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Bergman v. Unum Life Insurance Co. of America

United States District Court, D. Oregon

June 14, 2018



          Honorable Paul Papak, United States Magistrate Judge.

         Plaintiff 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.

         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.

         The 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.


         EPJSA 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).

         When 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)).

         If, as 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.


         I. Plaintiffs Claim

         Plaintiff 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 preexisting condition.

         Here, 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).

         Plaintiff 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)[1] 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.

         II. Plaintiffs Medical Treatment

         A. Neck and Shoulder Pain

         Plaintiff 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."[2] 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.

         On 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.

         On 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, -00536.

         On 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.

         Dr, Parris noted "tissue swelling in the right upper extremity, allodynia[[3]] 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 improving." UA-CL-00553.

         On October 17, 2013, J. Bob Blacklock, M.D., examined Plaintiff at the Houston Methodist Neurological Institute. UA-CL-00123 ...

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