ERISA-First Circuit Upholds Denial Of Disability Benefits, Based On Failure To Explain Sudden Change In Condition

In Kindelan v. Disability Management Alternatives, LLC, No. 10-1620 (1st Cir. 2011), the plaintiff, Kathleen Kindelan (“Kindalen”), was appealing a decision of the district court sustaining an insurer’s denial of her disability benefits. What had happened here?

Kindelan had had serious back trouble for over thirty years, with a number of surgeries, the most recent being a lumbar fusion in 2005. Dr. Mark Palumbo saw her on September 25, 2007, and noted that she was getting along “reasonably well” and “doing well from a functional standpoint.” On October 3, however, she returned to report back and lower extremity pain. The doctor noted anxiety and agitation, and recommended four to six weeks at home, with back exercises and pain killers. Kindelan followed the advice and applied for short term disability benefits under a group plan (the “Plan”). The Plan expressly excluded coverage for self-reported symptoms which cannot be verified without medical tests. The Plan denied the benefits, and Kindelan filed this suit.

The First Circuit Court of Appeals (the “Court”) agreed with the benefit denial, and affirmed the district court’s decision. The Court said that, although Kindelan’s chronic back trouble generated a history of test results confirming the symptoms she reported over the years, her burden in order to obtain the desired disability benefits is to document what she claims to have been a debilitating change in the course of the week after her regular periodic examination. Because she says that the allegedly covered disability occurred after her September visit to the doctor, what counts under the Plan is her condition in that ensuing period. On September 25, Dr. Palumbo noted that she had no serious functional difficulties. On October 3 she reported such pain that the doctor recommended time off from work. But she and her treating physician provided no test results or medical diagnostic evidence to explain the sudden deterioration. After the October 3 visit, Dr. Palumbo did not order any additional tests, medical or psychological. At the end of the day Kindelan offered nothing to explain the change she claimed, beyond the “self-reported” pain that the Plan expressly excludes as an independently covered disability.

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