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Wessman v. Provident Life and Accident Insurance Co.

March 26, 2009


The opinion of the court was delivered by: S. James Otero United States District Judge


The instant case arises under the Employee Retirement Income Security Act of 1974 ("ERISA"). The Court found this matter suitable for disposition without oral argument and vacated the trial date set for February 3, 2009. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999). For the following reasons, the Court enters judgment in Defendants' favor.


Plaintiff Barbara Wessman worked for 12 years as a Claims Administrator for PacifiCare Health Systems Incorporated ("PacifiCare"), until she ceased work in November 2001 due to injuries to her arms, knees, back and right shoulder. (Administrative Record ("AR") 359, 726.)

While Wessman worked at PacifiCare, she participated in the PacifiCare Employee Benefit Plan (the "Plan"). (AR 4098-4154.) Under the Long Term Disability ("LTD") portion of the Plan, Wessman could obtain total disability benefits equal to 60% of her salary, up to a maximum of $2500, after the 180-day elimination period and until age 65. (AR 4104, 4111-4114.) The Plan provides LTD benefits to employees who are totally disabled. The Plan defines one as totally disabled during the first 24 months they receive benefits if they: "(1) are unable to perform the important duties of their own occupation because of an injury or sickness; (2) are not engaged in any other gainful occupation; and (3) are receiving a physician's care." (AR 4104, 4109.) "Important Duties" are defined as "substantial and material duties normally required in the performance of the Covered Person's Own Occupation or any other occupation for which he or she is or may become suited by education, training, or experience." (AR 4109.) "Own Occupation" is defined as "the occupation you are routinely performing immediately prior to the date of disability." (AR 4109.) After 24 months, the Plan defines one as totally disabled if they: "(1) are unable to work at all in any gainful occupation for which they are or may become suited by education, training or experience; and (2) are receiving a physician's care." (AR 4109.) The Plan provides that Provident Life and Accident Insurance Company ("Provident"), the insurer and Plan administrator, has "full, exclusive and discretionary authority" to carry out all actions involving claims procedures, to grant and/or deny benefits, and to construe all issues of eligibility. (AR 4123.)

In October 2001, Wessman suffered a back injury, and she ceased work in November 2001. (AR 130.) Wessman began treatment with Dr. Jay Vogel, an orthopedic surgeon, who noted a number of orthopedic problems including acute musculoligamentous injury (strain) to her cervical and thoracic spine, medial epicondylitis (commonly known as "golfer's elbow") in both her elbows, lateral epicondylitis (commonly known as "tennis elbow") in her left elbow, chondromalacia (also known as "runner's knee") in both her knee caps, a lateral meniscus tear in her left knee, and possible lumbar disc syndrome. (AR 80, 108, 113, 138.)*fn1 Wessman also saw Dr. Edward Komberg for physical therapy treatments. (AR 92-98, 728.) In May 2002, Wessman applied for and received short-term disability ("STD") benefits from Provident.

After Wessman's STD benefits expired in May 2002, Provident conducted a medical and vocational assessment to determine whether she was eligible for long-term disability ("LTD") benefits. (AR 122, 1749.) Vogel certified to Provident, as he had in her STD benefits claim, that Wessman was temporarily totally disabled for one month, listing the same diagnoses as in her STD claim. (AR 87.) For Provident's medical review of Wessman's LTD claim, Kathryn Gregory, a nurse in Provident's certified rehabilitation specialist department, reviewed Wessman's claim and reported that "[Wessman]'s prognosis appears to be poor due to multiple joint involvement and the failure to improve with conservative care." (AR 83-86.) She referred the claim for an orthopedic review, which was conducted by Dr. Lance Matheny, an orthopedic surgeon, in June 2002. (AR 81.) He concluded that based on Wessman's spinal, shoulder and knee injuries, "[g]eneral restrictions and limitations would include repetitive bending or twisting, extreme or unusual positioning, more than light lifting, and frequent changes of position"; "highly repetitive activities, especially those requiring repetitive pronation/supination and prolonged or strenuous grip activities"; and "prolonged standing or walking, as well as squatting, crawling, kneeling and ladder climbing." (AR 81.) Matheny went on to state that "[h]ow these restrictions and limitations might relate to work would be an issue for vocational rehabilitation to assess. From an orthopedic standpoint, the assessment of total impairment appears overly restrictive in relation to the clinical information reviewed." (AR 81.)

For Provident's vocational review of Wessman's LTD claim, Wessman's supervisor, Elva Alvarado, filled out a "Job Analysis" of Wessman's position, listing her job requirements as follows. In an eight hour workday, Wessman's position required sitting and typing six hours per day, 2.5 hours at a time; using the phone for three hours per day, 30 minutes at a time; standing for one hour per day, 15 minutes at a time; walking for one hour per day, 15 minutes at a time; and repetitive hand motions and grasping six times per hour. (AR 71-72.) Her position also required lifting client files, frequently for files that weigh one pound, and occasionally for files that weigh five to 30 pounds, as well as carrying one to five pound files a distance of three feet, one time per day. (AR 71.) In addition to Alvarado's statement about lifting requirements, Wessman's LTD claim file included Vogel's records stating that Wessman injured herself at work when she was required to lift and unpack approximately 20 boxes over a period of two days. (AR 130.) According to a co-worker, these boxes weighed an average of 10 to 15 pounds. (AR 891.) Wessman's job did not require reaching, twisting, squatting, kneeling, crawling, bending, stooping, pushing, pulling, or climbing. (AR 71-72.)

Next, Provident's Chris Nunley performed a "Vocational Rehabilitation Initial Review" of Matheny's restrictions and limitations as compared to Alvarado's Job Analysis. (AR 68.) To assess the lifting requirement, Nunley spoke with Alvarado, who explained that as part of her job, Wessman had to retrieve three-inch binders or files approximately once per day and "estimated that they would weigh 30 pounds." (AR 67.) Alvarado also told her that "Wessman was not required to be seated and she could change positions as needed, however, she did work at the computer for the majority of the time." (AR 67.) Nunley's review concluded that "the only job requirement outside of the insured's restrictions and limitations appears to be lifting of 30 pounds occasionally." (AR 68.) She further stated that "based upon the information in the file and the employer contact it would appear that Ms. Wessman would be capable of performing her job as an Administrator given the restrictions and limitations provided by Dr. Matheny." (AR 67.)

Once Nunley reached this conclusion, Matheny called Vogel to determine "[w]hat specifically would prevent [Wessman] from returning to sedentary work?" (AR 63.) After three unsuccessful attempts to contact Vogel (AR 63-64), Provident deemed its review of Wessman's LTD claim complete (AR 61), and denied Wessman's claim. (AR 57.) In the denial letter, Provident explained that it compared "the restrictions that are supported by the medical information in our file to the physical requirements of your job," and concluded that Wessman could perform the "Important Duties" of her "Own Occupation." (AR 57-58.) ) The letter stated the lifting requirements of Wessman's job as "lifting 1 lb. frequently, 5 lbs. occasionally," but did not mention lifting 30 pounds. (AR 57.) The letter stated that Provident reviewed Vogel's records but Dr. Komberg's records "were totally illegible and we were unable to decipher them." (AR 58.) Provident further stated that "Dr. Vogel indicated that you were totally disabled from any work at all," and that "[o]ur physicians made several attempts to contact Dr. Vogel to discuss what specifically would prevent you from performing sedentary work. To date, our physician has not received a call back." (AR 58.) Lastly, the letter informed Wessman that if she appealed, "[i]n the case of a claim denied on the grounds of a medical judgment, we will consult with a health professional with appropriate training and experience." (AR 59.)

After Wessman received the denial letter, she contacted Provident multiple times to find out what they needed from her or her doctors. (AR 52-53, 55.) She also had Vogel's nurse call Provident to find out what was needed. Provident responded:

I am not aware of what information we don't have. Ms. Wessman would need to request specific information from you in order to submit with her appeal. . . . The question that we would like to clarify is "What specifically would prevent Ms. Wessman from returning to a sedentary occupation?" The information that we currently have does not support her inability to work in her sedentary job. . . . Please request Dr. Vogel elaborate on this question. (AR 51.) Wessman then sent her appeal to Provident, in which she stated:

My physicians, Dr. Komberg and Dr. Vogel, have sent you information to certify my disability. They have submitted my M.R.I. reports showing injuries to my Lumbar Spine, Rt Shoulder and left knee. I am unable to work do [sic] to my medical condition. . . . When I spoke to you, you said that your medical director, Dr. Thomas, needed additional information. I spoke to my doctors and they said they would provide any additional information that your company needs to substantiate my medical disability. Please request the additional information from Dr. Komberg and Dr. Vogel in writing. (AR 45-46.) Provident responded that "[i]f additional information is needed, it will be requested and you will be notified of the request in writing. You will be given a reasonable period of time, at least 45 days, to provide this information to us." (AR 44.)

Provident then referred Wessman's appeal to David Frank, a Provident employee and physical therapist, for review. (AR 39.) Frank indicated there were no unavailable records of treatment, evaluation or assessment, that if obtained would provide him with a better understanding of Wessman's status. (AR 42.) Frank concluded that the information in Wessman's file "would appear to support . . . some restriction in repetitive cervical and trunk motions, some lifting restrictions and the need for postural changes on a frequent basis"; "restrictions of repetitive forearm activity"; and "restrictions of prolonged standing and walking with limited stair climbing, squatting and kneeling." (AR 42.) Frank noted that the "restrictions would appear to be ongoing due to degenerative changes," and forwarded the file for "a new orthopedic physician review" to determine whether "the clinical data reference any unavailable records of treatment, ...

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