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applying "modicum less deference" standard where only evidence of conflict is defendant's status as insurer and plan administrator
Summary of this case from Rushing v. Winn Dixie Stores, Inc.Opinion
Civil Action No. 01-480 Section "L" (1)
June 19, 2002
ORDER REASONS
Before the Court is an action for review of the denial of long-term disability benefits. The parties agreed to submit the action on the written record. After consideration of the parties' trial briefs, proposed findings of fact and conclusions of law, and the administrative record, the Court issues the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
1. Leon Godchaux Clothing Company, Ltd. ("Godchaux") sponsored an employee welfare benefit plan, the Leon Godchaux Clothing Company Long Term Disability Employee Benefits Plan ("the Plan"), for its eligible employees.
2. Long Term Disability ("LTD") benefits under the Plan were funded by a policy of group insurance issued by the Defendant, Hartford Life and Accident Company ("Hartford"), to Godchaux.
3. In 1985, Plaintiff Elizabeth Marziale was an employee of Godchaux and a participant in the Plan.
4. When Elizabeth Marziale stopped working in 1985, her job title was "Personnel Director."
5. Hartford served as claims administrator for claims made under the Plan.
6. In 1986, Plaintiff submitted to Hartford a claim for long term disability benefits, claiming total disability, as of October 18, 1985, as a result of injuries sustained in a motor vehicle accident on September 15, 1983. Rec. 0650.
7. Plaintiff also submitted two "Attending Physician's Statement[s] of Disability" ("APS") with her claim. One APS completed by George Byram, Jr., M.D. dated February 27, 1986, described Plaintiffs "present condition" as open fracture of the right patella, comminuted fracture of the right distal tibia and ankle, fracture of the right distal radius and ulna, and multiple contusions and abrasions. Rec. 0646-47. The other APS, completed by William Stein, III, M.D. dated March 5, 1986, characterized Plaintiffs "present condition" as chronic deep venous thrombosis of both lower extremities, open fracture of right patella, comminuted fracture of right distal tibia and ankle, and fracture of right distal radius and ulna. Rec. 0648-49. Both physicians indicated that Plaintiff was totally disabled "for the present time." Rec. 0646, 0648. Dr. Byram noted that it was "unknown at this time" when Plaintiff would be able to resume work. Rec. 0646. Dr. Stein indicated that the date of Plaintiffs return to work was "indefinite." Rec. 0648.
8. On October 29, 1986, Hartford notified Plaintiff that her claim for Long Term Disability benefits was approved. Rec. 0565. Plaintiff was informed that "[b]enefit payments will continue, subject to policy terms and limitations, as long as you meet the policy definition and requirements of total disability, but in no event beyond July 9, 2024 (age 65)." Rec. 0566.
9. Hartford began paying LTD benefits to Plaintiff, effective January 19, 1986. Rec. 0565.
10. On March 30, 2000, a Hartford Senior Claims Examiner referred Plaintiffs claim to "Benefit Management Services" for investigation, noting that Plaintiff "was not treated between 1997 and 1999" and that "it appear[ed] that she does not see the physician unless we ask for current medical." Rec. 0171. The Hartford examiner also noted that the Plaintiff "was on no medication except Motrin." Rec. 0171.
11. Plaintiffs claim was also submitted to "medical referral" on March 30, 2000, to determine "if the medical documentation in the file supports the restrictions and limitations that are placed on claimant." Rec. 0170.
12. On May 19, 2000 and May 20, 2000, video surveillance of Plaintiff was obtained through Facticon, Inc., an investigation and surveillance company retained by Hartford. Rec. 0128.
13. The surveillance efforts documented the Plaintiff walking in her yard, watering plants, driving, running errands and shuttling her minor children to various events. Rec. 0128-0133. The Facticon investigator noted that the Plaintiff "walked in a free and agile manner" and was able to "bend at the waist several times with no apparent difficulty." Rec. 0128.
14. On May 24, 2000, Hartford investigator Fred Diggle met with Plaintiff and her husband at their home. Rec. 0160. Mr. Diggle interviewed Plaintiff and her husband, and attempted to take a "continuing of disability statement" from Plaintiff. Rec. 0160-0167. Plaintiff never completed and signed the disability statement, despite repeated requests from Hartford.
15. On July 13, 2000, and July 14, 2000, Hartford obtained additional video surveillance. Rec. 0119-0122.
16. On July 13, 2000 investigators observed Plaintiff watering plants and talking on a cordless telephone. Rec. 0119. According to surveillance reports, "[t]hroughout this activity" Plaintiff was "standing and walking continuously" for a period of approximately eight (8) minutes. Rec. 0119. Later that day, Plaintiff was observed driving to a bank approximately five minutes from her home and conducting a transaction at a drive-thru window. Rec. 0120.
17. On July 14, 2000, Plaintiff was observed moving potted plants and walking in her front yard. without "any visible braces" or the use of "any visible orthopedic supportive devices." Rec. 0121. Plaintiff was engaged in this activity for approximately three (3) minutes. Rec. 0121. Later that day, Plaintiff was observed turning on a lawn sprinkler and driving a young male to a house located approximately four minutes driving distance from Plaintiffs home. Rec. 0122.
18. On September 5, 2000, Hartford Senior Disability Nurse Case Manager Arlene Dumais wrote to Plaintiffs treating physician, Dr. William Stein, 1171, requesting comment and any "substantial evidence that would contradict [Hartford's] observations." Rec. 0141-0142. In this letter, Ms. Dumais explained that:
[i]t appears that Ms. Marziale's condition has become stable over time and her functional ability has improved . . . Hartford has to keep two factors in mind . . . [s]hould Ms. Marziale choose not to return to work, that is a personal choice however the focus needs to be on whether she has the ability to perform the duties of a Personnel Manager [and] [t]he focus needs to be on her condition as it is presently, not on the potential that she may have problems in the future.
Rec. 0140. In addition, Hartford enclosed a videotape of surveillance purportedly demonstrating Plaintiffs "ability to stand, bend, and walk on uneven ground for more than an hour without any observable limp, brace, or assistive device on two occasions." Rec. 0141. The record does not reflect any response from Dr. Stein.
19. On September 22, 2000, Hartford advised Plaintiff that long term disability benefits were no longer payable to her because she "no longer remain[ed] disabled, as defined by the contract." R. 0093. In this letter, Hartford explained that the denial of benefits was based on "policy language and all of the documents contained in your claim file, viewed as a whole" including:
1) Employer statement of claim
2) Employee statement of claim
3) Attending Physician statements dated: 2/7/86; 3/5/86; 5/17/88; 11/22/89; 2/18/94; 10/11/95; 10/28/96.
4) Treatment notes from Dr. Stein III for the period 9/21/83-10/24/99
5) Letter from Dr. Stein dated 1/18/91
6) Independent Medical Evaluation performed by Dr. C. Clay Craighead dated 5/16/94
7) Independent Medical Evaluation performed by Dr. J. Cazale, dated 5/17/94
Your claim file indicates that on 10/19/85, you stopped work as a Personnel Director due to injuries suffered in a motor vehicle accident, which occurred on 9/15/83. Injuries sustained at that time included: open fracture of the right patella,; comminuted fracture of the right distal tibia and ankle; repair of the right distal ulna and radius; subsequent deep vein thrombosis and thrombophlebitis.
The most recent treatment notes we have received to date, are provided by Dr. Stein III, and dated 10/21/99. Dr. Stein notes that you continued with swelling in the left calf, and occasional tenderness. Dr. Stein states that you continue to have "difficulty" with your right ankle and knee, but that, to date, you have not seen an Orthopedist, have not lost weight as recommended, and have not followed up with him, as recommended. He cites no new problems. Recommendations are that you lose weight and continue with Motrin on an as needed basis.
Rec. 0094.
20. Hartford's September 22, 2000 letter further explained that although a Hartford representative requested, on May 25, 2000, that Plaintiff sign a Continuing Disability Statement, after seven requests, Plaintiff had not signed or returned the statement. Rec. 0095. Hartford also noted that it "observed [Plaintiffs] activity level on 5/19/00 and 5/20/00, and again on 7/13/00 [sic] and 7/14/2000 . . . it was noted that [Plaintiff] was able to walk without visible pain or restrictions" and that she was "observed tending to the yard, watering plants, moving plants . . . [and] standing and walking for prolonged periods without the aid of assistive devices." Rec. 0095.
21. As of September 22, 2000, Plaintiffs claim was closed and no further benefits were paid. Rec. 0095.
22. On October 5, 2000, Plaintiff, through counsel, appealed Hartford's determination without submitting additional evidence. Rec. 0092
23. On December 15, 2000, a Hartford Appeal Specialist notified Plaintiff that the "decision to terminate benefits was appropriate and is maintained." Rec. 0090. Hartford explained that "[w]e feel the weight of the information contained in Ms. Marziale's claim file establishes she
has the capacity to perform sedentary work." Rec. 0090.
24. Plaintiff filed suit in February of 2001. Rec. 0083-89.
25. While suit was pending, Hartford agreed to re-open its administrative record and consider additional records. Plaintiff submitted additional medical records including a narrative report by Dr. William Stein, dated September 5, 2001, Rec. 0010-11, a Physical Capacities Evaluation form completed by Dr. Melvin Parnell dated August 22, 2001, Rec. 0015, a medical narrative by Dr. Parnell dated July 3, 2001, Rec. 0034, a medical narrative completed by Dr. Stein, dated June 15, 2001, Rec. 0045, and other medical records and treatment notes. Rec. 0047-82.
26. Hartford considered the additional medical records and, by letter dated October 29, 2001, notified Plaintiffs counsel that it affirmed its previous denial of benefits and that "the information . . . no longer supports a condition of Total Disability as required by the Hartford group insurance policy . . . no further benefits can be paid." Rec. 0001.
II. CONCLUSIONS OF LAW
1. The Hartford plan is governed by the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. ("ERISA").
2. Factual determinations made by an administrator during the course of a benefits review are reviewed for an abuse of discretion. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc. 168 F.3d 211, 213 (5th Cir. 1999).
3. In applying the abuse of discretion standard, courts analyze whether the administrator acted arbitrarily or capriciously. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 600 (5th Cir. 1994) (quoting Salley v. E.I. DuPont de Nemours Co. 966 F.2d 1011, 1014 (5th Cir. 1992)).
4. A plan administrator's decision will be affirmed if it is supported by "substantial evidence." Meditrust, 168 F.3d at 215. "Substantial evidence" is "more than a mere scintilla . . . [i]t means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 215 (5th Cir. 1990) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
5. A court cannot substitute its own judgment for that of the plan administrator; the abuse of discretion "standard exists to ensure that administrative responsibility rests with those whose experience is daily and continual, not with judges whose exposure is episodic and occasional." Rigby v. Bayer Corp., 933 F. Supp. 628, 633 (E.D. Tex. 1996).
6. There is some modification of this standard where there exists a self-interested insurer. A "self-interested insurer" is one who serves as both the insurer and the administrator of the plan and potentially benefits from every denied claim. See Vega v. Nat'l Life Ins. Servs., 188 F.3d 287, 295 (5th Cir. 1999). The existence of a conflict of interest is a factor to be considered in determining whether an administrator abused its discretion in denying a claim. Id. at 297. The Fifth Circuit applies a "sliding scale" approach when addressing potentially conflicted administrators, i.e., "the greater the evidence of a conflict on the part of the administrator, the less deferential [the] abuse of discretion standard will be." Id. at 297. If, however, as here, there is no evidence to support a conflict of interest, an administrator's decision will be reviewed "with only a modicum less deference." Id. at 301; see also Bowers v. UnumProvident Corp., No. 01-0046, 2002 WL 10467, at *4 (E.D. La. Jan. 2, 2002) (applying "modicum less deference" standard and noting that the Plaintiff "has advanced no evidence specifically indicating a conflict . . . [and] has offered no evidence of [Defendant's] financial arrangements that would illuminate the nature of the alleged conflict"); Dew v. Metro. Life Ins. Co., 69 F. Supp.2d 898, 902 (S.D. Tex. 1999) (applying "modicum less deference" standard and noting that Plaintiffs "only evidence of a conflict is [Defendant's] position as both insurer and administrator . . . the evidence does not support a degree of conflict other than minimal").
7. When resolving factual issues, the court is limited to the record that was before the plan administrator. See Vega, 188 F.3d at 299.
8. In this case, whether the Plaintiff is "totally disabled" under the Plan is a factual determination which does not involve a legal interpretation of plan terms. Accordingly, the Court is not required to apply the two-step analysis set forth in Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992). See Kolodzaike v. Occidental Chem. Corp., 88 F. Supp.2d 745, 748 (S.D. Tex. 2000) ("When, as here, the case does not turn on sophisticated Plan interpretation issues, the Court is not required to apply the two-step process of Wildbur. . . ."); Rigby, 933 F. Supp. at 632 (declining to apply Wildbur analysis).
9. The Hartford policy at issue provides benefits to claimants who "become `Totally Disabled' while insured under this plan." Rec. 0001. "Totally Disabled" is defined under the Hartford plan as "prevented from performing all the material and substantial duties of your own occupation," in this case, personnel director. Rec. 0001. The medical evidence in the administrative record indicates that the Plaintiff is totally disabled. Melvin Parnell, M.D., an orthopedic surgeon, completed Hartford's "Physical Capacities Evaluation Form" on August 22, 2001. Rec. 0014-15. Dr. Parnell indicated that Plaintiff could sit for one hour at a time, and could stand, walk, and drive, for one hour each per day. Rec. 00014. Dr. Parnell also indicated that the Plaintiff could balance, stoop, and kneel "occasionally." Id. Dr. Parnell concluded that these restrictions were permanent and that although she had reached maximum medical improvement, Plaintiff could not return to work. Rec. 0015.
10. Plaintiffs hematologist, William Stein, M.D. also concluded, beginning in 1986 and as recently as September, 2001, that Plaintiff remains disabled. Rec. 0011. Although Dr. Stein's lack of communication and/or cooperation with Hartford may have contributed to the denial of benefits, he has consistently reiterated his medical opinion that Plaintiff is disabled. See, e.g., Rec. 0045 (memorandum dated June 2001 noting "Mrs. Marziale is a patient and has been since 11/11/85, she is considered disabled"); Rec. 0250 (APS dated October 18, 1996 indicating Plaintiff is "Class 5-severe limitation of functional capacity; incapable of minimal (sedentary) activity" and "totally disabled" from both her job and "any other job"); Rec. 0464-65 (APS dated August 22, 1990 indicating Class 5 limitation and noting that Plaintiff "cannot return to her former job"); Rec. 0504 (APS dated November 22, 1989 indicating Class 5 limitation and explaining that "[t]his is a very difficult situation . . . [s]he is not capable of prolonged activity because of her orthopedic problems and is not capable of sitting because of her venous problem"); Rec. 0648-49 (APS dated March 5, 1986 finding Plaintiff totally disabled for any occupation "for the present time").
11. The two Independent Medical Examinations conducted at the request of Hartford in May of 1994, also controvert Hartford's determination. Dr. John Cazale, an orthopedic surgeon retained by Hartford, explained:
[T]he main problem that I see with Mrs. Marzeale [sic] is twofold. She has recurrent deep vein thrombosis in the left leg, and this would not allow her to perform any type of job that would require prolonged standing. She should have a job that ideally would allow for alternately sitting and standing. She also has some pain present in the right leg. She has restricted range of motion in the right ankle. She would only be able to work on a level surface. Again, because of the combination of injuries that she has, the only type of job available for her would be some type of sedentary job that would allow this patient to alternately sit and stand. She still may not be able to perform any type of gainful activities because of recurrent swelling present in the left leg . . . After reviewing the job description available, I do not think that she would be able to return full-time with the description made available to me at this time.
Rec. 0315. Dr. Clay Craighead, an independent vascular surgeon, similarly concluded that while "the prognosis for Mrs. Marziale's recovery is good in the sense that she has not had any tissue loss or skin breakdown . . . if [she] gets symptoms after standing for an hour, I do not think it is possible for her to return to her previous occupation." Rec. 0319. Thus, although cited as reasons for the denial of benefits, neither of the independent medical examinations support Hartford's determination.
12. Hartford's denial appears to rest primarily on video surveillance conducted in May of 2000. In support of its denial, Hartford recounted the results of surveillance revealing that Plaintiff was observed leaving her residence in a Chevrolet Suburban, "walking outside the residence, carrying 2 bags and later a bottle, in her right hand . . . [and] watering plants in the yard." Rec. 0006-07. Hartford also emphasized that "[t]he investigator noticed no problems in gait while standing or walking for these brief periods of activity" and concluded that "these documented activities establish that the claimant is apparently able to come and go independently as she pleases without difficulty." Rec. 0007.
13. Hartford also relies heavily on investigator Fred Diggle's May 24, 2000 interview in support of its denial. In his report, Mr. Diggle details several examples of unusual and "notable" behavior he observed during the Marziale interview. As a threshold matter, Mr. Diggle noted that "Mr. Marziale is in full control of his wife's claim" and that "at times he would direct her answers to my questions . . . or she would look to him for guidance in answering a question." Rec. 0160. Diggle also reported that the Marziales' described in detail the difficulties they often experience with their eleven-year old handicapped daughter. Rec. 0165. According to Diggle, "it was clear . . . that Mrs. Marziale was actively involved with her [daughter's] care." Id. of particular significance to the investigator was Mrs. Marziale's inability to assess her pain on a scale of zero to ten. Id. Diggle reported that Mrs. Marziale "did not seem to be able to answer that and looked at her husband . . . [h]e seemed uncomfortable as well and said, `I don't know, five?'" Rec. 0165. Diggle explained that although Mrs. Marziale concurred, "[t]his is notable because someone in pain all of the time can understand that concept and respond easily . . . I have never had anyone in all of the interviews that I conducted for the Hartford have trouble answering that question." Id.
14. The Court finds that Hartford's heavy reliance on an investigator's intuition and several days of video surveillance, in the face of starkly contradictory medical evidence, constitutes an abuse of discretion. First, the video surveillance "does not reveal anything extraordinary." Rec. 0136. On May 19, 2000, the investigators observed Plaintiff intermittently walking without a brace or orthopedic support, driving, carrying bags and a water bottle, and watering plants. Rec. 0131-32. Approximately sixteen minutes of video surveillance was obtained on that date. Rec. 0133. On May 20, 2000, investigators observed Plaintiff walking across the street to a neighbor's house and driving two teenaged boys to a gym. Rec. 0133. This surveillance documents less than two hours of activity in over a forty-eight hour period. Rec. 0128. "There is nothing in the record suggesting [Plaintiff] was capable of such an activity on a sustained basis or that the video documented anything other than a good day." Clausen V. Standard Ins. Co., 961 F. Supp. 1446, 1457 (D. Colo. 1997); Grosz-Salomon v. Paul Revere Life Ins. Co., No. CV 98-7020, 1999 WL 33244979, at *6 (C.D. Cal. Feb. 4, 1999) ("[R]elying on videotapes showing the plaintiff engaging in activities that are significantly less taxing than working . . . when all of the other objective evidence of treating physicians and therapists confirms that the plaintiff is totally disabled . . . is an abuse of discretion."); Rigby, 933 F. Supp. at 634 (finding video surveillance alone did not constitute "substantial evidence"). Importantly, in this case, none of the sporadic activities conflict with the most recent diagnosis of Plaintiffs treating orthopedic surgeon, Dr. Parnell, who estimated that Plaintiff could stand, walk, and drive, for one hour each per day. Rec. 00014.
The presence, nature, and extent of some injuries or disabilities may be rebutted by surveillance evidence. For example, someone who claims to be blind may be denied recovery if surveillance reveals the complainant was driving a car or reading. But with the present injury, some activity is not inconsistent with disability.
15. The Court also finds that the report of investigator Fred Diggle does not constitute "substantial evidence" to support denial of Plaintiff's benefits. Obviously, the Marziales — in particular Mr. Marziale — exhibited behavior that justly aroused the suspicion of Mr. Diggle, a professional claims investigator. Diggle emphasizes in his report the domineering presence of Plaintiffs husband, a policeman, as well as the Marziales practice of "screening" their incoming telephone calls. Rec. 0160-66.
While the Marziales may have been uncooperative and even evasive in their dealings with Diggle, these behaviors have no bearing on Ms. Marziale's medical condition or her disability. There is no indication in the record that Mr. Diggle has any medical training. His report amounts largely to observations and "hunches," and as well-founded as they may be, these suspicions simply do not qualify as "substantial evidence" sufficient to deny the claim. Cf. Roig v. The Limited Long Term Disability Program, No. 99-2460, 2000 WL 1146522, at 13 (E.D. La. Aug. 4, 2000) (finding claim analyst's understanding of MRI scans, when contradicted by the opinion of the only physician consulted, was "wholly insufficient to support denial of disability benefits."); see also Vega, 188 F.3d at 302 ("Plainly put, we will not countenance a denial of a claim solely because an administrator suspects something may be awry.").
16. The Court is aware that in the Fifth Circuit a "district court may not impose a duty to reasonably investigate on the administrator." Vega, 188 F.3d at 299. Hartford was under no express obligation to order another independent medical examination or to consult a vocational rehabilitation expert or other specialist. See Roig, 2000 WL 1146522, at *14. The Court also recognizes, however, that while bound to defer to an administrator's "reasoned decision," without some concrete evidence in the administrative record to support denial of the claim, the Court must find the administrator abused its discretion. Vega, 188 F.3d at 302.
In this case, the Court finds no "concrete evidence" to support the denial of benefits. None of the twelve itemized reasons listed in Hartford's final denial letter, nor any of the other evidence contained in the administrative record support the decision. While the Court recognizes that Plaintiffs job is classified as "sedentary," all of the physicians, both "treating" and independent, who have examined the Plaintiff have concluded that she is disabled. The evidence that Hartford relies upon, including video surveillance and an investigator interview, amounts to a suspicion that "something may be awry" but does not constitute the "substantial evidence" upon which denial of a claim must be based.
The Court recognizes that the "treating physician" rule is not likely applicable in ERISA cases and declines to apply the rule in this case. See Salley v. DuPont de Nemours Co., 966 F.2d 1011, 1016 (5th Cir. 1992) ("We have considerable doubt about holding the rule applicable in ERISA cases."); Milson v. St. Luke's Episcopal Hosp., 71 F. Supp.2d 634, 642 (S.D. Tex. 1999) ("[T]his Court declines to extend the treating physician rule to this ERISA case."); Johnson v. Sun Life Assurance Co. of Canada, No. 98-990-A, 2000 WL 33225469, at *9 (M.D. La. Nov. 29, 2000) (declining to apply "treating physician rule").
17. Plaintiff also argues that her "damages would include the amount due on a claim plus interest." Plaintiffs Trial Brief, at 24. "The availability of pre-judgment interest depends upon whether the statute creating the cause of action precludes such an award and, if not, whether allowance of pre-judgment interest furthers the policies underlying the statute." See Transitional Learning Cmty. v. Metro. Life Ins. Co., 913 F. Supp. 504, 508 (S.D. Tex. 1996). Although ERISA is silent on the issue of prejudgment interest, courts may, in their discretion, award prejudgment interest and are directed to state law for guidance. Hansen v. Cont'l Ins. Co., 940 F.2d 971, 984 n. 11 (5th Cir. 1991) (noting "ERISA does not preclude such an award . . . an award of prejudgment interest furthers the purposes of that statute by encouraging plan providers to settle disputes quickly and fairly, thereby avoiding the expense and difficulty of federal litigation."); see also Roig, 2000 WL 1146533, at *15 (awarding prejudgment interest at rate set by the Louisiana Civil Code, "the law of the situs of plaintiff's employment"); Musmeci v. Schwegmann Giant Supermarkets, 159 F. Supp.2d 329, 356 (E.D. La. 2001) (same). Guided by Louisiana law, the Court awards prejudgment interest from September 22, 2000, at the rate set in Louisiana Civil Code article 2924.
Plaintiff incorrectly cites 29 U.S.C. § 1132(g)(2) as authority for such an award.
18. Finally, both parties have moved for an award of attorney's fees and costs. ERISA grants courts the discretion to award attorney's fees to either party. See 29 U.S.C. § 1132(g)(1). In deciding whether to award attorney's fees, courts are directed to consider five factors: (1) the degree of the opposing party's culpability or bad faith; (2) the ability of the opposing party to satisfy an award of attorney's fees; (3) whether an award of attorney's fees would deter other persons acting under similar circumstances; (4) whether the party requesting attorney's fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant question regarding ERISA itself; and (5) the relative merits of the parties' position. Salley, 966 F.2d at 1017 (quoting Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)).
Applying these factors to this case, the Court finds that an award of attorney's fees is not appropriate. The record reflects that the lack of cooperation on the part of Plaintiff and her husband and their refusal to sign and return the requested statement of disability, after seven requests, likely contributed to the initial denial of benefits. The record also reveals a lack of communication between Hartford and Plaintiff's treating physician, Dr. William Stein, who was reluctant to discuss Plaintiff's disability status when contacted by Hartford representatives. Rec. 0144-49. The Court notes also that this litigation may have been avoided entirely if Plaintiff had submitted additional medical evidence when she originally appealed Hartford's decision. In light of these logistical difficulties, an award of attorney's fees is not warranted in this case.
III. CONCLUSION
For the foregoing reasons, the Court finds that Defendant's decision to terminate long term disability benefits was an abuse of discretion. In accordance with plan terms, Plaintiff is entitled to benefits in the amount of $1609.92 per month dating from September 22, 2000. Defendant is ordered to pay prejudgment interest on the award at the rate set in Louisiana Civil Code article 2924. An award of attorney's fees and costs is not warranted in this case.
Although not pleaded in her original petition, Plaintiff now argues that she is entitled to a "cost of living" increase in addition to restitution of monthly benefits. See Plaintiff's Brief, at 24. The Court is limited in this case to a review of the administrative record. As Defendant points out, "[t]here is nothing in the record to reflect that this claim was submitted to Hartford or that it was considered by the claims administrator." See Trial Brief of Hartford, at 18. Accordingly, the Court does not rule on this issue.