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Barteau v. Prudential Insurance Co. of America

May 26, 2009

CARL BARTEAU, PLAINTIFF,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA AND LONG TERM DISABILITY COVERAGE FOR ALL EMPLOYEES LOCATED IN UNITED STATES OF DEVRY, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Ronald S. W. Lew Senior, U.S. District Court Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Carl Barteau filed a complaint against the Long Term Disability Coverage for All Employees Located in United States of DeVry, Inc. (the "Plan") and Prudential Insurance Company of America ("Prudential") alleging a failure to provide long term disability benefits in accordance with the Plan and the Employee Retirement Income Security Act of 1974. Prudential administers and insures the Plan. Both sides submitted their Opening Trial Briefs on March 17, 2009, and their Responsive Trial Briefs on April 1, 2009. Upon the filing of these briefs, on April 21, 2009, the Court conducted a bench trial and heard the arguments of both sides. The matter was taken under submission and the parties were Ordered to submit findings of fact and conclusions of lawby May 5, 2009. Having received, reviewed, and considered the evidence, both parties briefs,the parties arguments at trial, and the parties findings of fact and conclusions of law, the Court has reached its decision.

I. FINDINGS OF FACT*fn1

A. Mr. Barteau's Age, Education, Training and Experience

1. Mr. Barteau was just shy of his 60th birthday when Prudential terminated the disability benefits Mr. Barteau had been receiving for the prior four years. (592).

2. Prior to becoming disabled, Mr. Barteau had been an Assistant Professor of Mathematics at DeVry Institute of Technology for almost eight years. (179, 271-72).

3. Mr. Barteau was qualified to be a teacher based on his Post Graduate degree from the University of Vermont where his area of concentration was computer applications of mathematics. (542).

4. Mr. Barteau's education, training, and experienced focused on utilizing superior cognitive abilities, including the ability to read, write, and think clearly and logically. (272).

B. Mr. Barteau is Hospitalized and Short Term Disability Benefits Are Approved

5. Mr. Barteau suffered problems with his right eye since he was a child. (179). At that time he sustained an injury when a steel fragment became lodged in his eye. (179). At around age 20 he had cataract surgery in his right eye and regained fairly normal vision. (179). As time passed, Mr. Barteau's eye degenerated. (179).

6. In September of 2002, Mr. Barteau had surgery for glaucoma in his right eye. (179). He was told at that point that the glaucoma surgery had been complicated by a scratched cornea. (179). The result was that Mr. Barteau was instructed to wear a replaceable contact lens. (179). His physician reassured him that the eye would spontaneously heal. (179).

7. The contact lens Mr. Barteau was instructed to wear needed to be replaced every few days, a process that left Mr. Barteau in "excruciating pain." (179). Because the pain had reached a point that it was unbearable, Mr. Barteau sought alternative treatment through UCLA. (179).

8. Treatment at UCLA commenced on January 7, 2003, the date which proved to be Mr. Barteau's date of disability. (271).

9. On January 7, 2003 and January 10, 2003, to determine the cause of Mr. Barteau's pain, biopsies of his eye were taken from which cultures showed evidence of an eye fungus. (179). Two more biopsies followed, each growing fungus cultures. (179).

10. On January 17, 2003, Mr. Barteau was admitted to the hospital because there had been worsening of the inflammation in the anterior chamber of his eye. (179). During his hospitalization Mr. Barteau continued to experience eye pain. (179). This was "clearly a very serious eye infection with serious risk of loss of vision or loss of the eye entirely." (180).

11. Mr. Barteau's medical records continually noted the eye pain from which he suffered. Pain management medications were prescribed, including oxycontin, vicodin, and morphine injections. (177, 181, 216).

12. In a letter dated January 30, 2003, Dr. Anthony J. Aldave, ophthalmology, memorialized that Mr. Barteau remained hospitalized. (228). A surgical procedure had been performed to remove a large part of the infection from Mr. Barteau's right eye, however, he was to remain in the hospital for several more days and it was anticipated he would require frequent visitations after his discharge. (228).

13. In a letter dated February 14, 2003, Dr. Aldave documented that Mr. Barteau had been released from the hospital on February 4, 2003, but Mr. Barteau continued to be followed closely. (252). Mr. Barteau was experiencing significant discomfort associated with his eye infection which Dr. Aldave hoped was "finally under control." (252). Dr. Aldave documented the possibility that further surgery might be necessary. (252).

14. Further surgery was conducted on February 22, 2003 when Mr. Barteau elected to proceed with patch penetrating keratoplasty OD in an attempt to seal his globe. (255).

15. Following the February 22, 2003 surgery, Dr. Aldave opined that Mr. Barteau experienced a lack of useful vision in his right eye and disabling light sensitivity in both eyes. (259). Dr. Aldave estimated that Mr. Barteau would be able to return to work in July 2003. (259).

16. Mr. Barteau was an enrolled member of his employer's short and long term disability plans. On July 6, 2003, Mr. Barteau's claim for short term disability benefits was approved through the maximum period. (267).

C. Mr. Barteau's Attempt at Returning to Work is Unsuccessful and Prudential Determines Mr. Barteau is Totally Disabled

17. As Mr. Barteau's short term disability benefits were expiring, he attempted to create a lecture in an effort to return to work. (96). This proved difficult for Mr. Barteau as his vision became blurry and he could not handle the pain. (96).

18. On July 2, 2003, Mr. Barteau submitted a claim for long term disability ("LTD") benefits through Prudential. (281). Mr. Barteau claimed he was prevented from working due to "loss of vision right eye, eye strain to left eye, headaches, blurry vision." (281).

19. Dr. Dirk Ruffin, Mr. Barteau's general medical treatment provider, certified Mr. Barteau's disability on the basis of Mr. Barteau's difficulty with focus and headaches along with his right eye blindness. (284).

20. In a letter dated August 27, 2003, Prudential informed Mr. Barteau that Prudential had analyzed Mr. Barteau's medical records, found him to be totally disabled from his own job as a professor, and approved LTD benefits. (287-89).

D. Prudential Recommends Mr. Barteau Apply for Social Security Disability Benefits and Hires Him Professional Assistance to Advocate For His Disability

21. Prudential advised Mr. Barteau to apply for Social Security Disability benefits because Prudential "expect[ed] him to be (out of work) for an extended period." (97).

22. Mr. Barteau applied for Social Security Disability benefits and in a letter dated December 16, 2003, Mr. Barteau was denied Social Security Disability benefits. (299).

23. After Mr. Barteau advised Prudential that he had been denied Social Security Disability benefits, Prudential wrote to Mr. Barteau and informed him that "according to the information in our files," Prudential felt it was in his best interest to appeal the denial. (297). Prudential offered to make the services of Allsup Inc. Social Security Consultants ("Allsup") available to Mr. Barteau at "absolutely no cost to you, as Prudential will pay their entire fee." (297). Prudential was offering to pay for professionals to pursue benefits that were only available to Mr. Barteau if he was unable to work any work. (297).

24. If Mr. Barteau received Social Security Disability benefits, these benefits were a dollar for dollar offset to the benefits Prudential had to pay Mr. Barteau. (27, 297).

25. Mr. Barteau accepted Prudential's offer to hire Allsup to advocate for Mr. Barteau's disability. (398).

26. In February 2004, Allsup contacted Dr. Ruffin and asked him to complete a functional capacity assessment for Mr. Barteau. (398).

27. Allsup provided Dr. Ruffin with forms tailored to Mr. Barteau's disabling conditions. (399-401). These personalized forms included questions regarding Mr. Barteau's headaches, attention and concentration. (399).

28. On March 30, 2004, Prudential sought an update from Mr. Barteau on his condition. (98-99). Prudential was informed that Mr. Barteau had no vision in his right eye and his left eye vision was blurry. (99). Mr. Barteau had suffered permanent nerve damage and his vision would not get any better. (99). Further, Prudential was informed that Mr. Barteau was experiencing migraine headaches frequently. (99). These headaches came on when Mr. Barteau tried to read or when he tried to watch TV during the day. (99). Mr. Barteau took amitriptyline to treat the migraines. (99). Prudential was also informed that Mr. Barteau continued to try to maintain some level of usefulness and thus he helped his fiancé manage her rental properties. (99). There is no indication that Mr. Barteau was paid for any assistance he provided to his fiancé, nor did Prudential ask Mr. Barteau what help he was providing to his fiancé.

29. In April 2004, Dr. Ruffin completed the tailored forms Allsup had provided Dr. Ruffin and documented therein that Mr. Barteau experienced headaches "[a]ll day long if not taking Amitryptyline." (399). Mr. Barteau's headaches were "Severe," having the impact of precluding the attention and concentration required for even simple, unskilled work tasks. (399).

30. Dr. Ruffin also documented that Mr. Barteau's headaches and visual adjustments provided a "reasonable medical basis" for the fatigue Mr. Barteau suffered from. (361).This fatigue was disabling to the extent that it prevented Mr. Barteau from working full time at even a sedentary position. (361).

E. Prudential Continues To Investigate Mr. Barteau's Disability

31. Prudential followed up on Mr. Barteau's condition in August of 2004. (99). Prudential discovered that Mr. Barteau's condition remained the same -- including that he experienced very bad headaches for which he took pain medicine at night (which made him sleepy) and over the counter medicine during the day. (99).

32. In September of 2004, Prudential followed up on Mr. Barteau's condition. (100). Prudential learned that Mr. Barteau was still blind in his right eye and that his migraines caused blurry vision in his left eye. (100). These migraines were constant. (100). To lessen the pain, Mr. Barteau took Tylenol, Aleve and Motrin during the day and amitriptyline, a prescription medication, at night to sleep. (100). These conditions resulted in Mr. Barteau not being able to do much. (100). His driving was limited and watching TV and reading caused migraines. (100).

33. Also in September of 2004, Prudential reviewed Mr. Barteau's claim for disability benefits. (402). Prudential presumed that Mr. Barteau's right eye blindness alone "should not preclude (Mr. Barteau) from working." (402). Thus Prudential requested updated visual acuity notes from Dr. Aldave. (402).

34. Prudential received two reports. The first, from a November 14, 2003 office visit, documented that Mr. Barteau was experiencing headaches with eye pain. (410). Mr. Barteau was to return in one year. (410). The second, from a September 17, 2004 office visit, documented that Mr. Barteau was experiencing frequent headaches which increased with eye strain. (409). It was again recommended that Mr. Barteau return the following year. (409).

35. Prudential never again requested visual acuity notes from Dr. Aldave nor would Prudential ask Mr. Barteau for such information.

36. Prudential requested updated treatment notes from Dr. Ruffin. (418). Prudential received these records in November 2004. (431).

37. Having received this combination of records, Prudential determined that Mr. Barteau continued to be disabled under the terms of the Plan and thus disability benefits continued to be paid to Mr. Barteau. (440).

38. On December 27, 2004, Prudential wrote to Mr. Barteau and informed him that on July 5, 2005 the definition of disability would change from the own job definition to the any job definition. (440). Thus, for Mr. Barteau to receive disability benefits from Prudential on and beyond July 5, 2005, Mr. Barteau needed to be unable to perform, for wage or profit, the material and substantial duties of any job for which he was reasonably fitted by his education, training, or experience. (440). To determine if Mr. Barteau met this any job definition of disability, Prudential informed Mr. Barteau that it would conduct a "thorough evaluation to determine your eligibility for benefits to and beyond that date." (440).

39. As part of the any job review, Prudential received from Allsup another functional capacity evaluation completed by Dr. Ruffin. (457). On January 24, 2005, Dr. Ruffin again documented that Mr. Barteau suffered from severe headaches which precluded the attention and concentration required for even simple, unskilled work tasks. (457). Along with the disabling cognitive impact caused by Mr. Barteau's headaches, Dr. Ruffin documented that Mr. Barteau suffered from disabling fatigue. (460).

F. Mr. Barteau is Awarded Social Security Disability Benefits Due to His Inability to Work in Any Occupation

40. On February 18, 2005, Allsup contacted Prudential with an update on Mr. Barteau's Social Security Disability appeal. (483). Allsup represented that it had submitted a written brief to the Office of Hearing and Appeals and was waiting for a hearing date. (484).

41. On March 15, 2005, Allsup again contacted Prudential, this time informing Prudential that its efforts had been successful and Mr. Barteau had been awarded Social Security Disability benefits. (488). Mr. Barteau had been found to be disabled from any work. (488; 20 C.F.R. § 404.1520).

G. Prudential Determines Mr. Barteau is Disabled from Any Job

42. Having encouraged Mr. Barteau to pursue Social Security Disability benefits, Prudential did not indicate that it considered the Social Security Administration finding to be evidence of disability. Rather, Prudential continued, in its own words, to "conduct[] a thorough evaluation to determine Mr. Barteau's eligibility for benefits" under the any job definition of disability. (485).

43. On May 6, 2005, as part of this evaluation, Prudential referred Mr. Barteau's claim to a Vocational Rehabilitation Specialist, Douglas Palmer, MS, CRC, CDMS, for evaluation of Mr. Barteau's employment options. (505). This review took into consideration Mr. Barteau's education and training along with his headaches, right eye blindness, and blurred vision in his left eye. (505). Vocationally, Prudential determined that Mr. Barteau "continues to have medical complications that would impact his ability to work." (505). It was Prudential's conclusion that Mr. Barteau "would not be able to identify employment options without extensive vocational intervention." (505). Prudential never again had Mr. Barteau's ability to work examined by a vocational specialist of any type and Mr. Barteau never underwent extensive vocational intervention.

44. On May 11, 2005, Prudential contacted Mr. Barteau and inquired how he was doing. (104). Mr. Barteau expressed that he "is alive" but was still getting headaches. (104). These headaches were constant "due to nerve damage in his eye." (104). To treat this pain, during the day Mr. Barteau got by using Tylenol and at night he took amytriptaline. (104).

45. On June 2, 2005, Prudential wrote to Mr. Barteau to express the results of Prudential's through evaluation of his continued eligibility for benefits against the any job standard of disability. (517). Prudential stated:

We have completed our evaluation of your claim based on the definition of disability as stated above. We have determined that you meet the requirements for eligibility for benefits under this definition of disability.

We have determined that you are totally disabled as required. Benefits will continue provided you remain totally disabled.. (517).

Prudential's plan for the administration of Mr. Barteau's claim was to follow up for continued updates and to "check for progress." (519). If progress was noted, then Prudential would re-visit the possibility of Vocational Rehabilitation Counselor services. (519). The facts in the record show that Prudential recognized Mr. Barteau was disabled from any job and would remain disabled absent "progress" (519) or "extensive vocational intervention" (505). The claim file is devoid of evidence that either of these events occurred.

46. The permanent nature of Mr. Barteau's disability caused his claim to be referred to Prudential's "Mature Unit ...


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