Monnier v. Hartford Life & Accident Insurance et al

Filing 47

ORDER granting 38 plaintiff's Motion for Summary Judgment; denying 39 defendant's Motion for Summary Judgment. Pursuant to 29 U.S.C. § 1132(g), plaintiff may file a Motion for Attorney Fees. Said motion shall be filed no later than 3/15/2010. The defendants shall respond within the time allowed by NECivR 7.0.1(b)(1)(B). A separate judgment will be entered after the matter of attorney's fees is decided. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA JEFFREY MONNIER, Plaintiff, vs. THE HARTFORD FINANCIAL SERVICES GROUP, INC., HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, HARTFORD LIFE INSURANCE COMPANY, CONTINENTAL CASUALTY COMPANY, CONTINENTAL ASSURANCE COMPANY, and HARMON INDUSTRIES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

8:08CV491 MEMORANDUM AND ORDER

T h is matter is before the magistrate judge pursuant to 28 U.S.C. § 636 and the consent o f the parties on cross-motions for summary judgment (Filings 38 & 39). For the reasons d is c u ss e d below, the court finds that summary judgment should be granted in favor of the p la in tif f and against the defendants. Plaintiff is given until March 15, 2010 to file a Motion f o r Attorney Fees pursuant to 29 U.S.C. § 1132(g). I. BACKGROUND P lain tiff , Jeffrey Monnier, brought this action in state court for breach of a disability in s u ra n c e policy. The policy of insurance was issued and made available to the plaintiff as p a rt of his employment consideration by his former employer, Harmon Industries, Inc.

P la in tif f began receiving disability insurance benefit payments effective September 1999. D e f en d a n ts stopped making payments on February 13, 2008. Plaintiff's appeal was denied in September 2008, and plaintiff filed this case on October 8, 2008. D e f en d a n ts , Continental Casualty Company and Hartford Life & Accident Insurance C o m p a n y (together, "Hartford")1 removed the case to federal court. Since the policy in q u e stio n funds certain benefits payable under an Employee Welfare Benefit Plan as defined b y 29 U.S.C. § 1002(1), the plaintiff's claim is for recovery of benefits under the Plan. This c o u rt has subject matter jurisdiction under 28 U.S.C. § 1331 and the Employee Retirement Inc o m e Security Act of 1974, 29 U.S.C. § 1132(e)(1) ("ERISA"). I I . STANDARD OF REVIEW "[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo s ta n d a rd unless the benefit plan gives the administrator discretionary authority to determine e lig ib ility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. B r u c h , 489 U.S. 101, 115 (1989). If an ERISA plan gives its administrator or trustees d is c re tio n a ry authority to determine eligibility for benefits, the court reviews such a decision f o r an abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. at 115; W a k k in e n v. UNUM Life Ins. Co. of America, 531 F.3d 575, 580 (8th Cir. 2008).

The remaining named defendants, The Hartford Financial Services Group, Inc., Hartford Life Insurance Company, Continental Assurance Company, and Harmon Industries, Inc. were not served with process.

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In this instance, Hartford agrees that the Plan does not grant discretionary authority to it or the predecessor insurer. (Defendants' Brief, Filing 40 at p. 10/18). Thus, Hartford's te rm in a tio n of benefits must be reviewed under a de novo standard. III. FINDINGS OF FACT T h e court has conducted a de novo review of the administrative record (Filings 21-32) a n d finds that the following facts are uncontroverted for purposes of the parties' motions for s u m m a ry judgment and constitute the material facts upon which a resolution of the issues m u s t be premised. 1. P la in tif f , a former employee of Harmon Industries, is an "Insured Employee"

u n d e r a disability insurance policy ("Policy") issued by Continental Casualty Company and s u b s e q u e n tly assumed by Hartford Life and Accident Insurance Company. 2. P u rs u a n t to the Policy, Continental, as assumed by Hartford, agreed to pay a

m o n th l y benefit for each month of an Insured Employee's "Total Disability." See Filing 23, p . 46/112, M00270. The Policy provides, in relevant part: " T o ta l Disability" means that, during the Elimination Period [180 days] and the In s u re d Employee Occupation Period [24 months]2 ... the Insured Employee, b e c a u s e of Injury or Sickness, is: (1 ) c o n tin u o u s ly unable to perform the substantial and material d u tie s of his regular occupation;

The "Elimination Period" was 180 days and the "Insured Employee Occupation Period "was either 36 months or 24 months, depending on whether the employee was categorized as a Class I or a Class II employee. Filing 23 at pp. 35-37/112, M00259-261. Apparently, plaintiff was a "Class II" employee, as the administrative record reflects that his disability status changed as of September 15, 2001 under the terms of the Policy. See Filing 27 at p. 2/85, M00668.

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(2 ) (3 )

u n d e r the regular care of a licensed physician other than himself; and n o t gainfully employed in any occupation for which he is or b e c o m e s qualified by education, training or experience.

A f te r the Monthly Benefit has been payable for the Insured Employee O c c u p atio n Period [24 months] ..., "Total Disability" means that, because of I n ju r y or Sickness, the Insured Employee is: (1 ) c o n tin u o u s ly unable to perform the substantial and material duties o f any occupation for which he is or becomes qualified by e d u c atio n , training or experience; and u n d e r the regular care of a licensed physician other than himself.

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F iling 23 at p. 45/112, M00269 (emphasis added). 3. P la in tif f has a high school education. He obtained a degree in manufacturing

d ra f tin g and design in 1993 and worked as a Drafter for Harmon Industries for approximately fiv e years. Before working at Harmon Industries, plaintiff had worked for other employers a s a stock clerk and sales representative. (Filing 27 at p. 7/85, M00673; Filing 23 at pp. 838 4 /1 1 2 , M00301-302; Filing 30 at p. 22/85, M00943). 4. P lain tiff attended special needs classes during high school and has difficulty with

w ri ti n g , reading comprehension, and spelling. He was diagnosed with Attention Deficit D is o rd e r. He obtained his AA degree in manufacturing drafting and design with the help of s p e c ia l counselors and tutors. See Filing 21 at p. 42/112, M00042; Filing 24 at p. 19/112; M 00349. 5. P la in tif f sustained a laceration of his peroneal nerve in September 1978 and

c o n tin u e s to have a severe right foot drop and other complications from that injury. He

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s u s ta in e d a gunshot wound to his left hand in 1990, and continues to suffer diminished use o f two fingers. See, e.g., Filing 22 at pp. 68 & 89/112, M00179 & M00201. 6. In 1990 or 1991, plaintiff injured his thoracic spine, fracturing at least one of the

v e rte b ra . He underwent "extensive fusion of his spine" at that time. The injury could not be e n tire ly corrected surgically due to the plaintiff's weight, which was 330 pounds as of S e p te m b e r 15, 1999. Medical records indicate that plaintiff was "doing fairly well" by 1995; h o w e v e r, he was injured in a car accident in April 1997, after which he complained of a d d itio n a l pain. Filing 22 at p. 89/112, M00201; Filing 31 at p. 27/85, M01033. 7. P lain tiff was born with only one kidney, and his single functioning kidney is

i m p a i re d . Plaintiff's chronic renal problems prohibit him from taking many medications, m a n y of which could help to control his symptoms. See, e.g., Filing 30 at pp. 28, 34, 36, & 6 0 /8 5 , M00949, M00955, M00957 & M00981. 8. P la in t if f has a history of poorly-controlled hypertension, dating back to at least

1 9 9 4 . He continues to have serious problems with high blood pressure. He has not always b e e n compliant with his medical program for this condition, citing the high cost of the p re s c rib e d medications. 9. P la in tif f stopped working in March 1999, citing ongoing low back pain. He has

b e e n receiving Social Security disability benefits since April 1999. See Filing 23 at p. 9 7 /1 1 2 , M00315.

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1 0 . P la in tif f 's employment with Harmon Industries was terminated effective N o v e m b e r 11, 1999 pursuant to Harmon's policy to terminate an employee after 26 weeks' a b se n c e. Filing 31 at p. 13/85, M01019. 1 1 . A f te r a lengthy investigation, conducted in light of the plaintiff's preexisting c o n d i tio n s , Continental approved plaintiff's claim for long term disability benefits. See g e n e ra lly Filing 30. By letter dated December 2, 1999, Plaintiff was advised that the period f ro m 3/19/99 through 9/14/99 was used to satisfy the policy's 180-day Elimination Period. T h e letter further advised: B e n e fits under this policy are payable for 24 months if you are totally disabled f ro m your own occupation. After 24 months, benefits will continue only if you a re totally disabled from any occupation for which you are or become qualified b y education, training or experience up to the maximum period payable as s ta te d in the policy. T h e letter explained that the policy required the plaintiff to be under the regular care of a lic e n se d physician and provide proof of his continuing disability. Filing 30 at pp. 44-45/85, M 0 0 9 6 5 -M 0 0 9 6 6 . 12. In October 2003, plaintiff had gastric bypass surgery which helped him reduce h is weight from over 300 pounds to 190 pounds. Filing 21 at p. 39/112, M00039; Filing 29 a t p. 72/85, M00908. He weighed 230 pounds on January 21, 2008, when he was admitted to the hospital for revaluation of occipital headaches. Filing 24 at p. 81/112, M00411. 13. P la in tif f received a pacemaker in 2004. See Filing 22 at p. 68/112, M00180.

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1 4 . H a r tf o r d assumed the administration of the Policy and, in 2005, hired private i n v e s tig a to rs to conduct surveillance of the plaintiff. During the periods of surveillance, w h ich occurred on six days during June, July and August 2005, plaintiff was seen driving his c a r to the gas station, talking to other people in a public park, cleaning his car windows, a s s is tin g a woman place plastic bags in her vehicle, checking his mailbox, and walking down a road at a slow pace sweating heavily. See Filing 21 at pp. 22-29 & 50-73, M00004M 0 0 0 2 9 & M00050-M00073. The investigators also uncovered information that the plaintiff m a y have, at some point, procured a "saltwater fish/snook" licence in Florida. See Filing 21 a t p. 110/112, M00110. 15. P lain tiff was advised of Hartford's surveillance activity when he was personally in t e rv i e w e d at his home on October 11, 2005 by Hartford's investigator, Cliff M'Sadoques. T h e interview lasted 3 hours and 45 minutes. Filing 22 at p. 17/112. Plaintiff admitted that h e walks for exercise and goes fishing. Filing 22 at p. 18/112. At that time, plaintiff signed a statement acknowledging that the video of some of his activities showed the following: "I w a s observed getting my mail, some days staying home all day, I was observed going to my lo c a l park ... for my walk and driving to a gas station." Filing 21 at p. 43/112. Hartford's re c o rd s show that, as a result of this investigation, "It was determined that the claimant has c o n tin u e d to meet the requirements of the policy definition of disability and will continue to re c eiv e his monthly disability payments. This case is being closed at this time and no referral w ill be made."

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1 6 . P la in tif f had a radical prostatectomy for prostate cancer in February 2006. He h a s remained free of any evidence of prostate cancer as of the filing of the administrative re c o rd in this case. See Filing 22 at p. 68/112, M00180; Filing 28 at p. 15/85, M00766. 1 7 . In 2007, plaintiff had a coronary angiography and left heart catheterization after e x p e r ie n c i n g chest pain. The doctors could not investigate for renal artery stenosis because it was not possible to use more dye due to plaintiff's hypertension and renal insufficiency. T h e plaintiff had urological complications after this procedure. See Filing 27 at pp. 808 5 /8 5 , M00746-M00751. 18. P la in tif f fell on ice on January 4, 2007, landing on his back on the left side. 1 9 . P la in tif f was injured in a car accident on August 8, 2007, after which he c o m p la in e d of increased pain in his upper and lower back. Filing 24 at pp. 27-38, M00357M 0 0 3 6 8 . He declined pain medicine in the emergency room because he had a poorly f u n c tio n in g kidney. Filing 24 at p. 33/112, M00363. 2 0 . P la in tif f has suffered from sleep apnea since approximately 1998. See, e.g., F ilin g 31 at p. 64/85, M01070; Filing 24 at p. 18/112, M00348. 2 1 . P la in tif f takes Tylenol No. 3, three to four times a day, for pain control. See, e .g ., Filing 24 at p. 81/112, M00411. Numerous caudal steroid injections have not resulted in long-term pain relief. Plaintiff is allergic to morphine. Filing 24 at p. 81/112, M00411.

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2 2 . P la in tif f was admitted to the hospital on January 21, 2008 3 for revaluation of o c c ip ita l headaches. Filing 24 at p. 81/112, M00411. A greater occipital nerve block was p e rf o rm e d . Filing 24 at p. 84/112, M00414. The discharge summary, Filing 24 at p. 68/112 r e f le c ts the following diagnoses: 1. 2. 3. 4. 5. 6. 7. 8. H yp e rte n siv e urgency, now better controlled with increased doses of la b e ta lo l, Catapres and nifedipine. C h ro n ic occipital headaches now undergoing occipital nerve block. H is to ry of prostate cancer, now status post TURP. H isto ry of bradyarrhythmia status post pacemaker implant. H is to ry of solitary kidney with chronic kidney disease with baseline c re a tin in e around 2.2 to 2.3. H is to r y of osteoarthritis. H is to ry of gastric bypass and back surgery. H is to ry of hernia repair, lithotripsy, prostatic surgery and pacemaker im p la n t as above.

2 2 . B y letter dated February 13, 2008, Hartford informed plaintiff that it had c o m p le te d its annual review of his claim for benefits and determined that he did not meet the p o licy definition of "Disability" beyond January 31, 2008, and long term disability benefits w o u ld not be payable to plaintiff as of that date. Hartford stated that its decision was based o n "policy language," and a review of all the papers contained in plaintiff's file "as a whole." F ilin g 23 at pp. 82-87/112, M00300-M00305; Filing 27 at pp. 1-6/85, M00667-M00672 (sig n ed version).
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The corresponding medical records, from the Holmes Regional Medical Center in Melbourne, Florida, indicate that plaintiff spent six months of each year living with his mother in Florida, and the other six months living in Nebraska. Filing 24 at p. 81/112, M00411.

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2 3 . T h e January 29, 2008 decision to terminate benefits was based, in part, on forms c o m p lete d by two of plaintiff's doctors. Hartford's Benefit Management Services Atlanta D is a b ilit y Claim Office sent form letters to the doctors advising that Hartford needed in f o rm a tio n from them "so that we can correctly assess [plaintiff's] vocational potential." S e le c te d medical information 4 was summarized in the first paragraph of the letters, and the d o c to rs were asked whether they agreed or disagreed with the following restrictions for the p l a in t if f "(based on an 8 hour workday)": " N o sitting longer than 1 to 3 hours at a time without the ability to get up and stret ch or change positions. No more than occasional standing or walking (1-2 h o u rs total per workday). No repetitive kneeling, crouching, stooping, re a ch in g overhead, climbing stairs, twisting or turning. No repetitive lifting, c a rryin g , pushing or pulling greater than 10 pounds occasionally. The patient c a n perform frequent to constant fingering, feeling and/or handling (bilateral u p p e r extremities). He is able to sit at a table or desk with his arms supported o n the arms of a chair or on a table." **** " N o standing and/or walking longer than 2 to 3 hours at a time without the ab ility to change positions. The ability to perform occasional sitting (1-2 hours to ta l per workday). No repetitive kneeling, crouching, stooping, reaching o v e rh e a d , climbing stairs, twisting or turning. The ability to perform lifting, c a rryin g , pushing or pulling up to 20 pounds occasionally and up to 10 pounds f re q u e n tly. The patient can perform frequent to constant fingering, feeling a n d /o r handling (bilateral upper extremities)." 2 4 . O n or about October 17, 2007, plaintiff's longtime primary care physician, Dr. R o y W. Holeyfield, Jr.5 , transmitted the document back to Hartford, placing checkmarks on

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I note that the two physicians were provided different sets of information by Hartord. Hartford's form letter was directed to "Dr. Holeyfield Jr." at a fax number.

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th e form indicating that he agreed with the both of the "restrictions and limitations provided." F ilin g 28 at pp. 11-12/85, M00762-M00763. 25. O n or about December 5, 2007, Hartford sent a similar form letter to plaintiff's n e p h ro lo g ist, Dr. Gerald Groggel. Dr. Groggel's response indicated that he did agree with th e first restriction, but not the second restriction. 26. D r. Holeyfield rescinded the October 17, 2007 communication. On March 10, 2 0 0 8 , he issued a "Disability Letter" stating that, based on plaintiff's chronic back pain, he d id not feel that plaintiff was able to work more than 1-2 hours a day­total, due to his chronic p a in s . Dr. Holeyfield did not understand Hartford's form letter to refer to an 8-hour workday an d noted that the quoted restrictions themselves did not mention the total duration of work thro u g h o u t the day. His March 10, 2008 letter notes that plaintiff's blood pressure was very u n c o n tro lle d , and he and plaintiff's nephrologist were having difficulty getting his blood p re ss u r e controlled. Plaintiff's kidney function was also poor, and his uncontrolled blood p re ss u re would continue to worsen his kidney function. Plaintiff was at significant increased r is k of a stroke, and exertional activities would raise his blood pressure and further increase h is risk of renal damage. Filing 24 at p. 25/112, M00355. 2 7 . O n April 23, 2008, plaintiff was admitted to the emergency room after he s u d d e n ly became confused and disoriented while playing golf. 28. P la in tif f injured himself on May 31, 2008 when he hit his left hand with a h a m m e r while taking down a shed and trying to remove nails. Filing 24 at p. 64-65/112,

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M 0 0 3 9 4 -3 9 5 ; Filing 22 at p. 73/112, M00185. Emergency room records indicate that his b lo o d pressure was high and he had a previous history of mini strokes, but he had not taken h is medications that morning. Filing 24 at p. 65/112, M00395. 29. P la in tif f appealed Hartford's denial of benefits. He obtained an independent m e d ic a l evaluation from an occupational health specialist, D.M. Gammel, MD FAADEP, C IM E , who examined plaintiff on July 22, 2008. Based on his examination, and his review o f the plaintiff's medical records covering December 10, 1990 through May 31, 2008, Dr. G a m m e l opined: It is my opinion that Mr. Monnier is unable to engage in employment and that h e is permanently and totally disabled. He has significant health conditions th a t would absolutely prevent him from employment, specifically with regards to his kidney condition with hypertension and his back condition. **** R e g a rd in g the kidney condition, Mr. Monnier has stage III renal failure. This is a serious progressive and irreversible condition. When chronic kidney d i se a s e has progressed to Stage IV, it's time to begin preparing for dialysis. C h ro n ic renal failure results in large number of complications that Mr. M o n n ie r has developed to include abnormalities of hypertension, decreased p u m p in g ability of the heart, bradycardia, hyperlipidemia and edema of the e x tre m itie s and elevated blood chemistries to include BUN and creatinine. T h e kidney condition has been a significant factor in the development of Stage III hypertension that puts Mr. Monnier at great risk for stroke, as Dr. H o le yf ie ld noted. Mr. Monnier's recent hospitalization in January of 2008 n o tes blood pressures of 220/124 and 196/121 and was diagnosed with h yp e rte n siv e emergency. He underwent occipital nerve blocks for the h e a d a c h e s without much relief. He was discharged in a guarded condition. He w a s re-admitted in April of 2008 with sudden confusion and possible transient is c h e m ic attacks.

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In addition, Mr. Monnier has significant degenerative cervical, thoracic and lu m b a r disease that has been permanently aggravated with his more recent m o to r vehicle accident in August of 2007. A lo n g with the more significant disabling conditions Mr. Monnier's general h e a lth is poor. He underwent surgery for prostate cancer, has right foot drop (f ro m a severed peroneal nerve), excruciating headaches, morbid obesity, re f lu x , urinary incontinence, bradycardia, loss of use of two fingers on the left hand. In conclusion, it is my opinion that Mr. Monnier is not capable of gainful e m p l o ym e n t and has not been so since 1999. Since 1999 his condition has d e ter io ra ted tremendously and will continue to do so as he is not responsive to tre a tm e n ts established, specifically with regard to his kidney failure and h yp e rte n sio n and significant limitation in spinal range of motion. F ilin g 24 at pp. 22-23/112, M00352-M00353. Plaintiff provided Dr. Gammel's report and s u p p le m e n ta l medical records to Hartford. Filing 24 at pp. 11-12/112, M00341-M00342. 30. In August 2008, Hartford procured a medical opinion (Filing 23 at pp. 768 1 /1 1 2 , M00287-M00292) from Dr. Jacqueline Hess. Dr. Hess did not examine the plaintiff. H e r opinions were based on medical records selected and provided by Hartford, including d o c u m e n ts vaguely described as "various medical forms" from Holmes Regional Medical C e n te r, Midlands Hospital, the Nebraska Medical Center, and the University of Nebraska M e d ica l Center. Her report indicates that she had a 10-minute telephone conversation with D r. Holeyfield on August 21, 2008, and notes that Dr. Holeyfield thought the plaintiff was u n ab le to work in any capacity primarily due to musculoskeletal pain. Notwithstanding Dr. H o leyfie ld 's opinion to the contrary, Dr. Hess opined that the plaintiff appeared to be capable

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o f full-time sedentary work, with the ability to change position every one to two hours as n e e d ed for comfort. Her opinion was based on the following rationale: T h e patient is a 48 year old male with multiple medical and surgical issues, w h o has not worked since 03/1999. The patient's hypertension remains d if f ic u lt to control, and requires close monitoring and frequent medication a d ju s tm e n ts . Renal disease, prostate disease, and cardiac disease all appear s t a b l e and medically controlled. The patient has been evaluated for mental s ta tu s changes without diagnostic findings. The patient has documentation of a borderline mental capacity, however he has been successfully employed p r e v io u s ly and there is no evidence of recent change in his status. O rth o p e d ic a lly, there is a long-standing history of peroneal nerve injury and le f t hand injury, neither of which previously prevented employment. The p a tie n t returned to work following placement of Harrington rods and reduction o f kyphosis, but complained of increased musculoskeletal pain following M V A s in 1997 and 2007. Evaluation has not substantiated any neurological lo s s , and there is no recommendation for further surgery at this time. The p a ti e n t has not received pain medication other than Tylenol. Other than re p o rte d pain, there is no objective documentation of functional loss which w o u ld prevent him from working in a sedentary capacity job with the ability to change positions every one to two hours as needed for comfort. F ilin g 23 at p. 80/112; M00291. 3 1 . O n January 11, 2008, Hartford referred plaintiff's claim file to Marvin Bryant, M S , CRC, for an "Employability Analysis." Filing 27 at pp. 8 & 67, M00674 & M00733. M r. Bryant's January 24, 2008 report (Filing 27 at pp. 7-66/85, M00673-M00732) indicates that he conducted a "job-person match" using the Occupational Access System ("OASYS"), w h i c h he described as "a computerized job matching system that cross references an in d iv id u a l's qualifications profile with 12,741 occupations classified by the U.S. Department o f Labor in the 1991 Dictionary of Occupational Titles." Mr. Bryant's computer searches

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a ss u m e d that the plaintiff was physically capable of performing full-time sedentary work. B rya n t concluded and reported that the plaintiff was capable of performing the following jo b s , and that the jobs existed in the "Nebraska Metro Economic Region": 1. 017.261-030: Drafter, Detail, Sedentary, Skilled, Local OES $16.78 2. 221.367-022: Industrial-Order Clerk, Sedentary, Semi-Skilled, Local OES $12.91 3. 379.367-010: Surveillance System Monitor, Sedentary, Unskilled, Local OES $11.46 4. 205.367-014: Charge Account Charge, Sedentary, Unskilled, Local OES $10.96 5. 712.687-034: Suture Winder, Hand, Sedentary, Unskilled, Local OES $10.66 6. 249.587-014: Cutter and Paster, Press Clippings, Sedentary, Unskilled, Local OES $11.36 F ilin g 27 at p. 8/85, M00674. 32. O n or about September 11, 2008, Hartford denied plaintiff's appeal, based in large part on the opinions of Jacqueline Hess, MD. See Filing 23 at pp. 65-296, M00293M 00296. I V . CONCLUSIONS OF LAW S e c tio n 502(a)(1)(B) of ERISA provides that "a participant or beneficiary" may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights u n d e r the terms of the plan, or to clarify his rights to future benefits under the terms of the p lan ...." 29 U.S.C. § 1132(a)(1)(B). "ERISA provides a plan beneficiary with the right to ju d ic ia l review of a benefits determination." Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th C ir. 1998). The plaintiff bears the ultimate burden of establishing his right to receive

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b e n e f its under ERISA. Wilson v. Life Ins. Co. of N. Am., 424 F. Supp. 2d 1146, 1156 (D. N e b . 2006). Hartford concedes that its decision to terminate plaintiff's disability benefits is re v ie w a b le de novo in this case. "A de novo review is to be done 'without giving any d e f e r e n c e to the administrator's decision.'" Sloan v. Hartford Life & Acc. Ins. Co., 433 F. S u p p . 2d 1037 (D.N.D. 2006), aff'd, 475 F.3d 999 (8th Cir. 2007) (quoting Davidson v. P r u d e n tia l Ins. Co., 953 F.2d 1093, 1095 (8th Cir. 1992)). Issues of plan interpretation, as w e ll as fact-based determinations made by the plan administrator, are subject to de novo re v ie w . Id. (citing Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753, 756 (8th Cir. 2001)). This c o u r t's finding as to whether the plaintiff qualifies for long-term disability benefits is a f in d in g of fact subject to a "clearly erroneous" standard of review by the Court of Appeals. S lo a n v. Hartford Life & Acc. Ins. Co., 475 F.3d 999, 1005 (8th Cir. 2007) (citing Donatelli v . Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993)). R e lyin g in large part on the result achieved by the insurer in DuMond v. Centex Corp., 1 7 2 F.3d 618 (1999), in which the court held that the plaintiff's medical records did not e sta b lish disability due to chronic fatigue syndrome, Hartford has taken the position that, e v e n under a de novo standard of review, "the medical evidence is clear that Mr. Monnier is c a p ab le of sedentary work and is no longer disabled under the Plan's definition of any o c c u p a tio n disability." Filing 40 at p. 10/18. The court finds to the contrary.

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T h e administrative record maintained by Hartford shows that the insurer undertook a lengthy and comprehensive review before deciding to awarding plaintiff long-term d is a b ility benefits in 1999. As explained in the insurer's December 2, 1999 letter (Filing 30 a t pp. 44-45/85, M00965-M00966), benefits under the policy were payable for 24 months if th e plaintiff remained totally disabled from his own occupation as a drafter. After the 24m o n th period expired, the plaintiff remained eligible for benefits only if he remained totally d is a b le d from any occupation for which he was or became qualified by education, training o r experience. To maintain his qualification for benefits, the policy required the plaintiff to b e under the regular care of a licensed physician and provide proof of his continuing d i sa b i lity. The court finds that plaintiff has complied with all of these requirements. "I n determining whether an insurer has properly terminated benefits that it initially u n d e rto o k to pay out, it is important to focus on the events that occurred between the c o n c lu s io n that benefits were owing and the decision to terminate them." McOsker v. Paul R e v e r e Life Ins. Co., 279 F.3d 586, 590 (8th Cir. 2002) (citing Walke v. Group Long Term D is a b ility Ins., 256 F.3d 835, 840-41 (8th Cir. 2001)); accord Pearson v. Group Long Term D is a b ility Plan for Employees of Tyco Intern. (US), Inc., 538 F. Supp. 2d 1073, 1083 (E.D. A rk . 2008). "The past payment of benefits does not create a presumptive burden for the a d m in istra to r to overcome; however, it is a factor to consider when the information available to the administrator between the granting and terminating of benefits has not changed."

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R o s b y v. Unum Life Ins. Co. of Am., -- F. Supp. 2d ­­, 2009 WL 3245925 (E.D. Ark., Oct. 7 , 2009). In 1999, the insurance company made a fully-deliberated decision to pay benefits. It ap p ea rs that plaintiff's disability benefits were paid without significant incident until Hartford a ss u m e d the administration of the Policy around 2005. After the very thorough investigation it conducted in 2005 (including six days of surveillance by a private investigator), Hartford's o w n investigator­who had interviewed the plaintiff for almost four hours at the plaintiff's re sid e n c e­ c o n c lu d e d that the plaintiff was, in fact, totally disabled. Hartford determined that th e plaintiff remained eligible to receive full time disability benefits under the Policy. F o c u s in g on the most relevant time period, i.e., between October 2005 and the S e p te m b e r 11, 2008 final decision to terminate benefits, the court finds that plaintiff's m e d ica l condition has not improved; in fact, it appears to have gotten worse. The main c o n d itio n that has changed is that Hartford was able to obtain a favorable expert opinion f ro m a consulting physician who has never seen, much less examined, the plaintiff. N o tw ith stan d in g the conclusion reached by its own investigator in 2005, Hartford a g g re ss iv e ly pursued a course of continuous investigation of the plaintiff's claim, including the form letters it transmitted to plaintiff's treating physicians in 2007. The two form letters se n t to plaintiff's doctors pose technical hypothetical questions, similar to those routinely p re s e n te d to the vocational experts who testify in Social Security proceedings. The two le tte rs do not contain the same hypothetical information, and the form letter sent to plaintiff's

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n e p h ro lo g is t, Dr. Groggel, contains very little information at all. Based on the select in f o rm a tio n presented by Hartford in its form letter to Dr. Groggel, it is not surprising that D r. Groggel returned a response indicating that he did agree with one of the proposed r e s t r ic t i o n s . T u rn in g to the form letter Hartford sent to "Dr. Holeyfield Jr.," the court credits Dr. H o le yf ie ld 's explanation that he did not understand the October 17, 2007 form letter to refer to an 8-hour workday. Dr. Holeyfield is the plaintiff's primary care physician, has known and tre a te d the plaintiff on a regular basis for several years, and is qualified to issue an opinion a s to the plaintiff's actual state of disability. Dr. Holeyfield's March 10, 2008 Disability L e tte r, which was timely presented to Hartford, clarified that he did not believe the plaintiff w a s able to work more than a total of 1-2 hours a day, due to his chronic pains. This c o n c lu s io n is amply demonstrated by the medical records presented to Hartford. T h e opinion issued by Dr. Hess that the plaintiff is physically capable of performing f u ll-tim e sedentary work is based largely on her observations that he was able to work until M a rc h 1999 and "[e]valuation has not substantiated any neurological loss, and there is no re c o m m e n d a tio n for further surgery at this time." She discounted plaintiff's complaints of p a in , in part, because he had received no pain medication "other than Tylenol," 6 glossing over th e fact that the plaintiff cannot not take other pain medications and is not a good candidate f o r surgery because of his failing kidney.

6

The plaintiff was taking prescription Tylenol with codeine, not over-the-counter Tylenol.

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D r. Gammel, the expert retained by the plaintiff, itemized the medical records he re v iew e d and personally examined the plaintiff. His conclusions that the plaintiff is unable to engage in employment and is permanently and totally disabled are amply supported by the m e d ic a l records presented to this court. Based on my de novo review of Hartford's administrative record, I find and conclude th a t the plaintiff is not capable of gainful employment and has not been so since 1999. As o f July 2008, plaintiff had stage III renal failure. Plaintiff's kidney condition significantly c o n trib u te d to the development of Stage III hypertension, and plaintiff is at great risk for s tro k e . Plaintiff was significantly limited in his spinal range of motion, his hypertension was n o t responsive to treatment, and he suffered from excruciating headaches. The record s tro n g ly supports Dr. Gammel's conclusion that, since 1999, plaintiff's condition has d e te rio ra te d tremendously and will continue to deteriorate. Upon de novo review, the court finds that the plaintiff has established his right to re c e iv e disability benefits as claimed. V. ORDER I T IS ORDERED: 1 . P la in t if f 's Motion for Summary Judgment (Filing 38) is granted in all respects. 2 . D e f en d a n ts ' Motion for Summary Judgment (Filing 39) is denied. 3 . P u r s u a n t to 29 U.S.C. § 1132(g), plaintiff may file a Motion for Attorney Fees. S a id motion shall be filed no later than March 15, 2010 and shall comply with the

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re q u ire m e n ts of NECivR 54.1, 54.3 and 54.4. The defendants shall respond within the time allo w ed by NECivR 7.0.1(b)(1)(B). 4 . A separate judgment will be entered after the matter of attorney's fees is decided. D A T E D February 11, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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