In Creel v. Wachovia,2009 U.S. App. Lexis 1733(11th Cir. Fla. Jan. 27, 2009), the Eleventh Circuit reversed the grant of summary judgment in favor of Wachovia on the grounds that the plan did not specify the exact type of objective evidence required to support a claim of disability even though the plan provided a list of evidence required including "other forms of objective" evidence."
According to the Eleventh Circuit, Creel provided chart notes, diagnoses, and lab reports from multiple doctors identifying her migraines as physically-based, all of which were valid forms of OME under the plan and could serve as a basis for a diagnosis of migraines. Those documents, particularly those from two doctors, indicated she suffered from debilitating headaches, which had a neurological basis. Creel’s headache diary, as requested by Wachovia, corroborated the diagnosis of migraines and chronicled the degree to which they incapacitated her at regular albeit unpredictable, intervals. In addition, Wachovia never requested an independent medical examination (“IME”).
In assessing the reasonableness of the denial of benefits that involve some subjective elements such as migraines, the Eleventh Circuit Court explained that if the plan has no requirement that claimants provide a specific type of OME, the Court evaluates the reasonableness of the decision in light of the sufficiency of the claimant’s subjective evidence and the administrator’s actions. If the claimant has put forth ample subjective evidence, the Court looks at what efforts the administrator made to evaluate the veracity of the claim, with particular focus on whether the administrator identified any OME that would have proved the claim and on types of IMEs conducted.
The grant of summary judgment based on the conclusion that the plan permitted the administrator to require the claimant to produce objective evidence of her migraines was vacated and the case was remanded. Although, the Court found reversal was proper; it also determined that the record was insufficient to determine whether the migraines prevented Creel from performing any work. On remand, the district court could examine the extent to which the claimant was limited by her headaches.