Himes v. Provident Life & Accident Ins. Co.

LARRY LEE HIMES, Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY (a/k/a UNUM GROUP CORPORATION), Defendant.

Case No. 3:19-cv-00215

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 22, 2021

Judge Aleta A. Trauger

MEMORANDUM

In early 1996, pro se Plaintiff Larry Lee Himes began suffering from severe gastrointestinal problems and sensitivity to odors allegedly caused by the high-dose chemotherapy and stem cell transplant he received to treat non-Hodgkin's lymphoma. (Doc. No. 1). When those conditions prevented Himes from continuing his work as an accountant for Southwestern/Great American, Inc., he applied to collect disability insurance benefits from Defendant Provident Life and Accident Insurance Company (a/k/a Unum Group) under a plan that he obtained through his employer. (Id.) Himes began receiving benefits in February 1996, but Provident terminated those benefits six months later in August 1996. (Id.)

Himes administratively appealed that decision multiple times without success. (Id.) However, in 2007, Provident reviewed Himes's claim as part of a regulatory settlement agreement entered into with the United States Department of Labor and various state governments who had sued Provident "for its unlawful claims assessment practices when reviewing disability claims." (Id. at PageID# 4). Provident reversed its 1996 termination decision, awarded Himes his unpaid benefits with interest, and reinstated his benefits moving forward. (Doc. No. 1).

Himes received regular benefit payments until Provident again terminated his award on March 27, 2017. (Id.) Himes filed this action under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), on March 8, 2019, seeking reinstatement of his benefits and an award of unpaid benefits plus interest. (Id.) Himes filed a motion to include missing documents from the administrative record and to supplement the administrative record (Doc. No. 25), to which Provident filed a response (Doc. No. 26), and Himes filed a reply (Doc. No. 27). Himes also filed a motion for judgment on the administrative record and supporting memorandum of law (Doc. Nos. 28-29), alleging that his benefits were wrongfully terminated. Provident has responded in opposition (Doc. No. 30), and Himes filed a reply (Doc. No. 31). For the reasons that follow, Himes's motion to supplement the record and motion for judgment will be denied.

I. Background

A. Plan Provisions

The plan relevant to this action was issued on May 22, 1991, and, in exchange for monthly premiums, provides for payment of insurance benefits upon a showing of "total disability." (Doc. No. 24, AR 6).¹ Under the plan, the meaning of that term changes with time. Before a claimant turns fifty-five or has received benefits for ten years for a period of disability, whichever is later, he is considered totally disabled if he is (1) unable to perform the substantial and material dutiesof his occupation and (2) receiving treatment from a physician that is appropriate for the condition causing the disability. (Id., AR 8). After the claimant turns fifty-five or has received benefits for ten years for a period of disability, whichever is later, he is considered totally disabled if he continues receiving appropriate medical treatment and is not able to engage in any gainful employment consistent with his education, training, or experience. (Id.) The plan states that Provident will waive the treatment condition during either time period "when continued care would be of no benefit" to the claimant (Id.) It also states that, while a claim is pending, Provident has "the right to have [the claimant] examined as often as is reasonable" at its own expense. (Id., AR 15).

To receive benefits, a claimant must submit a notice of claim within twenty days after a covered loss begins. (Id., AR 14). Upon receiving a notice of claim, Provident is required to send the claimant "claim forms for filing proof of loss," but, if the forms are not given to the claimant within fifteen days, the claimant will meet the proof of loss requirements by giving Provident a written statement of the nature and extent of his loss. (Id.) Regarding proof of loss, the plan states:

If the policy provides for periodic payment for a continuing loss, you must give us written proof of loss within 90 days after the end of each period for which we are liable. For any other loss, written proof must be given within 90 days after such loss.

If it was not reasonably possible for you to give written proof in the time required, we will not reduce or deny the claim for this reason if the proof is filed as soon as reasonably possible. In any event, the proof required must be furnished no later than one year after the 90 days unless you are legally unable to do so.

(Id.) After receiving written proof of loss, Provident will pay monthly all benefits due. (Id., AR 15).

B. Factual History and Administrative Record²

Himes is a certified public accountant and began working for Southwestern/Great American, Inc., in 1985. (Doc. No. 1, at ¶ 3). Southwestern offered its employees the disability insurance benefit plan at issue in this action, which Himes purchased in 1990. (Id. at ¶ 4). In January 1994, Himes was diagnosed with non-Hodgkin's lymphoma and began a six-month chemotherapy regimen. (Id. at ¶ 5). Himes worked full-time during that period. (Id.) The cancer returned, and Himes began another round of chemotherapy in November 1995, at which point he was unable to continue working. (Id. at ¶¶ 6-7). In January 1996, Himes received increased doses of chemotherapy and a stem cell transplant. (Id. at ¶ 6). On February 28, 1996, Provident awarded Himes long-term disability (LTD) benefits, noting a diagnosis of lymphoma. (Doc. No. 24-5, AR 1558; Doc. No. 24-4, AR 1269).

An April 29, 1996 Attending Physician's Statement (APS), signed by oncologist Dr. Michael Magee, indicated lymphoma as the current diagnosis/impairment alleged to underlie the claimed disability and noted that Himes was recovering from a stem cell transplant. (Doc. No. 24-4, AR 1262). On July 8, 1996, Dr. Magee's APS listed Himes's current occupational restrictions and limitations as weakness, fatigue, and anxiety. (Id., AR 1251). On July 25, 1996, Dr. Magee noted on the APS that Himes could return to work on a full-time basis on August 5, 1996. (Id., AR 1249). Provident terminated Himes's LTD benefits in August 1996. (Doc. No. 24-6, AR 1891, 1931-32, 1935).

Himes applied for Social Security benefits, and on January 23, 1997, the Social Security Administration (SSA) found Himes to be disabled based on a primary diagnosis of "malignant neoplasm of lymphoid and histiocytic tissue/Hodgkin's disease." (Doc. No. 24-1, AR 415). No secondary diagnosis was established due to lack of medical evidence in the file. (Id.) On May 4, 2000, the SSA updated its disability finding by continuing disability benefits based on the primary diagnosis of somatoform disorders,³ with a secondary diagnosis of history of neoplasm of lymphoid and histiocytic tissue/Hodgkin's disease. (Id., AR 416).

On August 5, 2002, Provident denied Himes's appeal of Provident's decision to terminate his LTD benefits in August 1996. (Doc. No. 24-3, AR 979-82). Himes continued to appeal Provident's decision, but his letters of appeal were again denied on July 24, 2003, and August 28, 2003. (Id., AR 983-96).

However, in 2004, Unum entered into a Regulatory Settlement Agreement (RSA) with the United States Department of Labor and other multi-state jurisdictions that allowed for reassessment of certain claims previously denied and/or terminated. (Doc. No. 21, at ¶ 12).; see also In re UnumProvident Corp. ERISA Benefits Denial Actions, No. 1:03-CV-1000, 2010 WL323191, at *1 (E.D. Tenn. Jan. 19, 2010) ("UnumProvident entered into a multi-state regulatory settlement agreement ('RSA') with the Department of Labor ('DOL') and insurance regulators from Maine, Massachusetts and Tennessee. . . . The RSA became effective on December 20, 2004 and has been signed by 48 of the state or territorial insurance commissioners. The RSA provides, under the supervision of the DOL and state insurance commissioners, UnumProvident agreed to make certain changes to their claims handling practices and to re-review Plaintiffs' claims under those new practices."); Sconiers v. First Unum Life Ins. Co., 830 F. Supp. 2d 772, 783 (N.D. Cal. 2011) ("Lawsuits and large-scale investigations have revealed that for at least a decade starting in the mid-1990s Unum systematically engaged in bad-faith practices designed to wrongfully limit and deny benefits to ERISA plan participants." (citation omitted)); Radford Tr. v. First Unum Life Ins. Co. of Am., 321 F. Supp. 2d 226, 247 (D. Mass. 2004) (collecting cases for the proposition that Provident's conduct "reveal[ed] a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics"), rev'd in part, 491 F.3d 21 (1st Cir. 2007); John H. Langbein, Trust Law as Regulatory Law: the Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev. 1315, 1320-21 (2007) (providing an overview of the investigations that led to the regulatory settlement). Himes allowed Provident to access SSA's file on April 30, 2007, in connection with the 2007 reassessment. (Doc. No. 24-5, AR 1574-75). In August 2007, after reassessing Himes's case, Provident awarded him unpaid benefits with interest dating back to 1996 and reinstated his benefits moving forward. (Doc. No. 24-3, AR 913; Doc. No. 24-12, AR 3495, 3576-81).

In Provident's August 14, 2007 letter notifying Himes of the reinstatement of LTD benefits, Provident noted Himes's claim that he continued to suffer from the lingering effects ofchemotherapy, including gastrointestinal problems and odor sensitivity. (Doc. No. 24-12, AR 3579). In reassessing Himes's claim, Provident...