Barnes v. UNUM Life Insurance Company of America et al

Filing 78

OPINION AND ORDER. Based on the foregoing, I deny plaintiff's Motion for Summary Judgment # 47 and grant defendant's Motion for Summary Judgment # 58 .IT IS SO ORDERED. Signed on June 3, 2009 by Judge Garr M. King. (kt)

IN T H E UNITED STATES DISTRICT C O U R T DISTRICT OF OREGON FRED A. BARNES, Plaintiff, vs. U N U M LIFE INSURANCE COMPANY OF AMERICA, Defendant. )
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Civil Case No. 04-1203-KI OPINION A N D O R D E R

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Megan E. Glor 621 SW Morrison Street, Suite 900 P o r t l a n d , O r e g o n 97205 Attorney for P l a i n t i f f William T. Patton Lane P o w e l l P C 601 SW Second Avenue, Suite 2100 Portland, Oregon 9 7 2 0 4 - 3 1 5 8 Attorney for Defendant

P a g e 1 - OPINION A N D O R D E R

KING, Judge: Plaintiff Fred B a m e s seeks to recover disability benefits from defendant Unum Life I n s u r a n c e C o m p a n y o f A m e r i c a ( " U n u m " ) . B e f o r e t h e c o u r t is p l a i n t i f f s M o t i o n f o r S u m m a r y Judgment (#47) and d e f e n d a n t ' s Motion for Summary Judgment (#58). Plaintiff asserts he is entitled to Long Term Disability ("LTD") benefits from March 29, 2002, the date his benefits were due b u t not paid, through the date o f judgment, and that he is entitled to continue to receive a monthly LTD benefit so long as he remains disabled. F o r the f o l l o w i n g reasons, I d e n y p l a i n t i f f ' s m o t i o n a n d grant d e f e n d a n t ' s motion.

FACTUAL BACKGROUND
P l a i n t i f f was employed by Leed Electric, Inc. ("Leed") and is a beneficiary under the N E C A M e m b e r s ' G r o u p L o n g T e r m D i s a b i l i t y P l a n ( t h e " P l a n " ) , I a p o l i c y i n s u r e d b y Unum. P l a i n t i f f was diagnosed in 1999 with liposarcoma, a cancer o f deep soft tissue, o f the r i g h t thigh. P l a i n t i f f u n d e r w e n t a s u r g i c a l r e s e c t i o n , r a d i a t i o n t h e r a p y a n d c h e m o t h e r a p y . H e c o n t i n u e d t o w o r k d u r i n g t h i s time. Plaintiff stopped working at Leed o n May 1, 2001. B y this time, he was the vice p r e s i d e n t o f the c o m p a n y . L e e d p a i d p l a i n t i f f s i c k p a y u n t i l D e c e m b e r 2 8 , 2 0 0 1 . A t s o m e p o i n t in 2001, p l a i n t i f f m o v e d to Grants Pass. H e may have m o v e d as early as February 2001 because, in a clinic note at that time, one o f plaintiff's doctors indicated that p l a i n t i f f "is to followup with a primary care physician d o w n closer to home in Grants Pass." Dec!. o f Megan Glor, Ex. B at 23 (hereinafter, "Ex. B"). In any event, p l a i n t i f f had moved to Grants Pass by July 2001. He asserts

'This was later replaced b y the National Association Executives Forum, Inc. Benefits Program. Page 2 - OPINION A N D O R D E R

it was not a permanent move until the fall o f 2 0 0 1 . Darlene Duran, i n charge o f payroll at Leed, stated that p l a i n t i f f attempted to return to work in August 2001 b u t that he was unable to finish the estimates o r concentrate o n his work because o f his medical problems. P l a i n t i f f says he moved so that his wife a n d children could be close to family i f he did not recover a n d so that the family c o u l d c a r e f o r h i s i l l f a t h e r - i n - l a w . P l a i n t i f f assumed ownership o f his father-in-Iaw's auto parts business i n Grants Pass. He stated he has never been a n employee o f the business, but that he was a n investor a n d that he worked approximately ten hours p e r month securing financing and signing documents. There is evidence he worked more hours t h a n he reported. In the summer o f 2002, for example, he told S u s a n W r o n a - S e x t o n , t h e p s y c h i a t r i c m e n t a l h e a l t h n u r s e p r a c t i t i o n e r w h o t r e a t e d plaintiff, t h a t h e w a s " b e g i n n i n g to e n g a g e i n h i s o l d h a b i t s o f g e t t i n g d e e p l y i n t o t h e b u s i n e s s a n d w o r k i n g e x c e s s h o u r s " a n d t h a t h e w a s b u s y w i t h t h e b u s i n e s s w h i c h is w h y h e h a d n o t c o m p l e t e d disability papers. Id. at 197, 222. They discussed his going to work later o r taking time o f f in the afternoon and closing t h e business o n Sundays so that he would have a day to himself. Id. at 256.

In October, p l a i n t i f f informed Wrona-Sexton that the business had hired another person so he
could decrease the "excessive time he needs to be there." Id. at 259. P l a i n t i f f applied for LTO benefits under the P l a n o n April 23, 2002, alleging that he had been unable to work due to liposarcoma. The P l a n defines a disability as follows: " Y o u are disabled when Unum determines that: you are l i m i t e d from performing the m a t e r i a l a n d s u b s t a n t i a l d u t i e s o f your r e g u l a r o c c u p a t i o n due to your s i c k n e s s o r i n j u r y ; and you have a 20% or more loss i n your i n d e x e d m o n t h l y e a r n i n g s due to the same sickness or injury." Decl. o f Megan Glor, Ex. A at 15 (bold in original) (hereinafter, "Ex. A"). Page 3 - OPINION AND O R D E R

Once L I D benefits have been paid for 24 months, the insured is entitled to benefits i f he is unable to "perform the duties o f any gainful o c c u p a t i o n " for w h i c h he is "reasonably fitted by education, training or experience." Id. at 15. "Gainful occupation" is defined, i n relevant part, to be " a n occupation that is or can b e expected t o provide you w i t h a n income within 12 months o f your return to work, that exceeds 60% o f your indexed monthly earnings . . . ." Id. at 38. In a telephone call w i t h U n u m o n May 31, 2002, plaintiff described his disabling condition as an inability to climb o r handle rough terrain and stairs; h e explained that he had stopped working in the fall o f 2 0 0 1 . He also informed U n u m that no doctor h a d suggested he s t o p working. O n J u l y 31, 2 0 0 2 , U n u m n o t i f i e d p l a i n t i f f b y t e l e p h o n e a n d l e t t e r t h a t i t h a d d e n i e d h i s claim, but that he could appeal within 180 days o f the date he received the denial letter. Unum did not send the letter by any means that could be tracked a n d p l a i n t i f f does not remember when h e r e c e i v e d the l e t t e r . P l a i n t i f f a l s o a p p l i e d f o r a w a i v e r o f h i s life i n s u r a n c e p r e m i u m , w h i c h U n u m d e n i e d o n August 8, 2002. Plaintiff appealed b o t h decisions (denial o f L I D benefits and denial o f application for w a i v e r o f life insurance premium) o n February 7, 2003. His appeal o f the LTD benefits denial was submitted 191 days after U n u m sent its denial letter to plaintiff. U n u m notified plaintiff in a l e t t e r d a t e d M a r c h 2 8 , 2 0 0 3 t h a t t h i s a p p e a l was untimely. P l a i n t i f f a l s o a p p e a l e d U n u m ' s d e n i a l o f h i s w a i v e r o f l i f e i n s u r a n c e p r e m i u m c l a i m a n d t h a t a p p e a l was t i m e l y . U n u m e v a l u a t e d t h a t c l a i m o n the m e r i t s a n d u p h e l d t h e d e n i a l .

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Plaintiff asked for reconsideration o f the LTD benefits claim denial o n September 2, 2003. O n September 16, 2003, Unum explained that " [ i ] n calculating the time i n which to appeal a decision, we add an additional t e n days, which is [a] sufficient amount o f t i m e for an Insured to r e c e i v e c o r r e s p o n d e n c e . . . . [ n h e a p p e a l w a s r e c e i v e d m o r e t h a n 190 d a y s f r o m t h e l e t t e r d a t e d July 31, 2002, which is beyond the allotted timeframe. [W]e are upholding our prior decision to deny reconsideration o f Mr. B a r n e s ' [LTD] claim." Ex. B a t 394. In November 2003, U n u m entered into a Regulatory Settlement Agreement ("RSA") with t h e D e p a r t m e n t o f L a b o r . P u r s u a n t t o t h e t e r m s o f t h e RSA, U n u m o f f e r e d t o r e a s s e s s p l a i n t i f f s claim and plaintiff accepted that offer. Unum reviewed p l a i n t i f f s entire file. D u r i n g t h e r e a s s e s s m e n t p u r s u a n t t o t h e R S A , t h e i n s t a n t a c t i o n w a s stayed. O n July 1 3 , 2 0 0 7 , U n u m denied p l a i n t i f f s claim. Unum explained that, " i n order to be eligible for coverage, a n employee must be actively at work and working a minimum o f 30 hours per week. As Mr. Barnes stopped working at Leed Electric o n 5/1/01, he would no longer be c o n s i d e r e d a n a c t i v e e m p l o y e e a n d h i s c o v e r a g e w o u l d e n d a t t h a t t i m e , u n l e s s h e is c o n s i d e r e d disabled under the policy." rd. at 986. The remainder o f the denial letter reads i n pertinent part as follows: Mr. Barnes would have to b e considered disabled as o f 5/1/01 in order to be eligible for b e n e f i t s . A r e v i e w o f t h e m e d i c a l r e c o r d s h a s d e m o n s t r a t e d t h a t , subsequent to his surgery for liposarcoma i n 1999, Mr. Barnes continued to be a c t i v e a n d c o n t i n u e d t o f u n c t i o n i n h i s c a p a c i t y as M a n a g e r / E s t i m a t o r N i c e P r e s i d e n t a t L e e d E l e c t r i c . H e s u b s e q u e n t l y t o o k h i m s e l f o u t o f w o r k o n 5/1/01 without certification o f disability by a physician. There is no medical d o c u m e n t a t i o n o f a n y t r e a t m e n t o r a n y c h a n g e i n his c o n d i t i o n at t h a t t i m e . T h e office visit note from Dr. Vetto o n 1/16/01 and the subsequent visit o n 7110/01 show no indication o f any worsening in his condition and n o documented concerns regarding his ability to work. I t is also noted that during that same time frame, M r . B a r n e s m o v e d t o G r a n t s P a s s a n d t o o k o v e r a f a i l i n g a u t o p a r t s

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business. A s n o t e d above, while Mr. B a m e s h a s indicated t h a t his involvement i n t h e a u t o p a r t s b u s i n e s s w a s l i m i t e d t o h e l p i n g his w i f e o v e r s e e t h e o p e r a t i o n o f t h e business, the evidence indicates that he was heavily involved a n d w o r k i n g e x c e s s i v e hours. W h i l e w e a g r e e t h a t r e a s o n a b l e (physical) r e s t r i c t i o n s a n d l i m i t a t i o n s , as o f t h e date o f M r. B a r n e s [sic] surgery i n 6/99 might include those as n o t e d b y Dr. K o h l e r a n d the SSA, i t is also apparent that Mr. B a m e s continued t o function in his r o l e a t L e e d E l e c t r i c s u b s e q u e n t t o h i s s u r g e r y i n 1 9 9 9 t h r o u g h t h e t i m e h e p h a s e d h i m s e l f o u t o f w o r k o n 5 / 1 / 0 1 . I t a p p e a r s t h a t M r . B a r n e s ' d e c i s i o n t o stop w o r k i n g at L e e d E l e c t r i c a n d m o v e to Grants P a s s to t a k e o v e r h i s f a t h e r - i n - I a w ' s business w a s a personal c h o i c e o n his p a r t a n d n o t due to a n y m e d i c a l impairment. Mr. B a m e s has n o t p r o v i d e d p r o o f o f disability, as o f 5/1/01, as t h e r e is n o doctor certifying his disability a n d there is n o medical documentation t o suggest t h a t there w a s a w o r s e n i n g i n h i s c o n d i t i o n a t t h a t t i m e . Id. at 988.

LEGAL STANDARDS
Summary j u d g m e n t is appropriate i f t h e r e is no genuine issue as t o any material fact a n d the moving party is entitled t o j u d g m e n t as a m a t t e r o f l a w . Fed. R. Civ. P. 56(c). I n E R I S A a c t i o n s , h o w e v e r , " a m o t i o n f o r s u m m a r y j u d g m e n t is m e r e l y t h e c o n d u i t t o b r i n g the legal question before the district c o u r t a n d the usual tests o f s u m m a r y j u d g m e n t , s u c h as whether a genuine dispute o f material fact exists, do n o t apply." B e n d i x e n v. S t a n d a r d Ins. Co., 185 F.3d 9 3 9 , 9 4 2 (9th Cir. 1999). " E R I S A was e n a c t e d t o promote. the interests o f employees a n d t h e i r beneficiaries i n e m p l o y e e b e n e f i t p l a n s a n d t o p r o t e c t c o n t r a c t u a l l y defined b e n e f i t s . " F i r e s t o n e Tire a n d R u b b e r Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal quotation a n d c i t a t i o n omitted). When a denial o f benefits is challenged u n d e r E R I S A ' s 29 U.S.C. § 1132(a)(I)(B), t h e c o u r t ' s r e v i e w o f t h e a d m i n i s t r a t o r ' s d e c i s i o n i s d e n o v o u n l e s s t h e p l a n u n a m b i g u o u s l y c o n f e r s d i s c r e t i o n o n the a d m i n i s t r a t o r t o d e t e r m i n e e l i g i b i l i t y f o r b e n e f i t s o r t o c o n s t r u e t h e terttls o f t h e p l a n . I f the p l a n

P a g e 6 - OPINION A N D O R D E R

confers discretion o n the administrator, the court reviews the decision for an abuse o f discretion and c a n only set aside the discretionary determination i f i t is arbitrary a n d capricious. 2 Since the P l a n provides that the plan administrator has discretion to construe a n d interpret the terms o f the P l a n , U n u m ' s d e c i s i o n is r e v i e w e d u n d e r t h e abuse o f d i s c r e t i o n s t a n d a r d . The abuse o f discretion standard applies even i f the administrator has a conflict o f i n t e r e s t , s u c h as w h e n t h e s a m e c o m p a n y i s b o t h t h e d e c i s i o n - m a k e r a n d t h e p a y o r . M e t r o p o l i t a n Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348 (Jun. 1 9 , 2 0 0 8 ) ; Abatie, 458 F . 3 d at 967. Similarly, minor procedural irregularities do not shift the standard o f review from abuse o f discretion to de novo. Abatie, 458 F.3d at 972. Rather, pursuant to Abatie, the court should use the abuse o f discretion standard a n d ' ' t a i l o r its review to all the circumstances before it," rendering the conflict o f interest and m i n o r procedural irregularities as factors to consider. Id. at 968. The conflict will weigh more heavily against the insurer 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 o f biased claims administration." Glenn, 128 S. Ct. at 2351. DISCUSSION

1.

Level o f S c r u t i n y P l a i n t i f f argues that U n u m was influenced to deny his claim by its financial stake and

that, as a result, the court should more carefully scrutinize U n u m ' s decision under an arbitrary

The N i n t h C i r c u i t h a s n o t e d t h a t the standards o f " a r b i t r a r y a n d c a p r i c i o u s " and " a b u s e o f discretion" differ i n name only. A t w o o d v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 n . l (9th Cir. 1995), overruled o n other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F 3 d 955 (9 th Cir. 2006) (en banc).
2

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and capricious review approaching de novo review. He asserts that the influence is apparent in the following three ways:
A.

U n u m I g n o r e d Its O w n V o c a t i o n a l E x p e r t ' s C o n c l u s i o n

Plaintiff argues U n u m ' s " m o s t egregious act" is its inexplicable failure to consider its o w n v o c a t i o n a l e x p e r t ' s o p i n i o n t h a t p l a i n t i f f c o u l d n o t work. U n u m ' s Vocational Rehabilitation Consultant Richard Byard, JD, M S , CRC, Sr., evaluated plaintiff's file o n July 6, 2007. He reviewed the occupational information provided to him by Unum a n d p l a i n t i f f a n d concluded that " [ bl a s e d o n the available information, i t is reasonable t o c o n c l u d e t h a t the p h y s i c a l d e m a n d s o f the c l a i m a n t ' s o w n o c c u p a t i o n w o u l d exceed his level o f physical work capacity as described in the stated [Restrictions and Limitations ( " R & L ' s " ) ] . " Ex. B a t 956. He also stated, B a s e d o n t h e c l a i m a n t ' s p r i o r training, education, a n d e x p e r i e n c e , his n a r r o w l y focused employment history within the electrical contracting field, his stated R & L ' s , and his relatively high gainful wage threshold, I am unable to identify any suitable and gainful alternative occupations for this claimant based o n a n a s s e s s m e n t o f h i s p h y s i c a l capacities. Id. at 957. Unum responds that i t simply chose to accept one opinion over another and i t is not required to explain why. See Jordan v. Northrop Grumman Com. Welfare Benefit Plan, 370 F.3d 8 6 9 , 8 7 9 (9th Cir. 2004) (courts may not "impose o n plan administrators a discrete bw::den o f e x p l a n a t i o n w h e n t h e y c r e d i t reliable e v i d e n c e t h a t conflicts w i t h a t r e a t i n g p h y s i c i a n ' s e v a l u a t i o n " ) . R a t h e r t h a n c r e d i t the v o c a t i o n a l e x p e r t , U n u m a s s e r t s i t ( i ) c r e d i t e d t h e o p i n i o n s o f seven medical consultants; (ii) considered plaintiff's own actions in working for the auto parts store a f t e r c e a s i n g w o r k a t L e e d ; a n d (iii) e v a l u a t e d s t a t e m e n t s f r o m p l a i n t i f f ' s o w n p r o v i d e r s Page 8 - OPINION A N D O R D E R

indicating that p l a i n t i f f s medical situation was improving and that he was working excessive hours a t t h e a u t o p a r t s store. Unum is generally correct i n its assertion that i t need n o t explain why i t accepted reliable e v i d e n c e o v e r c o n f l i c t i n g e v i d e n c e . H e r e , h o w e v e r , as p l a i n t i f f n o t e s , B y a r d w a s t h e o n l y c o n s u l t a n t t o c o n s i d e r p l a i n t i f f ' s m e d i c a l r e c o r d i n t h e c o n t e x t o f the P l a n ' s d i s a b i l i t y d e f I n i t i o n and no expert gave a conflicting opinion. While courts may not require a n explanation when plan administrators accept evidence that conflicts with information submitted by the claimant, at the s a m e t i m e " [ p ] l a n a d m i n i s t r a t o r s m a y n o t a r b i t r a r i l y r e f u s e t o c r e d i t a c l a i m a n t ' s r e l i a b l e evidence" when there is n o evidence to the contrary. See Black & Decker Disability P l a n v. Nord, 538 U.S. 822, 834 (2003). It is particularly troubling that Byard was a n expert hired by U n u m a n d y e t n o w h e r e i n i t s d e c i s i o n does U n u m e x p l a i n w h y i t r e j e c t e d B y a r d ' s c o n c l u s i o n . U n u m ' s failure to provide this explanation is sufficient to cause me to conclude that the s t r u c t u r a l c o n f l i c t o f i n t e r e s t m a y h a v e a f f e c t e d U n u m ' s e v a l u a t i o n . A s a r e s u l t , I i m p o s e a more s t r i n g e n t s t a n d a r d o f review.

B.

Unum Initially Refused to Review Plaintiff's

A~~eal

P l a i n t i f f a l s o a r g u e s U n u m ' s c o n c l u s i o n t h a t p l a i n t i f f ' s a p p e a l w a s late w a s u n r e a s o n a b l e and is a reflection o f h o w the structural conflict affected U n u m ' s approach t o plaintiff's claim. Unum informed p l a i n t i f f that his appeal was due within 180 days o f the date he received the denial letter. It, however, did not track its initial denial letter a n d does not k n o w w h e n the 180day c l o c k b e g a n t i c k i n g . I n s t e a d , U n u m a l l o w e d f o r a t e n day m a i l i n g w i n d o w , t h e r e b y allowing the appeal to be filed within 190 days.

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I agree w i t h U n u m that its deadline for plaintiff's appeal w a s not unreasonable, Unum n o t i f i e d p l a i n t i f f o f t h e 1 8 0 - d a y d e a d l i n e a n d p l a i n t i f f ' s a p p e a l w a s l a t e e v e n w h e n p r o v i d i n g him t e n extra days for mailing. I n concluding that a heightened moderate level o f review is required here, I do not consider as a factor the denial due to an untimely appeal. C. U n u m R e l i e d o n D u r a n ' s Statements about P l a i n t i f f ' s J o b D u t i e s

P l a i n t i f f asserts U n u m i g n o r e d p l a i n t i f f ' s o w n d e s c r i p t i o n s o f h i s j o b duties, ignored D u r a n ' s initial statements about plaintiff's j o b duties, and instead relied o n statements Duran m a d e b y t e l e p h o n e m u c h later. H e a r g u e s t h a t U n u m ' s c h o i c e t o r e l y o n D u r a n ' s l a t e r s t a t e m e n t s demonstrates that i t was influenced by its conflict o f interest. Additionally, p l a i n t i f f suggests that Unum improperly ignored its plan language, which required i t to evaluate plaintiff's j o b duties as they are "performed i n the national economy" and not h o w they are performed b y a particular employee. E x . A a t 40. P l a i n t i f f reported o n May 31, 2002 that he worked approximately h a l f o f his time o n e l e c t r i c a l w o r k , w h i c h r e q u i r e d t h a t he bend, s q u a t a n d c l i m b , w h i l e h e s p e n t t h e o t h e r h a l f managing projects a n d providing estimates. When he was managing projects a n d estimating, he spent about 15 percent o f his time in the field and 85 percent at his desk. P l a i n t i f f provided further explanation o f the breakdown o f his duties in support o f his appeal submitted February 5, 2003. Similarly, i n his Social Security Work History Report, p l a i n t i f f reported he walked and stood several hours a day, and knelt, crouched, crawled, a n d handled objects about 15 to 30 minutes a day. This description is consistent with the information he gave his providers. Ex. B at 21 (John Vetto, M.D., noted p l a i n t i f f "walks vigorously for his j o b s , which involve site

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inspections."); id. at 35 (Susan Kohler, M.D., noted that p l a i n t i f f t o l d h e r he had to climb high buildings, 200 feet above the ground, and that after the surgery he felt less comfortable doing so). Additionally, Duran, who was not p l a i n t i f f s direct supervisor, initially informed Unum o n May 7 , 2 0 0 2 , t h a t p l a i n t i f f worked as a managerlestimatorlvice president. She reported that he estimates n e w j o b s , visits j o b sites, and meets general contractors. Several months later, U n u m ' s vocational consultant, B r u c e Hoffman, called D u r a n to ask about p l a i n t i f f s j o b duties. At that time, Duran reported p l a i n t i f f spent 80 to 90 percent o f his day in t h e office and did no installations himself. F r o m t h i s description, H o f f m a n c o n c l u d e d t h a t p l a i n t i f f ' s j o b w a s sedentary. P l a i n t i f f a r g u e s t h a t U n u m ' s f a i l u r e to i n v e s t i g a t e t h e d i s c r e p a n c y b e t w e e n D u r a n ' s l a t e r d e s c r i p t i o n a n d h e r e a r l i e r d e s c r i p t i o n , a n d the c o n f l i c t b e t w e e n D u r a n ' s l a t e r s t a t e m e n t a n d plaintiff's statements, is indicative o f h o w Unum was influenced by its conflict. Contrary to p l a i n t i f f ' s reading, U n u m ' s denial was premised o n the fact that there was no evidence that p l a i n t i f f was unable to work as o f May 1, 2001. Indeed, whether p l a i n t i f f performed the j o b as he described it, as Duran described it, o r as i t was performed i n the national e c o n o m y , U n u m w a s f o c u s e d o n t h e fact t h a t p l a i n t i f f c o u l d a n d d i d p e r f o r m h i s j o b d e s p i t e h i s l i p o s a r c o m a a n d t h a t h e s t o p p e d w o r k i n g o f m s o w n v o l i t i o n a n d n o t d u e t o a n y o b v i o u s change in his condition. As a result, I do not consider this as a factor in identifying the appropriate s t a n d a r d o f review.

III

III
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D.

Conclusion

Although there is n o evidence o f malice, p o o r history o f claims investigation, 3 or selfdealing, there is some evidence Unum was influenced b y its conflict o f interest to deny plaintiff's claim. While U n u m ' s initial denial o f the appeal for being late is n o t egregious and Unum did not rely o n D u r a n ' s description o f p l a i n t i f f ' s j o b duties i n denying p l a i n t i f f ' s claim, i t is d i s c o n c e r t i n g t h a t U n u m i g n o r e d its o w n vocational e x p e r t ' s o p i n i o n t h a t p l a i n t i f f m e t t h e defmition o f disability under t h e Plan. Although i t is true i t need not rely o n the opinion, when there is no conflicting evidence i t ought to explain its rationale in rejecting the evidence. Its failure to do so is sufficient t o suggest that Unum may have been persuaded by its bottom line to deny p l a i n t i f f s c l a i m . A s a r e s u l t , I h a v e d e c i d e d t o a p p l y a m o d e r a t e l e v e l o f s c r u t i n y . I a m g u i d e d b y the principles that " [ a ] n administrator's decision is a n abuse o f discretion when i t is without reason, unsupported by substantial evidence o r erroneous as a matter o f l a w. . . . [T]he focus o f a n abuse o f discretion inquiry is the administrator's analysis o f the administrative r e c o r d - i t is not an inquiry into the underlying facts." Torres v. Reliance Standard Life Ins. Co., 551 F. Supp. 2d 1221, 1233 (D. Or. 2008) (internal citations omitted), r e v ' d o n other grounds, 2009 WL 725938 (9th Cir. Mar. 1 6 , 2 0 0 9 ) . However, because a somewhat higher level o f inquiry is required, I will closely r e v i e w U n u m ' s decision.

the hearing o n these motions, plaintiff argued that U n u m ' s claims administration is relevant in assessing the standard o f review. Plaintiff failed to raise the argument i n any o f the many briefs. Furthermore, there is n o evidence in the record as to the reason for the reassessment. I do not consider U n u m ' s history o f claims administration as a factor. Page 12 - OPINION AND O R D E R

3A t

n.

E v a l u a t i o n o f the E v i d e n c e Both parties agree that plaintiff must be disabled as o f May 1 , 2 0 0 1 i n order to be entitled

to benefits. The question is whether Unum abused its discretion in finding plaintiff not disabled as o f that date. Plaintiff argues that Unum unreasonably focused o n plaintiff's ability to work during and after cancer treatment when plaintiff is a hard worker who continued to work despite his disability. The evidence is clear that plaintiff is the type o f person who "finds unemployment emotionally painful" and who does not "shirk from work and responsibility." Ex. B at 275, 670, 270. As plaintiff points out, " A desperate person might force h i m s e l f to work despite an illness that everyone agreed was totally disabling. . . . A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working." Hawkins v. First Union Com. Long-Term Disability Plan, 326 F.3d 9 1 4 , 9 1 8
(7lh Cir. 2003).

I f Unum denied plaintiff's claim solely because he continued to work, I would agree with

plaintiff. Here, however, Unum reasonably concluded that the medical evidence at the relevant time also did not support a finding that plaintiff's condition was disabling. I n January 2000, Dr. V e t t o noted, The patient feels well. He managed to work all the way through his radiation and chemotherapy without missing any significant amount o f time. He notes that he has some weakness and flexion when attempting t o cross his leg but otherwise has full range o f motion and n o m a j o r complaints. T h e o p e r a t i o n does n o t a p p e a r to b e i n t e r f e r i n g w i t h his w o r k o r lifestyle; a l t h o u g h , t h e p a t i e n t is a n x i o u s to go b a c k [to] m o r e r i g o r o u s exercise p r o g r a m .

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Ex. B at 7-8 (emphasis added). F o u r months before p l a i n t i f f left Leed, Dr. Vetto stated in a chart note o f January 16, 2001, T h e p a t i e n t h a s n o n e w c o m p l a i n t s t o d a y e x c e p t f o r s o m e t i g h t n e s s i n t h e lateral portion o f the right thigh which he has noticed since becoming more active. The patient walks vigorously for his j o b s , which involve site inspections. T h e p a t i e n t says t h e tightness is n o t t h a t p a r t i c u l a r l y t r o u b l i n g and is wondering i f it is a d v i s a b l e t o s t a r t s o m e s t r e t c h i n g exercises. Id. at 20 (emphasis added). O n e m o n t h later, p l a i n t i f f s a w J o h n H o l l a n d , M . D . , w h o c o m m e n t e d p l a i n t i f f w a s " d o i n g

well." Id. at 23.
P l a i n t i f f d i d n o t s e e k t r e a t m e n t f o r h i s t h i g h i n M a r c h , A p r i l , M a y o r J u n e , 2001. Plaintiff did not see Dr. Vetto again until July 10 w h e n Dr. Vetto noted p l a i n t i f f s " l e g cramps have become dramatically better after he was put o n quinine b y a local provider," and that p l a i n t i f f s problems " h a v e not worsened o f l a t e and have actually improved." Id. at 29. At the same time, Tonya Enomoto, M.D., a resident working with Dr. Vetto, recorded that plaintiff experiences tightness and cramping when he exercises and that since the "patient is involved in construction, this is s o m e w h a t inhibiting while he is at work." Id. at 30-31 (emphasis added). O n July 19, Susan Kohler, M.D., noted that plaintiff takes quinine a n d cyclobenzaprine at night for his leg cramps, and i n September she commented that p l a i n t i f f "has been doing well." Id. at 39. Also at that time, Dr. Kohler explained that p l a i n t i f f reported " s o m e continued discomfort in this right thigh, but notes more n o w that he is having left knee pain, probably from changes in his gait. He has stopped taking quinine and is actually taking Flexeril, both for sleep and for muscle spasm, a n d this seems to be working quite nicely. H e has h a d no febrile symptoms." Id. Page 14 - OPINION AND O R D E R

In October, p l a i n t i f f complained o f fatigue, insomnia and knee pain to Christopher Alftine, M . D . , w h o n o t e d " n o w e a k n e s s o r rigidity" w i t h p l a i n t i f f s " s t r e n g t h a n d t o n e , " a n d " n o instability" with regard to his " g a i t a n d station." Id. at 43. Plaintiff interprets these treatment records as providing objective evidence o f p l a i n t i f f s d i s a b i l i t y a n d e x p l a i n s t h a t h e d o e s n o t c o m p l a i n , w h i c h is w h y t h e r e c o r d s d o n o t r e f l e c t h o w t h e surgery affected him. P l a i n t i f f s interpretation o f the evidence may be reasonable, but so is U n u m ' s . See Torres, 551 F. Supp. 2d at 1234 (considered whether reasonable basis for d e f e n d a n t s ' c o n c l u s i o n u n d e r m o d e r a t e l e v e l o f scrutiny). U n u m r e a s o n a b l y f o u n d t h a t n e i t h e r p l a i n t i f f nor his treating physicians indicated that plaintiff's right leg was unstable o r that he was unable to perform his duties at work because o f his liposarcoma. F u r t h e r m o r e , U n u m p r o p e r l y c o n s i d e r e d p l a i n t i f f s h e a v y i n v o l v e m e n t i n h i s father-inl a w ' s a u t o p a r t s s t o r e a f t e r l e a v i n g Leed. A c c o r d i n g t o t h e r e c o r d , p l a i n t i f f w a s " w o r k i n g e x c e s s hours," had " b e e n busy [with] his G.P. business," needed to "step back from his intense workload," and needed t o decrease ''the excessive time he needs to b e " at business. Ex. B at 197, 222, 256, 259. This high level o f activity is inconsistent w i t h the notion that plaintiff finally left Leed in May 2001 because he simply could not bear the pain any longer, e v e n though objectively his c o n d i t i o n h a d n o t w o r s e n e d . Unum also points out that seven different medical consultants reviewed p l a i n t i f f s file and came to the same conclusion that p l a i n t i f f was not disabled. While p l a i n t i f f is correct that two o f t h o s e o p i n i o n s w e r e s h o r t a n d s o m e w h a t s u p e r f i c i a l i n t h e i r analyses, a n d t h a t U n u m ' s e x p e r t s did n o t t a l k w i t h p l a i n t i f f o r a n y o f h i s t r e a t i n g p r o v i d e r s a n d d i d n o t e x a m i n e plaintiff, the o p i n i o n s s u p p o r t U n u m ' s r e a d i n g o f p l a i n t i f f s m e d i c a l r e c o r d s .

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Specifically, Bethany Washburn, RN, summarized the medical record at length a n d concluded that p l a i n t i f f has "demonstrated capacity since [his diagnosis a n d treatment] and medicals indicate that his condition has actually improved." Id. at 208. Brian Brock, D.O. found, in a short report, that " t h e records do not indicate physician documented worsening o f the c l m t ' s condition." Id. at 208. Maureen Lee, D.O., a n in-house osteopathic physician, reviewed p l a i n t i f f s file and mentioned that p l a i n t i f f s doctors were not concerned about p l a i n t i f f s continuing to work, that they recommended m i l d treatment, a n d that plaintiff did not seek care for his leg frequently. Dr. Lee p o i n t e d o u t t h a t p l a i n t i f f s d o c t o r s d i d n o t r e f e r h i m to p h y s i c a l t h e r a p y , d i d n o t r e c o m m e n d c o m p r e s s i o n stockings, d i d n o t r e c o m m e n d p a i n m e d i c a t i o n o r any a l t e r a t i o n i n p a i n medications, and did not refer p l a i n t i f f back to his orthopedic specialist. Rohert Keller, M.D., another in-house physician, signed o f f o n Dr. L e e ' s conclusion without providing any analysis o f his own. Similarly, Stewart Russell, D.O., commented that no doctor had imposed functional l i m i t a t i o n s o n p l a i n t i f f a n d t h a t p l a i n t i f f h a d not r e p o r t e d w o r s e n i n g s y m p t o m s u n t i l A p r i l o f 2002. W i t h r e g a r d t o p l a i n t i f f s p s y c h o l o g i c a l state, C a t l y l e V o s s , M . D . , a p s y c h i a t r i c c o n s u l t a n t for U n u m , o p i n e d , ' ' T h e a v a i l a b l e i n f o r m a t i o n d o e s n o t s u p p o r t t h e p r e s e n c e o f psychiatric symptoms o r related R/Ls, which preclude Mr. Barnes [sic] participation i n his former occupation." Id. at 322. Similarly, Michelle Schwab, PhD, a clinical psychologist c o n s u l t a n t , c o n c l u d e d , " T h e i n s u r e d was a b l e t o m o v e to a n o t h e r s t a t e , w i n d d o w n h i s i n v o l v e m e n t i n o n e b u s i n e s s , a n d s t a r t u p i n v o l v e m e n t i n a n e w b u s i n e s s . T h e r e is s i m p l y n o t

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evidence o f a significant mental disorder that renders h i m unable to w o r k from a psychological perspective." Id. at 746 (emphasis in original).
I t is clear p l a i n t i f f ' s condition worsened i n late 2002 and early 2003. T h e relevant period

at issue, however, is M a y 2001. Accordingly, Dr. Alftine's diagnosis o f depression a year later i n 2 0 0 2 a n d o f f i b r o m y a l g i a i n 2 0 0 3 a r e i r r e l e v a n t to U n u m ' s e v a l u a t i o n o f t h e e v i d e n c e . Similarly, t r e a t m e n t b y R u d y G r e e n e , M . D . , f o r d i f f u s e a r t h r a l g i a s a n d m y a l g i a s , s e v e r e fatigue a n d insomnia i n 2005 is immaterial. Finally, Susan Wrona-Sexton's treatment o f p l a i n t i f f for depression in July 2002 through February 2005 has n o bearing o n U n u m ' s decision. As I noted above, U n u m ' s failure to explain its rejection o f its o w n vocational e x p e r t ' s opinion is troubling. Nevertheless, given that evidence in the record supports U n u m ' s c o n c l u s i o n t h a t p l a i n t i f f w a s n o t d i s a b l e d , a n d t h e fact t h a t U n u m w a s n o t r e q u i r e d t o a c c e p t t h e v o c a t i o n a l e x p e r t ' s o p i n i o n , t h e l a c k o f e x p l a n a t i o n is n o t s u f f i c i e n t t o r e n d e r U n u m ' s d e c i s i o n arbitrary and capricious. Cf. Gaither v. Aetna Life Ins. Co., 394 F . 3 d 7 9 2 , 8 0 7 (loth Cir. 2004) ( i n s u r e r s " c a n n o t s h u t t h e i r e y e s t o r e a d i l y a v a i l a b l e i n f o r m a t i o n w h e n t h e e v i d e n c e i n the r e c o r d s u g g e s t s t h a t the i n f o r m a t i o n m i g h t c o n f i n n t h e b e n e f i c i a r y ' s t h e o r y o f e n t i t l e m e n t a n d w h e n

t h e y h a v e l i t t l e o r n o e v i d e n c e i n t h e r e c o r d t o r e f u t e t h a t t h e o r y . " ) ( e m p h a s i s added)).
Finally, p l a i n t i f f takes issue with U n u m ' s failure to accept the decision made b y the Social Security ALJ, who concluded p l a i n t i f f was incapable o f p e r f o n n i n g his past work. Unum was n o t a r b i t r a r y a n d c a p r i c i o u s i n i g n o r i n g t h e A L I ' s O c t o b e r 2 0 0 5 d e c i s i o n b e c a u s e t h e A L J d i d n o t e s t a b l i s h a d a t e o f o n s e t for t h e r e s t r i c t i o n s a n d l i m i t a t i o n s .

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Additionally, Unum was not arbitrary and capricious in relying on the evidence plaintiff submitted in support o f his application for Social Security disability. There is no indication Unum ignored evidence benefitting plaintiff in favor o f evidence that undermined his claim. CONCLUSION Based o n the foregoing, I deny plaintiff's Motion for Summary Judgment (#47) and grant defendant's Motion for Summary Judgment (#58). IT IS SO ORDE~i?A D a t e d this

)=---)/__ _ day o f June, 2009.

U n i t e d States D i s t r i c t J u d g e

GOhiffu£~i

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