MetLife a second bite at the proverbial apple. The case was remanded for MetLife to further consider its findings. Meanwhile, Carty would receive no benefits.

MetLife posed a number of questions to Carty's treating physicians. It got inconsistent answers. Insurer's often ask several different medical providers the same question which they know does not have a clear answer. Their inconsistent answers justify ignoring their opinions and pave the way for the insurer to seek a more favorable opinion from others. MetLife was able to disregard the opinions of Carty's treating physicians and instead use a peer review process made up of its own hand-picked independent physicians.

MetLife chose Dr. Pamela Auble, a neuropsychologist, to undertake this review. She found some mild limitations but nothing indicating consistent and persistent limitations. She believed Carty's medications were likely causing his mild memory difficulties and that his medication regimen should be changed.

MetLife sent Auble's report to Carty. It also contended that Carty could work a full-time job as evidenced by his work as a realtor. Carty wisely obtained ERISA counsel who challenged the neuropsychological report and provided ample additional evidence to counter MetLife's arguments. Though Carty had attempted to work as a real estate agent, his earnings were less than a third of what he previously earned. Therefore, under the disability policy, Carty was entitled to benefits.

MetLife affirmed its refusal to pay benefits. So, Carty filed an appeal in August 2017 all the while not receiving any benefits. MetLife contended that Carty could certainly earn more than 50% of his pre‑disability earnings and therefore was not disabled under the definition in the long-term disability plan. MetLife offered nothing to support this position. But by using the neuropsychological report as a basis of its decision (which was based upon some issues of fact), it opened the door to the opinions of all of Carty's treating physicians.

This time, the court was a bit aggravated. It could see that MetLife had developed the disagreement between the providers as to Carty's precise cognitive limitations. The court found that the only vocational evidence in the claim record – the information submitted by Carty – revealed that he could not come close to making 50% of his pre-disability earnings. The court shut down MetLife's game. And this time, MetLife wouldn't get another bite at the apple. The court awarded all past-due benefits and ordered MetLife to treat Carty as currently eligible for benefits.

ERISA can be challenging. It is not enough to know the law. You also have to know the games that are played. Experienced ERISA counsel can protect the rights of those with whom the insurer is simply playing games. We know how the games are played. Contact us.