Mein v. Pool Co. Employee Disability Ben. Plan, Civil Action No. 96-B-1095.

• Decision Date: 08 January 1998
• Docket Number: Civil Action No. 96-B-1095.
• Citation: 989 F.Supp. 1337
• Parties: Edward MEIN, Plaintiff, v. POOL COMPANY DISABLED INTERNATIONAL EMPLOYEE LONG TERM DISABILITY BENEFIT PLAN, POOL COMPANY, INC., Defendants.
• Court: U.S. District Court — District of Colorado

989 F.Supp. 1337

Edward MEIN, Plaintiff, v. POOL COMPANY DISABLED INTERNATIONAL EMPLOYEE LONG TERM DISABILITY BENEFIT PLAN, POOL COMPANY, INC., Defendants.

Civil Action No. 96-B-1095.

United States District Court, D. Colorado.

January 8, 1998.

COPYRIGHT MATERIAL OMITTED

Steven R. Barrett, Barrett Law Offices, Denver, CO, Robert L. Liebross, Denver, CO, for Plaintiffs.

Thomas R. Dolven, Clinton P. Swift, Hall & Evans, LLC, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

In this action for violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., defendants Pool Company Disabled International Employee Long Term Disability Benefit Plan (Plan) and Pool Company, Inc. (Company) (collectively, defendants) move to dismiss the state law claims of plaintiff Edward Mein (Mein) for tortious bad faith (claim one), intentional interference (claim three), infliction of emotional distress (claim four), and deceit (claim five). Defendants also move for summary judgment on claims two and eight for breach of fiduciary duty and claims six for declaratory relief and seven for benefits. Mein cross-moves for summary judgment on his claim "that he has been wrongfully denied benefits under the Plan, in violation of ERISA § 1132(a)(1)(B)." I construe his motion as one for summary judgment on claims two, six, seven, and eight. The motions are adequately briefed and oral argument will not materially aid their resolution. I will grant defendants' motion to dismiss claims one, three, four, and five. I will also grant defendants' motion to strike demand for jury trial. Further, I will grant defendants' cross-motion for summary judgment on claims two and eight and deny plaintiff's cross-motion. I will grant plaintiff's motion for summary judgment on claims six and seven and deny defendants' cross-motion.

I.

Edward Mein was an employee of Pool Company, Inc. working in Saudi Arabia as a rig manager on an oil drilling rig. On July 25, 1981, Mein was injured when he fell off the rig and landed on his neck and shoulders. ERISA Claim File (ECF) 0000921. The initial physician's report in Saudi Arabia states there was a fracture of the 5th lumbar vertebra. ECF 0000864-65. In August, 1981, Mein returned to the United States where he was examined and treated by Dr. John Armstrong. In an August 14, 1981 letter, Dr. Armstrong stated:

I've examined Mr. Mein after his return from Saudia Arabia.... X-rays done at the hospital here... showed that he had left-sided spondylolysis of L5. These repeated by Dr. Osborne who is the orthopedist and Dr. Boyle who both felt that this was not an acute fracture. He did not have an acute compression fracture of his vertebral body or transverse process. It is common to have back pain with an injury especially with an underlying spondylolysis. Because there is no underlying vertebral body compression fracture, his activity level has been increased and he, hopefully will start doing muscle strengthening exercise to strengthen the area. He is to avoid any heavy lifting until we feel that he has convalesced and is having no symptomatology. He has no neurologic defects and on follow-up since returning home, has had continued improvement in his pain.

ECF 000917.

In October 1981, Mein underwent arthroscopic surgery for longstanding traumatic arthritis of his right knee. By mid-1983, Mein, who continued to work for the Company, was experiencing increased back pain from the 1981 injury. Mein returned to Saudia Arabia on September 13, 1983, but returned to the United States a week later and was admitted to St. Joseph's Hospital, in Denver, Colorado, with complaints of severe pain in his left leg and back. ECF 000862. A report written September 21, 1983, by Dr. William Gamble, Denver Orthopedic Clinic, stated:

Chief complaint is low back and left leg pain. Patient has been seen for a low back pain before, but never had severe left leg pain until four days ago when while working on a rig in difficult quarters he noted a gradual onset of pain, which has become rapidly worse. He's had some intermittent back pain prior to that. He's flown home from Saudia Arabia for medical care.

The patient stands with a rigid lumbar spine which is flat. He has a list to the left and back motions are markedly limited. Straight leg raising is limited by 45 degrees on both sides and contralateral straight leg raising is positive. There is no gross weakness or sensory loss in the legs and reflexes are normal.

ECF 000862.

Mein was admitted to Saint Joseph Hospital on September 29, 1983, for bed rest and physical therapy. A lumbar myelogram was performed on September 27, 1983, with no evidence of disc herniation. ECF 000848. Lumbar spine x-rays showed no evidence of compression fractures. Id. A CT scan was done which was essentially normal. Id. An EMG was performed and suggested that Mein had "some L5 denervation in the left leg." Dr. H.R. Boyd, a consulting physician concluded:

This patient has improved with bed rest and the question is what should be done with him at this time. He does not appear to have frank herniated disc problems the likelihood that he can be improved by any surgical procedure seems to be fairly small. Despite the fact that he has had recurrent pain, even while wearing his back support, he does not appear to have sufficient evidence at this time to consider an operative procedure. Perhaps his condition will become more obvious with the passage of time.

Id.

An attending physician statement completed by Dr. John D. Leidholt stated Mein's diagnosis was "herniated disc," he was totally disabled from September 20, 1983 to November 12, 1983. In a November 15, 1983, letter, Dr. Armstrong stated:

Ed Mein was initially seen on September 21, 1983, in Denver and was felt, at that time, to have a herniated disc. However, he had a Cat Scan, myelogram, EMG and a complete workup November 1, 1983, and there was found to be no herniated disc. It was felt, at this time, that he had degenerative changes in his spine from an old fracture, had spur formation that had encroached upon his neural foramina, and had strain of the ligaments and tendons in the lower back. Conservative measures were instituted. Surgery was not felt to be necessary at the time and he was started on vigorous physical therapy, placed on an exercise program, given a TNS unit and, with this conservative therapy, has done well. He requires no medication at this time and is doing his therapy without any problems. The only restriction would be that he not lift anything heavier than 75-100 pounds. There is a chance of recurrence, but it is not lumbar disc disease and probably with appropriate physical therapy, conditioning exercises and weight loss, he will have minimal symptoms in the future.

I saw and examined him today. He had an essentially normal exam. Reviewing his therapy with the physical therapist, he is doing well and we think it is perfectly acceptable for him to go back to work at this time.

ECF 000843.

Mein returned to work, and at some point, returned to Saudia Arabia. He left Saudia Arabia again on January 27, 1985, with back problems. A February 28, 1985, letter from Dr. Leidholt stated that Mein was under his care for a ruptured intervertebral disc, cervical disc disease with right radicular pain and right sciatica. A CAT scan taken on February 1, 1985, showed a very small central protrusion or herniation of the disc at L5-S1. ECF 000831. From January 21, 1985 through July 21, 1985, Mein received short-term disability benefits from the Company. ECF 000550. Mein then received long-term disability benefits (LTD benefits) from July 22, 1985, through December 31, 1994.

In January, 1985, disability benefits were provided to Pool Company under an insurance policy issued by Aetna Life Insurance Company (Aetna). Aetna also administered the benefits claims. Mein applied for LTD benefits on May 29, 1985 and Pool sent the application to Aetna. Aetna investigated and approved Mein's LTD benefits claim effective July 22, 1985.

Under the Aetna policy in effect in 1985 under which Mein's LTD benefits were paid "total disability" was defined as follows:

"Total disability" or "totally disabled" means, during the first twenty-four months of any one period of disability, that the employee is unable, solely because of disease [or] accidental bodily injury ... to work at his own occupation; and thereafter during the continuance of such period of disability, that the employee is unable solely because of disease [or] accidental bodily injury, to work at any reasonable occupation.

"Reasonable occupation" means any gainful activity for which the employee is, or may reasonably become fitted by education, training or experience. However, work under an approved rehabilitation program will not be considered a reasonable occupation.

In 1988 and 1989, Aetna's monitoring of Mein's condition led it to conclude that he remained totally disabled. Then, in February, 1991, Dr. Louis Winkler, an independent medical examiner who examined Mein reported that Mein was totally disabled under both definitions in the Aetna policy. He also opined that Mein "[was] an excellent candidate for vocational rehabilitation." ECF 000279.

Later, in May, 1991, a status report was prepared for Pool which stated:

Based on results of third-party medical evaluation performed at our request over a one-month period from 2/91 through 3/91, claimant is totally disabled from his own reasonable occupation. He should be capable of performing non-physical work which would permit him to sit/stand as tolerated. Our efforts to assist him with rehabilitation have not been successful. He has not demonstrated to us that he has appropriate attitude/perseverance to embark on a legitimate education program to prepare him for alternate, more compatible employment.

ECF 000224.

In February, 1992, Aetna terminated Mein's LTD benefits, concluding...