Rose v. Hartford Life and Accident Insurance Company, The

Filing 67

ORDER Plaintiffs claim for long-term disability benefits under ERISA ECF No. 1 is DENIED; The Clerk shall enter judgment in favor of Defendant; and Defendant shall have its costs, by Judge William J. Martinez on 6/11/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-02905-WJM-CBS
BARBARA ROSE,
Plaintiff,
v.
THE HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, and
JOHN AND JANE DOES NUMBER 1-10
Defendant.

ORDER AFFIRMING DEFENDANT’S DENIAL OF
LONG TERM DISABILITY BENEFITS

This case arises under the Employee Retirement Income Security Act of 1974,
29 U.S.C. §§ 1001, et seq. (“ERISA”). Plaintiff Barbara Rose claims that Defendant
Hartford Life and Accident Insurance Company (“Hartford” or “Defendant”) violated
ERISA when it issued its final determination letter dated October 13, 2010, upholding its
earlier decision to deny long-term disability benefits to Plaintiff. (ECF No. 2.)
For the reasons set forth below, Defendant’s denial of benefits is affirmed and
Plaintiff’s claim for disability benefits is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began working as a psychiatrist for Colorado Permanente Medical
Group, P.C. on December 15, 2008. (Record (“R.”) (ECF No. 15) at 76.) In conjunction
with her employment, Plaintiff was a participant in an employee welfare benefit plan,
which included a long-term disability policy through Defendant Hartford. (R. 1-40.) The

Hartford Policy Number for Colorado Permanente Medical Group, P.C. is GVL-16008
(the “Policy”). (R. 1.) The relevant portions of the Policy are as follows:
Pre-existing Conditions Limitation: Are benefits limited for
Pre-existing Conditions?
We will not pay any benefit, or any increase in benefits,
under The Policy for any Disability1 that results from, or is
caused by or contributed to by, a Pre-existing Condition,
unless, at the time You become Disabled:
1)
You have not received Medical Care for the
condition for 3 consecutive month(s) while
insured under The Policy; or
2)
You have been continuously insured under
The Policy for 12 consecutive month(s).
Pre-existing Conditions means:
1)
any Injury, Sickness, Mental Illness,
pregnancy, or episode of Substance Abuse; or
2)
any manifestations, symptorms, findings, or
aggravations relating to or resulting from such
accidental bodily injury, sickness, Mental
Illness, pregnancy, or Substance Abuse;
for which You received Medical Care during the 3
month(s) period that ends the day before:
1)
Your effective date of coverage; or
2)
the effective date of a Change in Coverage.
Medical Care is received when a physician or other health
care provider:
1)
is consulted or gives medical advice; or
2)
recommends, prescribes or provides
Treatment.
Treatment includes, but is not limited to:
1)
medical examinations, tests, attendance, or
observation; and
2)
use of drugs, medicines, medical services,
supplies or equipment.
(R. 17.)

1

All capitalized words are defined elsewhere in the Policy. The relevant definitions are
provided herein.

2

Plaintiff became eligible for benefits under the Policy on April 13, 2009. (R. 81.)
On October 15, 2009, Plaintiff stopped working due to various medical conditions that
caused her severe pain. (R. 833.) The consistent opinion of Plaintiff’s medical
providers is that Plaintiff became disabled as of October 15, 2009 due to pain, including
neck pain. (E.g., R. 128-32, 837-38.) Thus, it is undisputed that October 15, 2009 is
the date of Plaintiff’s disabling injury.
On April 21, 2010, Plaintiff applied for long-term disability benefits under the
Policy. (R. 832-38.) On May 11, 2010, Hartford acknowledged receipt of Plaintiff’s
application for benefits and requested additional information to help Hartford determine
whether Plaintiff’s disabling condition was related to a pre-existing condition. (R. 8182.) Plaintiff provided the requested information, as well as other materials that
Hartford later requested during its investigation. (R. 86, 92, 96, 100-03, 469, 798-803.)
On August 19, 2010, Hartford sent Plaintiff a letter denying Plaintiff’s claim for
long-term disability benefits (“Denial Letter”) based on the Policy’s Pre-existing
Condition Limitation. The Denial Letter reiterated the relevant portions of the Policy,
listed Hartford’s bases for its decision, including the relevant medical evidence it had
considered, and informed Plaintiff of her administrative appeal rights. (R. 104-08.) The
relevant portion of the Denial Letter stated:
Our review of your file indicates that you had a fractured T6
and T9 vertebrae with subsequent removal of rods in 2002
which left you with a thoracic kyphosis2 that Dr. Jones
concludes causes you to compensate by throwing your neck

2

Kyphosis is a severe curving of the spine, sometimes referred to as “hump-back”.

3

into increased lordosis3 to keep your center of gravity, which
aggravates your neck. Kaiser Pharmacy records document
that you purchased Cyclobenzaprine for muscle spasms and
back pain on 04/10/2008 and 08/19/2009; Gabapentin for
back pain on 04/10/2009, 05/01/2009, 05/27/2009,
07/07/2009, and 09/25/2009; and Tramadol . . . for back
pain on 04/10/2009. Based on this information, your current
neck pain is related to your past thoracic injury which you
received Medical Care for during the 3 month period prior to
your insured date of 04/13/2009. In addition, you did not
have a 3 month period without treatment beginning on or
after your insured date of 04/13/2009. Therefore, your
Disability is excluded according to the Pre-existing Condition
Limitations provision, and no benefits are payable under this
policy. Accordingly, your claim for benefits has been denied.
(R. 107.)
Plaintiff appealed the denial of benefits. (R. 744-51.) In conjunction with her
appeal, Plaintiff submitted an e-mail from Dr. Sanjay Jantana, the physician that
performed her back surgeries in 2000 and 2002, and with whom she received ongoing
follow-up care for her thoracic kyphosis. (R. 745.) In response to Plaintiff’s question
about whether patients who had a T4-T10 fusion developed C5-C6 autofusions, Dr.
Jantana replied “Not related”. (Id.) Hartford attempted to contact all of Plaintiff’s
doctors to discuss her condition, and also submitted Plaintiff’s appeal for an
independent physician review. (R. 111-115.)
On October 13, 2010, Hartford notified Plaintiff that her appeal was
unsuccessful, and that her claim for long-term disability benefits was denied. (R. 116120.) The Appeal Letter stated that, after a review of Plaintiff’s entire file, including an
independent medical review, Hartford had determined that Plaintiff’s neck and back

3

Lordosis is an excessive inward curvature of the spine.

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pain fell under the Pre-existing Condition Limitation. (R. 116.) The Appeal Letter
accurately stated the pertinent portions of the Policy, including the Pre-existing
Condition Limitation, reviewed the procedural history of Plaintiff’s claim, and informed
Plaintiff of the relevant opinions offered by Dr. Boscardin, the independent medical
examiner. (R. 117-19.) The Appeal Letter concluded:
Based on the opinion of Dr. Boscardin, your thoracic
kyphosis is aggravating your spinal and cervical stenosis
due to the increased lordosis, and he also confirmed that
you did received treatment during the look back period of
January 12, 2009 through April 12, 2009, by way of
prescription medications refills, which were confirmed by Dr.
Porter to be for your thoracic condition, therefore, that
condition is excluded from benefit payment, as it is
considered Pre-existing.
A review of the evidence finds that your condition of neck
pain is considered to be related to the thoracic back pain,
and they are both considered pre-existing and therefore
excluded from benefit payment under this Policy, as such,
this denial was appropriate and it stands.
(R. 120.) The Appeal Letter informed Plaintiff that this determination regarding
Plaintiff’s eligibility for benefits was Hartford’s final decision on her claim, and that she
was entitled to bring a lawsuit under ERISA. (Id.)
Plaintiff, through counsel, sent a formal request for reconsideration of the denial
of benefits on August 10, 2011. (R. 134-40.) Plaintiff submitted additional records from
Kaiser Permanente, as well as the disability determination of the Social Security
Administration, which had been issued on July 14, 2011. (Id.) Hartford summarily
denied Plaintiff’s request for reconsideration, again notifying her that its final decision
was the October 13, 2010 Appeal Letter. (R. 123.)

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On October 14, 2011, Plaintiff filed this action in state court claiming that she
was wrongfully denied benefits under the Policy. (ECF No. 2.) Hartford removed the
case to this Court on November 8, 2011. (ECF No. 1.) The Administrative Record was
filed on March 1, 2012, and supplemented on March 1, 2013. (ECF Nos. 15 & 47.)
Plaintiff filed her opening brief on March 1, 2013. (ECF No. 48.) Hartford filed its
response brief on April 5, 2013 (ECF No. 58), and Plaintiff filed her reply on May 6,
2013. (ECF No. 66.) The case is ripe for review.
II. STANDARD OF REVIEW
ERISA governs employee benefit plans, including disability benefit plans. 29
U.S.C. §§ 1101 et seq. “When an individual covered by the plan makes a claim for
benefits, the administrator gathers evidence, including the evidentiary submissions of
the claimant, and determines under the plan’s terms whether or not to grant benefits. If
the administrator denies the claim, the claimant may bring suit to recover the benefits
due to him under the terms of his plan.” Jewell v. Life Ins. Co. of N. Am., 508 F.3d
1303, 1308 (10th Cir. 2007) (citing 29 U.S.C. § 1132(a)(1)(B)) (internal quotation marks
and brackets omitted). Federal courts have exclusive jurisdiction over such suits, as
ERISA preempts most relevant state laws. 29 U.S.C. § 1144(a).
The Supreme Court has held that “a denial of benefits challenged under [the civil
enforcement provision of ERISA, 29 U.S.C.] § 1132(a)(1)(B)[,] is to be reviewed under a
de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the
plan,” in which case the court determines whether the denial of benefits was arbitrary

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and capricious. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see
also Trujillo v. Cyprus Amax Minerals Co. Ret. Plan Comm., 203 F.3d 733, 736 (10th
Cir. 2000) (“arbitrary and capricious” standard should be applied to a plan
administrator’s actions). Under the arbitrary and capricious standard, the
administrator’s decision need not be the only logical one or the best one; the decision
will be upheld provided that it is “grounded on any reasonable basis.” Kimber v. Thiokol
Corp., 196 F.3d 1092, 1098 (10th Cir. 1999). “The reviewing court need only assure
that the administrator’s decision falls somewhere on a continuum of reasonableness—
even if on the low end.” Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263,
1269 (10th Cir. 2002).
Plaintiff acknowledges that the Plan gives Hartford discretion to interpret its
provisions, which would ordinarily require the Court to apply the arbitrary and capricious
standard of review under the relevant case law. (ECF No. 53 at 15.) Plaintiff contends,
however, that Colorado Revised Statutes §§ 10-3-1116(2) and (3) (“§ 1116”) prohibit
employee benefit plans from reserving discretion to themselves, and requires that the
Court employ de novo review. (Id. at 10.) In response, Hartford argues that the Court
cannot retroactively apply § 1116 to the Plan in this case, and therefore the arbitrary
and capricious standard applies. (ECF No. 58 at 11-12.)
Whether § 1116 has been preempted by ERISA appears to be an open question
in this circuit. Compare McClenahan v. Metro. Life Ins. Co., 621 F. Supp. 2d 1135,
1140 (D. Colo. 2009) (finding that § 1116 is not preempted by ERISA but refusing to
apply in that case because § 1116 was enacted after the benefits decision had been

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made) with Hancock v. Metro. Life Ins. Co., 590 F.3d 1141 (10th Cir. 2009) (finding
similar Utah statute was preempted by ERISA); Flowers v. Life Ins. Co. of N. Am., 781
F. Supp. 2d 1127 (D. Colo. 2011) (finding that § 1116(1) was preempted by ERISA but
limiting its holding to that particular subsection). The parties’ disagreement regarding
the applicable standard of review focuses on two complex issues: federal preemption of
state statutes, and retroactivity of legislation. The Court finds that it need not delve into
this difficult issue because, even if the Court applies the more favorable de novo
standard of review, Plaintiff has failed to show that she is entitled to benefits. See
Briscoe v. Fine, 444 F.3d 478, 496 (6th Cir. 2006) (declining to resolve dispute over
applicable standard of review because claim failed under more lenient standard). As
such, the Court assumes without deciding that the de novo standard of review applies
in this case.
III. ANALYSIS
Plaintiff contends that Hartford erred by improperly inserting restrictions into the
Policy via its explanation for the denial of benefits in the Appeal Letter, and that
Hartford is precluded from changing rationales at this stage of the litigation. (ECF No.
66 at 6.) Plaintiff also argues that Hartford failed to consider supplemental medical
evidence she submitted after receiving her Appeal Letter. (ECF No. 53 at 27.) Finally,
Plaintiff argues that, based on the entirety of the Record, she is entitled to benefits
under the Policy. (Id.) The Court will address each of these contentions in turn below.
A.

Appeal Letter’s Explanation for Denial of Benefits
Plaintiff argues that Hartford erred when considering her appeal because the

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Appeal Letter inserts a restriction into the Policy that does not appear in the Policy’s
language. (ECF No. 53 at 15.) For purposes of this argument, the relevant portion of
the Policy is an exception to the pre-existing condition exclusion, which allows a
covered individual to receive benefits if she has “not received Medical Care for the
condition for 3 consecutive month(s) while insured under The Policy” (the “Exception”).
(R. 17.) With regard to this provision, Hartford’s Appeal Letter states:
In order for you to be eligible for Long Term Disability
benefits, you must have been continuously insured for a
period of twelve (12) months prior to your disability
(December 15, 2008 through December 14, 2009), or you
must not have received any Medical Care for your condition
for three months while insured (April 13, 2009 through July
13, 2009). You were seen by Dr. Nagashima on June 8,
2009, and it was noted that your active problems included
anxiety disorder, chronic low back pain and major
depression, therefore, you failed to meet the provision of the
Policy, as such, we had to investigate your claim to
determine if your disabling condition was pre-existing.
(R. 439 (emphasis added).) Plaintiff argues that Hartford erred by limiting the Exception
to the first three months she was insured, rather than any consecutive three month
period. (ECF No. 53 at 15.)
Hartford admits that the inclusion of the emphasized dates—April 13, 2009
though July 13, 2009—was error, because the Policy does not limit application of the
Exception to the first three months of coverage. (ECF No. 58 at 24.) Hartford offers no
explanation for this error, and admits that the Administrative Record does not contain
any information that would explain why the Appeal Letter contains these dates. (Id.)
However, Hartford argues that this error had no effect on its determination of Plaintiff’s
entitlement to benefits and was not material to the appeal determination. (Id.)
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Having reviewed the relevant portions of the Administrative Record, the Court
agrees with Hartford’s position that this error in stating the legal standard did not affect
Hartford’s overall denial of benefits. The initial Denial Letter correctly applies the
Exception, and finds that Plaintiff did not have any consecutive three month period in
which she did not have Medical Treatment for her back pain. (R. 104-08.)
Plaintiff also argues that, when reviewing a denial of disability benefits, the Court
can only consider the rationale asserted by the insurance company and, therefore, the
Appeal Letter binds Hartford to this erroneous rationale. (ECF No. 66 at 6.) However,
the case law does not support Plaintiff’s argument in this context. The cases hold that
an insurer is generally precluded from changing the overall basis for its denial and,
therefore, had Hartford initially denied benefits based on the Pre-existing Condition
Limitation, it could not later abandon this explanation and claim that Plaintiff was not
entitled to benefits because she had failed to pay her premiums or made
misrepresentations on her application. See Pub. Serv. Co. of Colo. v. Wallis & Cos.,
955 P.2d 564, 571 (Colo. App. 1997) (“When an insurer denies coverage on specific
grounds, it waives the right later to assert additional defenses to coverage”). In this
case, Hartford has consistently maintained its position that Plaintiff is not entitled to
benefits because of the Pre-existing Condition Limitation.
It is also true that, when determining whether an insurer’s denial of benefits was
arbitrary and capricious, a court must look only at the rationale offered by the insurance
company. See Spradley v. Owens-Illinois Hourly Emps. Welfare Benefit Plan, 686 F.3d
1135, 1140 (10th Cir. 2012) (under the arbitrary and capricious standard of review, the
court may consider “only the rationale asserted by the plan administrator in the
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administrative record”). However, the Court has already stated that it intends to review
de novo whether Plaintiff is entitled to benefits. Because the Court will take a fresh look
at Plaintiff’s eligibility for benefits, any misstatement of the Policy provisions in the
Appeal Letter is irrelevant. The ultimate question is whether Plaintiff is entitled to
benefits, which the Court will consider de novo based on its review of the administrative
record.
B.

Supplemental Evidence Submitted by Plaintiff
Approximately ten months after receiving the Appeal Letter, Plaintiff submitted a

letter to Hartford providing new information about her condition, along with “voluminous
supporting documentation in the form of additional medical records and a determination
from the Social Security Administration that Dr. Rose was disabled as of October 15,
2009, for conditions including neck problems.” (ECF No. 53 at 27 (citing R. 124-416).)
Plaintiff asked Hartford to reconsider the denial of her benefits based on this
information. (Id.) Hartford acknowledged receipt of the materials but refused to
reconsider its decision, stating that Plaintiff had exhausted her administrative remedies
under the Policy and that no further process was necessary. (R. 123.)
Notably, Plaintiff cites no case law requiring Hartford to reopen Plaintiff’s file and
consider this supplemental medical evidence, ten months after Plaintiff’s appeals under
the Policy were exhausted. However, in the interest of a “full and fair review”, which
ERISA requires, the Court will consider this supplemental evidence in its de novo
review.

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C.

De Novo Review of Plaintiff’s Entitlement to Benefits
As indicated above, the Court will review de novo whether Plaintiff is entitled to

benefits under the Policy. The Policy states that benefits will not be paid “for any
Disability that results from, or is caused or contributed to by, a Pre-existing Condition,
unless, at the time You become Disabled: (1) You have not received Medical Care for
the condition for 3 consecutive month(s) while insured under the Policy.” (R. 7.) The
Policy defines “Pre-existing Conditions” to mean:
1)
2)

any Injury, Sickness . . . or
any manifestations, symptoms, findings, or
aggravations relating to or resulting from such
accidental bodily injury, sickness . . . ;

for which You Received Medical Care during the 3 month(s)
period that ends the day before:
1)
2)

Your effective date of coverage; or
the effective date of a change in Coverage.

(R. 17.) “Medical Care” is defined as: “when a physician or other health care provider:
(1) is consulted or gives medical advice; or (2) recommends, prescribes, or provides
Treatment.” (Id.) “Treatment” under the Policy includes “use of drugs, medicines,
medical services, supplies, or equipment.” (Id.)
The Administrative Record shows that Plaintiff has a long history of problems
with her spine, including thoracic kyphosis, which is a severe curving of the spine,
sometimes referred to as “hump-back”. (R. 815.) Plaintiff had spine fusion surgery (T3T9) in 2000, with follow-up surgery in 2002 to remove the rod. (R. 59, 199, 220-22.)
Medical records show that, on April 10, 2009, Plaintiff filled a prescription for Tramadol,
Gabapentin, and Cyclobenzaprine, which was prescribed for her back pain. (R. 742.)
12

Plaintiff also filled prescriptions for pain medication for her back condition in May 2009,
July 2009, September 2009, October 2009, and November 2009. (R. 53-54.)
Under the terms of the Policy, taking prescription medication constitutes Medical
Care. (R. 17.) Because Plaintiff filled a prescription on April 10, 2009, which is less
than three months prior to Plaintiff’s effective date of coverage (April 13, 2009),
Plaintiff’s back pain is a Pre-Existing Condition under the Policy. (Id.) Additionally,
because there was no consecutive three month period in which Plaintiff did not receive
Medical Treatment for her back pain while she was covered by the Policy, the exception
to the Pre-existing Condition Limitation does not apply. (Id.)
Thus, the only remaining question is whether Plaintiff’s disabling condition—neck
pain—“results from, or is caused or contributed to by” Plaintiff’s Pre-Existing Condition.
Plaintiff argues that her neck pain is an independent degenerative issue that is
unrelated to her back problems. (ECF No. 66 at 13-14.) She cites evidence in the
record showing that Plaintiff first complained of “axial neck pain” in 2001, following
which it was determined that she had “moderate spinal stenosis and bilateral neural
formaminal narrowing at C5-C6 and C6-C7.” (R. 162, 190.) In 2007, Dr. Jantana noted
that Plaintiff had “[d]econditioning of her cervical spine”, which was separately listed
from her “[t]horacic kyphosis due to fractures and surgery.” (R. 149.) Plaintiff contends
that her neck pain is caused by a C5-C6 autofusion that was first diagnosed in January
2010, and which Dr. Jantana has stated is “not related” to her thoracic kyphosis. (R.
283, 751.)
The Court does not find Dr. Jantana’s opinion regarding the related nature of
Plaintiff’s conditions to be instructive. Plaintiff apparently called Dr. Jantana’s office to
13

inquire as to the percentage of people who have had a T4-T10 fusion and later develop
a C5-C6 autofusion, and an employee in Dr. Jantana’s office posed this question to him
via e-mail. (R. 751.) Dr. Jantana’s response stated: “Not related.” (Id.) There is no
indication that Dr. Jantana examined Plaintiff prior to offering this opinion, or consulted
with the physician treating Plaintiff’s neck pain. Dr. Jantana has not opined that
Plaintiff’s neck pain is caused by the C5-C6 autofusion, rather than being caused by or
related to her back issues. Nowhere in the Record does Dr. Jantana attempt to explain
his conclusion that these conditions are “not related” or otherwise justify such opinion
with medical evidence.
On the contrary, there is significant evidence in the Record showing that these
conditions are related. Dr. Jones, who treats Plaintiff for her neck pain, opined that
Plaintiff could not perform her job “because of her thoracic kyphosis throwing her
cervical spine into compensatory hyperextension.” (R. 763.) He also stated that
Plaintiff’s “thoracic kyphosis throws her neck I think into cervical extension and gives
her marked base of neck pain, which I think is facet mediated.” (R. 762.) Signficantly,
after opining that Plaintiff’s neck condition was “not related” to her prior spinal fusion,
Dr. Jantana noted that Plaintiff has “compensatory lordosis above and below her
thoracic deformity and fusion”. (R. 766.)
On this evidence, the Court concludes that Plaintiff’s neck pain is at least
contributed to, if not caused by, her pre-existing back condition. Given this conclusion,
the Court finds that Plaintiff has not shown that she is entitled to benefits under the
Policy. Accordingly, Hartford’s denial of benefits is affirmed.

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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s claim for long-term disability benefits under ERISA (ECF No. 1) is
DENIED;

2.

The Clerk shall enter judgment in favor of Defendant; and

3.

Defendant shall have its costs.
Dated this 11th day of June, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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