Lundberg v. UNUM Life Ins. Co. of Am.

Katherine L. MacKinnon, Law Office of Katherine L. MacKinnon, St. Paul, MN, and Nicolet Lyon, Ronstadt Law, Phoenix, AZ, for Plaintiff Bradley J. Lundberg.

Terrance J. Wagener and Jake W. Elrich, Messerli & Kramer P.A., Minneapolis, MN, for Defendant UNUM Life Insurance Company of America.

OPINION AND ORDER

Eric C. Tostrud United States District Court Judge

In this ERISA lawsuit, Plaintiff Bradley J. Lundberg seeks to recover long-term disability benefits under an employee welfare benefit plan (the “Plan”) sponsored by his former employer, Blue Cross and Blue Shield of Minnesota, and insured and administered by Defendant Unum Life Insurance Company of America. Mr. Lundberg applied for benefits, and Unum approved his claim and began paying benefits in 2018. In 2021, after paying benefits for more than three years, Unum determined that Mr. Lundberg was not disabled and terminated his benefits. In line with the Plan's administrative procedures, Mr. Lundberg appealed the decision to terminate his benefits. Unum affirmed the initial termination decision, prompting Mr. Lundberg to file this case.

Mr. Lundberg and Unum have filed competing motions seeking judgment on the administrative record pursuant to Federal Rules of Civil Procedure 39(b) and 52(a)(1). In doing so, the parties have made clear that they wish the Court to exercise its factfinding function and enter judgment based on the administrative record and briefs filed in connection with the motions. Judgment will be entered for Mr. Lundberg because a preponderance of the evidence supports his benefits claim.

I^[1]

A

The Plan provides benefits to covered Blue Cross employees who become disabled. For the first twenty-four months after an eligibility period^[2] is exhausted, the Plan defines disability based on a “regular occupation” definition:

You are disabled when 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 at 69. “You” refers to the participant. AR at 87. “Regular occupation” means “the occupation you are routinely performing when your disability begins,” considering “your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.” AR at 86. The Plan defines “[l]imited” as “what you cannot or are unable to do.” AR at 85. “Material and substantial duties” are those that “are normally required for the performance of your regular occupation” and “cannot be reasonably omitted or modified.” Id. “Injury” is defined as “a bodily injury that is the direct result of an accident and not related to any other cause.” Id. “Sickness” is “an illness or disease.” AR at 87. For a claim involving either a sickness or injury, “[d]isability must begin while you are covered under the plan.” AR at 85, 87. After the first 24 months of payments, the Plan defines “disabled” by reference to an “any gainful occupation” standard:

After 24 months of payments, you are disabled when Unum determines 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

AR at 69. “Gainful occupation” means “an occupation that is or can be expected to provide you with an income within 12 months of your return to work, that exceeds . . . 80% of your indexed monthly earnings, if you are working” or “60% of your indexed monthly earnings, if you are not working.” AR at 84.

B

Mr. Lundberg worked for Blue Cross as a senior recovery specialist. The position involved reviewing, investigating, and processing claims, taking customer calls, and

processing customer correspondence. AR at 48, 904, 919. Mr. Lundberg worked at a computer all day, performing data entry and analysis, researching, using computer applications, sending and receiving emails, and typing. AR at 48, 920. Later, in connection with Mr. Lundberg's benefits claim, Unum would categorize the position as most like that of “Insurance Claim Examiner” in the national economy, involving “[s]edentary work” that required “[m]ostly sitting, [and] may involve standing or walking for brief periods of time, lifting, carrying, pushing, pulling up to 10 Lbs occasionally, and require[d] frequent near acuity, accommodation.” AR at 915, 2251, 2509, 2820, 4274, 4276; see AR at 2513, 2821 (noting that the insurance claim examiner position required “near acuity and visual accommodation” between 2.5-5.5 hours a day in an 8-hour workday).

Mr. Lundberg has a history of eye-related and other health problems that did not cause him to be disabled. For example, Mr. Lundberg wore glasses starting at age two, and he had “strabismus^[3] surgery at 4 or 5 [years old] for an eye turn.” AR at 3781. He also had nearsightedness (or “myopia”), astigmatism,^[4] and presbyopia^[5] in both eyes. AR at 1975, 2551, 3779, 3796. Mr. Lundberg's other medical conditions included asthma, chronic fatigue, cognitive change, environmental allergies, esophageal reflux,

hypertension, irritable bowel syndrome, multiple food allergies, morbid obesity, high cholesterol, hypothyroidism, and vitamin D deficiency. AR at 3910-11. At least through late 2016, the record does not show that any one of these conditions-or some combination of them-caused Mr. Lundberg to be disabled.

Mr. Lundberg experienced more significant eye problems in late 2016 and early 2017, beginning with dimming vision. On January 6, 2017, after experiencing blurred and dimming vision and flashes in his eyes “like after a flash bulb go[es] off,” Mr. Lundberg was examined by Tammy H. Peterson, M.D. AR at 1064-75. Dr. Peterson diagnosed Mr. Lundberg as suffering from “[t]ransient vision disturbance of right eye[,] [n]asal field defect, right[, and] [o]ptic nerve swelling.” AR at 1071-75. Dr. Peterson referred Mr. Lundberg to a neurologist “for evaluation of cause of OD^[6] ONH swelling and treatment if needed,” and cautioned Mr. Lundberg to “seek care if [he had] any loss of vision, increasing pain, or field restriction.” AR at 1072. In a letter referring him to the neurologist, Dr. Peterson explained:

[Mr. Lundberg] was in to see me on the afternoon of January 6th on an emergent basis with complaints of dimming of the vision in the right eye “like after a flash bulb goes off[.]” The dimming is noted more in his inferior-temporal field of view and bright lighting seems to worsen the blur. He notes he has had infrequent episodes of this dimming over the past few months, but they cleared without change in his vision.

Over the past few days he has noted that the episodes, lasting up to an hour, have been continuing much more frequently. He denies photophobia, eye pain, or pain with change in gaze. He

has frequent headaches, but does not associate the visual blur with a headache.

His acuity in the right eye is 20/25- (he is amblyopic^[7] in the right eye). Pupil responses were normal. EOM^[8] movements were smooth with no pain or diplopia noted. There was no appreciable color desaturation.

A dilated fundus^[9] examination of the right eye showed no retinal defects. However, he had blurring of the margins and a slight elevation of the nerve head. No vascular abnormalities or disc hemorrhages were noted. The left eye had a flat optic nerve with distinct margins. Visual field testing showed an inferior-temporal defect in the right eye, but the left eye was normal.

AR at 1075.

On January 9, 2017, Mr. Lundberg experienced pressure behind his right eye, worsening blurred vision, and decreased peripheral right and lower vision in his right eye, prompting an emergency room visit. AR at 1076, 1080. In the Mercy Hospital emergency room, Mr. Lundberg's blood pressure was measured at 224/122, or “very hypertensive.” AR at 1076-1081. Mr. Lundberg denied “headache, eye pain, nausea, vomiting,

numbness[,] or weakness.” AR at 1076. Mr. Lundberg underwent a head and brain CT scan, an MRI, and an MRA,^[10] but these imaging studies revealed no significant problem. AR at 1078, 1083-85.

Mr. Lundberg followed up with a neurologist on January 10, 2017. At this visit, Mr. Lundberg reported a “longstanding history of headaches” and “a history of blurred vision, pronounced on the right” that was “intermittent for the last couple of months” and “accompanied by photophobia.”^[11] AR at 983. In a medical record documenting the examination, neurologist Chad D. Evans, M.D., described his impression that Mr. Lundberg was suffering from “[v]ision disorder” and “[i]ntercranial hypertension.”^[12]AR at 985. Dr. Evans scheduled a lumbar puncture^[13] with opening pressure “as a

diagnostic/treatment strategy for his symptoms” and to “eval[uate] pseudotumor,”^[14] and referred Mr. Lundberg for a neuro-ophthalmologist consultation. AR at 985-87.

Mr. Lundberg was examined by a neuro-ophthalmologist, Dr. Lee, on January 18, 2017. The neuro-ophthalmologist, Michael Shi Young Lee, M.D., diagnosed Mr. Lundberg with anterior ischemic optic neuropathy (“AION”),^[15] subjective visual disturbance, and pseudopapilledema,^[16] bilateral. AR at 1014, 1019. Dr. Lee wrote:

[Mr. Lundberg] has sudden vision loss RIGHT eye with progression. This was predominantly painless, but recently has had headache behind his RIGHT eye. The right optic nerve is swollen today but the LEFT eye shows pseudopapilledema. He has an appearance of optic disc drusen^[17] in that LEFT eye. I reviewed his MRI personally, there is no partially empty sella or