Many attorneys and courts assume that an independent medical exam (IME) is a fair and even-handed way to evaluate whether a long-term disability claimant truly meets the definition of disability. In many cases, it appears that the long-term disability carrier need only obtain an IME and that is enough to terminate benefits and have a court approve that decision. But many have misunderstood the role of the court. Article III courts must do more than rubberstamp a decision by a long-term disability carrier. Why would Congress allow for a full review of any long-term disability carrier's decision by a judge, constitutionally protected with a lifetime appointment, if the review was to be a mere rubberstamp? This rubberstamping seems more pronounced in cases in which an IME was conducted.

Recently, a judge in the District of Oregon noted the game that can be played with IMEs and showed his disdain for the Hartford's antics which involved an IME purchased from one of its regular IME vendors. See Black v. Hartford Life Ins. Co. 3:17-CV-1785-HZ, (D. Or. 2019). He did not think the IME was valid and not very “independent” in the sense of being fair and reasonable.

Mr. Black became disabled in 2005. He received benefits for being disabled from his own occupation. Two years later, he was found to be disabled from any occupation and he continued to receive benefits. In 2009, the Social Security Administration found Mr. Black disabled from performing any gainful occupation and awarded benefits retroactive to 2006. That award of Social Security was an offset (or reduction) to the Hartford benefit so Mr. Black dutifully paid a large portion of his Social Security Administration award to Hartford. He had been overpaid his long-term disability benefit in the past, so he paid the Hartford as they directed.

In 2015, Hartford apparently “got a wild hair” and decided it had been paying Mr. Black's long-term disability benefit long enough. We call the game Hartford played “The Set Up.” It assigned the claim to its Special Investigation Unit (SIU). This unit takes aggressive actions toward terminating benefits. (Yet another reason you need experienced ERISA counsel during the claim process!) SIU hired a third-party contractor to begin surveillance on Mr. Black. They saw that he could walk with a cane, use public transportation, go to the bank, get his hair cut, and shop for a short while. Hartford must have thought, “The nerve of this guy. He could be working a full-time job if he can do those things.” (Newsflash, Hartford … there were accommodations for those with disabilities at those businesses, which isn't always true in the workplace.)

So, Hartford took another tact — a home interview. Perhaps they could catch Mr. Black in a lie. That didn't work, so Hartford implored yet another expensive option — hiring an “independent” medical examiner. The word independent is in quotes for a reason. This was one of their regular doctors supplied by one of their regular IME vendors. Who's paying the bills? Right. Independent.

Many inexperienced counsel fail to delve into the background and practices of the IME doctor, the vendor and its relationship with the carrier, or even the claimant's voluminous medical history. As a result, many courts have nothing to review. So, what are they supposed to do?

The court here noted that three of the Plaintiff's treating doctors had found that Mr. Black suffered from Parkinson's disease and migraine headaches, therefore he could not work a full-time job. The IME doctor ignored those opinions, which were based on more than a decade of treatment. After a short exam, he found that Mr. Black “had normal muscle bulk and tone, no pronator drift, normal fine motor movements, and a distractible tremor.” In just a few short minutes he concluded that Mr. Black didn't have Parkinson's disease at all. All three treating doctors must have been mistaken. And, in fact, Mr. Black was not disabled at all. He was clearly a malingerer.

Incredibly, the IME doctor failed to show any evidence of any improvement in Mr. Black's condition from when the Hartford had decided that he was disabled. Hartford's SIU seized on the doctor's report, terminated benefits, and ignored Mr. Black's appeal of their decision.

The court did not think much of the IME doctor's report. It noted he did not appear to have reviewed all of the pertinent records and that Hartford had to ask him to add more information to his report. The court further pointed out that the doctor had relied heavily on surveillance video – which did not provide evidence of Mr. Black's ability to work a full-time job. Without some evidence of improvement, it was impossible to see any consistent decision-making from Hartford. There had to be a rational basis for terminating benefits even with an IME.

The Court reversed Hartford's decision and ordered reinstatement of all benefits. Unfortunately, Mr. Black will continue to deal with Hartford and its SIU, and must worry about his benefit claim being terminated in the future. But that is ERISA.

Many clients ask if their long-term disability insurance carrier can terminate benefits after they have been on claim several years and after the Social Security Administration has also found disability. The answer is unfortunately “yes”, especially with an SIU and an IME. They often get away with it. Having experienced ERISA counsel is critical when this happens. We are in for the long-haul with our clients – representing most over several years to protect them from such tactics.