Avena v. UNUM Life Insurance Company of America

Filing 19

ORDER AND REASONS denying Plaintiff's 11 Motion for Judgment as a Matter of Law, and granting Defendant's 13 Motion for Judgment as a Matter of Law. The Court will enter final judgment in favor of Defendant. Signed by Judge Jane Triche Milazzo on April 14, 2015. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFREY V. AVENA

CIVIL ACTION

VERSUS

NO. 13-5947

UNUM LIFE INSURANCE CO.
OF AMERICA

SECTION "H"(2)

ORDER AND REASONS
Before the Court are Cross-Motions for Judgment as a Matter of Law (R.
Docs. 11, 13). For the following reasons, Plaintiff's Motion is DENIED, and
Defendant's Motion is GRANTED. The Court will enter final judgment in favor
of Defendant.
BACKGROUND
Plaintiff, Jeffrey Avena, filed this suit seeking reversal of the denial of his
claim for long-term disability benefits under an employee disability plan
governed by the Employee Retirement Income Security Act of 1974 ("ERISA").
1

Defendant, UNUM Life Insurance Company of America ("Unum"), is the
administrator and payor of the plan.
Plaintiff is 55-years-old and was employed as a senior director of casino
operations. On October 31, 2011, Plaintiff was involved in a car accident in
which he was rear-ended while stopped on an interstate exit ramp. Plaintiff first
sought medical attention two days after the accident.

His chief medical

complaints are pain in the lower back, neck, shoulder, and left foot. In the
several months following the accident, Plaintiff's primary physician, Dr. Dyess,
treated Plaintiff's ailments with the medications Motrin, Norco, and Soma. An
MRI of the lumbar spine revealed a multilevel, mild-to-moderate facet
arthropaty and mild disk bulging. An MRI of the left foot was normal. On two
occasions, Plaintiff received facet joint injections to the right L4-5 and L5-S1 and
a transforaminal nerve root injection to the L5-S1. Plaintiff reported receiving
some relief from these injections, but the pain later returned.

Dr. Dyess

restricted Plaintiff's movement to avoid prolonged sitting, standing, walking;
climbing stairs or ladders; and lifting objects heavier than 40lbs. Dr. Dyess
recommended that Plaintiff participate in physical therapy, but there is no
indication in the administrative record that Plaintiff actually did so. Dr. Dyess
also indicated that Plaintiff was on strong medications that made decisionmaking difficult.
Nearly nine and a half months after the accident, Dr. Dyess referred
Plaintiff to a neurosurgeon to discuss the possibility of surgery because Plaintiff
continued to report the same level of pain. The neurosurgeon, Dr. Vogel, opined
2

that Plaintiff has a cerebral concussion, Grade I herniated cervical disc vs
segmental cervical instability, and herniated lumbar disc vs segmental
lumbosacral instability. On their second visit, Dr. Vogel recommended that
Plaintiff be admitted to the hospital for further evaluation to determine whether
he is a surgical candidate. Plaintiff ultimately elected to continue conservative
treatment.
Following the accident, Plaintiff was out of work for several months. He
returned to work on January 16, 2012, but ultimately resigned on May 17, 2012,
because he felt his condition prevented him from continuing to work. Indeed, Dr.
Dyess recommended that Plaintiff cease working beginning on April 26, 2012.
In its investigation, however, Unum discovered an internet article indicating
that Plaintiff attended a fishing trip in "choppy" waters on May 10, 2012.
Defendant remains unemployed and stays at home to care for his newborn
daughter.
Unum initially denied Plaintiff's claim for long term disability payments
because its in-house reviewing physicians felt that the evidence in the record did
not support a finding that Plaintiff was disabled. In order to be characterized
as "disabled" under Plaintiff's policy with Unum, he must be (1) limited from
performing the material and substantial duties of his regular occupation due to
injury and (2) have a 20% or more loss in his indexed monthly earnings due to
the same injury. Defendant found that the record did not support the position
that Plaintiff was unable to perform the duties required by his job as a director
of casino operations.

Defendant's vocational rehabilitation consultant
3

characterized Plaintiff's job as requiring frequent sitting, occasional standing,
walking, reaching, and handling, and occasional exertion of up to 20 pounds of
force to lift, carry, or move objects. Defendant relied on the following facts to
support its opinion that Plaintiff is not disabled: (1) after his car accident,
Plaintiff was able to work full time for five months; (2) the record contains no
indication of medication side effects; (3) Plaintiff's lumbar MRI was consistent
with age-related changes and inconsistent with his complaints; and (4) neither
a cervical MRI nor a nerve conduction study was performed to evaluate
Plaintiff's complaints of neck and arm pain.1 Plaintiff was not personally
evaluated by Defendant's physicians.
Plaintiff appealed this determination and submitted additional
information for Unum's consideration. Specifically, Plaintiff submitted records
from his psychiatric evaluations with Dr. Denney. Those records indicated that
Plaintiff reported difficulty concentrating at work because of his pain
medications, panic attacks, depression, difficulty sleeping, and anxiety. Dr.
Denney diagnosed Plaintiff with panic disorder, general anxiety disorder, and
adjustment disorder with depression. Plaintiff was given a prescription of
Ativan to be taken when needed. Plaintiff continued to see Dr. Denney on
several occasions, although there was a gap in care between April 2012 and
October 2012.
Plaintiff also supplemented his appeal with records of his visit to a
podiatrist, Dr. Dabdoub.
1

Dr. Dabdoub diagnosed Plaintiff with capsulitis,

A.R. 438.

4

neuritis, and foot inflamation. Medications and padding were prescribed to
address Plaintiff's left foot pain. There is no record of a follow-up visit, and the
prescribed medications were filled only once.
Plaintiff also provided letters from Dr. Dyess to Plaintiff's attorney, which
further indicated that Plaintiff's complaints and treatments remained
unchanged. Dr. Dyess opined that Plaintiff "has a poor prognosis and will likely
remain totally disabled for life."
Plaintiff's record was also supplemented with the accident report. The
report indicated that Plaintiff's vehicle sustained only "minor" damage in the
accident and that the other driver's speed was "unknown," although Plaintiff has
stated that he was hit at a speed of 50 to 55mph. The accident report indicated
that no one on the scene received emergency medical treatment and both cars
were driven away from the scene without the necessity of towing.
Despite this additional information, Unum's decision remained unchanged.
It informed Plaintiff that the many inconsistencies in the administrative record
did not support Plaintiff's pain complaints or a finding that he is "disabled"
under the terms of his policy with Unum. Plaintiff now appeals Unum's decision
to this Court.
LEGAL STANDARD
"The summary judgment standard for ERISA claims is 'unique,' because
the Court acts in an appellate capacity reviewing the decisions of the

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administrator of the plan."2 An administrator's decisions regarding plan terms
and eligibility for benefits are subject to de novo review in the district court
"unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the
plan."3 If the plan grants such discretion, the administrator's determinations
are reviewed only for abuse of discretion.4

In the Fifth Circuit, an

administrator's factual determinations are always reviewed for abuse of
discretion, regardless of whether the plan grants the administrator discretionary
authority.5 The parties concede, and the Court is convinced, that the abuse of
discretion standard applies to this matter.
Under this standard, the Court looks to whether the administrator acted
arbitrarily or capriciously.6 "A decision is arbitrary only if 'made without a
rational connection between the known facts and the decision or between the
found facts and the evidence.'"7 The Court will uphold the administrator's
decision "if it is supported by substantial evidence."8 The Court's review "need
not be particularly complex or technical; it need only assure that the
administrator's decision fall somewhere on a continuum of reasonableness—even
2

Reed v. Huntington Ingalls Indus., Inc., No. 11–1816, 2012 WL 4460822, at *2 (E.D.
La. Sept. 26, 2012).
3

Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

4

Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir. 2004).

5

Id.

6

Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999).

7

Id. at 215.

8

Id.

6

if on the low end."9 "A district court may not engage in de novo weighing of the
evidence."10 In addition, the Court's review is limited to the facts known by the
plan administrator at the time of the benefits decision.11
LAW AND ANALYSIS
Plaintiff sets forth the following arguments in support of his contention
that Defendant abused its discretion in denying his claim for long term disability
benefits. First, Plaintiff argues that Unum abused its discretion by relying on
the opinions of non-examining, in-house doctors instead of Plaintiff's treating
physician and by failing to conduct an independent medical evaluation of
Plaintiff. Second, Plaintiff contends that Unum has a conflict of interest because
it is both the administrator of the plan and the payor of benefits. Third, Plaintiff
argues that Unum failed to consider his mental condition or the intellectual
requirements of his job in its determination of benefits. This Court will consider
each of these complaints as factors in determining the reasonableness of Unum's
9

Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009).

10

Dramse v. Delta Family-Care Disability and Survivorship Plan, 269 Fed. Appx. 470,
478 (5th Cir. 2008).
11

McDonald v. Hartford Life Grp. Ins. Co., 361 F. App'x 599, 606 (5th Cir. 2010).
Plaintiff contends that he submitted an additional cervical MRI and medical literature
supporting his claim after Defendant's final denial of benefits but that Defendant refused to
include it as part of the administrative record because it felt it was unhelpful and untimely.
Plaintiff states that this information should have been included in the record. He did not,
however, move this Court for a review of the completeness of the administrative record prior
to filing the instant dispositive motion. In addition, Plaintiff has not provided any of these
records to the Court. Accordingly, the Court cannot consider the necessity of their inclusion
in the record and must decide these Motions on the basis of the administrative record that was
presented.

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denial of benefits.12
A. Reliance on Reviewing Physicians
First, Plaintiff argues that Unum abused its discretion in denying his
claim when it relied on the opinions of in-house doctors who merely reviewed the
record and did not perform an independent medical evaluation on Plaintiff.
Plaintiff argues that these non-examining, in-house doctors are biased because
they have a financial incentive to render an opinion that supports the denial of
benefits. Plaintiff also contends that Unum has previously been reprimanded
for this sort of behavior.
The Supreme Court has held, however, "that 'courts have no warrant to
require administrators automatically to accord special weight to the opinions of
a claimant's physician,' but a plan administrator 'may not arbitrarily refuse to
credit a claimant's reliable evidence, including the opinions of treating
physicians.'"13 The Fifth Circuit "has held that an administrator does not abuse
its discretion when it relies on the medical opinion of a consulting physician
whose opinion conflicts with the claimant's treating physician."14 In McDonald
v. Hartford Life Group Insurance Co., the Fifth Circuit held that a district court
did not err in finding that a plan administrator did not abuse his discretion for
relying on the opinions of in-house doctors when the Plaintiff did not submit any
12

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008) (stating that "when judges
review the lawfulness of benefit denials, they will often take account of several different
considerations").
13

Schexnayder v. Hartford Life & Acc. Ins. Co., 600 F.3d 465, 469 (5th Cir. 2010)
(quoting Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)).
14

Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 249 (5th Cir. 2007).

8

specific evidence showing an incentive for the doctors to issue a biased opinion.15
Here too, Plaintiff's allegations are conclusory. He offers no evidence of the
financial relationship between Unum and its reviewing doctors or "an incentive
for the doctors to undermine [his] case in particular."16 Likewise, Unum did not
fail to consider the opinion of Plaintiff's treating physician, rather, it felt that the
objective evidence in the record did not support his opinion. "[P]lan fiduciaries
are allowed to adopt one of two competing medical views[.]"17 Accordingly, this
Court does not believe that Defendant's reliance on in-house doctors rendered
its decision an abuse of discretion.
Plaintiff also alleges that it was an abuse of discretion for Defendant to
forgo an independent medical evaluation of Plaintiff prior to denial of his claim.
The Fifth Circuit has stated, however, that "ERISA does not mandate an
independent medical examination prior to a denial."18 Indeed, the burden of
providing proof of loss rests with the claimant.19 Plan administrators do not
have the burden of generating evidence relevant to deciding the claim.20
Accordingly, Defendant did not err in failing to order an independent
examination of Plaintiff.
B. Conflict of Interest
Next, Plaintiff argues that Defendant's denial of benefits was an abuse of
15

McDonald, 361 F. App'x at 610.

16

Id.

17

Gothard, 491 F.3d at 250.

18

Killen v. Reliance Standard Life Ins. Co., 776 F.3d 303, 309 (5th Cir. 2015).

19

McDonald, 361 F. App'x at 610.

20

Id.

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discretion because Unum is both the administrator and payor of benefits under
Plaintiff's policy. The Supreme Court has stated that such a conflict should be
"weighed as a factor in determining whether there is an abuse of discretion."21
The conflict of interest may become more important "where circumstances
suggest a higher likelihood that it affected the benefits decision, including, but
not limited to, cases where an insurance company administrator has a history
of biased claims administration."22 Here, Plaintiff cites cases that indicate that
Unum has a history of biased claims administration. Unum rebuts, however,
with cases recognizing that "Unum has—since Glenn [decided in 2008]—adopted
new claims-handling practices that have helped cure this history of biased
claims administration."23 In Truitt v. Unum Life Insurance Co., the Fifth Circuit
held that the district court gave "improper weight" to Unum's conflict of interest
when it relied on Unum's history of bias.24 The court recognized Unum's
improvements and held that "given Unum's new claims-handling practices and
our case-specific finding that Unum gave careful consideration of [the plaintiff's]
claim, we find that the district court improperly emphasized Unum's structural
conflict."25 Here too, the Court finds that Defendant gave thorough consideration
to Plaintiff's claim. It had three physicians review Plaintiff's record, entertained
an appeal, waited for Plaintiff to visit a neurosurgeon before deciding, and
21

Glenn, 554 U.S. at 117.

22

Id.

23

Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 514 (5th Cir. 2013).

24

Id.

25

Id. at 515.

10

reached out to Plaintiff's treating physician to discuss Plaintiff's condition. This
Court does not find any circumstance that suggests a higher likelihood that
Unum's conflict affected the benefits decision.26
C. Failure to Consider Cognitive Limitations
Lastly, Plaintiff argues that Defendant erred in failing to consider how
Plaintiff's psychiatric condition affects his ability to work. Plaintiff contends
that the medications he was prescribed for his physical pain make decisionmaking and concentration difficult and prevent him from performing his duties
as a high-level casino executive. Plaintiff's job description reveals that his job
required him to make important decisions, engage in complicated mathematics,
and supervise many employees.

Plaintiff takes issue with the fact that

Defendant's vocational rehabilitation consultant characterized Plaintiff's job as
merely requiring frequent sitting, occasional standing, walking, reaching, and
handling, and occasional exertion of up to 20 pounds of force to lift, carry, or
move objects.
Upon review of the administrative record, it seems clear to this Court that
if Defendant did not consider the effect Plaintiff's medications had on his ability
to work it is because Plaintiff provided no evidence of such. Notwithstanding
comments made by Plaintiff to some of his doctors, there is no objective evidence
from any doctor describing the effect of Plaintiff's medications on his ability to
work. In addition, Plaintiff's psychiatrist never indicated that his depression or
panic and anxiety disorders had any affect on his ability to work. The Fifth
26

See Glenn, 554 U.S. at 117.

11

Circuit has stated that "[a] plan administrator does not abuse its discretion by
making a reasonable request for some objective verification of the functional
limitations imposed by a medical or psychological condition. . . ."27 Without
objective evidence of Plaintiff's limitations, the plan administrator "had no way
to determine whether his concentration was impaired to the point that he could
not perform his job."28
It is clear, however, that Defendant did consider Plaintiff's subjective
complaints regarding his cognitive limitations, noting in its denial letter that
Plaintiff reported "difficulty with concentration" to his psychiatrist. Defendant
ultimately decided, however, that the objective evidence in the record was
inconsistent with Plaintiff's complaints and did not indicate "any medication side
effects involving altered mental status, decreased alertness, difficulty decision
making or other cognitive impairment."29
Accordingly, after considering Plaintiff's arguments and the evidence in
the administrative record, this Court holds that Defendant was not arbitrary or
capricious in denying Plaintiff's claim for long-term benefits. While there is
some evidence in the record supporting Plaintiff's claim of disability, there is
likewise substantial evidence supporting the contrary. Namely, Defendant's
decision is supported by the facts that: Plaintiff was able to work for several
months after the accident; he attended a fishing trip after the accident; despite
27

Anderson v. Cytec Indus., Inc., 619 F.3d 505, 514 (5th Cir. 2010).

28

Id.

29

A.R. 438; see also A.R. 679 (denial letter stating that record did not "document
disability resulting from a behavioral health condition").

12

Plaintiff's continued complaints of pain, recommended pain management was
limited to as-needed use of the same conservative medications prescribed
immediately after the accident; only one doctor, Dr. Dyess, placed restrictions
or limitations on Plaintiff's movement; further testing was not conducted despite
Plaintiff's continued complaints of pain; the reviewing doctors felt Plaintiff's MRI
results were consistent with age-related changes; Plaintiff provided no proof that
he ever attended physical therapy; and the accident report indicated that the
accident resulted in minor damages to both vehicles and emergency medical
attention was not sought. All of these facts support a finding that Plaintiff's
condition does not rise to the level of a disability that would prevent him from
returning to his full-time employment.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion is DENIED, and Defendant's
Motion is GRANTED.

The Court will enter final judgment in favor of

Defendant.
New Orleans, Louisiana, this 14th day of April, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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