Lavino v. Metropolitan Life Ins.Co., 2010 U.S.Dist.LEXIS 2510 (C.D.Cal. January 13, 2010)(Issue: Fibromyalgia).  After undergoing chemotherapy for breast cancer, the plaintiff returned to work but shortly thereafter, she developed fibromyalgia.  Due to ongoing pain and fatigue, Lavino had to cease working again.  MetLife initially approved an ensuing claim for disability benefits; however, despite insisting on a social security application and referring Lavino to a representative to assist her in applying for government benefits, the payments were terminated after a file review performed by Dennis Payne, M.D., who was retained through Network Medical Review.  When Lavino appealed, MetLife used another regular NMR reviewer, Tanya Lumkins, M.D., to support the denial determination.  Plaintiff then brought suit. 

Despite the applicability of a deferential standard of review, MetLife’s conflict of interest had to be given consideration according to Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009) and Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 868 (9th Cir. 2008), where the court found, "MetLife labors under such a conflict of interest: It both decides who gets benefits and pays for them, so it has a direct financial incentive to deny claims."  

The court then recounted the close relationship between NMR and MetLife:

Applying the Supreme Court's decision in Glenn to this case, the Court notes that Plaintiff presents evidence that NMR is a medical review firm routinely used by MetLife. Plaintiff submits a declaration of NMR's CEO, Robert Porter, wherein he states NMR has provided medical reviews for MetLife since 2002. In 2002, NMR performed 370 reviews for MetLife for which it was paid $ 236,490. In 2005, NMR reviewed 1,197 reviews for MetLife and was paid NMR $ 1,671,605. (Collins Decl., Ex. 1.) Plaintiff also submits verified interrogatories from NMR, which state, in contradiction to Porter's declaration that in 2005, MetLife referred 3,209 claims to NMR for which paid NMR $ 2,063,890. Further, in 2006, NMR performed 4,441 claims and paid NMR $ 2,780,795. (Collins Decl., Ex. 2.)

Based on this evidence, the court concluded that there was no indication MetLife took steps to mitigate its conflict.  Moreover, the court found MetLife failed to fully consider the evidence submitted and that the insurer never specified the type of evidence it was seeking if it was dissatisfied with what had been submitted.  The court explained “that it is the responsibility of the claims administrator to have a clear dialogue with plan participants and let them know specifically what information in needed.” *27 (citing Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008) (which, in turn, cited Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)). Despite plaintiff’s repeated requests for guidance as to what specifically was being sought, MetLife never responded.  Hence, the court found it needed to give the conflict more weight.  The court further found that the reviewing doctors hired by MetLife misclassified the exertional requirements of Lavino’s job.

But the key to the court’s holding was in its analysis of how MetLife failed to appropriately assess the plaintiff’s pain complaints.  Because pain cannot be measured objectively, the court found the insurer’s request for “objective” evidence was problematic.  The court further determined that Saffon incorporated the Social Security disability analysis that imposes two requirements on claimants in order to trigger a duty to supply clear and convincing reasons for rejecting the plaintiff’s complaints: “(1) she must produce objective medical evidence of an impairment or impairments; and (2) she must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom.” *32 (citations omitted).

Because the insurer never rejected the fibromyalgia diagnosis, the court found that MetLife failed to offer a convincing rationale for rejecting Lavino’s pain complaints. Although the insurer claimed in litigation that the plaintiff presented as a malingerer due to her refusal to take medication, the court found no such evidence and also pointed out that the argument was never made prior to litigation.  The court was also troubled by the absence of an in-person examination, particularly since fibromyalgia is not susceptible to other objective verification.  Thus, the court reversed MetLife’s determination and awarded benefits through the end of the own occupation period, but remanded as to the “any occupation” period.

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