Campbell v. Hartford Life and Accident Insurance Company
Filing
41
ORDER AND OPINION granting 21 Defendant's Motion for Summary Judgment; denying 23 Plaintiff's Motion for Summary Judgment. Signed by Judge Kenneth A. Marra on 10/15/2018. See attached document for full details. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-80193-CIV-MARRA
PATRICIA A. CAMPBELL,
Plaintiff,
vs.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.
__________________________/
ORDER AND OPINION ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant’s Motion for Summary
Judgment [DE 21] and Plaintiff’s Motion for Summary Judgment [DE 23]. The Court
has carefully considered the entire Court file and is otherwise fully advised in the
premises.
Undisputed Material Facts1
1.
Plaintiff Patricia A. Campbell (“Campbell”) brings the present action against
Hartford Life and Accident Insurance Company (“Hartford”) pursuant to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001, et
seq.
1
Plaintiff’s citations to the Administrative Record are designated with the
letters “AR” followed by the stamped page number. Defendant’s citations to the
Administrative Record are designated with the letter “H” followed by the stamped or
printed page number.
2.
As an employee of Unify Inc. (“Unify”), Campbell had long-term disability
(“LTD”) coverage through her participation in an employee welfare benefit plan
known as the Group Long Term Disability Plan for Employees of Unify Inc. (the
“Plan”). H-1017; DE 1, pg. 1-2, ¶¶ 3-5, and pg. 4, ¶ 21.
3.
The Plan was funded through a group policy (the “Policy”) issued to Unify by
Hartford, which served as claim administrator for the Plan. H-978-1021; DE 1, pg. 2,
¶¶ 9, 11.
4.
The Policy identifies Florida as its “Place of Delivery.” H-978.
5.
The Policy states that Hartford has “full discretion and authority to determine
eligibility for benefits and to construe and interpret all terms and provisions.”
H-1004.
6.
According to the Policy,
Disability or Disabled means You are prevented from performing one or
more of the Essential Duties2 of:
1) Your Occupation during the Elimination Period;
2) Your Occupation for the 24 month(s) following the
Elimination Period . . .; and
3) after that, Any Occupation.
H-1005.
2
Essential Duty is a defined Policy term incorporated into the definition of
Disability and “means a duty that (1) is substantial, not incidental; (2) is fundamental
or inherent to the occupation; and (3) cannot be reasonably omitted or changed.
Your ability to work the number of hours in Your regularly scheduled work week is an
Essential Duty.” H-1005.
Page 2 of 23
7.
The Policy further provides, in pertinent part, that if benefits are approved,
they will terminate on “the date You are no longer Disabled . . .” H-998.
8.
Prior to claiming disability, Campbell was employed by Unify as a software
engineer, a sedentary position that principally required sitting and computer/desk
work. H-33, 71, 894-895. Campbell ceased work effective June 12, 2014, and
subsequently claimed LTD benefits. H-69, 907-911.
9.
In an Attending Physician’s Statement of Continuing Disability (“APS”) dated
July 10, 2014, treating neurologist Richard Bailyn, M.D. advised Hartford that
Campbell had back and spinal operations in 2008, 2009, and 2011, that she could not
work without restrictions and that she could not return to work with restrictions.
Specifically, Dr. Bailyn concluded that Campbell could not stand longer than 30
minutes and could not sit longer than 30 minutes. H-654.
10.
On August 6, 2014, Dr. Bailyn wrote that Campbell
has developed progressively disabling low back pain. Her neurologic
examination is remarkable for significant loss of mobility at the
thoracolumbar region and for distal left lower extremity muscle
weakness. The patient reports that sitting or standing for periods of
time longer than one hour causes intolerable pain, which is only
sometimes relieved by walking. The patient’s neurosurgeon, Dr. Barth
Green, has determined that no further surgical intervention would be of
advantage. The patient has not benefitted from participation in
physical therapy, nor from provision of epidural steroid injections. . . In
as much as she has exhausted all feasible treatments for management of
low back pain, there is no further specific treatment plan available to
return her to her functional abilities.
H-655.
Page 3 of 23
11.
To assist Hartford’s evaluation of the claim, an independent peer review was
conducted at Hartford’s request by board certified neurologist Joseph Jares, M.D.,
who furnished a report dated November 26, 2014. H-591-600. Dr. Jares opined that
as of the date she ceased work “to the present date and beyond, the claimant may
perform as follows: She may sit no more than 30 minutes at one time and no more
than 2 hours total in an 8-hour work shift. She may stand no more than 10 minutes at
a time and no more than 1 hour total in an 8-hour work shift. She may walk no more
than 10 minutes at a time and no more than 1 hour total in an 8-hour work shift. . .”
H-598.
12.
Based on Dr. Jares’ report indicating Campbell was incapable of full-time
sedentary work, Campbell’s LTD claim was approved with benefits effective
December 11, 2014. H-44, 126-129.
13.
In a follow-up APS dated June 25, 2015, treating neurologist Dr. Bailyn
certified that she could not sit or stand for longer than 30 minutes at a time or for
longer than 2 hours total per day. H-561-562.
14.
In a treatment note dated September 15, 2015, Dr. Bailyn stated that
“symptoms of lumbosacral radiculopathy are unchanged,” but it was also noted that
she “exercises 5-7 days per week and has initiated a weight loss program.” Dr. Bailyn
indicated that he encouraged Campbell to continue exercising and to continue her
efforts to lose weight. H-552.
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15.
In order to assess Campbell’s objective functionality, video surveillance was
conducted by an investigative firm at Hartford’s request on October 6-7, 2015.
H-528-535. Campbell was filmed driving, running errands, and going to the gym. On
October 7, 2015, she was observed (in the words of the investigator) “performing a
rowing exercise, working out her arms, working out her shoulders, performing
abdominal crunches on a machine, performing calf exercises on a machine, and
utilizing an elliptical machine.” H-534. Campbell was observed continuously using
the elliptical machine for over 27 minutes and did not appear to be in pain at any
point during the surveillance. DE 28, H-162.
16.
On November 5, 2015, Campbell was interviewed in her attorney’s office by a
Hartford investigator, who recorded the interview. H-917-938. Campbell informed
the investigator, among other things, that she worked out in a gym five days per
week, for one hour and 20 minutes per session. H-920.
17.
On January 28, 2016, Hartford sent the surveillance video, the surveillance
investigator’s report, and the interview transcript to treating neurologist Dr. Bailyn,
with a letter requesting that he consider those materials in conjunction with his
medical findings and advise Hartford whether Campbell was capable of full-time
work. H-474-475. Specifically, Hartford asked Dr. Bailyn to check “Yes” or “No” in
response to the following:
Specifically, we are asking your medical opinion as to whether Ms.
Campbell currently has the functionality to perform activity as
follows: 40 hours per week, primarily seated in nature, with
Page 5 of 23
occasional walking and standing and[] allows for full use of the upper
extremities. Lifting/carrying will be limited to 0-10 pounds on an
occasional basis. Afforded will be the opportunity to change
positions/postures as needed for comfort (by walking, standing, or
moving about).
H-474 (bold type in original). On February 1, 2016, Dr. Bailyn checked “Yes,” signed
the letter and returned it to Hartford. H-474-475. He also indicated that Campbell
did not have any cognitive restrictions or limitations. H-475.
18.
In correspondence dated February 17, 2016, Hartford advised Campbell that
her LTD benefits were terminated effective February 17, 2016, based principally on
the surveillance and Dr. Bailyn’s statement that she was capable of full time
sedentary work. H-91-95.
19.
Campbell appealed the termination decision in correspondence dated August
11, 2016. H-186-198. Enclosed with the appeal letter were updated medical records
evidencing that she underwent shoulder surgery on May 14, 2016, following a fracture
sustained in a recent fall. H-233-236. There were no reported complications from
the surgery. Id.
20.
Also submitted in support of the appeal was a July 18, 2016 Comprehensive
Rehabilitation Evaluation and Medical Functional Capacity Assessment conducted at
Campbell’s request by Craig Lichtblau, M.D., board certified in Physical Medicine &
Rehabilitation. H-281-364. Dr. Lichtblau listed and considered the extensive
diagnostic and surgical procedures Campbell has undergone since 2007. AR 489-507.
Dr. Lichtblau concluded that Campbell “does not have the functional capacity to work
Page 6 of 23
4 hours per day on an uninterrupted basis at this time.”3 H-363. Stating that
Campbell “is going to suffer from acute, intermittent exacerbations of chronic pain
and discomfort,” Dr. Lichtblau further opined that it was his medical opinion as a
Board Certified Physiatrist that Campbell would be unable to maintain gainful
employment in the competitive open labor market or in a sheltered work
environment with a benevolent employer secondary to acute, intermittent
exacerbations of chronic pain. AR 0569.
21.
Dr. Lichtblau noted his opinion that, as Campbell suffers the secondary effects
of aging, her disability will increase over time. AR 0558. Dr. Lichtblau did not,
however, have the benefit of Hartford’s surveillance video.
22.
To assist Hartford’s evaluation of the appeal, an independent peer review was
conducted by Sarah White, M.D., also board certified in Physical Medicine and
Rehabilitation, who reviewed the surveillance video as well as all available medical
records. H-158-166. Dr. White's review did not involve a physical personal evaluation
of Campbell. AR 0632.
23.
On August 31, 2016, Dr. White called Dr. Lichtblau to discuss Campbell's
physical capacity and functionality “from a structural/physical perspective.” Dr.
Lichtblau stated that Campbell had very extensive diagnoses and that Campbell could
not work. She would “never be going back to work.” Her multiple surgeries were
3
Dr. Lichtblau’s examination occurred five months after the termination of
benefits and after Campbell had undergone surgery.
Page 7 of 23
unsuccessful. If Campbell tried to return to work, Dr. Lichtblau stated she would miss
many days of work due to pain, and therefore working was not possible. AR 0634.
24.
Dr. White reviewed the video surveillance performed on October 6-7, 2015,
and noted
[d]uring this time frame, Ms. Campbell was observed walking, driving,
carrying a purse over her left arm, carrying an item in her left hand,
carrying keys in her right hand, entering a car, exiting a car, carrying a
bottle of water with her right hand, carrying a purse over her left
shoulder, drinking from a water bottle, entering an Aerobics and Fitness
Center, lifting weights on machines, pulling weights in a rowing motion
on a weight machine, using a shoulder abduction machine, abducting
both shoulders to 90 degrees, using an abdominal crunch machine, using
a lower extremity strengthening machine, and using an elliptical
machine continuously for 27 minutes and 22 seconds. During the video
surveillance, she did not have any evidence of antalgia during
ambulation. There were no ambulatory assistive devices or visible
braces or supports. Her motions were smooth and fluid and there was
no evidence that she was in pain during the observed activities.
H-162.
25.
Dr. White's concern was “whether the diagnoses of cervical, thoracic, and
lumbar disc disease, tethered spinal cord, diastematomyelia, [and] release of
tethered spinal cord . . . preclude[d] Campbell from performing all activities.” Dr.
White concluded, “[i]n weighing all the evidence, despite the inconsistencies, the
medical documentation supports partial functional impairment . . . Restrictions and
limitations would include lifting, carrying, pushing, or pulling up to 15 pounds
occasionally and 10 pounds frequently as of 2/18/16. As of 5/13/16 she would have
the additional restriction of use of right upper extremity until 11/13/16.” H-164.
Page 8 of 23
26.
Dr. White disagreed with Dr. Lichtblau's opinions regarding Campbell's limited
function and work status as noted in his report of July 18, 2016. She opined, “[t]he
findings on the video surveillance are inconsistent with an inability to perform all
activities/work.” H-165.
27.
Dr. White noted: “She has no sitting restrictions. She can stand or walk up to
one hour continuously and up to 3 hours total per 8 hour work day. She should be
allowed to change position between sitting, standing and walking as needed for
comfort.” Id.
28.
Dr. White noted Campbell would have been able to sustain a full-time work
schedule on a regular basis as of February 18, 2016, with the restrictions and
limitation she noted. AR 0640.
29.
In a report dated September 8, 2016, Dr. White advised that:
The observed activities on the video surveillance are inconsistent with
an inability to perform all activities. The inconsistencies with regard to
her self-reported inability to work and the findings on the video
surveillance lead one to question Ms. Campbell’s credibility. Ms.
Campbell’s work limitations and restrictions as of 02/18/16 include
lifting, carrying, pushing, and pulling up to 15 pounds occasionally and
10 pounds frequently. . . As of 05/13/16 she would have the additional
restriction of no use of right upper extremity until 11/13/16. . . She has
no sitting restrictions. She can stand or walk occasionally up to one
hour continuously and up to 3 hours total per 8 hour work day. . .
Within a reasonable degree of medical certainty, claimant would have
been able to sustain a full-time work schedule on a regular basis as of
02/18/16 with the restrictions and/or limitations outlined above.
H-165-166; AR 0638.
Page 9 of 23
30.
In correspondence dated September 22, 2016, Hartford notified Campbell of
the decision to uphold on appeal the termination of her LTD claim, based primarily on
the surveillance evidence, Dr. White’s review, and treating physician Dr. Bailyn’s
confirmation of full-time sedentary work capacity. H-77-86. Noting that Dr.
Lichtblau had examined Campbell in July 2016 (subsequent to her May 2016 shoulder
surgery), Hartford explained that Dr. Lichtblau’s findings were unlikely to be
representative of her functional abilities when benefits were terminated in February
2016.4 H-84, see Undisputed Material Facts (“UMF”) ¶ 18.
31.
On August 11, 2016, Campbell's counsel sent Hartford a written request to
reverse its decision to cut off Campbell's long-term disability payments previously
provided to Campbell. AR 0652, et seq. Campbell's appeal noted the supporting
opinions of Hartford’s own consultant, Dr. Jares, and of Hartford’s in-house
rehabilitation consultant, and that Hartford’s decision to discontinue disability
benefits was based on Campbell's course of conservative treatment. AR 0653.
32.
Campbell's August 11, 2016 appeal letter notes that Campbell told Hartford’s
field investigator that she was encouraged by her previous physician to exercise to
attempt to alleviate her pain by strengthening her core and that she had met with a
personal trainer and been instructed how to use the machines. They had worked out
4
Where, as here, an ERISA claim administrator pays disability benefits for a
time and then terminates them, the Plaintiff must prove that he or she was disabled
at the time benefits were terminated. Sobh v. Hartford Life and Accident Ins. Co.,
658 F.App’x 459, 464-65 (11th Cir. 2016).
Page 10 of 23
a safe routine, which eventually she was able to do on her own. She felt safe,
because she could always hang on to something while she used the machines. She
had increased the frequency of her workouts but not extended their duration. She
sensed some improvement in strength but no significant improvement in her pain. AR
0655.
33.
Campbell's appeal letter noted that Hartford’s claim file implied that Hartford
had already determined to discontinue Campbell's disability benefits before it asked
Dr. Bailyn to agree or not with Hartford's decision. AR 0657.
ERISA Standard of Review
Denials of ERISA benefits are governed by 29 U.S.C. § 1132(a)(1)(B). Under
ERISA's civil enforcement provisions, a plan participant may bring a civil action
against the plan administrator to recover wrongfully denied benefits due under the
terms of the plan. 29 U.S.C. § 1132(a)(1). In such cases, the insured bears the
burden of proving that she is disabled. Glazer v. Reliance Standard Life Ins. Co., 524
F.3d 1241, 1247 (11th Cir. 2008).
In reviewing a benefits-denial decision, a district court operates as an
appellate tribunal. Curran v. Kemper Nat. Servs., Inc., No. 04–14097, 2005 WL
894840, at *7 (11th Cir. March 16, 2005) (“In an ERISA benefit denial case ... in a very
real sense, the district court sits more as an appellate tribunal than as a trial court.
It does not take evidence, but, rather, evaluates the reasonableness of an
administrative determination in light of the record compiled before the plan
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fiduciary.”); see also, Garrett v. Prudential Ins. Co. of Am., 107 F. Supp. 3d 1255,
1264 (M.D. Fla. 2015) (“Garrett”); Crume v. Met. Life Ins. Co., 417 F. Supp. 2d 1258,
1272 (M.D. Fla. 2006) (“Crume”); Providence v. Hartford Life & Acc. Ins. Co., 357 F.
Supp. 2d 1341, 1342 (M.D. Fla. 2005). As a result, the usual summary judgment
standard under either Rule 52 or Rule 56 of the Federal Rules of Civil Procedure does
not apply. See Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 n.4 (11th Cir.
2011); Crume, 417 F. Supp. 2d at 1272.
Although ERISA does not prescribe a particular standard of review for decisions
made by plan administrators, there are two possible options: (1) the deferential
arbitrary and capricious standard, which applies when the benefit plan gives the
administrator “discretionary authority to determine eligibility benefits or construe
the terms of the plan,” or (2) the de novo standard, which applies in the absence of
such discretionary authority.5 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 117-19
5
There used to be a third possible standard of review — the heightened
arbitrary and capricious standard — which applied when the administrator was
granted discretion but had a conflict of interest by being responsible for both
reviewing and paying claims. Compare Capone v. Aetna Life Ins. Co., 592 F.3d 1189,
1195 (11th Cir. 2010) with Buckley v. Metro. Life¸ 115 F.3d 936, 939 (11th Cir. 1997).
The Supreme Court called that standard into question in Glenn, 554 U.S. at 128. The
Eleventh Circuit recognized the Supreme Court’s repudiation of the heightened
arbitrary and capricious standard in Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d
1352, 1359 (11th Cir. 2008) (“Doyle”), finding that “the existence of a conflict of
interest should merely be a factor for the district court to take into account when
determining whether an administrator’s decision was arbitrary and capricious.” Id. at
1360. Therefore, the sixth step for reviewing an administrator’s benefits decision
now reflects that an administrator’s conflict of interest is merely a factor taken into
account during the analysis. See Garrett, 107 F. Supp. 3d at 1263-64; Atherley v.
Page 12 of 23
(2008) (“Glenn”); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)
(“Firestone”); Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355-56 (11th Cir.
2011) (“Blankenship”); Carr v. John Hancock Life Insur. Co. (USA), 703 F.App’x 733,
740 (11th Cir. 2017) (“Carr”); Miller v. Prudential Ins. Co. of Am., 625 F. Supp .2d
1256, 1261-62 (S.D. Fla. 2008). The applicable standard of review ultimately impacts
the six-step6 analysis for reviewing an administrator’s benefits decision:
(1)
Apply the de novo standard to determine whether the claim administrator's
benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator's
decision); if it is not, then end the inquiry and affirm the decision.
(2)
If the administrator's decision in fact is “de novo wrong,” then determine
whether he was vested with discretion in reviewing claims; if not, end the inquiry and
reverse the decision.
(3)
If the administrator's decision is “de novo wrong” and he was vested with
discretion in reviewing claims, then determine whether “reasonable” grounds
supported it (hence, review his decision under the more deferential arbitrary and
capricious standard).
(4)
If no reasonable grounds exist, then end the inquiry and reverse the
administrator's decision; if reasonable grounds do exist, then determine if he
operated under a conflict of interest.
(5)
If there is no conflict, then end the inquiry and affirm the decision.
(6)
If there is a conflict, the conflict should merely be a factor for the court to
take into account when determining whether an administrator's decision was arbitrary
UnitedHealthcare of Fla., Inc., 17-cv-332, 2018 WL 1605837, at *2–3 (M.D. Fla. April 3,
2018).
6
These steps were first established in Williams v. BellSouth Telecomm., Inc.,
373 F.3d 1132 (11th Cir. 2004) (“Williams”) (overruled on other grounds by Doyle) and
modified in Doyle based on the Supreme Court's decision in Glenn. Blankenship, 644
F.3d at 1354–55 (citing Williams, 373 F.3d at 1137–38; Doyle, 542 F.3d at 1359–60).
Page 13 of 23
and capricious.
Blankenship, 644 F.3d at 1355 (citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189,
1195 (11th Cir. 2010)). “Whether the plan administrator's decision was either de novo
correct or reasonable under this Circuit's Williams framework is a question of law.”
Id. at 1354. Additionally, “[r]eview of the plan administrator's denial of benefits is
limited to consideration of the material available to the administrator at the time it
made its decision.” Id.; Carr, 703 F.App’x at 740.
The Standard of Review in This Case
The Court must first determine what is the standard of review, de novo or
arbitrary and capricious. The question of which standard applies is answered by
determining whether the Plan granted discretionary authority to Hartford. The
arbitrary and capricious standard of review applies if the administrator has been
vested with “discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone, 489 U.S. at 115; Alexandra H. v. Oxford
Health Ins. Inc. Freedom Access Plan, 833 F.3d 1299, 1312 (11th Cir. 2016); HCA Health
Servs. of Ga., Inc. v. Emp’rs Health Ins. Co., 240 F.3d 982, 993 (11th Cir. 2001),
overruled on other grounds by Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352
(11th Cir. 2008); Eastman v. Life Insur. Co. of N. Am., – F. Supp. 3d –, 17-cv-649, 2018
WL 3688983, at *1 (M.D. Ala. July 26, 2018); Otero v. Unum Life Insur. Co. of Am.,
226 F. Supp. 3d 1242, 1260 (N.D. Ala. 2017); Hunt v. Hawthorne Assocs., Inc., 119
F.3d 888, 912 (11th Cir. 1997); Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d
Page 14 of 23
1137, 1139 (11th Cir. 1989); Applegate v. Liberty Life Assur. Co. of Bos., No.
17-cv-130, 2018 WL 1010839, at *2-3 (M.D. Fla. Feb. 22, 2018).
Here, the parties agree that the Policy unambiguously grants Hartford
discretionary authority to construe its terms and determine eligibility for benefits
thereunder. H-1004; DE 21 ¶ 5, DE 32 ¶ 3. Thus, the Court will begin the analysis at
step three of the Eleventh Circuit’s framework because “even assuming that
[Defendant’s] decision was ‘de novo wrong’ ... the dispositive question is whether
[Defendant’s] decision was arbitrary and capricious.” Prelutsky v. Greater Ga. Life
Ins. Co., 692 F.App’x 969, 972 (11th Cir. 2017); see also Frame v. Hartford Life &
Accident Ins. Co., 257 F. Supp. 3d 1268, 1274 (M.D. Fla. 2017), appeal dismissed, No.
17–13096–GG, 2017 WL 4708088 (11th Cir. Sept. 22, 2017).
“When conducting a review of an ERISA benefits denial under an arbitrary and
capricious standard (sometimes used interchangeably with an abuse of discretion
standard), the function of the court is to determine whether there was a reasonable
basis for the decision, based upon the facts as known to the administrator at the time
the decision was made.” Glazer v. Reliance Standard Life Ins. Co., 514 F.3d 1241,
1246 (11th Cir. 2008). If there is a reasonable basis, the decision “must be upheld as
not being arbitrary or capricious, even if there is evidence that would support a
contrary decision,” White v. The Coca–Cola Co., 542 F.3d 848, 856 (11th Cir. 2008),
cert. denied, 556 U.S. 1166 (2009) (internal citation and quotation omitted), or “[if]
the court or anyone else might reach a different conclusion.” Turner v. Delta
Page 15 of 23
Family–Care Disability and Survivorship Plan, 291 F.3d 1270, 1274 (11th Cir. 2002).
The administrator's decision “need not be the best possible decision, only one with a
rational justification.” Griffis v. Delta Family-Care Disability, 723 F.2d 822, 825 (11th
Cir. 1984). Similarly, if the “evidence is close,” the administrator did not abuse its
discretion, and the requisite deference compels the affirmance of the administrator’s
decision. Doyle, 542 F.3d at 1363.
A pertinent conflict of interest exists where the ERISA plan administrator both
makes eligibility decisions and pays awarded benefits out of its own funds, as in this
case. See Glenn, 554 U.S. at 112. “The presence of a structural conflict of interest
— an unremarkable fact in today's marketplace — constitutes no license, in itself, for
a court to enforce its own preferred de novo ruling about a benefits decision.”
Blankenship, 644 F.3d at 1356 citing Glenn, 554 U.S. at 120 (“The conflict of interest
... is a common feature of ERISA plans.”) (Roberts, C.J., concurring in part and
concurring in the judgment). “Courts must account for a structural conflict of
interest, when one exists, as ‘a factor’ in the analysis: but the basic analysis still
centers on assessing whether a reasonable basis existed for the administrator's
benefits decision.” Blankenship, 644 F.3d at 1355 citing Conkright v. Frommert, 559
U.S. 506, 521 (2010). Even where a conflict of interest exists, courts still “owe
deference” to the plan administrator's “discretionary decision-making” as a whole.7
7
The deference is due both for the administrator's plan interpretations and for
his factual determinations. Blankenship, 644 F.3d at 1355–56 citing Torres v. Pittston
Page 16 of 23
Doyle, 542 F.3d at 1363; see also Glenn, 554 U.S. at 121 (Roberts, C.J., concurring in
part and concurring in the judgment) (noting the “deference owed to plan
administrators when the plan vests discretion in them”).
Where a conflict exists and a court must reach step six, “the burden remains
on the plaintiff to show the decision was arbitrary; it is not the defendant's burden to
prove its decision was not tainted by self-interest.” Doyle, 542 F.3d at 1360. If “no
reasonable basis exists for the decision,” then the decision is arbitrary and
capricious. Braden v. Aetna Life Ins. Co., 597 F.App’x 562, 565 (11th Cir. 2014)
(quoting Shannon v. Jack Eckerd Corp., 113 F.3d 208, 210 (11th Cir. 1997) (internal
quotation marks omitted)).
Based on the administrative record in this case, the Court concludes that the
plan administrator possessed a reasonable basis for its benefit decision and that
Hartford’s conflict of interest did not render that decision arbitrary and capricious.
Discussion
Plaintiff’s motion consists of five pages of history and facts (in addition to a
separately filed Statement of Material Facts Not in Dispute), five pages of argument
relative to the standard of review,8 and three paragraphs addressing why the Court
Co., 346 F.3d 1324, 1326 (11th Cir. 2003).
8
The Court rejects Plaintiff’s arguments that the standard of review should be
de novo based on a Second Circuit opinion that states “a plan’s failure to establish or
follow the claims-procedure regulation entitles the claimant to have his or her claim
reviewed de novo in federal court.” Halo v. Yale Health Plan, 819 F.3d 42, 53 (2d
Cir. 2016). The Court need not consider this contention because Campbell has not
Page 17 of 23
should order Hartford to resume paying her LTD benefits (DE 23 ¶¶ 37-39). Campbell
asserts two arguments in her three paragraphs. Her first argument is that there was
no “rational reason” for ordering surveillance because she “was being treated
conservatively.” Her second argument is that it is “astonishing” that Dr. White
concluded
that Campbell had no restrictions as to sitting, allegedly based on video
surveillance of less than 38 minutes over two days where by the peer
reviewer’s own account about 23 minutes of the video was taken up
with Campbell’s using an elliptical machine. The video scarcely shows
Campbell in a seated position at all. How one could reject Campbell’s
well documented complaints of pain in her low back based on the video
surveillance is impossible to surmise. Indeed, Campbell herself gave a
full and detailed account of Dr. Green’s initially recommending core
strengthening and other exercise and how she had worked with a
personal trainer to develop a safe set of exercises which she could
perform without endangering herself.
DE 23 at 11-12.
Plaintiff’s claim of disability rests on her assertion that she cannot perform her
supplied any evidence to support a conclusion that a regulatory infraction occurred.
Campbell’s second argument in support of de novo review is that the Policy, being
issued by a California “Employer/Plan Sponsor,” is subject to California’s ban on
discretionary provisions in disability insurance policies. Orzechowski v. Boeing Co.
Non-Union Long-Term Disability Plan, Plan No. 625, 856 F.3d 686, 695 (9th Cir. 2017)
(ERISA did not preempt California Insurance Code § 10110.6 making discretionary
language in insurance plans void and unenforceable). This argument is rejected.
The California statute deems “void and unenforceable” any discretionary provision
contained in a policy “that provides or funds . . . disability insurance coverage for any
California resident.” Cal. Ins. Code § 10110.6(a) (emphasis added). Thus, by its own
express terms, the statute applies only to California residents. Plaintiff claims to be
a resident of Palm Beach County, Florida, not California. DE 1, ¶2. Accordingly, the
holding in Orzechowski does not apply here.
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sedentary job because of disabling pain while sitting. However, an ERISA disability is
not established “merely by the existence of pain, even chronic pain, in the absence
of proof that the claimant’s pain actually precludes him or her from working.” Richey
v. Hartford Life and Acc. Ins. Co., 608 F. Supp.2d 1306, 1310 (M.D. Fla. 2009)
(“Richey”). Campbell therefore cannot meet her burden merely by pointing to her
diagnoses and complaints of pain; rather, she must demonstrate that her symptoms
precluded her from working in her own occupation.
The United States Department of Labor recognizes five categories of work with
respect to the degree of physical exertion required. Richey, 608 F. Supp. 2d at 1311
n.2. The categories (in order from least demanding to most) are: sedentary, light,
medium, heavy, and very heavy. Id. These categories are routinely used by
administrators, physicians, and courts in the ERISA disability context. Id. If a
claimant’s occupation is at the sedentary level and she is “capable of performing a
sedentary job,” then the “termination of [her] LTD benefits” is proper. Howard v.
Hartford Life and Acc. Ins. Co., 929 F. Supp. 2d 1264, 1293 (M.D. Fla. 2013), aff’d,
563 F.App’x 658 (11th Cir. 2014) (“Howard”). Accordingly, since Campbell’s
occupation is sedentary in its requirements, she must prove her inability to perform
sedentary work on a full-time basis.
The Surveillance Evidence and Peer Review
It is not “irrational” for an ERISA claim administrator to document a claimant’s
objective functional capacity via video surveillance, and to terminate LTD benefits
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when the surveillance discloses activities that substantially exceed the claimant’s
reported functionality. Howard, 929 F. Supp. 2d at 1299-1300. It is also not
unreasonable to have surveillance evidence reviewed and analyzed by a consulting
physician, and to rely on the consulting physician’s assessment of the claimant’s work
capacity based on the surveillance and the claimant’s medical records. Id. at 1300
(ruling it was “neither wrong nor unreasonable for Hartford to submit Plaintiff’s
medical history and the surveillance video to the independent reviewing healthcare
professionals for their review”); Richey, 608 F. Supp. 2d at 1312 (an ERISA claim
administrator is “entitled to rely on the opinion of a qualified medical consultant who
neither treats nor examines the claimant, but instead reviews the claimant’s medical
records”).
In the present case, the surveillance video disclosed Campbell exercising
vigorously in a gym for a sustained period, an activity she admittedly engaged in
regularly. UMF ¶ 16. Peer reviewer White specifically confirmed that Campbell’s
documented activity level was inconsistent with her reported limitations and wholly
consistent with full-time work capacity. Id., ¶ 29. Based on the surveillance and
Campbell’s medical records, Dr. White provided restrictions and limitations that were
consistent with the ability to perform sedentary work. Id. It was not unreasonable
for Hartford to rely on Dr. White’s report in making its final decision to terminate
benefits. See Vivas v. Hartford Life and Acc. Ins. Co., 49 F. Supp. 3d 1124, 1127-28
(S.D. Fla. 2014) (affirming termination of LTD benefits where reviewing physicians
Page 20 of 23
observed that surveillance showed plaintiff’s ability to “participate in exercises in a
fitness gym for approximately one hour” with no visible impairment, which was “not
consistent with [plaintiff’s] reports of his functional abilities”); Howard v. Hartford
Life and Acc. Ins. Co., 563 F.App’x 658, 663 (11th Cir. 2014) (affirming summary
judgment for administrator and holding that administrator, in terminating benefits,
was “entitled to rely on the reviewing health care professionals’ assessment of
[plaintiff’s] capabilities which were based on her medical records and the
surveillance video”).
Campbell’s Own Treating Neurologist
“Under well-settled ERISA law,” a claim administrator’s reliance on a medical
peer review is “entirely appropriate even where the reviewing consultant’s report
rebuts the opinion of the treating physicians asserting claimant is disabled.” Ness v.
Aetna Life Ins. Co., 257 F. Supp.3d 1280, 1291 (M.D. Fla. 2017) (citation omitted).
Thus, Hartford’s reliance on Dr. White’s report is not improper even if one or more of
Campbell’s treating physicians had disagreed. However, Campbell’s own treating
neurologist, Dr. Bailyn, changed his opinion after reviewing the surveillance video,
and checked a box indicating his opinion now was that Campbell was capable of
full-time sedentary work. UMF, ¶ 17.
Dr. Bailyn’s opinion lends strong additional support to Hartford’s decision. See
Cusumano v. Continental Cas. Co., No. 6:07-CV-141, 2008 WL 1711405, *9 (M.D. Fla.,
Apr. 10, 2008) (affirming termination of benefits where treating physician who had
Page 21 of 23
previously vouched for plaintiff’s alleged disability “changed his mind upon seeing the
[surveillance] video and considered Plaintiff to be capable of sedentary work”);
Sanzone v. Hartford Life and Acc. Ins. Co., No. 06-61135, 2008 WL 80984, *10 (S.D.
Fla. Jan. 3, 2008) (affirming termination of benefits where plaintiff’s primary treating
physician “signed a letter … indicating his approval of [administrator’s] determination
that Plaintiff could return to a full-time sedentary occupation”).
Dr. Lichtblau’s opinion that Plaintiff was incapable of consistent full-time work
does not make Hartford’s final decision to terminate LTD benefits wrong. See Vivas,
49 F. Supp. 3d at 1135 (entering summary judgment for administrator where the same
Dr. Lichtblau opined during plaintiff’s appeal that plaintiff lacked work capacity). In
addition, Dr. Lichtblau did not have the benefit of the surveillance video, thus
further diminishing the weight to be accorded his opinion. See Kiloh v. Hartford Life
Ins. Co., No. 8:04-cv-1741, 2005 WL 2105957, *14 (M.D. Fla. Aug. 31, 2005) (ruling
that administrator was “not wrong” to give less weight to opinions of physicians who
“had not seen the video surveillance of Plaintiff” and to instead credit opinion of
peer reviewer “who did see the video surveillance”).
Conclusion
Campbell’s ability to perform full-time sedentary work was confirmed by her
own treating neurologist, and a board certified peer reviewer subsequently
concurred. Hartford reasonably relied on those medical opinions and the surveillance
evidence in deeming her ineligible for continued benefits. Hartford’s decision to
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terminate LTD benefits was rationally justified and thus is not arbitrary and
capricious, entitling Hartford to summary judgment.
In accordance with the findings herein, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [DE
21] is granted and Plaintiff’s Motion for Summary Judgment [DE 23] is denied.
In accordance with Fed. R. Civ. P. 58, final judgment will be entered by
separate order.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 15th day of October, 2018.
_________________________
KENNETH A. MARRA
United States District Judge
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