Attachment J to the Final version of the Order to Show Cause (April 1, 1999) See Also the ORIGINAL motion of 01/28/99.




Attachment J ^÷ Morris v. UNUM, Second Order to Show Cause and Temporary
Restraining Order

CASE LAW AND STANDARD OF PROOF FOR CFS, FM, CHRONIC PAIN AND OTHER
^”SUBJECTIVE^‘ DISABILITIES and other related case law.

Ace v. Aetna, (9th Cir., 1998) No. 96-35813, 96-36020

In this disability case the jury awarded Ace $16.5 Million dollars in
punitive damages. In this case plaintiff^“s LTD claim was know to be only
temporary if she could get the required surgery on her knee.  However,
her doctor^“s required her to heal from the previous surgery first.
Meanwhile she would continue to suffer debilitating pain and immobility.
Aetna denied the LTD requests even though plaintiff^“s financial
situation was desperate.  Aetna^“s investigation was very incomplete and
ignored much of the information they had requested from plaintiff. They
used policy definitions that were not legally binding and refused to
answer Ace^“s questions or provide her with adjustment guidelines.  Aetna
lies and claimed they had no ^”claim adjustment guidelines^‘ even though a
manual was produced during discovery entitled ^”Proper Claim Handling
Guidelines.^‘  Ace was forced to sell her home, most of her possessions
and lived in her car for several months.  Ace^“s subsequent surgery was
successful and she returned to work.

Appeals court unfortunately thought the punitive damages were excessive
although they agreed with the district court that punitive damages were
warranted due to Aetna acting with ^”malice, bad motives or reckless
indifference.^‘  The Appeals Court found that punitive damages were
warranted based on Aetna^“s (1) basing denial of the claim on an illegal
standard for benefit eligibility; (2) failing to inform the claimant of
the standard actually used by Aetna in evaluating disability claims; (3)
failing to investigate the claim and to seek or request the supporting
information alleged to be missing; (4) failing to assist the claimant in
presenting her disability claim; (5) relying on outdated prognoses of
the claimant^“s expected recovery and disregarding recent reports of her
actual condition; (6) denying her claim based on an undefined
^”requirement^‘ not a term of her policy and contrary to Aetna^“s internal
claim adjustment guidelines; (7) falsely advising the claimant that
Aetna had no claim adjustment guidelines; and (8) making a last-minute
demand for an IME after having denied the claim.^‘

 ^”when an insurance company wrongly refuses to honor its obligations,
emotional distress is a natural and believable response.  Insureds
bargained and paid for the security and peace of mind of knowing that
reimbursement and financial support would be provided in the event that
a misfortune occurs. As insurance payments often serve as a safety net
for the insured, Aetna^“s refusal to cover Ace^“s injury is foreseeably
egregious.^‘

 In an irrational opinion however they denied Aetna^“s motion for new
trial on the punitive damages only if Ace would accept $381,000 instead
of the jury^“s verdict of $16 Million although Judge Fletcher dissented
with the following statements:

 ^”The majority pays only lip service to the Alaska Supreme Court^“s
determination that the facts, and not the ratio, drive the results of a
review of punitive damages.^‘ ^”the facts of this case would support a
much higher award^Ň.as to the ^—magnitude of the offense,^“ we need only
look to the harm caused to Ace, harm that her insurance was intended to
avoid.  She lost everything she had, including her home; she had to live
in her car; and she had to send her child away because she couldn^“t care
for him. Next, with respect to the ^—importance of the policy violated,^“
Aetna^“s wrong and bad faith refusal to cover Ace implicated a much
broader company policy of wrongfully denying coverage to many who met
the definition of ^—disabled,^“ exhibiting a callous breach of trust owed
to their insureds at a time when they are most vulnerable.  Finally, the
^—defendant^“s wealth,^“ is estimated at 1.7 billion dollars and the
evidence presented demonstrates that Aetna^“s assets would not be
sufficiently diminished by the punitive damages award set by the
majority.  Punitive damages by definition are to be adequate in amount
to punish the offender.^‘

  The court then issued an amended opinion stating that the amount of
punitive damages could be reduced but the amount would be determined by
the district court and deleted the dissenting opinion.  The also awarded
costs to Ace.

Armstrong v. Aetna, 8th Cir. Appeals Court, No 97-1712, 1997
The Court found that Aetna ^”by reasoning of the Eleventh Circuit^“s
holding in Brown, which stated that a relationship that places an ERISA
benefits plan administrator in ^—perpetual conflict^“ warrants a higher
level of scrutiny. Brown, 898 F.2d at 1561.  Aetna faces a continuing
conflict in playing the dual role of administrator and insurer of the
health benefits plan. As the insurer, Aetna has an obvious interest in
minimizing its claims payments.  Apparently to limit claim payments,
Aetna provides incentives and bonuses to its claims reviewers based on
criteria that include a category called ^—claims savings.^“ ^Ň^Ň Despite
Aetna^“s argument that there is no evidence that Aetna has directed its
reviewers to improperly reject claims, we cannot view the fiduciary
arrangement between Aetna, its claims reviewers, and the plan
beneficiaries as the type ERISA provides as administered ^—solely in the
interest of the participants and beneficiaries.^“ 29 U.S.C. ß 1104(a)(1).

Bellaire Gen. Hosp. v Blue Cross Blue Shield of Mich, 97 F.3d 822, 831
(5th Cir. 1996)
holding that insurance company^“s denial of payment for psychiatric
treatment, based on the application of standards not contained in the
plan, was arbitrary and capricious.

Booton v. Lockheed Medical Benefit Plan 110 F. 3d 1461 (9th Cir., 1997)
^”to deny the claim without explanation and without obtaining relevant
information is an abuse of discretion^‘

Bouchard v. Crystal Coin Shop, Inc., 843 F. 2d 10 (1st Cir. 1988)
^”[w]here the trustees of a plan impose a standard not required by the
plan^“s provisions, or interpret the plan in a manner inconsistent with
its plan words, or by their interpretation render some provisions of the
plan superfluous, their actions may well be found to be arbitrary and
capricious.^‘

Brown, 898 F. 2d at 1561
^”Because an insurance company pays out to beneficiaries from its own
assets rather than the assets of a trust, its fiduciary role lies in
perpetual conflict with its profit-making role as a business.^‘

Chambers v. Family Health Plan Corp., 100 F.3d 818, 826 (10th Cir. 1996)

^”When an insurer may promote the potential for its own profit by denying
plan participants claims, deference to its decision in a particular case
will be lessened to the degree necessary to mutualize that conflict.^‘


Clausen v. Standard Insurance Co., 961 F. Supp. 46 (D. colo. 1997)
The Court recited the uncontroverted medical evidence that Clausen
suffered from CFS and noted that none of the independent examiners to
whom Standard referred Clausen disagreed with the CFS diagnosis. Id. at
1455-56. The Court said:

 ^”Standard^“s attempt to ignore the CFS diagnosis of Clausen^“s treating
physicians and to require instead, that Clausen provide ^”objective^‘
evidence of a distinct ^”physical disease^‘ runs afoul of established law
in this circuit.^‘

Id. at 1456. Citing Sisco v. United State Department of Health and Human
Resources, 10 F.3d 739 (10th Cir. 1993), the Court found that:

     ^”the lack of ^—objective^“ medical evidence to ^—prove^“ Clausen was
disabled by her fatigue and pain cannot constitute substantial evidence
that Clausen was not disabled, i.e. that she was capable of full-time
work.  I now find in addition that neither the surveillance video nor
Dr. Thompson^“s report constitute such evidence.^‘

Cohen V. Secretary of H.H.S. 964 F2d 524 (6th Circuit 1992)  - CFS
patient who finished one year of Law School in three years.  The court
saw her activity as a tribute to her courage and determination in
refusing to surrender to the debilitating affects of her illness.  They
went on to acknowledge that ^”CFS is characterized by exacerbations and
remissions which are unpredictable in nature and which make sustained
work activity virtually impossible^‘
^”the exact causes of chronic fatigue syndrome are still being explored.^‘

Dishman v. UNUM, 96-0015JSL, Federal Court C.D. May 9, 1997
the insurer engaged in tactics designed to force the insured into
accepting a much lower offer than what would have been reasonable.
Ultimately the insurer terminated benefits altogether, and the claimant
sued.

The Court was appalled by the insurer^“s conduct and explicitly found
that such conduct ^”may be closer to the norm of insurance company
practice than the Court has previously suspected^‘  The Court added that
the facts of the case were ^”disturbing^‘ and illustrated that the absence
of penalties results in ^”no practical or legal deterrent to unscrupulous
claims practices.^‘
The court suggested that the ^”public interest would be served if ERISA
contained a statutory penalty which could be imposed by the Court in
extraordinary cases.^‘

Furthermore Judge Letts stated that the plaintiff ^”suffered irremediable
harm as a result of the termination of benefit payments to him.  He has
been forced to sell stocks and make distributions from his IRA in order
to pay living expenses.  As a consequence, he has incurred taxable
income which might have been deferred or avoided.  Mrs. Dishman has been
required to return to full-time employment.  Finally the purpose of
disability payments is to provide a disabled individual with periodic
income with which to pay living expenses.  The receipt of a lump sum at
the conclusion of an appeal of this case will not compensate Mr. Dishman
for his loss of periodic income.^‘

Dorsk v. UNUM, No 97-87-P-C (Me.d.Apr.10,1998)
Plaintiff disabled with Obsessive Compulsive disorder.  UNUM paid two
years then terminated benefits under Mental Illness Limitation Clause of
policy.  Plaintiff^“s doctor and current medical science consider
Obsessive Compulsive Disorder not ^”mental^‘ but neurobiological.  UNUM^“s
claim for summary judgment was rejected by the court on the grounds that
the contract language was ^”ambiguous^‘. The Federal District Court
applied the doctrine of Contra Preferentum, strictly construing the
terms against the insurer.

Duncan v. Continental Cas. Co., 1997 WL 88374, 4-5(N.D. Cal 1997)
holding that denial of claim for long term disability based on objective
medical evidence requirement that was not in the plan was arbitrary and
capricious and that fiduciaries may not deny claims because physicians
^”cannot provide physiological proof where the physical condition is such
that physiological proof is not available.^‘
      The Duncan court stated that Continental cannot exclude a claim
for lack of ^”objective medical evidence^‘ unless the ^”objective medical
evidence^‘ standard was made ^”clear, plain and conspicuous enough [in the
policy[ to negate layman [plaintiff^“s] objectively reasonable
expectations of coverage.^‘ Id. citing Saltarelli v. Bob Baker Group
Medical Trust et al, 35 F. 3d 382, 387 (9th Cir. 1994).  The court
further concluded that the denial of Duncan^“s claim was not sustainable
under with the de novo or arbitrary and capricious standard.  It stated,
in pertinent part:
 ^”[M]edical conditions that do not give rise to hard laboratory facts or
data may still be cognizable claims.  In the medical opinion of Duncan^“s
physician, the plaintiff has exhibited symptoms associated with
fibromyalgia or CPS [chronic pain syndrome] and has become totally
disabled as a result^Ň.Continental cannot deny Duncan^“s claim because her
physical condition is such that physiological proof is not available.^‘



Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1037-1038 (7th
Cir. 1990)
holding that denial of benefits based upon guidelines that contradict
plan language is arbitrary and capricious


Fisher v. Aetna, Appeal from Superior Court for the State of Alaska,
Third Judicial District, Case No. 3AN-97-00297
Appeals Court upheld a jury verdict against Aetna in the amount of
$292,000 in compensatory and $8,400,000 in punitive damages in a
non-ERISA case stating the following:

^”Fisher^“s evidence described a corporate calculated risk which
encouraged shoddy claims investigation and banked on the fact that sick
and elderly disabled claimants ordinarily don^“t file lawsuits.  Fisher
also presented evidence that Aetna attempted to prevent discovery of its
misconduct after he complained.
The jury construed the conflicting evidence in Fisher^“s favor, finding
that Aetna acted outrageously^Ň^ŇBecause reasonable jurors could differ
regarding those conclusions, and passion or prejudice did not unfairly
influence this verdict, Aetna^“s motions for judgment notwithstanding the
verdict, new trial or remitter are DENIED.
Trial by jury is a basic constitutional right.
Other evidence also supports a finding that the investigation was
unreasonable, and that Aetna^“s denial was made without a reasonable
basis, including:
-Aetna failed to obtain all of Mr. Fisher^“s treating physician^“s
records, and did not speak with the doctor about Fisher^“s condition;
-When Fisher^“s cardiologist did not respond to Aetna^“s first request for
information, Aetna failed to follow through by making a second attempt
or by calling the doctor;
-Aetna never spoke with Mr. Fisher about the impact of his medical
condition on his daily life and ability to work;
-Aetna based its decision, in part, on selected portions of Fisher^“s
medical records (i.e. ^”doing great today^‘), yet didn^“t investigate other
portions of the records suggesting that Fisher had serious medical
problems (including significant swelling and inability to stand or walk
for other than short periods of time).

The evidence also supports a jury finding that denial of Fisher^“s claim
was not an isolated, honest mistake, and that Aetna acted maliciously or
with reckless indifference to Fisher^“s rights as a policy holder.

- Fisher^“s insurance expert Prater testified that insurers are generally
aware that disability applicants tend to give up and drop their
applications if the insurer makes the process too difficult.  Aetna told
Fisher that if he wanted further information regarding denial of his
claim he would have to serve a ^—subpoena.^“ After Fisher filed his suit,
Aetna concluded that its denial of Fisher^“s claim was likely invalid.
Yet, Aetna vigorously disputed the claim throughout the litigation,
until the third week of trial, when Ms. Gorna conceded that Aetna^“s
handling of the claim was unreasonable.^‘

^”Aetna^“s employees conceded that disability applicants are among the
most vulnerable insurance claimants^Ň.He also described his fear and
anguish when his application for benefits was denied, and when his
continued efforts to convince Aetna to change its mind were
unsuccessful. When considered in a light most favorable to Fisher, ample
evidence supported an emotional distress award of $136,000. And, unfair
passion or prejudice did not influence the award.^‘

^”As noted above, Aetna employees acknowledged that disability applicants
are among the most vulnerable of insurance claimants, that they are
ordinarily sick and unable to work, and that they are often in financial
difficulties.  Thus, the jury could find that insurance bad faith in the
context of a disability claim denial is particularly reprehensible.^‘

^”Aetna concluded early in the case that Fisher^“s claim had merit, but
refused to concede that issue until the third week of trial.^‘


Gawrysh v. CNA Insurance Co., 1998 WL 329719 N.D. III, 1998
The Court then noted that CNA believed that Gawrysh^“s fatigue was caused
by sinusitis rather than CFS and it concluded that such reasoning was
shortsighted:

   ^”CNA did not deny [claimant]^“s symptoms existed or had a debilitating
effect, but concluded that because the symptoms could not, with complete
certainty, be linked to a specific illness, [claimant] was not totally
disabled.  The uncontroverted evidence indicates that [claimant]^“s
symptoms were debilitating and were consistent with chronic fatigue
syndrome.  Rather than punishing [claimant] for the inability of
medicine to specifically pinpoint that cause of her debilitating
fatigue, CNA should have hired experts or used its own doctors to
examine [claimant] to determine the cause and degree of her fatigue.^‘

Thus the fact that it was unclear whether Gawrysh^“s fatigue stemmed from
CFS or chronic sinusitis was an improper basis for denial in the view of
the court.  Instead, CNA utilized a claims specialist who apparently had
no medical training or experience with issues of fatigue to review
Gawrysh^“s medical records, and that made CNA^“s claim denial arbitrary
and capricious.^‘

Gaylor v. John Hancock Mutual Life Insurance Co., 112 F. 3d 460 (10th
Cir. 1997)
The court held, in light of substantial evidence confirming Ms. Gaylor^“s
disability, the reason for denying benefits:

 ^”reminds us of the doctor, who, when asked for a diagnosis, responds,
^—we won^“t know for sure until the autopsy.^“ Gaylor at 467.

The Court held that Ms. Gaylor presented enough evidence to establish
her disability. The court went on to hold these doctors, ^”did not use a
crystal ball to conclude that Ms. Gaylor was disabled; their opinions
were based upon clinical, physical examinations.  The verification
requirement must be treated as evidentiary in nature.  Medicine is, at
best, an inexact science, and we should not disregard the great weight
of evidence merely because objective laboratory diagnostic findings
either are not yet within the state of the art, or are inconclusive^‘,
Gaylor at 467.


Godfrey v. Bellsouth Telecommunications, Inc., 11th Circuit Court of
Appeals, No 95-6480
An ERISA case decided under the arbitrary and capricious standard.  The
claimant had fibromyalgia, lumbar disc syndrome, rotator cuff disease
and severe pain.  The court was critical of the defendant^“s rejection of
clear medical evidence and ignoring the side effects of medication
Godfrey took for her condition.

Irwin v. Shalala 840 F. Supp. 751 (D. Or 1993) ^÷ ^”it is sufficient to
note that CFS has been recognized by several courts as a legitimate
basis for an award of Social Security Disability benefits providing the
patients complex is sufficiently disabling.^‘  The Federal Court stated,
^”a  disability claimant need not vegetate in a dark room in order to be
deemed eligible for benefits nor should an otherwise eligible claimant
be penalized for attempting to maintain some sort of normalcy in her
life and a modicum of independence ..The critical issue in a disability
case is the claimant^“s capacity for work activity on a regular and
continuous, ongoing basis^ŇOne of the more perplexing aspects of CFS is
that sufferers often report that their condition varies considerably
from day to day.  One day they can function reasonably well while on
another day they many be unable to get out of bed.^‘

Johnson v. Trustees of the Western Conf. of Teamsters Pension Trust
Fund, 879 F. 2d 651, 654 (9th Cir. 1989)
holding that ^”trustees abuse their discretion if they^Ň.construe
provisions of [a] plan in a way that clearly conflicts with the plain
language of the plan^‘

Ladd v. ITT Corporation/MetLife, US Seventh Circuit Court of Appeals,
No. 97-4138, June 22, 1998
Metlife encouraged and assisted Ladd in applying for and being awarded
Social Security Disability benefits then turned around and denied her
claim with them.  This case is within the doctrine of ^”judicial estoppel
^÷that if a party wins a suit on one ground, it can^“t turn around and in
further litigation with the same opponent repudiate the ground in order
to win a further victory.^‘

Lang v Long Term Disability Plan of sponsor Remote Technology, Inc, and
Standard Insurance Company
No. 96-56080, court of appeals for the Ninth Circuit, D.C.
CV-95-351-MLH  ^”Brown, 898 F2d at 1561 ^—Because an insurance company
pays out to beneficiaries from its own assets rather than the assets of
a trust, its fiduciary role lies in perpetual conflict with its
profit-making role as a business.^“^‘ ^”once the beneficiary comes forward
with evidence that the fiduciary may have acted in its own
self-interest, a more careful review must be undertaken,  WE explained
that: (IND) principles of trust law require us to act very skeptically
in deferring to the discretion of an administrator who appears to have
committed a breach of fiduciary duty^Ň^‘^‘the plan bears the burden of
rebutting the presumption by producing evidence to show that the
conflict of interest did not affect it decision to deny or terminate
benefits.^‘   ^”Ambiguities in ordinary insurance contracts are construed
against the insurance company.^‘
^”The rule known as the doctrine of contra proferentem, requires us to
adopt the reasonable interpretations advanced by Lang, i.e., that the
phrase ^—mental disorder^“ does not include ^—mental^“ conditions resulting
from ^—physical^“ disorders.^‘

Lantow v Chater, No. 95-5262 (N.D. Okla. October 8, 1996 ^”negative test
results or the absence of an objective medical test to diagnose
fibromyalgia cannot support he conclusion that claimant does not suffer
from a potentially disabling condition.^‘

Lewis v. K-Mart, Lewis v Aetna Life Insurance Co, 1997 WL 671815
(Federal District Court ^÷ E.D. Va. October 24, 1997)   ^”Court overturns
2 year disability limits^‘ ^”in order to justify terminating Mr. Lewis^“
benefits [after 2 years], K-Mart would have to show that its lesser plan
for mental disabilities was based on ^—sound actuarial principles,^“ and
that K-Mart had filed to show that.^‘

In this EEOC/ADA action the court ruled that Lewis had a cause of action
against his former employer, the benefit plan sponsor and against the
insurer, for providing benefits that discriminated against persons
suffering from mental disabilities.  The court agreed with the
plaintiff^“s arguments that such a ruling was more consistent with both
the statutory language of the ADA and the Act^“s goal of eliminating
disability discrimination.  Thus, the court concluded, ^”Both a decision
to deny coverage on the basis of a mental disability and to provide
inferior coverage for mental disabilities target the mentally disabled
for inferior treatment.


Marshall v. Sullivan, 914 F2d 248 (4th Circuit 1990)  - The Court found
that the administrative law judge inappropriately ignored reports of
treating physicians.  The court stated ^”whatever the name (CFS), the
disease exists.^‘

Mitchell v. Eastman Kodak Co., 113 F.3d 433(3rd Cir. 1997)
The Mitchell Court found that the undisputed evidence in the claim file
showed that as of the date of disability, ^—Mitchell^“s chronic and
unpredictable fatigue and loss of concentration made it impossible for
him to sustain regular paid employment.^‘ Id. at 440. It further stated
that:

 ^”Because the disease, although universally recognized as a severe
disability has no known etiology, [citation omitted], it would defeat
the legitimate expectations of participants in the Kodak Plan to require
those with CFS to make a showing of such etiology as a condition for
eligibility for LTD benefits.  Thus is was arbitrary and capricious for
the administrator to deny Mitchell benefits because of a lack of such
clinical evidence of the etiology of his CFS.^‘

Despite its acceptance of the sufficiency of the medical evidence as to
the CFS diagnosis, however, the Mitchell court took great care to point
out that Kodak failed to offer any expert reports or other evidence to
counter Mitchell'^“ proof and instead choose to merely argue about its
alleged insufficiency. Id. at 1054.

^”Moreover, it was impermissible for the Administrator to imply an
additional ^—clinical evidence of etiology^“ requirement not specified in
the Plan document in the context of CFS.  It is now widely recognized in
the medical community that ^—there is no ^”dipstick^‘ laboratory test for
Chronic fatigue Syndrome.^‘ ^”it would defeat the legitimate expectations
of participants in the Kodak Plan to require those with CFS to make a
showing of clinical evidence of such etiology as a condition of
eligibility for LTD Benefits.

Mongeluzo v. Baxter Travenol Disability Plan, 46 F.3d 938, 941 (9th Cir.
1995):
 Court discusses 24 month limitation of benefits for ^”mental illness and
functional nervous disorder^‘ in the context of a CFS claim and rules:

 Because of the rule that ambiguities are to be resolved in favor of the
insured, if either a cause or a symptom of the disease were physical and
caused the disability in whole or in part, then benefits are payable.
Mongeluzo at 951.

 Because the critical terms of the plan are ambiguous, a genuine issue
of material fact exists as to whether Mongeluzo^“s symptoms constituted a
^”mental illness^‘ or a ^”functional nervous disorder.^‘  Consequently we
reverse the district court^“s grant of summary judgment.

The court noted an immunologist had ^”submitted an affidavit submitting
seven medical articles that conclude that chronic fatigue syndrome is
likely caused by an immunological factor and that depression results
from the syndrome, rather than the syndrome resulting from depression.^‘
Mongeluzo at 941, ftnt.1.

Also in Sisco, the Tenth Circuit has held ^”a review of the medical
literature in the record demonstrates that a psychological overlay is
consistent with a diagnosis of chronic fatigue syndrome; it often
develops as a secondary reaction to the physical aspects of the
disease^‘, Sisco at 744, ftnt.1

Monroe v. Pacific Telesis Group Comprehensive Disability Benefits Plan,
971 F. Supp. 1310 (C.D. Cal 1997)
The Monroe Court found the denial to be arbitrary and capricious because
the plan^“s examining physician was not a fibromyalgia expert. Id. at
1315.  In addition, the Monroe court felt that there was objective
evidence supporting Monroe^“s claim in the form of an abnormal sleep
study performed by the treating physician and the treating physician^“s
notation of certain ^”trigger point^‘ that caused Monroe to suffer. The
court further noted that as the treating physician^“s report was more
detailed than that of the plan^“s examining doctor, the denial was
arbitrary and capricious because the plan (1) had given more weight to
its doctor^“s report and (2) had failed to obtain an IME by a
rheumatologist as had been urged by the claimant and her treating
physician. Id.

Palmer v. Standard, Portland, Oregon, Civil No. CV 96-1320JE
Palmer v. University Medical Group, 994 F. Supp. 1221, 1233, 1237-1238
holding that denial of welfare benefits due to lack of objective medical
evidence was arbitrary and capricious; noting that ^”merely because we
cannot see pain or fatigue on an x-ray, or measure it in a laboratory,
does not mean that it is not real.^‘
 ^”the medical opinions of an employee^“s doctor carry more weight than
those of the insurance company^“s doctors.^‘

Postma v. The Paul Revere Life Ins. Co., 1998 WL 641335 at 8 (N.D. Ill
1998)
held that a fiduciary^“s reliance on a doctor^“s limited medical review,
when presented with contrary evidence from a treating doctor, was
indicative of arbitrary and capricious decision making.

Rodriguez, 876 F 2d at 762
claimant who could only work four hours a day was presumptively disabled

Rose v. Shalala 34 F 3d (1st Cir. 1994)
Given the uncontroverted evidence that claimant suffered from CFS, blind
reliance on a lack of objective findings is wholly inconsistent with the
Secretary^“s policy in such cases as expressed in the POMS and other
pertinent policy statements.  The Court continued that although
^—physical examination may be within normal limits,^‘ nevertheless,
^”individual cases must be adjudicated on the basis of the totality of
evidence.^‘ ^”the absence of definitive diagnostic tests for chronic
fatigue syndrome ^—does not constitute substantial evidence to support a
finding that claimant did not suffer from the syndrome^“^‘

Sansevera v. E.I. Dupont de Nemours, 859 F. Supp. 106, 113 (S.D.N.Y.
1994):
Claim erroneously denied by decision maker not consulting an expert
familiar with CFS.

 ^”When confronted with an illness that is admittedly difficult to
diagnose, it is unreasonable to demand evidence of a specific kind of
impairment after experts have concluded that no definitive test for CFS
has yet been discovered.  Moreover, it is unreasonable to ignore the
expert opinions of doctors who, using the best available method of
diagnosing the illness, have concluded that Sansevera suffers from a
drastically debilitating disease.^‘

Sarchet v. Chater, 78 F. 3d 305 (7th Cir. 1996)
^”There are no laboratory tests for Fibromyalgia^‘ ^”Many people are
ignorant of the full range of available benefits, or reluctant to
undergo arduous administrative proceedings in which they are called
liars, until desperation resulting from a personal crisis or as here the
cut off of other public funds drives them to seek additional information
or to overcome their reluctance to run the bureaucratic gauntlet.^‘ ^”the
tone of the administrative law judge^“s opinion suggests that she may
have had an unshakable commitment to the denial of this applicant^“s
claim.^‘

Sisco v. U.S. Department of Health and Human Services, 10 F3d 739,
743(10th Circuit 1933)
^”Plaintiff could only be penalized for not availing herself of such a
test if one existed and she failed to obtain it.  There are no such
tests available in CFS.^‘  ^”The National Institutes of Health prints a
pamphlet for physicians on CFS and it also prints a pamphlet for the
public on understanding Chronic Fatigue Syndrome.^‘ ^”The administrative
law judge cannot substitute his opinion for that of the congress, the
Mayo Clinic, the plaintiff^“s doctor, and the entire medical community.^‘

Also in Sisco, the Tenth Circuit has held ^”a review of the medical
literature in the record demonstrates that a psychological overlay is
consistent with a diagnosis of chronic fatigue syndrome; it often
develops as a secondary reaction to the physical aspects of the
disease^‘, Sisco at 744, ftnt.1

Varity Corp. v. Howe, 516 U.S. 489 (1996)
The Supreme Court resolved a split in the federal circuits and held that
individual plan participants or beneficiaries can bring claim of breach
of fiduciary duty.  In Varity, the Supreme
Court had no difficulty holding that a company that acted as a fiduciary
and deceived plan participants about their benefits had breach fiduciary
duties and was liable in a claim under ß502(a)(3).  Lower courts have
generally held that misrepresentations by a fiduciary that deprive a
participant or beneficiary of benefits to which he or she would
otherwise have been entitled are actionable under ß502(a)(3).  See
Anweiler v. American elec. Power Serv. Corp., 3 F.3d 986 (7th cir.
1993); Becker v. Eastm Kodak Co., 120 F. 3d 5 (2d cir. 1997).

Weiler v. Shalala, CA No 93-12067-JLT, D. Massachusetts, 1996
held that ^”(1) administrative law judge (ALJ) should have given
controlling weight to opinions of claimant^“s treating physicians
regarding claimant^“s functional limitations; (2) ALJ was prevented from
having evidence necessary to fairly evaluate claimant^“s subjective
complaints of pain and claimant^“s credibility by his improper rejection
of opinions of her treating physicians; (3) ALJ committed error of law
by failing to make individualized assessment of claimant^“s ability to
handle stress in workplace; and (4) by failing to consider the
combination of Weiler^“s impairments in making the disability
determination.^‘  ^”non-examining doctors cannot by themselves trump the
findings from treating sources.^‘


Woo v. Deluxe Corp/Hartford Life Insurance, 8th Cir. Appeals, No.
97-2055

Woo suffered from Multiple Sclerosis and Scleroderma, two progressive
immunologic diseases which eventually disabled her.
Her application for benefits was approved by Social Security
Disability.  Hartford denied Woo^“s benefits because they claimed none of
her doctors had specifically stated that she was disabled at the time
she resigned from her job. The Appeals Court found that Hartford not
only abused its discretion but has a financial conflict because as plan
insurer, Hartford receives direct financial benefit from denying
benefits.  The court also found that Hartford ^”failed to use proper
judgment or thoroughly investigate her claim^‘ because they ^”merely had
an in-house medical consultant review Woo^“s claim for benefits.^‘
Hartford failed to use appropriate experts thereby triggering a ^”less
deferential review.^‘ The court found ^”Hartford^“s failure to use proper
judgment, when combined with the financial conflict, to be egregious
conduct.^‘  Apparently Ms. Woo^“s main problem was that she was in denial
about the seriousness of her problems and so even though she resigned
from her position in Nov. 1993, she did not submit a claim for benefits
until March 4, 1995.  However, despite her valiant efforts to deny her
diseases and her wish to improve, all of her symptoms had been
documented in her medical records prior to her resignation by her
treating physicians.  They had just not specifically stated that she was
disabled.





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The URL for this document is:
http://graham.main.nc.us/~bhammel/INS/DOCS/040199AttchJ.html
Created: April 15, 1999
Last Updated: May 28, 2000