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A Morgan Lewis & Bockius lawyer who suffers from heart disease and was told by doctors to reduce his hours has won a court battle with an insurer that flatly refused to pay him long-term disability and said there is no proven link between work stress and heart attacks. A federal judge has now ruled that the Standard Insurance Co.’s decision to deny partial disability benefits to attorney Charles I. Cohen was “arbitrary and capricious” and that it wasn’t entitled to the ordinary level of deference that courts usually give to such decisions since the insurer suffered from a conflict of interest as both the funder and administrator of the plan. “There is substantial evidence that defendant’s conflict played a role in its decision to deny plaintiff’s claim,” Senior U.S. District Judge Clarence C. Newcomer of the U.S. District Court for the Eastern District of Pennsylvania wrote in his 18-page opinion in Cohen v. Standard Insurance Co. “First, defendant concluded that plaintiff had not reduced his work hours, his travel schedule, or his compensation, and continued to adhere to that conclusion in the face of credible contradictory evidence. Second, that defendant relied upon the opinion of its non-treating physicians over plaintiff’s treating physicians is suspect,” Newcomer wrote. Newcomer found that Standard’s doctors — one of whom is not even a cardiologist — had “based their opinions on cold test results” in Cohen’s files, while Cohen’s treating physicians concluded that he should reduce his work hours after examining him in person. “Other courts have admonished Standard for this practice,” Newcomer wrote, citing decisions from federal courts in Colorado and Oregon. Cohen, 55, is a labor law partner at Philadelphia-based Morgan Lewis’ Washington, D.C., office, having joined the firm as a partner in September 1996 after he completed a two-year presidential appointment with the National Labor Relations Board. In October 1996, Cohen suffered chest pains and was diagnosed with serious coronary artery disease. Doctors found that one coronary artery was 95 percent blocked and another was completely blocked. An operation opened one, but the other remains completely blocked. Cohen also went on medication, but soon began to suffer chest pains at work, lasting from 10 minutes to nine hours. A second cardiac catheterization showed that the cleared artery had returned to 50 percent blocked. Dr. David Pearle recommended that Cohen reduce his work hours because his condition was aggravated by work stress. Cohen followed the doctor’s orders and went on a part-time schedule that reduced his pay. But when Cohen applied for partial disability pay, Standard denied the claim, saying it had concluded that he was not partially disabled. Standard’s decision was based on the opinions of two consulting physicians — Dr. Bradley Fancher, who is board-certified in internal medicine, and Dr. Henry DeMots, who is a board-certified cardiologist and professor of cardiology at Oregon Health Sciences University. DeMots concluded that Cohen could perform both sedentary work and work that requires significant physical activity. He also concluded that work stress would not place Cohen at risk of a heart attack or death. Fancher’s opinion concurred with DeMots’ opinion. But Newcomer noted that both doctors formed their opinions after reviewing only the medical records and that neither had examined Cohen or consulted with his treating physicians. Standard also said it was denying the claim because Cohen had not actually altered his work hours or reduced his pay as he claimed. Cohen followed Standard’s internal appeal process and submitted a letter from his doctor, who said he had recommended that Cohen either retire or make “major job changes” due to his heart condition. He also submitted records to prove that he had reduced his hours and pay as well as letters from Morgan Lewis’ managing partner, Francis Milone, and Charles P. O’Connor, then chairman of the firm’s labor and employment section, who said he had personally observed Cohen suffer a cardiac event in the middle of a business meeting. Standard gave the appeal to Dr. DeMots, who reaffirmed his denial of Cohen’s claim, saying he had concluded that the risk of a heart attack does not increase when one works. DeMots acknowledged that some medical literature supported the view of Cohen’s doctor — that work-related stress is a risk for patients with artherosclersosis — but noted that neither the American College of Cardiology nor the American Heart Association support that view. “The impact of work is negligible and is just as likely to be positive rather than negative,” DeMots wrote in denying the appeal. Standard adopted DeMots’ view and denied the appeal, saying Cohen’s medical condition did not prevent him from working full time, and that he had not actually altered his work hours, his travel schedule and his income. Even though Cohen had exhausted his internal appeals, he asked Standard to reconsider, saying Standard had recently refused to issue him a life insurance policy because the insurer believed he was “an unacceptable mortality risk.” Standard denied the claim a third time, saying it continued to believe that Cohen’s heart condition would not be adversely affected by work related stress. In a final plea, Cohen submitted a medical report completed by Dr. Alan Rozanski, a nationally recognized cardiologist affiliated with both the University Hospital of Columbia University College of Physicians and Surgeons, and the St. Luke’s Roosevelt Hospital Center. Rozanski concluded that Cohen’s heart condition required him to reduce his work hours, or to stop working, saying he had formed his opinion after examining Cohen in May 2000. The final appeal also included several articles from medical publications that documented the link between work stress and an increased risk of accelerating existing heart disease. Standard responded with a fourth denial of the claim in which it insisted that its doctors’ opinions were not flawed simply because they had never examined Cohen and that it believed there is no link between work stress and an increased risk of accelerating existing heart disease. The denial included an article that set forth the position of the AHA and ACC on the issue of work stress and heart disease. But Judge Newcomer found that the article’s statements in support of continued working related only to people who do not already have heart disease and that it went on to say that “once coronary atherosclerotic disease becomes clinically manifest, the risk for future coronary events is much higher than for patients without [coronary heart disease].” CONFLICT OF INTEREST Newcomer found that when an ERISA plan administrator enjoys “discretionary authority” to determine eligibility for benefits, the review by a court is ordinarily under the “arbitrary and capricious” standard. In other words, Newcomer said, the court can overturn the decision only if it is “without reason, unsupported by substantial evidence or erroneous as a matter of law.” But when an administrator operates the plan with a conflict of interest, Newcomer said, “courts must weigh the conflict as a factor in determining whether there was an abuse of discretion.” In Pinto v. Reliance Standard Life Insurance Co., Newcomer said, the 3rd U.S. Circuit Court of Appeals held that when an insurance company funds and administers a plan, it has a conflict of interest, and courts must apply a heightened form of the arbitrary and capricious standard of review. When applying the heightened form of the arbitrary and capricious standard, the Pinto court said that trial judges should be deferential, but not absolutely deferential, and “the greater the evidence of conflict on the part of the administrator, the less deferential [the] abuse of discretion standard.” In Cohen’s case, Newcomer found there was significant evidence that Standard’s conflict of interest has affected its decision. Quoting a phrase from Pinto, Newcomer said: “Looking at defendant’s final decision, this court ‘sees a selectivity that appears self serving,’ not only when it adopted its non-treating physicians’ opinions, but also when it rejected the medical evidence that plaintiff submitted to support his contention that plaintiff’s work stress increases his risk of heart complications.” In its final denial, Newcomer said, Standard recognized that Rozanski had “spent the majority of his career investigating the relationship between atherosclerotic heart disease and stress, is a thoroughly credentialed cardiologist, and has concluded that such a relationship exists.” But the insurer then went on to reject the claim by citing to medical literature that doesn’t even apply to Cohen’s case, Newcomer found. “In this case, both sides agree that plaintiff suffers from heart disease. That [Standard] credited plaintiff’s evidence in support of his claim, rejected it, and did so while relying upon inapposite medical literature is disturbing, and presents evidence that defendant’s conflict fueled its denial of plaintiff’s claim,” Newcomer wrote. Newcomer found that Standard’s denial “merely rested upon its conclusion that objective medical evidence does not support the link between work stress and increased risk of accelerating heart disease.” But under the Morgan Lewis firm’s policy, Newcomer found that Cohen was not required to prove his claim with objective medical evidence. Instead, he found, the plan requires a claimant to prove disability “as a result of sickness, injury, or pregnancy,” and sickness is defined as “sickness, illness, or disease.” Newcomer concluded that Cohen “has done more than what was required of him under the specific terms of the plan. Yet, defendant still denied his claim.” As a result, Newcomer concluded that Standard had “arbitrarily and capriciously” denied the claim and that Cohen is entitled to benefits. Standard’s lawyers had asked that the case be remanded if Newcomer found against the insurer, but Newcomer refused, saying Cohen is entitled to a complete summary judgment on the issue of entitlement to the benefits. Cohen was represented by attorneys Rhonda D. Orin, John N. Ellison and Michelle A. Gallagher of Anderson Kill & Olick in Washington, D.C. Standard was represented by attorneys Deborah Weinstein and John Myers of Eckert Seamans Cherin & Mellott.

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