Kentucky Employment Law Blog

Insurance Company's Failure to Consider Treating Doctor's Opinions Is Arbitrary

A disability insurance company is required by ERISA to provide a reasonable explanation for its decision on a claim and must address any reliable, contrary evidence the claimant presents.  The failure to explain why it is discounting or disregarding a claimant's evidence is arbitrary and capricious.  The Seventh Circuit made this ruling recently in Love v. National City Benefits Plan, No. 08-1722 (July 23, 2009).

The claimant, Love, a 20 year employee, developed multiple sclerosis and proved unable to continue working in August 2001.  She received disability benefits for more than four years before they were terminated in December 2005.  The benefits were terminated because the claims administrator, Liberty Mutual, had a medical consultant, a Dr. Jonathan Sands, do a file review; he concluded, despite the payment of benefits for over 4 years, that there were "no objective limitations in functional ability or capacity" noted in Love's medical files.  The court was clearly troubled by Dr. Sands' cursory dismissal of the substantial evidence generated by the doctors that had personally examined Love, observing:

In fact, every doctor that personally examined Love concluded that she was unable to work more than a few hours a day and that she could no stand, sit or walk for more than an hour at a time. Dr. Sands did not address any of these reports in his cursory report, which dedicated less than half a page to its analysis and recommendation. 

Love appealed the termination of her long-term disability benefits.  She submitted further evidence supporting her claim including a physical therapy evaluation, a functional-capacity evaluation and a vocational evaluation.  The court noted that "these reports showed that Love had significant impairments."  This evidence too was disregarded by Liberty Mutual, which hired another medical consultant, a Dr. Winkler, who "did not address the opinions of these other physicians." 

The court ruled that Liberty Mutual's claims process was arbitrary and capricious and violated ERISA.  First, the court noted that ERISA required an insurance company to provide "a reasonable explanation for its determination and must address any reliable, contrary evidence presented by the claimant."  Liberty Mutual failed to do so because it "did not explain why it chose to discount the near-unanimous opinions of Love's treating physicians."  Therefore, the court concluded that Liberty Mutual "acted arbitrarily by terminating Love's benefits without sufficiently explaining its basis for doing so." 

Robert L. Abell
www.RobertAbellLaw.com

"Aren't You Being Discriminatory?": Protected Activity in Retaliation Cases

"Aren't you being discriminatory?" asked Mary Casna in response to her supervisor's questions about her hearing disability, "How can you work if you cannot hear?"  Casna's supervisor immediately reported Casna's statement to her supervisor, wrote up a job evaluation for Casna and Casna was filed three days later. Casna sued claiming that her statement to her supervisor ("Aren't you being discriminatory?") was protected activity and she claimed that her firing was unlawful retaliation in violation of the Americans With Disabilities Act.

This informal complaint, the Seventh Circuit ruled in Casna v. Loves Park, No. 07-1044 (7th Cir., July 24, 2009), was "protected activity for purposes of retaliation claims."  The court ordered that Casna's retaliation claim under the Americans With Disabilities Act must be decided by a jury at trial.

Robert L. Abell
www.RobertAbellLaw.com

When Does A Racial Hostile Work Environment Become Unlawful?

In a racial harassment case an unlawful the hostile work environment exists where the harassment is severe or pervasive.  Recently, the Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No. 08-1181 (July 23, 2009), described the type of facts that could establish an unlawful hostile work environment:

"We also conclude that a reasonable jury could find that the race-based harassment was objectively severe or pervasive.  Three of Medley's co-workers in Inside Sales used the word n****r, and at least one of them used it 'pretty much everyday.'  Moreover, during the November 10 incident, DaBay called Medley a black stupid n****r, a black n****r, and a black stupid b***h, among other derogatory terms.  In addition, two of her co-worker's kept blue-colored mop-head dolls in their offices which they had hanging by nooses tied around the dolls' necks.  As in past cases, 'we cannot ignore the habitual use of epithets here or view the conduct without an eye for its cumulative effect.'" 

Robert L. Abell
www.RobertAbellLaw.com

When Does Sexual Harassment Become Unlawful?

To rise to the level of an unlawful hostile work environment based on sex the gender-based harassment must be severe or pervasive.  The Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No 08-1181 (July 24, 2009), recently described a hostile work environment where it could be found that the sexual harassment was severe or pervasive:

"We conclude that a reasonable jury could find that the gender-based harassment was objectively severe or pervasive.  The evidence shows that Mike, Tony, and Green all regularly referred to women as b***hes.  Moreover, DaBay called Medley a b***h a number of times during the November 10 incident.  In addition, Mike -- whose cubicle was right next to Medley's -- had a Playboy calendar on his desk, kept Playboy magazines in his cubicle, hung a Playboy poster on his wall, watched pornography on his computer in Medley's presence, used a pornographic screensaver depicting partially naked women, and placed the screwdriver in the Halloween decoration in a sexual manner more than once.  This evidence is certainly sufficient to create a triable issue on whether the gender-based harassment was objectively severe or pervasive."

Robert L. Abell
www.RobertAbellLaw.com

How Can You Prove Harassment Is Based On Sex?

For workplace harassment to be illegal or unlawful under Kentucky and federal employment laws it must be proven to be motivated by some discriminatory criteria such as sex or gender. Recently, the Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No 08-1181 (July 21, 2009), described workplace where the harassment could be found to be motivated by sex or gender discrimination:

"The evidence shows that oneor more of Medley's co-workers used the word b***h on a daily basis when referring to women, had Playboy items around the office, watched pornography right next to Medley such that she could hear the sounds of people having sex, and used a pornographic screen-saver depicting partially naked women.  Moreover, DaBay called Medley a b***h a number of times during the November 10 incident.  In light of this evidence, a reasonable jury could conclude that the harassment was based on Medley's gender." 

Robert L. Abell
www.RobertAbellLaw.com

How Can You Prove Harassment Is Based On Race?

For harassment in the workplace to be unlawful it must be shown to be based on some sort of discriminatory criteria such as race.  Recently, the Fourth Circuit Court of Appeals decided a case, EEOC v. Central Wholesalers, No. 1181 (July 21, 2009), where the court found the following to be sufficient evidence that race motivated the harassment:

"The evidence also shows that a number of Medley's co-workers (Medley was the employee harassed) used the work n****r in her presence on a regular basis, and at least one co-worker used the word 'pretty much everyday.'  Moreover, [a co-worker] called Medley a black stupid n****r and other racially derogatory terms during the November 10 incident.  In addition, both Tony [another co-worker] and DaBay kept blue-colored mop-head dolls in their offices and had the dolls hanging from noose which were tied around the dolls' necks.  Given this evidence, a reasonable jury could conclude that the harassment was also based on Medley's race."

Robert L. Abell
www.RobertAbellLaw.com