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Harper v. UNUM Life Insurance Co. of America

December 17, 2008


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


This is an Employee Retirement Insurance Security Act ("ERISA"), 29 U.S.C. § 1001 et. seq., case that was removed from state court by Defendant UNUM Life Insurance Company of America ("Unum"). Plaintiff Mari Harper ("Harper") has filed an amended complaint that challenges the denial of disability benefits by Unum. In a previous motion, this Court determined that the proper standard of review is abuse of discretion. See Court's Docket Doc. No. 34. After listening to the arguments of the parties during a bench trial, and having reviewed the record and the parties' submissions, the Court concludes that Unum did not abuse its discretion in denying benefits to Harper. In support of this conclusion, the Court issues the following findings of fact and conclusions of law in accordance with Rule of Civil Procedure 52.


1. In May 2002, Plaintiff Mari Harper ("Harper") had been employed with Doctors Medical Center of Modesto (a Tenet Healthcare Corporation subsidiary) for over 26 years; her job title as of May 2002 was "Communications Manager." UACL 2, 4.

2. Tenet had created a group disability plan ("the Plan") for its eligible employees; the Plan was wholly insured by both short term disability ("STD") and long term disability ("LTD") insurance policies issued by Unum. See UACL 163-196; PUMF Nos. 5, 7; DRPFF Nos. 5-7; DFF No. 2.

3. The STD policy of the Plan provides in relevant part:


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 weekly earnings due to the same sickness or injury.

LIMITED means what you cannot or are unable to do. MATERIAL AND SUBSTANTIAL DUTIES means duties that: -are normally required for the performance of your regular occupation; and -cannot be reasonably omitted or modified, except that if you are required to work on average in excess of 40 hours per week, UNUM will consider you able to perform that work requirement if you are working or have the capacity to work 40 hours per week.


Group 1, Group 3 Unum will send you a payment each week up to the maximum period of payment. Your maximum period of payment is 120 days during a continuous period of disability.

MAXIMUM PERIOD OF PAYMENT means the longest period of time Unum will make payments to you for any one period of disability.


Your proof of claim, provided at your expense, must show: -that you are under the regular care of a physician; -the appropriate documentation of your weekly 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 physicians. ". . . WHEN WILL PAYMENTS STOP?

We will stop sending you payments and your claim will end on the earliest of the following: -- when you are able to work in your regular occupation on a part-time basis but you choose not to; -- the end of the maximum period of payment; -- the date you are no longer disabled under the terms of the plan, unless you are eligible to receive benefits under Unum's Rehabilitation and Return to Work Assistance program; -- the date you fail to cooperate or participate in Unum's

Rehabilitation and Return to Work Assistance program; -- the date you fail to submit proof of continuing disability; -- after 12 months of payments if you are considered to reside outside the United States or Canada. You will be considered to reside outside these countries when you have been outside the United States or Canada for a total period of 6 months or more during any 12 consecutive months or benefits; -- the date your disability earnings exceed the amount allowable under the plan . . ."


Your coverage under the policy or plan ends the earliest of: -- the date the policy or plan is cancelled; -- the date you no longer are in a eligible group -- the date your eligible group is no longer covered; -- the last day of the period for which you made any required contributions; or -- the last day you are in active employment except as provided under the covered leave of absence provision.

DFF No. 2; UACL 169-194.

4. Harper was born on October 5, 1949. UACL 3.

5. On May 26, 2002, Harper was involved in a rear impact auto accident ("the Accident"). UACL 59-74.

6. Harper's vehicle was lifted up in the collision and came to rest on the hood of the vehicle that had rear-ended her. UACL 73.

7. Harper was taken by ambulance to a hospital emergency room. PFF No. 11; UACL 63, 71.

8. At the emergency room, Harper was examined, underwent extensive testing, was treated and released for follow up care by her personal physician, Dr. Talminder Hundal who is a family medicine practitioner. See PFF Nos. 13-14; DFF Nos. 5-6.

9. As part of the testing and treatment at the emergency room, Harper underwent a CAT scan of her brain, which demonstrated normal noncontrast computed tomography and a right frontal scalp injury; Harper was not diagnosed with any type of concussion syndrome as a result of the CAT scan. See UACL 34.

9. Harper saw Dr. Hundal on May 29, 2002, where she complained of headaches, neck pain, low back pain with numbness and tingling, and left sided chest pain that was worse with deep breath and cough. PFF Nos. 15-16; UACL 31.

10. Harper continued to receive treatment from Dr. Hundal at all relevant times from May 29, 2002, forward. See PFF No. 18.

11. On August 30, 2002, Harper submitted a claim for STD benefits under the Plan as a result of injuries sustained in the Accident. See DFF No. 4; PFF No. 22.

12. On September 9, 2002, Unum sent a letter to Harper's attending physician, Dr. Hundal, that requested copies of all medical records in his possession dated May 1, 2002 to present, including consultations, reports, treatment notes, and test results; Unum received the records from Dr. Hundal on September 16, 2002. See UACL 17; DFF No. 9; PFF No. 23.

13. On September 24, 2002, Nurse Mary Palmer reviewed the medical records for Unum. DFF. No. 11; PFF No. 25.

14. After summarizing the medical records, Palmer explained inter alia that Harper sustained cervical and lumbar strain/sprain injury, chest contusion and multiple abrasions. Palmer noted that Dr. Hundal's records indicate ongoing tenderness, but it was unclear how this impacted Harper's functional capacity. Palmer suggested that Harper be called to explain why she could not return to work, her treatment, her symptoms and her return to work plan. Palmer also suggested that the specifics of plaintiff's occupation be determined and "would ask AP [attending physician] for specific R&Ls [restrictions and limitations] and RTW [return to work] plan." Palmer also suggested obtaining the "MVA (motor vehicle accident) report," the "ED (emergency department) report," and an "OA (occupational analysis?) so the specifics of her occupation are known." UACL 50.

15. On September 27, 2002, UNUM spoke to Harper who advised she could perform her normal activities of daily living, but that she has a hard time making the bed, can't sleep, and has a hard time with anything that involves reaching and bending. Harper also stated during the phone call that Dr. Hundal had not provided her with any restrictions and limitations as he wanted her "to do everything she can possibly do. . . or at least try." UACL 423.

16. Unum's notes of the September 27 telephone call also state that Harper "is a 'Communications Manager,' what exactly are the occupational duties?" UACL 423.

17. Unum provided Harper with an Attending Physician's Statement ("APS"), which was completed by Dr. Hundal and received by Unum on September 30, 2002. UACL 55, 411.

18. Under the "restrictions" section of the APS form, which parenthetically asked "What the patient should not do," Dr. Hundal responded, "Patient was/is advised to do anything she is able to do." Under the "limitations" section, which parenthetically asked "What the patient cannot do," Dr. Hundal responded, "limited arm [and] neck movement. Difficulty in retrieving objects from floor/ground. Unable to sit or lie without pain. Difficulty swallowing. Light headedness." Under the "prognosis for recovery" section, Dr. Hundal responded, "Physical therapy will improve arm and neck movement. Patient will see G.I. for difficulty in swallowing (dysphagia). Pain in side (bruise of lung/rib) will/should be healed with time." UACL 55.

19. Dr. Hundal also indicated that Harper would recover for purposes of her occupation and that employment could begin on October 17, 2002. UACL 55.

20. On October 9, 2002, plaintiff sent a letter to UNUM, which was received on October 14, 2002 and provided in part:

I currently have some limitations of movement of my neck, left shoulder, and left arm. I have great difficulty in reaching above my shoulders. I have great difficulty in retrieving objects from the floor/ground. I am unable to sit or lie without pain in my side. I can only sleep with medication, and then only two to three hours at a time before I must get up and walk. I am unable to take a normal or deep breath without pain. I have difficulty swallowing.

UACL No. 57.

21. Harper's October 9 letter does not mention that she was depressed, that she suffered from significant episodes of amnesia in which she lost full days of her life, or that she does not sleep for days at a time but then will sleep for 18 to 24 hours straight. UACL 57.

22. By letter dated October 21, 2002, Unum informed Harper that she had been approved for benefits through October 16, 2002, and that if she could not return to work on October 17, 2002, then additional information was required from her healthcare providers, i.e. current medical records, a list of things that she cannot and should not do and a medical explanation for the restrictions, a treatment and return to work plan, the results of particular tests if administered, and the results of physical therapy if attending. UACL 427-428.

23. On November 11, 2002, Dr. Hundal signed and faxed a "certificate of excuse" for Harper that reads in its entirety: "Please excuse this absence: 5-29-02 [to] 12-08-02." UACL 78.

25. On November 11, 2002, Dr. Hundal also submitted additional medical records (four pages) to Unum. See UACL 77-81.

26. Dr. Hundal's notes for October 2, 2002, indicate inter alia that Harper had unchanged left sided rib cage pain, her neck and low back pain was better with physical therapy, and that she had depression (apparently in light of symptoms of sadness, crying "a lot," low self-esteem, inability to relax, and inability to sleep well). Celexa for depression and Ambien for sleep were prescribed. UACL 81.

27. Dr. Hundal's notes for October 17, 2002, indicate that Harper's neck and back pain were much improved, but that the left side rib cage pain was unchanged and worse with coughing or sneezing. It appears that "PT" or physical therapy is to continue. It does not appear that Harper's ability to return to work was discussed or addressed at this visit, nor does it appear that Harper made complaints about depression or amnesia. UACL 79.

28. Dr. Hundal's notes from November 8, 2002 indicate: "Left sided chest wall secondary rib fracture pain increase with cough and deep breath . . . when lying down still cannot lie on left side. Neck low back pain decrease. No headache for two weeks still have numbness in arm. Depression better with celexa. Lost her job. . . . bilateral paravertebral muscle strain. . . . Depression." UACL 80.

29. Additionally, although not part of the records submitted to Unum on November 11, on November 13, 2002, Harper was examined by Dr. Elsakr for heartburn and swallowing difficulties, i.e. her GERD (gastroesophageal reflux disease). UACL 89-91.

30. On November 18, 2002, Nurse Palmer was asked whether the medical notes from October 17 and November 8, 2002, supported a finding of impairment beyond October 18, 2002. UACL 83.

31. On November 22, 2002, Nurse Palmer replied that she reviewed Harper's medical records, referenced her (Palmer's) prior review, noted that "updated medical includes" office visits for October 17 and November 8, noted the "Hall Pass" of November 11 from Dr. Hundal, and ultimately opined "Based on available medical, it seems [claimant] does continue to [complain of] pain, however, there is no clear indication that [claimant] has had a decrease in function, or is limited by her symptoms, and [the ...

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