Myers v. Provident Life & Accident Ins. Co.

• Decision Date: 13 July 2020
• Docket Number: Case No. 8:19-cv-724-T-36CPT
• Parties: Gene E. MYERS, M.D., Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY and The Unum Group, Defendants.
• Court: U.S. District Court — Middle District of Florida

472 F.Supp.3d 1149

Gene E. MYERS, M.D., Plaintiff,

v.PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY and The Unum Group, Defendants.

Case No. 8:19-cv-724-T-36CPT

United States District Court, M.D. Florida, Tampa Division.

Signed July 13, 2020

Meghan O. Serrano, Jarrod Malone, Shumaker, Loop & Kendrick, LLP, Sarasota, FL, for Plaintiff.

Eric S. Adams, Shutts & Bowen, LLP, Tampa, FL, John dward Meagher, Shutts & Bowen, LLP, Miami, FL, for Defendants.

ORDER

Charlene Edwards Honeywell, United States District Judge

This cause comes before the Court upon Defendants’ Motion to Dismiss Plaintiff's Complaint (the "Motion"), (Doc. 21), Plaintiff's response in opposition, (Doc. 33), and Defendants’ reply thereto, (Doc. 38). The Court, having considered the parties’ submissions and being fully advised in the premises, will grant-in-part and deny-in-part the Motion.

I. FACTUAL BACKGROUND¹

A. Introduction

Dr. Gene Myers ("Plaintiff") worked as an interventional cardiologist and practiced in Sarasota, Florida for more than thirty years. (Doc. 1 ¶7). Provident Life and Accident Insurance Company ("Provident") and The Unum Group (collectively, "Defendants" or "Unum") operate under the alter-ego name of "Unum."² Id. at ¶11. Unum is one of the dominant disability insurers and disability claim administrators in the country. Id. at ¶12. Since January of 2007, Unum has operated as a holding and parent company of Provident. Id. at ¶15. Unum is responsible for all claims handling for its subsidiaries, including Provident, and disability claims handling for several other insurance companies, including New York Life Insurance Company and John Hancock Mutual Life Insurance Company (the "Non-Unum Companies"). Id. at ¶¶15–16. Unum prescribed all claims handling procedures and operations for its subsidiaries and controlled companies, including Provident, and other companies for whom Unum administers disability claims, including the Non-Unum Companies. Id. at ¶17.

On or about December 1, 1988, Plaintiff purchased a non-cancellable disability income insurance policy, bearing policy number 6-335-879689 (the "Policy"), from Provident. Id. at ¶18. The Policy is an individual, long term "own occupation" disability income insurance policy. Id. at ¶19. Provident specifically marketed individual, long term "own occupation" disability income insurance policies like the Policy towards interventional cardiologists and advertised these policies such that a surgeon who was unable to perform surgery would be considered "disabled," even if he or she could earn more money, or work, in another occupation. Id. at ¶22. Indeed, an agent of Provident informed Plaintiff that the Policy would provide him with disability insurance coverage if injury or sickness prevented him from practicing interventional cardiology. Id. at ¶21.

B. Plaintiff's Injury and Claim

Interventional cardiology requires the physician to stand for many hours and wear a heavy leaded gown to protect the physician from radiation while performing certain procedures. Id. at ¶30. These heavy leaded gowns, together with the long hours required to perform procedures, caused an irreparable injury to Plaintiff during a procedure in approximately 1998. Id. at ¶31–32. Specifically, while wearing a heavy leaded gown during an interventional coronary procedure at Sarasota Memorial Hospital, Plaintiff felt sudden pain in his lower back and experienced sciatic-type pain in his buttock and leg. Id. at ¶32.

Plaintiff immediately sought medical treatment for this injury from a chiropractor, Dr. William McComb ("McComb"), who identified the injury as acute herniate nucleus pulposus secondary to the heavy lead gown and Plaintiff's position at the time of the injury. Id. McComb provided therapeutic traction to help alleviate Plaintiff's condition and advised Plaintiff not to perform further procedures until his symptoms disappeared. Id. at ¶34. McComb advised Plaintiff to order a "split leaded gown," which consisted of a separate leaded blouse and leaded skirt that independently supported its own weight, rather than having the entire weight load suspended from the individual's shoulders. Id. at ¶35. Plaintiff followed this recommendation, but the effects of his injury resulted in continued and accelerated deterioration of the discs in his spinal cord. Id. at ¶36. Plaintiff's back injury worsened. Id. at ¶37. Plaintiff was forced to cut back on coronary interventional procedures in 2005. Id. He ceased performing all coronary interventional procedures and practicing interventional cardiology in 2009. Id.

Plaintiff filed for total disability on February 23, 2009. Id. at ¶38. In making his initial disability claim, Plaintiff completed a "Claimant's Statement" form and submitted a separate narrative statement due to the form's limited space, but he did not check any of the boxes indicating the reason for his disability, such as whether it stemmed from a "Motor Vehicle Accident," "Other Accident," "Sickness," "Pregnancy," or "Work-related Injury/Sickness." Id. at ¶40 (internal quotation marks omitted). Plaintiff was unaware of the significance of whether an injury or a sickness caused his disability, and he did not indicate whether the disability was due to sickness or injury. Id. at ¶41. Unum never inquired regarding whether Plaintiff's disability was caused by a sickness or an injury during the entire claim process, nor did Unum ask Plaintiff to complete any additional sections on the claim forms. Id. at ¶42.

Unum was required to determine Plaintiff's occupation and whether he was able to perform the substantial and material duties of that occupation as part of its claims analysis. To determine Plaintiff's occupation, Unum requested Plaintiff's Current Procedural Terminology codes, known as "CPT codes," which are the American Medical Association's procedure-specific codes used for billing medical services and surgical procedures to third-party payers. Id. at ¶45. In a May 5, 2009 letter to Plaintiff, Unum requested Plaintiff's CPT codes for the 2007 calendar year. Id. at ¶46. Unum knew at this time that using CPT codes to determine a claimant's occupation was improper. Id. at ¶47. Plaintiff provided his CPT codes to Unum. Id. at ¶48.

In an October 6, 2009 letter to Plaintiff, Unum explained that its review of the CPT codes did not show that "these restrictions and limitations have had an impact" on Plaintiff's ability to perform his occupational duties. Id. at ¶48 (internal quotation marks omitted). In an April 29, 2010 letter to Plaintiff, Unum indicated that, as it had previously advised, it found no difference in the types of CPT billing procedures performed by Plaintiff for 2007 through 2009. Id. at ¶49. To evaluate Plaintiff's claim for disability prior to 2007, Unum needed (i) CPT codes from January 2004 to December 2006 to determine whether Plaintiff had a reduction in occupational duties; and (ii) "the financial information outlined in the same letter for that particular time frame." Id. at ¶49. The letter further advised:

As advised in our letter of December 18, 2009, our clinician completed a review of [Plaintiff's] medical records going back to 2005. This review concludes that [Plaintiff] would have had restrictions and limitations related to his back and lower extremities dating back to April 2005. This would include prolonged standing, repetitive bending as well as performing procedures extending longer than 30 minutes in which a lead vest is required.

Id. at ¶51.

Plaintiff did not timely provide Unum with the requested CPT codes from before 2007 in response to Unum's letter. Id. at ¶57. As such, Unum denied his claim for failure to produce the CPT codes. Id. Plaintiff continued working, thereby exacerbating his injuries, because he was unaware "at the time of these repeated denials of total disability" that Unum's use of CPT codes was improper. Id. at ¶58. Unum, at least as of December 18, 2009, recognized that Plaintiff was disabled from performing interventional cardiology because the restrictions and limitations recognized in Unum's letter would restrict Plaintiff from performing all coronary interventional procedures, which required prolonged standing, repetitive bending, and lasted anywhere from more than thirty minutes to four hours in duration. Id. at ¶52.

C. Request for Re-Analysis and Further CPT Code Use

After retaining new counsel, Plaintiff, through an August 25, 2014 letter from his new counsel, asked Unum to "re-analyze" his claim for disability without using CPT codes. Id. at ¶59. By filing a Civil Remedy Notice ("CRN") with the Florida Department of Financial Services on August 27, 2014, Plaintiff provided Unum with sixty days to remedy its improper acts and approve the claim for total disability, which Unum failed to do. Id. at ¶61. In an October 21, 2014 letter, Unum Appeal Specialist Melissa Walsh ("Walsh") again asked Plaintiff to provide the CPT codes that Unum requested in 2010. Id. at ¶62. The letter also stated that Plaintiff's claim reported his occupation as a simple cardiologist, which was false because Plaintiff had listed his occupation as an interventional cardiologist on the 2009 claim form. Id. at ¶70. The letter reiterated Unum's use of CPT codes, providing, in relevant part:

It was not until February 2010 that [Dr. Myers] informed our field representative that he believed he stopped performing up to full capacity during 2005. At that time, we only had his billing codes for 2007, 2008, and 2 months in 2009. Those codes documented Dr. Myers was working as an Interventional and Invasive Cardiologist. Interventional Procedures represented a small percentage of his billings for this period of time.

Id. at ¶73 (alteration in original).

On November 20, 2014, in response to Unum's request, Plaintiff provided Unum with requested CPT codes, business tax returns, medical records, personal tax returns, and profit and loss statements, notwithstanding Plaintiff's belief that the requested...