Opinion
Case No. 5:02-CV-163
September 8, 2003
ORDER AND JUDGMENT
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that pursuant to the Court's de novo review of the Administrative Record, JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT.
This case is closed.
OPINION
Plaintiff, David J. Parker ("Plaintiff"), has brought this action against Defendant, UNUM Provident ("UNUM"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 to 1461, to recover long-term disability ("LTD") benefits allegedly owing under three policies: (1) Policy 6PC-345085, (A.R. at UPAP00067; Compl. Ex. 1); (2) Policy 104324-001, (A.R. at UPCL00503; Compl. Ex. 4); and Policy 6-334-504999, (A.R. at UPAP00021; Compl. Ex. 3), (collectively the "Policies"). Before the Court are Plaintiff's briefs in support of de novo review and analysis of the Administrative Record, as well as UNUM's brief in support of affirming its administrative decision. The Court will enter judgment in favor of UNUM.
Factual and Procedural Background
Plaintiff is the former Chief Executive Officer ("CEO") of Parker Systems, a company that he owned until he sold it on August 27, 1999. While Plaintiff was CEO of Parker Systems, he apparently split his time between his home in Ada, Michigan, where he lived with his wife, and a home in California, where he lived alone. He would alternate between his two residences in two week increments.
Plaintiff was insured under the three Policies, each of which provided him with disability benefit coverage.
First, Policy 6PC-345085 defines "total disability" as:
1. You are unable to perform the duties of your occupation; and
2. Indemnity will not be paid for disability during any period of time that you are not under the care and attendance of a Physician.
(Policy 6PC-345085, Compl. Ex. 1.) Policy 6PC-345085 defines "occupation" as: "your occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled."
Second, Policy 104324-001 states:
You are disabled when UNUM determines that:
— 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
You will continue to receive payments beyond 24 months if you are also:
— working in any occupation and continue to have a 20% or more loss in your indexed monthly earnings due to your sickness of injury; or
— not working and, due to the same sickness or injury, and are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
. . .
REGULAR OCCUPATION means the occupation you are routinely performing when your disability begins. UNUM will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.
. . .
WHAT INFORMATION IS NEEDED AS PROOF OF YOUR CLAIM?
Your proof of claim, provided at your expense, must show:
— 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
(Policy 104324-001 at LTD-BEN-I, LTD-CLM-I (emphasis in original), A.R. at UPCL00486 UPCL00472.)
Third, Policy 6-334-504999 states:
Total Disability means that due to injury or sickness:
1. You are unable to perform the substantial and material duties of your occupation; and
2. You are under the care and attendance of a Physician.
Your occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled.
(Policy 6-334-504999 at 4, Compl. Ex. 3.)
Plaintiff's medical history, as found in the Administrative Record, begins with Plaintiff's evaluation at the Mayo Clinic in March 1998. The results of Plaintiff's examinations are set forth in clinical notes written by Plaintiff's supervising doctor, Donna L. Milavetz, M.D. ("Dr. Milavetz"). (Clinical Notes of 3/27/98, A.R. at UPCL00079-UPCL00050.) During his evaluation, Plaintiff was examined for multiple health problems, including irritable bowel syndrome and stress. (Id., A.R. at UPCL00071.) In her final notes, Dr. Milavetz stated:
Plaintiff has attached to his Brief in Support of Analysis of Administrative Record an affidavit from Gregory Kuldanek, M.D. dated August 30, 2002. (Kuldanek Aff., Br. Supp. Analysis Administrative R. Ex. 4.) This affidavit is not included in the Administrative Record, and it does not appear that it was submitted by Plaintiff to UNUM prior to UNUM's final decisions to deny Plaintiff's claims. The Court is prohibited from reviewing this material. Wilkins v. Baptist Health Care Sys., Inc., 150 F.3d 609, 615 (6th Cir. 1998). The same is true for the May 7, 2002, letter from Mark W. Hinshaw, M.D. ("Dr. Hinshaw"), to Plaintiff's counsel.
IMPRESSION/REPORT/PLAN:
#1 Irritable bowel syndrome
The patient underwent colonoscopy on 3/24/98 which showed one internal hemorrhoid, a hypertrophied anal papilla, and otherwise normal examination. He underwent irritable bowl class though GI nursing. He understands that stress can play a major component in his irritable bowl syndrome.
. . .
#7 Stress
Patient understands that his marital stress is playing a significant factor in his life and health. It is noticeable that on his six-hour ambulatory blood pressure that his blood pressure goes up consistently systolically above 150 while talking to his wife on the phone. Additionally, he attributes many of his bowl symptoms to difficulties with his wife. He has agreed that he should seek psychiatry consultation once he returns to Michigan with his wife. I will address a separate letter as a TO WHOM IT MAY CONCERN to help facilitate this.
(Id. (emphasis in original).)
Dr. Milavetz also wrote a letter on Plaintiff's behalf, addressed "TO WHOM IT MAY CONCERN," that stated:
[Plaintiff] has related to me a significant amount of stress in his life relating to both spending time in California two weeks at a time for his job, along with marital problems with his wife. He has gotten to the point where his wife has served him papers for a divorce. The amount of stress in [Plaintiff's] life is significantly impacting on his health care to the point of raising his blood pressure and inducing symptoms of irritable bowel syndrome. I have discussed with the patient the fact that he will need ongoing therapy, both individually and with his wife, to reduce the level of ambient stress in his life. I have recommended a psychiatric evaluation and consultation to help achieve this stress reduction.
(Letter from Dr. Milavetz to WHOM IT MAY CONCERN of 3/27/98, A.R. at UPCL00142.)
On April 14, 1998, Plaintiff began treatment with a psychiatrist, Dr. Hinshaw. (Narrative Statement at 1, A.R. at UPCL00007.) Dr. Hinshaw's notes of April 14, 1998, indicate that Plaintiff told Dr. Hinshaw that Plaintiff was seeking help for "marital problems." (Notes of 4/14/98, A.R. at UPCL00176.) Those notes also detail Plaintiff's description of his wife's personality, his history with his wife, the fact that his wife had filed papers for divorce but later withdrew them, and that his "[w]ife is obsessed with getting control of half of their assets." (Id., A.R. at UPCL00176-UPCLOO174.) The April 14, 1998, note makes almost no reference to stress caused by Plaintiff's job.
Plaintiff met with Dr. Hinshaw again on May 7, 1998. (Notes of 5/7/98, A.R. at UPCL00173.) The notes from that session also focus almost entirely on Plaintiff's relationship with his wife. (Id., A.R. at UPCL00173-UPCL00171.)
Plaintiff next received treatment from Dr. Hinshaw on June 8, 1998. (Notes of 6/8/98, A.R. at UPCL00170.) Plaintiff told Dr. Hinshaw that Plaintiff and his wife were working on ways to spend more time together and that their relationship was more important to Plaintiff than money. (Id.) Plaintiff also stated that his "dream" would be to sell the business and move to Colorado with his wife. (Id.)
On June 11, 1998, Plaintiff traveled to Florida to be with his critically ill father. (Notes of 6/11/98, A.R. at UPCL00167.) When Plaintiff met with Dr. Hinshaw on June 18, 1998, Plaintiff stated that his wife had called him fifteen times a day and that his wife is "pushing [him] to a point of making a decision" regarding the sale of the business. (Notes of 6/18/98, A.R. UPCL00166-UPCLOO165.) Plaintiff wondered: "If I sell the company, how am I going to feel about it?" and "Am I ready to retire at 54?" (Id., A.R. at UPCL001 65.) Additionally, Plaintiff stated that "[h]e sees [his wife] as being in need of control." (Id.)
Following the June 18, 1998, session, Plaintiff did not receive treatment from Dr. Hinshaw, or any other physician, until December 17, 1999. In the meantime, Plaintiff sold his business on August 27, 1999. Plaintiff quit his job the same day.
On December 17, 1999, Plaintiff and his wife met jointly with Dr. Hinshaw. (Notes of 12/17/99, A.R. at UPCL00161.) Plaintiff stated that "[h]e was happy with having gotten out of the business" and that "[r]ight now [he is] burned out." (Id.) Plaintiff also stated that he "doesn't need a high level, exec[utive] job." (Id.)
Plaintiff did not meet with Dr. Hinshaw again until March 10, 2000. (Notes of 3/10/00, A.R. at UPCL00157.) There is a reference to Plaintiff being "disabled," and Plaintiff reiterated that he was "burned out." (Id. at UPCL00156.)
Plaintiff received treatment from Dr. Hinshaw again on April 10, 2000. (Notes of 4/10/00, A.R. at UPCL00154.) Plaintiff provided a list of physical ailments from which he was suffering, including: chest pain, headache, irritable bowl, and gut problems. (Id., A.R. at UPCL00154-UPCL00153.) Plaintiff stated that these symptoms may have been "worse now than before." Id., UPCL00153.) He blamed the worsening of his symptoms on the fact that he was no longer focused on his business and had more time to consider his feelings and family relationships. (Id.) Plaintiff states that he was then fifty-six years old, and he had "less energy." (Id.) Dr. Hinshaw noted that "confrontations cause [Plaintiff] great stress," and said that a high stress job that involved confrontations would be detrimental to Plaintiff's health. (Id. A.R. at UPCL00151-UPCL0050.)
Plaintiff was last treated by Dr. Hinshaw on June 6, 2000. (Notes of 6/6/00, A.R. UPCL00149.) Shortly thereafter, Dr. Hinshaw wrote an undated Narrative Statement regarding Plaintiff. (Narrative Statement, A.R. at UPCL00007-UPCL00006.) In his Narrative Statement, Dr. Hinshaw stated that he diagnosed Plaintiff's mental and emotional states as "`Adjustment Disorder With Mixed Anxiety and Depressed Mood' (DSM-IV 309.28)" and Plaintiff was suffering from "`Stress-Related Physiological Responses Affecting Irritable Bowel Syndrome, Headache, Chest Pain, and Hypertension' (DSM IV 316.)" (Id. at 1.) He further opined that "[t]he requirements of [Plaintiff s] job were producing a great strain upon his marriage and making it difficult for the couple to deal effectively with the family situations they were facing." (Id.) Dr. Hinshaw also stated:
Despite the degree of stress he was experiencing and the toll it was taking on him and his marriage, [Plaintiff] had remained steadfast in carrying out his duties until the sale [of his business] had been completed. After leaving the CEO position and its stress, Mr. Parker experienced a significant decrease in irritability and improvement in mood; furthermore, his physical symptoms (of irritable bowel, headache, chest pain, and hypertension) were markably lessened. When thinking about his business opportunities, [Plaintiff] commented that "right now I'm burned out" and expressed reluctance to put himself back in a position in which stress would again produce both emotional and physical symptoms. I supported his caution in that regard. Furthermore, I expressed the opinion that he stayed on as CEO of Parker Systems (which he had no alternative but to do until the company was sold) longer than it was healthy for him to do. I agreed that were he to take on a new position with the same job description and duties that he had had in the CEO position with Parker Systems, it was highly likely that the previous emotional and physical problems would return. It is my opinion that were he to be in a CEO position at this time, there would be a deterioration in his emotional and physical conditions.
. . . Although he could be employed on a full time basis, the scope of such a job would need to be less stressful and the responsibilities attendant to it would need to be much more limited than was the case in his work as Chief Executive Officer of Parker Systems.
In regard to prognosis and treatment options, given the long-established pattern of [Plaintiff's] personality functioning, the outlook for basic change in [Plaintiff's] manner of handling stress and the impact of stress upon him is quite limited. Were [Plaintiff] to be of younger age (with more energy and more resiliency) and were he greatly motivated to make such a change, it would be possible to lay out a combination treatment/rehabilitation program with elements of regular psychotherapy (of at least weekly frequency), psychotropic medication (likely with both anti-anxiety and antidepressant actions), and a graduated escalation of responsibilities. Such a program of ambulatory care likely would need to be in place for a period of twelve to twenty four months, moving from more intensive to less intensive professional involvement over time.
Until sufficient progress has occurred in the type of treatment program outlined above, it is my opinion that [Plaintiff] should not return to his former level of executive management responsibilities.
(Id. at 2.)
In a letter to UNUM following his Narrative Statement, Dr. Hinshaw stated that Plaintiff
is not currently under treatment with me for his condition. . . . Although [Plaintiff] does not see a reason to pursue treatment at this time, his underlying vulnerabilities remain unchanged.
If at some time [Plaintiff] decides to take on the challenge of returning to work, I would be happy to develop a treatment plan for him. I have asked him to inform me of his status in December; in the meantime, I am available to him on as upon-needed basis.
(Letter from Dr. Hinshaw to Fitzsimmons of 8/30/00, A.R. at UPCL00166.)
While considering Plaintiff's claims for disability benefits, UNUM engaged a psychiatric consultant, Richard P. Harris, M.D. ("Dr. Harris"), to review Plaintiff's disability claim file. (File Review 9/29/00, A.R. at UPCL00176.) Dr. Harris issued his report on September 29, 2000, recommending that Plaintiff's claim be denied. (Id. at 3) ("In summary, there is no indication that the claimant is suffering from any psychiatric disorder of significant severity at the time that he went on disability.") Dr. Harris' medical opinion served as the basis for UNUM's denial of Plaintiff's claims under the Policies.
On October 3, 2000, UNUM denied Plaintiff's request for benefits under Policy 00104324-0001. (Letter from Waindle to Plaintiff of 10/3/00, A.R. at UPCL00173.) UNUM's denial letter stated:
The information provided by the Mayo Clinic and Dr. Hinshaw has been reviewed by our medical department. This review has determined that there is no objective medical information to support that you are precluded from performing the material and substantial duties of your occupation as a result of your condition.
. . .
There is minimal evidence to suggest that the business itself was source of stress and in the psychotherapy sessions with Dr. Hinshaw there is minimal reference to the business as a source of the problem. In the treatment notes for the year 2000 (March, April, and June), the focus on the business became more apparent, however, this shift in focus occurred after you had already been off of work for over six months.
You treated with Dr. Hinshaw in August 1998 but did not see him again until December 17, 1999. Your last day of work was August 27, 1999, the same day that your business was sold. There are no treatment records to demonstrate that you were experiencing any psychiatric disorder of significant severity either before or at the time that you went on disability. As well, there is no evidence from August 1999 to December 1999 that you were suffering from any significant psychiatric disturbance, as you did not seek further treatment until you had been off of work for four months. Our medical staff notes that it is significant that you were able to function as a CEO up until the time of the sale of your company without any notable physical or emotional distress. Evidence for the absence of significant stress is the fact that you were not under any kind of treatment for at least one year prior to selling the company.
. . .
Although Dr. Hinshaw makes note [in his letter to UNUM] of the fact that you would likely deteriorate should you return to a high level position, there is no clear indication that working in a high level position caused any deterioration in your functioning. Given that you initially treated with Dr. Hinshaw in April 1998 and discontinued treatment in August 1998, it appears that whatever distress you had been experiencing was adequately treated and no deterioration occurred.
The policy under which you are covered contains a provision regarding the care and treatment for disabling conditions. . . . Our records indicate that you have treated with Dr. Hinshaw on only four occasions since your last day of work (December 1999, March 2000, April 2000, June 2000). Dr. Hinshaw provided a letter dated August 30, 2000, stating that you are not continuing treatment at this time due to an improvement in your symptoms. You have also advised that you have not taken any prescription medications for your condition. Based on the infrequency of your treatment with Dr. Hinshaw and the absence of prescription medication to treat your condition, you do not satisfy the above Regular Care provision.
(Id.)
On October 30, 2000, UNUM denied Plaintiff's request for benefits under Policies 6PC-345085 and 6-334-504999. (Letter from Fitzsimmons to Plaintiff of 10/3 0/00, A.R. at UPCL00182.) UNUM's denial letter stated:
The findings from our clinical and management reviews are that your symptoms do not support a psychiatric disorder of such severity as to significantly limit functioning. Or clinical review finds that according to the information in our file your condition is not, nor has it ever reached a level that was severe enough to render you unable to perform the duties of your regular occupation. This is evidenced by the fact that you were able to continue working full time up until the date your business was sold and did not seek psychiatric care during this period. First and foremost, this finding prevents your being eligible for disability benefits.
It is therefore our finding that your not working since August 27, 1999 is not due to a disabling condition, but rather a choice that you made, while not under treatment, to sell your business. Thus, this choice represents a lifestyle decision rather than a disability.
(Id. (emphasis added).)
While it is evident in UNUM's denial letters that Plaintiff was advised of his right to appeal UNUM's denial of his benefit claims, it is unclear whether Plaintiff ever exercised his rights. However, since UNUM has not raised the issue of administrative exhaustion, the Court will proceed to address the case on the merits.
Standard of Review
A plan administrator's denial of benefits under an ERISA plan is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan."Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57 (1989): see also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998). The de novo standard of review applies to both the factual determinations and legal conclusions of the plan administrator.See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998).
Where the plan clearly confers discretion upon the administrator to determine eligibility or construe the plan's provisions, the determination is reviewed under the "arbitrary and capricious" standard.Wells v. United States Steel Carnegie Pension Fund. Inc., 950 F.2d 1244, 1248 (6th Cir. 1991). The arbitrary and capricious standard "`is the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.'" Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989) (citation omitted) (quoting Pokratz v. Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir. 1985)): see also Miller v. Metro. Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991) (noting that administrators' decisions "are not arbitrary and capricious if they are `rational in light of the plan's provisions'") (quoting Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1988)). In applying this standard, the Court must defer to the administrator's interpretation when the plan vests the administrator with discretion to interpret the plan; an administrator's determination will be overturned only upon a showing of internal inconsistency in the plan or bad faith. Davis, 887 F.2d at 695. While no particular language is necessary to vest the plan administrator with discretion to interpret the plan or make benefit determinations, the Sixth Circuit "has consistently required that a plan contain `a clear grant of discretion [to the administrator] to determine benefits or interpret the plan.'" Perez, 150 F.3d at 555 (quoting Wilf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1993) (italics and alteration in original)). I. Policy 6PC-345085
The "Time of Payment of Claim" portion of the "General Provisions" section of Policy 6PC-345085 states:
. . . Subject to due written proof of loss, all accrued indemnities for loss for which this policy provides periodic payment will be paid monthly and any balance remaining unpaid upon termination of liability will be paid immediately upon receipt of due written proof.
(Policy 6PC-345085 at 6, Compl. Ex. 1.) (emphasis added)
Since Policy 6PC-345085 makes payment of benefits expressly "subject to due written proof of loss," it vests UNUM with discretion to determine eligibility for benefits. The phrase "due proof is similar to other qualifying phrases, such as the requirement of providing "satisfactory" proof of loss, which the Sixth Circuit has found to vest discretion in the plan administrator. Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555-56 (6th Cir. 1998) (en banc) (citing cases which relied on the phrase "due proof as a grant of discretion). The specific phrase "due proof has also been found by other courts to vest discretion in the plan administrator. See, e.g., Peterson v. Caterpillar, Inc., 70 F.3d 503, 505 (7th Cir. 1995) (finding that discretion was granted where benefits were only payable upon "due proof of disability);Layman v. Cont'l Cas. Co., 1999 U.S. Dist. LEXIS 2802, at *17 (E.D. Mich. Feb. 2, 1999) (same); Caldwell v. Life Ins. Co. of N. Am., 959 F. Supp. 1361, 1365 (D. Kan. 1997) (same).
Accordingly, the phrase "due proof in Policy 6PC-345085 grants the plan administrator discretion both to interpret the terms of Policy 6PC-345085 and to determine eligibility for benefits under Policy 6PC-345085. Thus, under Firestone, the appropriate standard of review of Policy 6PC-345085 is the arbitrary and capricious standard. II. Policy 104324-001
The Certificate Section of Policy 104324-001 contains the following language relative to the plan administrator's discretion to determine eligibility for benefits and to interpret the terms of Policy 104324-001:
The policy is delivered in and is governed by the laws of the governing jurisdiction and to the extent applicable by the Employee Retirement Income Security Act of 1974 (ERISA) and any amendments. When making a benefit determination under the policy, UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy.
(Policy 104324-001, Certificate Section, A.R. at UPCL00491.) (emphasis added)
The language quoted above grants the plan administrator discretion both to interpret the terms of Policy 104324-001 and to determine eligibility for benefits under Policy 104324-001. Thus, under Firestone, the appropriate standard of review of Policy 104324-001 is the arbitrary and capricious standard. III. Policy 6-334-504999
The parties agree that Policy 6-334-504999 does not grant the plan administrator discretion to determine eligibility for benefits under Policy 104324-001. Accordingly, the appropriate standard of review of Policy 104324-001 is the de novo standard.
For the sake of clarity, and because it will not alter the result, the Court will review UNUM's denial of Plaintiff's benefit claims under all of the Policies using the de novo standard.
Discussion
Plaintiff contends that UNUM improperly denied his claim for benefits under the Policies because the medical evidence in the Administrative Record demonstrates that the effects of Plaintiff's stress rendered him disabled from his position as CEO of Parker Systems. Plaintiff also claims that the large gaps in Plaintiff's treatment by a physician do not undermine Plaintiff's claim because there were few treatment options available to Plaintiff due to his age and motivation level. The Court disagrees.
The medical evidence in the Administrative Record evinces that the root of Plaintiff's stress was his relationship with his wife, and his responsibilities as CEO of Parker Systems merely exacerbated those problems. The records from Plaintiff's examination at the Mayo Clinic and Dr. Hinshaw's notes on Plaintiff's treatment sessions from April 1998 through August 1998 indicate that the high stress levels that Plaintiff was experiencing were the result of the breakdown of his marriage. There is almost no mention of any stress directly caused by Plaintiff's job, other than the fact that he must spend two weeks per month in California away from his wife was hurting his marriage, prior to August 27, 1999, the date that Plaintiff sold his business and quit his job.
Plaintiff was not under the care of a physician from August 1998 through August 27, 1999. Thus, there is no medical evidence in the Administrative Record from which to determine that Plaintiff's alleged disability was the reason that he decided to stop working. Furthermore, Plaintiff has only sought treatment from Dr. Hinshaw on four occasions since his last day of work, Plaintiff is no longer treating with Dr. Hinshaw, and at no time during his treatment has Plaintiff been prescribed any medicine for his condition. While Dr. Hinshaw's Narrative Statement and letter indicate that Plaintiff may not be an ideal candidate for intensive therapy, Dr. Hinshaw does not completely discount that option and states that he is willing and able to treat Plaintiff in the future.
After a thorough review of the Administrative Record, the Court finds that Plaintiff has failed to show that his psychiatric disorder was of such severity as to significantly limit his functioning and preclude him from performing his job. Plaintiff realized that the pressures of his duties as CEO of Parker Systems were greatly interfering with his marriage and that only one of those two things could survive. Plaintiff elected to save his marriage by selling his business and quitting his job so that he could spend more time with his wife. Plaintiff could just as easily have elected to focus solely on his job to the detriment of his marriage. Plaintiff's choice appeared to be successful, as Plaintiff's wife withdrew the divorce papers she had filed and, according to the Administrative Record, they remain married. However, Plaintiff's choice — a lifestyle choice — does not render him disabled from his job, since there was no indication that Plaintiff could not have performed his duties as CEO of Parker Systems but for his problems with his wife. Plaintiff was thus ineligible for disability benefits under the Policies.
The Administrative Record also evinces large gaps in Plaintiff's medical treatment in addition to the fact that Plaintiff has elected not to continue his treatment with Dr. Hinshaw. Each of the Policies required Plaintiff to be continually under the regular care and attention of a physician during the claimed disability period. Plaintiff apparently chose not to continue treatment with Dr. Hinshaw for a period of nearly fifteen months (August 1998 to December 1999) at the very time that Plaintiff claims to have been so adversely affected by his psychological disorders that he had to quit his job. Furthermore, when Plaintiff elected to resume treatment with Dr. Hinshaw in December 1999, he only saw Dr. Hinshaw for approximately seven months (December 1999 to June 2000) before giving up on therapy again, even though Dr. Hinshaw states that he is still willing to treat Plaintiff. These gaps in treatment, and Plaintiff's apparent lack of interest in being treated, show that Plaintiff was not under the regular care and attention of a physician and thus not eligible for benefits under the Policies.
Accordingly, having conducted a de novo review of UNUM's decisions to deny Plaintiff's claims under the Policies, the Court finds UNUM's decisions to be supported by the medical evidence in the Administrative Record.
Conclusion
For the foregoing reasons, judgment will be entered in favor of UNUM.
An Order consistent with this Opinion with be entered.