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Ermovick v. Mitchell

October 8, 2010


The opinion of the court was delivered by: Honorable Jacqueline H. Nguyen United States District Court


This is an action for benefits pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. brought by Plaintiff James Ermovick ("Plaintiff") against Defendant Mitchell, Silberberg & Knupp LLP Long Term Disability Coverage for All Employees, an ERISA Plan ("Defendant"). The Court held a court trial on the administrative record on August 5, 2010. At that time, the parties were in possession of the Court's written tentative ruling. The Court, having reviewed de novo the administrative record, and considered the pleadings and arguments by counsel, finds in favor of Defendant.


On July 5, 2006, a court trial on the administrative record was held before Judge Manuel L. Real, who rendered judgment in favor of Defendant. (Docket nos. 24--26.) This ruling was reversed by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") for failure to employ the de novostandard of review. See Ermovick v. Mitchell Silberberg, 282 Fed. Appx. 623 (9th Cir. 2008). On October 21, 2008, Judge Real conducted a second court trial and again found in favor of defendant. (Docket nos. 52, 64--65.) The Ninth Circuit again reversed and remanded the matter. See Ermovick v. Mitchell Silberberg, No. 09-55011, 2010 WL 1417916 (9th Cir. Apr. 8, 2010). The case was reassigned to this Court on April 9, 2010. (Docket No. 73.) This Court allowed the parties to file supplemental briefing and held a court trial on the administrative record on August 5, 2010.


"In bench trials, Fed. R. Civ. P. 52(a) requires a court to 'find the facts specially and state separately its conclusions of law thereon.'" Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986) (quoting Fed. R. Civ. P. 52(a)). "One purpose behind Rule 52(a) is to aid the appellate court's understanding of the basis of the trial court's decision. This purpose is achieved if the district court's findings are sufficient to indicate the factual basis for its ultimate conclusions." Id. (citation omitted). Furthermore, the court "is not required to base its findings on each and every fact presented at trial." Id. at 792. The following constitutes the findings of fact required by Federal Rule of Civil Procedure 52, gleaned from the Administrative Record. The Administrative Record in this matter consists of documents stamped "PRU-ERMO-1--679" ("PRU") and "PRU-CD-ERMO-1--45" ("CD").

A. The Long Term Disability Plan

Plaintiff was employed by the law firm of Mitchell, Silberberg & Knupp, LLP ("Mitchell Silberberg") as a word processor. Plaintiff's claims for long-term disability benefits ("LTD") were submitted under a Group Contract of insurance issued by The Prudential Insurance Company of America ("Prudential") to Mitchell Silberberg. (PRU 109--10; CD 1--46.) The Policy provides for employee welfare plan benefits to be provided by Prudential under the provisions of ERISA. (CD 1--46.) The Policy states, in relevant part:

You are disabled when Prudential determines that:

* you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury;

* you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury; and

* you are under the regular care of a doctor.

After 24 months of payments, you are disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience. (CD 10; emphasis omitted.)

B. Plaintiff's Initial Claim for LTD Benefits Based on Psychological Issues and Prudential's Denial of That Claim

Plaintiff stopped working in early January 2001. (PRU 657.) On March 26, 2001, Plaintiff signed a Prudential Group Disability Insurance Employee Statement indicating that his last day of work was January 4, 2001, and his first date of treatment was January 5, 2001. (PRU 109.) Under the portion of the form that requested "where the accident occurred, or described the nature of your illness[,]" he stated "at work on 12/19/00-sexual harassment[.]" (Id.) This claim related to sexually disparaging comments made at a Christmas party based upon Plaintiff's sexual orientation. (PRU 115.)

The Attending Physician's Statement, dated March 26, 2001, completed by psychologist Sean Pakdaman, Ph.D., Q.M.E., listed anxiety, depression, irritability and sleeping problems due to being exposed to sexual harassment comments as the "illness and/or symptoms that caused Plaintiff to stop working[.]" (PRU 131.) Plaintiff was also evaluated by psychiatrist Fereidoon Kharabi who noted his depressive state and referred him for further treatment. (PRU 115--17.) Plaintiff again reported to Dr. Kharabi that his symptoms started on December 19, 2001, when he was subjected to a sexual comment at a party by his co-workers. (PRU 118.) On March 29, 2001, Plaintiff was denied Workers' Compensation benefits based on a mental status examination ("MSE") performed by psychiatrist William J. Sullivan, M.D, Ph.D., which contrary to the other examinations found "no significant depression or anxiety."*fn1 (PRU 157.) Prudential denied Plaintiff's psychological LTD claim on May 22, 2001. (PRU 636.)

C. Plaintiff's First Administrative Appeal and Prudential's Grant of LTD Benefits Based on Physical Injuries Plaintiff appealed the denial of his claim on October 15, 2001. (PRU 633.)

In his appeal, Plaintiff for the first time indicated that he was "unable to return to work in [his] present condition due to 'industrial injuries'" sustained to his neck and back. (Id.) Plaintiff had been receiving Social Security benefits since July of 2001. The Notice of Award stated the date of disability as January 5, 2001. (PRU 598.) Prudential reviewed the materials provided by Plaintiff with his appeal, including an April 26, 2001 MRI, which identified a "disc bulge towards the spinal cord with impingement on the C5 nerve root bilaterally [and] disc bulges . . . identified at multiple other cervical and lumbar levels without other nerve root involvement[.]" (PRU 65.) Prudential also considered a June 19, 2001 comprehensive orthopedic consultation report by Gil Tepper, M.D., F.A.C.S., which made the following diagnosis:

1. Chronic depression on an industrial basis, for which the patient is under the care of a psychologist. . .

2. Industrially related exacerbation on previously existent degenerative disease*fn2 at C3--4 and C4--5 with myeloradiculopathy.

3. Industrially related exacerbation of preexistent degenerative changes in the lumbosacral spine, L2--3 and L3--4, with mechanical back syndrome.

(PRU 660.) Dr. Tepper concluded that Plaintiff was "temporarily totally disabled at the present time." (Id. at 661; emphasis added.) In a parallel workmen's compensation insurance claim, John C. Chiu, M.D., a neurological surgeon, suggested "surgeries of provocative cervical and lumbar discogram followed by microdecompressive endoscopic cervical discectomy[.]" (PRU 652.) The Plan granted Plaintiff disability benefits on February 5, 2002, retroactively to the date he left work, based upon his claim of cervical impairment. (PRU 7--8.)

D. Plaintiff's Treatments Subsequent to the Initial LTD Award

A July 15, 2002 Workers' Compensation Agreed Medical Examination Report (PRU 315--43) by orthopedist Bernard Cooperman, M.D., revealed that Dr. Chiu performed a minimally-invasive "discogram and microdecompressive lumbar diskectomy of Plaintiff's L2, L3 and L4 under magnification with laser thermodiskoplasty" on May 15, 2002. (PRU 333.) On May 29, 2002, Dr. Chiu performed a cervical discogram and microdecompressive endoscopic diskectomy of Plaintiff's C3, C4 and C6. (PRU 334.) On June 4, 2002, Plaintiff had trigger point injections to his sacroiliac joint and his bilateral trapezius. (Id.) Dr. Chiu's June 4, 2002 progress report stated that Plaintiff is "doing well and improving" and should "[r]emain off work until August 29, 2002." (PRU 335.) Dr. Cooperman stated that "[a]s a combination of the neck and back complaints, there is a permanent disability precluding substantial work" and "with regard to the ...

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