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Herceg v. Hartford Life & Accident Insurance Co.

September 8, 2009


The opinion of the court was delivered by: Percy Anderson United States District Judge


This is an Employee Retirement Income Security Act ("ERISA") action for recovery of long-term disability benefits. Plaintiff Carol Herceg ("Plaintiff") seeks benefits under a group insurance policy issued to Computer Sciences Corporation ("CSC") by Hartford Life and Accident Insurance Company ("Hartford"). On September 8, 2009, following the filing of the Administrative Record and briefing by the parties, the Court, sitting without a jury, conducted a bench trial. Having considered the materials submitted by the parties and reviewed the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a):

I. Factual and Procedural Background

Plaintiff, who is now 60 years old, was employed by CSC for eleven years as a senior finance manager. As a CSC employee, Plaintiff had purchased short term disability ("STD") and long term disability ("LTD") coverage through Hartford. The STD policy featured a 30 day elimination period and the LTD policy had a 180 day elimination period. (Administrative Record ("AR") 96.) The STD policy provides a weekly benefit of 60% of pre-disability earnings for a maximum of 26 weeks. (AR 105.) The STD policy defines "Total Disability" and "Totally Disabled" as meaning "that you are prevented by: 1. accidental bodily injury; 2. sickness; 3. Mental Illness; 4. Substance Abuse; or 5. pregnancy, from performing the essential duties of your occupation, and as a result, you are earning less than 20% of your pre-disability Weekly Earnings." (AR 115.) The STD policy states that Hartford has "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy." (AR 113.)

Plaintiff was first treated for back pain by Dr. Curtis Spencer, an orthopedic surgeon, in 1997. (AR 98.) In October 2007, Plaintiff returned to Dr. Spencer with complaints of chronic lower back pain and intermittent pain in her left leg. (AR 87.) An x-ray revealed multilevel degenerative disc disease. (AR 87.) Dr. Spencer prescribed anti-inflammatory medication and recommended that Plaintiff begin physical therapy. (AR 87.) Dr. Spencer also ordered an MRI that revealed discogenic disease between the L5 and S1 vertebrae with mild bilateral foraminal stenosis and mild to moderate central canal stenosis in the L3 to L5 region. (AR 84-85.)

Plaintiff saw Dr. Spencer again on December 5, 2007. At that time, Plaintiff was suffering a moderate amount of pain. (AR 87.) Dr. Spencer believed that Plaintiff would be a candidate for injection therapy, but first decided to "hold her out of work for a couple of weeks" to see if her condition improved. (AR 87.) Plaintiff took a medical leave beginning on January 18, 2008. (AR 96.) Plaintiff next saw Dr. Spencer on February 6, 2008. Following that visit, Dr. Spencer reported that Plaintiff experienced "some relief with being off work" but that she was "really having a difficult time doing any significant sitting." (AR 86.) Dr. Spencer concluded that he did not "believe this is something she is going to be able to function with. I am going to continue to hold her off work and re-evaluate her in a month's time." (AR 86.) At Plaintiff's March 6, 2008 appointment with Dr. Spencer, Plaintiff reported that she had improved "a little bit" since being off work, but did not think she would be able "to continue with the kind of work that she does." (AR 86.) Dr. Spencer opined that he thought "this is not unreasonable with her degenerative condition and she should probably find a job more in a consulting position where she has the ability to move around freely." (AR 86.)

Plaintiff filed a claim for STD benefits with Hartford on April 8, 2008. (AR 96.) On the attending physician's statement submitted with Plaintiff's claim, Dr. Spencer stated that Plaintiff was "unable to sit for prolonged time, needs ability to move around freely." (AR 98.) Dr. Spencer expected that Plaintiff would be able to return to work in two months, but was not sure if she would be able to resume her full duties when she returned. (AR 96.) In processing Plaintiff's claim, Hartford sent a letter to Dr. Spencer on April 10, 2008 asking him to forward his office notes from January 18, 2008 to the present and all tests or studies. (AR 93.) Hartford also asked Dr. Spencer to verify what had changed in Plaintiff's condition that she could not work as of January 18, 2008, what specific limitations prevented Plaintiff from working, and to describe her current treatment plan. (AR 93.)

Hartford received Dr. Spencer's response to its inquiries on April 14, 2008. (AR 15, 89.) Specifically, Dr. Spencer stated that Plaintiff was first treated in 1997 and returned in October 2007 for chronic low back pain that had become "more frequent and consistent." (AR 89.) Dr. Spencer explained that Plaintiff "has difficult time doing any significant sitting--no prolonged sitting, needs ability to move around freely." (AR 89.) Dr. Spencer notified Hartford that he had prescribed medication and "physical therapy for truncal stabilization." (AR 89.) Because Hartford had only asked for his office notes beginning on January 18, 2008, Dr. Spencer forwarded copies of his February 6, 2008 and March 6, 2008 office notes. (AR 89-91.) Hartford then determined that it needed additional information and telephoned Dr. Spencer's office requesting his complete office notes and Plaintiff's imaging studies. (AR 14-15.) On April 17, 2008, Hartford notified Plaintiff of its need for this additional information and explained that it would close the claim if Dr. Spencer did not respond by April 30, 2008. (AR 14.)

The medical information provided by Dr. Spencer was reviewed by Hartford, first by a claims analyst and then a registered nurse. (AR 13-14.) The claims analyst incorrectly noted that Plaintiff's "[f]unctional impairment unclear as [claimant] worked with condition since [diagnosis] of 10/07." (AR 13.) This was incorrect because Plaintiff stopped working on January 18, 2008. The nurse who reviewed the file erred when she commented that Plaintiff "stopped working on 1/17/08, however, was not seen by [the attending physician] until 2/6/08." (AR 13.) In fact, Dr. Spencer had seen Plaintiff in October and December of 2007, and during the December 2007 visit, had recommended that Plaintiff take time off from work. Therefore, to the extent Hartford believed that Plaintiff had stopped work before consulting with Dr. Spencer, an argument repeated in Hartford's Reply Trial Brief,*fn1 Hartford was and is mistaken.

The nurse opined that a physical demands analysis ("PDA") would be beneficial. (AR 13.) CSC returned the completed PDA to Hartford on April 30, 2008. (AR 77.) However, on April 29, 2008, prior to receiving the PDA, Hartford's claims examiner had already recommended that Plaintiff's claim be denied. (AR 12.) Once it arrived, the PDA disclosed that Plaintiff's job required her to sit for three hours at a time and that it was typical for her to sit for seven hours a day. (AR 78.) Plaintiff would walk a half-hour each day and stand for another half-hour during a typical work day. (AR 78.) According to CSC, Plaintiff could alternate sitting and standing as needed, but the job could not be modified. (AR 78.) After reviewing the PDA, Hartford's examiner reiterated her initial conclusion and denied Plaintiff's claim. (AR 11.)

Hartford's May 1, 2008 letter denying Plaintiff's claim cited the STD policy's definition of "Total Disability" and reviewed the information considered by Hartford. (AR 74-76.) Hartford concluded that:

Disability is established when there is impairment to your function that renders you unable to perform the essential duties of your occupation. Although you continue to have complaints of back pain and are receiving treatment, you stopped working 1/18/08 but were not seen by Dr. Spencer until 2/6/08. Dr. Spencer indicated treatment as medication and physical therapy, however, physical therapy notes have not been provided and there is no mention of therapy in the 2008 office visit notes.

This would not indicate a level of treatment consistent with a severity of symptoms that would preclude functioning. The Physical Demands Analysis received from your employer on 4/30/08 indicates that your job includes a sit stand option and the restrictions of no prolonged sitting and ability to move around freely are within the scope of your job. We are not disputing your reported symptoms. However, reported symptoms and treatment alone is not indicative of a disability. The medical evidence must be able to substantiate a functional impairment that would prevent you from working. (AR 75.) Hartford's letter informed Plaintiff of her right to seek an appeal and advised her that if she chose to appeal, Hartford would review her entire claim, including any new information received with her appeal. (AR 76.)

Plaintiff wrote to Hartford on June 6, 2008 appealing Hartford's denial of her STD claim. (AR 70-72.) In her appeal, Plaintiff included contact information for her physical therapist but did not forward any physical therapy records. (AR 70-72.) Hartford's appeal specialist reviewed Plaintiff's appeal letter and the file and determined that Hartford should ask Dr. Spencer to opine about the PDA's indication that Plaintiff could alternate sitting and standing. (AR 8-9.) Hartford wrote to Dr. Spencer on June 27, 2009 asking if Plaintiff "is capable of performing a sedentary occupation which includes the ability to alternate sitting and standing as needed?" (AR 29.) Dr. Spencer was asked to provide his clinical rationale if his answer was "no." (AR 29.) When Hartford did not receive a response from Dr. Spencer, it phoned his office on July 21, 2008 and learned that Dr. Spencer was out of the office until sometime in August. (AR 7-8.) Hartford informed ...

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