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Collins v. Liberty Life Assur. Co. of Boston

United States District Court, C.D. California

December 11, 2013


Page 1106

For Robert Collins, an Individual, Plaintiff: Michael A McKuin, Michael A McKuin Law Offices, Palm Desert, CA.

For Liberty Life Assurance Company of Boston, the Insurer and Plan Fiduciary of the Sony Computer Entertainment America Inc Employee Benefit Plan, an Employee Welfare Benefit Plan established pursuant to 29 U.S.C. 1001 et seq. (ERISA), also known as Liberty Mutual, Defendant: Pamela E Cogan, Robert M Forni, Jr, Ropers Majeski Kohn and Bentley, Redwood City, CA.

For Keith M Parker, Mediator (ADR Panel): Keith M Parker, ADR Services, Inc., Irvine, CA.



Page 1107


This matter is before the Court following a bench trial on the administrative record on May 21, 2013. Michael A. McKuin appeared on behalf of Plaintiff, Robert Collins. Robert M. Forni of Ropers, Majeski, Kohn & Bentley LLP appeared on behalf of Defendant, Liberty Life Assurance Company Of Boston.

Having carefully reviewed the administrative record and the arguments of counsel, as presented at the hearing and in their written submissions, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


1. Sony Computer Entertainment America, LLC (" Sony" ) sponsored a short- term disability (" STD" ) benefits plan and long-term disability (" LTD" ) benefits plan (the " Policy" ) for the benefit of its employees. (Declaration of Paula McGee (" McGee Decl." ) ¶ 6 [Doc. # 22].)[1]

Page 1108

2. Defendant Liberty Life Assurance Company of Boston, (" Liberty" ) was the " Claims Administrator", a fiduciary, and the insurer of the Plan. Mr. Collins, was a Plan Participant and Beneficiary of the Plan. (Answer ¶ ¶ 5, 7, 8, 9 [Doc. # 10].)

3. From approximately 2005 until June 2009 (the last two years in a full-time position), Plaintiff Robert Collins (" Collins" ) worked at Sony as a Supervisor, Technical Support. (C.F. 394, 512.) The job required " analytical problem solving skills," and a " high level of patience, organizational structure, analysis/reporting skills." (C.F. 1433.) Sony job performance evaluations indicate that Collins' performance ranged from satisfactory to exceptional. (C.F. 572-579, 580-582.) As of 2009, Collins had been continuously and gainfully employed for about 19 years in various positions. (C.F. 1189.)

Pertinent Plan Terms

4. The Policy vests Liberty with discretionary authority to determine eligibility for benefits:

Interpretation of the Policy: Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. Liberty's decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding.

(P. 27)

5. The Policy defines " disabled" and " disability" to mean the following:

i. " Disabled" means during the Elimination Period and the next 24 months of Disability the Covered Person is unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness; and
ii. After 24 months of benefits have been paid, the Covered Person is unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age and physical and mental capacity.

(P. 7.)

6. The " Elimination Period" for LTD coverage under the Policy is the greater of the end of the Covered Person's STD benefits, or 90 days. (P. 4.)

7. The Policy defines the Disability Benefit as follows:

When Liberty receives proof that a Covered Person is Disabled due to Injury or Sickness and requires the regular attendance of a Physician, Liberty will pay the Covered Person a Monthly Benefit after the end of the Elimination Period. The benefit will be paid for the period of Disability if the Covered Person gives to Liberty proof of continued:
1. Disability; and
2. regular attendance of a Physician.
The proof must be given upon Liberty's request and at the Covered Person's expense.

(P. 14.)

8. The Policy provides 66.67% of the Covered Person's Basic Monthly Earnings (not to exceed a Maximum Monthly Benefit of $14,500), less Benefits from Other Income, up to age 65 if the Covered Person

Page 1109

is less than age 60 when Disability begins. (P. 4, 14.)

9. Benefits from Other Income include, among other things, the amount of disability and/or retirement benefits under the United States Social Security Act, which the Covered Person has received or is eligible to receive. (P. 19.)

10. With regard to the proof required to receive benefits, the Policy states:

The proof must cover, when applicable:

i. the date Disability or Partial Disability started;
ii. the cause of Disability or Partial Disability;
iii. the degree of Disability or Partial Disability.

(P. 29.)

11. Under the Policy, Liberty has " the right and opportunity to have a Covered Person, whose Injury or Sickness is the basis of a claim, examined by a Physician or vocational expert of its choice," at its own expense. (P. 29.) " This right may be used as often as reasonably required." (P. 29.)

12. In addition, the Policy includes a Mental Illness, Substance Abuse and Non-Verifiable Symptoms Limitation (" M/N Limitation" ). This provision states in relevant part:

The benefit for Disability due to Mental Illness, Substance Abuse or Non-Verifiable Symptoms will not exceed a combined period of 24 months of Monthly Benefit payments while the Covered Person is insured under this policy.
* * *
" Mental Illness" means a psychiatric or psychological condition classified as such in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) regardless of the underlying cause of the Mental Illness. If the DSM is discontinued, Liberty will use the replacement chosen or published by the American Psychiatric Association.
" Non-Verifiable Symptoms" means the Covered Person's subjective complaints to a Physician which cannot be diagnosed using tests, procedures or clinical examinations typically accepted in the practice of medicine. Such symptoms may include, but are not limited to, dizziness, fatigue, headache, loss of energy, numbness, pain, ringing in the ear, and stiffness.
" Substance Abuse" means alcohol and/or drug abuse, addiction or dependency.

(P. 18)

Chronology of Collins' Medical Evaluations

13. On June 25, 2009, Collins collapsed. He was hospitalized for the next five days. After that, he complained of severe headaches, accompanied by difficulties in concentration and memory. (C.F. 395, 513, 560-66, 589, 661-62, 767, 803, 900, 1075-76.)

14. Collins underwent an MRI of his head on July 10, 2009. The results of the study were normal. (C.F. 1454.)

15. On August 6, 2009, the disability case manager assigned to Collins' STD claim, Diana Ortiz, wrote to Collins advising him that Liberty had approved his claim for STD benefits based on his inability to perform his own occupation. Benefits were approved through August 17, 2009 while Liberty investigated his continuing eligibility for disability benefits. (C.F. 47-48, 1496.)

16. On August 10, 2009, Robert Telfer, M.D., a neurologist, prepared a report stating his observations that Collins' " cognitive function seem[ed] to be within normal limits," and that his impression was

Page 1110

" Migraine versus cluster headaches." (C.F. 1411.)

17. On October 19, 2009, Dr. Telfer prepared an Attending Physician's Statement (" APS" ), in which he diagnosed headaches, hypertension, and cervical strain. Collins' prognosis was reportedly " good." Dr. Telfer indicated that Collins had a class 5 physical impairment (i.e., " severe limitation of functional capacity; incapable of minimum activity" ), estimating that, as of the date of Collins' last visit with him on August 10, 2009, Collins would be able to return to work by September 8, 2009. Dr. Telfer also indicated that Collins had a class 3 mental/nervous impairment (i.e., patient is able to engage in only limited stressful situations or engage in interpersonal relations). Dr. Telfer indicated that Collins had no cardiac impairment. (C.F. 1449-50.)

18. After seeing Collins on November 25, 2009, Dr. Telfer diagnosed Collins with (1) severe uncontrolled headaches; (2) alcoholism in remission; (3) history of hypertension; and (4) recurrent abdominal pain associated with headaches. Dr. Telfer then opined that " a consultation with a headache center such as UCSF is necessary." (C.F. 1406-07.)

19. On December 30, 2009, Michael Stevens M.D., a rheumatologist, diagnosed Collins with fibromyalgia, which he noted was a diagnosis of exclusion. (C.F. 1163, 1303, 1408.)

20. On February 16, 2010, Daniel Glatt, M.D., Collins' primary care physician, filled out an Attending Physician's Assessment of Capacity Form and an APS. (C.F. 1372-1374.) In the Capacity Form, Dr. Glatt indicated that Collins was diagnosed with chronic pain, fibromyalgia, and prostatitis. He indicated that Collins could frequently engage in light grasping, forced grasping and fingering/typing up to five and a half hours a day, or up to 40 minutes in an hour. He indicated that Collins could occasionally lift up to 20 pounds, reach overhead, reach below the shoulders, sit, stand, walk, drive, climb, squat, bend, kneel and push/pull. Dr. Glatt estimated that Collins could return to work on April 1, 2010. (C.F. 1372.) In the APS, Dr. Glatt indicated that Collins' primary diagnosis was fibromyalgia. Dr. Glatt again indicated that Collins' prognosis was good, and his estimated return to work date was April 1, 2010. (C.F. 1373.) Dr. Glatt indicated that Collins had a class 4 physical impairment (i.e., " moderate limitations of functional capacity; capable of clerical/administrative activity" ), and a class 3 mental/nervous impairment (i.e., Collins " was able to engage in only limited, stressful situations or engage in interpersonal relations (marked limiations)" ). Dr. Glatt indicated Collins had no limitation arising from his cardiac condition. The form indicates that Collins had been hospitalized since February 13, 2010, at Mills Peninsula Hospital. (C.F. 1374.)

21. Peter Goadsby, M.D., Director of the UCSF Headache Center, examined Collins on February 11, 2010. (C.F. 479-80; 1361-64.) Dr. Goadsby noted that Collins used to drink one pint of whiskey daily but was reportedly sober since December 2008. Dr. Goadsby also reported that Collins " does use a small amount of marijuana daily, which neither relieves nor exacerbates his headaches." After noting that the July 2009 non-contrast MRI of the brain was normal, he recommended an MRI of the brain with gadolinium (" Gd" ). (C.F. 1361-64.)

22. On March 6, 2010, Thomas Farquhar, M.D. conducted MRIs with and without Gd. Dr. Farquhar's report observed that Collins had " not significantly changed from prior study 7/9/2009," and found " [n]o new abnormalities." (C.F. 1079-80.) In his July 8, 2010 examination report,

Page 1111

Dr. Goadsby diagnosed Collins with " New Daily Persistent Headache (NDPH) with migrainous features and orthostatic headache." Dr. Goadsby continued, " The combination of orthostatic headache and diffuse meningeal enhancement is typical of low CSF [cerebrospinal fluid] volume headache." (C.F. 1004-05.)

23. On March 29, 2010, Dr. Rodica Lascar, M.D. examined Collins, diagnosing fibromyalgia and chronic pain syndrome, as well as depression with suicidal ideation and high anxiety disorder. (C.F. 962, 1058.)

24. On April 24, 2010, Richard Palmer, M.D. examined Collins for a comprehensive psychiatric evaluation. (C.F. 487-92.) He diagnosed Collins with generalized anxiety disorder, major depressive disorder, and pain disorder associated both with psychological factors and a general medical condition chronic pain of unknown etiology. (C.F. 491.) He questioned the diagnosis of fibromyalgia, adding that Collins' " very traumatic childhood issues . . . are quite possibly a major factor causing the intensity of his current impairment to be so high." (C.F. 491.) Dr. Palmer further stated that due to Collins' mental state, he " may be able to perform simple and repetitive tasks, but would be unlikely to be successful with detailed complex tasks. . . . At present, he is unable to maintain regular attendance in the workplace, deal with usual workplace stressors or complete a normal workweek without interruption." (C.F. 492.)

25. On June 15, 2010, Dr. Stevens observed Collins was alert and cooperative, with a stable gait. (C.F. 1161.) Collins complained of diffuse tender points, and he informed Dr. Stevens he was no longer driving. (C.F. 1161.) Dr. Stevens filled out an Attending Physician's Assessment of Capacity Form, indicating that Collins could occasionally lift up to 20 pounds, reach below shoulders, reach overhead, finger/type, grasp with both hands, push/pull, kneel, bend, squat, climb, drive, walk, stand, and sit. Dr. Stevens stated that Collins could not function full time in an occupational setting, due to " uncontrolled pain," with restrictions imposed for one year. He prescribed low-impact aerobic exercise to treat Collins' symptoms. (C.F. 1186.)

26. On July 9, 2010, Dr. Telfer observed: " He continues to have daily headaches that seem to be worse when he is standing. If he lies down they improve. . . . [Collins] is alert and ambulatory without assistance. . . . He could balance with his legs together and eyes closed. He is slightly unsteady on one foot alone. Visual fields were intact. Motor function test showed good strength bilaterally." Collins scored 26 out of 30 on the Mini Mental State Examination. In a memo dated July 19, 2010, Dr. Telfer estimated a return to work by July 9, 2011. (C.F. 1074-76.)

27. In July 2010, Dennis Hughes, M.D. replaced Dr. Glatt as Collins' primary care physician. On July 29, 2010, Dr. Hughes evaluated Collins, diagnosing insomnia and fibromyalgia. He noted Collins had " challenging issues." (C.F. 987-97.)

28. On September 10, 2010, Collins was evaluated by Susan Kritzik, M.D., a pain management specialist. (C.F. 803-05.) In a report dated January 3, 2011, she noted severe pain, and stated that her impressions were fibromyalgia, chronic headaches and a CSF leak. (C.F. 791-92.)

29. Collins was evaluated by Mark Heitner, M.D., a psychiatrist, who noted in a January 11, 2011 report that Collins had poor short-term memory, fair insight, and poor judgment. (C.F. 772.) On February 2, 2011, Dr. Heitner noted ...

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