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Can You Give Me Another Example of How Insurance Companies Misbehave?

Sure. Under ERISA, before denying a claim, an insurance company or “plan” has “the responsibility to fully investigate” that claim. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1199-1200 (11th Cir. 2010). Moreover, to survive judicial review, the termination of benefits must have “a reasoned explanation,” resulting from “a deliberate, principled reasoning process.” Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989); Killian v. Healthsource Provident Administrators, 152 F.3d 514, 520 (6th Cir. 1998). Typically, no such “full investigation” or “reasoned explanation” takes place and an insurance company arbitrarily rejects the opinions of a claimant's treating physicians in favor of non-examining, file reviewing medical consultants. Many times an insurance company will fail to request an independent medical exam or even a peer-to- peer consultation. This is important because “Reliance upon the opinion of a non-examiner in the face of strong, consistent examining source opinions should generally be disfavored. It has been noted in Social Security cases that to evaluate disability without personal examination of the individual . . . is medical sophistry at best.” Spencer o/b/o Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985). District courts within the Sixth Circuit, evaluating ERISA long term disability claims, have come to similar conclusions regarding the weight that should be given to opinions of doctors who purport to evaluate disability without examining the claimant. Smith v. Aetna, 312 F. Supp. 2d 942, 954 (S.D. Ohio 2004); Meyer v. MetLife, 341 F. Supp. 2d 865 (S.D. Ohio 2004). And, as stated by the court in Black v. Unum Life Insurance Company of America, 324 F. Supp. 2d 206 (D. Me. 2004): “While the Supreme Court has said that treating physicians are not due any ‘routine deference,' [citation omitted], reason dictates that the assessment of an impartial physician who has actually examined a particular patient is likely to be more reliable than the assessment of an equally impartial physician who has only reviewed the paper file.” 324 F. Supp. 2d at 215 n. 8.

The Sixth Circuit has reached a similar conclusion, holding that whether a doctor has physically examined the claimant is a factor that may be considered in determining whether a plan administrator acted arbitrarily in giving greater weight to the opinion of a non-examining physician. Kalish v. Liberty Mutual, 419 F. 3d 501, 508 (6th Cir. 2005). See also Calvert v. Firstar Finance, Inc., 409 F. 3d 286, 295 (6th Cir. 2005); Smith v. Continental Casualty Co., 450 F.3d 253, 263 (6th Cir. 2006); Moon v. UnumProvident Corp., 405 F. 3d 373 (6th Cir. 2005); Kinser v. Plans Admin. Comm. Of Citigroup, Inc., 488 F.Supp.2d 1369, 1382-83 (M.D. Ga. 2007) (rejecting plan administrator's decision that was based on “a selective review of the evidence and reliance on a cold record review by a non-examining doctor”). Furthermore, it is significant if the plan gives the insurer the right to obtain a physical examination which the insurer fails to obtain in favor of only obtaining a non-examining reviewer's opinion. See Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir. 2005) (“we find that the failure to conduct a physical examination—especially where the right to do so is specifically reserved in the plan—may, in some cases, raise questions about the thoroughness and accuracy of the benefits determination”); see also Smith v. Continental Casualty Co., 450 F.3d 253, 263 (6th Cir. 2006). Moreover, a file-reviewer's opinion may be found inadequate where the file-reviewer ignores or fails to rebut key evidence of disability. Calvert, 409 F.3d at 297; Kalish, 419 F.3d at 510-11. This is particularly true when the file reviewer not only does not examine the claimant, but fails to even speak with the treating source with whom he disagrees. See Smith, 450 F.3d at 262. Accordingly, where an insurance company does not request an independent medical examination and does not rebut the key evidence of a claimant's treating physicians or even speak with them, the claimant's chance of prevailing on the merits is substantially increased.


Seth has always been compelled to excel, whether it meant earning his Eagle Scout as a teenager, participating in theater, debate and varsity football in high school, his Rhodes Scholar candidacy in college, or opening his own law firm. He also perseveres in situations others might shy away from, whether it involves sky-diving, rappelling down a mountain, white-water rafting, participating in marathons and triathlons, writing a novel, or lecturing nationally to large audiences about the vagaries of ERISA.


Seth is committed to serving disabled individuals. He is proud of his work in prominent organizations such as the American Association for Justice (AAJ), the Tennessee Bar Association (TBA) and Hospice. Seth is past-Chair of both AAJ's & TBA's Disability Law Sections, past-President of the Chattanooga Trial Lawyers Association, a 2-time recipient of the Pro Bono Excellence Award, and a 7 year member of the Board of Directors for Hospice of Chattanooga.