Wertheim v. Haratford Life Ins. Co.

• Decision Date: 24 June 2003
• Docket Number: No. CIV.A. 02-1392-A.,CIV.A. 02-1392-A.
• Citation: 268 F.Supp.2d 643
• Court: U.S. District Court — Eastern District of Virginia
• Parties: David A. WERTHEIM, Plaintiff, v. HARTFORD LIFE INSURANCE CO., Defendant.

268 F.Supp.2d 643

David A. WERTHEIM, Plaintiff, v. HARTFORD LIFE INSURANCE CO., Defendant.

No. CIV.A. 02-1392-A.

United States District Court, E.D. Virginia, Alexandria Division.

June 24, 2003.

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Raymond Donald Battocchi, Gabeler, Battocchi, Griggs & Powell P.L.L.C., McLean, VA, for Plaintiff.

David Edward Constine, III, Ashley Lionel Taylor, Jr., Troutman, Sanders L.L.P., Richmond, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue on cross-motions for summary judgment in this claim for disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., are the following questions:

(1) Where, as here, the plan administrator did not issue a written denial letter to plaintiff after more than two years of consideration, whether plaintiffs claim for disability benefits should be deemed denied under the ERISA regulations and reviewed de novo or remanded to the plan administrator for correction of any procedural errors and reconsideration of the substantive benefits determination;

(2) Whether the record reflects that the plan administrator acted in bad faith in its processing of plaintiffs claim such that plaintiff should be awarded ERISA disability benefits; and

(3) Whether, at this juncture, the record reflects that the plan administrator clearly abused its discretion in denying plaintiffs claim for disability benefits.

I

Plaintiff David A. Wertheim, a 48-year old male, was employed by REICO Distributors as a senior computer programmer¹ from June 29, 1994, until March 9, 2000. On approximately May 1, 1995, plaintiff became a covered employee under REICO's Group Long Term Disability Plan (Plan), a benefits plan governed by ERISA and its corresponding regulations. REICO's obligations under the Plan were both insured and administered by defendant, Hartford Life Insurance Company (Hartford).

A. Plaintiff's claim for disability benefits

In approximately 1991, three years before he commenced working for REICO, plaintiff began to experience back and spinal problems. He was eventually diagnosed with cervical spondylosis, cervical myelopathy and bilateral radiculopathy.² As treatment for these conditions, plaintiff underwent three fusion surgeries on his cervical spine, the first in 1993 on C4-5 and C5-6, the next in 1994 on C3-4 and the last in 1996 on C6-7. The end result of these three surgeries was that plaintiffs entire cervical spine was essentially fused together.

On March 9, 2000, following nearly six years of employment as a senior computer programmer, plaintiff ceased working at REICO owing to his nerve and spinal conditions, combined with chronic pain and depression. Thereafter, in May 2000, plaintiff submitted a claim for total disability benefits under the Plan to RE ICO, which, in turn, submitted the claim on plaintiffs behalf to Hartford.³

Plaintiffs claim documents listed three treating physicians and a physical therapy group: (i) Dr. Robert Kurtzke, a neurologist, (ii) Dr. Michael Cassidy, an orthopedic surgeon, (iii) Dr. Robert Gorsen, a neurosurgeon, and (iv) Orthopedic Physical Therapy of Northern Virginia. Additionally, plaintiffs claim was accompanied by an Attending Physician's Statement of Disability completed by Dr. Kurtzke. In this Statement, Dr. Kurtzke noted that he first examined plaintiff on August 9, 1994 and last examined him on April 4, 2000. He identified plaintiffs diagnosis in four parts, as follows: (i) cervical myelopathy, (ii) bilateral cervical radiculopathy, (iii) chronic pain, and (iv) cervical discectomy and fusions in 1993, 1994 and 1996. Dr. Kurtzke noted under the heading "Objective Findings" that plaintiff suffered from "weakness, abnormal EMG, MRI," and under the heading "Subjective Symptoms" that plaintiff suffered pain, numbness and weakness. Dr. Kurtzke also noted that plaintiff had undergone physical therapy and was taking several medications, including Neurontin, Klonopin, Baclofen and Vioxx. He concluded that plaintiff was totally disabled from his current job and any other job, and that he did not expect a fundamental or marked change in plaintiffs condition in the future.

The path to the ultimate denial of plaintiffs claim for disability benefits under the Plan is long and tortuous. And, significantly, both parties bear some responsibility for the lengthy delay in this regard. Nonetheless, a full recitation of the collection and assembly of plaintiffs medical records and Hartford's decisional process is warranted in the circumstances.

B. Hartford's initial requests for documentation and medical records

Hartford's receipt and initial processing of plaintiffs claim proceeded without incident. Indeed, Hartford promptly acknowledged receipt of plaintiffs claim for disability benefits under the Plan by letter to plaintiff dated June 16, 2000. In this letter, Hartford requested, inter alia, that plaintiff, within 30 days, complete a Claimant Questionnaire and notify Hartford regarding the status of his application for disability benefits with the Social Security Administration (SSA). Hartford also sent letters dated June 16, 2000 to Dr. Kurtzke and Orthopedic Physical Therapy of Northern Virginia, requesting all medical records and office notes pertaining to their treatment of plaintiff from January 2000 to the present, as well as any other information "pertinent to the processing of [plaintiffs] claim."

Hartford did not receive plaintiffs completed Claimant Questionnaire until August 3, 2000, nearly a month beyond Hartford's 30-day response deadline. In the Questionnaire and attached materials, plaintiff indicated that he suffered from, inter alia, (i) weak muscle strength in his arms, (ii) daily cramps and spasms, (iii) daily pain in his chest, neck, shoulders, arms, and legs, (iv) deteriorated finger dexterity, and (v) poor concentration due to medications. Plaintiff also indicated that his daily activities were dictated by his physical condition, particularly the amount of pain he experiences on a given day. Yet, plaintiff noted that he was generally able to (i) play guitar once a month, (ii) sport shoot once a month, (iii) take short walks, (iv) perform on-line banking and check e-mail on a daily basis, (v) drive his car to run errands and/or have lunch with friends, (vi) watch television, (vii) read books, (viii) prepare meals and (ix) care for his pet parrot.

Plaintiff also indicated in the Questionnaire that he had been treated by three physicians during the preceding 18 months, namely Drs. Kurtzke and Cassidy, already identified in plaintiffs initial claim documents, as well as Dr. Allan Melmed, a psychiatrist. Given plaintiffs disclosure of an additional treating physician, Hartford, through its Claims Examiner Laurie demons, requested by letter dated September 14, 2000, medical records from Dr. Melmed for the period March 1, 2000 to the present. On the same date, Clemons requested additional medical records from Dr. Kurtzke for the period July 1, 2000 to the present.

C. Hartford's collection and assembly of medical records

As it happens, the collection and assembly of plaintiffs medical records was no easy task for Hartford. Indeed, as of November 2000, Hartford still had not heard from Dr. Melmed, plaintiffs treating psychiatrist. Clemons therefore sent a follow-up letter request to Dr. Melmed on November 12, 2000, and, again, Dr. Melmed failed to respond. Clemons later sent Dr. Melmed an additional follow-up letter request for medical records on January 18, 2001.

Not until February 12, 2001, five months after the initial request, did Hartford receive a response from Dr. Melmed. Even then the response consisted of only a brief letter, but no office notes or medical records. In his letter, Dr. Melmed advised Hartford that plaintiff suffered from symptoms of depression and anxiety as a result of his chronic cervical disease, including anxious and depressed mood, decreased energy, insomnia, isolation, tension headaches and impaired concentration. Dr. Melmed added that "[c]urrently [plaintiffs] mood is stable and he is adjusting to his illness." Nonetheless, Dr. Melmed advised Hartford that plaintiff would continue to require psychotherapy and psychotropic medications as part of his ongoing medical treatment. He further stated that plaintiffs "pain and muscle weakness have disabled him from being able to work and medications he receives for his neurological illness.. .interfere with his ability to concentrate."⁴

The administrative record also includes a copy of a Psychiatrist Report prepared by Dr. Melmed on June 20, 2000, although the record does not reveal when this report was received by Hartford. This report provides, inter alia, that plaintiff has been a patient of Dr. Melmed since June 1990 and that "[t]he symptoms of [plaintiffs] cervical pathology have resulted at times in increased symptoms of depression and anxiety as well as decreased ability to function physically at work." The report further provides that plaintiffs "decreasing ability to work because of the physical stress this places on his cervical spine has led to further depression and loss of selfesteem." Dr. Melmed's June 20, 2000 report, like his February 12, 2001 letter to Hartford, recognizes that plaintiffs psychiatric treatment has proven fruitful, specifically noting that plaintiff

has done well in psychiatric treatment as far as his mood is concerned... [and his] depression is currently much improved as he has struggled to adapt to his progressive restriction of sustained motor activity of his hands, arms, and shoulders in his profession as a computer programmer and in his daily living.

The delay in obtaining Dr. Melmed's materials was not the only obstacle Hartford encountered in the processing of plaintiffs claim. Indeed, Clemons was forced to send numerous follow-up letter requests for medical records to Dr. Kurtzke, as well. Eventually, in...