Giberson v. Unum Life Ins. Co. of Am.

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WALTER W. GIBERSON, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

Civil Action No. 1:21-00305

United States District Court, S.D. West Virginia, Bluefield

October 12, 2022

MEMORANDUM OPINION

David A. Faber, Senior United States District Judge

By Order entered September 30, 2022, the court GRANTED defendant's motion for summary judgment and DENIED plaintiff's motion for summary judgment. The reasons for that decision follow.

Background

On September 21, 1997, plaintiff, Walter J. Giberson, was hired by Princeton Community Hospital (“PCH”) as a Security & Safety Officer. See Administrative Record (“AR”) 52. PCH purchased a long-term disability plan from Unum Life Insurance Company (“Unum”), Policy No. 580366 (“the Plan” or “the Policy”), and it provided long-term disability coverage, effective January 1, 2004, to all full-time employees as defined by the Policy. See AR 117, 121. As a full-time employee of PCH plaintiff was a participant in the long-term disability plan offered by his employer. See AR 372. The Plan is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). See AR 117.

On December 30, 2005, Giberson submitted a claim for long-term disability benefits to Unum. See AR 49-67.^[1] In support of his claim, Giberson submitted an Attending Physician's Statement from his cardiologist, Dr. Naeem A. Qazi, opining that Giberson was totally disabled on July 21, 2005, by cardiac conditions (hypertension and angina) complicated by his status post kidney transplant.^[2] See AR 50-51.

Unum found that Giberson was eligible to receive long-term disability benefits under the Policy. See AR at 372. However because the Policy contained a 180-day elimination period^[3] prior to eligibility for long-term disability benefits, see AR 121, 134, he did not begin receiving benefits until January 18, 2006. See AR 372.

The long-term disability plan at issue herein is a two-tier plan with the first tier covering the first 24 months a person receives benefits under the Plan while the second tier governs persons receiving benefits under the Plan for greater than 24 months. See AR 134. Eligibility for each tier is different. For initial payments under the plan, a person is deemed disabled and eligible for payments if "Unum determines that: - you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and - you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury." AR 134. In order to continue to receive payments under the Plan after 24 months of payments, Unum must determine "that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience." Id. In addition, the Policy also requires that a claimant “be under the regular care of a physician in order to be considered disabled.” Id. Obviously, the standard for demonstrating continued eligibility beyond 24 months is more rigorous because a person must be deemed by Unum as unable to perform the duties of any gainful occupation,^[4] rather than just unable to perform the duties of his or her regular occupation as is required for the first 24 months.

Giberson received benefits under the Plan for the initial 24 months see AR 372, and was also deemed eligible to receive benefits under the Plan beyond that time under the second tier. See AR 774-78. He received benefits under the Plan for fourteen years.^[5]

On January 6, 2020, Unum informed Giberson that it would be performing a review of his benefit eligibility and requested proof of his continued disability. See AR 124 1820-21. To that end, the Policy provided:

We may request that you send proof of continuing disability indicating that you are under the regular care of a physician. This proof, provided at your expense, must be received within 45 days of a request by us.

In some cases, you will be required to give Unum authorization to obtain additional medical information and to provide non-medical information as part of your proof of claim, or proof of continuing disability. Unum will deny your claim, or stop sending you payments, if the appropriate information is not submitted.

AR 124.

Giberson's disability update form was provided to Unum on February 10, 2020. See AR 1828-31. Giberson reported that he was under the care of three medical providers: 1) Dr. Parrish (internal medicine); 2) Dr. Sekkarie (nephrology); and 3) Dr. Africa (general surgery, kidney transplant). See AR 1829. He further reported that he had received a cardiac work-up at Princeton Community Hospital in August 2019. See id. Giberson stated that he was able to care for himself without assistance and perform day-to-day activities, including light housework, laundry, email, watching television, reading, cooking, and visiting his mother 2 to 3 times a week. See AR 1828.

On April 23, 2020, Giberson informed Unum that Dr. Parrish had given him a referral for a functional capacity evaluation (“FCE”), but he was having difficulty finding someone to perform it because of his insurance. See AR 2064. He also reported that he was currently suffering from rheumatoid arthritis in both hands and his lower back, making it difficult to even open a bottle of water or stand straight for more than 5-6 minutes. See Id. Giberson mentioned having a cardiac workup because of chest pains and shortness of breath while walking through the house. See Id. Of his kidney function, Giberson reported that it “has started going down,” “[c]reatinine [is] running higher than they want,” and “[he's] thinking 45 or 50% kidney function is all I got.” Id.

On May 19, 2020, Unum contacted plaintiff to see if a FCE was pending. See AR 2106-07. Giberson stated that he had not scheduled a FCE because it was not covered by his insurance. See id. When asked why his recent medical records did not reflect treatment for rheumatoid arthritis, Giberson told Unum that most medication cannot be prescribed because of his kidney transplant. See id. He reported that he walked on the treadmill every other day and had stopped a different exercise program when his creatinine levels increased. See id. He shared his fear that his transplanted kidney was declining/wearing out, that he was having difficulty sleeping, and that he may have undiagnosed sleep apnea. See id. Unum reminded Giberson to provide all information and/or evidence he wanted considered during his claim review. See id.

Unum gathered and reviewed medical records from each of Giberson's physicians. See AR 2003-42, 2045-62, 2066-76. Unum also requested of each provider information related to Giberson's functional capacity.

Dr. Parrish did not offer an opinion on plaintiff's functional capacity. See AR 2009. Unum's records revealed that Dr. Parrish did not do so because he believed doing so would require an FCE and Dr. Parrish did not do those. See id. Dr. Parrish saw Giberson six times between February 2019 and February 2020. See AR 2049-61. On April 9, 2019, Giberson was seen for a routine follow-up with no complaints, “said he feels fine” and reported “taking and tolerating medications well without noted difficulty or side effects.” AR 2059. Dr. Parrish identified hypertension, hyperlipidemia, rheumatoid arthritis, gout, chronic kidney disease, and recurrent cold sores as the conditions being monitored. See AR 2059-61. Dr. Parrish also reported that Giberson's chronic illnesses were “stable.” AR 2059.

On May 24, 2019, Giberson was seen by Nurse Practitioner (“NP”) Beverly Whitt complaining of chest congestion and cough and was diagnosed with headache syndrome and sinusitis. See AR 2056-58. On that visit, the medical records show that a chest and lung cardiovascular exam were “normal.” AR 2057-58.

On August 12, 2019, Giberson was again seen by NP Whitt and diagnosed with sciatica and gastroesophageal reflux disease. See AR 2055. The medical records from that visit once again showed that the chest and lungs and cardiovascular examination were “normal.” AR 2054-55.

Two weeks later, on August 26, 2019, Dr. Parrish saw Giberson for complaints of chest pain/pressure after “bench pressing more.” AR 2053. According to Giberson's self-report, the onset of the pain was “sudden” and “worsening.” Id.

On October 9, 2019, Giberson was seen for a routine follow-up with no complaints. See AR 2052. Dr. Parrish further noted that plaintiff's chronic illnesses were “stable” and that Giberson reported “taking and tolerating medications well without noted difficulty or side effects.” Id.

On February 11, 2020, NP Whitt saw plaintiff for a sore throat, congestion, and cough, and diagnosed him with an acute upper respiratory infection. See AR 2049-51. On that visit, it was noted that Giberson's heart rhythm was “regular” and his heart sounds were “normal.” AR 2051.

Dr. Sekkarie's records indicated that Giberson had been seen by him on October 15, 2019, for routine follow-up monitoring of his kidney transplant status, and related hypertension and hyperarathyroidism conditions. See AR 1942. According to Dr. Sekkarie's records: “There have been no medication changes. Since the last visit the patient denies problems with chest pain, edema, nausea, vomiting, urinary symptoms, fever, at this time." Id. Dr. Sekkarie concluded that Giberson's hypertension and hyperparathyroidism were stable, although his kidney function had worsened. See AR 1943. Nevertheless, Dr. Sekkarie continued Giberson on all the same medications and wrote that he should return for a follow-up in twelve months. See id.

On behalf of Dr. Africa, a nurse named Melissa F. at the Charleston Area Medical Center's Renal Transplant...