Ellis v. Liberty Life Assurance Co. of Bos.

333 F.Supp.3d 1083

Michael D. ELLIS, Plaintiff,

v.LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, a New Hampshire corporation, Defendant.

Civil Action No. 15-cv-00090-LTB

United States District Court, D. Colorado.

Signed September 18, 2018

Shawn E. McDermott, McDermott Law, LLC, Denver, CO, James A. Cederberg, Cederberg Law Firm, P.C., Boulder, CO, for Plaintiff.

Clinton Paul Swift, Swift Law Firm, Windsor, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

Lewis T. Babcock, Judge

This ERISA case is before me for determination of the merits following briefing by the parties. See Doc # s 57, 61 & 62. After consideration of the parties' briefs, the record, and the case file, and for the reasons stated below, I enter judgment in favor of Defendant Liberty Life Assurance Company of Boston ("Liberty").

I. Background

Plaintiff Michael D. Ellis is a former Senior Systems Architect for Comcast Corporation ("Comcast"). As Senior Systems Architect, Mr. Ellis's responsibilities included (1) analyzing product requirements working with Senior Management, Product Management, Product Design, Finance, Product Development, Integration/Test, and Operations; (2) allocating system requirements into individual requirements for new and existing components and interfaces; (3) analyzing feature complexity and time estimates, negotiating with management to determine feature set to be delivered; (4) creating detailed architectural documents; (5) managing requirements database; (6) creating detailed interface documents; and (7) performing bandwidth modeling. Doc # 35-12, p.1.

In January of 2012, Mr. Ellis, now 59 years of age, became ill with pneumonia and developed severe chest pain caused by a pulmonary embolism. Doc # 35-22, p. 10. While receiving emergency medical treatment for his chest pain on February 1, 2012, Mr. Ellis went into cardiac arrest and his heart stopped beating for a period of 24 seconds. Id. Several weeks later, Mr. Ellis reported diminished concentration, dizziness, and feeling weak and wobbly. Doc # 35-21, p. 24-5. Mr. Ellis's last day of work for Comcast was February 29, 2012, and he was awarded SSDI benefits from the Social Security Administration ("SSA") beginning in August of 2012 based on his claim of disability due to brain injury, cognitive deficits, possible cerebral hypoxia, leg weakness, balance problems, depression, tremors, and numbness. Doc # 33-12, pp. 9 & 11-15.

As a Comcast employee, Mr. Ellis was eligible to participate in Liberty's Group Disability Income Policy GF3-830-502315-01 (the "Policy"). Mr. Ellis was a Class 4 employee for purposes of coverages under the Policy. Mr. Ellis's claim for short term disability benefits, payable by Comcast pursuant to its Short Term Disability Plan, was first approved as of March 1, 2012. Liberty, as the administrator of Comcast's Short Term Disability Plan ultimately extended Mr. Ellis's short term disability benefits to the maximum period of September 5, 2012.

A. Mr. Ellis's Medical Records

Mr. Ellis received physical and speech-language therapy. Notes from Mr. Ellis's physical therapy sessions dated in 2012 reflect that Mr. Ellis was experiencing weakness, fatigue, and loss of balance/coordination. See e.g. Doc # 34-14, p. 9. Notes from Mr. Ellis's speech therapy sessions in 2012 and 2013 reflect that Mr. Ellis was experiencing mild to moderate cognitive deficits in areas including attention, memory, and complex reasoning. See e.g. Doc # 34-15, p. 22.

Dennis A. Helffenstein, Ph.D., performed a neuropsychological examination of Mr. Ellis in August and September of 2012. Doc # 35-6, pp. 7-22. In a report dated November 10, 2012, Dr. Helffenstein detailed cognitive deficits he observed in Mr. Ellis and opined that these deficits "relate directly and solely to the medical event that occurred on February 1, 2012" and that it "Seems reasonable that an episode of cerebral hypoxia did occur during this event." Id. at p. 19. Dr. Helffenstein concluded that due to a combination of his "physical, fatigue, visual, cognitive, and emotional coping problems," Mr. Ellis was totally disabled from competitive employment at that time. Id. at p. 21.

Daniel C. Hadley, M.D., Mr. Ellis's primary care physician who had been treating him since February of 2012, completed a restrictions form for Liberty on May 23, 2013 and stated that Mr. Ellis was unable to participate indefinitely in any work situation requiring a minimal amount of concentration for more than 10 - 20 minutes due to "cognitive impairment from hypoxic encephalopothy." Doc # 34-16, p. 21. Alan Zacharias, a neurologist who began treating Mr. Ellis in May of 2012, also completed a restrictions form for Liberty on May 25, 2013 and stated that Mr. Ellis was unable to work as shown by neuropsychological testing and his notes. Doc # 34-16, p. 11.

On August 12, 2013, Dr. Hadley answered Liberty's request for specific activities restrictions/limitations and recommended that in an 8-hour workday Mr. Ellis could sit for 1-1 ½ hours at a time for a cumulative total of over 5 ½ hours; stand and walk for a cumulative total of 2 ½ hours; push, pull, lift, and carry up to 20 pounds for short distances for a cumulative total of 2 ½ hours; and was restricted in climbing, squatting, bending, and kneeling due to dizziness. Doc # 34-12, pp. 11-13. Dr. Hadley also noted that Mr. Ellis "continues to have cognitive impairment resulting in ongoing disability related to concentration/memory." Id. at p. 13.

On May 16, 2014, Mr. Ellis was seen for a high-resolution brain SPECT imaging study. S. Gregory Hipskind, M.D. Ph.D., reported that the results of the study were abnormal and that the abnormalities "were most consistent with the scientific literature pertaining to a diffuse, toxic/hypoxic encephalopathic process and the patient's clinical history." Doc # 34-7, pp. 22-4.

B. Liberty's Policy

The Policy provides that "Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. Liberty's decisions regarding construction of the terms of the policy and benefit eligibility shall be conclusive and binding." Doc # 52, p. 42.

In pertinent part, the Policy defines "Disability" or "Disabled" for purposes of long term disability as follows:

i. if the Covered Person is eligible for the 12 Month Own Occupation Benefit, "Disabled" or "Disability" means that during the Elimination Period and the next 12 months of Disability the Covered Person, as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own Occupation; and

ii. thereafter, the Covered Person is unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation.

Id. at p. 9. Under the Policy,

"Own Occupation" means the Covered Person's occupation that he was performing when his Disability or Partial Disability began. If the Covered Person is unable to earn 80% of his predisability earnings he will be considered unable to perform his Own Occupation. For purposes of determining Disability under the policy, Liberty will consider the Covered Person's occupation as it is normally performed in the national economy.

"Any Occupation," with respect to Class 4, means any gainful occupation that the Covered Person is or becomes reasonably fitted by training, education, experience, age, physical and mental capacity. Gainful occupation means an occupation in which the earnings are:

-equal to or greater than 80% of the Employee's pre-disability income;

-less than 80 % of the Employee's average pre-disability income, but higher than the average earnings for the geographic area in which the Employee resides; or

- equal to or greater than the gross benefit.

Id. at pp. 7 & 12.

The Policy provides that payment of long term disability benefits will cease on the earliest of

1. the date the Covered Person fails to provide Proof of continued Disability or Partial Disability and Regular Attendance of a Physician;

...

8. The date the Covered Person s no longer Disabled according to this Policy;

...

Id. at pp. 34-5. The Policy also contains a Mental Illness, Substance Abuse and/or Non-Verifiable Symptoms Limitation (the "Mental Illness provision") which provides that the benefit for disability due to any of these conditions will not exceed a period of 24 months. Id. at p. 26.

C. Liberty's Handling of Mr. Ellis's Claim for Long Term Disability Benefits

By letter dated January 21, 2013, Liberty advised Mr. Ellis that he would be receiving long term disability benefits under a reservation of rights while it conducted a medical review to determine his eligibility. Doc # 35-4, p. 22.

Liberty had Dr. John A. Crouch, a neuropsychologist affiliated with Liberty's Clinical Services Department, and Dr. Gilbert Wager, a doctor of internal medicine, pulmonary medicine and critical care medicine, review Mr. Ellis's medical records. Dr. Wager stated that an assessment of Mr. Ellis's reported neuropsychological impairments was outside the scope of his expertise but opined that from a physical perspective Mr. Ellis appeared able to perform sedentary work on a full time, sustained basis. Dec # 35-5, p. 9. After reviewing Dr. Helffenstein's raw data, Dr. Crouch set forth the following findings in a report dated April 4, 2013:

...various statistically and clinically significant impairments are revealed across multiple neurocognitive domains including learning/memory, attention/concentration, and processing speed. A variety of significant restrictions and limitations would likely result from this claimant's impairment including difficulty with concentration, persistence, pace, and adaptation. Given the reportedly cognitively demanding nature of [Mr. Ellis's] job, he would likely be precluded from performing the usual duties of the job, regardless of accommodations provided.

... the likelihood that his 2/1/12 reported 24-second period of asystole is the sole cause of his functional difficulties is highly unlikely. Although

...