Vaughn v. Hartford Life Insurance Company
Filing
68
Opinion and Order. The Court GRANTS Plaintiff's Motion (# 49 ) for Summary Judgment, DENIES Plaintiff's Motion (# 64 ) to Strike as moot, DENIES Defendant's Motion (# 53 ) for Summary Judgment, and enters Judgment in favor of Plaintiff. IT IS SO ORDERED. See attached order for further details. Signed on 6/12/19 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHANIE S. VAUGHN,
Plaintiff,
3:17-cv-01904-BR
OPINION AND ORDER
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.
MEGAN E. GLOR
JOHN C. SHAW
Megan E. Glor, Attorneys at Law, P.C.
707 N.E. Knott St., Suite 101
Portland, OR 97212
(503) 223-7400
Attorneys for Plaintiff
RUSSELL S. BUHITE
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1201 Third Ave., Suite 5150
Seattle, WA 98101
(206) 693-7052
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff Stephanie
S. Vaughn's Motion (#49) for Summary Judgment, Defendant
1 – OPINION AND ORDER
Hartford Life and Accident Insurance Company's Cross-Motion
(#53) for Summary Judgment, and Plaintiff's
Motion (#64) to
Strike the Declaration (#63) of Russell S. Buhite in Support of
Defendant's Reply.
The Court concludes the record is
sufficiently developed, and, therefore, oral argument is not
required to resolve this matter.
For the reasons that follow, the Court GRANTS Plaintiff's
Motion (#49) for Summary Judgment and DENIES Defendant's Motion
(#53) for Summary Judgment.
The Court also DENIES as moot
Plaintiff's Motion (#64) to Strike.
BACKGROUND
I.
Plaintiff Vaughn's Claims
Vaughn alleges Hartford violated ERISA law when it
terminated Vaughn's Long-Term Disability (LTD) benefits.
Pursuant to 29 U.S.C. § 1332(a)(1)(B) Vaughn seeks reinstatement
of her LTD benefits from Hartford under the disability plan
(Plan) of her employer, Northwest Permanente, P.C. (Kaiser).
II.
Procedural Facts
Vaughn was employed by Kaiser as a family-practice
physician.
Hartford was the insurer for benefits under the
group LTD Certificate of Insurance for Kaiser and administered
Vaughn's claim for benefits.
2 – OPINION AND ORDER
In March 2013 Vaughn applied for LTD benefits on the basis
that her asthma, prednisone treatment for her asthma, and
juvenile onset diabetes mellitus rendered her disabled under the
terms of the Plan.
In September 2013 Hartford approved Vaughn's claim
effective August 12, 2013, based on its conclusion that Vaughn
was unable to perform one or more of the essential duties of her
occupation because of her disability.
Hartford continued to pay
benefits to Vaughn through October 28, 2017.
In March 2017 Hartford conducted a review of Vaughn's claim
to determine whether she remained eligible for LTD benefits and
referred Vaughn's claim to its Special Investigation Unit (SIU).
On October 19, 2017, following its investigation, Hartford
terminated Vaughn's LTD benefits.
On November 29, 2017, Vaughn filed a Complaint in this
Court against Hartford for violation of ERISA.
In February 2018 Vaughn appealed Hartford's termination of
her LTD benefits.
On March 26, 2018, Hartford upheld its decision terminating
Vaughn's LTD benefits.
On February 15, 2019, Vaughn filed a Motion (#49) for
Summary Judgment in this case.
On March 6, 2019, Hartford filed a Cross-Motion (#53) for
3 – OPINION AND ORDER
Summary Judgment.
On May 10, 2019, Vaughn filed a Motion (#64) to Strike the
Declaration (#63) of Russell S. Buhite in support of Hartford's
Reply.
On May 24, 2019, all Motions were fully briefed, and the
Court took this matter under advisement.
STANDARDS
I.
Summary Judgment in ERISA Cases
Although this matter is before the Court on cross-motions
for summary judgment, the usual summary-judgment standard under
Federal Rule of Civil Procedure 56 is not the appropriate
standard in an ERISA action.
When reviewing a decision to deny
or to terminate benefits, "a motion for summary judgment is, in
most respects, merely the conduit to bring the legal question
before the district court and the usual tests of summary
judgment, such as whether a genuine dispute or material fact
exists, do not apply."
Stephan v. Unum Life Ins. Co. of Am.,
697 F.3d 917, 929-30 (9th Cir. 2012).
II.
ERISA Standard of Review
"When a plan does not confer discretion on the
administrator 'to determine eligibility for benefits or to
construe the terms of the plan,' a court must review the denial
4 – OPINION AND ORDER
of benefits de novo."
Abatie v. Alta Health & Life Ins. Co.,
548 F.3d 955, 963 (9th Cir. 2006)(citing Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989)).
standard of review.
Id.
De novo is the default
"But if the plan does confer
discretionary authority as a matter of contractual agreement,
then the standard of review shifts to abuse of discretion."
(emphasis in original).
Id.
"For a plan to alter the standard of
review from the default of de novo to the more lenient abuse of
discretion, the plan must unambiguously provide discretion to
the administrator."
Id. (citing Kearney v. Standard Ins. Co.,
175 F.3d 1084, 1090 (9th Cir. 1999)).
DISCUSSION
I.
The standard of review in this case is de novo.
The parties dispute the standard of review to be applied by
the Court in this case.
Vaughn contends the standard of review is de novo on the
ground that the applicable Plan contains a clear grant of
discretionary authority to Hartford.
Hartford, in turn, contends the Plan vests it with
discretionary authority to determine eligibility for benefits,
and, therefore, the standard of review is abuse of discretion.
5 – OPINION AND ORDER
A.
Background
Hartford contends the applicable Plan is governed by
the 2011 Certificate of Insurance, Revised January 1, 2011, that
is part of the Administrative Record (AR)(#43) filed in this
case.
AR 003169-80.1
The 2011 Certificate was issued by
Hartford and lists the "Policyholder" as Trustee of the Health
Care Industry Group Voluntary Life and Disability Insurance
Trust; the "Participating Employer" as Northwest Permanente,
P.C.; the "Policy Number" as GVL-16008; and the "Policy
Effective Date" as February 1, 2010.
AR 003152.
The 2011
Certificate provides:
The provisions of the Participating Employer's
coverage under The Policy, which are important to
You, are summarized in this certificate
consisting of this form and any additional forms
which have been made a part of this certificate.
* * *
The Policy alone is the only contract under which
payment will be made. Any difference between The
Policy and this certificate will be settled
according to the provisions of The Policy on file
with Us at Our home office.
AR 003152.
The "General Provisions" of the 2011 Certificate
The AR also contains a separate "Vaughn Policy" file
(Dkt. #43-14) that is separately Bates-numbered as 000001
through 000095. The Court, however, will refer to the copy of
the 2011 Certificate that is part of the "Vaughn Claim" file of
the AR.
1
6 – OPINION AND ORDER
also provide:
Policy Interpretation: Who interprets the terms
and conditions of The Policy? We have full
discretion and authority to determine eligibility
for benefits and to construe and interpret all
terms and provisions of The Policy. This
provision applies where the interpretation of The
Policy is governed by the Employee Retirement
Income Security Act of 1974, as amended (ERISA).
AR 003169.
The "ERISA Information" form that accompanies the
2011 Certificate provides:
The benefits in your booklet-certificate
(Booklet) are provided under a group insurance
policy (Policy) issued by the Hartford Life and
Accident Insurance Company (Insurance Company)
and are subject to the Policy's terms and
conditions. The Policy in incorporated into, and
forms a part of, the Plan. The Plan has
designated and named the Insurance Company as the
claims fiduciary for benefits provided under the
Policy. The Plan has granted the Insurance
Company full discretion and authority to
determine eligibility for benefits and to
construe and interpret all terms and provisions
of the Policy.
AR 003181.
According to Vaughn, however, her claim is governed by
the 2013 Certificate of Insurance, Revised December 1, 2013,
which does not grant Hartford discretionary authority.
therefore, argues the standard of review is de novo.
Vaughn,
The Court
notes the 2013 Certificate on which Vaughn relies is not part of
the Administrative Record, but it is attached as Exhibit A to
her Declaration (#50) in Support of Plaintiff's Motion for
7 – OPINION AND ORDER
Summary Judgment.
The 2013 Certificate indicates the Plan was
"Revised December 1, 2013" and states "[t]he benefits described
herein are those in effect as of December 1, 2013."
Ex. A at 8.
Significantly, the "General Provisions" section of the 2013
Certificate does not contain language that grants Hartford the
"discretion and authority to determine eligibility for benefits
and interpret the terms of the policy."
Like the 2011
Certificate, however, the 2013 Certificate has an "ERISA
Information" form that provides:
"The Plan has granted the
Insurance Company full discretion and authority to determine
eligibility for benefits and to construe and interpret all terms
and provisions of the Policy."
B.
Ex. A at 36.
Analysis
1.
Applicable Plan.
In order to determine the proper standard of
review, the Court must resolve which version of the Plan is
applicable to Vaughn's claim.
The 2011 Certificate was the Plan in effect on
March 4, 2013, when Vaughn applied for LTD benefits.
Vaughn,
however, contends her claim for wrongful termination of her LTD
benefits accrued on the day that her benefits were terminated,
which the parties acknowledge occurred in November 2017.
Thus,
Vaughn asserts the relevant Plan is the one in effect when
8 – OPINION AND ORDER
Hartford terminated Vaughn's LTD benefits in November 2017,
which was the 2013 Certificate.
In Grosz-Salomon v. Paul Revere Life Insurance
Company the Ninth Circuit determined which one of two policies
controlled and the applicable standard of review.
(9th Cir. 2001).
237 F.3d 1154
In Grosz-Salomon an employee challenged the
disability insurer's termination of her benefits.
The policy in
effect when the employee applied for and was granted benefits
did not contain a discretionary authority provision.
Subsequently, the benefits plan was amended to include a
discretionary authority provision and that plan was in effect
when the insurer terminated the employee's benefits.
The
district court did not resolve whether the amended plan language
controlled because the court concluded the abuse-of-discretion
standard of review applied in any event and that the insurer's
denial of the plaintiff's claim constituted an abuse of
discretion.
Ultimately the Ninth Circuit held an ERISA cause
of action based on a denial of benefits accrues at the time the
benefits are denied; i.e., the plaintiff's cause of action
accrued under the policy in effect at the time her benefits were
denied, and that policy determined the appropriate standard of
review.
Id. at 1159-61.
9 – OPINION AND ORDER
See also Bolton v. Constr. Laborers'
Pension Tr. for So. Cal., 56 F.3d 1055, 1058 (9th Cir.
1995)(under ERISA a widow's cause of action for spousal benefits
accrued when she was denied those benefits).
Here, at the time that Hartford terminated
Vaughn's benefits in 2017, the 2013 Certificate was the Plan in
effect.
Thus, the Court concludes on this record that Vaughn's
cause of action accrued under the 2013 Certificate, which does
not grant Hartford the discretionary authority to terminate
Vaughn's benefits.
2.
The ERISA Information is not part of the
governing Plan.
Hartford, nevertheless, argues regardless which
Plan applies, the language in the "ERISA Information"
accompanying both Certificates grants Hartford discretionary
authority.
In response Vaughn contends the ERISA Information is
not part of the Plan and should not be considered when
determining whether Hartford had discretionary authority.
The Supreme Court has held a summary plan
description that contains information "about the plan" is not
itself "part of the plan."
Cigna Corp. v. Amara, 563 U.S. 421,
436 (2011).
Here the ERISA Information sheet that accompanies
both the 2011 Certificate and the 2013 Certificate is identical.
10 – OPINION AND ORDER
As the Supreme Court found in Cigna, however, the ERISA
Information is merely a description of the Plan, but it is not
part of the Plan.
As noted, the language of the actual Plan was
modified in December 2013 and does not grant Hartford
discretionary authority.
The Court notes, nevertheless, that even if it
were to conclude the ERISA Information was part of the plan,
there would be a conflict between the ERISA Information and the
2013 Certificate itself as to whether Hartford had discretionary
authority.
Such an ambiguity does not meet the requirement that
if a plan grants an insurer discretionary authority, it must
grant such authority clearly and unambiguously.
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Firestone Tire
See also
Thomas v. Oregon Fruit Prod. Co., 228 F.3d 991, 993 (9th Cir.
2000)(same).
On this record, therefore, the Court finds the
ERISA Information is not part of the Plan and does not govern
the standard of review.
3.
The Policy and Trust Agreement produced late by
Hartford is not applicable.
As part of its Cross-Motion Hartford produced for
the first time a Policy and Trust Agreement (Policy).
(#54-1) of Patricia M. Pfeifer.
11 – OPINION AND ORDER
See Decl.
Hartford asserts this Policy
provides Hartford with discretionary authority regarding
Vaughn's claim.
Vaughn contends the Court should strike the
Policy produced by Hartford on the grounds that it is not
applicable to her claim, that the late production of the
document contradicts Hartford's prior discovery responses that
all applicable policies were contained in the Administrative
Record, and that Hartford made false and misleading assertions
and omissions regarding the existence of the Policy.
Reply (#59) at 9-10.
See Pl.'s
Vaughn has also filed a separate Motion
(#64) to Strike the Declaration (#63) of Russell Buhite related
to production of the Policy.
As noted, the Policy produced by Hartford is not
a part of the Administrative Record that Hartford consistently
asserted contains "all responsive policy documents" applicable
to Vaughn's claim.
Hartford, however, now maintains the Policy
was only recently discovered and was then immediately produced
to Vaughn's counsel.
In addition, Hartford contends "the Policy
also clearly states that the Booklet-Certificates evidencing
coverage are incorporated into the Policy and that the terms of
the Booklet-Certificates will control as to coverage issues
presented."
Def.'s Cross-Motion (#53) at 16.
Finally, Hartford
also asserts the "LTD Certificate" (i.e., the 2011 Certificate)
12 – OPINION AND ORDER
is the operative plan document and that it confers Hartford with
the discretionary authority to construe and to interpret the
Plan.
Id. at 17.
The Court, however, has already concluded the
2013 Certificate rather than the 2011 Certificate is the
operative plan and that the 2013 Certificate does not provide
Hartford with discretionary authority.
Accordingly, the Court DENIES as moot Vaughn's
Motion (#46) to Strike.
In summary, the Court concludes on this record that
the applicable Plan is the 2013 Certificate; that the 2013
Certificate does not grant discretionary authority to Hartford;
and, therefore, that the proper standard of review as to
Hartford's termination of Vaughn's LTD benefits in 2017 is de
novo.
II.
The Merits of Vaughn's Claim
A.
De Novo Standard of Review
Under the de novo standard of review the Court does
not give deference to the plan administrator's decision, but
"simply proceeds to evaluate whether the plan administrator
correctly or incorrectly denied benefits."
Abatie, 458 F.3d at
963.
The plan administrator need not afford any deference
13 – OPINION AND ORDER
to the opinions of treating physicians when evaluating a claim.
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829-34
(2003).
The insured bears the burden of demonstrating she was
"disabled" from her occupation, and merely relying on a
diagnosis will not by itself support a disability claim.
Jordan
v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869,
879-80 (9th Cir. 2004).
The plan administrator is allowed to terminate
benefits if an insured is no longer "disabled" or fails to
furnish proof of disability.
AR 003161.
Accordingly, to assure
continuing eligibility the plan administrator can require the
insured to show her continued disability and to submit periodic
updates.
See Torres v. Reliance Standard Life Ins., No. 07-cv-
202-BR, 2010 WL 276074, at *7 (D. Or. Jan. 15, 2010)(citing
Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 274
(5th Cir. 2004)).
In order to terminate benefits the plan
administrator is not required to establish that the insured's
condition improved after the plan administrator initially
determined the insured was entitled to benefits.
Torres, 2010
WL 276074, at *8.
B.
Background
The following facts are taken from the pleadings of
the parties and the Administrative Record and are undisputed
14 – OPINION AND ORDER
unless otherwise indicated.
1.
The Plan Requirements.
The LTD Certificate describes the coverage
provided under the Group Policy issued to participant employees
of Kaiser, Vaughn's employer.
The LTD Certificate defines the
following relevant terms:
Disability or Disabled means You are
prevented from performing one or more of the
Essential Duties of:
1) Your Occupation during the Elimination
Period; and
2) Your Occupation, following the
Elimination Period, and as a result Your
Current Monthly Earnings are less than 80%
of Your Indexed Pre-Disability Earnings."
* * *
Your Disability must result from:
1) accidental bodily injury;
2) sickness;
3) Mental Illness;
4) Substance Abuse; or
5) pregnancy.
Your failure to maintain a license to
perform the duties of an occupation, alone,
does not mean that You are Disabled. You
will not be considered Disabled solely
because Your professional or occupational
license or certification is suspended,
revoked, restricted or surrendered.
15 – OPINION AND ORDER
* * *
Essential Duty means a duty that:
1) is substantial, not incidental;
2) is fundamental or inherent to the
occupation; and
3) cannot be reasonably omitted or
changed.
Your ability to work the number of hours in
Your regularly scheduled work week is an
Essential Duty.
Joint Statement of Agreed Material Facts (#46) at ¶¶ 13-14.
2.
Vaughn's Initial Application for Benefits and
Supporting Evidence.
As noted, Vaughn worked as a family-practice
physician employed by Kaiser.
As of the date of her disability
claim Vaughn had a regularly scheduled work week of 20 hours.
Plaintiff's last day of work was March 4, 2013.
AR 003322.
On March 13, 2013, Vaughn and her physician
managers met with Kaiser's Director of Human Resources, Deborah
Hedges, to discuss Vaughn's return to work.
March 15, 2013, Hedges stated:
In an email on
"It was agreed that given
[Vaughn's] current health status and medication it would
probably not be feasible to return her to direct patient care at
this point."
AR 003935.
On March 17, 2013, Kaiser's Physician Service
16 – OPINION AND ORDER
Area Director, Tony Daniels, M.D., stated:
This is to confirm that you are not
currently able to manage doing normal
outpatient panel management based upon high
absenteeism, secondary to your medical
condition. If your short and long term
prognosis is not likely to improve, I do not
anticipate you can effectively return to
doing normal outpatient panel management.
AR 003933.
On March 21, 2013, Vaughn applied for LTD
benefits.
AR 003899—900.
In her application Vaughn's treating
internist, Andrea Matsumura, M.D., stated Vaughn's primary
diagnosis was "chronic asthma (severe)" and "brittle insulin
dependent diabetes mellitus."
AR 003899.
Dr. Matsumura
reported Vaughn suffered from shortness of breath, fatigue,
hyperglycemia, and irritability while on prednisone.
From her
physical examinations of Vaughn, Dr. Matsumura found Vaughn also
suffered from severe wheezing, increased heart and respiratory
rate, and decreased spirometry values.
Dr. Matsumura noted
Vaughn was intermittently ill and was treated with high-dose
prednisone for her asthma flares, which occurred more than once
per quarter.
Dr. Matsumura limited Vaughn to sitting for two
hours, to standing for two hours, and to walking for four hours
daily in a general workplace environment "only when not in a
17 – OPINION AND ORDER
flare or on injectable or oral steroids."
in original).
AR 003900 (emphasis
Dr. Matsumura stated these limitations were
"lifetime" and noted Vaughn has a psychiatric/cognitive
impairment and displays "angry/irritable combative behavior"
when taking steroids.
Id.
In September 2013 Hartford approved Vaughn's LTD
claim effective August 31, 2013, based on Hartford's conclusion
that Vaughn was unable to perform one or more of the essential
duties of her occupation because of her disability.
Joint
Statement of Agreed Material Facts (#46) at ¶ 5.
On April 3, 2014, Dr. Matsumura indicated
Vaughn's prognosis was "unchanged" and that Vaughn was "unable
to dependably work secondary to chronic medical condition.
Lifetime."
AR 003519.
On October 31, 2014, Dr. Panos Fourtounis, one of
Vaughn's treating internists, completed an Attending Physician's
Statement of Functionality.
AR 003531-32.
Dr. Fourtounis
indicated Vaughn had a primary diagnosis of "severe persistent
asthma" and a secondary diagnosis of "uncontrolled insulin
dependent diabetes."
AR at 003531.
He noted "no change" in
Vaughn's restrictions and "lifetime" duration for those
restrictions.
AR 003532.
On February 4, 2015, in response to Hartford's
18 – OPINION AND ORDER
inquiry, Dr. Fourtounis indicated Vaughn was unable to perform
either sedentary or light work on either a full-time or a parttime basis because of the "severity of her symptoms and frequent
flare ups [that] preclude her from being able to function
consistently at any level."
AR 003695-96.
In a subsequent Physician's Statement on
September 3, 2015, Dr. Fourtounis reiterated his diagnoses of
asthma and diabetes and noted Vaughn had symptom flares of
asthma every two or three months.
AR 003710.
He again noted
there was not any change in her restrictions and indicated
Vaughn had "cognitive effects from prednisone, so during flares
(1-3 weeks) judgment poor."
AR 003711.
On October 28, 2015, Dr. Fourtounis responded to
another inquiry from Hartford regarding Vaughn's ability to
work.
Dr. Fourtounis again stated Vaughn was unable to perform
light work on a full-time basis and that Vaughn continued to
have issues with asthma flare-ups and chronic fatigue.
He also
indicated Vaughn was "unable to perform her medical duties that
are mostly cognitive [and] require stamina and cardiorespiratory
fitness level[s] that she does not have."
AR 003505-06.
On March 6, 2017, Dr. Fourtounis completed
another Physician's Statement regarding Vaughn's condition.
repeated his diagnoses of asthma and diabetes and noted two
19 – OPINION AND ORDER
He
severe steroid-resistant flares that occurred in January and
February.
AR 003376.
He indicated Vaughn's asthma was "severe
recurrent" and that she had "adverse effects of corticosteroid."
AR 003376.
Dr. Fourtounis again noted Vaughn's condition had
not changed, she continued to be intermittently ill, and her
restrictions were "lifetime."
AR 003375.
Hartford approved and continued to pay Vaughn's
LTD claim through October 18, 2017.
Joint Statement of Agreed
Material Facts (#46) at ¶ 6.
3.
Hartford's Investigation and Termination of
Vaughn's Benefits.
As noted, Hartford conducted a review in 2017 to
determine whether Vaughn remained eligible for benefits.
The
matter was referred to Hartford's Special Investigative Unit
(SIU) in March 2017.
(#46) at ¶¶ 7-8.
Joint Statement of Agreed Material Facts
As part of its investigation, Hartford
conducted video surveillance of Vaughn for two days in
March 2017 and two days in April 2017.
Joint Statement of
Agreed Material Facts (#46) at ¶ 9.
On May 12, 2017, Hartford conducted an in-person
interview of Vaughn.
AR 004027-41.
On July 25, 2017, in response to an inquiry from
Hartford regarding Vaughn's condition, Lucie Krenek, M.D., one
20 – OPINION AND ORDER
of Vaughn's treating physicians, indicated she was not providing
any restrictions or limitations as to Vaughn's condition.
AR 003120.
On July 29, 2017, Jonathan Rettman, M.D., another
one of Vaughn's treating physician, stated in response to
Hartford's inquiry that he had not seen Vaughn since December
2015 and could not comment on her current functionality.
AR 003123.
On August 14, 2017, as part of its review,
Hartford obtained an Attending Physician's Statement from
Justin Treat, D.O., Vaughn's treating immunologist.
Dr. Treat
stated Vaughn had the ability to work a 40-hour week (when not
experiencing a "flare"); to lift up to 30 pounds; to perform
unrestricted sitting, standing, and walking; and to use her
upper extremities fully.
AR 003130.
As part of its review of Vaughn's claim, Hartford
referred Vaughn's file to an independent third-party vendor for
a medical-records review.
On September 12, 2017, Joseph Rea,
M.D., Board Certified in Occupational Medicine, reviewed
Vaughn's medical records and other materials, including an inperson interview report and the surveillance videos.
137.
AR 003133-
Dr. Rea concluded:
I would basically concur with the opinions
of the other specialty physicians regarding
functionality and result and limitations.
21 – OPINION AND ORDER
* * *
Based on the unpredictable onset of
asthmatic flares, there would be indication
for limitations which would be, I believe,
in line with Dr. Fourtounis's approach for
bedrest and note to limit activity during
the time of the flares. Absent flares,
there appears to be, based on the clinical
evidence available, normal physical findings
along with reasonably normal mild-tomoderate activity levels . . . suggesting
that during those normal and majority of
times there would bel no indication for any
significant physical impairment or resulting
restriction or limitation.
AR 003136.
Based on this information, Hartford concluded
Vaughn no longer met the Plan definition of "disability" and
notified Vaughn on October 19, 2017, that it was terminating
Vaughn's claim for LTD benefits on that date.
Joint Statement
of Agreed Material Facts (#46) at ¶ 10; AR 00155-60.
On November 6, 2017, Dr. Fourtounis completed
another Physician's Statement.
AR 001962-64.
In addition to
his continued diagnoses of asthma and diabetes, Dr. Fourtounis
indicated Vaughn was experiencing diabetic neuropathy, bilateral
Dupuytren's contractures, and dumping syndrome.
AR 001962.
He
also stated Vaughn would need lifelong treatment, she would be
limited to bedrest and brief "home walking" when she experienced
acute flares and was taking prednisone, and she would be limited
22 – OPINION AND ORDER
by her lung capacity and her other medical issues when she was
not experiencing flares or taking prednisone.
AR 001962-64.
On November 16, 2017, Thilo Weissflog, M.D.,
Vaughn's orthopedic hand specialist, prepared a Physician's
Statement and indicated Vaughn has limitations and restrictions
caused by Dupuytren contractures in both hands.
AR 001965.
He
noted Vaughn could not use her hands for fine manipulation
(fingering, keyboarding), that her grip was limited by pain, and
that her contractures had retrogressed and involved six of her
fingers.
AR 001966.
Dr. Weissflog also noted Vaughn was unable
to "type with proper form" and could "hunt and peck" with her
right hand slowly and with multiple errors.
AR 001967.
Dr. Weissflog stated Vaughn was unable to use her right hand to
examine patients (especially the abdomen, pelvic, and knees) or
to open jars/tubes and load syringes; lacked the strength and
fine motor control for joint injections; frequently dropped
objects (including samples, specimens, etc.) from both hands due
to lack of grip; had limited ability to wash her hands; was
limited in her driving due to "palmar pain"; and needed some
modification in order to pour from bottles and cartons.
AR 001967.
4.
Vaughn's Appeal.
In February 2018 Vaughn appealed Hartford's
23 – OPINION AND ORDER
termination of her LTD benefits.
Joint Statement of Agreed
Material Facts (#46) at ¶ 11.
On February 8, 2018, Dr. Fourtounis submitted a
statement in support of Vaughn's appeal.
AR 00214-18.
Dr. Fourtunis summarized Vaughn's medical condition as follows:
Over the past 5 years, Dr. Vaughn has
averaged a severe asthma flare every 1-2
months that required prednisone and/or
steroid nebulizer treatment for a minimum
of 2-3 weeks to as longs as 6-8 week.
Dr. Vaughn's steroid treatment, in turn,
causes her to experience irritability,
aggressiveness, hypomania, and lack of
judgment. Her steroid treatment also wreaks
havoc with her diabetic management and
causes uncontrollable hyperglycemia.
AR 002214.
He then described Vaughn's cycle of illness:
During the acute phase of an asthma flare,
which may last a week or more, Dr. Vaughn's
wheezing, dyspnea, and high doses of
prednisone (60-80 mg. daily) essentially
limit her to bedrest and minimal household
activity. Once Dr. Vaughn begins to recover
from the acute phase of a flare, she starts
to taper her prednisone, which may take
anywhere from 2-3 weeks to 6-8 weeks
depending upon the severity of the flare and
the response of the flare to the prednisone.
As Dr. Vaughn recovers from the acute phase
of an asthma flare and her dyspnea
decreases, she is able to become more active
physically, even though she may still be
tapering the prednisone and still be
experiencing the adverse prednisone effects.
AR 002214-15.
Dr. Fourtounis concluded his assessment of
Vaughn's condition as follows:
24 – OPINION AND ORDER
Overall, my assessment of Dr. Vaughn is that
she became disabled in March 2013; her
disabling conditions have not improved over
time; and she continues to be disabled at
present. Dr. Vaughn's restrictions [and]
limitations vary depending on whether she is
out of an asthma flare and steroid free or
in an asthma flare and taking steroids.
However, the frequency of Dr. Vaughn's
severe asthma flares, her steroid treatment,
her subsequent adverse personality and
behavior changes caused by steroids and her
fatigue from dyspnea and steroid-induced
hyperglycemia result in an absenteeism rate
that precludes her from performing her job
as a primary care physician. In addition,
since she initially became disabled,
Dr. Vaughn has experienced a partial loss of
hand function by Dupuytren's contractures
and developed dumping syndrome. All of
Dr. Vaughn's current conditions combine to
make her present health status worse today
than it was in March 2013, when Harford
determine she was disabled and approved her
long-term disability claim.
AR 002218.
On February 12, 2018, Dr. Treat submitted a
statement to Hartford regarding Vaughn's disability in which he.
reported Vaughn had eight asthma flares in 2017 and was
hospitalized for two days as a result of one of those flares.
AR 002212-213.
He noted Vaughn is bedbound for a few days for
one or two weeks and homebound from one to four weeks when
experiencing a flare.
Dr. Treat stated Vaughn has "a chronic
long-term disability from severe persistent asthma, adverse side
effects from steroid treatment for her asthma flares, and
25 – OPINION AND ORDER
insulin dependent diabetes mellitus."
concluded:
AR 00212.
Dr. Treat
"Dr. Vaughn's severe persistent asthma and prolonged
steroid use precludes her from performing the duties of a
primary care physician just on absenteeism alone."
AR 002213.
In his statement to Hartford Dr. Treat also
explained an earlier opinion that he gave to Hartford on
August 14, 2017.
At that time Hartford had asked whether Vaughn
"has the functionality to perform activity up to 40 hours per
week which requires unrestricted sitting, standing and walking
and; [sic] allows for full use of the upper extremities, such as
for reaching, fingering and handling.
Lifting/carrying up to 30
pounds occasionally and up to 10 pounds on a more frequent
basis."
AR 003130.
In response to Hartford's inquiry Dr. Treat
marked the "yes" box on the form.
In his 2018 statement
Dr. Treat explained his "yes" answer for the listed functions
"only applied to Dr. Vaughn during the time she was not
experiencing an asthma flare and was not on steroids."
AR 002212.
On March 14, 2018, Hartford obtained independent
reviews of Vaughn's medical records from Anita Shavarts, M.D.,
an allergist and immunologist (AR 000277-286); Dana Fletcher,
D.O., an endocrinologist (AR 000287-295); and Trenton Gause,
M.D., an orthopedic surgeon (AR 000296-303).
26 – OPINION AND ORDER
Dr. Shavarts
focused on Vaughn's asthma and stated Vaughn has "severe
persistent asthma and it has been difficult to manage" and that
her condition is supported by the medical records.
AR 000281.
Dr. Shavarts acknowledged Vaughn had asthma flares five or six
times per year, that each flare lasted two to three weeks, that
Vaughn was "fully incapacitated during these flares," and that
the flares were documented by her treating physicians.
AR 000281.
Despite these findings, Dr. Shavarts concluded
"there is no objective evidence to support this."
AR 000281.
She concluded "the medical record does not support any
consistent restrictions and limitations for Dr. Vaughn's severe
persistent asthma as of 10/18/2017 to the present."
AR 000283.
Dr. Fletcher focused on Vaughn's diabetes.
Based
solely on his review of the medical records and surveillance
videos, Dr. Fletcher concluded "there is no objective evidence
in [Vaughn's] chart notes to support that she had impaired
cognition, agitation, aggression, or behaviors that would
interfere with her ability to perform her job as a physician in
a professional, acceptable manner."
AR 000291.
He stated
Vaughn "could very well manage her blood sugars, even while on
steroids, with higher doses of insulin and regular follow up and
contact with her endocrinologist."
concluded:
27 – OPINION AND ORDER
AR 00291.
Dr. Fletcher also
It is my opinion from an endocrinology
perspective that [Vaughn] is able to work on
a full time basis 40 hours per week without
restrictions or limitations from 10/18/2017
to present with the following exceptions:
She may need to take brief breaks of 5-10
minutes up to 3 times during an 8 hour
period . . . . She may also be absent from
work for 1-3 days at a time up to 4 times
per year (up to 12 days off per year) for
acute illness related to her asthma,
diabetes or sever mood changes that may
occur while taking prednisone.
AR 000292.
Dr. Gause reviewed Vaughn's medical records
regarding her Dupuytren's syndrome.
AR 000296-303.
He noted
the records documented the diagnosis of Dupuytren's disease, but
he stated:
"While [Vaughn] would in fact have some mild
impairment as a result of the noted contractures, her condition
would not completely preclude her from functioning in the
occupational setting."
AR 000302.
Thus, all three physicians
concluded Vaughn was capable of a 40-hour work week without
restriction with periodic absences of one or two days quarterly
for acute "flares."
On March 26, 2018, Hartford upheld its decision to
terminate Vaughn's claim for LTD benefits.
Joint Statement of
Agreed Material Facts (#46) at ¶ 12.
C.
Analysis
The issue before the Court is whether, based on a de
28 – OPINION AND ORDER
novo review of the current record, Hartford's decision to
terminate Vaughn's benefits in 2017 was proper.
Vaughn contends she is entitled to reinstatement of
her LTD benefits on the grounds that Hartford (1) based its
decision on misstatements regarding the nature and treatment of
her asthma flare; (2) arbitrarily relied on the Hartford
consultants' reviews of her medical records that were contrary
to the medical records; (3) unreasonably dismissed evidence
supporting her disability; (4) arbitrarily relied on
surveillance videos to support termination of her benefits;
(5) improperly imposed an objective standard of proof of
disability; and (6) violated ERISA's regulations regarding a
full and fair review of her claim.
Hartford, in turn, contends the medical evidence and
claims investigation in 2017, including the surveillance videos,
establish Vaughn was not restricted in her activities, and,
therefore, Hartford's termination of Vaughn's benefits should be
upheld.
Hartford, however, concedes "the medical records,
statements, and other materials submitted by [Vaughn] in support
of [her initial] claim were sufficient to establish her
inability to perform the material duties of her occupations
through October 18, 2017."
29 – OPINION AND ORDER
Def.'s Cross-Motion (#53) at 7.
1.
Medical Evidence From Treating Physicians
The parties dispute whether the medical evidence
supports Vaughn's continuing disability claim.
Hartford
contends Plaintiff's treating physicians were "equivocal"
regarding her conditions and limitations.
For example, Hartford
points to Dr. Krenek's opinion that Vaughn did not have any
restrictions or limitations in July 2017 resulting from the
conditions for which Dr. Krenek was treating her.
The Court
notes, however, that Dr. Krenek is the only one of Vaughn's
treating physicians who unconditionally opined Vaughn had the
ability to work 40 hours per week.
Although Hartford points to
Dr. Treat's response in August 2017 that Vaughn had the
functional ability to work 40 hours per week, in February 2018,
as noted, Dr. Treat clarified his statement and explained he
meant Vaughn had limitations only when she was "experiencing an
asthma flare."
In contrast, Dr. Fourtounis, who had consistently
treated Vaughn since 2013, carefully explained Vaughn's medical
conditions, the necessary treatment, the cycle of recovery, and
the limitations and restrictions as a result of her illnesses.
Dr. Fourtounis concluded Vaughn's medical condition in 2018 "was
worse . . . than it was in March 2013."
30 – OPINION AND ORDER
2.
Hartford Consultants' Reviews of Vaughn's Medical
Records
As noted, Hartford obtained three reviews of
Vaughn's medical records following her appeal.
None of these
physicians examined Vaughn personally and each limited their
review to only one of Vaughn's conditions in isolation without
regard to the combined effects of her illnesses on her ability
to work.
In contrast, Vaughn's treating physicians documented
Vaughn's ongoing conditions that significantly impaired her
ability to perform her profession.
On de novo review of this record the Court concludes
the treating physicians' opinions carry greater weight as to
whether Vaughn was disabled through 2017.
3.
Hartford's Video Surveillance of Vaughn
As noted, Hartford conducted video surveillance
of Vaughn for two days in March 2017 and two days in April 2017.
Hartford contends this surveillance shows Vaughn performing
activities such as yard work, hiking, pushing equipment around
her yard, driving, and entering and exiting cars without any
observable distress, hesitation, or impairment.
Specifically, Hartford asserts the video of
Vaughn on March 28, 2017, shows Vaughn doing yard work for about
an hour.
During this time Vaughn rolls a large garbage can to
31 – OPINION AND ORDER
the street and operates an aerating tool on her lawn that
requires her to press down with her foot while grasping and
twisting the tool repeatedly, tapping the tool, bending to pick
up clumps of sod, putting the sod in a bucket, picking up the
bucket, and carrying it to a garbage can.
She also stops to
talk to a neighbor and removes her jacket.
Hartford also contends 15-minutes of video
surveillance on April 21, 2017, shows Vaughn was more active
than she claimed.
Although Hartford asserts the video shows
Vaughn on a hike in the Columbia River Gorge for two hours with
a friend, approximately four minutes of the video shows Vaughn
at a trail head looking at a map and starting down a path and
approximately one minute of the video shows Vaughn sometime
later returning and getting into her car.
Thus, even though
Hartford contends Vaughn "hiked" for "two hours," Hartford
merely speculates because the video does not show Vaughn
actually hiking for that long.
Ten minutes of the video show
Vaughn doing yard work later that day.
Hartford also contends
on April 21, 2017, Vaughn emailed her doctor that she was having
an asthma flare.
Vaughn disputes Hartford's description of the
surveillance videos and contends the four days of video
surveillance actually show approximately one hour and 17.5
32 – OPINION AND ORDER
minutes of activity that creates "an impression Dr. Vaughn was
continually engaged in activities, whereas the brief periods of
activity recorded were actually broken up over time."
Pl.'s
Resp. (#58) at 15.
Video surveillance may be useful to document a
claimant's actual rather than alleged capabilities, but the
Court concludes the approximately 77 minutes of video
surveillance of Vaughn's activities over four days fails to
establish that she was not disabled or as disabled as she
alleges.
Although Hartford contends Vaughn was in the midst of
an asthma flare on March 28, 2017, Vaughn points to records that
show she experienced asthma symptoms on March 12, 2017; that she
was not in an acute phase of an asthma flare; and that she
experienced only mild symptoms on March 28, 2017.
002557-68.
AR 00225,
On April 21, 2017, Vaughn emailed Dr. Fourtounis
that she thought her "current flare was controlled but this
spring bloom is seeming to cause a relapse."
AR 002564.
Thus,
contrary to Hartford's assertions, the surveillance videos do
not demonstrate Vaughn was more active than she acknowledged nor
that she was no longer disabled.
In summary, after de novo review of the current record, the
Court concludes Hartford's decision to terminate Vaughn's LTD
benefits is not supported by Vaughn's medical records, the
33 – OPINION AND ORDER
independent reviews of Vaughn's medical records, or the
surveillance videos.
Accordingly, the Court concludes Vaughn is
entitled to reinstatement of her LTD benefits effective from
October 19, 2017.
CONCLUSION
For these reasons, the Court GRANTS Plaintiff's Motion
(#49) for Summary Judgment, DENIES Plaintiff's Motion (#64) to
Strike as moot, DENIES Defendant's Motion (#53) for Summary
Judgment, and enters Judgment in favor of Plaintiff.
IT IS SO ORDERED.
DATED this 12th day of June, 2019.
__s/Anna J. Brown______________
ANNA J. BROWN
United States Senior District Judge
34 – OPINION AND ORDER
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