Yesterday, the Sixth Circuit Court of Appeals issued its decision in Messing v. Provident Life and Accident Insurance Company, No. 21-2780, __F.4th__, 2022 WL 4115873 (6th Cir. Sept. 9, 2022). Defendant Provident Life & Accident Insurance Company (“Provident”) paid Plaintiff Mark Messing long-term disability (“LTD”) benefits from 2000 until 2018, when it relied on an independent medical evaluation to terminate Messing’s claim. When Messing sued Provident to reinstate his benefits, Provident brought a counterclaim against him seeking reimbursement for the benefits it paid him for 18 years. The district court found that Messing did not prove by the preponderance of the evidence that he remained unable to work as an attorney, so it granted judgment to Provident on the LTD claim. The district court granted Messing’s motion for summary judgment on Provident’s counterclaim. The Sixth Circuit reversed the district court’s decision on Messing’s LTD claim, finding that he did establish his disability by the preponderance of the evidence, and affirmed the district court’s decision on Provident’s counterclaim.
Messing worked as a personal injury attorney until he became unable to perform the substantial and material duties of his occupation in 1997 due to major depression. He applied for and received LTD benefits from Provident for a short period. After Messing filed a lawsuit in 1999, Provident resumed LTD payments as part of a settlement of his claim. Between 2010 and 2018, Provident requested that Messing complete and return status update forms. Messing represented on the forms that he continued to be unable to perform substantially all the duties of lawyering. He signed fraud warnings acknowledging that should his claim be overpaid for any reason that it is his obligation to repay any such overpayment. In 2018, Messing’s claim was transferred to Jennifer Crowley, a Senior Disability Specialist at Provident. Crowley sought updated records from Messing’s treating psychiatrist, Dr. Franseen. Dr. Franseen submitted a report noting Messing’s diagnosis as Major Depressive Disorder, recurrent, minimal to mild. She also noted that he was no longer taking medications and that his condition had been stable. Dr. Franseen opined that Messing should avoid highly stressful situations, but he is better able to tolerate normal stress. Dr. Franseen did not opine as to whether he could return to work.
Provident then hired Dr. Lemmen to evaluate Messing. He conducted a two-hour interview with Messing and concluded that he did have Major Depressive Disorder but that he is not experiencing significant symptoms. Dr. Lemmen concluded that Messing’s condition was in remission and that there was no evidence that Messing would not be able to practice as an attorney if he wanted to. Provident terminated Messing’s benefits and Messing appealed. As part of his appeal, he submitted a report from another psychiatrist, Dr. Callaghan, who agreed that Messing suffered from Major Depression but disagreed with Dr. Lemmen that Messing could return to work as an attorney since Messing has a clear history of exacerbation of major depression when exposed to work stressors. Messing also submitted affidavits from other lawyers supporting his claim and a vocational rehabilitation evaluation. Provident upheld its determination. Messing filed suit under ERISA § 502(a)(1)(B), seeking reinstatement of his benefits. After he filed suit, Provident found evidence that Messing had been working occasionally as an attorney while he was collecting LTD payments. However, there was no indication that he ever resumed working as an attorney in a full-time capacity. Provident, nonetheless, filed a counterclaim under ERISA § 502(a)(3) to recover overpaid benefits on the basis that Messing made fraudulent statements about being totally unable to work and that he signed reimbursement agreements agreeing to repay overpaid benefits.
On the LTD claim, the court determined that Messing needed to prove by a preponderance of the evidence that he remains unable to perform the substantial and material duties that he previously performed as an attorney in 1998. The court found that Dr. Franseen’s report cuts both ways and does not help either party. Dr. Lemmen’s report weighs against Messing but he only concluded there was no objective evidence that Messing would not be able to practice as an attorney (a double negative). Only Dr. Callaghan directly addressed the question at issue: whether Messing could return to work. And he found that he could not. With respect to the attorney affidavits, the court found it irrelevant that Messing no longer possesses the skills to return to the practice of law since the question is whether he suffers from a disability that prevents him from working as a lawyer. His loss of skills goes to his employability, which is a separate issue. However, the court did find the affidavits relevant to the extent that they suggest Messing still suffers from depression which prevents his ability to work as a PI trial attorney. The court found the vocational rehabilitation evaluation to be irrelevant since vocational expert testimony has no relevance to LTD claims where the question is whether a claimant is able to return to his former position based on the medical evidence. The record did contain some evidence that Messing performed some legal services in 2004 but the court found its probative value to be minimal. On the whole, the court found that Messing proved his entitlement to continued benefits.
On Provident’s counterclaim for an equitable lien, Provident asked the court to impose either an equitable lien for restitution or an equitable lien by agreement on the allegedly overpaid funds. For an equitable lien for restitution, Provident had to prove that Messing’s statements “induced” it into making payments it otherwise would not have made. The court agreed with the district court that Provident failed to proffer any evidence that it would have terminated Messing’s benefits earlier. Crowley testified that if Provident were notified Messing had been in working it would have conducted a more extensive review of his claim. However, she admitted that such a review would not necessarily result in the termination of benefits. Because there is no evidence that Messing’s allegedly fraudulent statements induced Provident to continue payments longer than it would have, the district court did not err in granting summary judgment on Provident’s counterclaim. The court also found that the status updates that Messing signed decades after the Plan went into effect were not sufficient to create an equitable lien by agreement. The promise to repay must exist in the original plan document, not a subsequent agreement. Lastly, given that the court found that Messing was entitled to benefits, “it would make little sense” to permit Provident to attach a lien on his benefit payments.