One of the recurrent problems we encounter in handling disability claims is the use by insurance companies of biased “independent medical examination” (IME) doctors or medical reviewers to support the company’s denial of disability claims. Two of our recent cases present excellent examples of this practice. They both involved doctors who we call “fibro deniers,” because they purport to believe that the universally accepted diagnosis of fibromyalgia either is not a “real” disease or, if it is, it never causes a disability.
The first case involved Dr. Kyle Boone, a Los Angeles area neuropsychologist who is often retained by insurance companies to do “independent medical examinations” of disability claimants. Dr. Boone was employed for many years by the Los Angeles County Department of Health, but also maintained an active private practice doing neuropsychological assessments, which she continues today. Fifty to sixty percent of Dr. Boone’s private practice has been devoted to neuropsychological evaluations in civil cases, where she is retained eighty percent of the time by the defense. In addition, Dr. Boone does neuropsychological evaluations for disability insurance companies, including Northwestern, Unum Provident and Berkshire Life, and for referral agencies like Global Services Group, which are retained by insurance companies to perform neuropsychological evaluations. In the over ten years that Dr. Boone has been doing disability evaluations, she has never done an evaluation on behalf of the person claiming the disability.
One of Dr. Boone’s long-time areas of interest has been the purported identification of “malingerers.” She is the editor of a recent book on malingering entitled “Assessment of Feigned Cognitive Impairment,” continues her research on the subject, and considers herself an expert on the detection of non-credible symptoms in the context of a neuropsychological assessment. However, Dr. Boone not only has an interest in malingering, she has a bias toward finding it, particularly in a patient who has been diagnosed with fibromyalgia.
In her report on our client, Dr. Boone opined: “The diagnosis of fibromyalgia is highly controversial, with many authors providing data indicating a link to somatoform conditions.” At her deposition, Dr. Boone went further. She testified that, in every patient diagnosed with fibromyalgia who she has tested, she has found a psychological basis for their symptoms. She also testified that, in every fibromyalgia patient she has tested, she has found that they were over-reporting their symptoms. She further testified that every fibromyalgia patient she has tested had a somatoform disorder or was malingering, or both. Finally, when asked whether she had ever concluded that a patient whose primary diagnosis was fibromyalgia had an organic basis for their symptoms, Dr. Boone refused to answer the question. We retained a board-certified clinical neuropsychologist who is a professor in the Department of Psychiatry at UCLA to review Dr. Boone’s report and he concluded:
[I]t appears that Dr. Boone did not perform an unbiased evaluation of [our client’s] psychological status at the time of the disability assessment. It appears that Dr. Boone determined, based upon the diagnosis of fibromyalgia, that [our client] could not have a neuropsychological disability and conducted an assessment in such a manner as to confirm this preconceived notion. In addition, the psychological examination appeared to be based upon the opinion that one with the fibromyalgia diagnosis is somatizing (or malingering) and cannot also be suffering from any type of disabling psychological condition as well. She then appears to be searching for any data that would confirm this opinion, ignoring all data to the contrary.
Because of Dr. Boone’s belief that every person with fibromyalgia is suffering from either a somatoform disorder or malingering she never finds that person to be disabled because of the disease. We believe that it is bad faith for an insurance company to rely upon the “independent medical examination” of a doctor who does not even believe in the medical condition they are being asked to examine.
In our case, after we filed a pleading with the court pointing our Dr. Boone’s bias, the insurance company reinstated our client’ disability benefits.
Our second example involves an “independent medical reviewer.” Unlike Dr. Boone, who actually examines the claimant, an “independent medical reviewer” is a doctor who is hired by the insurance company either directly or indirectly through a referral company to review the disability claimant’s medical records and opine as to whether the claimant is disabled. In our case, the insurance company had hired National Medical Review (“NMR”) to conduct “physician file reviews” of the company’s disability claimants. In fact, according to the insurance company’s discovery responses in our case, it had paid NMR almost $11 million in the last four years for such reviews. Numerous courts have observed that this relationship gives NMR an incentive to produce biased reports. As Judge Alsup of the Northern District of California recently observed in another of our cases:
[The insurance company’s] decision was made largely in reliance upon NMR, a company [the insurance company] knows benefits financially from doing repeat business with it. NMR received more than $11 million from [the insurance company] between 2002 and 2007. It follows that [the insurance company] knows NMR has an incentive to provide it with reports upon which [the insurance company] may rely in justifying its decision to deny benefits in order to increase the chances that [the insurance company] will return to NMR in the future.
Walker v. Metropolitan Life Ins. Co., 585 F. Supp. 2d 1167, 1175 (N.D. Cal. 2008).
Judge Alsup’s concern regarding biased reports is amply confirmed by Dr. D. Dennis Payne, who is one of NMR’s “go to” doctors for file reviews of claimants with fibromyalgia. Since 2004, Dr. Payne has conducted 748 file reviews for NMR. For these file reviews, Dr. Payne was paid an average of approximately $250 per review. Despite this rather modest amount, Dr. Payne nevertheless made $52,822l.50 in 2007 and $43,840.00 in 2008 for his NMR file reviews.
In our case, our client was disabled because of fibromyalgia and the insurance company had paid her disability benefits for six years. However, the company then sent her medical records to Dr. Payne for an “independent” medical review and he opined that fibromyalgia was not a “true entity” and was not “well received and accepted as a documentable condition by the medical community.” The insurance company accepted this opinion, even thought if directly contradicted the company’s previous decision to pay our client disability benefits based on her disabling fibromyalgia.
Our research into Dr. Payne established that he purports to believe that fibromyalgia is not a true disease. For example, with respect to another claimant, he opined:
Although it is suggested by those that have been involved in the evaluation and management of fibromyalgia and other chronic soft tissue rheumatism that there is a possible potential role for central nervous system involvement with pain processing pathways being altered by various abnormalities that have been discovered, those data would have to be considered very experimental at this point, with no clear solid scientific basis to fibromyalgia being related to a physiological condition. As a result, with the current level of knowledge scientifically, fibromyalgia cannot be clearly attributed to an objective physical illness.
Though Dr. Payne has noted that other “healthcare providers” disagree with his conclusion that fibromyalgia is not an “objective physical illness,” Dr. Payne still insists, based upon “all of the scientific data” (which he never cites), that it is not. In other reports, Dr. Payne even recognized that his views are contrary to that of the “majority” of doctors:
Although it is true that [the] majority of clinicians and researchers feel that the pain produced in fibromyalgia is probably a real pain, and based upon a pain processing abnormality that is not clearly understood scientifically, we also must state that throughout all medical literature, there is no evidence that this condition produces any physiologically meaningful abnormality despite the symptoms. Advice for a clinician to avoid activity is a limitation that clearly has not been shown to produce any meaningful symptom change or functional improvement. Therefore, fibromyalgia syndrome is not a limiting condition.
Furthermore, his reports in other cases confirm that Dr. Payne believes (as stated in the report on our client) that fibromyalgia never results in restrictions or limitations on work capacity:
[T]he issue here is not the diagnosis of fibromyalgia but the impact of fibromyalgia on the person’s functionality. There does not exist at this point one observational cohort of patients with fibromyalgia that have ever been shown to benefit from activity limitation with respect to improvements in functionality, or clinical course, response to treatment, even in a self reporting setting. Further, there does not exist one observational cohort of patients with fibromyalgia that have ever been confirmed to experience progression or development of organic disease of any form as a result of encouragement to normalization of life activities both vocational and avocational. In fact, with placement of restrictions and limitation on activities, persons are compelled to assume a “sick role” with propagation of somatic symptoms and development of affective symptomology. . . . [I]f a treatment for fibromyalgia (activity limitation) is not efficacious, then abandonment of that mode of treatment (activity limitation) is the proper course.
Dr. Payne’s opinions regarding fibromyalgia and the limitations caused by the disease are contrary to those accepted by mainstream rheumatologists and his opinions are never supported by any citations to peer-reviewed articles or accepted medical literature, despite his repeated references to “scientific” data and “medical literature.” In short, he is a “fibro denier,” who, like Dr. Boone, should never be permitted to review a fibromyalgia disability claim.
In our most recent case involving Dr. Payne, the court granted our motion to compel and ordered the insurance company to respond to an interrogatory asking how many claims it had denied, in whole or in part, based on a physician file review performed by Dr. Payne. Rather than respond to that order, the insurance company filed a motion for reconsideration and, while it was pending, settled the case.