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A federal district court in New Jersey has ruled that a science reporter for the Washington Post with chronic fatigue syndrome was entitled to both short-term and long-term disability benefits.

The Case

In the summer of 2012, Brian Vastag, a science reporter for the Washington Post, was feeling ill. Blood tests showed elevated titers for Epstein Barr Virus (“EBV”) and Lyme disease.

In October, with continued symptoms of malaise and fatigue – both physically and cognitively – Mr. Vastag saw a neurologist and had an MRI of his cervical spine, which showed an ill-defined area consistent with post viral myelitis.

He returned to the hospital in December and March 2013 with continued symptoms. Then, in August 2013, Mr. Vastag saw an allergist-immunologist specialist who found that his pulmonary functioning test showed restricted breathing and his blood work tested positive for several viruses, including EBV and Coxsackie.

On September 17, 2013, Mr. Vastag went to yet another physician, who found that his blood showed elevated indicators for EBV, cytomegalovirus, mycoplasma pneumonia, and Coxsackie virus.

By January 2014, Mr. Vastag felt unable to keep up with the pace of work. He stopped working at the Washington Post and applied for, and was granted, short-term disability (“STD”) benefits by the insurance carrier then making employee benefits decisions.

By letter dated March 7, 2014, Prudential Insurance Company of America notified Mr. Vastag that as of March 1, it had taken over management of disability benefits. In the letter, Prudential asked Mr. Vastag to authorize release of his medical information so Prudential could review his disability claim.

In January 2014, Mr. Vastag consulted with a physician, Susan Levine, who was an expert in Chronic Fatigue Syndrome (“CFS”)

Dr. Levine diagnosed Mr. Vastag with CFS on January 15, 2014. She saw him again in February and found he was experiencing continuing symptoms of trigger points, post exertional malaise, weakness, sore throat, and fatigue. On April 7, 2014, Dr. Levine diagnosed Mr. Vastag with fibromyalgia. That same week, Dr. Levine sent Prudential an attending physician statement in which she advised that Mr. Vastag was unable to work. One week later, she submitted a capacity questionnaire indicating that Mr. Vastag could not work even part-time because “he should not perform any type of sustained walking, sitting, or interacting with others over the phone for more than 20 minutes without a break.”

On May 9, 2014, Dr. Levine submitted another capacity questionnaire, adding that Mr. Vastag was “incapable of any sustained physical or mental exertion.”

Prudential hired Denise LeClerc, R.N., to review Mr. Vastag’s file on May 20, 2014. She disagreed with Dr. Levine’s conclusions and stated that Mr. Vastag should see other specialists for his sleep and cognitive complaints. According to Ms. LeClerc, there were “no exam findings or diagnostic findings” to explain his “claims of chronic weakness, fatigue and exhaustion.”

Prudential denied Mr. Vastag’s claim for STD benefits on June 12, 2014, based in part on Nurse LeClerc’s review. On August 8, 2014, Mr. Vastag appealed, supplementing his claim with more medical records. With the appeal, he also applied for long-term disability (“LTD”) benefits.

In October, Prudential upheld its denial of STD benefits and denied LTD benefits. It based its decision in part on the report of a rheumatologist whom Prudential had hired to review Mr. Vastag’s medical records. He described the bloodwork that indicated the presence of infections as “borderline abnormal or non-diagnostic in regards to the claimant’s subjective symptoms of fatigue and cognitive decline.” He acknowledged in his report that tests performed on Mr. Vastag had come back positive for viral infections, fevers, post-viral myelitis according to the MRI, restricted pulmonary functioning, and central vestibular dysfunction. He concluded, however, that Mr. Vastag was not disabled because objective medical evidence of total disability attributable to CFS was lacking. He wrote that the absence of referrals for neuropsychological testing and a physical examination was “glaring.”

In response, Mr. Vastag sought out neuropsychological and physical testing. After various tests, one physician issued a report stating that Mr. Vastag could not work above a sedentary level of exertion and that he demonstrated “poor function and symptom exacerbation post-exertion; this will severely limit his ability to engage in normal activities of daily living and preclude[d] full-time work of even a sedentary/stationary nature.”

Another physician concluded that Mr. Vastag was “severely impaired” and could “not handle the cognitive demands of work in any occupation on a consistent and predictable basis, and should be considered completely disabled from any work for which he has reasonable training or experience, now and for the foreseeable future.”

Mr. Vastag filed another appeal to Prudential, which hired two more outside medical professionals to review Mr. Vastag’s records. Thereafter, Prudential again denied benefits to Mr. Vastag.

Mr. Vastag sued Prudential under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (“ERISA”). He sought a ruling that he was disabled under the terms of the plan and that Prudential had to pay him STD and LTD benefits retroactive to the denial date and going forward.

The parties moved for summary judgment.

Prudential argued that the district court had to give deference to its final denial decision under an “arbitrary and capricious” standard based on language appearing in plan documents, including particularly the summary plan description (“SPD”).

Mr. Vastag contended that the court should review Prudential’s denial of his claims de novo and find that he was entitled to the benefits he sought.

The Plan

The plan defined disability as:

You are disabled when Prudential determines that: you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; you are under the regular care of a doctor; you have 20% or more loss in your monthly earnings due to that sickness or injury. After 24 months of payment, you are disabled when Prudential determines that due to the same sickness or injury: you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training, or experience; and you are under the regular care of a doctor.

The District Court’s Decision

The district court granted Mr. Vastag’s motion.

In its decision, the district court first ruled that it would review Prudential’s denial decisions using a de novo standard. It pointed out that the SPD specifically stated that it was “not a contract” and “not part of the plan.” Because the SPD was not part of the plan, the district court disregarded its provisions and looked at the two documents that made up the plan and found that neither of them conferred discretion on Prudential sufficient to require that the district court review Prudential’s decisions under the arbitrary and capricious standard.

The district court then found that Mr. Vastag’s diagnosis of CFS prevented him from performing his work. It noted that Mr. Vastag had presented Prudential with a “robust medical file.” Mr. Vastag’s “transformation from a prolific and fully engaged reporter” to a “test subject for research” stood “in sharp contrast” to Prudential’s conclusion in its final denial letter that precipitated Mr. Vastag’s lawsuit:

While we continue to acknowledge Mr. Vastag’s self-reported symptoms and limitations related to cognitive impairments, fatigue, parathesias and tingling in the arms and legs, weakness in the upper and lower extremities, headaches, blurred vision, and post exertional malaise (PEM resulting from Systemic Exertion Intolerance Disease), and fibromyalgia, we maintain that the medical data does not indicate any impairment which would translate into medically supported restrictions and/or limitations in Mr. Vastag’s functionality.

On this record, the district court concluded, Prudential’s conclusion that the medical data failed to indicate “any impairment which would translate into medically supported restrictions and/or limitations in Mr. Vastag’s functionality,” and that Mr. Vastag could work full bore as a reporter, was “perplexing.”

Adding that none of the reviewers that Prudential principally relied on had demonstrated “any expertise in CFS,” the district court found that the record contained “objective medical evidence” that Mr. Vastag suffered from a seriously debilitating disease. In determining that he was able to perform the material duties of a reporter for the Washington Post, Prudential was in error, the district court ruled.

It then directed Prudential to pay all retroactively owed STD and LTD benefits due Mr. Vastag under the terms of the plan.

The case is Vastag v. Prudential Ins. Co. of America, No. 15-6197 (KSH) (CLW) (D.N.J. May 31, 2018). Attorneys involved include: For BRIAN VASTAG, Plaintiff: MATTHEW THOMAS SCHRIEKS, LEAD ATTORNEY, THE LAW OFFICE OF BARBARA COMERFORD, PARAMUS, NJ; SARA ELIZABETH KAPLAN, LEAD ATTORNEY, LAW OFFICE OF BARBARA B. COMEFORD PA, PARAMUS, NJ; BARBARA B. COMERFORD, PARAMUS, NJ. For PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant: ALNISA S. BELL, LEAD ATTORNEY, SEYFARTH SHAW LLP, NEW YORK, NY.

Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.