Bali v. Blue Cross and Blue Shield Ass'n, 88-1963

• Decision Date: 01 May 1989
• Docket Number: No. 88-1963,88-1963
• Citation: 873 F.2d 1043
• Parties: Rajiv BALI, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD ASSOCIATION and Health Care Service Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1043

873 F.2d 1043

Rajiv BALI, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD ASSOCIATION and Health Care

Service Corporation, Defendants-Appellees.

No. 88-1963.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 9, 1988.

Decided May 1, 1989.

Dawn M. Cassie, Hamman & Benn, Chicago, Ill., for plaintiff-appellant.

Andrew R. Running, Kirkland & Ellis, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, WOOD, Jr., and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

We review a decision of the district court granting summary judgment to defendants, who had refused the plaintiff's request for disability and medical benefits. Because the district court's holding hinged on the plaintiff's repeated failure to comply with reasonable requests for medical documentation, we affirm. However, were the central issue whether benefits were rightly refused based on the medical documentation available, a quite different result might be indicated.

I.

The plaintiff, Rajiv Bali, was employed from January 1980 through March 1982 as an auditor for Health Care Service Corporation ("HCSC"). While an employee of HCSC, Bali was covered by two health plans: (1) the Non-Contributory National Long-Term Disability Program (the "LTD Program"), a Blue Cross program administered by the National Employee Benefits and Compensation Committee (the "NEBC") ¹ and sponsored by HCSC; and (2) the Health Assurance Plan (the "HA Plan"), administered by HCSC. Both plans are governed by the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. Sec. 1001 et seq.

Bali had as a child had his right leg amputated below the knee; before sustaining the back injury that forms the basis of his complaint here, he walked using an artifical limb and crutches. As an auditor for HCSC, the plaintiff was required to perform on-site audits at various Illinois health care facilities. In the performance of an on-site audit, auditors must "make a detailed walking tour of the facility," and must carry manuals and workpapers that "generally weigh from 40 to 60 pounds" to and from the hospital sites. Plaintiff's Exhibit A. Bali's complaint alleges that it was in lifting his auditor's bag that he first injured his back, on July 24, 1981. Complaint at p 10. From the summer of 1981 through March of 1982 Bali remained on leave, and for most of that time received short-term disability benefits. Bali was apparently preparing to return to work in a limited capacity in March of 1982; however, on April 1, 1982, he was dismissed because of unsatisfactory reports on his job performance prior to the time of his disability leave. ²

In December of 1981, Bali had in the meantime applied for long-term disability benefits. On May 6, 1982, the NEBC Medical Review Committee (the "Committee") reviewed Bali's claim, and granted him benefits for the month of January, 1982. Defendants' Exhibit 9. The Committee determined that Bali's entitlement ended February 1, 1982, when Bali was released to return to work. Bali appealed this decision, requesting reconsideration on the basis of a report from his physician. On June 30, 1982, the NEBC informed Bali that the doctor's report alone would not suffice, and requested further information, including lab reports. Defendants' Exhibit 11. Bali apparently submitted a report from another doctor, Dr. Kolb, but the NEBC denied his appeal on October 14, 1982 because this additional doctor's report did not provide "any objective findings." Plaintiff's Exhibit K.

After receiving a letter from Bali's attorney requesting an additional review of his claim, the NEBC notified Bali that it would again consider his claim if he would provide the requisite medical evidence ("x-ray and lab reports, a medical history of examinations from the date benefits were suspended, current treatment, as well as future plans which will permit Mr. Bali's recovery so that he can return to active employment."). Defendants' Exhibit 15. Bali's attorney forwarded a radiology report and a medical report from Bali's personal physician to the NEBC, Defendants' Exhibit 16, ³ but on February 25, 1983, the NEBC informed the attorney that "all the objective medical evidence requested in our December 20, 1982 letter has not been forwarded to our office." Defendants' Exhibit 18. Bali's attorney then suggested that the NEBC arrange an appointment with a physician of its choice to remedy any gaps in the evidence. Plaintiff's Exhibit L. The NEBC arranged for Bali to see an independent physician, Dr. Rana, at its own expense, and asked that Bali bring to his appointment "X-ray films and reports from radiologists," a "CT Scan of the lumbosacral spine," and "original EMG's and myelogram results." Plaintiff's Exhibit N. The NEBC stressed that "[t]his evidence must accompany Mr. Bali to support the continuation of benefits after February, 1982." Id.

In his April 20, 1983 report on Bali, Dr. Rana noted that Bali had brought with him two x-rays of the lumbosacral spine, which showed "very mild narrowing of the L5-S1 disc space" that was "essentially within normal limits." Plaintiff's Exhibit P. Dr. Rana's report concluded:

Because of the amputation of the right leg, it is very difficult to come up with a definite answer whether he has a herniated disc or not but because of persistent pain in his lower back and sciatica and paresthesia, I think one is obligated to rule out herniated disc and I would advise that he should undergo EMG nerve conduction studies and lumbar myelogram.... I discussed with him his previous job as an auditor which obviously requires a lot of walking and also carrying sometimes 40 to 60 lbs. of weight at a time.... I think a fellow who is on two crutches and has back pain and leg pain, I don't think he can walk long distances or carry weights more than 15 to 20 lbs. at a time.

Id. The NEBC subsequently asked that Dr. Rana clarify whether Bali could perform his job if relieved of its "physical requirements." Plaintiff's Exhibit Q. In his reply Rana reiterated his recommendation that Bali undergo tests so as to either rule out or permit treatment of a herniated disc, and added that once that had been accomplished Bali "should be able to handle his work as auditor as you have outlined in your letter, i.e., freeing him from the physical requirements of his job." ⁴ Plaintiff's Exhibit R.

In June of 1983, the NEBC approved retroactive long-term disability payments for Bali effective from February, 1982 through June, 1983. Plaintiff's Exhibit S. At the same time, the NEBC notified Bali that any further payments would be conditioned on a re-evaluation, and upon his submission to the tests recommended by Dr. Rana:

The Sub Committee, while granting your appeal for LTD Benefits, expressed concern as to the lack of a specific diagnosis.... They noted that your physicians stated that ... if the pain persists you should undergo a myelogram in order to better determine the cause of your disability so that a program of treatment can begin. Alternatively, your physician may find that a CAT Scan of your lumbosacral spine would be acceptable if combined with an EMG nerve conduction study.

You should be aware that benefit payments are conditioned on the fact that you follow the treatment recommended by your physicians.

Plaintiff's Exhibit T. On October 28, 1983, the NEBC renewed its request for the "objective" medical tests, specifically warning the plaintiff of the importance of compliance: "I must emphasize to you the importance in [sic] furnishing all the information requested...." Plaintiff's Exhibit V. Bali once again submitted a report from his personal physician without any of the accompanying data requested by the NEBC. On January 27, 1984, the Medical Review Committee determined that Bali was not eligible for continuing benefits because he had failed to provide the specific information requested. Plaintiff's Exhibit Y. The NEBC gave Bali 90 days to appeal this decision and to submit the requisite evidence, and subsequently extended its deadline to May 20, 1984.

On June 4, 1984, the NEBC again wrote to Bali, stating that it had not received any of the requested information, and explaining again why the information was necessary:

The problem we have had with your case and which we have tried many times to explain to you is that we have no objective medical information which is required under the Program as to the cause of pain so severe that a person of your age and attainments cannot do auditor-type work. The objective tests we have, such as x-rays, are within normal limits. Accordingly we have no basis to change the denial decision contained in the January 27, 1984 letter.

Plaintiff's Exhibit HH. On August 2, 1984, Bali at last sent to the NEBC a copy of a report on a myelogram that had been performed in January of 1984. However, he forwarded a radiologist's interpretation of the myelogram, and not the actual test results. On August 31, 1984, the NEBC responded with a final notice requesting Bali's hospital record during the time of his myelogram, a copy of the findings of a CT Scan that had been performed in December of 1983, reports of any surgery and lab tests performed after that time (Bali had had chymopapain treatment in February of 1984, something that certainly would have been pertinent to the Committee's decision had it been informed), physician's notes indicating Bali's course of treatment since December 1983 and Bali's physician's plan for future treatment. Plaintiff's Exhibit JJ. This time the NEBC gave Bali a fixed deadline; the additional data requested must be received by September 14, 1984. The subsequent October 10 decision would be the final step in the claims review procedure.

On September 14, Bali wrote to the NEBC protesting the amount of documentation required, and making a veiled reference to "the confidentiality of the physician patient relationship." Plaintiff's Exhibit KK. He did not provide the requested information. The...