Myers v. Provident Life & Accident Ins. Co.
| Decision Date | 29 September 2021 |
| Docket Number | Case No. 8:19-cv-724-CEH-CPT |
| Citation | 564 F.Supp.3d 1157 |
| 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 |
Meghan O. Serrano, Jarrod Malone, Shumaker, Loop & Kendrick, LLP, Sarasota, FL, for Plaintiff.
Eric S. Adams, Shutts & Bowen, LLP, Tampa, FL, John Edward Meagher, Shutts & Bowen, LLP, Miami, FL, for Defendants.
This cause comes before the Court upon Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 56) and Plaintiff's Response in Opposition to Defendant's Motion to Dismiss First Amended Complaint (Doc. 65). The Court, having considered the parties’ submissions, having heard oral argument, and being fully advised in the premises, will grant-in-part and deny-in-part the motion.
Former interventional cardiologist Gene Myers purchased a non-cancelable disability income insurance policy from Provident Life Accident and Insurance Company in 1988. Doc. 47 ¶17. Myers purchased the Policy—an individual long-term "own occupation" disability income policy—because his practice focused on interventional cardiology. Id. at ¶¶18, 20. Provident marketed these types of policies towards interventional cardiologists and advertised them 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 ¶21. A Provident agent advised Myers that the Policy would provide him with disability insurance coverage if injury or sickness prevented him from practicing interventional cardiology. Id. at ¶20.
Provident and Unum Group serve as the insurer and claims administrator for the Policy. Id. at ¶3. Currently one of the dominant disability insurers and disability claim administrators in the country, Unum Group has operated as a holding and parent company of Provident since 2007. Id. at ¶¶11, 14. Unum Group is responsible for all claims-handling for subsidiaries, including Provident, and for disability claims handling for several other insurance companies, including New York Life Insurance Company and John Hancock Mutual Life Insurance Company, known as the "Non-Unum Companies." Id. at ¶¶14–15. Since 1999, Unum Group has prescribed all claims-handling procedures and operations in a unitary and coordinated fashion for all subsidiaries and controlled companies, including Provident. Id. at ¶16.
In the late-1990s, Myers suffered an irreparable injury from wearing a heavy leaded gown for the extended hours required to perform medical procedures. Id. at ¶31. A chiropractor identified this injury as "acute herniate nucleus pulposus secondary to the heavy lead gown" and "Myers's position at the time of the injury." Id. at ¶32. Myers's back injury worsened: in 2005, he cut back on coronary interventional procedures; in 2009, he ceased performing coronary interventional procedures and practicing interventional cardiology. Id. at ¶36.
Myers filed for total disability in February of 2009. Id. at ¶37. He completed Unum Group's "Claimant's Statement" and submitted a separate narrative statement due to the form's limited space, but he did not check off any of the form's boxes to indicate the reason for his disability. Id. at ¶¶38, 40. Myers was unaware of the significance of whether an injury or a sickness caused his disability. Id. at ¶40. In handling Myers's claim for Provident, Unum Group never inquired whether sickness or injury caused his disability nor asked Myers to complete additional sections on the claim forms. Id. at ¶41.
Because the Policy is an "own occupation" policy, Unum Group needed to determine Myers's occupation and whether he was able to perform the substantial and material duties of that occupation. Id. at ¶43. To determine Myers's occupation, Unum Group requested current procedural terminology codes, known as "CPT codes," which are codes used for billing medical services and surgical procedures to third-party payers. Id. at ¶44. In a May 5, 2009 letter to Myers, Unum Group, through Lead Disability Benefit Specialist Susan Richmond, requested CPT codes for 2007. Id. at ¶45. At this time, Unum Group and Provident knew that using CPT codes to determine a claimant's occupation was improper. Id. at ¶46. Richmond did not inform Myers that using CPT codes to determine his occupation, or determine whether he was able to perform the substantial and material duties of that occupation, was improper. Id. at ¶47. Myers provided his CPT codes to Unum Group. Id. at ¶48. In an October 6, 2009 letter to Myers, Unum Group, through Richmond, stated that its review of the CPT codes did not show that the "restrictions and limitations" had an impact on Myers's ability to perform his occupation's duties. Id. Richmond again materially omitted that Unum Group's use of CPT codes to determine occupation was improper. Id. at ¶49.
Later, in an April 29, 2010 letter to Myers, Richmond reiterated that Unum Group found no difference in the types of Myers's CPT billing procedures for 2007 through 2009. Id. at ¶50. This letter also requested CPT codes from 2004 to 2006 to determine if Myers "had a reduction in occupational duties." Id. Unum Group again materially omitted that using CPT codes to make this type of determination was improper. Id. at ¶51. The letter also summarized Unum Group's conclusion following a review of Myers's medical records, as stated in a December 2009 letter, that Myers would have had restrictions and limitations related to his back and lower extremities dating back to April 2005. Id. at ¶53. Thus, since at least December of 2009, Unum Group recognized that Myers was disabled from performing interventional cardiology. Id. at ¶54. Unum Group possessed sufficient information to determine that Myers was totally disabled from his occupation as an interventional cardiologist, but Unum Group requested the CPT codes from 2004 to 2006 to determine whether he was totally disabled. Id. at ¶¶58–59. Because Myers failed to timely provide the requested pre-2007 CPT codes, Unum Group closed his claim. Id. at ¶59. At that time, Myers did not know that Unum Group's request for, and consideration of, CPT codes was improper. Id. In these communications, Unum Group fraudulently requested, and subsequently used, CPT codes to classify Myers out of his occupation. Id. at ¶61. The communications contained material omissions relating to the use of CPT codes in a claim analysis because Unum Group knew that it should not use CPT codes to determine occupation. Id.
After retaining new counsel in 2014, Myers asked Unum Group to analyze his disability claim without using CPT codes. Id. at ¶62. Myers's attorney informed Unum Group that using CPT codes to determine Myers's occupation was improper. Id. Also, Myers filed a civil remedy notice of insurer violations ("CRN") against both Unum Group and Provident based upon the improper use of CPT codes to classify Myers out of his occupation as an interventional cardiologist, Unum Group's admission that Myers had restrictions as early as 2005, the failure of Unum Group and Provident to investigate Myers's claim, and their failure to pay Myers under the Policy. Id. at ¶63. Although the CRN gave 60 days’ notice to Provident and Unum Group to remedy their improper acts and approve the claim for total disability, they failed to do so. Id. at ¶64. Unum Group and Provident justified using CPT codes in responding to the CRN. Id. at ¶65. Unum Group stated that Myers's claim reported his occupation as a mere cardiologist, which was false because Myers had listed his occupation as an interventional cardiologist on the 2009 claim form. Id. at ¶74. This false statement was intended to further the fraudulent scheme of Unum Group and its associated entities to classify medical specialists out of their medical specialty to support denials of disability claims. Id. at ¶75.
Unum Group has recognized that using CPT codes to classify occupation is improper because the codes cannot correlate preoperative and postoperative office visits with related surgical procedures and the codes do not indicate specific amounts of time that are spent on a particular duty. Id. at ¶80. Unum Group intentionally and fraudulently requested and used CPT codes to deny Myers's claim by asserting that his CPT codes established that he was not an interventional cardiologist while admitting that he was disabled from interventional cardiology. Id. at ¶81.
In an October 2014 letter, Unum Group Appeal Specialist Melissa Walsh again asked Myers to provide the CPT codes that Unum Group had requested in 2010. Id. at ¶66. Myers provided the requested CPT codes, along with additional information, in November of 2014. Id. at ¶84. In March of 2015, Unum Group advised Myers of the completion of its preliminary review, yet Unum Group requested more CPT codes from 2009 through 2014 to complete the analysis. Id. at ¶86. Myers provided these codes in April of 2015. Id.
In June of 2015, Unum Group provided Myers with its CPT code analysis, including years 2009 to 2014, and admitted that, for all of the procedures that Myers had performed, "he would have been restricted from due to his disability," as "all of the procedures included in these charts involve standing and require the wearing of a lead vest." Id. at ¶87. Rather than determining total liability, Unum Group continued to request information related to residual disability and income, not total disability. Id. at ¶88. Myers's counsel again advised that Unum Group's continued use of CPT codes was improper and that its failure to afford benefits under the Policy's total disability provisions significantly exacerbated Myers's injury by forcing him to work during the review, and subsequent denial, of his claim. Id. at ¶90.
Unum Group reviewed the Policy for...
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