JOHN MANOS, Senior District Judge
On December 22, 2003, Robyn L. Friley, Plaintiff, filed a complaint for ERISA violations against defendant Unum Life Insurance Company of America (hereinafter "UNUM") under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). Jurisdiction is appropriate pursuant to 28 U.S.C. § 1331. She alleges that UNUM's denial of her benefits under her Long-Term Disability Insurance Policy (hereinafter "LDI policy") was improper and seeks the court's review. She also seeks attorney fees and costs pursuant to 29 U.S.C. § 1132(g)(1).
UNUM was improperly identified in the complaint as UNUM Provident Corporation.
On October 14, 2004, Plaintiff filed a brief on the administrative record arguing that de novo review applies to the lawsuit. She argues that the Court should determine that she is totally disabled and order UNUM to make long-term disability payments as provided in her policy.
On November 11, 2004, UNUM filed a cross motion to confirm the administrative decision. It argues that the deferential "arbitrary and capricious" standard applies, and that its denial of benefits to Plaintiff should be upheld. UNUM asserts, however, that its denial of Plaintiff's claim for continued long-term disability benefits was proper even under a de novo standard of review.
On December 10, 2004, plaintiff filed her reply to UNUM's cross motion, reasserting that a de novo standard of review applies, but adding that even if the Court were to apply the deferential standard of review, UNUM's denial of benefits was arbitrary, capricious and should be reversed.
In reaching a decision, the Court has considered the arguments of each party. For the following reasons, the review of the administrative record will be conducted de novo, the Court finds that UNUM's denial of benefits was improper, and UNUM is ordered to make permanent long-term disability payments to Plaintiff.
I. Facts
Plaintiff Robyn Friley is a 42-year-old mother of three children who resides in Crestline, Ohio. From 1987 to 2001, she was employed as a store manager of a McDonald's restaurant in Crestline. (Admin. R. at 01246.) On August 8, 2000, she underwent open-heart surgery for a heart aneurysm, specifically, a thoracic arch and descending aortic dissection. (Admin. R. at 01242.) Following her surgery she returned to her position as McDonald's manager. (Admin. R. at 01246.)
On April 12, 2001, Plaintiff collapsed at work and was transported to Riverside Hospital in Columbus. On April 13 she underwent an aortic valve and proximal aortic replacement. (Admin. R. at 01242.) She remained hospitalized for approximately seven days and did not return to work thereafter. (Admin. R. at 01243.)
On or about November 8, 2001, Plaintiff submitted a claim for long-term disability benefits to UNUM under the LDI policy provided though her employer. Plaintiff's LDI policy states that:
"Disability" and "disabled" mean that because of injury or sickness:
1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education or experience. (Admin. R. at 00831.)
In Plaintiff's "Employee's Statement," dated October 3, 2001, she indicated to UNUM that she was unable to work beginning on April 13, 2001 because of "Hemolytic Anemia, Anerysm" (sic). (Admin. R. at 01244.)
In the "Physician's Statement" to UNUM dated October 1, 2001, Dr. Larry S. Leone, D.O., Plaintiff's treating physician from Galion, Ohio, listed "aortic stenosis, hemolytic anemia" as her primary diagnosis and "thoracic abdominal aortic aneurysm[,] connective tissue disorder probable Marfan's versus Ehler's-Danles," as secondary conditions contributing to the disability. (Admin. R. at 01242.) He wrote that her symptoms include "SOB [shortness of breath], tingling in arm, [and] a lot of back pain."(Admin. R. at 01242.) Dr. Leone indicated that Plaintiff "has full restrictions [and] . . . should not work, [that she] cannot perform physical activity for greater than 10 minute intervals, [and that] work and rest needs to be balanced completely." (Admin. R. at 01241.) He wrote that "the prognosis for full recovery is poor, [and that he does] not expect fundamental changes," in her medical condition. (Admin. R. at 01241.)
On October 19, 2001, Larry Monica, owner of the McDonald's restaurant where Plaintiff worked, completed and signed UNUM's "Job Analysis Form." According to Monica, Plaintiff was "in charge of complete operations" of the restaurant and supervision of 47 people as its store manager. He indicated that the position requires use of the following skills continuously: relation to others; written and verbal communication; reasoning, math and language; and the making of independent judgments. Monica indicated that Plaintiff's job requires continuous standing and walking. He also indicated that frequent pushing, pulling, and lifting/carrying of stock items ranging from 5 to 50 pounds is required, as is frequent reaching and lifting overhead. According to Monica, the job entails only occasional sitting, stooping, kneeling and crouching. (Admin R. at 01239.) He informed UNUM that the job cannot be performed by alternately sitting and standing, that the job cannot be modified to accommodate Plaintiff's disability either temporarily or permanently, and that it is not possible to offer the employee assistance in doing the job through the use of technology or personal assistance. (Admin. R. at 01238.)
Under Plaintiff's policy, UNUM is the claims administrator. The policy states that:
When the Company receives proof that an insured is totally disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of the disability if the insured gives to the Company proof of continued:
1. total disability; and
2. regular attendance of a physician.
The proof must be given upon request and at the insured's expense. (Admin. R. at 00828.)
On November 28, 2001, UNUM, in writing, requested that Plaintiff provide an update on her disability claim, indicating that it needs additional information to make a final benefit determination. UNUM stated that it contacted the physicians and hospitals she indicated on her Employee Statement to obtain this information and suggested that Plaintiff encourage her doctors to respond as soon as possible to expedite the claim. (Admin. R. at 00903.) UNUM informed her that they contacted the following doctors/hospitals for information: Dr. Kevin Hackshaw, M.D., Associate Professor of Internal Medicine Rheumatoligy/Allergy Sections at the Ohio State University, University Medical Center, who examined Plaintiff for possible Marfan's syndrome (Admin. R. at 00893)); Dr. Daniel R. Watson, M.D., who performed both of Plaintiff's surgeries (Admin. R. at 00880-00875); Dr. David R. Richards, D.O., F.A.C.C., the Mid Ohio Cardiology consultant who re-evaluated Plaintiff at his cardiac outpatient clinic (Admin. R. at 00888); the Galion Community Hospital, where her condition was first detected and where she reported for cardiac rehabilitation after her first surgery (Admin. R. at 008840-0883); Riverside Hospital, where both of her surgeries took place (Admin. R. at 00880-00875); Dr. Leone, who was faxed a request for medical and rehabilitation records, and office notes. (Admin. R. at 00901.)
On January 4, 2002, UNUM requested that a registered nurse, Sandra Tilley, conduct a medical review of Plaintiff's claim. The nurse did not personally examine Plaintiff, but only reviewed data provided by Plaintiff's doctors. (Admin. R. at 01217-01214.) She indicated that she examined the following: Records and hand written notes dated April 20, 2000 to November 15, 2001 from Dr. Larry Leone (Admin. R. at 01210-01194); an April 13, 2001 TEE; an April 15, 2001 CT Chest; an April 23, 2001 letter from Dr. Botti, a cardiologist, to Dr. Leone (Admin. R. at 00885); a January 10, 2001 discharge letter (Admin. R. at 00884) and Cardiac rehabilitation notes (Admin. R. at 00883-00882, 00535-00472); a May 16, 2001 letter from Dr. Hacksaw to Dr. Leone (Admin. R. at 00893-00892); a June 8, 2001 letter from Dr. Richards to Dr. Leone (Admin. R. at 00888-00887); Hospital Records from August of 2000 and April of 2001. Nurse Tilley concluded that the "Echocardiograms and surgical reports support the diagnosis of aortic valve disease. Surgical reports also clearly show aortic dissection repair. Lab reports support hemolytic anemia as evidenced by the low RBC [red blood cell] and HH records." (Admin. R. at O1214.). As to whether Dr. Leone's restrictions and limitations are supported by medical evidence, Tilley concluded that "there does seem to be a reported correlation between the occurrence of hemolysis and the amount of time she works," and that she would discuss this with UNUM's in-house cardiologist for a more conclusive determination. Id. A handwritten paragraph, also dated January 4, 2002 follows Tilley's typed report, and was written by Dr. Thomas Hashway, M.D. There is nothing to indicate what medical data of the Plaintiff, if any, Hashway reviewed prior to writing the paragraph. Hashway's statement is as follows:
The aortic dissection does involve a risk of either further dissection or aortic rupture. Therefore, RL's [restrictions and limitations] of no medium exertion, at least for two years are supported. The hemolysis is caused by the mechanical aortic valve. If heart rate is controlled with a beta blocker, the rate of hemolysis probably would not be as high with or without physical activities. In this setting, claimant appears capable of light exertional occupational activities. She should be treated (as she is) with a beta blocker. (Admin. R. at 01214-01213.)
On January 11, 2002, UNUM requested that Betty D. Morris, MS, CRC, a Vocational Rehabilitation Consultant perform a job analysis to determine if Plaintiff could return to her occupation as a Restaurant Manager for McDonald's Corporation. (Admin. R. at 00704-00703.) Under the reason for referral, the Occupational Analysis Report indicated that "According to the [UNUM] account manager, McDonald's employees have to be disabled from their occupation as performed at that particular site, not as it is performed in the national economy," to qualify for disability benefits. (Admin. R. at 00704.) Ms. Morris stated that:
the physical requirements of this position [as a fast food restaurant manager] would be classified at the Heavy exertional level, defined in the Dictionary of Occupational Titles (DOT) as " Lifting, Carrying, Pushing, Pulling 50-100 lbs. occasionally, 20-50 Lbs. frequently, 10-20 Lbs. constantly. (Admin. R. at 00073.)
Morris concluded that:
Ms. Friley's position as Restaurant Manager for McDonald's Corporation is performed at the Heavy exertional level. If she is capable of "of (sic) light exertional occupational activities," she would be unable to perform the duties and responsibilities of her occupation with her employer. (Admin. R. at 00703.)
On January 15, 2002, UNUM informed Plaintiff by letter that her request for disability benefits was approved and she received her first payment retroactively covering the period of disability from October 10, 2001 to January 9, 2002. The letter stated that UNUM will periodically send supplemental claim forms which she and her physician must complete and return. UNUM stated that her benefits would continue provided she satisfies all provisions in her policy and remains disabled as defined therein. (Admin. R. at 01234.) UNUM stated that it may require her to submit additional medical and/or vocational data. (Admin. R. at 01233.)
On June 11, 2002 UNUM wrote Plaintiff, stating that it is continuing its review of her disability claim and that it needs updated certification of her continued disability. UNUM requested that she complete a medical "Supplemental Statement" form with her attending physician, have her physician complete a "Functional Abilities" form together with a "Supplemental Statement," and that she update UNUM on her Social Security Disability status. (Admin. R. at 01293.)
On July 8, 2002, Plaintiff completed her "Supplemental Statement." (Admin. R. at 00253.) She indicated that she had last seen her treating physician on April 29, 2002 and that her present activities included "walking (slow pace) 3 minutes twice a day, reading, [and] sewing." (Admin. R. at 00254.)
On July 8, 2002, Dr. Leone completed an "Estimated Functional Abilities Form." He indicated that she can occasionally lift or carry one to ten pounds but never more. She can occasionally bend, kneel, crawl, climb stairs and reach above her shoulder, but may never push or pull any amount of weight. He wrote that she "can only have physical activity for 10 minute intervals with 10 minutes of rest. These have to be balanced consistently." (Admin. R at 00243.) He also added that she "will not have a functional change for the better in the future." (Admin. R at 00242.) Dr. Leone indicated that he based his evaluation of Plaintiff's estimated functional capacity on both her medical report and his clinical experience, but not measured capacity, such as exercise testing, pulmonary function testing, or a formal evaluation of physical capacity. (Admin. R. at 00243.) On the Supplemental Statement, he listed "aortic stenosis . . . [and] thoracic abdominal aortic aneurysm" as her diagnosis and "dark urine, stress, [and] chest discomfort radiating towards back," as her symptoms since the last report. (Admin. R. at 00241.) He reiterated his previous conclusions and wrote that "she has full restrictions — she should not work." (Admin. R at 00241.)
Plaintiff forwarded information on her Social Security Disability Benefit status to UNUM. This included a June 22, 2002 notice from the Social Security Administration informing her that she was not entitled to Social Security Disability Insurance Benefits based on her claim. (Admin. R. at 00240) She also sent evidence that an appeal of this decision was upheld. (Admin. R. at 00290.) UNUM reviewed Plaintiff's claim with the Social Security Administration as part of its evaluation of her status for benefits under the LDI policy. (Defendant's brief at 12.)
On September 19, 2002 one of UNUM's physicians, Dr. Costas Lambrew, M.D., F.A.C.C., conducted a medical review of Plaintiff's claim. (Admin. R. at 00239-00238.) Dr. Lambrew reviewed Nurse Tilley's medical review of January 4, 2002 (Admin. R. at 012170-1214), a Mid Ohio Cardiology note of January 18, 2001, Dr. Leone's notes of January 25, 2002, (Admin. R. at 00262) March 22, 2002, (Admin. R. at 00263) and April 29, 2002, (Admin. R. at 00264) CT scans of February 1, 2002, (Admin. R. at 00244) and Operative notes. Dr. Lambrew wrote that:
All the diagnoses are substantiated by the medical evidence. She will never fully recover, and is at risk of complications of the chronic dissection (renal insufficiency, ischemia of the lower extremities, should it extend in any way), and rupture. She also has residual aortic stenosis, as documented by Cardiologist 1/18/01, which could cause her to be limited symptomatically, and which, were it to progress, could require re-operation at very high risk. There are no signs of heart failure, and blood pressure is controlled. She complains of some dyspnea on exertion, and treadmill exercise has been prescribed. In January 2001, Cardiology note recorded that she was walking [the] length of a football field. [She] Is attempting to lose weight and is probably deconditioned. (Admin. R. at 00238.)
Though Dr. Lambrew agreed with Dr. Leone's diagnoses, he disagreed with Dr. Leone's restrictions and limitations, which he believed were not supported. Lambrew concluded that Plaintiff:
Will never fully recover and is at continued risk . . . [and that] her limitations are primarily related to anaerobic work — lifting, pushing, pulling. I would agree . . . that she is not capable of medium level work, but she could safely perform sedentary work and possibly light work given descriptions of current activity and symptoms. Of note, her reports of exercise tolerance seem to reflect arbitrary limits of 3 or 10 minutes placed by Dr. Leone which are in no way supported and would certainly not address her deconditioning. (Admin. R. at 00238.)
In a letter dated January 10, 2003, UNUM informed Plaintiff that they were beginning to evaluate her eligibility for benefits beyond 24 months, and that their review includes analysis of current medical and vocational data from her physician and other sources. (Admin. R. at 002300-0229.) UNUM requested that Plaintiff:
complete the enclosed supplemental statement questionnaire and return it in the envelope provided. Also, please have your treating physician complete and return their portion of this form. Please have your physician include copies of all diagnostic test results, office visit notes and hospital discharge summaries from October, 2002 to the present . . . Please send us any information to support your claim. (Admin. R. at 00230.)
On January 17, 2003, Plaintiff completed and signed another "Claimant's Supplemental Statement" form. (Admin. R. at 00228-00227.) Plaintiff indicated that she is unable to perform occupational duties because "if [her] stress level is kept minimal[, it] may keep [her] aneurysm from enlarging (keep from having open heart surgery)." (Admin. R. at 00228.) She listed sewing and reading as her present activities and stated that her family helps her a great deal when she is not feeling well. Id.
On March 21, 2003, Dr. Leone completed another "Estimated Functional Abilities" form. (Admin. R. at 00225-00224.) He answered identically to the July 8, 2002 form but added that:
deviation [from Plaintiff's restriction requiring 10 minutes of rest for every 10 minutes of activity] causes severe shortness of breath and fatigue. Patient needs to be `stress free' to avoid enlargement of the aneurism. (Admin. R. 00225).
There will be no future improvement for Robyn. Aortic Stenosis and Chronic Hemolytic Anemia are preventing improvement. She can prevent future problems by trying to remain stress free and following 10 minutes of activity by 10 minutes of rest. (Admin. R. at 00224.)
On April 8, 2003, Dr. Leone completed another "Attending Physician's Statement." (Admin. R. at 00226-00224.) As his objective findings since the last report, he stated the following:
CT of chest abdomen no change in aneurysm size; nontender 4 mm sized posterior cervical nodes; fingernail clubbing; heart RRR V/VI holosystic M, + click. (Admin. R. at 00226.)
Dr. Leone listed that symptoms since the previous report included shortness of breath when walking, for which he instructed her to cut back to a slower pace. He also listed depression and palpitations. He stated that Plaintiff should have a maximum of 10 minutes of activity followed by 10 minutes of rest consistently and that she cannot lift greater than 10 pounds.Id.
On June 16, 2003 another registered nurse, Dennis J. Caron, conducted a review of medical information, including Dr. Lambrew's September 19, 2002 review, Dr. Leone's office visit notes from February 5, 2003, and the "Attending Physician's Statement" of April 8, 2003 at UNUM's request. (Admin. R. at 01268.) A comment by Dr. Lambrew on June 18, 2003 follows the review and states:
I reviewed my previous review, and OV [office visit] notes from 9/3/02 through 3/28/03. No cardiovascular complaints offered at most of these visits. Exams normal. Short of breath with exertion, but restrictions by Dr. Leone are in no way supported. Able to walk without difficulty, with no complaints re: ADL [activities of daily living]. Claimant is capable of sustained sedentary or light work activity, as before. New evidence offers data that support stability. (Admin. R. 01268.)
On June 29, 2003, Genex, an affiliate of UNUM issued a Transferable Skills Analysis Report. (Admin. R. at 00145-00143.) It utilized an "Education and Employment History" form completed by Plaintiff for UNUM on May 28, 2003. (Admin. R. at 00147-00146.) While Genex was aware of the discrepancy between the restrictions and limitations recommended by Dr. Leone and Dr. Lambrew, it based its report on sedentary to light work capacity suggested by Dr. Lambrew. (Admin. R. at 00144.) Genex concluded, based on Plaintiff's employment history, education, and residual functional capacity as suggested by Dr. Lambrew, that she could work in any of the following "light" or "sedentary" occupations: sup solicitor (sedentary), information clerk (sedentary), receptionist (sedentary), and order clerk (sedentary). (Admin. R. at 00143.)
In a letter dated July 14, 2003, UNUM informed Plaintiff that she was no longer disabled as defined by the policy and that her request for continued disability benefits has been denied. (Admin. R. at 01260-01258.) UNUM stated:
A medical review completed by our on-site cardiologist in September 2002 indicated that restrictions and limitations listed by Dr. Leone were not supported. While you will never fully recover and are at continued risk, your limitations are primarily related to anaerobic work: lifting, pushing, and pulling. Our on-site physician felt at that time that you could perform sedentary work and possibly light work, given the descriptions of your activities and symptoms. (Admin. R. at 01260.)
. . . Based upon the medical information in your file along with the occupational analysis, you are no longer precluded from performing the material and substantial duties of your own occupation [as a fast food manager]. As such, you no longer meet the . . . definition of disability [under the policy] and no further benefits are payable. In addition, as of the time when your definition of disability changes [on October 10, 2003], you would not qualify for further benefits as you are not precluded from performing the material and substantial duties of alternate gainful occupations. (Admin. R. at 01259.)
UNUM's final payment to Plaintiff covered the period from July 10 to July 14, 2003.
On July 31, 2003, Plaintiff appealed the decision denying her benefits (Admin. R. at 00072.) Plaintiff wrote that:
Before this medical condition was apparent, I was a co-provider for financial support in my family, including myself[,] spouse, and three children. Our income ervisor, order takers (sedentary); sales representative, automotive leasing (light); telephone was dependent upon my salary. Since I have become unable to work, my family has become dependent upon the income received through the disability insurance. (Admin. R. 00072-00071.) . . .
Each day I am reminded how much physical exertion I can endure. Sitting in one position for more than 10 minutes causes severe pain in my back. Going up steps (as few as 10) causes my heart to race and I run out of breath, even if I am at a slow pace. I have had to develop strategies for dealing with the small stresses in my life to avoid additional problems. Furthermore, it would be difficult to find an employer who would provide me with the special needs that I have. (Admin. R. at 00071.)
Based upon statements from my physician, I know that if I go to work, I will reduce my life significantly. (Admin. R. at 00071.)
Plaintiff enclosed two letters with her appeal: the first, dated August 7, 2003, from Dr. Leone, (Admin. R. at 00074), and the second, dated July 21, 2003, from Larry Monica, Owner/Operator of the McDonald's restaurant where she was employed. (Admin. R. at 00073.)
Dr. Leone stated that "it is in [his] professional opinion that Mrs. Robyn Friley is totally disabled," and listed hemolytic anemia, thoracoabdominal aortic aneurysm and aortic stenosis among her multiple medical problems. (Admin. R. at 00074.) He explained that:
Mrs. Friley is unable to lift greater than 5 pounds. She has increased shortness of breath with activities of daily living which include dressing, showering, cooking cleaning, and walking. It is extremely important that Mrs. Friley have 10 minutes of rest after 10 minutes of any type of activity; this must be consistent due to her extreme shortness of breath. (Admin. R. at 00074.)
Mr. Monica stated that Plaintiff's position as store manager involves numerous functions that include running the floor, cooking, cleaning, and moving and lifting products weighing up to fifty pounds. He said that even work as a crew person who fills orders would require being on one's feet for a minimum of four hours. Monica stated that he has no positions that could be structured to meet the health needs of Plaintiff, which he understood required 10 minutes of rest for every 10 minutes of work. (Admin. R. at 00073.)
In a letter dated September 17, 2003, UNUM informed Plaintiff that its denial of her Long Term Disability benefits was appropriate. (Admin. R. at 00069-00067.) UNUM stated that Dr. Leone's August 7, 2003 letter provided no new evaluations to support his conclusions and that office treatment notes and objective findings don't support his conclusions. (Admin. R. at 00068.) They reiterated that the medical data was consistent with her ability to perform light work on a full time basis.
On October 9, 2003, Plaintiff responded to UNUM's previous letter, disagreeing with their decision to deny her appeal, asking them to reconsider, and inquiring as to whether she has exhausted all of its appellate avenues. (Admin. R. at 00065.)
UNUM responded on October 23, 2003, upholding their previous denial of benefits and advising her that she has exhausted all administrative remedies regarding her claim. (Admin. R. at 00064-00063.) The following day, Plaintiff filed suit. (Admin. R. at 00062.)
II. Standard of Review
An employee who is a participant in or beneficiary of an employee disability benefits plan may bring a civil action challenging a denial of payment "to recover benefits due to [her] under the terms of [her] plan." 29 U.S.C. § 1132(a)(1)(B). The United States Supreme Court has firmly held that "a denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard 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 and Rubber Co. V. Bruch, 489 U.S. 101, 115 (1989). The deferential "arbitrary and capricious" standard of review is, therefore, only appropriate when the plan administrator is not given such authority. See, e.g., Perry v. Simplicity Engineering, 900 F. 2d 963 (6th Cir. 1990). "Magic Words" such as "discretion" are not required to give the plan administrator discretionary authority and thereby trigger the arbitrary and capricious standard of review. Perez v. Aetna Life Ins. Co., 150 F.3d 550 (6th Cir. 1998) (en banc). A plan must, nonetheless, contain a clear grant of discretionary authority to the plan administrator for the arbitrary and capricious standard to apply. Id.
As the Sixth Circuit stated in Sparks v. UNUM Life Ins. Co., 2000 WL 1033003 at *3 (6th Cir. July 21, 2000), "unless a plan requires a showing of ` satisfactory proof,' or some other qualitative threshold of proof, our [Sixth Circuit] precedents provide that the plan does not provide the administrator with discretion."(Citations omitted.) "The critical requirement . . . is that the evidence of disability be satisfactory. A determination that evidence is satisfactory is a subjective judgment that requires a plan administrator to exercise his discretion." Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996). As this court explained inRagsdale v. UNUM Life Ins. Co., 999 F. Supp 1016, 1024 (N.D. Ohio 1998):
there is . . . a difference between the requirement that a plaintiff must submit `satisfactory proof' or `due proof' and the requirement that a plaintiff submit simply `proof.' The presence of the modifier could indicate that someone will be in a position to decide whether the proof submitted is, in fact, satisfactory or due. The absence of the modifier could indicate that `proof' will be determined according to objective, reasonable standards — would a reasonable person consider that the existence of a disability had been proved?
In Perez, 150, F.3d at 555, the Sixth Circuit, sitting en banc, found that the following plan language granted discretion to the plan administrator:
[Aetna] shall have the right to require as part of the proof of claim satisfactory evidence . . . that [the claimant] has furnished all required proofs for such benefits. (emphasis added).
The Perez court noted that in numerous cases, similar plan language was found to grant discretion to the plan administrator and thereby trigger the arbitrary and capricious standard. Id. at 555. All of the cases within the Sixth Circuit involved plans that required proof to be "satisfactory" for the arbitrary and capricious standard to apply. See e.g., Yeager, 88 F.3d 376 (Monthly benefit paid to claimant who "submits satisfactory proof of total disability" to the insurance company) (emphasis added); Miller v. Metroploitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir. 1991) (Employee deemed totally disabled "on the basis of medical evidence satisfactory to the Insurance Company.") (emphasis added); et al.
In the matter presently before the court, Plaintiff's policy requires only that she must submit "proof" of total disability:
When the Company receives proof that an insured is totally disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of the disability if the insured gives to the Company proof of continued:
1. total disability; and
2. regular attendance of a physician.
The proof must be given upon request and at the insured's expense. (Admin. R. at 00828.) (emphasis added.)
UNUM argues that the policy language confers sufficient discretionary authority upon it to trigger the arbitrary and capricious standard of review. They rely primarily on a case from the Northern District of Indiana, cited in Perez, which held that a grant of discretion can be implied from policy language that requires benefits to be paid "when the company receives proof that the individual is disabled due to sickness or injury."Bollenbacher v. Helena Chem. Co., 926 F. Supp. 781, 786 (N.D. Ind. 1996).
This Court finds UNUM's argument to be without merit.Bollenbacher is not consistent with the great weight of authority in the Sixth Circuit as well as this Court, requiring that policy language include satisfactory proof or some other qualitative threshold of proof. See e.g., Yeager, 88 F.3d 376; Sparks, 2000 WL 1033003; Ragsdale, 999 F. Supp 1016; In re: Johnny Hal Campbell v. Fortis Benefits In. Co., 116 F. Supp. 2d 937 (M.D. Tenn. 2000).
In the instant case, the LDI plan merely states that benefits will be paid "[w]hen the Company receives proof that an insured is totally disabled," and that "the proof must be given upon request and at the insured's expense." (Admin. R. 00828) (emphasis added). "The requirement that the insured submit written proof of loss, without more, does not contain `a clear grant of discretion . . . to determine benefits or interpret the plan.'" Hoover v. Provident Life and Accident Ins. Co., 290 F.3d 801, 808 (6th Cir. 2002) (quoting Perez, 150 F.3d at 557). The policy includes no requirement that the proof be satisfactory to UNUM nor any other language indicating that it has any discretion to determine the amount or nature of the proof that must be submitted before its obligation to pay benefits to the insured arises. "In the absence of such qualitative or subjective language, the plan does not confer discretion underFirestone." Sparks, 2000 WL 1033003 at *3. Accordingly, this Court will review the administrative decision of UNUM de novo.
III. De Novo Review of the Administrative RecordWhen conducting a de novo review, the court must take a fresh look at the administrative record, Wilkins v. Baptist Healthcare, 150 F. 3d 609 (6th Cir. 1998), to determine whether the decision of the plan administrator is correct.Hoover, 290 F.3d 801. "The administrator's decision is accorded no deference or presumption of correctness." Id. at 809. Furthermore, the court may only consider evidence available to the plan administrator at the time of its final decision when reviewing a denial of benefits under ERISA. Miller v. Metropolitan Life Insurance Co., 925 F. 2d 979 (6th Cir. 1991).
In the present case, Plaintiff is required to submit proof of her disability to UNUM. (Admin. R. at 00828.) Under the policy:
"Disability" and "disabled" mean that because of injury or sickness:
1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education or experience. (Admin. R. at 00831.)A. Disability During the First 24-month period under LDI Policy.
For the first twenty-four months, Plaintiff had to provide proof to UNUM that she could not perform the material duties of her occupation as McDonald's manager to collect benefits under the plan. The benefits paid to Plaintiff by UNUM covered a period beginning on October 10, 2001, (Admin. R. at 01234), and ending on July 14, 2003. (Admin. R. at 01260.) Thus, to collect benefits for the period between July 15, 2003 and October 9, 2003, Plaintiff need only show that she could not perform each of the material duties of her position as a fast food restaurant manager.
In UNUM's July 14, 2003 letter denying Plaintiff benefits, it stated that it felt she was "no longer precluded from performing the material and substantial duties of [her] own occupation." (Admin. R. at 01259.) This statement is in conflict with UNUM's own findings.
In the Occupational Analysis Report requested by UNUM in January of 2002, Vocational Rehabilitation Consultant Morris stated that:
the physical requirements of [Plaintiff's] position would be classified at the Heavy exertional level, defined in the Dictionary of Occupational Titles (DOT) as " Lifting, Carrying, Pushing, Pulling 50-100 lbs. occasionally, 20-50 Lbs. frequently, 10-20 Lbs. constantly. (Admin. R. at 00073.)
The findings of Ms. Morris are consistent with the information on Plaintiff's position provided by Larry Monica, Owner of the Crestline McDonald's, as evidenced in the "Job Analysis Form" he completed on October 19, 2001, (Admin R. at 01239-01238), and his letter dated July 21, 2003. (Admin R. at 00073.) UNUM's own physician, Dr. Lambrew, concluded that Plaintiff "is not capable of medium level work." (Admin. R. at 00238.) UNUM's vocational consultant correctly stated in her January 2002 report, therefore, that even if Plaintiff were able to perform light exertional work as suggested by UNUM's physicians, "she would be unable to perform the duties and responsibilities of her occupation with her employer," given that "Ms. Friley's position as Restaurant Manager for McDonald's Corporation is performed at the Heavy exertional level." (Admin. R. at 00703.) Despite this finding, UNUM denied Plaintiff benefits for this time period.
Because Plaintiff's occupation is properly classified at the "heavy" exertional level, and even UNUM's doctors have determined that she is unable to perform at only a "medium" exertional level, Plaintiff is, clearly, unable to perform each of the material duties of her regular occupation. As a result, the decision to deny Plaintiff benefits from July 15, 2003 to October 9, 2003 was erroneous, and the Court finds that Plaintiff is entitled to disability benefits for this period.
B. Disability After the First 24-month Period under the LDI Policy.
After October 9, 2003 the LDI policy requires Plaintiff to show that she "cannot perform each of the material duties of any gainful occupation for which [s]he is reasonably fitted by training education or experience." (Admin. R. at 00831.) UNUM asserts that Plaintiff is capable of performing light or sedentary work, and therefore, "would not qualify for further benefits as [she is] not precluded from performing the material and substantial duties of alternate gainful occupations." (Admin. R. at 01259.) This finding is also without merit under Plaintiff's LDI policy.
Both Plaintiff's and UNUM's physicians agree on Plaintiff's diagnoses. Plaintiff's physician, Dr. Leone, listed "aortic stenosis, hemolytic anemia" as her primary diagnosis and "thoracic abdominal aortic aneurysm[,] connective tissue disorder probable Marfan's versus Ehler's-Danles," as secondary conditions contributing to the disability. (Admin. R. at 01242.) UNUM's physician, Dr. Lambrew, wrote that " All the diagnoses are substantiated by the medical evidence. (Admin. R. at 00238.) (Emphasis added.) Dr. Leone stated that "the prognosis for full recovery is poor, [and that he does] not expect fundamental changes," in her medical condition. (Admin. R. at 01241.) UNUM's physician, Dr. Lambrew agreed with Leone, stating that "She will never fully recover, and is at risk of complications of the chronic dissection . . . and rupture." (Admin. R. at 00238.) Dr. Lambrew added that Plaintiff "also has residual aortic stenosis, as documented by [her] Cardiologist . . . which could cause her to be limited symptomatically, and which, were it to progress, could require re-operation at very high risk. (Admin. R. at 00238.) Both physicians agreed on these conclusions based on the same medical data Plaintiff submitted. This medical data along with the conclusions of both Plaintiff's and Defendant's physicians is more than sufficient to conclude that Plaintiff has a severe medical problem and is at risk for future problems if she overexerts herself.
The only point of disagreement between Plaintiff and UNUM's physicians pertains to the proper amount of exertion that Plaintiff is capable of based on its evaluation of the medical evidence. Plaintiff's physician has consistently maintained, based on the medical data in the record, that she requires ten minutes of rest for every ten minutes of activity (Admin. R. at 01241, 00225, 00074). Dr. Leone stated that it is his professional opinion that she is totally disabled and should not work. (Admin. R. at 01241, 00225, 00074.) After reviewing the medical data in the record and agreeing with Dr. Leone on all other points, Dr. Lambrew informed UNUM that Plaintiff "could safely perform sedentary work and possibly light work given descriptions of current activity and symptoms." (Admin. R. at 00238.) UNUM and its physicians assert that Dr. Leone's restrictions are unsupported by the medical evidence, yet they found sufficient evidence to establish that Plaintiff's diagnosis was accurate and suggest that she is incapable of "medium" exertional activities. (Admin. R. at 00238.) This inconsistency is nothing more than a difference in view between two physicians, one of whom has personally treated the Plaintiff throughout her illness and another who is employed by an insurance company. While Plaintiff's LDI policy includes a clause that allows UNUM "the right and opportunity to have an employee, whose injury or sickness is the basis of a claim, examined by a physician," at its own expense and as often as reasonably required, UNUM declined to exercise this right, and never personally examined the Plaintiff. (Admin. R. at 00814.) "This court . . . may . . . place little weight upon a conclusory opinion rendered by a non-examining physician who offers no medical evidence, or other justification while contradicting the medically supported conclusions of . . . treating physicians."Smith v. Aetna U.S. Healthcare, 312 F. Supp. 2d 942, 954 (S.D. Ohio 2004). This Court finds the restrictions and limitations imposed by Plaintiff's treating physician to be sound based on the medical data submitted to UNUM.
UNUM's physician asserted on June 18, 2003, (Admin. R. at 01268), and UNUM stated in its July 14, 2003 letter to Plaintiff that the "evidence on file offers data that support stability of [her] condition." (Admin. R. at 00141.) The fact that her medical condition has stabilized is not the same as a finding that it has improved; nor is it any indication that it will remain stabilized in the future without proper care. One can draw an inference that a stabilization of Plaintiff's condition has occurred, at least in part, because Plaintiff has not returned to work following her second surgery, unlike the first surgery, in which she returned to work and collapsed.
UNUM argues that Plaintiff did not submit sufficient medical proof that Dr. Leone's restrictions and limitations are warranted. In sum, Plaintiff's plan only requires that "proof" be submitted. (Admin. R. at 00831.) The plan does not indicate the type or amount of proof required. It does not even specifically state that medical proof is required. It does not require that the proof be satisfactory to UNUM nor that UNUM has any discretion at all to determine what proof or what amount of proof is sufficient. It only requires proof.
Plaintiff's physicians submitted numerous medical records indicating that she underwent two heart surgeries in less than six months and that she received treatment from several physicians because of her serious medical condition. She also received regular care from her treating physician, who consistently concluded based on numerous office visits with Plaintiff, her medical records, as well as his professional experience, that Plaintiff needs consistent rest, should not return to work, and is totally disabled.
The Court finds that Plaintiff submitted sufficient proof to UNUM that she is incapable of performing "each of the material duties of any gainful occupation for which she is reasonably fitted by training education or experience," under the terms of her LDI policy. (Admin. R. at 00831.) As a result, UNUM improperly denied Plaintiff the payment of permanent disability benefits as provided for in her LDI policy for the period after October 9, 2003. Thus, Plaintiff is also entitled to permanent disability benefits from October 10, 2003 forward.
IV. Attorney Fees
Plaintiff also requested an award of attorney fees and costs. In an ERISA action, "the Court in its discretion may allow a reasonable attorney's fee and costs of the action to either party." 29 U.S.C. 1132(g)(1). In determining whether to award attorney's fees and costs, the Sixth Circuit has adopted a five factor test in which it examines: "1) the degree of the opposing party's culpability or bad faith; 2) the opposing party's ability to satisfy an award of attorney's fees; 3) the deterrent effect of an award on other persons under similar circumstances; 4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and 5) the relative merits of the parties' positions."Hoover v. Provident Life and Acc. Ins. Co., 290 F.3d 801, 809 (6th Cir. 2002) (quoting King, 775 F.2d at 669). The factors are flexible, and need not be parsed as though they were statutory. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 937 (6th Cir. 1996). However, the Sixth Circuit does require the Court to "consider each factor before exercising its discretion." Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir. 1998).
In order for this Court to consider awarding attorney fees and costs, Plaintiff hereby has ten (10) days to submit a brief on this issue. Defendant will have ten (10) days to file its opposition.
V. Conclusion
For the all of the foregoing reasons, the Court finds that Plaintiff is entitled to permanent long-term disability benefits under the terms of the Long Term Disability Insurance policy with UNUM. The decision of UNUM in denying her these disability benefits is vacated, and UNUM is ordered to make permanent long-term disability benefit payments to Plaintiff for the period beginning July 15, 2003 and continuing forward. The Court will rule on the issue of attorney fees and costs after it has been briefed.
IT IS SO ORDERED.
Comments