Gustafson-Feis v. Reliance Standard Life Ins. Co.

• Decision Date: 21 April 2021
• Docket Number: CASE NO. C20-5336 BHS
• Citation: 535 F.Supp.3d 1076
• Parties: Lisa GUSTAFSON-FEIS, Plaintiff, v. RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Washington

535 F.Supp.3d 1076

Lisa GUSTAFSON-FEIS, Plaintiff,

v.RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant.

CASE NO. C20-5336 BHS

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

Signed April 21, 2021

Stacy Monahan Tucker, Kantor & Kantor, Northridge, CA, for Plaintiff.

Dennis J. Rhodes, Pro Hac Vice, Wilson Elser Moskowitz Edelman & Dicker, San Francisco, CA, Brian Otis Felder, Wilson Elser Moskowitz Edelman & Dicker, Los Angeles, CA, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on Plaintiff Lisa Gustafson-Feis's motion for summary judgment. Dkt. 13. The Court has considered the motion and the briefs filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Overview

Gustafson-Feis is a 48-year-old professional suffering from a serious hip injury

. She filed a claim for long-term disability benefits with her insurer, Defendant Reliance Standard Life Insurance. Reliance rejected her claim, contending that it was barred by the policy's pre-existing condition exclusion. The exclusion provides that:

Benefits will not be paid for a Total Disability:

(1) caused by;

(2) contributed to by; or

(3) resulting from;

A Pre-existing Condition ....

A "Pre-Existing Condition" means any Sickness or Injury for which the Insured received medical Treatment, consultation, care or services, including diagnostic procedures, or took prescribed drugs or medicines, during the three (3) months immediately prior to the effective date of insurance.

AR 24–25 (Dkt. 13-1 at 27–28).¹

The parties dispute how to calculate Gustafson-Feis's effective date of insurance and corresponding look-back period under the policy and dispute whether injuries Gustafson-Feis sustained in an accident in 2016 caused or contributed to her current injury.

B. Gustafson-Feis's Medical and Professional History

Gustafson-Feis worked as a contractor for Microsoft for many years, creating product lines. In June 2016, she was hit by a passenger van while traveling in New York and fractured her low spine and pelvis. AR 2408–16. She had hardware implanted in reconstructive surgery and returned to work full time in September 2016 with some restrictions, such as using a walker. AR 7092–99. She did extensive physical therapy and declared that by September 2017, she was "back to normal, on my own two feet, able to do any and all activities, even wear heels and work out in the gym." AR 7093–95. She described activities including moving furniture upstairs, sanding, painting, and reupholstering furniture, and extensive gardening and hauling gardening materials, and explained that she used a cane only rarely. AR 7095. She also described a month-long trip to Germany in November 2017 involving extensive activities such as walking several hours per day and explained that she "did not use any assistive devices whatsoever, at any point during the trip." AR 7097.

On December 4, 2017, her surgeon, Dr. Henry Sagi, noted that she still had some pain related to nerve damage down the front of her thigh but cleared her to go skiing and released her from restrictions. AR 0766. On December 13, 2017, Gustafson-Feis saw her primary care provider, ARNP Lauren Schweizer, who refilled prescriptions, including Tramadol

for pain, and noted that Gustafson-Feis was attempting wean down that medication. AR 0583. Gustafson-Feis refilled a prescription for Gabapentin, a medication used to control nerve pain, on January 16 and February 20, 2018. Dkt. 13 at 14.² She renewed her Tramadol prescription on January 26, 2018. AR 0456.³ She also called Schweizer's office on February 7, 2018 to request a note for an ergonomic desk at her upcoming new job with HCL, Inc., contracted to Microsoft. AR 0424. Gustafson-Feis asserts that ergonomic desks are standard-issue at Microsoft for full-time employees, but contractors must submit a doctor's note. Id. She refilled her Tramadol

prescription again on March 16, 2018.⁴

Gustafson-Feis started with HCL in February 2018. Her job was very active, requiring extensive walking around the expansive Microsoft campus transporting prototypes in and out of storage, as well as travel to China.

HCL provided short- and long-term disability insurance to its employees through Reliance. These plans are governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"). HCL made available a "Core" long-term disability benefit which paid 60% of an employee's covered monthly earnings and a "Buy-Up" long-term disability benefit which paid 70%. AR 24–25.

While on a work trip to China in May 2018, Gustafson-Feis experienced a sharp pain in her left hip, which led to difficulty walking. She saw Dr. Sagi and his resident Dr. Sara Putnam on June 18, 2018. AR 0767. Dr. Putnam reviewed x-rays indicating no change in previous conditions, and gave her impression:

45 year old female with left anterior hip pain concerning for either psoas tendinitis or possible intra-articular pathology, including a cartilage flap or labral tear. Given the degree of her symptoms, it is very unlikely that they [sic] small amount of heterotopic ossification

in her left anterior hip soft tissues is causing her pain. We recommend proceeding with a left hip MR arthrogram.

AR 0768. The MR arthrogram

showed a labral tear and cartilage damage in her left hip. AR 1074–75.

Gustafson-Feis saw ARNP Schweizer on July 3, 2018 for her annual exam. AR 0586–87. The chart notes reflect that Gustafson-Feis "recently returned from a trip to China, where she re-aggravated her hip." Id. Schweizer's August 29 notes reflect that Gustafson-Feis visited following

a re-injury to prior hip and pelvic fracture

. Pt recently diagnosed via MRI with an acute Labral tear within L hip at site of previous crushing injury. Pt currently is in significant pain and is unable to walk for prolong [sic] periods of time without a walker or wheelchair. Pain is constant 8/10 at all times.

AR 586. Schweizer's notes also reflect that Gustafson-Feis had to identify a new orthopedist as Dr. Sagi was leaving the area. AR 587. Gustafson-Feis saw Schweizer on October 12, 2018 for an ER follow-up and referral, and Schweizer's notes state that "Pt is here today for a F/U to recent reinjury of pelvis/sacrum. This resulted from a fall and Pt went to ER for evaluation. Imaging was done and diagnosis of labral tear." AR 4042.

Gustafson-Feis applied for short-term disability benefits with Reliance on August 20, 2018, supported by a Medical Certification form from Schweizer with a diagnosis of "pelvic pain left hip acetabular labral tear involving anterior and superior segments" and concurrent disabling condition of "labral tear with acute hip pain in setting of chronic pain with prior and recent trauma." AR 491–92.

Gustafson-Feis saw a new orthopedist, Dr. Keith Mayo, in November 2018. Dr. Mayo's opinion was that:

her pain is likely multifactorial with components from the hip, posterior pelvic ring, as well as a neurogenic component to her pain .... Her pain is likely exacerbated by her continued gait disturbance and immobility and deconditioning. Her labrum, while possibly pathologic, is not likely to be the source of the majority of her pain given her pattern of symptoms.

AR 537. He suggested elective removal of some of her permanent hardware "as removal may make some of her posterior pelvic pain better, although this will not completely eliminate all of her pain." AR 537. Chiropractic records in January 2019 reflected that her 2016 injuries

caused a lot of damage to her low back and pelvis. She has since had surgeries and now has some nerve damage in the lower back and anterior thighs. She was doing pretty well after all the physical therapy, chiropractic, acupuncture

, and medication. Then, in May 2018 she was in China for work and tore her left hip labrum with all the walking and getting in and out of busses. Now her pain has increased and she has returned to needing a walker to ambulate.

AR 3861.

In January 2019, Dr. Mayo removed the hardware, but Gustafson-Feis reported that her pain continued and included numbness and weakness. AR 0892. She saw a pain specialist, Dr. Xi Tian, in February and March 2019, who obtained MRIs showing that one of her 2016 fractures had not fused. AR 4437. Gustafson-Feis argues this demonstrates that "Dr. Mayo's decision to remove the hardware had been wrong and caused her serious harm." Dkt. 9 at 12. She then saw Dr. Mayo, who opined that "she falls into the category with relatively minor changes but disproportionate discomfort." AR 1090.

Reliance denied her long-term disability claim in April 2019. AR 283. In May 2019, Gustafson-Feis filed suit in New York state court against the parties responsible for her 2016 accident. Dkt. 13-2.⁵ Her allegations include that she suffered "severe, painful, and disabling injuries, which have caused and will continue to cause her pain and suffering, as well as a diminution in the quality of her life." Id. Gustafson-Feis contends that she only intended to claim disability for the wage loss she incurred due to the accident in 2016 and 2017 (prior to her return to work without restrictions after December 4, 2017). Dkt. 14 at 7.

Gustafson-Feis timely appealed Reliance's denial. She submitted a 35-page declaration describing her recovery from the 2016 accident, her extensive travel and activities following her recovery, her active trip to China before the onset of her injury, and the difficulty she encountered since then. AR 7092–126.

She also submitted letters from providers. Dr. Sagi confirmed that following her rehabilitation from the 2016 accident he had released her to full activity and explained that "[f]ollowing a trip overseas where the patient was particularly active she then began to complain of hip pain which, as I recall, was a new complaint that she had not...