Lewis v. Unum Life Insurance Company of America
| Decision Date | 30 March 2021 |
| Docket Number | CV-18-02191-PHX-SMB |
| Citation | 569 F.Supp.3d 983 |
| Parties | Larry LEWIS, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Scott Edward Davis, Scott M. Harris, Scott E. Davis PC, Scottsdale, AZ, for Plaintiff.
Stephen M. Bressler, Nicole Marie True, Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for Defendant Unum Life Insurance Company of America.
Pending before the Court is Plaintiff's Opening Brief and Motion for Summary Judgment. (Doc 79.) Defendant Unam Life Insurance Co. responded, (Doc. 85), and Plaintiff replied. (Doc. 86.) Defendant has filed a Motion to Strike certain evidence and arguments in Plaintiff's Reply. (Doc 89.) Plaintiff has responded, (Doc. 90), and Defendant has replied. (Doc. 91.) The Court held oral argument on March 22, 2021 and now enters the following order.
This case arises out of Defendant Unum Life Insurance Company's decision to deny Plaintiff, an employee of Drury Hotels Company, LLC, long-term disability ("LTD") benefits and a Life Insurance Premium Waiver ("LIPW"). Plaintiff had been working for 3 years with Drury Hotels ("Drury") as a Hotel General Manager, and was a participant in the Drury Hotels Company Long Term Disability and Life Waiver of Premium Plans—both of which Drury funded by purchasing group insurance policies from Defendant. (Doc. 85 at 2.) Defendant admits that the Plan in which Plaintiff participated is governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq.
Plaintiff claims that in August of 2015 he began displaying various health issues. On August 10, 2015 he was evaluated by his primary care physician (PCP), Dr. Anderson, who noted Plaintiff was complaining of issues with blood pressure, bouts of fatigue, intermittent sweating, and headaches. (Doc. 78 at 180-81.) Labs showed the Plaintiff's thyroid and testosterone levels were off, and Dr. Anderson raised the dosage of his thyroid medication to combat the symptoms. On August 26, 2015, Plaintiff was admitted to the emergency room (ER) reporting issues with chest pain, shortness of breath, erratic blood pressure, sweating, chills, and unequal eye pupils. (Doc. 78-1 at 4.) The ER gave Plaintiff a transthoracic echocardiogram, subjected him to a treadmill stress test, an X-ray, and other tests, none of which showed any issues that would cause his symptoms. (Id. at 9-13.)
After Plaintiff's trip to the ER, he submitted a claim for short term disability (STD) to Defendant on September 17, 2015. (Doc. 78 at 198-205.) A clinical consultant of the Defendant reviewed Plaintiff's medical information in October of 2015 and approved the claim for short term disability, noting that Plaintiff had been hospitalized. (Id. at 49.) As the clinical reason justifying the claim, Defendant's consultant noted:
Based on the findings provided [restrictions and limitations] would be supported to allow for ongoing evaluation and work up for etiology of symptoms related to palpations and elevated BP to current hospitalization. Once this is confirmed duration of recovery can be determined depending on current treatment.
(Id. ) The same consultant reviewed Plaintiff's STD claim on November 6, 2015. (Id. at 47.) Referencing the additional medical records and testing available to her, the consultant recommended against continuing Plaintiff's STD benefits through the "max date" of November 24, 2015. (Id. ) As her rational, the consultant noted the current testing was negative and the other testing of Plaintiff completed by the Mayo Clinic had also been negative. The consultant noted Plaintiff had also completed "neuropsych" testing by this point in time. (Id. ) In light of the completed testing, the consultant reasoned that further benefits would require a confirmed diagnosis and specific restrictions and limitations. (Id. ) However, Defendant's employee handling Plaintiff's claim continued to approve STD benefits through the "STD max date." (Id. at 46.) The same employee noted it would soon be necessary to evaluate the Plaintiff for long term disability (LTD) and life waiver of premium (LWOP) eligibility. (Id. )
A separate department of the Defendant handled Plaintiff's LTD and LWOP claims. (Doc. 85 at 4.) To be eligible for LTD benefits, a plaintiff must satisfy the Plan's definitions of disability. For the first 60 months, the Plan defines disability as when a claimant is limited from performing the material and substantial duties of their regular occupation due to sickness or injury and has lost 20% or more in his or her indexed monthly earnings due to that sickness or injury. (Doc. 78 at 67.) The requirements to qualify for LWOP are almost verbatim the same as the required showing of disability for LTD benefits in the plan. (Doc. 78-7 at 338.)
In order to determine if Plaintiff qualified for LTD, Defendant's claims representative interviewed the Plaintiff and reviewed his medical records. (Doc. 85 at 5.) This interview took place near the beginning of December 2015. (Doc. 78 at 216-222.) During his interview, Plaintiff reported that he still had uneven pupils, shortness of breath, and fatigue, and that he had "episodes" at least once a day. (Id. ) When asked by the interviewer, Plaintiff stated he thought it was possible he might be able to work a desk job. (Id. ) An early claim analysis done by the Defendant indicated that Plaintiff was still reporting symptoms and that Plaintiff's testing had uniformly resulted negative for any discernable cause. (Id. at 261.) The same report noted Plaintiffs status was not clear and he still had no formal diagnosis. (Id. )
Defendant's Motion notes the various medical providers whose records were considered in reviewing Plaintiff's claims. The records spanned visits with specialists practicing in the areas of internal medicine, endocrinology, cardiology, electrophysiology, urology, neurology, pain medicine, neuropsychology, sleep medicine, and ophthalmology. (Doc. 78 at 105-12, 115-119, 122-24, 127-32; Doc. 78-1 at 34-41, 58-63, 73-75; Doc. 78-6 at 58-59.) Defendant also notes various tests undergone by the Plaintiff that it considered in deciding his claim. These included Plaintiff's urine studies, CT scans
and ultrasounds of his abdomen, MRIs and MRAs of his head and neck, spinal x-rays, CT scans and X-rays of his chest, multiple EEGs a neuropsychological exam, and other tests and studies. (Doc. 85 at 5-6.) Many of the tests came back with normal or negative results and none of the tests established a cause for Plaintiff's symptoms. (Id. )
Defendant referred Plaintiff's medical records for review by a clinical nurse. (Doc. 78-1 at 161-71.) The clinical nurse reviewed his records and found that while Plaintiff was having verified issues with sleep apnea
and speech issues, neither of those issues kept him from working. (Doc. 78-1 at 169.) The clinical nurse was asked whether "the existence, intensity, frequency, and duration of [Plaintiff's] reported shortness of breath, vision issues, speech issues, migraines, weakness, fluctuation [sic ] blood pressure, and numbness were consistent with the clinical examinations and diagnostic findings in [Plaintiff's] claim file." The clinical nurse responded they were not consistent in light of the extensive diagnostic and imaging studies that had resulted negative. (Id. at 170.) The report mostly notes the lack of evidence supporting the existence of Plaintiff's symptoms, and does not appear to undertake any analysis of whether those symptoms, taken together, would be sufficient to qualify him for disability if they were occurring. (Id. at 161-171.) However, the report does note that Plaintiff's PCP had recommended he start to "get back into life" to see what he could handle. (Id. at 168.) Further, Defendant's reviewers contacted Plaintiff's various attending physicians but did not find any that had formally placed restrictions or limitations on Plaintiff's activities. (Id. at 156, 168, 190.) In light of these findings, Defendant denied Plaintiff's claim for LTD "because [Plaintiff] had completed his medical evaluation and there was no evidence that his symptoms would prevent him from performing his regular occupation." (Doc. 85 at 7.)
Plaintiff appealed the denial of his claim, which allowed a new slate of Defendant's employees to review his claim. Plaintiff argued that he had not in fact been released back to work by his doctor and had further outstanding appointments. (Doc. 78-1 at 240.) Plaintiff argued that when his doctor had advised him to "try[ ] to get back to normal life" it was simply because he had no diagnosis and the doctor could not explain his symptoms, it was not a release to work. (Id. ) Plaintiff also attached the medical records from his neuropsychological evaluation for consideration on appeal. (Id. at 241-260.) The doctor who undertook Plaintiff's new neuropsychological evaluation, Dane Higgins, concluded that Plaintiff had mild cognitive impairment and that his pattern of neurocognitive deficits was consistent with vertebrobasilar artery syndrome
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(Id. at 640.) Plaintiff was also given a Victoria Symptom Validity Test ("VSVT")2 as part of the neuropsychological evaluation. (Id. at 648.) At the conclusion of his testing, Dr. Higgins opined that Plaintiff would "experience difficulty completing basic tasks associated with typical job duties, as well as complex tasks, ... [and] significant difficulty learning new skills and completing key tasks in any work setting." (Doc. 78-1 244.) Dr. Higgins found that "from a neurocognitive perspective, one would expect him to experience difficulty gaining or maintaining gainful employment." (Id. )
After Plaintiff submitted his additional documents, his claim file was sent to a senior clinical...
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