Campbell v. Hartford Life & Accident Ins. Co.

PATRICIA A. CAMPBELL, Plaintiff, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.

Case No. 17-80193-CIV-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

October 15, 2018

ORDER AND OPINION ON MOTIONS FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment [DE 21] and Plaintiff's Motion for Summary Judgment [DE 23]. The Court has carefully considered the entire Court file and is otherwise fully advised in the premises.

Undisputed Material Facts¹

1. Plaintiff Patricia A. Campbell ("Campbell") brings the present action against Hartford Life and Accident Insurance Company ("Hartford") pursuant to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1001, et seq.2. As an employee of Unify Inc. ("Unify"), Campbell had long-term disability ("LTD") coverage through her participation in an employee welfare benefit plan known as the Group Long Term Disability Plan for Employees of Unify Inc. (the "Plan"). H-1017; DE 1, pg. 1-2, ¶¶ 3-5, and pg. 4, ¶ 21.

3. The Plan was funded through a group policy (the "Policy") issued to Unify by Hartford, which served as claim administrator for the Plan. H-978-1021; DE 1, pg. 2, ¶¶ 9, 11.

4. The Policy identifies Florida as its "Place of Delivery." H-978.

5. The Policy states that Hartford has "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions." H-1004.

6. According to the Policy,

Disability or Disabled means You are prevented from performing one or more of the Essential Duties² of:

1) Your Occupation during the Elimination Period;

2) Your Occupation for the 24 month(s) following the Elimination Period . . .; and

3) after that, Any Occupation.

H-1005.

7. The Policy further provides, in pertinent part, that if benefits are approved, they will terminate on "the date You are no longer Disabled . . ." H-998.

8. Prior to claiming disability, Campbell was employed by Unify as a software engineer, a sedentary position that principally required sitting and computer/desk work. H-33, 71, 894-895. Campbell ceased work effective June 12, 2014, and subsequently claimed LTD benefits. H-69, 907-911.

9. In an Attending Physician's Statement of Continuing Disability ("APS") dated July 10, 2014, treating neurologist Richard Bailyn, M.D. advised Hartford that Campbell had back and spinal operations in 2008, 2009, and 2011, that she could not work without restrictions and that she could not return to work with restrictions. Specifically, Dr. Bailyn concluded that Campbell could not stand longer than 30 minutes and could not sit longer than 30 minutes. H-654.

10. On August 6, 2014, Dr. Bailyn wrote that Campbell

has developed progressively disabling low back pain. Her neurologic examination is remarkable for significant loss of mobility at the thoracolumbar region and for distal left lower extremity muscle weakness. The patient reports that sitting or standing for periods of time longer than one hour causes intolerable pain, which is only sometimes relieved by walking. The patient's neurosurgeon, Dr. Barth Green, has determined that no further surgical intervention would be of advantage. The patient has not benefitted from participation in physical therapy, nor from provision of epidural steroid injections. . . In as much as she has exhausted all feasible treatments for management of low back pain, there is no further specific treatment plan available to return her to her functional abilities.

H-655.

11. To assist Hartford's evaluation of the claim, an independent peer review was conducted at Hartford's request by board certified neurologist Joseph Jares, M.D., who furnished a report dated November 26, 2014. H-591-600. Dr. Jares opined that as of the date she ceased work "to the present date and beyond, the claimant may perform as follows: She may sit no more than 30 minutes at one time and no more than 2 hours total in an 8-hour work shift. She may stand no more than 10 minutes at a time and no more than 1 hour total in an 8-hour work shift. She may walk no more than 10 minutes at a time and no more than 1 hour total in an 8-hour work shift. . ." H-598.

12. Based on Dr. Jares' report indicating Campbell was incapable of full-time sedentary work, Campbell's LTD claim was approved with benefits effective December 11, 2014. H-44, 126-129.

13. In a follow-up APS dated June 25, 2015, treating neurologist Dr. Bailyn certified that she could not sit or stand for longer than 30 minutes at a time or for longer than 2 hours total per day. H-561-562.

14. In a treatment note dated September 15, 2015, Dr. Bailyn stated that "symptoms of lumbosacral radiculopathy are unchanged," but it was also noted that she "exercises 5-7 days per week and has initiated a weight loss program." Dr. Bailyn indicated that he encouraged Campbell to continue exercising and to continue her efforts to lose weight. H-552.

15. In order to assess Campbell's objective functionality, video surveillance was conducted by an investigative firm at Hartford's request on October 6-7, 2015. H-528-535. Campbell was filmed driving, running errands, and going to the gym. On October 7, 2015, she was observed (in the words of the investigator) "performing a rowing exercise, working out her arms, working out her shoulders, performing abdominal crunches on a machine, performing calf exercises on a machine, and utilizing an elliptical machine." H-534. Campbell was observed continuously using the elliptical machine for over 27 minutes and did not appear to be in pain at any point during the surveillance. DE 28, H-162.

16. On November 5, 2015, Campbell was interviewed in her attorney's office by a Hartford investigator, who recorded the interview. H-917-938. Campbell informed the investigator, among other things, that she worked out in a gym five days per week, for one hour and 20 minutes per session. H-920.

17. On January 28, 2016, Hartford sent the surveillance video, the surveillance investigator's report, and the interview transcript to treating neurologist Dr. Bailyn, with a letter requesting that he consider those materials in conjunction with his medical findings and advise Hartford whether Campbell was capable of full-time work. H-474-475. Specifically, Hartford asked Dr. Bailyn to check "Yes" or "No" in response to the following:

Specifically, we are asking your medical opinion as to whether Ms. Campbell currently has the functionality to perform activity as follows: 40 hours per week, primarily seated in nature, withoccasional walking and standing and[] allows for full use of the upper extremities. Lifting/carrying will be limited to 0-10 pounds on an occasional basis. Afforded will be the opportunity to change positions/postures as needed for comfort (by walking, standing, or moving about).

H-474 (bold type in original). On February 1, 2016, Dr. Bailyn checked "Yes," signed the letter and returned it to Hartford. H-474-475. He also indicated that Campbell did not have any cognitive restrictions or limitations. H-475.

18. In correspondence dated February 17, 2016, Hartford advised Campbell that her LTD benefits were terminated effective February 17, 2016, based principally on the surveillance and Dr. Bailyn's statement that she was capable of full time sedentary work. H-91-95.

19. Campbell appealed the termination decision in correspondence dated August 11, 2016. H-186-198. Enclosed with the appeal letter were updated medical records evidencing that she underwent shoulder surgery on May 14, 2016, following a fracture sustained in a recent fall. H-233-236. There were no reported complications from the surgery. Id.

20. Also submitted in support of the appeal was a July 18, 2016 Comprehensive Rehabilitation Evaluation and Medical Functional Capacity Assessment conducted at Campbell's request by Craig Lichtblau, M.D., board certified in Physical Medicine & Rehabilitation. H-281-364. Dr. Lichtblau listed and considered the extensive diagnostic and surgical procedures Campbell has undergone since 2007. AR 489-507. Dr. Lichtblau concluded that Campbell "does not have the functional capacity to work4 hours per day on an uninterrupted basis at this time."³ H-363. Stating that Campbell "is going to suffer from acute, intermittent exacerbations of chronic pain and discomfort," Dr. Lichtblau further opined that it was his medical opinion as a Board Certified Physiatrist that Campbell would be unable to maintain gainful employment in the competitive open labor market or in a sheltered work environment with a benevolent employer secondary to acute, intermittent exacerbations of chronic pain. AR 0569.

21. Dr. Lichtblau noted his opinion that, as Campbell suffers the secondary effects of aging, her disability will increase over time. AR 0558. Dr. Lichtblau did not, however, have the benefit of Hartford's surveillance video.

22. To assist Hartford's evaluation of the appeal, an independent peer review was conducted by Sarah White, M.D., also board certified in Physical Medicine and Rehabilitation, who reviewed the surveillance video as well as all available medical records. H-158-166. Dr. White's review did not involve a physical personal evaluation of Campbell. AR 0632.

23. On August 31, 2016, Dr. White called Dr. Lichtblau to discuss Campbell's physical capacity and functionality "from a structural/physical perspective." Dr. Lichtblau stated that Campbell had very extensive diagnoses and that Campbell could not work. She would "never be going back to work." Her multiple surgeries wereunsuccessful. If Campbell tried to return to work, Dr. Lichtblau stated she would miss many days of work due to pain, and therefore working was not possible. AR 0634.

24. Dr. White reviewed the video surveillance performed on October 6-7, 2015, and noted

[d]uring this time frame, Ms. Campbell was observed walking, driving, carrying a purse over her left arm, carrying an item in her left hand, carrying keys in her right hand, entering a car,

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