Bragg v. Abn Amro North America, Inc.

• Decision Date: 30 September 2008
• Docket Number: No. 06-CV-11226.,06-CV-11226.
• Citation: 579 F.Supp.2d 875
• Parties: Karon L. BRAGG, Plaintiff, v. ABN AMRO NORTH AMERICA, INC., and Highmark Life Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

579 F.Supp.2d 875 Karon L. BRAGG, Plaintiff,
v.
ABN AMRO NORTH AMERICA, INC., and Highmark Life Insurance Company, Defendants. No. 06-CV-11226. United States District Court, E.D. Michigan, Southern Division. September 30, 2008.

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Evan A. Zagoria, Provizer & Phillips, Bingham Farms, MI, for Plaintiff.

Anthony A. Agosta, Clark Hill, Detroit, MI, Thomas J. Guyer, LaSalle Bank Corporation, Troy, MI, David F. Schmidt, Chittenden, Murday, Chicago, IL, for Defendants.

OPINION AND ORDER REGARDING CROSS-MOTIONS FOR ENTRY OF JUDGMENT

GERALD E. ROSEN, District Judge.

I. INTRODUCTION

This denial of disability benefits case is presently before the Court on Cross-Motions

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filed by Defendants ABN AMRO North America, Inc. and Highmark Life Insurance Company, the insurer and administrator of ABN AMRO's Long-Term Disability Benefits Plan, and Plaintiff Karon L. Bragg, requesting, respectively, affirmance and reversal of the administrative decisions denying Ms. Bragg's claims for short and long-term disability benefits. Having reviewed Plaintiff's and Defendants' briefs, and the Administrative Record of this matter, the Court has determined that oral argument is not necessary. Therefore, pursuant to Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion sets forth the Courts's ruling.

II. PERTINENT FACTS

Plaintiff Karon L. Bragg is a former employee of Defendant ABN AMRO North America ("ABN AMRO").¹ Ms. Bragg was employed by ABN AMRO and its predecessors for 23 years, from 1981 to April 15, 2004. For the first 13 years of her employment, from 1981 to 1994, Ms. Bragg worked as a savings counselor, bank teller and a loan underwriter. In 1994, she became a mortgage counselor, and in 1999 she was promoted to assistant manager/personal banker,² which is the most recent position Ms. Bragg held until she allegedly became disabled on April 16, 2004.

PLAINTIFF'S CLAIM FOR SHORTTERM DISABILITY BENEFITS

On April 19, 2004, Ms. Bragg applied for short-term disability ("STD") benefits through ABN AMRO's employee benefit plan [See Plaintiff's Ex. 1]. ABN AMRO's STD plan is a self-insured, non-ERISA plan which provides disabled employees "salary continuation benefits" to replace all or a portion of the employee's salary during the period of disability. Id. See also AR 0181.³ The STD salary continuation benefits paid under the ABN AMRO plan equal 100% or 60% of the employee's salary for up to 26 weeks, depending on the employee's length of service.⁴ Id.

Eligibility for benefits is delineated in the provisions of the STD plan:

Proof of disability is required. The employer will be sent and is responsible for completing a medical release authorization. The employee's doctor will be required to provide medical documentation as it relates to the disability. During the disability period, continuation of benefits may be subject to a second opinion provided by a physician designated

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by Broadspire [the Company's short-term disability claim administrator.]⁵ The employee's doctor may also be required to provide additional medical documentation to substantiate the continued disability.

If appropriate documentation is not provided within 10 business days from the date the disability begins, the Company reserves the right to discontinue an employee's pay until the documentation is furnished. It is ultimately the employee's responsibility to be sure that their [sic] doctor furnishes Broadspire with the required medical documentation (i.e., office notes, charts, x-rays, etc.) in a timely manner or short term disability benefits could be discontinued.

* * *

To be eligible for STD Benefits, the disability must be deemed as such by the employee's physician and the disability management company.

[Plaintiff's Ex. 1.]

As noted, Broadspire Services, Inc. ("Broadspire") is ABN AMRO's STD claim administrator. Broadspire reviews the disability claims to determine whether an employee is entitled to the STD benefits. ABN AMRO's STD plan directs employees to contact Broadspire directly to make a claim for STD benefits. Id.

Ms. Bragg contacted Broadspire on April 19, 2004 claiming disability due to Post Polio Syndrome ("PPS")⁶ and fatigue. See AR 0138.F-G. She informed the intake coordinator that her primary care physician, Dr. Peter Rodin, had prescribed Prozac and Welbutrin for her symptoms. AR 0138.H-I. She further advised that Dr. Rodin referred her to Dr. Charles Stern, a clinical psychologist whom she was scheduled to see on April 22, 2004. AR 0138.M.

On April 23, 2004, Broadspire's claim manager spoke with Ms. Bragg's primary care physician, Dr. Rodin, regarding her PPS and fatigue. Dr. Rodin stated that Plaintiff was off work because of psychological reasons, not physical reasons. AR 0144. Broadspire thereafter contacted Dr. Stern and made several attempts to obtain clinical information from him concerning his treatment of Ms. Bragg. AR 0145. No objective clinical records, however, were ever provided. Therefore, on May 3, 2004, Broadspire advised Ms. Bragg in writing that her STD claim was denied. AR 0055. Broadspire's denial letter explained:

Pursuant to ABN Amro's definition of a disability:

"To be eligible for Short Term Disability, the disability must be deemed as such by the employee's physician and the disability management company. In order to receive short term disability benefits due to surgery and recuperation following surgery, there must be a medical necessity."

I have received medical documentation from Dr. Rodin on 4/22/04 regarding post polio syndrome and fatigue. I spoke with his office on 4/23/04 and I was told you were out of work due to psychological and not physiological reasons. Dr. Stern was notified on 4/28/04 and 4/29/04, and to date we have not received any medical information from this provider. In order to perfect your claim for short term disability benefits, medical information, such as completed Gaf scores, functional deficits and/or results from psychological testing will

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need to be received and reviewed. Therefore, short term disability benefits are denied effective 4/16/04.. ..

If you wish to have your claim reconsidered you must submit within sixty (60) days from your receipt of this letter:

1) A letter of appeal to Broadspire

2) To support your disability you must include objective medical data such as:

a. Office notes

b. X-Ray reports

c. Consultation reports

AR 0055-56.

Plaintiff thereafter appealed and, in conjunction with her appeal, forwarded to Broadspire additional records and information from Dr. Rodin and Dr. Stern, as well from as a third, doctor, Dr. Daniel Ryan, a specialist in Physical Medicine and Rehabilitation, whom Ms. Bragg first saw on June 3, 2004. All of this information, in turn, was forwarded by Broadspire to two peer review physicians, Dr. Eddie Sassoon, a board-certified physician specializing in psychiatry (i.e., physical medicine and rehabilitation), and Dr. Elana Mendelssohn, a board-certified independent peer reviewer specializing in clinical and neuropsychology.

Dr. Sassoon noted that while Ms. Bragg complained of difficulty with sleep and fatigue and reported symptoms which included depression, joint and muscle pain weakness, and sensitivity to cold temperatures as well as increased irritability,

[t]here is no evidence of significant loss of function to preclude [Ms. Bragg] from performing activities at the sedentary level. Updated documentation does not reveal any significant loss of range of motion or strength that is quantified. There is no evidence of updated diagnostic findings that reveal acute neurological impingement, spinal instability, muscle weakness or ligmentous disruption.

AR 0172.

Dr. Mendelssohn reviewed Dr. Rodin's and Dr. Stern's records and found that

From a psychological standpoint, the documentation indicates the presence of depression and anxiety. However, there is a lack of objective examination findings and behavioral observations describing a psychological condition impacting the claimant's functioning to a degree that would preclude her from performing her occupation.

AR 0168-69.

After reviewing Plaintiff's job description, all of her medical records, including Dr. Rodin's notes, Dr. Stern's Behavioral Health Clinician Statement and a Psychological and Neuropsychological Assessment performed by him, Dr. Ryan's notes dated June 3, 2004, and the two peer reviews discussed above, on June 17, 2004, Broadspire upheld the original decision to deny her STD claim explaining:

Your claim history confirms your first day out of work was 4/16/04. The presented medical documentation indicates you have a history of post polio syndrome, reactive depression and TMJ. It is noted you were initially diagnosed with polio at approximately 1½ years of age. Your symptoms have included decreased sleep, fatigue, depression, joint and muscle pain, weakness and sensitivity to cold temperatures, as well as increased irritability. You have been treated with Welbutrin for reactive depression and Prozac. For the TMJ, your dentist has prescribed a mouth guard.

In a Medical Leave Request form completed by Dr. Rodin, he indicated you were unable to work due to post-polio syndrome with chronic fatigue. He also noted you were referred to a mental

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health provider. Verbally, your Case Manager was informed your disability was more psychological than physiological.

Dr. Stern indicated the purpose of his evaluation on 4/22/04 was to assess your neurocognitive dysfunction and personality functioning. However, the evaluation submitted does not indicate any neuropsychological testing was performed. In the evaluation report, Dr. Stern summarizes your responses on the MMPI-2. He noted your responses were suggestive of depression, frustration and restlessness. You also reported social alienation and physical difficulties. Dr. Stern...