Anderson v. Liberty Mut. Long Term Disability Plan, Case No. C15–00145RSM.

• Decision Date: 27 July 2015
• Docket Number: Case No. C15–00145RSM.
• Citation: 116 F.Supp.3d 1228
• Parties: Joni ANDERSON, Plaintiff, v. LIBERTY MUTUAL LONG TERM DISABILITY PLAN; Liberty Life Assurance Company of Boston; and Liberty Mutual Insurance Company, Defendants.
• Court: U.S. District Court — Western District of Washington

116 F.Supp.3d 1228

Joni ANDERSON, Plaintiff,

v.LIBERTY MUTUAL LONG TERM DISABILITY PLAN; Liberty Life Assurance Company of Boston; and Liberty Mutual Insurance Company, Defendants.

Case No. C15–00145RSM.

United States District Court, W.D. Washington, at Seattle.

Signed July 27, 2015.

Melton L. Crawford, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiff.

Katherine S. Somervell, Bullivant Houser Bailey P.C., Portland, OR, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT UNDER FRCP 52 AND DENYING DEFENDANTS' CROSS MOTION FOR JUDGMENT UNDER FRCP 52

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court on Cross Motions filed by Plaintiff Joni Anderson and Defendants Liberty Mutual Long Term Disability Plan, Liberty Life Assurance Company Of Boston ("LLACOB"), and Liberty Mutual Insurance Company ("Liberty Mutual"), seeking a final judgment from this Court under Federal Rule of Civil Procedure 52 based on an administrative record created in an underlying Employee Retirement Income Security Act ("ERISA") dispute. Dkt. 15 and 24. Plaintiff brings this action under ERISA, 29 U.S.C. § 1001 et seq. to recover long-term disability ("LTD") benefits under the Liberty Mutual Long–Term Disability Plan ("Plan"). Ms. Anderson, who worked as a Books Transfer Account Manager for a Liberty Mutual company, argues that she is totally disabled under the terms of the Plan due to vertigo, dizziness, disequilibrium (or dysequilibrium), and related symptoms. Defendants argue that the medical evidence and post-diagnosis surveillance do not establish that Ms. Anderson is totally disabled. For the reasons set forth below, the Court concludes that Ms. Anderson is entitled to long-term disability benefits under the terms of the Plan. The Court remands to LLACOB the issue of extending benefits beyond the 18–month period prescribed for "own occupation" benefits.

II. PROCEDURAL ISSUES

Before turning to the merits of the parties' arguments, the Court must determine whether it is appropriate to resolve this case on the parties' cross motions for judgment under Rule 52 (Dkt. 22–1 and 24) as opposed to summary judgment under Rule 56. The answer depends on what standard of review the court applies. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) ("ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations."). The parties here have simplified the matter by stipulating to de novo review. Dkt. 22–1 at 14; 24 at 5. The court accepts the parties' stipulation and reviews the record de novo. See Rorabaugh v. Cont'l Cas. Co., 321 Fed.Appx. 708, 709 (9th Cir.2009) (court may accept parties' stipulation to de novo review).

Where review is under the de novo standard, the Ninth Circuit has not definitively stated the appropriate vehicle for resolution of an ERISA benefits claim. The de novo standard requires the court to make findings of fact and weigh the evidence. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1069 (9th Cir.1999) (de novo review applies to plan administrator's factual findings as well as plan interpretation). Typically, a request to reach judgment prior to trial would be made under a Rule 56 motion for summary judgment, however under such a motion the court is forbidden to make factual findings or weigh evidence. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Instead, the parties here propose the Court conduct a trial on the administrative record under Rule 52.

This procedure is outlined in Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir.1999) (noting that "the district court may try the case on the record that the administrator had before it"). In a trial on the administrative record:

The district judge will be asking a different question as he reads the evidence, not whether there is a genuine issue of material fact, but instead whether [the plaintiff] is disabled within the terms of the policy. In a trial on the record, but not on summary judgment, the judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true.

Id. Thus, when applying the de novo standard in an ERISA benefits case, a trial on the administrative record, which permits the court to make factual findings, evaluate credibility, and weigh evidence, appears to be the appropriate proceeding to resolve the dispute. See Casey v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir.1994) (on de novo review of an ERISA benefits claim, the "appropriate proceeding[ ] ... is a bench trial and not the disposition of a summary judgment motion"); Lee v. Kaiser Found. Health Plan Long Term Disability Plan, 812 F.Supp.2d 1027, 1032 (N.D.Cal.2011) ("De novo review on ERISA benefits claims is typically conducted as a bench trial under Rule 52"); but see Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir.2005) ("When there is no dispute over plan interpretation, the use of summary judgment ... is proper regardless of whether our review of the ERISA decision maker's decision is de novo or deferential.").

Given the above law, and the clear intent of the parties, the Court elects to resolve the parties' dispute in a bench trial on the administrative record rather than on summary judgment. Therefore, the court issues the following findings and conclusions, pursuant to Rule 52.

III. FINDINGS OF FACT

1. Plaintiff Joni Anderson has worked for Safeco, a subsidiary of Liberty Mutual, in various roles since 2000. R1045–46. Ms. Anderson began her most recent job as a Books Transfer Account Manager in June of 2012. Id. In this position, Ms. Anderson worked 7.5 hours a day and 37.5 hours a week. R01389. This job requires near constant use of a computer in an office setting. Id.; R00408.

2. Ms. Anderson was offered Short Term Disability ("STD") and Long Term Disability ("LTD") benefits through plans administered by the Liberty Life Assurance Company of Boston ("LLACOB").¹ R01362; R01068–69. As a full time employee working a minimum of 37.5 hours per week, Ms. Anderson was eligible for LTD benefits. R00003.

3. Under the STD Plan, benefits are awarded based on an employee meeting the following definition of disability: "... inability to perform all the material and substantial duties of his or her Own Job at his or her pre-disability regular schedule because of injury or sickness." R01332. These benefits are only available for a short term: 182 days. R01068.

4. Under the LTD Plan, benefits are awarded beyond the 182–day window. Under this plan, "Disabled" is defined as when the employee "as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own Occupation." R00007. "Sickness" is defined as "illness, disease, pregnancy or complications of pregnancy." R00010. The Plan defines "Material and Substantial Duties" as "responsibilities that are normally required to perform the Covered Person's Own Occupation, or any other occupation, and cannot be reasonably eliminated or modified." R00009.

5. LTD Plan benefits are limited to 18 months unless the employee can show that she "is unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation." R00004; R00007. "Any Occupation" is defined as "any occupation that the [employee] is or becomes reasonably fitted by training, education, experience, age, physical and mental capacity." R00005.

6. In February of 2012, Ms. Anderson suffered from an episode of vertigo and dizziness and saw her primary care physician, Whitney McClincy, M.D. R01369. She was diagnosed with Meniere's disease. Id. Her symptoms continued intermittently, but mildly, until roughly November of 2012, when she noticed a worsening of these symptoms and lightheadedness, nausea, fatigue, and disequilibrium. Id.

7. In December of 2012, Ms. Anderson's symptoms were so severe she did not feel she could go to work. R01369. Records show Ms. Anderson ceased work on December 11, 2012. R00077. When evaluated by Dr. McClincy on December 13, 2012, Ms. Anderson reported "severe fatigue," "frequent nausea," "new symptom of ears ringing," and "a sense of motion that is fairly short-lived." R01369. Ms. Anderson reported that she tried working from home but "just can't accomplish what needs to be done due to her symptoms." Id.

8. On December 18, 2012, Ms. Anderson applied for STD benefits, which LLACOB granted on January 17, 2013. R1394; R1362. In granting these benefits, LLACOB specifically found that Ms. Anderson was "disabled" starting on December 11, 2012. R1362.

9. In January and February of 2013 Ms. Anderson saw an otolaryngologist, Jay Rubenstein, M.D. R01256–58; R1252. Dr. Rubenstein conducted vestibular testing, which was "suggestive of migraine and with a variety of disconnected abnormalities." R01252. Dr. Rubenstein prescribed Topamax, but it worsened Ms. Anderson's symptoms and was discontinued. R1250–52.

10. In February of 2013, Ms. Anderson was advised by her doctor that she could try working from home, Safeco accepted this proposal, and her STD benefits ceased. R00061.

11. Ms. Anderson's symptoms continued. She was referred to a neurologist, Michael Chun, M.D., who evaluated Ms. Anderson on February 28, 2013, and took several MRI scans. R01286–94. Although the MRI scans showed no clear etiology for her condition, the neurologist wrote "Examination clearly abnormal, rotary nystagmus.... Probably not migraine variant. Pursing (sic) further images." R1294. Dr. Chun evaluated her again on March 8, 2013, and noted a suspected vestibular disorder. R1295.

12. In May of 2013, Ms. Anderson was seen by a neuro-opthalmologist, Eugene May, M.D. R01249. Dr. May conducted an exam and noted "she has downbeating nystagmus... which is probably not congenital in etiology and probably not related to her amblyopia. I suspect that the downbeating nystagmus is an indication

...