ERISA: Treating cardiologist’s opinion that lawyer disabled because of heart condition, not depression, given greater weight than that of insurer’s consultants, LTD reinstated retroactively… Christensen.
Former Billings trial attorney Michael Tolstedt was diagnosed with and began prescription treatment for depression 9/30/09. He had a heart attack 10/13/09 and underwent 2 surgeries. Cardiologist Scott Sample recommended that he find low-stress work. He has been coaching and substitute teaching since 6/10. Sample wrote Standard Ins. 10/12/09 indicating that Tolstedt had heart disease due to his occupation and recommended low-stress work. He listed, inter alia, depression and hypertension as contributing to his disability. Tolstedt filed a claim for LTD under Standard’s group plan 11/11/09, and Standard approved it 2/5/10, listing 10/14/09 — 1 day after his heart attack — as the date of disability. Its consulting psychiatrist Toenniessen reviewed Tolstedt’s files and cited depression as why he was eligible for disability benefits. He maintained that the depression was disabling, not that it was a causal factor in his heart condition and associated treatment. Consulting cardiologist Richard Axelrod reviewed the cardiology reports and found “no evidence in the medical records” that he “experienced cardiac symptoms in relation to work stress.” Standard argues that in light of his 2 successful heart surgeries and favorable cardiologist reports he was physically capable of returning to work by 2/10, 3 months after his last stent procedure. It maintains that “the medical records do not support a conclusion that avoidance of stress was necessary.” It wrote Tolstedt 6/10/10 that he was “disabled by one or more conditions, including depression” and applied the 24-month mental disorders limitation. It asked him to provide any information that he is disabled by other conditions “not subject to the Limitation.” Neither of Standard’s consulting cardiologists, Garrison or Axelrod, actually examined Tolstedt.
To clarify the basis of the claim, Sample wrote Standard 2/4/11 that “coronary artery disease is the actual physical illness that triggered [Tolstedt’s] heart attack and disabled him from being a trial lawyer.” Standard responded that its cardiologist determined that he was capable of full-time work based on the “excellent results” of his heart treatment and that “LTD benefits were payable on the basis of his depression.” Tolstedt’s attorney wrote Standard 12/1/11 that it “has no legal or medical basis for discontinuing” payments. Standard responded that he had no limitations to work, his mental disorder pay period would expire in 1/12, and he was not eligible for benefits for his heart condition. Standard’s Administrative Review Unit denied Tolstedt’s appeal on the basis that he was “capable of performing his own occupation on the basis of his cardiac condition.”
Tolstedt sued Standard under 29 USC 1132(a)(1)(b) on the basis that it wrongfully refused to pay disability benefits. Magistrate Ostby recommended summary judgment for Standard. Tolstedt objected, citing Sample’s newly submitted affidavit that he is not physically able to serve as an attorney and is at high risk for another, potentially fatal, heart attack if he does not avoid chronic stress. Finding that Sample’s affidavit created a material fact issue, this Court ordered de novo review. Both parties submitted supplemental briefs. The sole issue is which party’s physicians are more credible.
The Court affords greater weight to Tolstedt’s treating physician. Sample treated his coronary artery disease since his heart attack. He is board-certified and Chairman of Cardiovascular Medicine at Billings Clinic. Although Standard argues that he saw Tolstedt only 3 times, he performed coronary interventions after his heart attack, had a follow-up 3 months after his last stent procedure, and has seen him annually since. In Sample’s opinion and based on his observations, Tolstedt would have increased risk of a potentially fatal heart attack if he continued the high-stress, sedentary work of an attorney. Tolstedt’s initial reviews after his coronary procedures which indicate an improved heart condition do not change Sample’s opinion that returning to his prior stressful work would put him at risk for a 2nd heart attack. Unlike Standard’s consultants, he has examined Tolstedt and observed his condition for 3 years. He has written 3 letters maintaining that he is disabled because of his heart condition and recommending strongly that he cease legal practice. Standard’s consultants were paid to review his records but never examined him and Standard never ordered an IME. They never directly challenged Sample’s findings that continuing his work as an attorney would increase his risk of a potentially fatal heart attack, but merely stated that there was no evidence that his heart disease was related to his work stress. The Court rejects this. “The information available to consulting physicians would have been more complete and their opinions commensurately more reliable if they had personally examined plaintiff.” Finazzi (WD Mich. 2004). Finazzi found that the plan administrator arbitrarily & capriciously denied benefits based on opinions of a cardiologist who had never examined the patient, ordered an IME, or challenged the treating physician’s findings. The Court finds Sample’s opinions more credible than those of Standard’s consultants. Tolstedt is entitled to benefits reinstated as of 1/12/12.
Reasonable attorney fees & costs may be awarded to either party under 29 USC 1132(g)(1). Pursuant to LR 54.2, fees will only be awarded by judicial order. Parties seeking fees must file a motion within 14 days specifying the grounds, amount sought, and terms of the fee agreement. Rule 54(d)(2)(B)(i)-(iv). The other party may object. Rule 23(h)(2).
Tolstedt v. Standard Ins., 40 MFR 444, 6/24/13.
Donald Harris (Harris & Warren), Billings, for Tolstedt; Andrew Altschul (Buchanan Angeli Altschul & Sullivan), Portland, and Steven Milch & Eric Peterson (Crowley Fleck), Billings, for Standard.
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