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Leger v. Tribune Company LTD PlanA REVIEW OF FUNCTIONAL CAPACITY EVALUATION FINDINGS INCLUDED IN A U.S. COURT OF APPEALS ERISA CASE WITH SUGGESTIONS FOR PRACTICEWEBINAR WITH ROY MATHESONOPEN DISCUSSION AT END OF PRESENTATIONApril 1, 2010Copyright 2010Telephone 603-358-6525

How We Will ProceedThinking Evaluator

Effect of hearing at the Court of Appeals level

Lessons for Practice The Thinking EvaluatorThe Thinking Evaluator is always faithful to the Practice HierarchySafetyReliabilityValidityPracticalityUtilityThe reason for referral and referral questions shape the evaluationCase BackgroundThis is an Employee Retirement Income Security Act (ERISA) case involving the Tribune Company Long Term Disability PlanHeard in the United States Court of Appeals for the Seventh Circuit

Case BackgroundUnderstand the audience for your FCE

Long-term disability policies often use the occupation, not the job, as the basis of the claim

The occupation is defined by reference to Department of Labor sources rather than a job analysis or job descriptionCase BackgroundA high-level evaluator may want to know the parameters of the Tribune LTD policy. He may want to structure the evaluation and report for future labor market search or to report ability metrics v. disability metrics.

Have the proper references at handDictionary of Occupational TitlesSelected Characteristics of OccupationsTransitional Classification of Jobs

Affect of Hearing at the Appeals Court LevelFederal Rules of Evidence and the Federal Rules of Civil Procedure applyThis elevates the case to a higher level than typical workers compensation casesAffect of Hearing at the Appeals Court LevelRule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Affect of Hearing at the Appeals Court LevelRule 26. Duty to Disclose(a) Required Disclosures. (2) Disclosure of Expert Testimony.(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them.

Why are we in Court?“Before the district court, the parties agreed that the arbitrary-and-capricious standard of review applied. Ms. Leger now maintains, however, that the Supreme Court’s Glenn, 128 S. Ct. 2343 (2008), alters the way that courts must evaluate claim determinations. Essentially, Ms. Leger reads Glenn as “necessitating a more penetrating scope of judicial review than has previously been utilized”.12 No. 08-1362

Why are we in Court?“The correct standard of review to be applied in this case is the arbitrary-and-capricious standard”.Tate v. Long Term Disability Plan for Salaried Employees of Champion Int’l Corp. #506, 545 F.3d 555, 559 (7th Cir. 2008)15 No. 08-1362

Why are we in Court?“Ms. Leger next maintains that MetLife’s determination should be considered presumptively invalid because it rests on the opinion of Dr. Chmell, who conducted a medical file review as opposed to a physical examination. We previously have rejected this argument.” Davis v. Unum Life Insurance Co. of America, 444 F.3d 569 (7th Cir. 2006)17 No. 08-1362

Why are we in Court?“Furthermore, the Supreme Court has rejected the argument that the opinions of treating physicians deserve special consideration in benefits determinations.” Black and Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)18 No. 08-1362

Why are we in Court?“The crux of her argument is that, in terminating her benefits, the Plan cherry-picked the statements from her medical history that supported the decision to terminate her benefits, while ignoring a wealth of evidence to support her claim that she was totally disabled. We believe there is some merit to Ms. Leger’s position.”19 No. 08-1362

Why are we in Court?“Our other key concern with the Plan’s determination is its treatment of the functional capacity evaluation. The evaluator concluded, as did Dr. Hill, that Ms. Leger was limited in her ability to sit in one position for extended periods of time. Although this determination was based on Ms. Leger’s subjective complaints of pain, the evaluator concluded that Ms. Leger’s complaints of pain, and accompanying physical limitations, were both reasonable and reliable.”21 No. 08-1362

Why are we in Court?“Ms. Leger argues that Dr. Chmell discounted the recommended limitation in the FCE because it was based on Ms. Leger’s subjective complaints of pain as opposed to any identifiable physiological source. She further argues that this court’s decision in Hawkins v. First Union Corp,. 326 F.3d 914 (7th Cir. 2003), established that complaints of pain cannot be dismissed out of hand because they are subjective. We agree.”21 No. 08-1362

Why are we in Court?“…the Plan must explain why, despite evidence to the contrary in the FCE, it nevertheless finds Ms. Leger’s complains of pain unreliable and why, if the complains in fact are reliable, the pain Ms. Leger is experiencing is not completely debilitating.” 23 No. 08-1362

Why are we in Court?“Without further explanation, there is an ‘absence of reasoning in the record’ to support the Plan’s conclusion that Ms. Leger is capable of sitting without limitation and, therefore, performing sedentary work.Because the Plan’s determination failed to consider Ms. Leger’s complete medical history and rejected, without explanation, important aspects of the FCE, we believe that the Plan acted in an arbitrary and capricious manner in terminating Ms. Leger’s benefits.”24 No. 08-1362

Mr. Rappa’s ReportMs. Leger appealed the decision internally and supplied Met Life with additional personal information, witness statements and medical documentation. She also submitted a Functional Capacity Evaluation (“FCE”), which was prepared by a physical therapist, Joseph Rappa, on February 22, 2006. 7 No. 08-1362

Mr. Rappa’s ReportIn the FCE, Rappa indicated that Ms. Leger:Had exerted full effort during the tests

Her subjective reports of pain and associated disability were both reasonable and reliable.7 No. 08-1362

Mr. Rappa’s FCEIn his recommendations, Rappa wrote: It is recommended that clinical and/or vocational decisions be made with the results of this report taken into consideration. Avoid full/partial squat lifting.Limit carrying for any distance.7 No. 08-1362

Mr. Rappa’s FCEIn his recommendations, Rappa wrote: Limit shoulder to overhead lifting to a maximum of 18 pounds. Limit knuckle to shoulder lifting to a maximum of 18 pounds. Limit pushing/pulling for any distance. Avoid being in a specific position (seated or standing) for long periods of time.7 No. 08-1362

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