McKinnon v. Unum Grp.

516 F.Supp.3d 49

Monica M. MCKINNON, M.D., Plaintiff,

v.UNUM GROUP, Provident Life and Accident Insurance Company, and AXA Equitable Life Insurance Company, Defendants.

CIVIL ACTION NO. 4:17-10262-TSH

United States District Court, D. Massachusetts.

Filed February 1, 2021

Mala M. Rafik, Sean K. Collins, Socorra A. DeCelle, Rosenfeld Rafik & Sullivan, P.C., Boston, MA, for Plaintiff

Joseph M. Hamilton, J. Christopher Collins, Mirick, O'Connell, DeMallie & Lougee LLP, Worcester, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (Docket No. 55)

HILLMAN, D.J.,

Dr. Monica McKinnon ("Plaintiff") filed this action against her insurers for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair insurance claim settlement practices, in violation of M.G.L. c. 93A §§ 2, 9 and M.G.L. c. 176D § 3(1)(a) and §§ 9 (a), (b), (d), and (f). Defendants AXA Equitable Life Insurance Company ("Equitable"), Provident Life and Accident Insurance Company ("Provident"), and insurance holding company Unum Group Inc. ("Unum") (collectively, "Defendants" and "Unum") filed this motion for partial summary judgment on Plaintiff's First Cause of Action for unfair insurance claim settlement practices claims. The Court held a hearing on September 11, 2020. For the reasons set forth below, the Defendants’ Motion for Partial Summary Judgment is granted in part and denied in part.

I. Factual Background

Plaintiff is an OB/GYN licensed to practice in the Commonwealth of Massachusetts. On November 20, 1995, Defendant The Equitable Life Insurance Society of the United States issued Plaintiff a disability insurance policy (the "Equitable Policy"). (Ex. 1, Docket No. 57-1). On October 23, 2002, Defendant Provident Life & Accident Insurance Company issued the Plaintiff a disability insurance policy (the "Provident Policy"). (Ex. 2, Docket No. 57-1). Both Policies contained a provision that each insurer would pay the Plaintiff a certain monthly benefit if she became totally disabled. Under the Equitable and Provident Policies, totally disabled meant that the claimant was unable to perform the material and substantial duties of her occupation and was either under a physician's care or provided written proof that a physician's care would not benefit her. (Ex. 1 at 15; Ex. 2 at 13; Docket No. 57-1).

Plaintiff stopped working on May 16, 2014 due to back pain. (Pltf's Statement of Material Facts ¶ 8, Docket No. 72) (hereinafter "Pltf's SOMF"). She submitted a Total Disability claim under the Equitable and Provident Policies on July 22, 2014, based on the following medical conditions: "herniation of lumbar disc L5-S1, arthritis of back (lumbar spine) lumbar radiculopathy." (¶ 9). Her claim included her personal statement that she could no longer flex at her spine, twist her waist, lean over, or crouch without the possibility of severe pain, which required her to straighten her back. (¶ 11). According to Plaintiff, there was a high risk that she could injure or cause the death of a patient or baby due to her inability to remain in the necessary physical position to deliver a baby, care for the mother, or perform exams or surgical procedures without complications. (¶ 11).

Plaintiff also included an Attending Physician Statement from Dr. Brasier, which certified Plaintiff's ongoing disability beginning May 16, 2014, contained a diagnosis of lumbar disc herniation with radiculopathy, and described the Plaintiff's physical restrictions as: "no bending no squatting no lifting no back flexion or extension work. no sitting for more than 15 min. no prolonged standing > 15 min." (McKinnon Claim File, Docket No. 62 at 288-90) (hereinafter "Claim File"). Dr. Brasier added that due to those physical restrictions, the Plaintiff "would not be able to do the work of an OB/GYN Physician as the position requires her to do all of her current physical restrictions noted above." (Claim File at 289). Plaintiff also provided contact information for doctors or physical therapists who had treated her, including Dr. Brasier, DC, Sports Medicine, Osteopathy; Dr. Chi, Neurosurgery ; Kathryn DeAnzens, Primary Care Physician; Dr. Elson; Dr. Meleger; Westwood Physical Therapy; and Spaulding Rehabilitation Physical Therapy. (Claim File at 218, 225). Finally, she listed the three pain medications Dr. Brasier had prescribed her since her injury. (Id. at 218).

Provident and Equitable assigned Unum Disability Benefits Specialist Krager to investigate the Plaintiff's claim for both policies. Unum's investigation began on July 22, 2014 when the Plaintiff transmitted her claim, and concluded on or about December 2, 2014, when Krager informed the Plaintiff by phone that her Total Disability claim would be denied.

The investigation involved many stages as Plaintiff submitted certain information to Unum and Unum requested and obtained medical records from her various doctors and physical therapists. Krager spoke with the Plaintiff to discuss her claim and Unum's claims process on August 14, 2014. During this conversation, the Plaintiff informed Krager that she had injured her back helping move boxes for her mother in March 2014, could no longer perform the duties of her occupation, and that a neurosurgeon, Dr. Chi, had informed her she was not a candidate for surgery. (Plft's SOMF ¶ 15). Then Krager assigned RN Morin to review the Plaintiff's medical records and claim submissions materials. (Id. at ¶ 17). RN Morin referred the Plaintiff's file to one of Unum's onsite physicians to determine if the Plaintiff's medical records supported the physical restrictions and limitations that she and Dr. Brasier had reported. (Claim File at 455). On August 26, Krager ordered a two-day surveillance operation to ascertain whether Plaintiff's public activity comported with her reported physical restrictions, which was carried out on September 4 and 5. (Pltf's SOMF ¶ 20).

Unum's onsite physician Dr. Beavers reviewed Plaintiff's claim file on September 3, which included records from Dr. Brasier, Dr. Chi, and Dr. Elson. (Claim File at 760-63). Dr. Beavers disagreed with Dr. Brasier's clinical findings that the Plaintiff was permanently disabled and arranged a phone call to discuss her prognosis on September 11. (Pltf's SOMF ¶ 24).

Following their phone call, Dr. Brasier and Dr. Beavers exchanged letters concerning the Plaintiff's case on September 12 and September 26, and Dr. Brasier faxed additional records to Dr. Beavers on September 29; their disagreement about Plaintiff's disability was not resolved. (¶ 24, 30). Dr. Beavers conducted a second review of Plaintiff's file on September 15. (¶ 27). On September 24, Unum conducted a vocational analysis and agreed with the Plaintiff about the general physical demands of her occupation providing direct patient care as an OB/GYN. (¶ 29).

Because of his outstanding difference of opinion with Dr. Brasier, Dr. Beavers ordered that an Independent Medical Examination ("IME") of the Plaintiff be conducted by a non-Unum physician. Neurosurgeon Dr. Saris conducted the IME on October 21, which included a physical examination of the Plaintiff and a paper review of her medical records and imaging studies. (¶ 33). Unum received Dr. Saris’ final report on November 12, after Dr. Saris had reviewed Plaintiff's MRIs. (¶ 42). Dr. Saris found the Plaintiff's medical records were "uniformly normal" and that "[w]hile ... the demands of an OB-GYN physician are significant, she could return to work immediately and without restriction of any kind at this time." (Ex. 17 at 8, Docket No. 74-12).

Dr. Beavers reviewed the claim file with the IME Report on November 19 and concluded that no further medical activity on the claim was necessary. (Claims File at 1314). On December 2, Krager informed the Plaintiff by phone that her claim would be denied under both policies; the Plaintiff received a formal letter of denial on December 9. (¶ 45-49). Unum granted the Plaintiff four months of benefits in consideration of the length of the investigation. (¶ 47).

In lieu of appealing the denial, the Plaintiff retained an attorney and sent Unum a 93A Demand Letter on August 3, 2015 alleging that Unum had treated her claim unfairly. (Ex. 24, Docket 74-19). The 93A Demand Letter contained new medical records and information that post-dated Unum's December 2014 decision to deny coverage, including:

• Plaintiff's May 15, 2015 IME performed by Dr. Panis for Berkshire Life Insurance, which found that Plaintiff's May 2014 spinal X-Ray was "essentially normal;" her May 2014 lumbar MRI showed "a herniated disc at L5-S1, contacting nerve roots on both sides;" her February 2015 thoracic spinal MRI revealed "minimal to mild central disk protrusions at C6-7 and T9-10 with no spinal stenosis,"¹ and her April 2015 cervical spine MRI revealed two small herniated disks without any neural compression. (Ex. 25 at 2, Docket 74-20). Dr. Panis conducted a physical examination of the Plaintiff and observed her May 2015 Functional Capacity Evaluation at Spaulding Rehabilitation Hospital. (Id. at 6). Unlike Dr. Saris, he concluded that the Plaintiff could only perform sedentary work, as she was "quite limited in her reaching above and below the shoulder level, squatting, bending, kneeling, pushing, pulling ... Her current lifting capacity on an occasional basis is quite limited ... to 10 pounds maximum." (Id. at 7). Because Plaintiff's OB/GYN work included physical exams and surgical procedures, this meant that she could not perform the duties of her occupation.

• Plaintiff's May 15, 2015 Functional Capacity Evaluation ("FCE") performed at Spaulding Rehabilitation Hospital by physical therapist Kohlhofer. The FCE measured Plaintiff's capacity to perform physical movements such as climbing stairs, sitting, squatting, and lifting weights from the floor or overhead. (Ex. 26 at 3-4, Docket No. 74-21). Kohlhofer had Plaintiff simulate common OB/GYN procedures, such as

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