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Melissa Parks v. Westamerica Bancorporation Long Term

August 21, 2012

MELISSA PARKS,
PLAINTIFF,
v.
WESTAMERICA BANCORPORATION LONG TERM DISABILITY PLAN, THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Melissa Parks brings this action under 29 U.S.C., section 1101, et seq., seeking benefits under the Westamerica Bancorporation Long Term Disability Plan issued by Lincoln National Life Insurance Company ("Lincoln"). This matter was submitted for a ruling on the briefs without trial. The Court, having read and considered the documentary evidence and the written submissions of the parties, now makes the following Findings of Fact and Conclusions of Law. The Court concludes that Lincoln did not abuse its discretion when it denied Plaintiff's Long Term Disability Benefits.

FINDINGS OF FACT

Plaintiff Melissa Parks was first employed by Westamerica Bancorporation ("Westamerica") in July 2000. During her employment with Westamerica, Plaintiff received many commendations and appraisals reflecting excellent work performance and good work ethic.

Plaintiff participated in a group long term disability plan that Westamerica created and maintained for eligible employees. The plan provides for a 180-day Elimination Period during which no benefits are payable. The plan also provides that Lincoln will pay a Total Disability Monthly Benefit if, after the completion of an Elimination Period, an Insured Employee:

1. is Totally Disabled;

2. is under the regular care of a Physician; and

3. at his or her own expense, submits proof of continued Total Disability and Physician's care to the Company upon request.

The plan provides for a 24-month Own Occupation Period. During that 24-month period, the phrase "Totally Disabled" means that "due to an Injury or Sickness the Insured Employee is unable to perform each of the main duties of his or her regular occupation." The plan further provides that the phrase "main duties" means those job duties which:

1. are normally required to perform the Insured Person's regular occupation; and

2. cannot reasonably be modified or omitted.

The plan clarifies that the phrase "main duties" include "those main duties as performed in the usual and customary way in the general workforce; not as performed for a certain firm or at a certain work site." (Emphasis in original.)

The plan expressly provides that, except for those functions which are specifically reserved to the Policyholder or Employer, Lincoln has:

. . . the authority to manage this Policy, to administer claims, to interpret Policy provisions, and to resolve questions arising under this Policy. The Company's authority includes (but is not limited to) the right to:

1. establish and enforce procedures for administering this Policy and claims under it;

2. determine Employees' eligibility for insurance and entitlement to benefits; and

3. determine what information the Company reasonably requires to make such decisions.

Plaintiff initiated a claim for benefits under the plan on August 23, 2006. Plaintiff reported that she had been working for Westamerica as a "Mortgage Processor -- Banking" until January 11, 2006, when she stopped working because her "hands and thumbs hurt [carpal tunnel] etc.". The relevant physical requirements of a mortgage processor, as identified by Westamerica are typing (both hands), calculating (one hand), and writing - repetitive (one hand).

A Physician's Statement completed by Dr. Michael Peterson accompanied Plaintiff's claim. Dr. Peterson reported that:

1. Plaintiff had been experiencing numbness and tingling in her hands since September 2003;

2. Dr. Peterson first treated plaintiff for that numbness and tingling on October 27, 2005;

3. Plaintiff had a right carpal tunnel release surgery on February 7, 2006 and had a left carpal tunnel release surgery on April 25, 2006; and

4. Plaintiff was unable to perform repetitive actions with her thumbs.

Lincoln acknowledged plaintiff's claim for benefits on September 13, 2006, and requested records from Plaintiff's workers' compensation insurer and from the treating physicians identified by Plaintiff (Dr. Peterson and Dr. John Forsyth). Lincoln forwarded said records to MES Solutions to have them reviewed by a board-certified orthopedic surgeon, Dr. Lawrence Rubens. After reviewing the records and the job analysis form that accompanied Plaintiff's claim, Dr. Rubens determined that Plaintiff's only restrictions were no repetitive power gripping and no repetitive key pinching with the thumbs. Dr. Rubens concluded that Plaintiff was capable of returning to work with the above mentioned limitations and that Plaintiff was not considered functionally impaired from her job.

Lincoln asked Dr. Peterson to review and comment on Dr. Rubens' report. By letter dated December 4, 2006, Dr. Peterson agreed with the work restrictions identified by Dr. Rubens; however, Dr. Peterson reiterated that Plaintiff had informed him that she could not perform the normal functions of her job. Plaintiff had informed Dr. Peterson that a mortgage processor repetitively uses thumbs and pinching to handle paper work and/or money. Dr. Peterson also indicated that Plaintiff had attempted to return to modified duty on several occasions.

Lastly, Dr. Peterson indicated that the physical demands of her job description require handling frequently and fingering occasionally, which he assumed required use and grasping of the thumbs.

Lincoln determined that Plaintiff was not considered "totally disabled" as defined by the plan. Lincoln had been paying monthly benefits to Plaintiff based on Plaintiff's initial carpal tunnel disability claim. On December 22, 2006, however, Lincoln wrote to Plaintiff to advise her that no further benefits would be paid under the plan. Lincoln's termination of benefits was based on the conclusions of Dr. Rubens and Dr. Peterson that Plaintiff's carpal tunnel symptoms had improved and Plaintiff's only limitation was no repetitive power gripping and no repetitive key pinching with the thumbs. Lincoln had determined that the major functions of a mortgage processor did not require such movements based on the job analysis form provided as part of Plaintiff's claim for benefits.

By letter dated September 27, 2007, Plaintiff's attorney advised Lincoln that Plaintiff wished to appeal. Plaintiff's attorney submitted copies of additional records from Dr. Peterson which related to care he provided to plaintiff after November 19, 2006. These records evidence that Plaintiff:

1. Underwent right trigger thumb release on December 15, 2006;

2. Underwent left trigger thumb release on January 19, 2007;

3. Experienced recurrent triggering on the right thumb;

4. Underwent revision right trigger thumb release on May 23, 2007;

5. Reported persistent left thumb pain without triggering and continued to demonstrate a weak pinch.

By June 25, 2007, Plaintiff informed Dr. Peterson that her thumbs felt better than before the surgeries and that she would like to return to work. Dr. Peterson released Plaintiff for light duty work on June 25, 2007. However, by July 23, 2007, Dr. Peterson decided that Plaintiff should first undergo a functional work capacity evaluation to properly set her restrictions prior to returning to work. On August 16, 2007, Dr. Peterson concluded that Plaintiff required a permanent modified position because her usual and customary work in banking required repetitive thumb use such as counting money.

Dr. Peterson's change in position is solely based on Plaintiff's statements regarding her thumb complaints and job duties.

Dr. Peterson restricted Plaintiff from lifting, pushing, or pulling greater than 10 pounds and from repetitive thumb pinching or grasping bilaterally.

Upon receiving the additional records of Dr. Peterson, Lincoln again asked MES Services to have Plaintiff's medical records reviewed by a board-certified orthopedic surgeon.

Dr. William Abraham reviewed the records and found that the new medical records revealed that, after her successful carpal tunnel release surgeries, plaintiff had reported progressive bilateral thumb pain. Dr. Abraham noted that the records demonstrated Plaintiff's subjective complaints without compelling objective physical examination findings.

Dr. Abraham concluded that "there is nothing in the medical records to support ongoing restrictions or limitations that would render this patient unable to perform daily living and any work activities from 1/20/06 to present." Dr. Abraham disagreed with Dr. Peterson's opinions about plaintiff's functional capacity, explaining that: "Because one reports subjective discomfort or inability does not mean that one is incapable of doing said activities. There are scant objective physical examination findings in the medical records to support [plaintiff's] complaints." Dr. Abraham concluded that, "at this juncture [plaintiff] appears to be self-limiting and that there are no physical examination findings to support impairment, restrictions or limitations."

On December 21, 2007 Lincoln forwarded a copy of Dr. Abraham's report to Plaintiff's attorney. In response, plaintiff's attorney submitted copies of additional records from Dr. Peterson which indicated that plaintiff was considering another surgery (MP fusion) to relieve the pain in her left thumb. An MRI showed an abnormality along the ulnar accessory collateral ligament. Dr. Peterson reiterated that Plaintiff's limitations continue to remain the same; no repetitive thumb pinching or lifting, pushing, or pulling over 10 pounds.

Dr. Peterson's letter to Plaintiff's counsel dated January 24, 2008, also addresses Plaintiff's symptoms of depression associated with her thumb pain.

Lincoln then forwarded Dr. Peterson's additional records (and the letter from Plaintiff's counsel) to Dr. Abraham for review. In response, Dr. Abraham acknowledged that an MRI had shown "an abnormality along the ulnar accessory collateral ligament." Dr. Abraham also acknowledged that an examination had shown "tenderness of the flexor ulnar joint and pain over the flexor surface of the MP joint with any pinching activities." However, Dr. Abraham also explained that "[t]here is nothing new in this information that would impact or change" the findings expressed in his earlier report. Dr. Abraham found that Dr. Peterson's records did not:

1. offer specific functional testing results or document weakness;

2. document evidence of sensation change or evidence of reflex sympathetic dystrophy; or

3. document evidence of progressive muscle atrophy or loss of normal function.

Lincoln sent Plaintiff's attorney a letter on February 22, 2008 explaining that further benefits would be paid for the period between November 19, 2006 and June 25, 2007. Because Dr. Abraham and Dr. Peterson both had indicated that plaintiff could return to work on June 25, 2007, Lincoln also explained that no further benefits would be paid beyond June 25, 2007, because "the medical evidence in Ms. Parks' claim file does not support ongoing restrictions and limitations to render her totally disabled from her occupation as a mortgage servicer from that date (6/25/2007) forward."

On August 20, 2008, plaintiff's attorney advised Lincoln that plaintiff wished to appeal its determination that no further benefits were payable after June 25, 2007. In connection with that appeal, Plaintiff submitted additional records from Dr. Peterson, a report prepared by a vocational consultant, and records from a psychiatrist Plaintiff had consulted. On September 18, 2008, plaintiff's attorney also submitted records from a second psychiatrist Plaintiff had consulted.

Lincoln acknowledged both plaintiff's appeal and the materials that plaintiff's attorney had submitted. Lincoln asked AllMed Healthcare Management to have Dr. Peterson's records reviewed by a board-certified orthopedic surgeon. Dr. Michael Weiss summarized the significant findings reflected in the new medical records as follows:

The significant findings that this reviewer sees after reviewing the medical information are that this patient has multiple subjective complaints without significant positive physical findings. Even Dr. Peterson, her treating physician, indicates that she has a lot of complaints without significant findings in a 1/14/08 letter. When this reviewer looks at this entire medical record, it would appear that she has some arthritic complaints related to both thumbs, but her subjective complaints may, in fact, be out of proportion to her objective physical findings.

Dr. Weiss also agreed that "[t]he restrictions placed on this patient's work activities by Dr. Peterson, including no lifting, pushing, or pulling over 10 pounds, and no repetitive thumb use, are reasonable based on this patient's subjective complaints."

However, he added that according to the Job Analysis form which was submitted with Plaintiff's claim form, the duties associated with her occupation were sedentary, required that she be "able to type, use a calculator, and write," and were "reasonable within the confines of her thumb complaints." Dr. Weiss concluded that, "[b]ased upon the medical evidence, this person does not appear to have any physical or functional impairments that would have prevented her from doing the tasks and duties of her sedentary occupation from 6/25/07 onward."

On October 14, 2008, Lincoln received notice of Plaintiff's Social Security disability determination from Plaintiff. On October 17, 2008, Lincoln informed Plaintiff that the Social Security award was not binding and would merely be a factor in its decision. On October 21, 2008, Defendant received a copy of the Social Security disability award. The letter from Social Security only states that Plaintiff has been determined to be disabled.

On November 24, 2008, Lincoln forwarded a copy of Dr. Weiss' report to plaintiff's attorney. In response, plaintiff's attorney conceded that Dr. Weiss "does not significantly disagree" with Dr. Peterson. Plaintiff's counsel challenged Dr. Weiss' qualifications to comment on plaintiff's ...


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