Dueling diagnoses on disability

One occupational medicine physician says the real issue should be whether an employer can assign tasks the employee can safely perform.

By Tanya Albert, amednews staff. June 23, 2003.

Physicians reviewing disability cases for employee-sponsored benefit plans do not have to give special consideration to a treating physician's conclusion about a patient, the U.S. Supreme Court ruled in late May.

The court also said reviewing physicians shouldn't have the burden of explaining the difference in opinion when they credit reliable evidence that conflicts with a treating physician's evaluation. But at the same time, a reviewing physician can't "arbitrarily refuse to credit reliable evidence, such as the opinion of a treating physician," the high court said.

Case at a glance
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"From the physician's perspective, their opinions are all on the same level field," said Steven Rosales, a Santa Fe Springs, Calif., attorney who was part of the legal team that represented Kenneth L. Nord, the man suing his employer's disability plan.

The Supreme Court opinion overturns a 9th U.S. Circuit Court of Appeals decision in Nord's case against The Black & Decker Disability Plan, which said the physician who reviewed the case for the company should be required to explain why he disagreed with the doctors who treated Nord on an ongoing basis.

Nord's treating physicians said that because of lumbar disc syndrome, Nord could sit for only one hour a day and therefore would not be able to perform work duties. But based on medical evidence, a physician who reviewed the case for Black & Decker's disability benefits disagreed that Nord was unable to work.

He did not explain why he disagreed, something Nord argued he should be required to do under the Employee Retirement Income Security Act of 1974. He argued that the treating physician had better information about his condition than the company physician. He also argued -- and the American Medical Association agreed in a friend-of-the-court brief -- that a company physician could have a conflict of interest when evaluating a patient.

The U.S. Supreme Court said it didn't question the lower court's concern that physicians who often review cases for companies might have an "incentive to make a finding of 'not disabled' in order to save their employers money and to preserve their own consulting arrangements."

"But the assumption that the opinions of a treating physician warrant greater credit than the opinions of plan consultants may make scant sense when, for example, the relationship between the claimant and the treating physician has been of a short duration, or when a specialist engaged by the plan has expertise the treating physician lacks."

The treating physician also could have an "incentive" to find that the patient is "disabled," the court said in its opinion.

Not always a medical decision

One California physician who runs a business that helps companies with employment and benefit-related decisions by providing a set of policies and procedures for disability benefit requests said the question before the U.S. Supreme Court missed the mark. George M. Smith, MD, MPH, president of G.M. Smith Associates Inc., said these cases shouldn't come down to deciding which physician's opinion should get more weight. Instead, it's up to the employer.

For the physician, the questions are clinical ones, Dr. Smith said: Can an individual travel to and from work? If the person engages in task X,Y or Z, will injury result? Is there a therapeutic value for the person to not perform that specific task?

"A disability determination isn't a medical one," said Dr. Smith, who previously served as the medical director for the U.S. Office of Personnel Management. "The employer has a decision to make: Are there tasks and duties I can assign, and pay the employee full wages, that he or she can perform?"

The Supreme Court vacated the 9th Circuit Court's opinion in Nord and sent the case back to the lower court to issue an opinion based on the high court's conclusions.

ADDITIONAL INFORMATION:

Case at a glance

The Black & Decker Disability Plan v. Kenneth L. Nord

Venue: U.S. Supreme Court
At issue: The court said a disability plan's physician doesn't need to give special consideration to a treating physician's evaluation of a patient, but the plan's physician can't ignore pertinent information from a treating physician either.
Potential impact: The conclusions treating physicians draw won't receive any special consideration when disability is determined.