Kaferly v. Metro. Life Ins. Co.

• Decision Date: 31 May 2016
• Docket Number: Civil Action No. 14-cv-3504-WJM-CBS
• Citation: 189 F.Supp.3d 1085
• Parties: Michael Kaferly, Plaintiff, v. Metropolitan Life Insurance Company, Defendant.
• Court: U.S. District Court — District of Colorado

189 F.Supp.3d 1085

Michael Kaferly, Plaintiff,

v.Metropolitan Life Insurance Company, Defendant.

Civil Action No. 14-cv-3504-WJM-CBS

United States District Court, D. Colorado.

Signed May 31, 2016

Shawn E. McDermott, McDermott Law, LLC, Denver, CO, for Plaintiff.

Jack M. Englert, Jr., Holland & Hart, LLP, Greenwood Village, CO, for Defendant.

ORDER REVERSING DENIAL OF BENEFITS

William J. Martínez, United States District Judge

In this case brought pursuant to 29 U.S.C. § 1132(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), Plaintiff Michael Kaferly ("Plaintiff" or "Mr. Kaferly") challenges the decision of Defendant Metropolitan Life Insurance Company ("Defendant" or "MetLife") to terminate his long-term disability ("LTD") insurance benefits.

Now before the Court is Plaintiff's Amended Motion for Summary Judgment (ECF No. 30) and the parties' Joint Motion for Determination (ECF No. 57). The disputed issues include whether to set aside MetLife's determination that Plaintiff did not meet the relevant definition of being disabled and, if he did have an otherwise qualifying disability, whether it was due to a "neuromuscoloskeletal and soft tissue" condition which would cap benefits after 24 months. To resolve those issues, the Court must first address what standard of review to apply to MetLife's determinations subject to ERISA review.

For the reasons set forth, the Court concludes that the appropriate standard of review is de novo. Applying that standard, the Court concludes that the record shows Mr. Kaferly was disabled at all relevant times and that his condition is not subject to the neuromusculoskeletal limitation. The Court will therefore grant Plaintiff's Motion for Summary Judgment (ECF No. 30) and enter judgment for Plaintiff.

I. BACKGROUND

Plaintiff was employed by Rotary International ("Rotary") as a Senior Network Analyst starting December 17, 2007. (Administrative Record ("R") (ECF No. 40) at 76.) His responsibilities included administering and coordinating Rotary's email and network systems. (R. at 4095–96.) As a Rotary employee, he was eligible for employee benefits including long term disability coverage ("LTD" or "LTD benefit") under a plan provided by MetLife (the "Plan"). MetLife was both the Plan Administrator and the Plan Sponsor (R. at 56; ECF No. 38 at 12), and responsible for review and determination of an appeal from an adverse claim determination (R. at 59–60). MetLife also issued a group insurance policy (the "Policy" or "Insurance Policy") to Rotary to fund the LTD benefits provided by the Plan. (R. at 4, 56; ECF No. 38 at 12; ECF No. 50 ¶ 6.)

On September 14, 2008, Plaintiff was prescribed the antibiotic Levaquin, in preparation for a surgery. (R. at 2362, 3132.) Soon after, he began to experience a variety of unusual symptoms including pain, fatigue, difficulty walking, and various neurological symptoms. (R. at 2727–31, 2241, 4132.) These problems did not resolve following surgery, and eventually led to a lengthy period of seeking treatment and diagnosis and to a wide variety of symptoms. As summarized in this case, his overarching diagnosis is of "autonomic peripheral neuropathy and mitochondrial dysfunction secondary to fluoroquinolone toxicity from his use of Levaquin in 2008." (ECF No. 30 at 2.) The longer history of symptoms he has experienced includes cognitive impairment including lack of concentration, confusion, memory loss, and "brain fog," blurry vision, double vision/diplopia, joint pain, lower extremity tingling, balance impairment, generalized pain and weakness, fatigue, muscle atrophy, marked weight loss, and fevers.¹ At least in part because the side effects of Levaquin, including mitochondrial compromise, were not well understood in 2008,² his history of testing, treatment, and diagnoses is also lengthy. At various times since 2008, his doctors have diagnosed autonomic neuropathy, Guillain-Barre syndrome, chronic myopathy, paresthesia, chronic fatigue syndrome, fluoroquinolone toxicity, and acquired mitochondrial dysfunction/disorder of mitochondrial metabolism.³

Approximately two months after surgery, Rotary suggested that Plaintiff apply for short term disability benefits, given his symptoms. (ECF No. 30 at 6.) His last day of work was November 26, 2008. (R. 67.) In December 2008, Plaintiff's primary care physician, Dr. Jeffrey Jackson, M.D., completed materials for Plaintiff's application for short-term disability benefits from MetLife, noting an "objective finding" of "inability to walk due to severe muscle weakness [and] neuropathy," and noting "no work at all" for Mr. Kaferly. (R. at 3148.) MetLife approved Mr. Kaferly's application for short term disability benefits as of December 4, 2008. (R. at 4232–32.) In May 2009, Dr. Jackson submitted follow-up materials supporting Plaintiff's continued eligibility for short term disability benefits. (R. at 4092.) He identified polyneuropathy and fatigue as primary and secondary diagnoses. (Id. )

Plaintiff's claim was transitioned to LTD status by MetLife in 2009. (R. at 64 & 4091.) MetLife approved Plaintiff's LTD benefits payable as of May 26, 2009, noting "[y]ou became disabled on November 27, 2008." (R. at 4042–43.)

Plaintiff continued to receive treatment and seek a more definitive diagnosis for his condition and symptoms. On July 8, 2010, he consulted Dr. David Perlmutter, M.D., who opined that Mr. Kaferly's symptoms, including dysesthesia, parasthesia, hypoesthesia, pain, and muscle weakness had been associated with fluoroquinolone toxicity, and that Levaquin exposure was indeed noted in Plaintiff's history. (R. at 3558–59.) This appears to be the first diagnosis linking Plaintiff's symptoms with Levaquin use. Dr. Perlmutter prescribed treatments for this diagnosis. (Id. )

Plaintiff continued to receive treatment and further diagnoses suggesting his condition was caused by fluoroquinolone toxicity. For example, on March 2, 2011, one of Mr. Kaferly's treating physicians, Dr. Jia Gottlieb, M.D., completed documentation for MetLife indicating that Mr. Kaferly's primary diagnosis was fluoroquinolone toxicity, that he was disabled and unable to perform job duties, and that his expected improvement was uncertain. (R. at 3934–35.)

The LTD benefit award provided that MetLife would "periodically require updated medical information" and would contact Mr. Kaferly and/or his physicians to obtain that information. (R. at 4044.) In June 2011, one of MetLife's claim specialists spoke with Plaintiff, and he advised that after years of misdiagnosis, he had received a diagnosis of mitochondrial disease related to his multiple symptoms and conditions. (R. at 166.) In August 2011, one of MetLife's nurse consultants reviewed the file and interviewed Plaintiff, noting that he "was extremely knowledgeable regarding [his] condition," and that the "[c]laim is extremely complicated and needs evaluation by [an] expert in the field." (R. at 175–77.) Follow-up claim notes commented that "[m]edical [information] is not very in depth," suggested an independent medical exam (IME), and referred the claim to a MetLife investigation unit. (R. at 177.)

MetLife's investigation included hiring an investigation company to conduct surveillance of Plaintiff, and seeking an IME. A first IME was scheduled for January 18, 2012. (R. at 202.) Plaintiff appeared for this exam but it was canceled, either by MetLife or by the examining physician.⁴ A second IME was scheduled for February 3, 2012. (R. at 203.) Mr. Kaferly did not appear for this IME and MetLife did not seek to reschedule it. (R. at 204; ECF No. 30 at 12, 31–32.)

MetLife then terminated LTD benefits, by letter dated February 28, 2012, stating that "[b]ased on the medical documentation on file, the information provided is considered subjective in nature," and "there is not any current medical evidence [of] functional impairment provided to support your inability to perform the duties of your own occupation .... Therefore, no further benefits are payable beyond February 28, 2012." (R. at 3868–69; ECF No. 40-28 at 13–14.) In addition, the termination letter noted that Mr. Kaferly had not attended the February 3, 2012 IME and that the plan "states Monthly Benefits will end on ... the date you fail to attend a medical examination requested by us." (R. at 3868.)

Plaintiff appealed from MetLife's termination, by a letter dated June 19, 2012. (R. at 220.) He submitted additional supporting medical materials including medical records and a letter from Dr. Perlmutter reiterating that he "believe[d] that this gentleman is suffering from an acquired mitochondrial dysfunction possibly as a consequence of Levaquin exposure (fluoroquinolone toxicity) ... this patient should be considered completely disabled from any gainful employment." (R. at 3848–49.)

MetLife conducted a review of Mr. Kaferly's appeal, including a review of medical records by an independent reviewer (R. at 3830–39), Dr. Wolf, who described certain functional limitations and restrictions arising from some of Plaintiff's conditions and symptoms (R. at 3837). Her review was provided to his treating physicians and a MetLife vocational specialist. Dr. Perlmutter responded describing the review as being overall "factual and rational," but maintaining his opinion that Mr. Kaferly "indeed has an acquired mitochondropathy as a consequence of fluoroquinolone exposure," noting that these issues "are relatively newly described," and concluding that "based upon the peer-reviewed literature ... the previously described limitations in terms of functional requirements ... should be validated." (R. at 3766–67.) MetLife's vocational consultant concluded that Plaintiff "would be able to do his own job" based on the limitations described by Dr. Wolf. (R. at 245.)

On September 12, 2012, MetLife issued a determination affirming its termination of LTD benefits. (R. at 3758–64.) MetLife concluded that "the medical documentation did establish that you had some...