United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Honorable Paul Papak, United States Magistrate Judge.
Jennifer Bergman brings this action under the Employee
Retirement Income Security Act (ERISA) against Defendant UNUM
Life Insurance Co. of America, claiming that Defendant
wrongly denied her claim for long-term disability benefits
under a policy underwritten and administered by Defendant. In
2013, Plaintiff stopped working for her employer, Regions
Financial Corp. (Regions), claiming that she was completely
disabled by an anxiety disorder, major depression, right
shoulder arthralgia, and cervical radiculitis. Plaintiff
participated in Regions's group plan for long-term
disability coverage (the Plan), which Regions funded through
an insurance policy issued by Defendant.
granted Plaintiffs request for short-term disability
benefits, and for 24 months of benefits based on her mental
health conditions. Defendant denied Plaintiffs request for
long-term disability benefits based on physical impairments,
concluding that the Plan's exclusion for preexisting
conditions applied to Plaintiffs reflex sympathetic dystrophy
(RSD) condition, and that Plaintiff had failed to present
evidence that her right knee impairment was disabling. On
administrative review, Defendant upheld the denial of
long-term disability benefits.
parties have filed cross-motions for summary judgment. I
recommend granting Defendant's motion and denying
Plaintiffs motion because Defendant's denial of benefits
was not an abuse of discretion.
authorizes a beneficiary or plan participant to bring an
action in federal court "to recover benefits due to him
under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future
benefits under the terms of the plan." 29 U.S.C. §;
1132(a)(1)(B). When, as here, an EPJSA plan gives the plan
administrator discretionary authority "as a matter of
contractual agreement, then the standard of review is abuse
of discretion rather than de novo." Demer v. IBM
Corp. LTD Plan, 835 F.3d 893, 896 (9th Cir. 2016). When
the abuse of discretion standard applies to an ERISA action
challenging the denial of benefits, "a motion for
summary judgment is 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 of
material fact exists, do not apply." Laurie v.
United of Omaha Life Ins. Co., No. 3:14-cv-1937-YY, 2017
WL 975947, at *12 n.3 (D, Or. Jan. 23, 2017) (citing
Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917,
929-30 (9th Cir. 2012)), adopted, 2017 WL 970262 (D.
Or. Mar. 13, 2017).
evaluating an ERISA plan administrator's decision for
abuse of discretion, the court should uphold the decision
"unless it is '(1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record.'" Id. at *12 (quoting
Salomaa v. Honda Long Term Disability Plan, 642 F.3d
666, 676 (9th Cir. 2011)). "' An ERISA administrator
abuses its discretion only if it (1) renders a decision
without explanation, (2) construes provisions of the plan in
a way that conflicts with the plain language of the plan, or
(3) relies on clearly erroneous findings of fact.'"
Id. (quoting Boyd v. Bert Bell/Pete Rozelle NFL
Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005)
(internal quotation marks and citations omitted)).
is true here, the plan administrator "both evaluates
claims made against the Plan and funds claims," then the
plan administrator has "a structural conflict of
interest." Demer, 835 F.3d at 900. "While
not altering the standard of review itself, the existence of
a conflict of interest is a factor to be considered in
determining whether a plan administrator has abused its
discretion. The weight of this factor depends upon the
likelihood that the conflict impacted the administrator's
decisionmaking." Stephan, 697 F.3d at 929
(citation omitted). When there is a structural conflict of
interest, the plaintiff has the initial burden "to
produce evidence of a financial conflict sufficient to
warrant a degree of skepticism." Demer, 835
F.3d at 902. If the plaintiff presents "evidence of a
financial conflict warranting an inference of bias," the
burden shifts to the plan administrator "to counter that
evidence." Id. at 903.
started working for Regions as a business banking
relationship manager on March 26, 2012, and was first insured
under the Plan on June 24, 2012. UA-CL-0005, For Plaintiff,
the look-back period used by Defendant to determine whether a
condition is preexisting under the Plan is from March 24,
2012 to June 23, 2012. UA-CL-00012. Under the Plan, if a
covered employee claims a disability during the first 12
months after the effective date of coverage, and the employee
has "received medical treatment, consultation, care or
services including diagnostic measures, or took prescribed
drugs or medicines" related to the disability during the
look-back period, then the Plan excludes that disability as a
within 12 months of the Plan's effective date of
coverage, Plaintiff claimed that she was disabled as of May
28, 2013 by generalized anxiety, major depression, right
shoulder pain, pain radiating from the nerves in her neck,
and pain in her right knee. UA-CL-0005. Defendant has paid
Plaintiff the maximum amount of benefits available for
disability caused by mental health conditions, which the Plan
limits to 24 months of benefits. See ECF No. 16,
UA-CL-0071 ("The lifetime cumulative maximum benefit
period for all disabilities due to mental illness and
disabilities based primarily on self-reported symptoms is 24
months.") (emphasis omitted).
does not dispute Defendant's decision on mental health
benefits. Plaintiff does dispute Defendant's denial of
her disability claim based on right shoulder and neck pain.
Defendant concluded that Plaintiffs neck and shoulder pain
were caused by injuries she suffered in a 2009 motor vehicle
accident, and that she had been prescribed gabapentin, a
medication for symptoms caused by these injuries, during the
look-back period three months before the effective date of
coverage under the Plan. Defendant found that although
Plaintiff was not diagnosed with reflex sympathetic dystrophy
(RSD) until August 2013, after the
look-back period, the RSD diagnosis related to the
preexisting condition for which Plaintiff was prescribed
gabapentin during the look-back period. Defendant also
concluded that the evidence did not support Plaintiffs claim
that her right knee impairment was disabling. Defendant
upheld the denial of long-term disability benefits on appeal.
Plaintiff then brought this action.
Plaintiffs Medical Treatment
Neck and Shoulder Pain
was injured in a motor vehicle accident in May 2009. After
the accident, Plaintiff suffered numbness and pain in her
right shoulder. On January 23, 2012, Dr. James Muntz,
Plaintiffs primary care physician, noted on examination
"right shoulder pain and possible impingement. She had
an accident and has had trouble from that." UA-CL-00316.
Dr. Muntz referred Plaintiff to Dr. David Linter, a
specialist in sports medicine. On February 14, 2012, Dr.
Linter examined Plaintiff. Dr. Linter reported that Plaintiff
complained of "trapezial pain that radiates into neck
and down shoulder to arm. Has numbness in hand (esp pinky
finger). Stems from MVA May 2008." UA-CL-00348. Dr.
Linter opined that "[a]ll symptoms seem neck-related.
May need to look at shoulder if shoulder pain persists after
neck is treated." UA-CL-00349.
February 28, 2012, Dr. Linter found that an MRI of Plaintiff
s right shoulder "appears normal" "[o]tlier
than trace bursitis and mild impingement." UA-CL-0347.
Dr. Linter noted that Plaintiff had shown only minimal
improvement with physical therapy and a steroid injection.
March 8, 2012, Dr. Barbara Barnett, D.O., with Texas Pain
Consultants LLP, examined Plaintiff for "continued neck
and right shoulder pain." UA-CL-00433. Plaintiff
"complain[ed] of numbness and tingling to right 4th and
5th fingers. Pain began May 28, 2009. Pain occurred after
major MVA." Id. Plaintiff described the pain as
continuous, radiating down her right arm, a dull, aching
sensation. Dr. Barnett prescribed gabapentin (Neurontin) 300
mg with no refills. CVS Pharmacy records show that CVS filled
Plaintiffs gabapentin prescription on Mach 8, 2012, and
refilled the prescription on April 5, 2012, within the
look-back period for preexisting conditions. UA-CL-00534,
August 28, 2013, Dr. Ronald Parris, of the Parris Pain
Center, examined Plaintiff. He reported that Plaintiff
"complains of pain in the Neck. That she states she has
had for 4 years." UA-CL-0549. Plaintiff told Dr. Parris
that the pain started after the 2009 accident. Dr. Parris
noted that Plaintiff said she had "tried hydrocodone and
neurontin-gabapentin in the past." Id.
Parris noted "tissue swelling in the right upper
extremity, allodynia[] upon touch. The nerve injury
appears to be in the distribution of C7-C8. The patient's
right upper extremity did exhibit signs of increased blood
flow to the limb which was noticeable via the color of the
arm," UA-CL-00552. Based on his examination, Dr. Parris
diagnosed CRPS (complex regional pain syndrome), which, as
noted above, is also known as reflex sympathetic dystrophy
(RSD). Dr. Parris stated that because conservative therapies
had failed, he recommended neurostimulation using a spinal
cord stimulator. Dr. Parris stated, "because the process
has gone on for 4 years I think it is imperative that we
proceed with the procedure because her condition is not
October 17, 2013, J. Bob Blacklock, M.D., examined Plaintiff
at the Houston Methodist Neurological Institute. UA-CL-00123