Hired gun doctors locked in an echo chamber of greed

Robert Collins v. Liberty Life Assurance Company of Boston, a.k.a. Liberty Mutual, 988 F.Supp.2d 1105 (CD, Cal. 2013) CV 12-05990

Mr. Collins was leading a normal life before he was struck down by disability. He had served with honor in the United States Marine Corps Reserve. He was newly married. He had fought for custody of his young son by a previous relationship and was awarded custody by the court. He went to work for Sony, excelled at his job and was promoted to the position of Supervisor the following year. His job description showed him to be a high-functioning individual, capable of supervising others, problem solving, decision making, etc. His job performance evaluations were exceptional. He was athletic, physically fit and worked out at the gym almost every day.


But then one day it all came crashing down around him. During a routine work-out at a gym, he suddenly collapsed into unconsciousness. He was taken by ambulance a nearby emergency room and immediately admitted to the hospital, where he remained for the next five days. After that, his life literally fell apart. He suffered constant severe headaches, accompanied by difficulties in concentration and memory to a point where he couldn’t function. He certainly couldn’t work and he could no longer take care of his son. He was forced to give custody of the boy back to his mother.


He saw 9 different medical doctors, most of whom were specialists in neurology, internal medicine, rheumatology and pain management. He underwent a series of diagnostic tests to try to find out what was causing his problems. The most definitive working diagnosis that any of them could arrive at to explain the headaches was that of the Director of the University of California San Francisco Headache Center, who diagnosed a headache disorder that he believed was caused by a leak of Cerebral Spinal Fluid in the brain. This was evidenced by an MRI. This condition in turn triggered an onset of fibromyalgia, which was diagnosed by two treating physicians (an internist and a rheumatologist), and confirmed by a third doctor for the Social Security Administration.


Four other treating physicians concurred with these diagnoses. One of the treating doctors said that the fibromyalgia by itself might not impair Mr. Collins, but when taken in conjunction with his headaches, he could "barely function in any meaningful capacity". Another treating doctor said that "this unfortunate 48 year old man could not hold a job at McDonalds as a cashier, or a job digging ditches". All the examining doctors for the Social Security Administration likewise found him totally disabled and he was awarded Social Security Disability benefits.


Liberty Mutual’s own Independent Medical Examiner said that Mr. Collins’ "symptoms do handicap him" and that he does suffer an "impairment that would not allow him to return to work". Two independent neuropsychologists, found him to be severely cognitively impaired. A third, hired by Liberty Mutual, expressed no opinion. He deferred to the treating doctors on the impairment issue. An independent vocational expert concluded that Mr. Collins was so severely impaired as to have no ability at all to compete in the open labor market.


In the face of what can only be described as a mountain of evidence, one might think that Liberty Mutual would have readily paid Mr. Collins his Long Term Disability (LTD) benefits. But that’s not what happened at all. Liberty Mutual did find that he was disabled from his "Own Occupation" and it paid his benefits for a period of 24-months. But after 24 months, the plan definition of "Disability" changed from an "Own Occupation" to an "Any Occupation" definition. Shortly after that change occurred, Mr. Collins' LTD benefits were abruptly cut off. The termination letter stated that it was Liberty’s conclusion that he was totally unimpaired and that he had the ability not only to work full time in certain identified "alternative occupations", but he suddenly had the ability to perform the duties of his own occupation as well. Liberty’s claim investigation was inherently flawed and the conclusions stated in that letter were patently absurd (as would later be demonstrated in court). After Liberty Mutual terminated his benefits, Mr. Collins was financially supported by his family and the small Social Security checks he received each month.


Liberty’s handling of Mr. Collins' disability claim was in my opinion hideous and riddled with procedural irregularities. For example, it sent him for a neuro-psychological "Independent Medical Examination" (IME). But the IME doctor declined to state an opinion as to whether he was disabled or not, saying only, "I defer to his physicians any opinion as to whether his headache condition prevents him from engaging in sustained employment." So at that point in the process the claims examiner, sent the IME doctor’s report over to one of Liberty's stable of paid medical "consultants", so that he could reinterpret the report. Without ever laying eyes on Mr. Collins and without examining any of the test data at all, Liberty’s consultant was able to merely read the IME report and state conclusions that were contrary to those stated by the IME doctor, himself. Whereas, the IME doctor acknowledged the possibility of a "severe pathology", Liberty’s consultant found that "there is evidence of intention to mislead the examiner and bias the examination". Whereas the IME doctor deferred to Mr. Collins' treating physicians as to the extent of his work impairment, the consultant was able to state emphatically that Mr. Collins' work restrictions were "embellished" and non-existent. And not only was the consultant able to state his opinions without the benefit of any direct medical evidence, but he even stated them for the record, "to a reasonable degree of medical certainty".


Then the claims examiner, sent the consultant’s report over to Liberty’s in-house vocational consultant, who prepared a vocational assessment report, based on the medical consultant’s biased reinterpretation of the IME report. Her report quoted the medical consultant extensively, finding "no restrictions and limitations". A reading of the report by an unsuspecting reader, would suggest that medical consultant had actually performed the IME. The effect was to give the consultant’s conclusions some medical basis in fact that they clearly did not have. By the time the vocational consultant was finished, she concluded that Mr. Collins could actually return to his own occupation at Sony, which was tantamount to a finding that he was never disabled in the first place. And if that wasn’t bad enough, just like her medical consultant compadre, she stated her conclusions for the record, to "a reasonable degree of vocational certainty". Then the claims examiner’s denial letter latched onto the suspect "findings" of Liberty’s paid medical and vocational consultants, to the exclusion of all other medical evidence supporting Mr. Collins’ claim. This was a textbook demonstration as to how insurance companies combine biased medical exams with bogus, self-generated vocational reports to deny legitimate disability claims.


In addition to that, the claims examiner purported to base the benefit termination on the results of undisclosed surveillance video that Liberty Mutual's private investigator shot, while outside the IME doctor’s office on the day of the exam. To quote from the surveillance report, "43.25 minutes of video was obtained of the (claimant) standing and pacing around while he waited for his ride. He did not display any restrictions". Of course the reason why Mr. Collins (and his wife) were "standing and pacing around" in front of a building on a November day in downtown San Francisco following the IME, was because Liberty Mutual had arranged transportation for them to and from the IME; and their ride home (conveniently) didn't show up for more than an hour, while the private investigator's camera kept rolling from across the street. But since they had no way of knowing when the ride would show up, what else were they supposed to do?


Under the "Any Occupation" definition of "disability" in Mr. Collins' LTD plan, a disabled person must be "unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation". It was the opinion of practically every doctor and expert who had ever seen Mr. Collins that he couldn't reliably and consistently preform any of the material duties of any occupation – let alone all of them. And the only doctors or experts who said that he could were those hired by Liberty Mutual, not a single one of whom had ever so much as laid eyes on him.


As is required by ERISA, an administrative appeal of the long term disability claim denial was submitted that was specifically directed at the reasons stated for the initial denial of the claim as were set forth in the denial letter. Every such stated "reason" was rebutted by direct evidence. Liberty simply took an extension of time to respond to the appeal and then it used that extra time to try to create a new and different "administrative record" than the one it initially relied on – a new record that it hoped would be more supportive of its claim denial. It did this by adding into the record at the last minute additional reports, written by four "paper-reviewing" doctors. And if that wasn't bad enough, Liberty refused to disclose those reports, until after the case was in litigation, but yet it based its final decision, upholding the denial of the claim, on those undisclosed reports. In that final decision letter, every shred of evidence supporting Mr. Collins' claim was disregarded, while any evidence that might prop up a denial was seized upon. These kinds of tactics undermine the whole purpose of the ERISA claim review process -- Which by law is supposed to be "full and fair".


This was one of the most egregious cases of an abuse of discretion that I have seen in more than 25 years of handling ERISA LTD cases. Liberty Mutual’s denial of Mr. Collins' claim was beyond suspect. It was outrageous. There was an untimely decision by Liberty Mutual on the administrative appeal; an overstating of the results of the surveillance; a denial based on pure paper reviews; a complete ignoring of the Social Security decision; a selective review and cherry picking of evidence; manipulating and distorting evidence; relying on an objective evidence standard that’s not even in the plan; a refusal to disclose information relied upon; inadequate communication with the claimant; and just outright adversarial conduct. Given the case law of the 9th Circuit, any one of these things could have constituted an abuse of discretion in the eyes of the Court – but all of them in the same case?? It was a "no-brainer".


The U. S. District Court Judge was not amused. As to the surveillance observation that Mr. Collins was seen "standing and pacing around" and did not "display any restrictions", she said, "Would it have made more of a difference if Collins had writhed in pain on the pavement in front of the camera rather than as soon as he returned home and could climb into his bed?" With regard to the four MES Solutions reviewers that were brought in to try to salvage the claim denial, she compared it to a "review process (that) was tainted with doctors in an echo chamber seeking objective indicia of disability despite the inherently subjective nature of Collins' chronic pain and headache complaints". The following excerpt sums up her findings:


"In determining the appropriate degree of deference, the Court must consider Liberty's course

of dealing with Collins. Saffon, 522 F.3d at 872. The district court may consider several factors

in determining the appropriate amount of deference, including whether the administrator (1)

ignored Collins’ self-reports that are inherently subjective and not easily determined by objective

measurement; (2) had a meaningful dialogue with Collins in deciding whether to approve the

benefits claim; (3) spoke with Collins' doctors without notifying him, (4) took Collins’ doctors'

statements out of context or otherwise distorted them, or (5) conducted a ‘pure paper’ review.

Id. at 872-73; Montour, 588 F.3d at 635. All five factors exist in this case, suggesting that

enhanced skepticism is warranted."

Collins v. Liberty Life at 1127.

"The Court finds the administrative record contains overwhelming evidence that Collins suffered from

a disability within the meaning of the LTD Plan and therefore qualified for LTD benefits . . ."

Id at 1130.

The court’s decision is a jewel, well worth reading and a link to it is provided below.

Read the opinion: Collins v. Liberty Life Assurance Co.



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© 2014 by Michael A. McKuin

Attorney at Law

Post Office Box 10577

Palm Desert, CA 92255

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