Prelutsky v. Greater Ga. Life Ins. Co.

STEVEN D. PRELUTSKY, Plaintiff, v. GREATER GEORGIA LIFE INSURANCE COMPANY, Defendant.

1:15-cv-628-WSD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

August 8, 2016

OPINION AND ORDER

This matter is before the Court on Defendant Greater Georgia Life Insurance Company's ("Defendant") Motion for Judgment on the Administrative Record [12] ("Defendant's Motion"). Also before the Court is Plaintiff Steven D. Prelustky's ("Plaintiff") Motion for Summary Judgment [16] ("Plaintiff's Motion").

I. BACKGROUND

Plaintiff brings this action seeking review, under the Employee Retirement Income Security Act of 1974 ("ERISA"), of Defendant's denial of long term disability ("LTD") benefits. Plaintiff, a 55 year-old man, was a partner with the law firm Hall, Booth, Smith PC ("Hall"). (Admin. R. [15] ("R.") 006, 030, 038). On March 10, 2014, while on a ski vacation in Aspen, Colorado, Plaintiff fell down a flight of stairs in a home where he was staying. (See R. 007). The fall resulted in a traumatic brain injury requiring several brain surgeries and ultimately caused lasting brain damage, which prevented Plaintiff from returning to his employment at Hall. (R. 105-107, 111-12). Hall's long-term disability benefits plan (the "Plan") excludes disabilities caused by, resulting from, or relating to intoxication (the "Intoxication Exclusion"). The crux of the parties' disagreement is whether the record shows Plaintiff's fall was caused by, resulted from, or related to his purported intoxication, and thus whether the Plan's Intoxication Exclusion precludes LTD benefits.

A. The LTD Plan

Plaintiff was a participant in Hall's LTD Plan. (R. 038). The Plan was provided through a group insurance policy insured by Defendant. (R. 499-511).

The Plan's Intoxication Exclusion provides:

The Policy does not cover any disabilities or loss caused by, resulting from, or related to any of the following . . .

7. Any accident, Injury or Illness caused by, resulting from, or related to Your being under the voluntary influence of any drug, narcotic, intoxicant or chemical, unless administered by or taken according to the advice of a Physician.

(R. 620).

Defendant is the Plan Administrator. The Plan provides that Defendant "will make the final decision on claims for benefits under the Policy. Whenmaking a benefit determination, [Defendant] will have discretionary authority to interpret the terms and provisions of the Policy." (R. 623).

B. Plaintiff's Injury and Treatment

On March 10, 2014, Plaintiff fell down approximately twenty (20) stairs in a home where he was staying in Aspen, Colorado. There were no witnesses to his fall. Plaintiff was found after the fall by his son. The amount of time between Plaintiff's fall and when his son found him is not known. (R. 200, 397). When emergency medical services arrived, Plaintiff did not have a pulse, and CPR was performed. (R. 209, 397). Plaintiff arrived at Aspen Valley Hospital at 9:33 p.m., and was intubated and diagnosed with bilateral subdural hematomas associated with a midline shift and skull fracture. (R. 57, 397).

At 9:51 p.m., a blood alcohol test was performed. The test indicated Plaintiff's blood alcohol level was 281 mg/dL. (R. 065). The test records state: "These unconfirmed 'screening' results are to be used for medical purposes only. They are not intended for non-medical purposes (e.g. employment and/or legal testing)." (R. 065). On March 11, 2014, Plaintiff was transferred to St. Mary's Hospital in Grand Junction, Colorado, where a craniectomy was performed. (R. 195, 209).

On April 2, 2014, Plaintiff was transferred to the Shepherd Center, a long-term rehabilitation facility in Atlanta, Georgia. (R. 210). Nine months after his injury, Shepherd Center records indicate Plaintiff had improved, but he was still unable to return to work due to continuing high-level cognitive deficits and word-finding problems. (R. 106, 385). As of December 23, 2014, Plaintiff was continuing to be monitored as an outpatient at the Shepherd Center. (R. 106).

C. Administrative Process

On June 2, 2014, Plaintiff applied to Defendant for LTD benefits. (R. 006-007). At the time he applied, his symptoms included deficits in short term and long term memory, difficulty with processing information, moderate to severe aphasia and a lack of awareness of limitations. (R. 030). He suffered from problems with word retrieval and other social skills. (R. 030). His reasoning was affected and he lacked the ability to make decisions. (R. 030). He had to re-learn walking, and he was unable to drive. (R. 030, 032).

On June 25, 2014, Defendant issued Plaintiff a letter requesting a completed Attending Physician Statement, medical records from the date of the injury to the present, and a completed Activities of Daily Living Questionnaire. (R. 029).

On July 2, 2014, Defendant received Plaintiff's medical records from the Shepherd Center. A physical therapy discharge note by attending physician PayalM. Fadia, M.D. stated: "[a]lcohol abuse reported with a blood alcohol level of 0.25 at the time of his fall." (R. 048).

On July 29, 2014, Defendant denied LTD benefits, citing the Intoxication Exclusion and the blood test performed at Aspen Valley Hospital. The letter denying benefits stated:

The hospital records indicate that you sustained a traumatic brain injury after falling down a flight of stairs. Also noted in the records was that your blood alcohol level was 0.25 when tested at the hospital. For alcohol levels between 0.20 and 0.29, the following symptoms were documented by Alcohol's Effects from Virginia Tech and Federal Aviation Regulation (CFR) 91.17: Alcohol and Flying.

• Stupor

• Loss of understanding

• Impaired sensations

• Possibility of falling unconscious

• Severe motor impairment

• Loss of consciousness

• Memory blackout

(R. 117-18).

On July 31, 2014, Defendant received Plaintiff's medical records from Aspen Valley Hospital. (R. 055). The records included the blood alcohol test performed at 9:51 p.m. showing Plaintiff's blood alcohol level was 281 mg/dL. (R. 065). The records also contained a March 10, 2014, report by consulting surgeon William Rodman, M.D., which included a diagnosis of "Intoxication (blood alcohol 253). (R. 072).

On December 8, 2014, Plaintiff appealed the denial of LTD benefits, arguing Defendant failed to properly investigate his claim, and thus did not meet its burden of proof to show the Intoxication Exclusion bars LTD benefits. (R. 126-27). In support of his appeal, Plaintiff produced an affidavit from Cynthia Cameron, the owner of the Aspen home. Ms. Cameron stated that, prior to the fall, Plaintiff did not appear drunk. (R. 153-54). She stated it was her belief Plaintiff tripped over his ski pants, since he had removed his boots prior to the fall, but did not remove the long ski pants designed to cover his ski boots. (R. 153-54). Ms. Cameron did not personally witness Plaintiff's fall. (See R. 153-54). Plaintiff also argued the Plan was internally inconsistent, because it provided for mental health benefits due to alcoholism, while excluding disabilities caused by alcohol. (R. 127).

In support of his appeal, Plaintiff also included his medical records from the Shepherd Center, Aspen Valley Hospital, and St. Mary's Hospital. The Emergency Department notes from St. Mary's Hospital, dated March 11, 2014—the day after the fall—state under the heading "Final Impression":

1. Traumatic subdural hematoma

2. Skull fracture

3. Alcohol intoxication

4. Fall down stairs

(R. 203). The consultation notes by David S. James, M.D. from that same day include, under the heading "Impression," the statement "Acute alcoholintoxication," and, under the heading "Plan," "CIWA¹ protocol for alcohol intoxication." (R. 237). A document titled History and Physical Notes completed by Nurse Practitioner Tammy J. Chambers states: "Patient status is Inpatient 53 year old attorney skiing in Aspen on family vacation. Had drank heavily this evening; fall 20 carpeted steps with immediate LOC. His son and family friends are present in ER." (R. 207).

The medical records from the Shepherd Center include an April 3, 2014, dictation report by attending physician Dr. Bowman. The report stated under the heading "Admitting Diagnoses," "[a]lcohol abuse (binge drinking) with a blood alcohol of 0.250 at the time of his fall." (R. 144). A May 15, 2014, report by Dr. Bowman stated under "Relevant History," "Psychiatric history is notable for binge drinking; he was intoxicated at the time of his fall. His wife denied the patient used tobacco or illicit substances. He has never received formal substance abuse treatment." (R. 148).

In conducting its review of Plaintiff's appeal, Defendant forwarded his medical records to an independent physician, Richard E. Sall, M.D. Based on his review of the medical records, Dr. Sall opined:

The claimant had a reported blood alcohol concentration of .281% on a specimen draw in the emergency room at Aspen Hospital.

At 0.25% BAC, the individual needs assistance in walking, and experiences total mental confusion . . . .

Considering all the facts and circumstances in this case, it is my medical opinion that the claimant was intoxicated at the time of admission to the hospital.

(R. 389). Dr. Sall opined that, in his medical opinion, Plaintiff's blood alcohol level "contributed to his fall." (R. 390). He concluded that, "[c]onsidering all the facts and circumstances in this case, it is my medical opinion that the claimant was intoxicated at the time of admission to the hospital and the level of intoxication most probably contributed to the cause for falling down the steps." (R. 391).

On January 23, 2015, Defendant sent a letter to Plaintiff's attorney upholding its denial of Plaintiff's claim for LTD benefits. (R. 406-411). In upholding its denial of benefits, Defendant relied on its "review of the claim information, the independent medical review findings, and the plan language," to find that Plaintiff's ...