Summary
refusing to allow the plaintiff to "self-diagnose" his own CFS
Summary of this case from Karvelis v. Reliance Standard Life Insurance Co.Opinion
Civil No. 02-3762 (DWF/SRN)
January 20, 2004
Mark Murray Nolan, Esq., and Jodell Marie Galman, Esq., Nolan MacGregor Thompson Leighton, St. Paul, MN, of Counsel for Plaintiff
John Harper, III, Esq., and Terrance J. Wagener, Esq., Krass Monroe, Minneapolis, MN, of Counsel for Defendants
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter is before the undersigned United States District Judge pursuant to the parties' cross-motions for summary judgment. For the reasons set forth below, Defendant UNUM Life Insurance Company of America's motion is granted; Plaintiff Ralph Mallwitz's motion is denied.
Background
Plaintiff Ralph Mallwitz brought this action against Defendant UNUM Life Insurance Company of America ("UNUM") to challenge UNUM's denial of Mallwitz's request for long-term disability ("LTD") benefits. Mallwitz was employed as an engineering manager at Barry Blower beginning in 1995. On December 7, 1999, he began a medical leave because of fatigue and cognitive problems that he was experiencing. At the time of his disability, Mallwitz was a participant in the Penn Ventilator Co., Inc. Employee Benefit Plan, a part of which included the Long-Term Disability Plan funded by UNUM (the "Policy") No. 505955 002. The Policy is governed by the Employee Retirement Income Security Act 1974 ("ERISA").
1. The Policy
Under the terms of the Policy, Mallwitz was eligible for LTD benefits after a 180-day elimination period if he was disabled under the terms of the Policy. The Policy defines a person as "disabled" when UNUM makes the following determination: "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." ( See Affidavit of Jon C. Gale at ¶ 2, Ex. A., Policy No. 505955 002, UNUM at 0017 (emphasis in original).) "Limited" is defined as "what you cannot or are unable to do." ( Id.) "Material and substantial duties" are defined as duties that "are normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified." ( Id.) "Regular occupation" is defined as "the occupation you are routinely performing when your disability begins." ( Id.) Finally, "sickness" means "an illness or disease. Disability must begin while you are covered under the plan." ( Id.) The Policy provided that certain information was required as proof of the insured's claim, as follows:
— that you are under the regular care of a doctor;
— the appropriate documentation of your monthly earnings;
— the date your disability began;
— the cause of your disability;
— the extent of your disability, including restrictions and limitations preventing you from performing your regular occupation; and
— the name and address of any hospital or institution where you received treatment, including all attending doctors.
We may request that you send proof of continuing disability indicating that you are under regular care of a doctor. The proof must be received within 30 days of a request by us.
( Id. at 0030 (emphasis in original).) "Regular care" is defined as: "you personally visit a doctor as frequently as is medically required, according to standard medical practice, to effectively manage and treat your disabling condition(s); and you are receiving appropriate treatment and care of your disabling condition(s) by a doctor whose specialty or experience is appropriate for your disabling condition(s)." ( Id. at 0031.)
An insured was required to notify UNUM of a claim "as soon as possible so that a claim decision can be made in a timely manner." ( Id. at 0030.) The Policy further provided:
Written notice of a claim should be sent within 30 days after the date your disability begins. However, you must send UNUM written proof of your claim no later than 90 days after your elimination period. If it is not possible to give proof within 90 days, it must be given no later than one year after the time proof is otherwise required except in the absence of legal capacity.
( Id.)
Finally, the Policy provided that the Policy would terminate when the earliest of the following occurred:
— the date the policy or a plan is cancelled;
— the date you no longer are in an eligible group;
— the date your eligible group is no longer covered;
— the last day of the period for which you made any required contributions; or
— the last day you are in active employment except as provided under the covered layoff or leave of absence provision.
( Id. at 0014.)
2. Mallwitz's Medical History
Mallwitz began experiencing problems with fatigue, depression, and anxiety in November 1999, when he was 35 years old. Mallwitz initially saw Dr. Mark Valgamae, M.D., on October 20, 1999, and November 12, 1999. Dr. Valgamae concluded that Mallwitz suffered from depression and anxiety. (Administrative Record ("AR") at 00323-00325.) Ultimately, Mallwitz's fatigue became so severe that he had to go on medical leave on December 7, 1999.
On December 8, 1999, Dr. Valgamae again diagnosed depression and anxiety with seasonal affective disorder. (AR 00326.) Dr. Valgamae confirmed the depression and anxiety diagnoses on December 21 and December 30, 1999. (AR 00327-00328.) On December 30, Dr. Valgamae noted in Mallwitz's chart, "Keep [Mallwitz] off the work for the next three weeks until he sees the psychiatrist." (AR 00328.) In his Attending Physician's Statement dated December 30, 1999, Dr. Valgamae diagnosed Mallwitz with depression and anxiety with fatigue and insomnia. (AR 00075.) Further, Dr. Valgamae noted that Mallwitz was totally disabled and unable to work from November 15, 1999, to present, and that his ability to return to work was "undetermined." ( Id.) Mallwitz applied for a leave of absence from his employer on January 10, 2000. (AR 00012.)
On January 19, 2000, Mallwitz began seeing Dr. Thomas Fox, M.D., who diagnosed major affective disorder, depression, and obsessive compulsive traits. (AR 00245.) Dr. Fox recommended that "it would be a good idea for [Mallwitz] to present himself at work" in the next three weeks to avoid the "insurmountable difficulties with him overcoming the anxiety of returning to work." ( Id.) At a later appointment on February 10 or 11, 2000, Dr. Fox stated that based upon Mallwitz's severe fatigue, weight loss, and depression, "[i]t is unadvisable for [Mallwitz] to return to work at this time." (AR 00090.) According to Dr. Fox's notes, Dr. Fox apparently saw or spoke with Mallwitz again on March 20, 2000; May 16, 2000; July 19, 2001; August 1, 2001; August 9, 2001; August 29, 2001; October 9, 2001; November 6, 2001; and December 10, 2001. (AR 00241-00244.) Dr. Fox did not comment on Mallwitz's ability to return to work in his notes from any of these dates.
On February 3, 2000, Mallwitz saw Dr. Reuben Lubka. (AR 00329-00330.) Dr. Lubka stated that he examined Mallwitz at the request of Dr. Fox, who had asked Dr. Lubka to look into the possibility of chronic fatigue syndrome and Lyme Disease. ( Id.)
On February 16, 2000, Mallwitz saw Dr. David Miller, M.D. Initially, Dr. Miller described Mallwitz's difficulty concentrating, fatigue, insomnia, joint pain, lack of energy, and headaches. (AR 00381-00383.) On February 21, 2000, Dr. Miller stated:
Mallwitz continues to suffer from an as yet undefined illness causing marked fatigue. This is now beginning to improve. Additional testing is underway to attempt to more clearly define a diagnosis. It is unclear how quickly he will recover. I would suggest that he remain off work until a follow-up visit with me in early March.
(AR 00073.) On March 3, 2000, Dr. Miller stated that Mallwitz "remains incapacitated because of fatigue" and diagnosed him with "chronic fatigue and cognitive dysfunction." (AR 00269-00270.)
Mallwitz also saw Dr. Alan K. Duncan, M.D., approximately three times beginning on April 20, 2000. (AR 00059.) On June 12, 2000, Dr. Duncan stated that Mallwitz suffered from "persistent fatigue and cognition impairment, probably attributable to chronic fatigue syndrome." (AR 00041.) Dr. Duncan noted that this condition first began in October 1999 and was not yet resolved. ( Id.) Dr. Duncan further stated that the timing to return to work was "indefinite" and that he would expect to see the patient "quarterly." ( Id.) Mallwitz's final visit with Dr. Duncan was December 21, 2001.
In a Physician Statement dated January 21, 2002, Dr. Duncan stated that Mallwitz's primary diagnosis was chronic fatigue syndrome. Dr. Duncan noted that he believed Mallwitz was first unable to work on April 20, 2000. However, Dr. Duncan further stated that "There are no physician-imposed restrictions or limitations to work." (AR 00058.) In addition, on March 18, 2002, Dr. Fox diagnosed Mallwitz with chronic fatigue syndrome and stated that he believed that Mallwitz might expect a significant change in functional ability "perhaps in the next 1-2 years." (AR 00248.) However, Dr. Fox did not comment on Mallwitz's work capacity at this time.
3. Mallwitz's Claim for LTD Benefits
Mallwitz submitted a claim for LTD disability benefits on January 27, 2002. In the Employee's Statement submitted with his claim, Mallwitz stated that he had been unable to work since November 15, 1999, because of "fatigue/depression/cognitive problems." (AR 00062.) In a letter attached to the Employee's Statement, Plaintiff stated that he had not sent his claim for LTD benefits earlier because of the following reasons:
Confusion about how to get my doctor to fill out the forms. Hope that I would recover quicker than I am. Inability to deal with the problem. Confusion regarding the rules for applying.
(AR 00064.) Mallwitz also submitted the January 21, 2002, Physician's Statement from Dr. Duncan, indicating that Mallwitz suffered from chronic fatigue, symptoms of fatigue, and cognitive dysfunction, and further noting that Mallwitz did not have any physician-imposed restrictions or limitations on his return to work. (AR 00058.) On March 26, 2002, Mallwitz's employer submitted additional information to UNUM which stated that Mallwitz had received short-term disability benefits from the employer from December 7, 1999, to June 6, 2000.
Based upon this information, UNUM determined that there was no objective evidence in the record consistent to support an impairment of chronic fatigue syndrome. (AR 00505.) Further, UNUM noted that there were large gaps in treatment and that restrictions and limitations had only been noted up until June 2000. ( Id.) UNUM sent letters to Mallwitz on March 18, April 9, April 15, April 27, and May 3, 2002, requesting that Mallwitz submit additional medical records and information to support his claim of disability. ( See AR 00502-504; 00495-496; 00491-492; 00481-482; 00470-71.)
On March 1, 2002, UNUM discovered that Mallwitz had been employed as a consultant for some time during 2001. (AR 00509.) In addition, a transcription from registered nurse Robin Uithoven's examination of Mallwitz, dated April 4, 2001, stated that Mallwitz was self-employed at home. (AR 00393.) On April 25, 2002, Plaintiff submitted a copy of an award of Social Security disability income benefits. (AR 00295-303.) Mallwitz received Social Security disability benefits for the period from August 2000 through March 2002. (AR 00295-303.) Plaintiff also submitted a business income tax return for 2001 that indicated he had earned $14,160.00 in net profit for consulting services that he had provided during that year. (AR 00305.)
UNUM conducted an additional review of information on May 10, 2002, and determined that there was "not sufficient objective evidence to support that the insured was suffering from severe and debilitating psychiatric symptoms at the time of his work stoppage." (AR 00401.) In addition, UNUM concluded:
We have not been presented with specific psychiatric restrictions or limitations from the time of the insured's work stoppage. There is a significant gap in treatment by Dr. Fox. If the insured were severely incapacitated due to a psychiatric condition, we would not expect a 14 month gap in treatment with his psychiatrist.
( Id.)
On May 23, 2002, Dr. Thomas A. Reeder, M.D., a UNUM consulting physician, reviewed Mallwitz's medical records and concurred with UNUM's previous conclusion. Specifically, Dr. Reeder noted that "[t]here is no medical documentation surrounding the [date of disability] that would lead one to conclude the [claimant] was functionally impaired." (AR 00404.)
UNUM initially denied Mallwitz's claim for LTD benefits on May 30, 2002, and Plaintiff appealed. (AR 00411.) On July 8, 2002, Maureen Lee, D.O., conducted an in-house medical review of Mallwitz's file and determined that Mallwitz's medical records did not support his asserted inability to perform light or sedentary work. (AR 00418-421.) In addition, Glen E. Higgins, Ph.D., conducted a file review on July 10, 2002, and determined that Mallwitz's medical file did not support a finding that he was unable to work after April or May 2000. (AR 00416-417.)
By a letter dated July 25, 2002, UNUM determined that its decision to deny Mallwitz's benefits was appropriate. (AR 00442-445.) UNUM based its conclusions on the inconclusive medical information in Mallwitz's file, the gap in treatment, the untimely filing of the claim that allegedly prejudiced UNUM, and the inconclusive information in the file regarding Mallwitz's work restrictions or limitations. ( Id.)
Mallwitz brought this action on October 1, 2002, seeking to recover his LTD benefits under ERISA beginning in June 6, 2000, attorney fees, interest, and costs. In their cross-motions for summary judgment, the parties dispute whether the record supports UNUM's denial of benefits. In addition, the parties dispute the standard of review that the Court should apply in its review of UNUM's decision to deny benefits.
Discussion
1. Standard of Review
A participant in an ERISA plan may bring suit "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). Typically, a court reviews a denial of benefits challenged under § 1132(a)(1)(B) under a de novo standard of review. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). However, when a plan gives discretionary authority to the plan administrator or reviewing committee to determine eligibility for benefits or to construe the terms of the plan, the Court reviews the decision to deny benefits for an abuse of discretion. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Here, the plan gives UNUM "discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." (UNUM 0011.) This language is sufficient to trigger the "abuse of discretion" standard of review. Mallwitz, however, urges the Court to apply a less deferential standard of review pursuant to Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998). In order to obtain this less deferential standard of review, Mallwitz "must present material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator's fiduciary duty to [him]." Woo, 144 F.3d at 1160, citing Buttram v. Central States, S.E. S.W. Areas Health Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996). Once a conflict is found, the Court must apply a "sliding scale" approach, taking into account the conflict or procedural irregularity while it applies an abuse of discretion standard of review. Id. at 1161.
Mallwitz asserts that UNUM has a financial conflict of interest because it is both the insurer and the administrator of the plan. While this may indeed be a palpable conflict, Mallwitz has not provided any evidence as to how this conflict has a connection to the substantive decision reached here, or how the conflict caused a serious breach of duty on the part of the fiduciary, UNUM, as to Mallwitz's claims. See Barnhart v. UNUM Life Ins. Co. of America, 179 F.3d 583, 588-89 (8th Cir. 1999). UNUM's decision was supported by a thorough review of the record, including a review of the medical records that came from Mallwitz's treating physicians. See id. at 589. Because Mallwitz has not demonstrated either a connection to UNUM's ultimate decision or a breach of UNUM's fiduciary duty in this case, the Court will review the denial of benefits under an abuse of discretion standard.
Under the abuse of discretion standard, the Court looks to whether a "`reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision.'" Ferrari v. Teachers Ins. and Annuity Ass'n, 278 F.3d 801, 807 (8th Cir. 2002), quoting Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997) (emphasis in original). Reasonableness is evaluated as to "`whether the decision is supported by substantial evidence which is more than a scintilla, but less than a preponderance.'" Id. at 807, quoting Woo, 144 F.3d at 1162. The Court considers "only the evidence that was before the plan administrator when the decision was made" and does not substitute its own weighing of the evidence for that of the administrator. Id. at 807.
On this basis, the Court will not consider Exhibits 4, 5, 7, and 8 to the Affidavit of Mark M. Nolan, as these documents were not included in the Administrative Record before the plan administrator and Mallwitz has not demonstrated good cause to expand the Administrative Record. See Brown v. Seitz Foods, Inc. Disability Benefit Plan, 140 F.3d 1198, 1200 (8th Cir. 1998). The Court notes that even if it did consider these documents, it would not alter the Court's substantive decision.
2. UNUM's Decision to Deny Mallwitz's LTD Benefits
Mallwitz initially asserts that this Court should give greater weight to the testimony of his treating physicians than was given by UNUM when it reviewed his claim for benefits. However, the United States Supreme Court recently held that "courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." Black Decker Disability Plan v. Nord, 123 S.Ct. 1965, 1972 (2003).
In denying Mallwitz's LTD benefits, UNUM concluded that Mallwitz's claim was untimely, that his condition of depression was not at a level that would preclude him from performing the material and substantial duties of his occupation, that there was no indication in his file that he had any psychiatric restrictions or limitations, and that the medical information in his file was inconclusive. UNUM noted that Mallwitz's self-employment from January 1, 2001, through November 1, 2001, was inconsistent with his claim for disability benefits for that same period. In addition, UNUM determined that the 14-month gap in treatment was inconsistent with his claimed level of impairment. ( See AR 00454-458; AR 00442-445.) The Court finds that based upon the lack of indication in the file of physician-imposed restrictions or limitations on Mallwitz's return to work, substantial evidence supports UNUM's determination.
In support of its denial of benefits, UNUM relies significantly upon the alleged uncertainty of Mallwitz's diagnosis. The Court is not persuaded by this argument. Specifically, the Court finds that the statements from Mallwitz's various treating physicians supported a diagnosis of chronic fatigue syndrome and many of the symptoms of that condition. However, even recognizing what can be a very serious condition, the Court finds that Mallwitz did not have a consistent enough diagnosis from his treating physicians so as to support a determination that his condition made him unable to return to work.
Initially, Mallwitz's doctors concluded that he was unable to return to work due to his depression and fatigue. On December 30, 1999, Dr. Valgamae noted that Mallwitz had been unable to work from November 15, 1999, to present, and that his ability to return was "undetermined." (AR 00075.) After concluding on January 19, 2000, that it may be a good idea for Mallwitz to return to work, Dr. Fox later determined on February 10 or 11, 2000, that it was inadvisable for Mallwitz to return to work at that time. (AR 00245; 00090.) However, in several subsequent appointments, Dr. Fox did not comment on Mallwitz's inability to return to work. (AR 000241-244.) Then, on June 12, 2000, Dr. Duncan stated that the timing of Mallwitz's return to work was "indefinite" without commenting on any specific restrictions or limitations. (AR 00041.) After that appointment, however, Mallwitz did not see Dr. Duncan again until December 21, 2001, despite Dr. Duncan's expectation in June 2000 that he would see Mallwitz "quarterly." ( Id.) A gap also occurred in Mallwitz's treatment with Dr. Fox between May 16, 2000, and July 19, 2001. On January 21, 2002, Dr. Duncan stated that there were "no physician-imposed restrictions or limitations to work." ( Id. at 00058.) Other than Dr. Duncan's somewhat ambiguous conclusion on June 12, 2000, that the timing of Mallwitz's return to work was "indefinite," Mallwitz has provided no evidence from his treating physicians by which UNUM could conclude that Mallwitz was under any physician-imposed restrictions or limitations, or that he was unable to return to work, between June 6, 2000, and January 21, 2002, when he made his claim for LTD benefits.
Although it may not rise to the level of actual prejudice, the Court finds that Mallwitz's delay in filing his claim, combined with the gap in treatment, reasonably contributed to UNUM's conclusion that Mallwitz was not disabled. Because of gaps in treatment and the delay in filing the claim, UNUM had no indication from the treating physicians that Mallwitz was under any physician-imposed restrictions or limitations after June 2000. Had Mallwitz contacted UNUM sooner to file his claim, he may have been directed to get further documentation from his treating physicians, or been subject to an examination by a UNUM physician, to clarify his claimed disability. However, he did not apply until January 21, 2002, at which point his own treating physician stated that he did not have any physician-imposed restrictions or limitations.
Mallwitz contends that chronic fatigue syndrome is a "self-limiting" illness ( see Plaintiff's Brief in Support of its Cross-Motion for Summary Judgment, and in Response to Defendant's Motion for Summary Judgment at 18). However, UNUM cannot reasonably be expected to rely upon Mallwitz's self-diagnosis during the gap in treatment. Indeed, although Mallwitz received Social Security disability benefits for a portion of his time away from work, Mallwitz also was employed for at least part of the time during which he claims he was unable to return to work. With these considerations in mind, the Court finds that UNUM reasonably determined that Mallwitz was not entitled to LTD benefits.
Under Eighth Circuit precedent, a plan administrator is not bound by the Social Security Administration's determination that a plan participant is eligible for Social Security disability benefits. See Farfalla v. Mutual of Omaha Ins. Co., 324 F.3d 971, 974 (8th Cir. 2003); see also Jackson v. Metropolitan Life Ins. Co., 303 F.3d 884, 889 (8th Cir. 2002).
While the Court realizes that this chronic fatigue may indeed be serious enough to preclude a person from working at even a sedentary or light-duty position, the physicians here did not make that determination during the time period in question. The question as to what occurred between June 6, 2000, and January 21, 2002, is not a question of fact to be left to a jury, as the jury would be left to only consider Mallwitz's own self-diagnosis to determine whether his claim for LTD benefits was appropriately denied. This result would be inappropriate, as it would leave the jury in the same bind as UNUM found itself in when it reviewed Mallwitz's claim, attempting to review a claim of disability for which no supporting evidence existed in Mallwitz's medical records.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment (Doc. No. 12) is DENIED.
2. Defendant's Motion for Summary Judgment (Doc. No. 8) is GRANTED and the COMPLAINT (Doc. No. 1) is DISMISSED WITH PREJUDICE.
3. Defendant's Motion to Strike Plaintiff's Submissions Made in Conjunction with His Motion for Summary Judgment (Doc. No. 19) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.