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Aluisi v. Elliott Manufacturing Co.

November 19, 2009

TERRY ALUISI, PLAINTIFF,
v.
ELLIOTT MANUFACTURING CO., INC. PLAN; ELLIOTT MANUFACTURING CO., INC., AS THE PLAN ADMINISTRATOR, DEFENDANTS.



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

FINDINGS OF FACT AND CONCLUSION OF LAW ORDER DIRECTING THE CLERK OF THE COURT TO ENTER JUDGMENT FOR DEFENDANTS FINDINGS OF FACT

FINDINGS OF FACT

1. Defendant Elliott Manufacturing Co., Inc. ("Elliott") is a California Corporation incorporated in 1929.

2. Elliott had an employee welfare benefit plan, which included a group long term disability plan (the "Plan").

3. The Plan provides benefits through Unum's Group Insurance ("Unum") Policy No. 505313 001 ("the Policy"). Unum issued the Policy to Elliott Manufacturing, Inc., effective March 1, 1996.

4. The Certificate Section of the Policy states that "[w]hen making a benefit determination under the policy, Unum has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy" (Administrative Record, bates pages U/A/ 26 .)*fn1 .

5. Unum acts as the claims review fiduciary for long term disability claims under the Plan, and Elliott is the Plan Administrator (26, 50).

6. The terms of the Policy provide that, "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 your indexed monthly earnings due to the same sickness or injury.

You will continue to receive payments beyond 24 months if you are also:

* working in any occupation and continue to have a 20% or more loss in your indexed monthly earnings due to your sickness or injury; or

* not working and, due to the same sickness or injury, are unable to perform the duties of any gainful occupation from which you are reasonably fitted by education, training or experience."

7. The maximum period of payment is to age sixty-five. However, benefits will end "during the first 24 months of payments, when you are able to work in your regular occupation on a part-time basis but you choose not to," or on "the date you are no longer disabled under the terms of the plan" (40).

8. Unum's benefits specialists do not have access to any of the Company's financial information, other than that which is publicly available, and their compensation is not based on denying claims (Declaration of Carolyn Brooks ¶ 2).

9. Unum also periodically rotates and/or reassigns its claims handlers, in an effort to reduce the potential for bias in claims handling (Declaration of Carolyn Brooks ¶ 3).

10. Unum received Aluisi's claim for long term disability benefits on January 3, 2002 (1).

11. Aluisi indicated that he had been unable to work since October 26, 2001 due to back pain (1). Aluisi described his disability as "unable to sit, walk, or stand without pain." (1 emphasis added). According to Elliott's controller, Aluisi was Elliott's General Manager/Chief Operations Officer (4).

12. Mazhar Javaid, M.D. (pulmonary and internal medicine specialist) completed the Attending Physician's Statement submitted with Aluisi's claim. Dr. Javaid stated that Aluisi was unable to work due to severe back pain caused by thoracic disc disease, a condition he had received treatment for since April 2000. Dr. Javaid stated the Aluisi's symptoms were "severe back pain." Dr. Javaid also indicated that Aluisi should be able to return to work on June 15, 2002 (8).

13. When Unum received this information, it contacted Aluisi to let him know that the claims administrator would be contacting his doctors to obtain confirming medical evidence (177-178).

14. On January 29, 2002, Unum conducted a phone interview with Aluisi. Aluisi stated that since stopping any pain medication, Aluisi's pain in the middle of his back was so severe he could not function. (144).

15. Unum obtained Dr. Javaid's records (168-176). Melanie Cross, R.N. reviewed Dr. Javaid's records on February 22, 2002 (181-82).

16. Nurse Cross determined that the treatment notes did not support a claim of thoracic pain. She noted that the x-ray of the thoracic spine demonstrated the expected changes for Aluisi's age group. She also noted that Dr. Javaid's records did not contain any plan of care. Nurse Cross concluded that the available records did not support the claim (181-182).

17. Unum next obtained records from Dr. Michael Azevedo (Physiatrist) in March 2002 (191-213). Dr. Azevedo's records stated as follows:

A. On August 14, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted Aluisi's pain was in the middle of the mid- thoracic area, radiates across the back, is constant, is very sharp, and the pain level is eight out of ten without medications. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with discogenic thoracic spine pain and having withdrawal symptoms (211-213).

B. On August 27, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with chronic back pain and physical dependence (209).

C. On September 13, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with chronic right flank pain and physical dependence (207-209).

D. On September 26, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with chronic upper thoracic back pain and physical and psychological dependence (205).

E. On October 9, 2009, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted attempts to change medication and reduce Aluisi's physical dependence. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with chronic low back pain and physical dependence (203).

F. On October 23, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had developed chronic back pain after gastric bypass surgery and had become physically dependent on Hycodan. Dr. Azevedo noted Aluisi's plans for detoxification. Dr. Azevedo assessed Aluisi with physical dependence and chronic back pain (201).

G. On November 13, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported a significant increase in back pain now that Plaintiff was off opiate analgesics, from which Plaintiff had recently been detoxified. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi with chronic thoracic pain (199).

H. On December 14, 2001, Aluisi saw Dr. Azevedo

Dr. Azevedo reported that Aluisi had continued to have severe, upper posterior infrascapular, back pain, which was sharp in character and nonradiating. The pain was seven out of ten. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait. Dr. Azevedo assessed Aluisi has having myofascial or neurogenic pain (197).

I. On January 18, 2002, Aluisi saw Dr. Michael P. Azevedo

Dr. Azevedo reported that Aluisi was having severe pain in the thoracic area, with occasional radiation around to the front. In addition, Dr. Azevedo reported Aluisi was having right hip pain. Dr. Azevedo reported that Aluisi stated his pain limits his ability to do his daily activities. Dr. Azevedo noted that Aluisi was resting comfortably in a chair, able to transfer from a seated to a standing position without difficulty, and ambulates with a nonantalpic gait.

Dr. Azevedo assessed Aluisi with chronic thoracic and some low pack pain, with right hip pain. (195). 18. Nurse Cross reviewed Dr. Azevedo's records (216-219). Nurse Cross noted that the lack of prescription pain medication following Aluisi's narcotic detoxification and the repeated examination findings that Aluisi was "sitting comfortably" did not support the reports of disabling pain. Nurse Cross concluded that the available medical records did not support the claim, but recommended that the file be referred to an on site physician ("OSP") for review and comment (219).

19. On February 22, 2002, Aluisi saw Dr. Azevedo. Dr. Azevedo noted that Aluisi was complaining of thoracic back pain, with some radiation around to the front. Dr. Azevedo noted that the pain is moderate in severity, and it hurts worse when he walks or does truncal motions. Dr. Azevedo referred to X-Rays "which showed degenerative changes in the thoracic spine and spondylolisthesis, with spondylosis at the L5-S1. The laboratory shows a SED rate of 72, a TSH of 0.13 and a CPK was 22." (222).

20. Raymond Gritton, M.D., a physical medicine and rehabilitation specialist, reviewed the medical records from Dr. Javaid and Dr. Azevedo on March 7, 2002. Dr. Gritton noted that Aluisi had mild degeneration of the thoracic spine and spondylosistheses in the lumbar spine. Dr. Gritton recommended obtaining an attending physician's statement from Dr. Azevedo before commenting on reasonable restrictions and limitations (220).

21. On March 12, 2002, Nurse Cross reviewed additional records provided by Dr. Azevedo, including X-Ray reports. The additional records did not alter her prior opinion (228-229).

22. Unum medical consultant Michael C. Randall, M.D., spoke with Dr. Azevedo on March 29, 2002 (233). Dr. Azevedo stated that Aluisi complained of unexplained "intractable" lumbar pain since his gastric bypass surgery, which did not appear to be a complication of the surgery. Dr. Azevedo reported that further testing was in progress, and he estimated "that it will take a month to clarify this puzzling case". Dr. Randall recommended further evaluation, but stated that Aluisi appeared to be totally disabled (234).

23. On April 1, 2002, Unum received confirmation of Aluisi's salary and bonus information from Elliott (240-243).

24. By letter dated April 3, 2002, Ms. Beam notified Aluisi that his claim was approved, effective January 25, 2002 (244-246). The approval letter further states: "We are approving benefits at this time. However, in order to qualify for ongoing benefits, you must continue to meet the definition of disability in your contract. We may request that you provide additional medical and/or vocational information on a periodic basis to support your claim for disability benefits." (244).

25. In May 2002, Unum asked Aluisi for an updated certification of disability (284). Unum also asked Dr. Javaid for all medical records and diagnostic tests since February 2002 (285).

26. In a supplemental statement completed in June 2002, Aluisi stated that he had chronic back pain which impacted his ability to sit, stand, and walk, as well as trouble sleeping (287). Aluisi described his daily activities as "watching TV, ...


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