Fenwick v. Hartford Life & Accident Ins. Co.

457 F.Supp.3d 603

Rita K. FENWICK, Plaintiff,

v.HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendant.

Civil Action No. 3:13-CV-1090-CHB

United States District Court, W.D. Kentucky, Louisville Division.

Signed May 4, 2020

Michael D. Grabhorn, Andrew M. Grabhorn, Grabhorn Law Office, PLLC, Louisville, KY, for Plaintiff.

Grace R. Murphy, William B. Wahlheim, Jr., Maynard Cooper & Gale PC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

This matter is before the Court upon cross motions for summary judgment. [R. 104; R. 107] This case revolves around Defendant Hartford Life & Accident Insurance Company's ("Hartford Life") decision to cease providing Plaintiff Rita K. Fenwick ("Fenwick") with disability benefits under a plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Hartford Life had previously provided Fenwick with Long Term Disability ("LTD") benefits. However, Hartford Life later decided that Fenwick's disability did not preclude her from "Any Occupation" under the terms of the applicable insurance plan and ceased providing LTD benefits. For the reasons below, the Court will hold that Hartford Life's termination of benefits decision was proper, will DENY Fenwick's Motion for Summary Judgment and will GRANT Hartford Life's Motion for Summary Judgment on all claims.

I. Statement of Undisputed Facts¹

A. The Benefits Plan

Fenwick was an employee of Target Corporation ("Target") and worked as a "Store Leader." [R. 104-1 p. 5] Hartford Life issued Group Insurance Policy GLT-395265 ("the Policy") to Target. [AR 315–37] This Plan insured the LTD component of Target's employee welfare benefit plan ("the Plan"), covering participants who were already receiving benefits under Target's previous self-insured plan. [AR 315–37] As part of her employment, Ms. Fenwick was insured under the LTD policy—providing a monthly benefit in the event she became, and remained, "Disabled" through age sixty-seven. [R. 104-1 p. 2]

Target vested Hartford Life with "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of The Policy." [AR 325] The Plan defined "Disability" and "Disabled" to mean "during the first 24 months, You are prevented from performing Any Occupation and after 24 months Your inability to engage in Any Occupation which will provide an income equal or greater than 128% of the Monthly Benefit." [AR 325] "Any Occupation" is defined as "any occupation for which You are qualified, or may reasonably become qualified, by education, training or experience." [AR 325] Fenwick was responsible for submitting proof of continued disability under the Policy, which states:

Benefit payments will stop on the earliest of:

1) the date You are no longer Disabled;

2) the date You fail to furnish Proof of Loss;

...

12) If after 24 months of benefit payments You are qualified to perform a job that will provide an income equal to or greater than 128% of Your Monthly Benefit ....

[AR 321, 322]

B. Timeline of Events

1. Fenwick is Initially Awarded LTD.

In August 2005, Plaintiff submitted a claim for LTD benefits to Principal Life Insurance Company ("Principal"), who administered Target's self-insured welfare benefit plan at that time. [AR 372] Principal initially denied the claim on October 20, 2005 [AR 455–57], and Plaintiff appealed. [AR 448–52] On appeal, Principal obtained a January 25, 2006 Functional Capacity Evaluation ("FCE"), which determined that Plaintiff could perform full-time sedentary work, but noted that self-limitations exceeded normal limits and "psychosocial and/or motivational factors [were] affecting test results." [AR 241–42] Due to the questions about the validity of the FCE, Principal obtained a March 14, 2006 Independent Medical Evaluation ("IME"), which concluded Plaintiff could perform full-time sedentary level work. [AR 688–93] As that capacity would prevent her from performing her own job or any comparable work, Principal reversed its decision and began paying "own occupation" benefits, effective August 25, 2005. [AR 475–77]

By letter dated July 12, 2007, Principal informed Fenwick that it was approving benefits beyond August 24, 2007, "on a provisional basis only" and that its test-change review was ongoing to determine whether she would continue to meet the "Any Occupation" definition of disability after that date. [AR 424–25] Principal planned to complete an Employability Assessment, obtain an update as to her Social Security claim and return to work status, and a list of any new physicians. [AR 429] The Employability Assessment, dated December 3, 2007, concluded that there were four alternative occupations Fenwick could perform. [AR 256] Principal continued to follow up on her Social Security appeal and was informed in August 2008 that Fenwick had been denied at the hearing level "as they determined she could perform sedentary jobs that would allow her to move about." [AR 344] Principal also notified her that its review had found other occupations she could perform as well. [AR 344] In an August 25, 2008 file memo, Principal's vocational specialist confirmed that Fenwick could perform four positions that met the 128% earnings requirement. [AR 417] Fenwick's claim transferred to Hartford Life on April 1, 2009. [AR 298, 886]

2. Hartford Life's Initial Review of Fenwick's claim Found Her Capable of Sedentary and Light Work and Terminated Her Claim.

When Hartford Life took over the claim administration in April 2009, actual review of Fenwick's claim did not begin until December 2009. [AR 925] Hartford Life obtained a December 22, 2009 Attending Physician Statement ("APS") from Fenwick's family doctor, Dr. Anna Fisher, who diagnosed Fenwick with low back and neck pain and opined that she was "unable to do sustained work." [AR 229–30] In response, Hartford Life planned to obtain updated medical records to determine if the restrictions and limitations provided were supported. [AR 923]

In February 2010, Hartford Life received Dr. Fisher's office visit notes since September 2, 2009. [AR 919, 665–66] The October 1, 2009 note indicated that Fenwick was sleeping better and that Lyrica was effective for pain but caused swelling. [AR 665] Hartford Life followed up with a letter dated February 19, 2010, seeking specific sit, stand, and walk limitations, but Dr. Fisher responded that she would not complete them. [AR 661, 918] She stated instead that Fenwick was "unable to do sustained work" and offered to refer Fenwick for an FCE if Hartford Life would pay for it. [AR 919] Hartford Life's claims examiner referred the claim internally to Medical Case Management ("MCM") to determine whether Dr. Fisher's opinion was supported, make further attempts to obtain a more detailed opinion from Dr. Fisher, and determine if an FCE or other independent review was needed. [AR 918–19]

The MCM nurse reviewed the medical records in the file and concluded that they supported the existence of a back and neck condition that would prevent her from lifting greater than 20 pounds, but they did not contain a complete set of restrictions or support the inability to sustain activity. [AR 917] In a March 18, 2010 letter to Dr. Fisher, the MCM nurse acknowledged Dr. Fisher's offer to refer Fenwick for an FCE but explained that Fenwick had already undergone an FCE in the past, which reported self-limiting behavior that "does not make for valid testing of function." [AR 656] The letter also set out the MCM nurse's conclusion that there was nothing in the medical records supporting Fenwick being precluded from at least sedentary work as long as she was able to take brief change of position breaks when needed. [AR 656] The letter asked Dr. Fisher to provide medical information supporting her assessment if she disagreed. [AR 656–57] Dr. Fisher's office responded that she would not complete the forms and that formal testing needed to be done. [AR 915]

The MCM nurse noted in the file that, because of the self-limiting behaviors in the previous FCE, another FCE was "not a desirable option," and referred the claim to an outside vendor for an IME instead. [AR 915] Dr. Gregory Fisher, MD, a fellow in the American Academies of Orthopedic Surgeons and Disability Evaluating Physicians, reviewed the medical records; personally examined Fenwick on April 26, 2010; and provided a report and accompanying physical capacity evaluation ("PCE"). [AR 186–87, 673–78] The report summarized the records, the physical exam, and Fenwick's self-reported subjective symptoms, and concluded that Fenwick was "able to perform light duty activities of lifting and carrying 10 pounds frequently and occasionally 20 pounds." [AR 673–78] The reviewer's PCE similarly stated that Fenwick could sit 4-6 hours at a time, stand 1-2 hours at a time, and walk 1-2 hours at a time, for up to 8 hours per day. [AR 186] He also noted that she could never crouch or crawl; could occasionally climb, balance, stoop, or kneel; could frequently drive and reach at all levels; and could constantly handle, finger and feel, but that she should avoid repetitive, excessive bending and twisting at waist level. [AR 186–87] The MCM nurse agreed that these restrictions and limitations were consistent and supported by the medical records. [AR 913] The report was sent to Fenwick's family doctor for comment, but she did not respond. [AR 913]

On June 10, 2010, Hartford Life's claims examiner referred the case for an Employability Analysis Report ("EAR"). [AR 912–13] The EAR, dated June 14, 2010, used the IME report's restrictions and limitations and identified three occupations that were within Fenwick's functional capabilities, skills, and education: Area Supervisor, Retail Chain, which was a previous occupation Fenwick had held; and two other similar managerial positions, Office Manager and Supervisor, Advertising-Material, which were both within the good-transferability match level....