New Jersey Long Term Disability Recent Cases -In What Direction is Our Judiciary Headed? Part II

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The second case, Kao v. Aetna and Towers Perrin Forster & Crosby, Inc. 2009 U.S.Dist LEXIS 75181 (D.N.J.August 25, 2009) involves a 59 year old woman disabled by the after affects of breast cancer. Her disability involved her cognitive problems which are caused by the chemotherapy, fatigue and arthralgias related to her disease process and treatment regimen, including medication. Her doctors viewed her as a credible historian and not malingering.

Aetna’s peer reviewers denounced the disability without ever evaluating her, basing their opinions, in part, on Kao’s ability to perform home chores such as laundry and her ADL’s. The medical reviewers challenged Kao’s claims of her cognitive impairment, claiming that there were no valid tests of her cognitive ability. The court upheld the denial on many bases.

The court rejected Kao’s assertion that only in the final denial did Aetna disclose what type of clinical evidence Kao should have collected to refute the denial. Although Kao proved that Aetna’s doctors had not reviewed a crucial medical form completed by her doctor, the Court found that to be inconsequential. The court rejected Kao’s expert vocational analysis since it was based on the “platform of subjective data that Aetna rejected as untenable.” The court rejected Kao’s claim that she was entitled to review the medical reviews before the final decision was made so that she could rebut the evidence since there was no new evidence relied upon, only medical reviews conducted of the evidence in existence.

Bonny Rafel commentary: It remains to be seen how performing some home chores and taking walks correlates with an ability to work full time on a sustained basis for a demanding employer. We are troubled by the court’s acceptance of an argument that Kao’s disability needed to be proven with “objective evidence”, when the very opinions of her board certified medical treating doctors are considered “objective.”

One bright light in this otherwise dark outcome is that the court expressed no opinion as to whether, during the pendency of administrative appeal a claimant is entitled to rebut appeal-level documents that raise a novel ground for denial or otherwise implicate the issues that the claimant had no opportunity to address in preparing the appeal.