McCready v. Dayton Power and Light Company Long Term Disability Plan et al

Filing 16

DECISION AND ENTRY GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ERISA DISCOVERY (Doc. 11 ). Signed by Judge Timothy S. Black on 11/5/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JULIA MCCREADY,

:
:
Plaintiff,
:
:
vs.
:
:
DAYTON POWER & LIGHT COMPANY :
LONG-TERM DISABILTY PLAN, et al., :
:
Defendants.
:

Case No. 3:13-cv-128
Judge Timothy S. Black

DECISION AND ENTRY GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ERISA DISCOVERY (Doc. 11)
This case is before the Court on Plaintiff Julia McCready’s Motion for ERISA
Discovery. (Doc. 11). Defendants filed a Brief in Opposition. (Doc. 14). Plaintiff’s
Motion is now ripe for decision.
I. FACTS
Plaintiff Julia McCready (“Plaintiff”) worked for the Dayton Power and Light
Company (“DP&L”) as a Network Engineer II from January 2, 2001 to November 12,
2010. As a long-term employee of DP&L, Plaintiff had access to short-term and longterm disability benefits sponsored by DP&L. DP&L administers the benefits through a
plan which contains an insurance policy offered by Defendant Unum.
According to Unum, the job title of Network Engineer II requires an
understanding of “networking and telecommunication theory and practice[,] … the use

of 20 lbs. of force occasionally, [and] occasional reaching and frequent keyboard usage.”
According to Plaintiff, the position performs the following tasks:
troubleshoots network performance issues and creates and maintains
disaster recovery plan. Recommends upgrades, packages and new
applications and equipment. Under limited supervision configures
and maintains routers, switches, and hubs for network systems
(including wireless), evaluates and recommends new products,
maintains knowledge of emerging technologies for application to the
enterprise
Based on the Court’s review of the record at this time, it appears that Plaintiff was
exposed to certain unidentified chemicals and irritants while her workplace was
undergoing renovations and/or construction. In late 2010, Plaintiff applied for and
received short-term disability benefits for a total of ninety (90) days and, on April 29,
2011, Plaintiff applied for long-term disability alleging disability arising from:
Several exposures to irritants, chemicals, glues, epoxy, etc., resulting
in severe anaphylactic allergic reaction causing swelling of throat,
difficulty breathing, swelling legs, hands and feet, heart palpitations,
difficulty swallowing and skin rash, headache, sore throat, drop in
blood pressure, angioedema, chest pain, coughing, sneezing and
wheezing, PVC, PSC, low blood oxygen.
Unum continued to pay Plaintiff long-term disability benefits until September 16, 2011,
when it denied her claim for long-term disability.
Under the Unum Group Disability Policy at issue, there is a 180 day elimination
period requiring continuous disability through that period, which must be satisfied before
benefits can be paid. In this case, this relevant 180 day period commenced November 13,
2010 and ended May 13, 2011. As noted by Defendants, the following medical

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information contained in the Administrative Record was presented to Unum for
evaluation:
• On September 22, 2010, Dr. Burton described Plaintiff’s narcolepsy and cataplexy
as doing well.
• Plaintiff was hospitalized on November 13 until November 19, 2010 for
abdominal pain and diarrhea.
• Plaintiff was hospitalized on December 8 and December 9, 2010 for acute
respiratory distress and possible anaphylactic reaction.
• On December 28, 2010, Dr. Rubio’s notes described the narcolepsy as stable.
• On January 5, 2011, Plaintiff was tested with attempts to induce laryngospasm
with inhaled irritants of ammonia, Pledge, Right Guard deodorant and other
cleaning agents without reaction. Oxygen levels dropped only slightly with
increased exercise and returned to normal within 30 seconds of sitting.
• On December 23, 2010 and January 19, 2011, Dr. Karabatak finds no indication of
cardiac issues, and provides no restrictions or limitations.
• On February 14, 2011, Dr. Burton wrote, “Julia is doing very well. She likes her
new job. Her daytime alertness is good on her Klonopin. The cataplexy is well
controlled on Xyrem and, in short, she is doing very well.” Plaintiff was to return
in six months.
• On April 11, 2011, Dr. Bernstein completed an attending physician statement and
he stated, “Patient can’t work in environments where she is exposed to chemicals
… irritants or extreme temperatures.”
• On May 6, 2011, Plaintiff spoke with a Unum disability representative.
• During the conversation, Plaintiff stated she cannot work in environments where
she is exposed to chemicals or irritants. She advised her symptoms began in
August 2008 (sic) [2010] and coincided with workplace renovations. She advised
she has narcolepsy but stated it was not disabling. As of that date, Plaintiff advised
she could perform household chores such as grocery shop, laundry, and
vacuuming.

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• On May 10, 2011, Dr. Rubio provided his completed attending physician
statement. Dr. Rubio stated, “Avoid chemicals, fumes, dust and exposure to
extreme hot/cold.” In response to the question, “Did you advise the patient to stop
working?” Dr. Rubio responded, “No.” When asked what primary diagnosis
prevented Plaintiff from working, Dr. Rubio wrote, “None pt able to work.”
The 180-day elimination period ended May 13, 2011.
On September 16, 2011, Unum denied Plaintiff’s claim for disability. In doing so,
Unum essentially concluded that the restrictions and limitations opined by Plaintiff’s
treating physicians, i.e., no exposure to irritants or noxious stimuli in the workplace, were
medically reasonable; however, such restrictions did not preclude Plaintiff from
performing her job in the national economy during the relevant time period.
Plaintiff appealed Unum’s denial of her disability benefits claim. Plaintiff’s
appeal included new documentation from Dr. Burton and Dr. Bernstein. In
correspondence dated October 11, 2011, Dr. Bernstein advised Plaintiff’s attorney that
because of Plaintiff’s physical symptoms and stress associated with her job, Plaintiff
should remain off work until April 7, 2012. On October 17, 2011, Dr. Burton wrote
stating that Plaintiff has “severe narcolepsy with cataplexy with excessive daytime
sleepiness that almost certainly precludes her from holding down gainful employment.”
On appeal, Unum concluded that during the applicable 180 day elimination period
beginning November 13, 2010 and ending May 11, 2011, a lifetime restriction regarding
the avoidance of fumes or extreme temperatures was supported by Plaintiff’s medical
history; a period of no work was supported during the hospitalizations in November and
December 2010; no restrictions were supported from a behavioral health perspective; and
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no restrictions were supported in relation to Plaintiff’s narcolepsy and cataplexy.
Plaintiff now seeks review in this Court and requests that the Court allow discovery of
three physicians who reviewed Plaintiff’s claim and offered opinions concerning her
alleged disability. Those physicians are Peter Kouros, M.D., Jacqueline Crawford, M.D.,
and Dr. Alfred Kaplan, M.D.
II. STANDARD OF REVIEW
The general rule is that the district court only considers “evidence that was first
presented to the administrator” when it made the original decision to deny benefits.
Wilkins v. Baptist Health Care Sys., 150 F.3d 609, 618 (6th Cir. 1998). That evidence is
designated as the “administrative record.” Kalish v. Liberty Mut., 419 F.3d 501, 508 (6th
Cir. 2005). Therefore, generally, discovery is not permitted in an ERISA denial-ofbenefits case. Id. As stated most recently by one district court, “discovery in ERISA
cases, where the district court's review is ‘based solely upon the administrative record,’ is
the exception and not the rule.” Neubert v. Life Ins. Co. of N. Am., No. 5:13 CV 643,
2013 WL 5595292, *1 (N.D. Ohio Oct. 10, 2013) (citing Wilkins v. Baptist Healthcare
Sys., 150 F.3d 609, 619 (6th Cir. 1998) (Gilman, J., concurring)).
Nevertheless, courts recognize an exception to this general rule “when evidence
outside the record ‘is offered in support of a procedural challenge to the administrator’s
decision, such as an alleged lack of due process afforded by the administrator or alleged
bias on its part.’” Johnson v. Connecticut Gen. Life Ins. Co., 324 F. App’x 459, 466 (6th
Cir. 2009) (citing Wilkins, 150 F.3d at 619 (Gilman, J., concurring)). When this
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exception applies, “any prehearing discovery at the district court level should be limited
to such procedural challenges.” Id.
An inherent conflict of interest exists where, as in this case, “an insurance
company is both the administrator determining eligibility for benefits and the insurer
responsible for paying the benefits out of its own pocket.” Id. at 465. Nevertheless,
“discovery will [not] automatically be available any time the defendant is both the
administrator and the payor under an ERISA plan.” Id. at 467. Instead, because the
significance of a conflict of interest depends on the circumstances of each case, courts
must utilize their discretion and “evaluate and determine whether and to what extent
limited discovery is appropriate in furtherance of a colorable procedural challenge[.]” Id.
III. DR. KOUROS
Plaintiff first seeks discovery regarding a potential bias on the part of Dr. Kouros,
who Plaintiff argues is a full-time employee of Unum. Plaintiff argues that Dr. Kouros’
opinion demonstrates bias because he cast aside all of the opinions of Plaintiff’s
physicians. A review of Dr. Kouros’ report, authored on September 14, 2011, reveals his
agreement with the restrictions and limitations provided by Plaintiff’s physicians at that
time, i.e., that Plaintiff must work in an environment free from chemicals,1 irritants and
extreme temperatures. Dr. Kouros’s concluded, however, that such restrictions did not
preclude Plaintiff from performing the demands of her position on a full-time basis
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Dr. Kouros did note that the restriction and limitation was overbroad insofar as it encompassed
all chemicals, and that the restriction should more specifically restrict Plaintiff from being exposed to the
unidentified irritant causing her respiratory episodes.
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because her position did not involve regular exposure to any chemicals, irritants or
extreme temperatures.
It is not disputed that Plaintiff had a documented history of narcolepsy and
cataplexy at the time Dr. Korous authored his report. However, at the time Dr. Korous
conducted his review, Plaintiff’s records from Dr. Burton, who treated Plaintiff for these
conditions, revealed that Plaintiff’s narcolepsy and cataplexy were under control. In fact,
on September 22, 2010, i.e., approximately one week after Dr. Kouros wrote his report,
Dr. Burton himself noted that, at least, “[f]rom a narcolepsy / cataplexy standpoint”
Plaintiff was “doing well[.]” (Doc. 10-3, PAGEID 916). Thus, it is not entirely clear
from Plaintiff’s Motion, or the Court’s initial review of the opinions and records cited by
the parties, what opinions offered by Dr. Burton, or any other of Plaintiff’s doctors, Dr.
Kouros “cast aside” on September 14, 2011.
Insofar as Plaintiff suggests that Dr. Kouros “cast aside” the opinions of Dr.
Bernstein, Plaintiff’s Motion and the record citations simply do not support such an
assertion. Most notably, Plaintiff cites a letter from Dr. Bernstein concluding that
Plaintiff should remain off work until April 7, 2012, because of her symptoms and the
stress associated with her job. However, that letter from Dr. Bernstein is dated October
11, 2011, almost a month after Dr. Kouros’ provided his opinion and Unum’s denied
Plaintiff’s disability claim.
In other words, it is not clear to the Court what opinions Dr. Kouros “cast aside”
on September 14, 2011. Having failed to evidence that the conclusions of Dr. Kouros
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were the result of bias, or even that he disagreed materially with any of the opinions held
by Plaintiff’s physicians at that time, the Court denies Plaintiff’s requested discovery as it
pertains to Dr. Kouros.
IV. DR. CRAWFORD
Next, Plaintiff seeks discovery concerning Dr. Crawford, who apparently first
authored a report regarding Plaintiff in April 2012. In that report, Dr. Crawford focused
on the reasonableness of Dr. Burton’s opinion that Plaintiff’s narcolepsy and cataplexy
precluded her from employment during the elimination period ending in May 2011. Dr.
Crawford disagreed with Dr. Burton’s opinion, finding that the available medical
information did not support a conclusion that Plaintiff’s autonomic dysfunction and
narcolepsy with cataplexy impacted her ability to work during the elimination period
ending May 11, 2011.
Soon thereafter, however, Dr. Crawford spoke with Dr. Burton by phone
concerning Plaintiff’s work restrictions and limitations. At that time, Dr. Burton opined
that, during the relevant elimination period, Plaintiff would have required the ability to
come to work late, would have required supervision and would have required the ability
to nap at work. On May 17, 2012, Dr. Crawford concluded that these restrictions and
limitations were not supported during the applicable elimination period ending in May
2011, because Plaintiff’s medical records, notably records from Dr. Burton in February
2011, stated that her narcolepsy and cataplexy were under control. In this regard, the
Court also notes the aforementioned note from Dr. Burton in September 2011, in which
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Dr. Burton stated that Plaintiff’s narcolepsy and cataplexy were under control. The Court
believes that this mere “difference of professional opinion . . . does not colorably
establish bias.” Bennetts v. AT & T Umbrella Plan No. 1, No. 12–14640, 2013 WL
4042661, *3 (E.D. Mich. Aug. 9, 2013) (citing Kotowski v. Daimler–Chrysler Corp.
Long Term Disability Benefit Plan, 06–15278, 2007 WL 4171238, at *10 (E.D. Mich.
Nov. 20, 2007)).
Plaintiff also cites to an opinion letter written by Dr. Burton and sent to Unum on
or about May 21, 2012. In this letter, Dr. Burton stated that the relationship between
Plaintiff’s cataplexy and her mast cell activation syndrome/ angioedema was finally
becoming clear to him. Dr. Burton wrote:
It is very clear to me the apprehension over the fear of needed to be
intubated with her angioedema is enough to further drive her anxiety
and thus her cataplexy. There is a unifying theme underlying her
symptomatology from both of these conditions (namely anxiety).
With that in mind, I am now in a better position to respond to Dr.
Crawford’s questions posed to me last week on the phone as to what
restrictions I would place on her as the treating physician given these
conditions:
1. I would specifically control her air; I would require that she work
in an operation where there is a controlled air environment with
respect to irritant inhalants, dust, fumes, and smoke.
2. That there be no outside sun exposure, as sun does flare her
angioedema.
3. Of course, that there be no stress associated with the work
environment, as anxiety associated with this would almost
certainly flare up both conditions of her cataplexy and her
angioedema.
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This letter post-dates any written opinion offered by Dr. Crawford. In fact, by the time
Dr. Burton provided Unum with this opinion, Plaintiff’s case was referred to Dr. Kaplan
for review. (Doc. 10-5, PAGEID 1278). Thus, it is not clear that Dr. Crawford “ignored”
the opinion offered by Dr. Burton on or about May 21, 2012, as suggested by Plaintiff.
It appears, however, that Dr. Bernstein, in October 2011, did identify stress as the
significant reason why Plaintiff was unable to work at that time. From what the Court
can construe from Dr. Bernstein’s correspondence in October 2011, it appears Dr.
Bernstein was also concerned that the stress associated with Plaintiff’s job had some
impact on the symptoms Plaintiff displayed at that time. Dr. Bernstein specifically noted
diagnoses of autonomic dysfunction, narcolepsy and mast cell releasing syndrome. As
noted by Plaintiff, it is not clear from Dr. Crawford report that she ever considered
Plaintiff’s angioedema or mast cell activation syndrome in assessing Plaintiff’s alleged
disability.
Certainly, the Court cannot conclude based on the record at this time that Dr.
Crawford’s failure to mention Plaintiff’s angioedema or mast cell activation syndrome in
assessing Plaintiff’s purported disability actually evidences bias or a conscious decision
to ignore portions of Plaintiff’s medical background. However, Plaintiff’s procedural
challenge in this regard is supported by something more than mere conjecture. Thus, the
Court will permit the limited discovery regarding Dr. Crawford proposed by Plaintiff.2

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The discovery proposed by Plaintiff is attached to Plaintiff’s Motion as Exhibit 2. (Doc. 11-2).
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V. DR. KAPLAN
Dr. Kaplan’s report is dated May 31, 2012; thus it is after Dr. Burton forwarded
his newest opinions on or about May 21, 2012. Dr. Kaplan does not mention this new
information from Dr. Burton in reviewing Dr. Crawford’s conclusions. Dr. Kaplan also
fails to note consideration of Dr. Bernstein’s opinions offered in October 2011. Similar
to Dr. Crawford, Dr. Kaplan also does not reference mast cell activation or angioedema
in determining whether Dr. Crawford’s opinion is supported by Plaintiff’s medical
records. Accordingly, for the same reasons that the Court will permit the limited
discovery concerning Dr. Crawford, the Court will also permit limited discovery
concerning Dr. Kaplan proposed by Plaintiff.
VI. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for ERISA Discovery (Doc. 11) is
GRANTED IN PART and DENIED IN PART. Plaintiff may seek the limited
discovery proposed by Plaintiff concerning Dr. Crawford and Dr. Kaplan. (Doc. 11-2).
IT IS SO ORDERED.

Date: 11/5/13

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

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