Campbell v. Aetna Life Insurance Company

Filing 46

ORDER ON ADMINISTRATIVE RECORD: The Motion for Judgment on the Administrative Record (#21, 39 ) is GRANTED. The Court awards Ms. Campbell reinstatement of her benefits, retroactive to July 1, 2012. Ms. Campbell shall file a motio n addressing the appropriateness of an award of attorney's fees and prejudgment interest, and if appropriate, the proper interest rate, within fourteen days from the date of this Order, at which time the Court will enter judgment in Ms. Campbell's favor. by Chief Judge Marcia S. Krieger on 9/30/14.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00132-MSK-KMT
MICHELLE CAMPBELL,
Plaintiff,
v.
BALL CORPORATION CONSOLIDATED WELFARE BENEFIT PLAN,
Defendant.

ORDER ON ADMINISTRATIVE RECORD

THIS MATTER comes before the Court upon review of the denial by Aetna Life
Insurance Company (“Aetna”), acting as Claims Administrator for the Defendant, of long-term
disability benefits to the Plaintiff under an insurance plan governed by the Employment
Retirement Income Security Act of 1974, 28 U.S.C. § 1001, et seq. (“ERISA”). The parties filed
an Administrative Record (# 21). The Plaintiff (“Ms. Campbell”) moved for judgment on the
Administrative Record (# 39), reflecting the parties’ agreement that the matter should be
determined on the briefs (# 30, 38, 43).
I.

Jurisdiction
The Court has jurisdiction pursuant to 29 U.S.C. § 1132, which allows a participant in an

ERISA plan to bring suit to enforce the participant’s rights or to recover benefits due to the
participant under the terms of the plan.

II.

Facts
The Court briefly sketches the relevant facts here, elaborating as necessary in its analysis.

Ms. Campbell worked at Ball Aerospace and Technologies Corporation (“Ball”) from 19942002. From 1998-2002, Ms. Campbell served as an Operations Analyst. During her
employment, she was covered by a long-term disability policy. In May 2002, Ms. Campbell left
employment and began to receive long-term disability benefits from the Defendant because of
recurring cluster migraine headaches. The Social Security Administration also determined that
she was entitled to monthly disability benefits. Aetna has served as the Defendant’s independent
Claims Administrator since 2009.
Aetna conducts periodic reviews of claimants receiving ongoing disability benefits and in
2011, it had Dr. Janice Miller, a neurologist, conduct a medical examination of Ms. Campbell.
On Aetna’s Capabilities and Limitations Worksheet, Dr. Miller marked that Ms. Campbell was
capable of sitting for up to five hours of a workday, and that she had similar limitations regarding
her ability to do fine manipulation. Dr. Miller also marked that Ms. Campbell could lift up to
five pounds for up to five hours per day, and up to ten pounds “occasionally.” The documents
that Aetna sent to Dr. Miller defined a “Sedentary” occupation in terms of the claimant’s
“Strength Level,” only requiring “occasional” lifting of one to ten pounds. Dr. Miller wrote that
“I am not seeing any objective evidence that [Ms. Campbell] would not be able to work in a
relatively sedentary position as she has.”
Effective July 1, 2012, a Disability Benefits Manager employed by Aetna terminated Ms.
Campbell’s claim for disability benefits. Aetna’s denial letter to Ms. Campbell stated that her
plan “defines total disability” as the inability to perform her own occupation and the inability to
earn more than eighty percent of her pre-disability earnings. In the initial denial of Ms.

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Campbell’s claim, Aetna stated that it was “terminating” Ms. Campbell’s claim for disability
benefits effective June 30, 2012, on the basis that she was “not totally disabled from performing
[her] own occupation.” The letter said that Ms. Campbell was employed by Ball “as an
Operations Analyst,” which a Vocational Rehabilitation Consultant had concluded was a
“sedentary” occupation according to the Dictionary of Occupational Titles (“DOT”). The letter
relied upon Dr. Miller’s report, which Aetna construed to conclude that Ms. Campbell could
work “an 8 hour day, 40 hour week in a sedentary capacity.” The determination was contrary to
the assertions of Ms. Campbell’s treating physicians, Dr. Joshua Renkin and Dr. Richard Smith.
Following Ms. Campbell’s appeal of the termination decision, Dr. Stephen Gerson,
specializing in psychiatry, and Dr. Eric Kerstman, specializing in physical medicine and
rehabilitation, provided physician reviews at Aetna’s request. Dr. Gerson’s Physician Review
states “we have no data to validate substantial functional impairment on a psychiatric or
cognitive basis from 7/1/12 through 11/19/12.” Dr. Kerstman’s review asserts that “there is
clinical evidence to support the claimant’s . . . medical conditions of chronic pain, cervical
dystonia, and intractable headaches. However, there is no clinical evidence to support that any
of these medical conditions individually or in combination are causing significant impairment, or
require restrictions and/or limitations that would preclude the claimant from performing her
Sedentary PDL occupation as a Computer Technician.” Dr. Kerstman also wrote that there was
“no evidence to support” the restrictions that Dr. Miller noted on the Capabilities and Limitations
Worksheet concerning Ms. Campbell’s ability to work.
An Appeals Specialist employed by Aetna issued a decision affirming the termination of
Ms. Campbell’s benefits. On appeal, Aetna purported to apply the “plan” that was “in effect at
the time of Ms. Campbell’s disability commencement,” although the terms of that plan had

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changed in the interim. The appeal determination defined total disability as: “[Y]ou must be
unable to perform any job for which you are reasonably qualified by training, education, or
experience.” The decision conceded “that Ms. Campbell has chronic pain, chronic and
intractable headaches, and dystonia as her primary diagnoses, as well as diagnosed depression,
knee pain, neck pain, and positional vertigo as secondary diagnoses.” It stated that she had been
“employed as a Computer Technician at the time she stopped working,” which it repeatedly
referred to as “a sedentary occupation.” The decision concluded that none of Ms. Campbell’s
“diagnoses, alone or in combination, preclude Ms. Campbell from performing her usual job or
any job for which she is reasonably qualified by her education, training and experience.” Ms.
Campbell seeks relief from this determination.
III.

Standard of Review
In Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 110–11 (2008), the Supreme Court

summarized its prior rulings setting forth the standard of review in suits to recover benefits under
an ERISA plan: (i) the court must conduct a de novo review of the determination unless the plan
provides to the contrary; (ii) if the plan provides discretionary authority to the Plan Administrator
to make eligibility determinations, the court should instead apply a deferential arbitrary and
capricious standard of review; and (iii) if the Plan Administrator is operating under a conflict of
interest, the nature and extent of that conflict must be “weighed as a factor” in determining
whether the Plan Administrator has abused his or her discretion. See Foster v. PPG Indus., Inc.,
693 F.3d 1226, 1231-32 (10th Cir. 2012). In addition, pursuant to precedent of the United States
Court of Appeals for the Tenth Circuit, certain procedural irregularities may require the Court to
apply de novo review. LaAsmar v. Phelps Dodge Corp. Life, Accidental Death &
Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010).

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If a court determines that the arbitrary and capricious standard applies, it will reverse a
determination if the Plan Administrator’s decision is not supported by substantial evidence in the
record, its construction of policy language is unreasonable, or if the determination was made in
bad faith. See Graham v. Hartford Life & Acc. Ins. Co., 589 F.3d 1345, 1357 (10th Cir. 2009).
Under that standard, a determination does not need to be the best or only logical resolution, but it
does need to be reasonably supported by the record. Nance v. Sun Life Assur. Co., 294 F.3d
1263, 1269 (10th Cir. 2002). Review is limited to the materials compiled by the administrator in
the course of making its decision – that is, to the Administrative Record. See Cardoza v. United
of Omaha Life Ins. Co., 708 F.3d 1196, 1201 (10th Cir. 2013). However, the Court only needs to
consider the specific grounds upon which the administrator relied in its administrative denial of
benefits. Spradley v. Owens-Ill. Hourly Employees Welfare Ben. Plan, 686 F.3d 1135, 1141
(10th Cir. 2012).
The parties dispute which standard of review the Court should apply. Normally, the
Court would resolve this dispute by first looking to the relevant plan documents. The parties,
however, also disagree about which plan documents apply. Ms. Campbell asserts the relevant
documents were those in place at the time she commenced receiving disability, the Ball
Corporation Consolidated Welfare Benefit Plan for Employees, restated as of January 1, 1998, as
supplemented by the January 2002 Long-Term Disability Plan for Salaried Employees. The
Defendant, by contrast, argues that revised documents apply, the Ball Corporation Consolidated
Welfare Benefit Plan for Employees, restated as of January 1, 2003, as supplemented by the
January 1, 2011 Long-Term Disability Plan Summary of Benefits for Salaried Employees.
The Court notes that in Ms. Campbell’s appeal, Aetna appears to have conceded that Ms.
Campbell’s disability benefits are controlled by the “plan[] in effect at the time of Ms.

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Campbell’s disability commencement.” The Defendant, therefore, may be estopped from
arguing that Ms. Campbell’s claim is governed by the newer policy documents. Nonetheless, the
Court does not need to decide which plan applies. Under the terms of both plans, the Court finds
that Aetna’s determination was arbitrary and capricious.
IV.

Analysis
a. Plan Terms
The Court starts with the language of the plan documents. The 2011 Summary of

Benefits states that an individual is:
considered totally disabled due to illness or injury if [she is] unable to
 Perform the essential duties of [her] own occupation
 Earn more than 80% of [her] “pre-disability earnings”
(Note that there is no text in the Plan indicating whether the two bulleted points are to be
considered conjunctively or disjunctively.) Similarly, the 2002 Long-Term Disability Plan for
Salaried Employees dictates that an individual is:
considered totally disabled if [she is] unable, due to illness, pregnancy, or injury,
to:
 Perform the material duties of [her] own occupation; or
 Earn more than 80% of [her] “pre-disability earnings.”
b. Denial Determinations
In the initial termination of Ms. Campbell’s benefits, Aetna appeared to rely on the 2011
Summary of Benefits, defining “total disability” as being “unable to perform essential duties of
own occupation and unable to earn more than 80% of pre-disability earnings.” (Emphasis
added.) The letter continues that no “objective medical data” was “provided that would
preclude you from working in your own occupation.” It notes that Ms. Campbell was referred
for a medical evaluation and suggests that “[t]he results of that evaluation found that you were
able to work an 8 hour day, 40 hour week in a sedentary capacity.” Pursuant to the review of a
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Vocational Rehabilitation Consultant, the letter states that Ms. Campbell’s own occupation, of
Operations Analyst, “is considered sedentary according to the” DOT. Aetna terminated Ms.
Campbell’s claim for disability benefits effective June 30, 2012, because she was “not totally
disabled from performing [her] own occupation.”
By contrast, the letter denying Ms. Campbell’s appeal suggests that it is applying the
long-term disability plan “in effect at the time of Ms. Campbell’s disability commencement.” It
offered a different definition of total disability: “[Y]ou must be unable to perform any job for
which you are reasonably qualified by training, education, or experience.” The letter also relied
on the classification of Ms. Campbell’s position as sedentary, and suggested that no clinical
evidence supported a conclusion that Ms. Campbell’s medical conditions “require restrictions
and/or limitations that would preclude her from performing her sedentary occupation as a
Computer Technician.” Aetna also wrote that “[r]eview of the voluminous records documented
that there are no significant impairments supported by Ms. Campbell’s reported symptoms,
physical examination findings, or diagnostic testing to support that she would not be capable of
performing a sedentary occupation from July 01, 2012.” The analysis concludes that,
while we concur that Ms. Campbell has chronic pain, chronic and intractable
headaches, and dystonia as her primary diagnoses, as well as diagnosed
depression, knee pain, neck pain, and positional vertigo as secondary diagnoses,
no evidence has been submitted which would allow us to conclude that any of . . .
these diagnoses, alone or in combination, preclude Ms. Campbell from
performing her usual job, or any job for which she is reasonably qualified by her
education, training and experience.
c. Definition of Disability
The Court thus encounters three definitions of total disability. The first and second are
from the plan documents, and Aetna appears to have relied upon the definition from the 2011
Summary of Benefits in its initial termination letter. The third definition is that which Aetna

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stated in the appeal. Aetna did not explain the change in the definition between the initial
determination and the appeal. Moreover, the definition that Aetna applied in the administrative
appeal is not supported by either set of plan documents. Using the standard was thus arbitrary
and capricious as an unreasonable construction of the policy documents.
Aetna, however, stated that Ms. Campbell was not precluded from working her usual job,
relevant under the first prong of the definition of total disability under both sets of plan
documents. Out of an abundance of caution, the Court turns to consider that conclusion.1
d. Application of the Plan Definitions
Where a disability plan defines disability in terms of the claimant’s ability to perform the
essential duties of her own occupation, the Tenth Circuit has taught that an administrator is
required to consider the claimant’s actual job duties in analyzing whether the claimant is
disabled. Bishop v. Long Term Disability Income Plan of SAP Am., Inc., 232 F. App’x 792, 79495 (10th Cir. 2007) (unpublished); see also Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276,
1284-85 (10th Cir. 2002). The job description for Ms. Campbell’s occupation of Operations
Analyst lists the following “Essential Functions and Responsibilities”:
• Implement smart-scheduler and provide the necessary technical support.
• Develop and maintain disaster recovery requirements and plans.
• Determine the causes of computer operations malfunctions.
• Provide training and development of Service Bureau personnel.
• Monitor the CPU and its related hardware and software to ensure its effective
and efficient operation.
• Collect data for performance reporting of the computer and related hardware and
software.
• Prepare computer operations documentation and ensure all documentation is
current and meets standards.
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The Court notes that Aetna, in its appeal letter, referred to Ms. Campbell’s position as
“Computer Technician.” The Defendant has not demonstrated that “Operations Analyst” and
“Computer Technician” are the same position with the same essential job functions. The record
evidence and the Defendant’s brief both support the conclusion that Ms. Campbell was employed
as an Operations Analyst. This represents a second material unexplained deviation between the
initial determination and the appeal.
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• May install hardware and software.
• Provide first point of contact for all after-hours computer operations and
customer service support.
• Provide programming support and documentation for operations development
and technical service area.
• Monitor network status/resources to solve network hardware.
• Coordinate all activities related to change and/or additions to software or
hardware configurations.
• Maintain a regular and predictable work schedule.
• Establish and maintain effective working relationships within the department,
the SBU/SSU and the Company. Interact appropriately with others in order to
maintain a positive and productive work environment.
• Perform other duties as necessary.
The record is devoid of any assessment of Ms. Campbell’s ability to perform any of these
essential functions. Dr. Miller wrote that she had read Ms. Campbell’s job description, but the
analysis in her report, as in the report of Dr. Kerstman, can most charitably be read to relate to
Ms. Campbell’s ability to work a generic “sedentary occupation.” Dr. Gerson similarly did not
address the essential duties listed in Ms. Campbell’s job description. Thus, the evidence that
Aetna reviewed reflected that Ms. Campbell could do “sedentary” work, but was not related to
the duties of Ms. Campbell’s own occupation, at least beyond the arguably sedentary nature of
an Operations Analyst position. In its initial termination and appeal letters, Aetna did not offer
analysis of Ms. Campbell’s ability to perform the functions listed above or their constituent
physical tasks, such as reading from a screen, typing, using a telephone, manipulating objects
with fine motor control, etc. Pursuant to Tenth Circuit case law, that is arbitrary and capricious
without regard to which set of plan documents controls.
Under both sets of plan documents, the definition of total disability contains two prongs.
Aetna does not argue that its determination is justified on the grounds that Ms. Campbell can
earn more than eighty percent of her pre-disability income. The Court notes that there is no
assessment of her prior earnings or her earning potential in either the initial termination or the

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appeal letter. Thus, the termination of Ms. Campbell’s benefits was not justified under either
prong of the definition included in either set of the plan documents. The Court concludes that it
was arbitrary and capricious.
e. Remedy
The Tenth Circuit explains that, pursuant to a determination that a plan administrator has
arbitrarily and capriciously terminated a claim for benefits, a district court can, in its discretion,
either remand the case to the administrator for another evaluation of the case, or award a
retroactive reinstatement of benefits. DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161,
1175-76 (10th Cir. 2006). Remand to the Administrator for further action is unnecessary if the
evidence clearly shows that the administrator’s actions were arbitrary and capricious or if it
would be unreasonable for benefits to be denied on any ground. Caldwell, 287 F.3d at 1289.
However, if the administrator did not make adequate findings or adequately explain the grounds
for its decision, remand for further findings and explanation is appropriate. DeGrado, 451 F.3d
at 1175-76. In determining the appropriate remedy, Tenth Circuit case law reflects that a court
does not need to consider potential grounds for termination of a claimant’s benefits upon which
the administrator did not rely in the administrative proceeding. Spradley, 686 F.3d at 1142.
The present matter does not simply involve inadequate findings or an inadequate
explanation of the grounds for Aetna’s decision. Aetna changed the definition of total disability
upon which it relied between the initial termination and the appeal. It settled upon a standard
without support in the record. Furthermore, it analyzed whether Ms. Campbell was capable of
performing a sedentary occupation, without regard to the actual terms of the plan documents.
The evidence clearly shows that Aetna’s actions were arbitrary and capricious. The Court
concludes that reinstatement of benefits is appropriate in this case.

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Moreover, Ms. Campbell has received benefits since 2002. This was a reevaluation by
Aetna, and should it have doubts that she continues to meet the applicable standard, it can engage
in another process – properly conducted – to determine whether that is the case. The Court
directs that Ms. Campbell’s benefits should be reinstated, retroactive to July 1, 2012.
For the foregoing reasons,
IT IS HEREBY ORDERED THAT
The Motion for Judgment on the Administrative Record (# 21, 39) is GRANTED. The
Court awards Ms. Campbell reinstatement of her benefits, retroactive to July 1, 2012. Ms.
Campbell shall file a motion addressing the appropriateness of an award of attorney’s fees and
prejudgment interest, and if appropriate, the proper interest rate, within fourteen days from the
date of this Order, at which time the Court will enter judgment in Ms. Campbell’s favor.
Dated this 30th day of September, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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