Kouzmanoff v. UNUM Life Insurance Company of America
Filing
107
ORDER granting 78 Motion for Partial Summary Judgment; resolving the 69 , [69-1], and 75 Administrative Record in favor of Defendant Unum; affirming Defendant Unum's decision not to pay LTD Policy benefits; and dismissing with prejudice 1 the Complaint against Defendant Unum. Entered by Judge Raymond P. Moore on 3/15/2019. (cpear) Modified on 3/15/2019 to add text (cpear).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action Nos.
17-cv-0721-RM-STV
17-cv-0976-RM-STV
Marc Kouzmanoff,
Plaintiff,
v.
Unum Life Insurance Company of America,
Thompson Reuters Holdings, Inc.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This consolidated matter alleges failure to pay disability benefits and arises under the
Employee Retirement Income Security Act (“ERISA”) and other employer obligations. Plaintiff
Marc Kouzmanoff is a former sales representative for Thompson Reuters Holdings, Inc.
(“Thompson Reuters”). He developed diabetes in 2001 and, in 2016, applied for disability
benefits pursuant to short-term and long-term plans (“STD Policy” and “LTD Policy”)
administered by Unum Life Insurance Company of America (“Unum”), asserting that performing
the duties of his employment involved a high risk of injury or mortality due to his inability to
control his blood sugar. Unum denied both benefit types, and Kouzmanoff filed separate actions
against Thompson Reuters and Unum that have since been consolidated. (ECF No. 23.)1
Kouzmanoff’s pleadings square against Unum for breach of fiduciary duty under ERISA and
Thompson Reuters for breach of contract and pursuant to the Colorado Wage Act.
1
Electronic Case Filing citations are to Case No. 17-cv-0721-RM-STV.
Before the Court is the administrative record in the Unum case (AR, ECF Nos. 69, 69-1,
75) and Thompson Reuters’s Motion for Partial Summary Judgment (PSJ-Motion, ECF No. 78),2
both of which are fully briefed. No party has moved to supplement the administrative record, or
objected to the authenticity or veracity of any part thereof. These matters are ripe for review.
I.
BACKGROUND
Kouzmanoff, born on October 6, 1951, worked for Thomson Reuters for 30 years—from
July 10, 1986 to October 6, 2016. (AR 5, 134.) As a “Field Account Manager,” he communicated
with and drove to Colorado businesses to present, demonstrate, and sell Thomson Reuters’s
legal, tax, and accounting products. (Id. at 444.)3 The essential functions of the job included
consistently achieving business objectives and sales revenue targets, working in a highly
competitive environment under a quota system, managing relationships with high-end firms and
corporations, working within urgent timelines, and travelling (sometimes overnight). (Id. at 166.)
According to Kouzmanoff, he often worked 18-hour days but started voluntarily reducing his
hours in either 2014 or 2015. (Id. at 346.)
A. Relevant Disability Benefit Policies
This case centers on two separate benefit plans: the STD Policy and LTD Policy. The
STD Policy—which is not a plan under ERISA—is self-funded by Thompson Reuters and
“replaces a portion of [a claimant’s] income in the event a sickness or injury prevents [him] from
working for a period of time.” (Statement4 ¶ 1–2, ECF No. 86-1 (citing STD Policy, ECF No.
2
Thompson Reuters has not moved for summary judgment on Kouzmanoff’s breach of contract claim.
3
As discussed further below, Kouzmanoff’s last few months at Thompson Reuters were in an altered capacity.
4
For ease of reference, citations to the Statement of Undisputed Material Facts are to the PSJ-Motion Reply
version, ECF No. 86-1. Because Kouzmanoff’s response to the Statement began anew at “1” in labeling its
paragraph numbers, the Court re-assigns them sequentially for ease of reference. For example, Kouzmanoff’s
first new factual statement (“Plaintiff worked for Thompson Reuters for 30 years. . . .”) will be cited as
Statement ¶ 9.
2
47-1, at 1).) However, the STD Policy does not provide benefits regarding a disability “caused
by, contributed by, or resulting from [an] occupational sickness or injury.” (STD Policy at 3.)
Under the STD Policy, qualifying claimants are entitled to benefits of 100% of weekly earnings
for the first six weeks of disability and 80% of weekly earnings for the following 19 weeks.
(STD Policy at 5.) Pursuant to an elimination period, a claimant must be continuously disabled
for seven days in order to be eligible for benefits. (STD Policy at 3.)
The STD Policy is administered by Unum: “When making a benefit determination under
the [STD] Policy, U[num] has the exclusive and final discretionary authority to determine your
eligibility for benefits and to interpret and enforce the terms and provisions of the [STD] Policy.”
(STD Policy at 8; see also Am. Compl. ¶ 4, ECF No. 55.) Whether or not Unum or Thompson
Reuters is more appropriately dubbed its “administrator” in name,5 Thompson Reuters pays
Unum to administer the STD Policy (Statement ¶ 12) and the parties agree that Unum is its
administrator. (Statement ¶ 2; ECF No. 85, at 2.) But while Unum administers the STD Policy,
Thompson Reuters retained the exclusive right to discontinue it at any time: “Thompson Reuters
reserves the right to modify, amend, suspend, or terminate, in whole or in part, any of the
provisions of this Policy at any time for any reason or for no reason.” (STD Policy at 1.)
“[C]overage under the Policy ends . . . the date the Policy is cancelled[,]” but “if the Policy is
cancelled, the cancellation will not affect a payable claim.” (Id. at 2.)
5
In its Response to the PSJ-Motion, Kouzmanoff supplied an edited version of an Administrative Services
Agreement between Thompson Reuters and Unum that is not a part of the administrative record. (ECF No. 852.) This Agreement labels Thompson Reuters the STD Policy “administrator.” (Statement ¶¶ 4, 10). It further
states that Thompson Reuters “shall notify Unum in writing if [Thompson Reuters] concludes that Unum is not
processing claims as [Thompson Reuters] determines, in its exclusive discretion, is appropriate.” The Court
needs not determine what, if any, impact this language has on the parties’ relationship because they agree that
Thompson Reuters self-funds the program and pays Unum to administer it.
3
Kouzmanoff was also a beneficiary of the LTD Policy, of which Thompson Reuters was
policyholder and Unum benefits provider. (AR 45; Unum Answer ¶ 2, ECF No. 13.) Like the
STD Policy, the LTD Policy provides financial protection in the event of disability, but over a
longer term. (AR 46.) Its elimination period is the later of 180 days or the end of short-term
benefits under the STD Policy. (Id. at 47–48.) The LTD Policy offers employees several
coverage options. Relevant here, benefits could include up to 66.6667% of monthly earnings—to
a maximum benefit of $15,000 per month—for up to 42 months, minus any deductible sources of
income. (Id. at 7, 11, 48, 61.)
Both policies set forth the relevant definitions and procedures governing a claimant’s
path to benefits. Under both, an employee is “disabled,” and therefore entitled to benefits,6 when
Unum determines that he is “limited from performing the material and substantial duties of [his]
regular occupation due to [a] sickness or injury; and [the employee] ha[s] a 20% or more loss in
[ ] earnings due to that same sickness or injury.” (Statement ¶ 5; AR 60.)
Both policies require the same information as proof of claim. A claimant must show (1)
that he is under the regular care of a physician; (2) appropriate documentation of his weekly
earnings; (3) the date his disability began; (4) the cause of his disability; (5) the extent of his
disability, including restrictions and limitations preventing him from performing his regular
occupation; and (6) the name and address of any hospital, institution or other treatment source,
including all attending physicians’ names and addresses. (AR 50; STD Policy at 7.)7
The policies provide appeal processes. Pursuant to the STD Policy, after making a
negative determination, Unum provides a notice of denial in writing, giving the specific
reason(s) for the denial; the policy provision(s) on which the denial is based; an explanation of a
6
The STD Policy, but not the LTD Policy, precludes benefits for work-related disabilities. (STD Policy at 3.)
7
There are slight additions in the sixth bullet point in the LTD Policy, which are reflected in the cited material.
4
right to appeal; and the claim review procedure. (STD Policy at 8.) The LTD Policy provides
that, after denying a claim, Unum will provide that same information and, additionally, any
material or information necessary to complete the claim and why such information is necessary;
disclose any internal rule, guidelines, protocol or similar criterion relied on in making the
adverse determination; and describe a claimant’s right to obtain information about those
procedures and the right to bring a lawsuit under Section 502(a) of ERISA following an adverse
determination from Unum on appeal. (AR 82–83.) In support of a LTD Policy appeal, the
claimant may submit new information, and Unum affords no deference to the prior
determination. (Id. at 83.) Moreover, Unum reviews appeals via different personnel than who
made the initial determination. (Id. at 83–84.)
B. Kouzmanoff’s Diabetes and Unum’s Denial of STD and LTD Policy Benefits
In 2001, Kouzmanoff developed type-1 diabetes. (Unum Answer ¶ 31.) He has since
treated with several physicians. Dr. Ken Cohen, M.D., reports that Kouzmanoff had worsening
control of his diabetes from 2011 onward. (Id. ¶¶ 32–33.) On July 21, 2015, Kouzmanoff visited
Dr. Cohen “to discuss DM[8] issues and worsening stress.” (AR 111.) Per the medical notes from
that day, Dr. Cohen suggested that Kouzmanoff change his work schedule, continue to work with
diabetes education, and improve his insulin and carbohydrate management. (Id.) Kouzmanoff
was to schedule a one-on-one evaluation at the Diabetes Center to improve his management and
also to consider retiring in the coming fall, as his wife was encouraging him to do. (Id.) The
notes explain that Kouzmanoff had frequent hypoglycemia, was sleeping poorly and constantly
fatigued, and had suboptimal insulin management due to lack of standardized diet and overtreating. (Id.) The report further states that “[w]ith respect to his severe work stresses, he is
8
“DM” or “diabetes mellitus” is commonly referred to as “diabetes.”
5
planning on retiring at the end of the year, but is unwilling to consider a reduced work week, or
an earlier retirement.” (Id. at 112.)9 Dr. Cohen’s office forwarded these notes to Unum on April
18, 2016. (Id. at 114.)
On February 23, 2016, Kouzmanoff returned to see Dr. Cohen, who recorded:
#1. Type 1 diabetes - unfortunately [Kouzmanoff’s] control
continues to be poor, and hopefully working with endocrinology
this might finally improve, although he has failed multiple attempts
at improved control working with both myself and our diabetes
educators. . . .
#4. Severe work-related stress - this clearly has an impact on his
ability to control his diabetes and I agree with going on disability
until his retirement in 8 months. . . .
Control had been slowly improving with use of his CGM and
hypos averaging about once weekly, usually at nighttime.
Unfortunately his A1c remains poorly controlled at 8.9, and he had
a recent admission for diabetic ketoacidosis . . . Current Lantus
dose is averaging 20 units with his Humalog averaging between 15
and 20 units daily. He typically is low in the morning and control
is poor throughout the day.
(Id. at 116.) The notes from this visit further indicate that Kouzmanoff’s metabolic panel labs
show a fasting glucose of 158 MG/DL. (Id. at 120.) Dr. Cohen forwarded this record to Unum on
April 18, 2016. (Id. at 122.)
On March 17, 2016, Kouzmanoff initiated a STD Policy claim for “type 1 diabetes
complications.” (Id. at 92.) He initially provided documentation from Dr. Cohen, which stated
that, based on the February 23, 2016 office visit, Kouzmanoff had ketoacidosis (diabetes mellitus
type 1) that was not work-related, would undergo a treatment plan of “intensive diabetes
9
The Court is compelled to address Kouzmanoff’s selective quoting of this and other material in his brief.
(Compare, e.g., ECF No. 64, at 4 with AR 111–12.) In this instance, not only are the quotations in the brief
re-arranged, Kouzmanoff conveniently omits the sentence concerning work-related stress and that he is
unwilling to consider a reduced work week—without so much as dropping an ellipsis or other alteration
indicating that material has been deleted. This is only one of several places in his brief where Kouzmanoff
hides the ball. The Court finds specious Kouzmanoff’s briefing practice of omitting inconvenient facts in this
manner. “Counsel is reminded of his duty to act with candor toward the court.” Thomas v. Chester, 561 F.
App’x 656, 657 (10th Cir. 2014).
6
management,” and “cannot drive or meet w/ clients.” (Id. at 100–03.) Kouzmanoff stopped
working on March 31, 2016. (Id. at 345.) But on April 4, 2016, he told his cardiologist Dr.
Tatiana Tsvetkova, M.D., that he “feels good and has no complaints.” (Id. at 146.) On April 14,
2016, Dr. Cohen provided a follow-up fax—also based on the February 23, 2016 visit—stating
that Kouzmanoff “will not return” to work, either full or part time. (Id. at 108.)
On April 5, 2016, Unum interviewed Kouzmanoff pursuant to its claim process. (Id. at
104–05.) In response to an inquiry as to what had changed such that he could no longer work,
Kouzmanoff answered10 generally that the symptoms had been going on for some time; his
attending physician believed he was killing himself at work and should seek stress counseling
(which was ineffective); his blood sugar would rise even without food; he couldn’t work at the
end of the day and had to cancel work appointments; he had been in the intensive care unit for
five days the preceding December,11 during which his blood sugar was at least 1154; he cannot
do 12 to 15-hour days anymore; he missed his sales quota for the first time in 30 years the
previous year; and that he “hates to admit” that returning to work would not be good because he
would not be able to hit the necessary sales numbers. (Id. at 104.) Kouzmanoff’s brief omits the
balance of this interview, during which he indicated that he has “[v]ery few sympt[oms] now,
feels [ ] as good as when he was in his prime.” (Id. at 105.)12 He stated that he could return to
work “tomorrow,” “but couldn’t continue thr[ough] it, would go back to the stress, looking at the
numbers and results, too stressful.” (Id.)
10
The Court notes that, although this material and much of what follows are hearsay-oriented notes from Unum
and medical providers concerning what Kouzmanoff said at certain times, Kouzmanoff does not object to the
authenticity, veracity, or relevance of the statements. Indeed, he incorporates these statements into his brief.
11
The Statement indicates that it is undisputed that Kouzmanoff received salary continuation plan benefits from
“December 2015 to January 2016 when he missed work for a month due to his uncontrolled diabetes” and that
those benefits were “paid and taxed as wages.” (Statement ¶ 13.) However, the supporting documentation
reflects compensation from the period 12/11/2016 to 12/24/2016. (ECF No. 42-2.) Upon review of the
administrative record, it appears to the Court that Kouzmanoff actually only received STD Policy benefits
covering the pay periods from 4/03/2016 to 4/30/2016. (AR 286–87). Those benefits were taxed as wages.
7
On April 14, 2016, Kouzmanoff visited an endocrinologist, Dr. Michelle Cassara, M.D.,
who assessed him as “Type 1 DM[] uncontrolled.” (Id. at 159.) Here too, Kouzmanoff
selectively edits from the notes. While the brief fairly recounts Dr. Cassara’s overview of
medication, dosage, overnight lows, and post-breakfast blood sugar elevations (“especially on
days off”), it drops a convenient ellipsis to cover this: “[Kouzmanoff] has [a] new job at the golf
course (very active with push mower) that he only started three days ago. Has not adjusted
insulin doses for this.” (Id. at 159.)13
On April 18, 2016, Kouzmanoff called Unum, stating that he had received his February
23, 2016 chart. Based on the information contained therein from Dr. Cohen, he stated that he
would not be returning to work. (Id. at 122.) He added that he had gone to the hospital the
preceding January, but now that he wasn’t working his blood sugar was stabilizing, and he has
no symptoms. (Id.) Finally, he said he “cannot do the mental part of the occ[upation.] [C]annot
do the concentration, attention to detail, new product knowledge due to the condition.” (Id.)
On April 20, in response to an information request from Unum asking what Kouzmanoff
should or cannot do, Dr. Cassara responded that he had no limitations at all, including “no
limitations on exercise. Should be able to test blood sugars up to 6 times per day. Needs to carry
food with him.” (Id. at 126, 134.) Also on April 20, 2016, Unum reviewed Kouzmanoff’s STD
Policy claim, including the notes and communications elucidated above. Among other findings,
they concluded that Kouzmanoff has severe work-related stress that impacts his ability to control
Finally, the Court notes that there are no direct records of this December 30, 2015 to January 3, 2016
hospitalization. From the information available, it appears that Kouzmanoff was hospitalized for “diabetic
ketoacidosis in the context of viral pericarditis,” which is a heart condition and has low frequency of recurrence.
(See, e.g., AR 356–57, 378, 384, 471, 475, 483.)
12
See note 9, supra (discussing duty of candor).
13
See note 9, supra; see also AR 212–13, Clark Reader, Lakewood Golf Course Enjoys Some Dedicated
Caretakers, Lakewood Sentinel (Aug. 4, 2016), https://lakewoodsentinel.com/stories/lakewood-golf-courseenjoys-some-dedicated-caretakers,233344.
8
his blood sugar. (Id. at 129.) And they noted that the “medical [records] reflect[] that the
claimant has poorly controlled dm; however does not have much in the way in the way of DM
related complications beyond mild peripheral neuropathy and ED.”14
That day, Kouzmanoff wrote to Unum, from which his brief again employs selective
quoting. (Compare AR 134 with ECF No. 64, at 6.)15 According to the brief, Kouzmanoff’s letter
recounted more “uncontrollable” blood sugars over the preceding years, his “several episodes in
2015” that included dry heaves and exhaustion, days spent in the hospital and 8.8 A1c reading,
and that stress was causing the uncontrollable blood sugar levels. (AR 134.) Notably, those
difficulties were all in the past at the time of the letter. The brief omits his representations
concerning the then-present, including, “I work out and lift weights almost every day. I eat well
and don’t smoke . . . and am healthy.” (Id.) Also missing is his comment that he only planned to
work until he turned 66-years-old, which was less than two years away. (Id.) He also asserted
that it was only “this past year or 2 where I could no longer hold up the mental weight of my
job.” (Id. (emphasis supplied).) He went on: “Summary – I did my job well for 29 ½ years.
Physically, I feel fine but what the stress has done to me is more than unhealthy, it is life
threatening. Very few folks have been able to last this long in this job as I have done.” (Id.)16
Finally, the brief leaves out his affirmation that he had no additional medical records to support
his claim outside those which had been provided by his doctors. (Id.)
On May 9, 2016, Unum personnel convened again (with different reviewers). (Id. at 162.)
On May 11, Unum told Kouzmanoff over the phone that the “medical documentation does not
14
As noted below, Kouzmanoff affirmatively represented that he had no additional medical records to provide to
Unum for review. (AR 134.) It is therefore highly misleading to argue, as Kouzmanoff does in his brief, that
“Unum never requested or obtained blood sugar logs from Plaintiff at any time prior to denying the appeal of
his LTD claim.” (ECF No. 64, at 6; see also note 9, supra (discussing duty of candor).)
15
See note 9, supra (discussing duty of candor).
16
See note 9, supra (discussing duty of candor).
9
support inability to do his occupation.” (Id. at 164.) Additionally, Unum noted that while Dr.
Cohen suggested that severe work-related stress was impacting the diabetes, the STD Policy does
not cover any disability caused or contributed to by, or resulting from, an occupational illness or
injury. (Id.) Finally, Unum noted that it had approved his claim through the April 14, 2016
endocrinologist visit, but was unable to do so going forward. (Id.) As Kouzmanoff points out,
Unum did not receive a summary of his job functions from Thompson Reuters until May 13,
2016. (Id. at 165–66.) But even after that, and reviewing those job functions, Unum found that
“[m]edical data does not appear to support functional loss as of 4/15/16 and ongoing and it also
appears that that his reported disabling condition was contributed to by an occupational
sickness.” (Id. at 190; see also id. at 192–96 (claim appeal review document).) As alleged in the
Amended Complaint, Unum denied Kouzmanoff’s STD Policy claim “on the basis that he was
not disabled.” (Statement ¶ 8.)
On June 24, 2016, Dr. Cohen provided Thompson Reuters with a letter giving approval
for Kouzmanoff to return to work with certain restrictions. (Unum Answer ¶ 44.) Per the letter,
Kouzmanoff would require frequent breaks to check blood sugar and time to manage it if
elevated. (Id.) He would also need to avoid stressful situations or work—meaning not working
on a production quota basis and keeping meetings with prospective customers to a time limit.
(Id.) Dr. Cohen reiterated that such situations and related stress caused Kouzmanoff to lose track
of blood sugar levels. Moreover, the letter asked Thompson Reuters to consider a reduction in
hours, noting that it would be healthier for Kouzmanoff to maintain a “9 to 5 window.” (Id.) In
response, on July 1, 2016, Thompson Reuters offered Kouzmanoff modified employment that
complied with the restrictions set out by Dr. Cohen. (AR 175.) In this “Sales Consultant”
position, he would mentor and train new associates at his current base salary through September
10
30, 2016. (Id.) Kouzmanoff accepted this position.17
On July 8, 2016, Dr. Cohen provided Unum with another letter which stated:
[Kouzmanoff] has been under my care for the past 12 years related
to type 1 diabetes. Since about 2011, his diabetes control has been
poor, with glycated hemoglobin levels in the 8–9 range. In addition
to poor diabetes control, he has had frequent hypoglycemia and
wide fluctuations in blood glucose readings. We have spent a
considerable amount of time and effort working through our
diabetes education center and my office in attempts to improve his
diabetes control. There have been over 30 visits during this time.
These attempts have largely failed related to his work
circumstances. As previously noted there are several aspects of his
job that have negatively affected his diabetes control. These
include long hours, stressful sales presentations, and long periods
of driving. Collectively, these have materially impaired his ability
to adequately control his diabetes, and he has suffered from severe
hypoglycemia as well as wide fluctuations in [b]lood glucose
which have affected his mood and ability to concentrate. As a
result of this, I consider him disabled for his current occupation.
He had a single visit with an endocrinologist and the information
from that visit is in conflict with the information noted above, but I
do not feel that the endocrinologist had an adequate breadth or
length of relationship which would allow the perspective to make
these determinations.
Thompson Reuters terminated Kouzmanoff on October 6, 2016. (Unum Answer ¶ 47.)
Kouzmanoff also made a claim under the LTD Policy. During its investigation on this
front, Unum’s medical consultant James Haller, M.D., called Dr. Cohen to find out why he had
assessed Kouzmanoff to be precluded from performing his occupational demands, stating that
most individuals with diabetes and jobs requiring long hours are able to monitor their blood
sugar and make appropriate adjustments which do not interfere with their work. (AR 368.) In
response, Dr. Cohen did not disagree with that generalization, but maintained that Kouzmanoff
had a “quadruple Type A personality,” was “highly driven,” “would constantly push himself to
his limits,” and would “stack his insulin doses and not eat for several hours and as a result would
17
In accordance with Dr. Cohen’s work restrictions, Thompson Reuters had placed Kouzmanoff on unpaid Family
and Medical Leave Act leave for 12 weeks, ending on July 1, 2016. (Statement ¶ 16.)
11
have hypoglycemic episodes which were a problem given his driving long distances.” (Id.) He
added that he saw Kouzmanoff on “May 31 and July 1 with treatment consisting of only minor
dose adjustments in his insulin.” (Id.; see also id. at 372–73 (follow up letter containing same
information and requesting comment, if necessary, from Dr. Cohen).) Based on this and the
information referenced above, Dr. Haller concluded:
In summary, although the records reflect the insured has had
poorly controlled diabetes, the evidence in the file supports that the
widely variable blood sugar readings were largely the result of the
insured’s choice to over-treat hyperglycemia and not maintain a
standardized diet despite recommendations to the contrary from his
treating physicians. The lack of restrictions from his treating
providers on his driving and other activities does not support that
he would be precluded by a medical condition from the above
referenced occupational demands. The 7/21/15 records of Kenneth
Cohen M.D. reflect the insured was planning retirement and Dr.
Cohen’s 2/23/16 records reflect the insured was planning “to go on
disability for the next 8 months prior to age 65 when he will
retire.”
(Id. at 379.) On October 21, 2016, Unum denied Kouzmanoff’s application for benefits under the
LTD Policy, and it denied his appeal on February 10, 2017. (Id. at 407–13, 481–87.) In its
decisions, Unum considered the physical and cognitive demands of the position, finding that it
involved frequent sitting, occasional standing, occasional walking, occasional lifting of up to 20
pounds, frequent reaching and handling, occasional keyboarding and stooping, influencing and
dealing with people, and making judgments and decisions. (Id. at 482.)18 Based on these
demands—and a review of the entire record, including relevant LTD Policy provisions—Unum
determined that “other than the period from December 30, 2015 to January 10, 2016 to allow him
to recover from his hospitalization, there is no support [for a conclusion] that he would be
limited from performing his regular occupation.” (Id. at 483.) In addition to what has already
18
“As performed in this national economy, this occupation calls for a ‘light’ level of physical exertion, as that
term is defined by the Dictionary of Occupational Titles.” (AR 482 (additionally providing definitions of
“occasionally,” “frequently,” and “constantly”).)
12
been discussed, Unum noted that light levels of exertion are actually healthy; when not traveling,
Kouzmanoff performed his work at a home office where he was free to monitor and regulate his
blood sugar; he was not complying with his treatment regimen; there is no evidence that he
remained restricted from driving or indeed had ceased driving; his work in the new position
demonstrated his cognitive capacity; his golf course job evidences his physical ability; and there
was no indication that he was being treated for a behavioral health condition related to his stress.
(Id. at 483–84.) Unsatisfied with that decision, Kouzmanoff filed the instant lawsuit.
II.
LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate only if there is no genuine dispute of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Whether there is a genuine dispute as to a material fact
depends upon whether the evidence presents a sufficient disagreement to require submission to a
jury or is so one–sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986). A fact is “material” if it pertains to an element of a claim or
defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went
to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In
considering whether summary judgment is appropriate, the facts must be considered in a light
most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461
(10th Cir. 2013) (citations omitted). “Statutory interpretation is a matter of law appropriate for
resolution on summary judgment.” Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160
(10th Cir. 2011).
13
B. ERISA Benefits Determination
Kouzmanoff’s claim against Unum is brought pursuant to 29 U.S.C. § 1132 (a)(1)(B),
which he and Unum agree affords de novo review of the administrative record.19 See Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 102 (1989) (“[D]enial of benefits challenged under §
1132(a)(1)(B) must be reviewed under a de novo standard unless the benefit plan expressly gives
the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or
to construe the plan’s terms, in which cases a deferential standard of review is appropriate.”).20
III.
ANALYSIS
A. Motion for Partial Summary Judgment
The Colorado Wage Claim Act, Colo. Rev. Stat. Ann. § 8-4-101, et seq., is designed to
ensure that employees are paid fully for any compensation they are owed by their employers.
Where an employer has refused or failed to pay an employee, the Act gives statutory rights to the
employee which can result in substantial damages and penalties if the employer refuses to
comply with those rights. The PSJ-Motion presents a narrow, specific legal question. Are shortterm disability benefits, as provided for in the STD Policy,21 “wages or compensation” under the
Colorado Wage Act? The Court must endeavor to interpret the Act.
When construing a state statute, courts ascertain and give effect to the intent of the
Colorado General Assembly and refrain from rendering judgments inconsistent with that
19
Scheduling Order, ECF No. 20, at 2–3 (both parties agreeing to de novo review).
20
Despite the parties’ agreement, the Court is not convinced that de novo review is the correct standard here. The
LTD Policy states that a person is disabled when “Unum determines” the same. (AR 60, 65.) This is the same
sort of “discretionary authority to determine eligibility for benefits” that the Supreme Court comprehended in
Firestone as not being subject to de novo review. While the Court will focus its analysis on whether Unum’s
denial of benefits withstands de novo review, it notes that Kouzsmanoff’s case unquestionably fails under the
more deferential abuse of discretion standard.
21
While the Complaint against Unum equivocates the LTD Policy with the word “Plan,” the Amended Complaint
against Thompson Reuters defines “Plan” with respect to the STD Policy. (Compare ECF No. 1 with ECF No.
55.) Thus, there is no Wage Act claim related to the LTD Policy. In his Response to the PSJ-Motion,
Kouzmanoff begins referring to the STD Policy as a “salary continuation plan.” (ECF No. 85, at 1–2.)
14
intent. Walker v. People, 932 P.2d 303, 309 (Colo. 1997); Farmers Ins. Exch. v. Bill Boom,
Inc., 961 P.2d 465, 469 (Colo. 1998). To determine legislative intent, courts look first to the
statute’s plain language. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997); City of
Westminster v. Dogan Constr. Co., 930 P.2d 585, 590 (Colo. 1997). If courts can give effect to
the ordinary meaning of words used by the legislature, the statute should be construed as written,
giving full effect to the words chosen, as it is presumed that the General Assembly meant what
said. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996); PDM
Molding, Inc. v. Stanberg, 898 P.2d 542, 545 (Colo. 1995); see also Colo. Rev. Stat. Ann. § 2-4101 (1999) (“Words and phrases shall be read in context and construed according to . . . common
usage.”). If the statutory language is clear and unambiguous, courts need not look
further. See Town of Superior v. Midcities Co., 933 P.2d 596, 600 (Colo. 1997); Boulder County
Bd. of Equalization v. M.D.C. Constr. Co., 830 P.2d 975, 980 (Colo. 1992). However, where the
words chosen by the legislature are unclear in their common understanding, or capable of two or
more constructions leading to different results, the statute is ambiguous. See Colby v.
Progressive Cas. Ins. Co., 928 P.2d 1298, 1302 (Colo. 1996); see also Robbins v. Chronister,
435 F.3d 1238, 1241 (10th Cir. 2006) (discussing disregard for the plain meaning if construing a
statute according to its terms would lead to an “absurd” result).
If a statute is ambiguous, courts move on to consider (a) the object sought to be attained;
(b) the circumstances under which the statute was enacted; (c) the legislative history, if any; (d)
the common law or former statutory provisions, including laws upon the same or similar
subjects; (e) the consequences of a particular construction; (f) the administrative construction of
the statute; and (g) the legislative declaration or purpose. Colo. Rev. Stat. Ann. § 2-4-203; see
also State v. Nieto, 993 P.2d 493, 500–01 (Colo. 2000).
15
Beginning with the Act’s plain language, “wages” or “compensation” means:
(I) All amounts for labor or service performed by employees,
whether the amount is fixed or ascertained by the standard of time,
task, piece, commission basis, or other method of calculating the
same or whether the labor or service is performed under contract,
subcontract, partnership, subpartnership, station plan, or other
agreement for the performance of labor or service if the labor or
service to be paid for is performed personally by the person
demanding payment. No amount is considered to be wages or
compensation until such amount is earned, vested, and
determinable, at which time such amount shall be payable to the
employee pursuant to this article.
(II) Bonuses or commissions earned for labor or services
performed in accordance with the terms of any agreement between
an employer and employee;
(III) Vacation pay earned in accordance with the terms of any
agreement. If an employer provides paid vacation for an employee,
the employer shall pay upon separation from employment all
vacation pay earned and determinable in accordance with the terms
of any agreement between the employer and the employee.
(b) “Wages” or “compensation” does not include severance pay.
Colo. Rev. Stat. Ann. § 8-4-101(14). The parties agree, per the plain words of the Act, that no
amount is a wage or compensation unless that same amount is “earned, vested, and
determinable.” But the Act also requires such an amount to be “for labor or service.” Obviously,
an amount—such as an inheritance or capital gain—could be earned, vested, and determinable
without being owed for labor or service. Thus, to find that the STD Policy benefits are wages or
compensation, a plain reading of the Act leaves Kouzmanoff with four hurdles to overcome: the
amounts must be (1) for-labor-or-service, (2) earned, (3) vested, and (4) determinable. Thompson
Reuters does not contest that the STD Policy benefits are determinable. (ECF No. 86, at 7.)
But there is some ambiguity in construing these terms in the Act. A symptom of this
problem is that the Colorado courts themselves have somewhat collapsed the definitions of
16
“earned,” “vested,” and “determinable” into each other. See Barnes v. Van Schaack Mortg., 787
P.2d 207, 209 (Colo. App. 1990) (“Under the Wage Claim Act, compensation is earned if it is
vested pursuant to an employment agreement at the time of an employee’s termination.”); Rohr
v. Ted Neiters Motor Co., 758 P.2d 186, 188 (Colo. App. 1988) (“[Employee’s] bonus was
earned and, therefore, became vested and determinable as of the date of termination, even though
not due and payable for two and one-half months thereafter.”).22 The Court thus moves beyond
the Act’s plain language to review its purpose and legislative history.
The “purpose of the [Act] is to ensure that wages are paid in a timely manner and to
provide adequate judicial relief in the event wages are not paid. The [Act] should be liberally
interpreted to serve its purpose. An employer is liable under the [Act] if the employer does not
pay an employee wages he or she earned.” Fang v. Showa Entetsu Co., 91 P.3d 419, 421 (Colo.
App. 2003) (internal citation omitted, emphasis supplied). After its enactment, parties hotly
litigated whether compensation such as bonuses and commissions yet unpaid had been “earned”
by the time of the employee’s discharge or resignation within the meaning of the Act. See, e.g.,
Barnes, 787 P.2d at 210 (concluding that a plaintiff loan originator did not “earn” commission
compensation under the employment agreement for loans that closed in the months following his
termination); Rohr, 758 P.2d at 187–88 (finding bonuses related to a profit-sharing plan to be
“earned” months before they were required to be paid). In 2003, the Colorado General Assembly
changed the definition of “compensation or wages” to include the “earned,” “vested,” and
“determinable” requirements. At that time, it also added clear substantive provisions clarifying
that commissions, bonuses, and vacation pay are wages—but only insofar as the same are earned
“in accordance with the terms of any agreement” between the employer and employee. That
22
Barnes and Rohr both pre-date the amendments to the Act discussed below.
17
language signals the General Assembly’s aversion to employees relying on indefinite, possible
remittances. Thus, the amendments reinforced the view, expressed in Barnes, that the “Act does
not itself create any substantive right to compensation for labor and services performed. Rather,
it establishes minimal requirements concerning when and how agreed compensation must be
paid.” Barnes, 787 P.2d at 210 (emphasis in original).
Based on its review of the language, purpose, and history of the Act, the Court finds that
Kouzmanoff has failed to show that STD Policy benefits are wages or compensation for two
reasons. First, these benefits are not “amounts for labor or services performed.” Thompson
Reuters only pays monies pursuant to this policy to the extent that an eligible employee is unable
to work. In opposite fashion to the profit-sharing bonuses at issue in Rohr, which increased as
profits increased according to a pre-determined calculus, STD Policy benefits are negatively
correlated to a Thompson Reuters employee’s performance: Policy benefits rise as his
productivity falls. As the STD Policy itself states, it is a non-wage cushion triggered if, and to the
extent, an employee is unable to labor: STD Policy benefits “replace[] a portion of [an
employee’s] income in the event of sickness or injury.” As Thompson Reuters points out,
Kouzmanoff’s claim fails because the disability benefits flow from his declared inability to work,
rather than from labor or service pursuant to the employment contract. (ECF No. 78, at 3.)
Even were the Court to temporarily assume that STD Policy benefits are for labor or
services, the Court does not view them as vest-able as a matter of law. As written, Kouzmanoff
cannot ever have a “completed, consummated right for present or future enjoyment; not
contingent; unconditional; absolute,” see Vested, Black’s Law Dictionary (10th ed. 2014), under
the STD Policy because Thompson Reuters retained the unilateral right to cancel the policy at
any time, for any reason or no reason at all. Disagreeing, Kouzmanoff likens these benefits to
18
vacation pay—which is not tethered to any concurrent work performed—now comprehended by
the Act. (ECF No. 84, at 6 (citing Colo. Rev. Stat. Ann. § 8-4-101(14)(a)(III)).) But while
vacation pay may be a cousin to the benefits at hand, it is a distant one. As discussed above, the
Act was amended to include, as wages, “[v]acation pay earned in accordance with the terms of
any agreement.” (Id. (emphasis supplied).). Thus, the amendment established vacation pay as
wages, but only insofar as the same is clearly provided for in a contract and accumulated as set
forth therein. By contrast, the STD Policy—established unilaterally by Thompson Reuters—
retains with its maker the power to cease short-term benefits altogether for any reason or no
reason at all. These benefits are better viewed as status perks, such as free parking or a cafeteria,
to which employees have no vested wage claim should an employer discontinue them. While
Kouzmanoff was fortunate to work for a company that kept the temporary disability of its
employees in mind with the STD Policy, to suggest that an employee has a vested statutory wage
interest in unilaterally terminable benefits would enlarge the Act far beyond its language and
purpose. Thus, summary judgment in favor of Thompson Reuters is appropriate on
Kouzmanoff’s claim under the Act.23
B. Based on the administrative record, Kouzmanoff is not entitled to Benefits
under the LTD Policy.
Kouzmanoff argues two broad categories of wrongs committed by Unum in denying him
LTD Policy benefits. First, he submits that Unum failed to consider his actual job duties in
finding that he was not disabled. (ECF No. 64, at 13–15.) Second, he urges that his inability to
work under a quota system, under stress, and with urgent time pressures rendered him disabled.
23
The Court here only narrowly decides that STD Policy benefits are not wages or compensation under the Act.
The mere circumstance that a company retains the right to discontinue a benefit does not mean, as a matter of
law, that it may not be held responsible for its failure to provide an active benefit. Whether the facts ultimately
show that Kouzmanoff was improperly denied short-term benefits by Thompson Reuters in this specific
instance remains to be determined at trial.
19
(Id. at 15–20.) Because the Court reviews de novo, it first divines the scope of the coverage at
issue before turning to whether the contents of the administrative record afford Kouzmanoff
benefits pursuant to the same. On these inquiries, “the insured has the burden of showing that a
covered loss has occurred, while the insurer has the burden of showing that a loss falls within an
exclusionary clause of the policy.” Pitman v. Blue Cross and Blue Shield of Okla., 217 F.3d at
1291, 1298 (10th Cir. 2000).
Turning to the coverage, courts interpret insurances policies according to their plain
meaning. Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818, 829 (10th Cir. 2008). “[T]he
proper inquiry is not what [the provider] intended a term to signify; rather, [courts] consider the
common and ordinary meaning as a reasonable person in the position of the plan participant
would have understood the words to mean.” Miller v. Monumental Life Ins. Co., 502 F.3d 1245,
1249 (10th Cir. 2007) (internal quotation marks and alterations omitted). Courts review an
ERISA benefits denial claim as “they would any other contract claim by looking to the terms of
the plan and other evidence of the parties’ intent. If plan documents are reviewed and found not
to be ambiguous, then they may be construed as a matter of law.” Cardoza v. United of Omaha
Life Ins. Co., 708 F.3d 1196, 1203 (10th Cir. 2013) (citations omitted). “Ambiguity exists when a
plan provision is reasonably susceptible to more than one meaning, or where there is uncertainty
as to the meaning of the term.” Admin. Comm. of Wal–Mart Assocs. Health & Welfare Plan v.
Willard, 393 F.3d 1119, 1123 (10th Cir. 2004) (internal quotation marks omitted). The contra
proferentem
doctrine, which
construes
all
ambiguities
against
the
drafter,
applies
to de novo review of ERISA plans. Miller, 502 F.3d at 1249, 1253. “ERISA imposes upon
providers a fiduciary duty similar to the one trustees owe trust beneficiaries. Just as a trustee
must conduct his dealings with a beneficiary with the utmost degree of honesty and transparency,
20
an ERISA provider is required to clearly delineate the scope of its obligations.” Id. at 1250
(internal citation omitted).
Under the LTD Policy, an employee is “disabled,” and therefore entitled to benefits, if he
is “limited from performing the material and substantial duties of [his] regular occupation due to
[a] sickness or injury; and [the employee] ha[s] a 20% or more loss in [ ] indexed monthly
earnings due to that same sickness or injury.” (AR 60 (emphasis supplied).)24 This standard
requires not only that a claimant have a sickness, but that such sickness cause a performance
limitation and at least a 20% reduction in earnings. (See id. at 50 (“Your proof of claim . . . must
show . . . the cause of your disability.”).) The Court finds that Kouzmanoff has failed overcome
his hurdle to show—by a preponderance of the evidence—either that (1) that he had any
occupational limitations at all or that (2) his diabetes is the cause of any would-be limitation.
1. Kouzmanoff has not proven occupational limitations.
The parties agree on the scope of Kouzmanoff’s material and substantial duties as a Field
Account Manager. He was to achieve business objectives and sales revenue targets within his
geographic territory, work in a highly competitive environment under a quota system, build and
maintain strong relationships, meet urgent deadlines, travel, and work from a home office. Unum
analyzed these demands with respect to nationwide occupational standards, walking through the
physical and cognitive requirements in terms of established U.S. Department of Labor national
economy performance expectations.
As evidence of inability to rise to these challenges, Kouzmanoff only addresses his
specific occupational demands, rather than those which are reflected by an analysis of his
position in the national economy. Kouzmanoff provided medical records from three doctors—
24
“Regular Occupation” means the occupation an employee is routinely performing as it is normally performed in
the national economy. (AR 78.)
21
Dr. Cohen, who suggested that he should not perform the quota-related, stressful, or timesensitive aspects of his specific occupation; Dr. Cassara, who found no occupational or physical
limitations whatsoever; and Dr. Tsvetkova, who reported only that Kouzmanoff felt good and
had no complaints. Kouzmanoff himself intimated on April 5, 2016 that he felt to be in his
“prime” and would be ready to return to work “tomorrow.” He even picked up a new job at the
golf course and lifted weights, both of which further evidence his physical capabilities.
Moreover, the record is bereft of facts undermining Kouzmanoff’s mental acuity, nor does it
illustrate any connection between diabetes and impaired cognitive function. That said,
Kouzmanoff highlights what he believes to be a determinative fact: Thompson Reuters offered
him a more relaxed replacement job. But that offering, provided in response to Dr. Cohen’s
assessment and Kouzmanoff’s representation that he would not return to work in his previous
capacity, does not bear on whether Kouzmanoff was actually capable—mentally or physically—
of performing under stress or meeting the other cognitive demands of his prior role, and the
Court does not assume that Thompson Reuters’s made a correct evaluation. In fact, there is no
evidence that the two roles demanded varying qualifications or abilities as they would be
understood in the national economy—even if the latter just so happened to cause Kouzmanoff
less stress. On the available record, the Court is not persuaded that any profession—“Field
Account Manager,” “Sales Consultant,” or “Lakewood Golf Course Caretaker” included—is
stress-free. And at any rate, “stress” is not a diagnosed disability for which Kouzmanoff claimed
entitlement to benefits. Nor does the record reflect that he is more stress-prone than any abled
laborer. Additionally, the record does not indicate that Kouzmanoff’s diabetes, poorly managed
as it was, is disabling: It had no recorded effect on his performance and certainly did not keep
him from working, even in 2015, when he outright refused to reduce his hours, or in 2016, when
22
he was feeling in his prime. Moreover, there is no medical data showing continued poor blood
sugar readings. Finally, Kouzmanoff has a not shown how he met the elimination period
requirements—especially considering his representations about how healthy he felt at the same
time he was claiming a right to disability benefits.
2. Even if the Court assumes Kouzmanoff had an occupational limitation,
Kouzmanoff has not shown by a preponderance of the evidence that his
diabetes was the limitation’s source.
For a moment, the Court assumes that “the inability to work under a quota system [and]
under stress and urgent time pressures” is a limiting disability. (ECF No. 64, at 15.) But here,
what is this disability’s cause? The Court has no doubt that Kouzmanoff’s diabetes does not
make his working life any easier. But Kouzmanoff says his diabetes “rendered him unable to
endure these conditions of employment.” (Id. at 16.) The Court first determines what level of
causation the LTD Policy requires before turning to whether the record supports finding—by a
preponderance of the evidence—that Kouzmanoff’s diabetes caused him to be disabled.
In the ERISA plan context, the Tenth Circuit had found the phrase “due to” to be
ambiguous: “The words do not speak clearly and unambiguously for themselves. The causal
nexus of ‘due to’ has been given a broad variety of meanings in the law ranging from sole
and proximate cause at one end of the spectrum to contributing cause at the other.” Kimber v.
Thiokol Corp., 196 F.3d 1092, 1100 (10th Cir. 1999). In Kimber, the Circuit evaluated the
district court’s affirmation, under an arbitrary and capricious standard, of a plan administrator’s
determination that the “due to” language in the plan required disability be “due, at least in
significant part, to” a mental condition. Id. In upholding the district court—and thus, the
administrator—the Circuit found that when “given authority to interpret the plan language, and
more than one interpretation is rational, the [interpreter] can choose any rational alternative.
23
Requiring a ‘significant’ relationship between the condition and the disability is a rational
interpretation.” Id. (further noting that the “due to” language was ambiguous and open to
interpretation); see also Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818, 832–33 (10th Cir.
2008) (discussing appropriate cause standard in ERISA plan context and noting the First
Circuit’s rejection of a complicated proximate cause analysis in favor of “viewing the policy as
an ordinary policyholder would”). Here, reviewing de novo, the Court sits in the same capacity
as the plan administrator in Kimber and may opt to analyze the “due to” language in the LTD
Policy under any rational causation standard.25
Using the language discussed in Kimber, the Court sees no significant relationship
between Kouzmanoff’s diabetes and his professed occupational limitations. The causes proffered
by both sides include diabetes, heart problems, work-related stress, a quadruple type-A
personality, burnout, and improper disease management by Kouzmanoff himself. Without any
evidence that Kouzmanoff was physically limited for the long term—and with substantial
evidence to the contrary—the Court narrows on whether his diabetes bears a substantial nexus to
his inability to cope with the cognitive pressures of his position.
Of the potential causation candidates, the Court views diabetes as the least fairly
attributable source of Kouzmanoff’s mental occupational difficulties. Tellingly, when
Kouzmanoff left his position—only to start a side project cutting grass—he felt himself to be in
excellent shape and healthy, but did not want to return for fear of continued stress, deadlines, and
potentially missing out on a bonus. He was reticent to re-enter a stressful environment and hit
sales figures because he knew—based on performance the previous year—the potential financial
detriment of suboptimal achievement. The record does not reflect that his diabetes is the variable
25
See note 21, supra (questioning appropriate standard of review).
24
that governs whether or not he can work. As even his most sympathetic doctor maintained,
Kouzmanoff’s work-related stress, habits, diet, medication inconsistency, and highly driven
personality (or some combination thereof) contributed to his diabetes mismanagement, and these
are the only recorded factors which mark the difference between the person who was able to
work and the one who claims he no longer can. Stated another way, Kouzmanoff had diabetes in
2014 and diabetes and stress in 2016, and it was only in 2016 when Kouzmanoff felt he had to
cease working. Thus, to the extent he could be thought of as disabled, such disability was not the
result of diabetes but of the other listed factor(s), and, as stated above, Kouzmanoff has not
proved by any available method that he was disabled by reason of one of the same. At bottom,
considering the whole administrative record and mindful of his burden of proof, Kouzmanoff has
not shown to the Court, by a preponderance of the evidence, that the cause of his alleged work
disability was anything other than work itself. Judgment in favor of Unum is appropriate.
IV.
CONCLUSION
For the foregoing reasons, the PSJ-Motion (ECF No. 78) is GRANTED. The
administrative record (ECF Nos. 69, 69-1, 75) is resolved in favor of Unum. The Court
AFFIRMS Unum’s decision to not pay LTD Policy benefits to Kouzmanoff, and the Complaint
against Unum (ECF No. 1) is DISMISSED with prejudice.
DATED this 15th day of March, 2019.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
25
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