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Perez v. Cozen & O'connor Group Long Term Disability Coverage

December 13, 2006

RENEE C. PEREZ, PLAINTIFF,
v.
COZEN & O'CONNOR GROUP LONG TERM DISABILITY COVERAGE, AN EMPLOYEE WELFARE BENEFIT PLAN UNDER ERISA, DEFENDANT.



The opinion of the court was delivered by: Dana M. Sabraw United States District Judge

MEMORANDUM OF DECISION AND ORDER

Plaintiff Renee Perez filed the Complaint in this case on March 4, 2005. The Complaint alleges (1) a claim for declaratory relief for benefits due, to enforce rights for benefits, and to clarify future rights to benefits under a long-term disability plan issued by The Prudential Insurance Company of America ("Prudential") to Plaintiff's former employer, Cozen & O'Connor, and (2) a claim for equitable relief. Plaintiff seeks (1) an award of disability benefits from May 31, 2002, to the present, including pre- and post-judgment interest, (2) reinstatement of her life insurance coverage, (3) an injunction preventing Prudential from altering its benefits plan, (4) a finding that Prudential's use of Dr. Amy Hopkins to perform medical record reviews reflects bias on the part of Prudential, and (5) attorneys' fees and costs. Defendant argues its decision to terminate Plaintiff's benefits was correct, and therefore, it is entitled to judgment.

The case came on regularly for a bench trial on December 4, 2006. Susan L. Horner appeared on behalf of Plaintiff, and A. Louis Dorny appeared on behalf of Defendant. Counsel raised several evidentiary, factual and legal issues in their pleadings and at oral argument, which the Court addresses below.

I. EVIDENTIARY ISSUES

The parties raised two evidentiary issues before and during the trial of this case. The first issue is whether the Court should consider evidence outside the Administrative Record. The second issue is whether the Court should decline to consider certain evidence in the Administrative Record. These issues are discussed in turn.

A. Evidence Outside the Administrative Record

This is not the first time the parties have raised the issue of whether this Court should consider evidence outside the Administrative Record in deciding this case. The parties first raised this issue in the briefing on Plaintiff's motion for summary judgment, with both parties offering extrinsic evidence. The Court declined to decide the issue at that time because it was unnecessary to resolve Plaintiff's motion. However, the Court indicated it would decide the issue when ruling on Defendant's motion for leave to expand the Administrative Record. Plaintiff was invited to file a similar motion, or a motion in limine, if she wished to offer her own extrinsic evidence.

After ruling on Plaintiff's motion for summary judgment, the Court issued its ruling on Defendant's motion to expand the record to include surveillance evidence of Plaintiff. In ruling on that motion, this Court stated:

In cases such as this, where the court is reviewing an administrator's decision to deny benefits under an ERISA plan, "the record that was before the administrator furnishes the primary basis for review." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999). In Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938 (9th Cir. 1995), the Ninth Circuit held "that new evidence may be considered under certain circumstances to enable the full exercise of informed and independent judgment." Id. at 943. However, the court emphasized "that a district court should not take additional evidence merely because someone at a later time comes up with new evidence that was not presented to the plan administrator." Id. at 944. A district court should exercise its discretion to allow additional evidence "only when such evidence is needed to conduct an adequate de novo review." McCoy v. Federal Ins. Co., 7 F.Supp.2d 1134, 1141 (E.D. Wash. 1998) (citing Mongeluzo, 46 F.3d at 943-44).

The Court found Defendant's proffered surveillance evidence was not necessary for its review, and therefore denied Defendant's motion.

Plaintiff did not file a motion for leave to expand the record, but she now seeks to admit three types of extrinsic evidence: (1) Plaintiff's recent medical records from Jorge Perez, M.D., (2) evidence concerning Dr. Hopkins' participation in other disability determinations, and (3) a recent declaration from Gerard P. Harney, a member of Cozen & O'Connor. None of this evidence, however, is necessary to the Court's de novo review. Accordingly, the Court declines to consider this, or any other evidence, outside of the Administrative Record.

B. Evidence in the Administrative Record

Next, Plaintiff objects to specific items of evidence contained in the Administrative Record. Specifically, Plaintiff objects to (1) the statements of the video surveillance operators, (2) the video surveillance itself, and (3) Dr. Hopkins' report. However, Plaintiff fails to provide any legal authority supporting her right to object to evidence in the Administrative Record, or the Court's authority to strike evidence in the Administrative Record. In the absence thereof, the Court overrules Plaintiff's objections to the evidence listed above. See Raithaus v. Unum Life Ins. Co. of Am., 335 F.Supp.2d 1098, 1120 (D. Hawaii 2004) (denying motion to strike evidence from the administrative record).

Based on these rulings, the Court has considered solely the evidence in the Administrative Record, and issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

II. FINDINGS OF FACT

1. Plaintiff Renee Perez("Plaintiff") is a thirty-six (36) year old woman. She is married, and has two children.

2. In January 1997, Plaintiff began working for the law firm Cozen & O'Connor as a law clerk. At the time, Plaintiff was a student at the University of San Diego School of Law.

3. Plaintiff graduated from law school in 1998, and began working as an associate attorney at Cozen & O'Connor in August of 1998. (Administrative Record ("AR") at 001489.)*fn1

4. As an employee of the firm, Plaintiff enrolled in a long term disability plan offered by Prudential. The Policy provides long term disability insurance in case of "Total Disability."

"Total Disability" exists when Prudential determines that all of these conditions are met:

(1) Due to Sickness or accidental injury, both of these are true:

(a) You are not able to perform, for wage or profit, the material and substantial duties of your occupation.

(b) After the Initial Duration of a period of Total Disability, you are not able to perform for wage or profit the material and substantial duties of any job for which you are reasonably fitted by your education, training or experience. The Initial Duration is shown in the Schedule of Benefits.

(2) You are not working at any job for wage or profit.

(3) You are under the regular care of a Doctor.

(Id. at 001057.)

5. On September 24, 1998, Plaintiff received pre-travel immunizations from the International Traveler's Clinic for a one-week mid-October 1998 hiking trip to high-altitude urban and rural Peru. (Id. at 000959-60.) While in Peru, Plaintiff developed a severe bout of gastroenteritis. (Id. at 000997.)

6. On October 6, 1998, Plaintiff was involved in a rear-end motor vehicle accident, her car having been hit from behind. (Id. at 000991.) Plaintiff presented to the urgent care center at Sharp Medical Center with complaints of pain and soreness in her neck and shoulders. (Id.)

7. In November of 1998, Plaintiff began assisting a partner with a trial in Orange County. (Id. at 001092.) During that trial, Plaintiff began experiencing symptoms of a head cold, but she continued with the trial and saw it to completion. (Id.)

8. On November 12, 1998, Plaintiff presented to the urgent care center at Sharp Medical Center complaining of headaches, exhaustion, congestion, fatigue and sore throat. (Id. at 000994.) She was examined and diagnosed with sinusitis, bronchitis and pharyngitis. (Id.)

9. One week later, she presented to her primary care physician, Frank Gilman, M.D. (Id. at 000995.) She reported a decrease in throat pain, but persistent headaches and fatigue. (Id.) Dr. Gilman's impression was Plaintiff had pharyngitis. (Id.) Lab tests were performed, and were positive for mononucleosis.

10. During this time, Plaintiff continued to work at Cozen & O'Connor, but on a reduced schedule. She stopped working altogether on January 21, 1999.

11. On January 22, 1999, Plaintiff returned to Dr. Gilman. (Id. at 000996.) She reported that she was still fatigued despite sleeping for twelve hours at night and taking a one to two hour nap during the day. (Id.) She also reported having a sore throat several times per week. (Id.) Dr. Gilman referred Plaintiff to Steven Gardner, M.D. for a consultation, and also prescribed Zoloft. (Id.)

12. Plaintiff reported to Dr. Gardner on January 27, 1999. (Id. at 000997-98.) At that time, Plaintiff reported continued exhaustion, headaches, sore throat and occasional swelling of her lymph nodes. (Id. at 000997.) He took Plaintiff's ...


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