McCook v. Unum Life Ins. Co. of Am., CIVIL ACTION No.: 17-7835

463 F.Supp.3d 729

Laura S. MCCOOK

v.UNUM LIFE INSURANCE COMPANY OF AMERICA

CIVIL ACTION No.: 17-7835

United States District Court, E.D. Louisiana.

Signed May 29, 2020

Reagan Levert Toledano, James Frederick Willeford, Willeford & Toledano, New Orleans, LA, for Laura S. McCook.

Lauren A. Welch, McCranie, Sistrunk, Anzelmo, Hardy, New Orleans, LA, for Unum Life Insurance Company of America.

SECTION: "J" (4)

ORDER & REASONS

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

Before the Court are Cross-Motions for Judgment as a Matter of Law ("JMOL") filed by Plaintiff, Laura McCook, (Rec. Doc. 19) and by Defendant Unum Life Insurance Company of America ("Unum") (Rec. Doc. 21) . Both Plaintiff (Rec. Doc. 23) and Defendant (Rec. Doc. 24) have filed an opposition, and Plaintiff has filed a reply to her JMOL (Rec. Doc. 29). Having conffsidered the motions and legal memoranda, the record, and the applicable law, the Court finds that Plaintiff's motion should be DENIED , and Unum's GRANTED .

FACTS AND PROCEDURAL BACKGROUND

This litigation arises out of a decision to terminate benefits payments pursuant to an employee health benefits plan (the "Plan") governed by the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Plaintiff alleges that her long term disability benefits were wrongfully terminated by Unum pursuant to the Plan's 2-year cap on benefits for disabilities "due solely to mental disorders."¹

Plaintiff worked as an account manager for Ubisoft, Inc. Her job was to sell video games to retailers and required little in the way of heavy lifting but frequent travel and interactions with people. A few months after moving into a new home in 2006, Plaintiff says she began experience a variety of maladies. Beginning in April of that year she suffered her first migraine headache. Her symptoms quickly grew to include painful digestive cramps and vertigo.² She reports that black mold, Stachybotrys chartarum, was found in her home in July of 2013. Her home was remediated soon after the discovery, but her symptoms did not improve.

She stopped working for Ubisoft in March of 2014, claiming disability. She later reported that by that time she was "experiencing significant cognitive defects ... and was unable to meet work demands due to dizziness, confusion, and overall fatigue."³ Her treating physician, Dr. William J. Rea of the Environmental Health Center, completed an Attending Physician's Statement—a part of Unum's short-term disability claim form—on March 28, 2014.⁴ Dr. Rea wrote that Plaintiff was required to avoid "exposure of incitants including amient [sic] levels of petrochemicals, solvents, pesticides, fragrances, and molds." Dr. Rea's primary diagnosis was "Chronic Fatigue" with a secondary diagnosis of "Autonomic Nervous System Dysfunction."⁵ His treatment plan was to prescribe "food & inhalant antigen therapy, IV therapy, Heat Depuration Therapy, Oxygen Therapy, Ambien 5 mg, Remeron 15 mg."⁶ Dr. Rea listed Plaintiff expected date of return to work as June 23, 2014.

However, Plaintiff never returned to work. On June 9, 2014, she sent Unum a 24-page evaluation of her medical condition written by Dr. Nancy A. Didriksen, a health psychologist and expert in behavioral medicine. Dr. Didriksen conducted a battery of tests on Plaintiff and interviewed her extensively. Plaintiff reported to Dr. Didriksen that her primary symptoms at the time were dizziness, chronic pain and fatigue, sleep disturbances, and chemical and inhalant sensitivities following exposure to toxigenic molds in her home.⁷ She also reported that her insomnia, which had developed in her 20s, worsened once she moved into her home. Dr. Didriksen wrote that fatigue and pain behaviors were evident and that there was no evidence of malingering.⁸

Dr. Didriksen indicated in her evaluation that Plaintiff was suffering severe anxiety and depression and that her "[d]efense mechanisms do not always appear adequate to [address] anxiety and depression associated with ill health, environmental sensitivities, inability to work, concomitant financial constraints, and an uncertain future."⁹ Plaintiff's primary stressor was her fear of not regaining her health. IQ tests administered by Dr. Didriksen revealed that Plaintiff has an exceptional IQ—her scores placed her in the 99^th or 98^th percentile for general intelligence. Most of the other tests Dr. Didriksen employed to gauge more particular components of cognitive function reflected above average performance consistent with Plaintiff's high IQ. However, Dr. Didriksen noted in her report that Plaintiff's "Spelling and Math Computation scores fall in an average range and appear somewhat inconsistent with intellectual ability and prior educational and occupational achievements."¹⁰ Similarly, Dr. Didriksen reported that "scores on some measures of memory appear inconsistent with IQ scores and suggest a decrement in memory functioning."¹¹ For example, "[h]er ability to recall associated word pairs and attend to novel visual stimuli is at the lowest limit of the average range (25^th percentile)."¹² Dr. Didriksen noted that the "results: are considered a valid indication of her current level of neurocognitive and personality/behavioral functioning under environmentally-safe conditions with rest periods provided, as necessary to elicit her best performance."¹³ While Dr. Didriksen usually performs her evaluation within a single day, it was necessary to spread Plaintiff's evaluation over three days. "It is highly unlikely that [Plaintiff] is able to function effectively and inefficiently [sic] on a consistent basis at the present time as she experienced severe fatigue after two consecutive days of assessment which were not even the equivalent of normal workdays," wrote Dr. Didriksen.¹⁴

Dr. Didriksen diagnosed Plaintiff with an "Unspecified Neurocognitive Disorder" and "Adjustment Disorder With Mixed Anxiety and Depressed Mood." She noted that Plaintiff suffers from "compromised physical health (chronic fatigue and pain, sleep disturbances, and unpredictable reactions to environmental incitants)."¹⁵ This reference to "incitants" appears to refer to Plaintiff's statement that "smells became intolerable" to her. For example, while staying in a hotel in Tampa—she was there to seek treatment for gastroenterological issues—she was overwhelmed by odors of mold and chlorine and was unable to travel without a charcoal mask on. She had a similar reaction on a work trip to San Francisco, which she cut short because smells resulted in a severe headache. Dr. Didriksen concluded her report noting that Plaintiff is "totally disabled, now, and in the foreseeable future."¹⁶ Among other things, she recommended Plaintiff continue to avoid toxic/neurotoxic substances and to continue participation in Dr. Rea's treatment regimen.

Dr. David Jarry, a board-certified internist reviewed Plaintiff's file on behalf of Unum. Dr. Jarry reviewed Dr. Rea's file and noted that despite over 27 encounters between Plaintiff and Dr. Rea, documentation of the doctor's examinations was scant and consisted of a report of Plaintiff's symptoms and his prescribed treatment regime.¹⁷ Dr. Jarry also reviewed Dr. Didriksen's evaluation and the medical records obtained from several other health specialists who had treated Plaintiff, including: Dr. Overberg, Plaintiff's dietician; Dr. Johnson, an internist who treated Plaintiff's gastronomical distress after a trip to Mexico in 2008; and Dr. Cole, a therapist who met with Plaintiff 2-3 times a week.¹⁸ Amongst these records were lab results presented with minimal explanation and interpretation by the treating providers. Dr. Jarry found that most of the testing performed by Dr. Rea to diagnose Plaintiff was outside of generally accepted medical practice and included testing from specialized labs that were not FDA approved. Because Dr. Jarry, the primary Unum physician on Plaintiff's account, disagreed with the conclusions drawn by Dr. Rea, Plaintiff's file was referred to a second Unum physician, Dr. James Bress.

Dr. Bress, a board-certified physician in Internal Medicine, also disagreed with Dr. Rea's diagnosis of physical illness caused by toxic exposure. Dr. Bress could not find any clear evidence that Plaintiff's symptoms were caused by toxic mold exposure or chemical sensitivity. Furthermore, Dr. Bress noted Plaintiff's extensive history of psychological illnesses, particularly her long history of depression, had not been addressed by her physicians as a possible cause of her symptoms.¹⁹

Dr. Thomas McLaren, a board-certified neuropsychologist, reviewed Dr. Didriksen's neuropsychological evaluation of Plaintiff. Specifically, Dr. McLaren was charged with reviewing Dr. Didriksen's conclusion that Plaintiff was impaired due to the physical effects of toxic exposure. In his review, Dr. McLaren noted Plaintiff's high performance on a number of neuropsychological tests. Despite Plaintiff's high performance, Dr. Didriksen still diagnosed her with impairment due to the physical effect of toxic exposure. This diagnosis was based in large part on the significant weight Dr. Didriksen gave to Plaintiff self-reporting cognitive impairment in the work environment.²⁰ McLaren further observed that Plaintiff's claims of cognitive impairment were inconsistent with certain actions taken by Plaintiff, such as being able to drive 80 miles safely. Ultimately, Dr. McLaren disagreed with Dr. Didriksen's conclusion that Plaintiff would be cognitively impaired when exposed to environmental toxins. Rather, based on a review of her records, Dr. McLaren stated his opinion that Plaintiff suffered from psychiatric impairment stemming from anxiety and depression.²¹ Because Dr. McLaren did not agree with Dr. Didriksen's diagnosis, Plaintiff's file was referred to a second board-certified Unum neuropsychologist, Dr. William Black.

After review of Plaintiff's file, with a focus on Plaintiff's high performance on cognitive tests as...