McCann v. Unum Provident
| Decision Date | 05 October 2018 |
| Docket Number | No. 16-2014,16-2014 |
| Citation | 907 F.3d 130 |
| Parties | Kevin M. MCCANN, M.D., Appellant v. UNUM PROVIDENT; Hartford Life & Accident Insurance Company |
| Court | U.S. Court of Appeals — Third Circuit |
Tybe A. Brett [ARGUED], Feinstein Doyle Payne & Kravec, 429 Fourth Avenue, Law & Finance Building, Suite 1300, Pittsburgh, PA 15219, Michael E. Quiat, Uscher, Quiat, Uscher & Russo, 433 Hackensack Avenue, 2nd Floor, Hackensack, NJ 07601, Counsel for Appellant
Steven P. Del Mauro [ARGUED], Janet Nagotko, McElroy Deutsch Mulvaney & Carpenter, 570 Broad Street, Suite 1500, Newark, NJ 07102, Counsel for Appellee
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges.
This appeal addresses two principal issues: First, whether a group insurance plan is governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq ., and second, whether the physician–claimant was incorrectly denied his disability benefit payments.
Plaintiff–appellant, Dr. Kevin McCann, is a radiologist certified in the specialty of interventional radiology. The gravamen of this appeal concerns a supplemental long-term disability insurance policy Dr. McCann purchased from defendant, Provident Life and Accident Insurance Company. After initially issuing payments under the policy, Provident terminated Dr. McCann’s disability benefits. Central to its decision was a determination that Dr. McCann was primarily practicing as a diagnostic radiologist—rather than as an interventional radiologist—at the time he became disabled. This suit followed.
As a preliminary matter, the parties dispute whether Dr. McCann’s claim arises under ERISA. Thus, we first consider the outer bounds of an employer’s involvement in a group or group-type insurance plan before deciding whether the plan may be governed by ERISA. The Department of Labor has promulgated a safe harbor regulation exempting certain plans from the definition of an "employee welfare benefit plan." But we conclude Dr. McCann’s then-employer sufficiently endorsed the plan under which his policy was purchased to render the safe harbor inapplicable. ERISA will supply the governing framework.
As to the merits, we believe Provident incorrectly defined Dr. McCann’s occupation in administering his disability claim and that the claim must be evaluated in the context of his specialty—interventional radiology. We will remand for the District Court to consider whether Dr. McCann’s medical conditions prevent him from being able to perform his "substantial and material duties" as an interventional radiologist, as required by the terms of the policy.
After graduating from medical school and obtaining certification as an interventional radiologist, Dr. McCann was hired by Henry Ford Hospital to serve in a two-year Graduate Trainee Physician Program. While there, Dr. McCann worked in the Hospital’s Department of Diagnostic Radiology until the completion of his fellowship on June 30, 1991.
To Dr. McCann and other employees, the Hospital offered a "Base Plan" of non-contributory long-term disability benefits. The Hospital determined the Base Plan’s eligibility criteria and set the available maximum monthly benefit. As relevant here, the Hospital also provided certain groups of employees with information pertaining to supplemental long-term disability insurance. Fellows, like Dr. McCann, who served in the Hospital’s Graduate Trainee Physician Program were eligible to purchase supplemental insurance under the Residents’ Supplemental Disability Insurance Plan (RSDP). The RSDP was funded through the purchase of individual policies and underwritten by Provident’s predecessor, Unum Life Insurance Company of America. While participants paid 100% of policy premiums, all policyholders received a fifteen percent discount based solely on their association with the Hospital.
During Dr. McCann’s employment, Lucasse, Ellis, Inc. ("Lucasse") served as the Hospital’s broker for insurance policies issued under the Base Plan and RSDP. Lucasse sent Dr. McCann a letter advertising the RSDP in 1991 and informing him that Provident had been chosen by the Hospital "to provide supplemental disability insurance to Ford physicians." Joint App. at 166. The letter explained that the RSDP was designed to address the "single greatest concern" for physicians—that they may be disabled within their specialty. Joint App. at 168. Specifically, Lucasse’s letter stated: "Unlike many occupations, a doctor may become disabled by an injury or illness that would not preclude working in another occupation," and that Id.
Thereafter, Dr. McCann spoke with a Lucasse brokerage agent, David Manes. After discussing with Manes a long-term disability insurance policy he had purchased earlier from a different insurer, Dr. McCann applied to Provident for supplemental insurance coverage in May 1991. Dr. McCann’s application was approved and his policy took effect on July 1, 1991.1 Particularly relevant are the provisions relating to total disability, which state:
Joint App. at 308. The policy also provides the following definition of occupation:
[Y]our occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree or license, we will deem your specialty to be your occupation.
Id .
Nearly fifteen years after completing his fellowship at Henry Ford Hospital, Dr. McCann began employment at Holzer Clinic in Gallipolis, Ohio. While at Holzer, between 2006 and 2010, Dr. McCann consulted a variety of medical providers for the evaluation and treatment of obstructive sleep apnea (OSA)2 , a mildly dilated ascending aortic root aneurysm,3 hypertension, and obesity. These conditions form the basis of Dr. McCann’s Total Disability claim.
First, in December 2006, Dr. Howard Linder diagnosed Dr. McCann with OSA. The condition caused Dr. McCann to experience "excessive daytime sleepiness," and Dr. Linder opined that he was "probably unable to stay alert for long periods" at work. Joint App. at 1328–29. Dr. McCann underwent a sleep study later that month to evaluate the severity of his OSA and, based upon the results of the study, Dr. Linder developed a treatment plan. The plan included using a continuous positive airway pressure (CPAP) machine at night to assist with breathing during sleep.
Shortly thereafter, Dr. McCann also began experiencing shortness of breath and dizziness. On April 16, 2007, an echocardiogram revealed his "aortic root mildly dilated at 3.71 [cm]." Joint App. at 2174. Several months later, Dr. McCann visited a specialist, Dr. Joseph Coselli, Chair of Cardiothoracic Surgery at the Texas Heart Institute at Baylor Medical Center, and was diagnosed with a mildly dilated aortic root aneurysm, hypertension, and obesity.
Following his diagnoses, Dr. McCann stopped working at Holzer and sent Provident a notice of claim for benefit payments in March 2008.4 In support of the claim, Dr. Coselli submitted an Attending Physician Statement (APS) listing "restrictions" as "no lifting that ilicits [sic] Valsalva maneuver 5 otherwise no restrictions" and "limitations" as "avoid heavy lifting [and] avoid stress to help keep BP under control to prevent further dilation of aorta." Joint App. at 810.6 Dr. Coselli also wrote a letter to Holzer Clinic in April, in which he noted Dr. McCann’s hypertension and sleep apnea put him "into a high risk population for risk of further dilation of his aorta" and recommended "tight blood pressure control, weight loss and undertaking an exercise regime in order to improve [Dr. McCann’s] overall functional capacity." Joint App. at 1176. Dr. Coselli further stated that "[i]n light of these restrictions, I feel it would be best if he was classified as fully disabled permanently, effective March 10, 2008." Id.
Provident acknowledged Dr. McCann’s disability claim on April 4, 2008, and informed him that medical and financial information would be requested and reviewed to process the claim. Provident also interviewed Dr. McCann, both in person and via telephone, on numerous occasions. These interviews discussed Dr. McCann’s educational and employment background, his medical conditions, and the impact of the medical conditions on his medical practice.
Regarding Dr. McCann’s occupational duties, Provident requested information from Holzer. Dr. Phillip Long, Vice-Chairman of Radiology, completed a job description form estimating that Dr. McCann worked an average of 60 hours per week divided among interventional radiology (approximately 20 hours), diagnostic radiology (approximately 28 hours), fluoroscopy7 (approximately 1 hour), night call (approximately 10 hours), and paperwork (approximately 1–2 hours).
In addition, Provident requested the Current Procedural Terminology (CPT) codes8 related to Dr. McCann’s practice. Upon receipt of the codes, Provident employed a vocational rehabilitation specialist to verify the duties of Dr. McCann’s occupation as an interventional radiologist. To this end, David Gaughan submitted a report on November 13, 2008. Gaughan confirmed that Dr....
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