Opinion
Case No. 1:03cv856.
June 5, 2007
ORDER
Before the Court is Magistrate Judge Hogan's March 24, 2006 Report and Recommendation (hereinafter "Report") (Doc. 35 with corrected Notice at Doc. 36). In the Report, Magistrate Judge Hogan recommends granting Defendants motion for judgment on the merits (Doc. 19) and denying Plaintiff's motion for judgment on the merits (Doc. 22). Plaintiff filed Objections to the Magistrate's Report (Doc. 38) to which Defendants responded (Doc. 39). Plaintiff then filed a reply brief (Doc. 40). Also pending is Defendants' motion to strike the evidence attached to Plaintiff's motion for judgment on the merits and Plaintiff's opposition to Defendants' motion for judgment on the merits (Doc. 25). Plaintiff responded (Doc. 30) and Defendants filed a reply brief (Doc. 33).
I. Background Facts and Procedural History
This is an ERISA benefits recovery action for which plaintiff seeks an award of disability benefits from The Stanley Works Salaried Long Term Disability Plan ("the Plan"). Plaintiff was employed by Stanley Works and, as such, is a participant in the Plan. Jurisdiction is premised upon 29 U.S.C. § 1132(a)(1)(B). Relief is sought from Hartford Life Accident Insurance Company ("Hartford"), the Plan Administrator and the issuer of the insurance policy that funds the Plan. The following facts are gleaned from the Administrative Record (AR) unless otherwise indicated.
See Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
Plaintiff was employed by defendant The Stanley Works as a District Manager. (Doc. 1, Compl. ¶ 9-10). In December 1998, plaintiff suffered leg and knee injuries as the result of a motorcycle accident. (AR 181). The injuries to his leg included a crushed tibia, and required a series of surgeries, including a total knee replacement. (AR 185-88). The final surgical procedure scheduled for November 30, 2000, was aborted due to infection and was eventually performed on January 11, 2001. (AR 185-87). It is undisputed that plaintiff's last day of work for defendant Stanley Works was November 29, 2000. (Compl., ¶ 9, AR 181). During the period between his motorcycle accident and the date last worked, plaintiff admits that he was permitted to work almost exclusively from home, for only a few hours per day. (AR 181). Plaintiff claims that increased swelling and repeated infections rendered him unable to work. (Id.).
The Plan is funded through a policy of insurance issued by defendant Hartford Life and Accident Insurance Company (Hartford). Plaintiff had previously received short term disability payments. Plaintiff submitted a claim for long term disability (LTD) benefits under the Plan which appears to be stamped received on June 4, 2001. (AR 179-189). As part of Plaintiff's application for LTD benefits, Plaintiff submitted a form titled "Attending Physician's Statement of Disability" which was completed by Dr. Edward Lim, Plaintiff's orthopedic surgeon, on May 23, 2001 (AR185). The Physician's Statement provides that the primary diagnosis is "Rt. Tibial shaft fracture" with a secondary diagnosis as "Post traumatic arthritis Rt. Knee." (AR 185). Regarding Plaintiff's impairment, Dr. Lim indicated that Plaintiff's ability to walk and stand was limited with a cane, that Plaintiff could sit and reach/work overhead, but could not lift/carry, push, pull or drive. (AR 186). Dr. Lim also indicated that Plaintiff had no limitation on keyboard use/repetitive hand motion. Additionally, in response to "how long do you feel limitations will last?", Dr. Lim stated "permanent restrictions."
Internal computer generated notes from Hartford indicate that on April 26, 2001 Dr. Lim responded to a 5 question form provided by Hartford via facsimile on April 4, 2001. (AR37). This form indicated that Dr. Lim should evaluate Plaintiff's return to work potential keeping in mind that "Mr. Harbison is employed as a district manager for Mac Tools which consists of getting in and out of his truck, and lifting/pushing/pulling 40-50#." Dr. Lim stated that Plaintiff's current treatment was follow up visits. In response to "Specifically, what is currently preventing Mr. Harbison from performing the functions of his job described above?", Dr. Lim stated "assisted/partial weighbearing (sic) right lower extremity". Dr. Lim stated that he did not feel Mr. Harbison will ever be able to return to his regular occupation as described above. However, Dr. Lim did not explain in detail why he felt this way. Dr. Lim also stated that Plaintiff's current restrictions were "no lifting". In response to Plaintiff's return to work prognosis to a different occupation, Dr. Lim stated "very light duty, sedentary type work only." (AR37). The actual form submitted by Dr. Lim is not a part of the administrative record.
Also on May 23, 2001, Dr. Lim responded to a same 5 question form as above. (AR130). This form also indicated that Dr. Lim should evaluate Plaintiff's return to work potential keeping in mind that "Mr. Harbison is employed as a district manager for Mac Tools which consists of getting in and out of his truck, and lifting/pushing/pulling 40-50#." Dr. Lim stated that Plaintiff's current treatment was follow up visits and xrays. In response to "Specifically, what is currently preventing Mr. Harbison from performing the functions of his job described above?", Dr. Lim stated "rt. total knee — restricted rom [range of motion], unable to do prolonged standing, walking. No lifting." Dr. Lim stated that he did not feel Mr. Harbison will ever be able to return to his regular occupation as described above. Again, Dr. Lim did not explain in detail why he felt this way. Dr. Lim also stated that Plaintiff's current restrictions were permanent. Dr. Lim did not comment on Plaintiff's return to work prognosis to a different occupation.
On June 1, 2001 Hartford sent Dr. Lim a facsimile asking when Plaintiff will be released to sedentary work and requesting Dr. Lim's office notes from Plaintiff's May 23, 2001 office visit. (AR129). It appears that someone, presumably Dr. Lim or his staff, filled out the facsimile inserting May 23, 2001 as the date Plaintiff will be released to sedentary work; however, there is no indication of who actually wrote "5-23-001" on the facsimile. (AR129). It appears that the office notes from May 23rd were not forwarded to Hartford as they are not included in the administrative record.
On July 3, 2001 Hartford sent a letter to Dr. Lim requesting a copy of his office notes from December 7, 1998 through the date of the letter as well as requesting Dr. Lim to complete a Physical Capacities Evaluation form. (AR 14).There is no indication in the administrative record that Dr. Lim complied with this request other than an internal computer generated note from Hartford that includes the office note from March 28, 2001. (AR 34).
Other than a list of prescriptions filled by CVS Pharmacy there are no other medical records or reports that were provided to Hartford prior to its decision to deny Plaintiff's claim, both initially and on appeal.
Plaintiff was notified of the denial by letter dated September 18, 2001. (AR 6-11). The letter set forth the portions of the Plan Defendant deemed applicable to it's denial and the reasons for the denial. (Id.). Defendant determined that plaintiff was able to return to sedentary work as of May 23, 2001, several days prior to the May 31, 2001 effective date following the Plan's 180 day elimination period. The denial letter also set forth specific evidence in the file upon which defendant based its determination. Finally, the letter set forth plaintiff's right to appeal the decision, including his right to seek a full and fair administrative review, and the right to submit additional evidence in support of his claim. (AR 10-11).
On October 10, 2001, Plaintiff, through his then legal representative, Timothy J. Deardorff, notified Defendant Hartford, in writing, that he sought to appeal the September 18, 2001 denial decision. (AR 87). The letter states in part:
You may take this letter also as notice, pursuant to your letter of September 18, 2001, that we do intend to appeal. Upon forwarding or faxing to me a copy of the policy, I will then outline our position with regard to the appeal.
(Id.). On November 15, 2001, Attorney Deardorff sent Hartford a second letter concerning Plaintiff's appeal. The November Deardorff letter states in part:
I previously wrote to you in regard to the above matter on October 10, 2001 giving you notice of our appeal of your denial of the above claim. Pursuant to your letter of September 18, 2001, at this point in time, we will be providing objective medical documentation as to the sedentary occupation job duties. . . .
At this point in time, the medical opinion has not been obtained due to scheduling with the orthopedic physician, however, upon receipt of the same we will forward for your review.
(AR 85). On December 11, 2001, Hartford sent a letter to Attorney Deardorff confirming that Defendant had received Plaintiff's November 15, 2001 letter and notice of appeal. (AR 82). A second letter of that same date indicates that Defendant transmitted copies of the administrative file and LTD policy as requested by Plaintiff's counsel. (AR 73). On January 9, 2002, Hartford sent Plaintiff's counsel a letter stating that it would be unable to process his appeal within sixty days, but that pursuant to ERISA the claim would be processed within 120 days. (AR 81). On January 16, 2002, Hartford sent Attorney Deardorff a third letter which noted that Defendant had not received the additional medical opinion as stated in counsel's November 15, 2001 correspondence. (AR 80). The letter cautions counsel that, [i]f this additional information is not received within the next three weeks, we will make a determination based on the information already in file (sic)." (Id.). Nothing in the administrative record suggests that Attorney Deardorff forwarded any additional information to Hartford in support of Plaintiff's claim.
On March 6, 2002, Hartford issued its final decision with respect to Plaintiff's claim for LTD benefits. (AR 74-76). The decision notes that Plaintiff did not present any additional information to Hartford for review, and therefore the review was based upon the information previously submitted and already existing in the claim file. (AR 74). The decision upheld Hartford's prior conclusion that Plaintiff failed to satisfy the Plan's definition of "Disability." Hartford based its decision on a finding that Plaintiff was able to return to sedentary work prior to the conclusion of the elimination period, and therefore was capable of performing his "own occupation," both as he had performed it prior to his last day worked, and as the occupation of Sales Manager is performed in the general economy. (AR 76).
On August 7, 2002, Attorney Robert Perez, Plaintiff's current counsel, sent Hartford a letter in which counsel informed Hartford of his representation of Plaintiff and stated that the letter was "a formal notice of appeal." (AR 71-72). The letter requests documents from Hartford and states that Plaintiff will need additional time "to submit information to sustain his claim." (AR 72). Defendant responded to the August 7, 2002, letter from Attorney Perez by letter dated September 6, 2002. (AR 66). Defendant's response states in part:
This will acknowledge receipt of your letter dated August 7, 2002 concerning Mr. Harbison's claim for Long Term Disability (LTD) benefits.
As you know, we previously considered this appeal of our decision to deny Mr. Harbison's claim for LTD benefits. Please refer to our enclosed letter dated March 6, 2002 to Mr. Harbison's attorney, Timothy Deardorff, in which we explained our decision on the appeal and noted that our decision was final.
In view of the fact that we have fully addressed this appeal we will not provide a formal response to your recent letter.
(Id.). Plaintiff and Hartford continued to exchange correspondence concerning the status of Plaintiff's "appeal" initiated by Attorney Perez. (See AR 56-65). Plaintiff's counsel sent Hartford a letter dated February 6, 2003, which included a December 10, 2001 progress note from Dr. Robert Heidt, Jr., an examining orthopedist. (AR 57-59). Counsel for Plaintiff also stated that he would be forwarding additional information in support of plaintiff's LTD claim. (AR 57). Defendant responded to this letter on February 10, 2003. (AR 56). The February 10, 2003 letter states in part:
This will acknowledge receipt of your letter dated February 3, 2003 with an attachment concerning your client's claim for Long Term Disability (LTD) benefits. As you are aware, we have previous (sic) considered Mr. Harbison's appeal. In particular, we notified Mr. Harbison's attorney of our decision indicating that said decision is (sic) final on March 6, 2002. This was also communicated to your attention on September 6, 2002. Since, we have also provided a copy of relevant records pertaining to this Mr. Harbison's (sic) claim, which is his right.
Again, please refer to our letters dated March 6, 2002 and September 6, 2002 in which we explained our decision on this appeal and noted that our decision was final.
In view of the fact that we have fully addressed this appeal we will not provide a formal response to your February 6, 2003 letter.
(AR 56).
On June 4, 2003, counsel for Plaintiff sent Hartford a letter and 19 pages of attached material, including additional medical evidence, in support of his claim for LTD benefits. Again on September 9, 2003, Plaintiff's counsel sent Hartford a letter and additional materials, including the medical records sent on June 4, 2003, and a decision from the Social Security Administration finding Plaintiff entitled to Disability Insurance Benefits under the Social Security Act. These papers are appended to Plaintiff's motion for judgment on the merits and constitute the documents which Plaintiff claims Hartford arbitrarily and capriciously refused to include as part of the administrative record (Doc. 22). These documents are also the subject of Defendants' motion to strike (Doc. 25).
II. Objections
When objections are received to a magistrate judge's Report and Recommendation on a dispositive matter, the assigned district judge "shall make a de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Fed.R.Civ.P. 72(b). After review, the district judge "may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id; see also 28 U.S.C. 636(b)(1)(B). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
Plaintiff objects to the Report on several basis. First, Plaintiff alleges that Hartford's denial letter failed to comply with 29 C.F.R. § 2560.503-1. Plaintiff asserts that Magistrate Judge Hogan ignored well-settled law that "failure to substantially comply with the regulations [in] the denial [letter] tolls the appeals process." (Doc. 38, p3). Second, Plaintiff alleges that the time for the appeal does not start until there is a "request for the review" and that Plaintiff made no such request. Plaintiff asserts that Magistrate Judge Hogan ignored this policy language and that his "determination that a `final decision' was made on the Plaintiff's claim is a fiction invented by the Magistrate that is not supported by either the policy language, the statutory scheme of ERISA, the related regulations or by the Vanderklock case interpreting these." (Doc. 38, p4). Third, Plaintiff alleges that the Magistrate Judge erred by looking at Plaintiff's modified duties after his injury and not his "occupation" as required under the policy and the law. Plaintiff alleges that his duties prior to his accident, that of a medium physical demand occupation, should have been considered. (Doc. 38, pp 8-9). Fourth, Plaintiff alleges that the Magistrate Judge "erred by holding that the Hartford was not arbitrary and capricious when in fact, there was no reliable medical evidence upon which its determination that Harbison could work as sedentary work was based." (Doc. 38, p10). Fifth, Plaintiff alleges that the Magistrate Judge erred by recognizing that there may be a conflict of interest in Hartford's position as Plan Administrator and insurer but refusing to require a closer scrutiny since there was no showing of bad faith or self-interest. Sixth, Plaintiff alleges that the Magistrate Judge incorrectly applied the arbitrary and capricious standard of review. Finally, the Magistrate Judge erred by failing to consider the Social Security Decision. This Court will limit its review of the Report to the objections raised by Plaintiff.
The Defendants argue that the Magistrate Judge's Report is soundly decided and correctly based on the relevant law that is applicable to this case.
III. Legal Analysis
A. Standard of Review
The Court reviews de novo a denial of benefits under an ERISA plan "unless the benefit plan gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan." University Hosps. v. Emerson Elec. Co., 202 F.3d 839, 845 (6th Cir. 2000). If an administrator has such discretionary authority, the Court reviews the denial of benefits under the arbitrary and capricious standard. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989); University Hosps., 202 F.3d at 845.
The arbitrary and capricious standard applies in the present case because the long term disability insurance policy at issue gives Hartford "discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy." (POL. 29). "When a plan administrator has discretionary authority to determine benefits, [the Court] will review a decision to deny benefits under `the highly deferential arbitrary and capricious standard of review.'" Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir. 2001) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996)).
Nonetheless, as noted by the Sixth Circuit, merely because the review is deferential does not mean that it is inconsequential. Moon v. UNUM Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005). The court explained as follows:
While a benefits plan may vest discretion in the plan administrator, the federal courts do not sit in review of the administrator's decisions only for the purpose of rubber-stamping those decisions. As we observed recently, "[t]he arbitrary-and-capricious . . . standard does not require us merely to rubber stamp the administrator's decision." Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)). Indeed, `[d]eferential review is not no review, and deference need not be abject." McDonald, 347 F.3d at 172. Our task at all events is to "review the quantity and quality of the medical evidence and the opinions on both sides of the issues." Id.Id. Only if the administrative record supports a "reasoned explanation" for the denial of benefits, the decision is not arbitrary or capricious. See Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000). In sum, the decision of the administrator is upheld if it is the result of a deliberate principled reasoning process, if it is supported by substantial evidence and if it is based upon a reasonable interpretation of the plan. Glenn v. MetLife, et al., 461 F.3d 660, 666 (6th Cir. Sept. 1, 2006) (quoting Baker v. United Mine Workers of America Health and Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)).
On the other hand, indications of arbitrary and capricious decisions include a lack of substantial evidence, a mistake of law, bad faith, and a conflict of interest by the decision-maker. Caldwell v. Life Insurance Co. of North America, 287 F.3d 1276, 1282 (10th Cir. 2002). Also, a decision based upon a selective review of the record or an incomplete record is arbitrary and capricious. Moon v. Unum Provident Corp., 405 F.3d 373, 381 (6th Cir. 2005).
B. Conflict of Interest
Hartford is authorized both to decide whether an employee is eligible for benefits and to pay those benefits. This dual function creates an apparent conflict of interest. Glenn v. MetLife, et al., 461 F.3d at 666 (citing Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 527 (6th Cir. 2003), overruled on other grounds by Black Decker Disability Plan v. Nord, 538 U.S. 822 (2003). However, the standard of review is not altered to a less deferential standard when the benefits administrator is operating under a conflict of interest. Calvert v. Firstar Finance, Inc., 409 F.3d 286, 293 (6th Cir. 2005). "Instead, as noted, the standard remains unchanged and the conflict of interest is to be considered in applying that standard." Id. (emphasis in original); accord Smith v. Cont'l Cas. Co., 450 F.3d 253, 260 (6th Cir. 2006). However, as recognized in Peruzzi v. Summa Medical Plan, Plaintiff needs to provide "significant evidence" that the alleged conflict of interest influenced Hartford's decision. 137 F.3d 431, 433 (6th Cir. 1998) ("Because our review of the record reveals no significant evidence that SummaCare based its determination on the costs associated with Mrs. Peruzzi's treatment or otherwise acted in bad faith, we cannot conclude that SummaCare was motivated by self-interest in this instance."). See also Osborne v. Hartford Life Accident Ins. Co., 465 F.3d 296, 300 (6th Cir. 2006). The only basis of Plaintiff's conflict of interest claim, other than the fact that his claim was denied, is Hartford's role itself as both plan administrator and insurer. Without more, this factor will be given little weight.
C. Social Security
Courts have recognized that a disability determination by the Social Security Administration is relevant in an action to determine the arbitrariness of a decision to terminate benefits under an ERISA plan. Glenn v. MetLife, et al., 461 F.3d at 666; see also Calvert v. Firstar Finance, Inc., 409 F.3d 286m 295 (6th Cir. 2005) (An ERISA plan administrator's failure to address the Social Security Administration's finding that the claimant was "totally disabled" is yet another factor that can render the denial of further long-term disability benefits arbitrary and capricious). However, the award of social security disability benefits itself is not evidence that Hartford's decision was arbitrary or capricious. See Mitchell v. Hartford, 2006 U.S. Dist. LEXIS 37350 (D. Ky. 2006) (The award of social security disability benefits is not independently relevant to Hartford's decision about ERISA benefits without some reference to the specific evidence used to support the award.) Since Hartford never received the full social security opinion or the related evidence which Plaintiff submitted prior to its final determination, Hartford's denial of benefits despite the social security determination is not evidence that its decision was arbitrary or capricious.
D. Consideration of Additional Evidence
A court's review of a plan administrator's decision in an ERISA case must be based solely on the administrative record. See Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996); see also Wilkins v. Baptist Healthcare Sys., 150 F.3d 609, 619 (6th Cir. 1998). Arguments and factual assertions made by the parties which are not supported in the administrative record should not be considered. Wilkins, 150 F.3d at 619.
Plaintiff argues that the Court may look beyond the administrative record since Hartford failed to meet the notice requirements of 29 CFR § 2560.503-1, thereby tolling the appeal. Vanderklock v. Provident Life and Accident Ins. Co., 956 F.2d 619 (6th Cir. 1992). However, based upon this Court's holding below, Hartford met the notice requirements of 29 CFR § 2560.503-1.
In addition, Plaintiff cites to Williams v. International Paper Company, 227 F.3d 706, 710-715 (6th Cir. 2000) arguing that the Williams Court held that an "administrator could not refuse to consider new reports from doctors which were submitted to the plan administrator prior to trial and that ignoring said medical evidence was arbitrary and capricious". (Doc. 38, p6). However, Plaintiff misinterprets the holding in Williams. The Williams Court did not hold that plan administrators must consider all evidence presented on an ongoing basis from the time of the denial all the way through trial. This is contrary to ERISA. In Williams, the plaintiff argued that the Plan Administrator acted arbitrarily and capriciously by failing to consider additional medical evidence that he submitted during the second appeal of his denial of benefits. Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000) (emphasis added). This second appeal came about as the result of a letter from United States Senator Trent Lott requesting that International Paper reevaluate Williams' disability claim. As a result of this letter, a second appeal was initiated. Hartford's denial of Plaintiff's appeal was their final determination as to Plaintiff's disability benefits. Neither ERISA nor the Plan requires Hartford to continually review Plaintiff's claim for an unlimited amount of time.
Plaintiff next argues that Ohio has adopted the notice-prejudice rule that requires an insurance company to prove that it was somehow prejudiced by the filing of the late information and notification. Plaintiff, citing West American Ins. Co. v. Hardin, 59 Ohio App.3d 71 (1989), states that "Unless the insurance company has actual prejudice, it may not decline to review a claim and perform its related responsibilities." However, the notice-prejudice rule is not applicable in this instance. "The notice-prejudice rule governs whether or not an insurance company must cover claims submitted late, which dictates to the insurance company the conditions under which it must pay for the risk that it has assumed." Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 339 (U.S. 2003). Here Plaintiff timely applied for benefits and was given an adequate opportunity to produce any additional medical evidence prior to Hartford's final determination.
Thus, Hartford's decision to not consider the medical evidence submitted to it by letter of Attorney Perez on August 7, 2003 was not arbitrary and capricious.
Based on the foregoing, Defendant's motion to strike is hereby deemed MOOT.
At the time Plaintiff's claim was denied 29 CFR § 2560.503-1(g) provided that the content of a notice of denial shall include (1) the specific reason or reasons for the denial, (2) the specific references to pertinent plan provisions on which the denial is based, (3) a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary, and (4) the appropriate information as to the steps to be taken to submit the denial of the claim for review. Plaintiff, citing Vanderklock v. Provident Life and Accident Insurance Co., 956 F.2d 610 (6th Cir. 1992), argues that if the denial letter fails to meet the requirements set forth in the regulations that the time period to appeal is then tolled. However, the Sixth Circuit has adopted the "substantial compliance" standard which requires the Court to consider "all the communications between the administrator and the plan participant" not just the denial letter. Gillman v. Hartford Life Accident Ins. Co. (E.D.Ky. Oct 5, 2006), 2006 WL 2873457. See also McCartha v. National City Corp. (6th Cir. 2005), 419 F.3d 437, 444.
The Denial Letter of September 18, 2001 (AR 6-11) (Letter) satisfies the notice requirement. It sets forth the specific reasons for the denial stating ". . . we find that the weight of the evidence in your claim file supports that you are capable of performing the essential duties of sedentary work as of May 23, 2001, which is prior to the benefit effective date." (AR 10). It goes on to state that "Dr. Lim indicates that as of May 23, 2001 you have the physical functional capacity to perform the essential duties of sedentary work." As to the specific references to pertinent plan provisions on which the denial is based, the Letter (and all subsequent communications) clearly set forth the sections of the plan in which Hartford relied on to the extent that such sections are in the plan. The Letter provides the definitions of relevant terms as set forth in the Plan (See Pol. 19-20, 30, 32) as well as when benefits become payable and when benefits terminate.
The Regulations also require a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary. The Letter satisfies this requirement by setting forth that "objective medical documentation that states that you are unable to perform the job duties of a sedentary occupation, may assist us in further evaluating your claim for benefits." It has been held that "requiring a claimant to provide objection medical evidence of disability is not irrational or unreasonable." Cooper v. Life Ins. Co. Of North Am., et al., Case No. 06-5735, 2007 U.S. App. LEXIS 11408 (6th Cir. May 5, 2007). Finally, the Regulations require that the appropriate steps to be taken to submit the denial of the claim for review be set forth in the letter. This was done in that the Letter provides that "[i]f you do not agree with the reason why your claim was denied, in whole or in part, and you wish to appeal our decision, you must write to us withing sixty (60) days of the date of this letter. Your letter, which must be signed and dated by you or your legal representative, should clearly outline your position and any issues or comments you have in connection with your claim and our decision to deny your request for benefits under the Policy." (AR 11). In addition, to the Letter, Hartford sent addition correspondence informing Plaintiff that it would need 120 days to decide his claim (AR 81) and that if the supplemental evidence was not submitted within the specified time frame that the decision would be made based upon the current state of the record (AR 80). Thus, the Court finds that Hartford has satisfied the notice provision of 29 CFR § 2560.503-1.
F. Request for Review
Plaintiff argues that he did not make a request for a review until his new counsel, Mr. Perez, did so on August 7, 2002. Plaintiff argues that his prior counsel's letters providing notice of an appeal does not qualify as a request for a review since additional time was requested to provide supplemental information. The Court does not find merit in this argument.
By letter dated October 10, 2001, Attorney Deardorff, notified Hartford that he sought to appeal the September 18, 2001 denial decision stating "You may take this letter also as notice, . . . ., that we do intend to appeal." (AR 87). Again, on November 15, 2001, Attorney Deardorff sent another letter to Hartford stating ". . . at this point in time, we will be providing objective medical documentation as to the sedentary occupation job duties. . . . the medical opinion has not been obtained due to scheduling with the orthopedic physician, however, upon receipt of the same we will forward for your review." (AR 85).
On January 9, 2002, Hartford sent Attorney Deardorff a letter stating that it would be unable to process his appeal within sixty days, but that pursuant to ERISA the claim would be processed within 120 days. (AR 81). Then on January 16, 2002, Hartford sent Attorney Deardorff another letter which noted that Defendant had not received the additional medical opinion as stated in counsel's November 15, 2001 correspondence. (AR 80). The letter cautions counsel that, "[i]f this additional information is not received within the next three weeks, we will make a determination based on the information already in file (sic)." (Id.). Nothing in the administrative record suggests that Attorney Deardorff forwarded any additional information to Hartford in support of Plaintiff's claim. Furthermore, nothing in the administrative record suggests that Attorney Deardorff requested additional time to submit the medical evidence. Deardorff only states that this information will be forthcoming and then never requests additional time despite notification that Hartford would make a decision withing 120 days and a subsequent request from Hartford for the supplemental evidence.
Plaintiff also argues that there is no proof that these letters from Hartford were received by Attorney Deardorff since the letters were not sent by certified mail. However, Plaintiff does not argue that Deardorff did not actually receive the letters.
Plaintiff cites to the following section of 29 C.F.R. § 2560.503-1 to support his argument that he was not provided a full and fair review:
The claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit determination unless the claims procedures — (ii) Provide claimants the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits; . . . [and] (iv) Provide for a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
Plaintiff's interpretation of this section is misguided. Plaintiff was provided the opportunity to submit additional information. Unfortunately, for reasons unknown to this Court, he failed to do so. ERISA does not provide for a claim to remain open indefinitely. Specifically, 29 U.S.C. § 1133 provides that "In accordance with regulations of the Secretary, every employee benefit plan shall — . . . (2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." (Emphasis added). Plaintiff was given proper notice of the deadline to submit additional information. Furthermore, this deadline conforms with Hartford's obligations under ERISA and the Regulations. See 29 C.F.R. § 2560.503(h)(4)(i).
G. Sedentary Work
Plaintiff argues that there is no reliable medical evidence to support Hartford's finding that Plaintiff is capable of sedentary type work. However, the Court finds that Hartford's decision as to sedentary work was not arbitrary and capricious. Hartford's decision should be upheld if it is supported by substantial evidence and is well reasoned. See Glenn v. MetLife, et al., 461 F.3d 660, 666 (6th Cir. Sept. 1, 2006). Here, the medical evidence before Hartford was limited but supports a "reasoned explanation" as to why Plaintiff was capable of sedentary work.
Presented to Hartford were statements from Plaintiff's attending physician, Dr. Lim, that indicated Plaintiff's ability to walk and stand was "limited with (sic) cane", that Plaintiff could sit and reach/work overhead but could not lift/carry, push, pull or drive, and that Plaintiff had no limitation on keyboard use/repetitive hand motion. (AR 186). In addition, internal computer generated notes from Hartford indicate that on April 26, 2001 Dr. Lim indicated that Plaintiff's current restrictions were "no lifting" and that Plaintiff's return to work prognosis to a different occupation was "very light duty, sedentary type work only." (AR37). Also, on May 23, 2001, Dr. Lim indicated that Plaintiff's was unable to do prolonged standing, walking and no lifting. Finally, on June 1, 2001, Hartford sent Dr. Lim a facsimile asking when Plaintiff will be released to sedentary work. (AR129). It appears that someone, presumably Dr. Lim or his staff, filled out the facsimile inserting May 23, 2001 as the date Plaintiff will be released to sedentary work; however, there is no indication of who actually wrote "5-23-001" on the facsimile. Defendant assets, however, that a telephone conversation took place between Hartford and Dr. Lim where in Dr. Lim stated that Plaintiff was released to sedentary work as of May 23, 2001. There is no indication in the record that this telephone call took place other than that it is asserted in the Denial Letter (AR 08). Although it is possible that Dr. Lim called Hartford in response to its facsimile and that a representative of Hartford wrote "5-23-001" on the document after being told this information by Dr. Lim, there is nothing to support in the record to support that this occurred. The only evidence in the record, other than the facsimile (AR 129), is an email between two Hartford employees that includes what appears to be a copy of a computer screen that states, "response from Dr. Lim (still no office notes) John can rtw SEDENTARY work on 5/23/01." (AR 126). This email does not specify if the response from Dr. Lim was by way of facsimile or telephone.
The Court is mindful of the fact that the actual form submitted by Dr. Lim is not a part of the Administrative record; however, the Court has no reason to doubt the veracity of the internal computer generated notes.
Although the origin is unclear as to the June 1st facsimile and/or phone conversation, Hartford's decision was reasonable based upon a complete review of the medical evidence before it. Plaintiff, not Defendant, bares the burden of providing sufficient evidence to prove his eligibility for long-term disability under the terms of the Policy at issue. See Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991) (the plaintiff in an ERISA benefits case bears the burden at all times in proving continuous disability as defined by the plan). Here, Plaintiff submitted limited information but that limited information taken as a whole indicates that Plaintiff is capable of performing sedentary work.
H. Your Occupation
The final issue before this Court is whether Hartford's decision that classified Plaintiff's occupation as sedentary is arbitrary and capricious. The Plan provides that one is disabled if, during the Elimination Period and for the next 24 months, he is prevent by injury "[f]rom performing one or more of the Essential Duties of Your Occupation . . . ". (Pol. 30). "Your Occupation" is defined as "your occupation as it is recognized in the general workplace. Your occupation does not mean the specific job you are performing for a specific employer or at a specific location." (Pol. 32). "Essential Duty" means "a duty that: (1) is substantial, not incidental; (2) is fundamental or inherent to the occupation; and (3) can not be reasonably omitted or changed." (Pol. 30).
It is undisputed that Plaintiff's pre-injury occupation was that of medium work. See AR 8, 130, 151-152, 90. The medical evidence in the record is also clear that Plaintiff is unable to perform medium work. See AR 130, 34, 37. However, after Plaintiff's injury Stanley Tool Works allowed Plaintiff to work a modified job. Plaintiff worked from home for only a couple hours each day. AR 90. After over eighteen months of this modified job, Stanley Tool Works was no longer able to accommodate this modified job and insisted on Plaintiff's return to "full-time field work." AR90. Hartford determined that, although they "have to consider the `occupation' as it is performed without modifications (as it is performed in the general workplace), . . . if the claimant was in the modified job longer than six months, we will consider the modified position to be his/her `Own Occupation' when we adjudicate the claim." (AR08). In doing so, Hartford relied on their internal "Best Practice guidelines" which states that if a participant is in a modified occupation for more than six months than this modified occupation becomes his "own occupation." (See AR 88). Hartford determined that Plaintiff's "own occupation" was sedentary since he had been "working from home, making telephone calls to distributors, and no outside work was involved." (AR09).
Hartford also relied on the US Department of Labor's Dictionary of Occupational Titles (DOT) for its definition of sedentary work as well as that of a Sales Manager and Branch Manager which Hartford determined were both sedentary positions. The Sixth Circuit has found that an administrator's use of the DOT definitions to determine a claimant's "own occupation" was not arbitrary and capricious, "but on the contrary was `reasonable.' The word `occupation' is sufficiently general and flexible to justify determining a particular employee's `occupation' in light of the position descriptions in the [DOT] rather than examining in detail the specific duties the employee performed." Osborne v. Hartford Life and Acc. Ins. Co. 465 F.3d 296, 299 (6th Cir. 2006). However, unlike in Osborne, the Plan at issue in this case contained a definition of "Your Occupation" and Hartford agreed that Plaintiff's preinjury occupation was that of medium work. See AR 8, 130, 151-152, 90. Furthermore, Hartford did not look to a definition of Tool Sales District Manager. It appears to the Court that Hartford looked to the DOT to give support to its determination that Plaintiff's modified occupation was Plaintiff's "Occupation." See AR 88-90, 102. This expansion of the definition of "Your Occupation" to include the reclassification of Plaintiff's occupation from medium work to sedentary is not set forth in the policy. Hartford does not point to any policy language that permits this reclassification and the Court can find none. See Bona v. Metlife Disability Insurance Co., et al. 2004 U.S. Dist. LEXIS 754, *21 (D. Cal. 2004). Therefore, Hartford's denial of benefits to Plaintiff based on their determination that his occupation was sedentary in nature was arbitrary and capricious.
This page is not numbered but is between 101 and 103 so it is presumed to be 102. It is also docketed ast Doc. 19-13, page 2.
IV. Conclusion
Thus, Plaintiff is entitled to LTD benefits from the date of his eligibility, May 31, 2001, through the next 24 months, plus interest. The Court concludes that the appropriate remedy at this juncture is to remand the claim to Hartford for payment of the benefits and a new determination as to whether or not Plaintiff is entitled to benefits after May 31, 2003. Based on the foregoing,
(1) The Court declines to adopt the Report and Recommendation;
(2) Plaintiff's Motion for Judgment on the Merits is GRANTED;
(3) Defendant's Motion for Judgment on the Merits is DENIED;
(4) Defendants' Motion to Strike is DENIED as MOOT;
(5) Hartford's determination is REVERSED and the cause is REMANDED to Hartford for a further proceedings consistent with this opinion;
(6) The Clerk of the Court is ORDERED TO ADMINISTRATIVELY CLOSE this cause pending a new determination by Hartford with the option for either party to re-open if necessary.