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Wong v. Aetna Life Insurance Co.

United States District Court, S.D. California

September 25, 2014


Page 952

For Victoria Wong, Plaintiff, Counter Defendant: Robert J Rosati, Thornton Davidson, LEAD ATTORNEYS, ERISA Law Group LLP, Fresno, CA.

For Aetna Life Insurance Company, Defendant: Matthew G. Kleiner, LEAD ATTORNEY, Gordon & Rees LLP, San Diego, CA; Ronald Keith Alberts, LEAD ATTORNEY, Shannon L Victor Feder, Gordon & Rees LLP, Los Angeles, CA.

For Aetna Life Insurance Company, Counter Claimant: Matthew G. Kleiner, LEAD ATTORNEY, Gordon & Rees LLP, San Diego, CA; Shannon L Victor Feder, Gordon & Rees LLP, Los Angeles, CA.

Page 953


M. James Lorenz, United States District Court Judge.


Plaintiff brings this action for disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA § 502, a beneficiary or plan participant may sue in federal court " to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B); see also CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1871, 179 L.Ed.2d 843 (2011).

Under ERISA, plaintiff is entitled to a bench trial on the administrative record. Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.) (en banc), cert. denied, 528 U.S. 964 (1999). Federal Rule of Civil Procedure 52(a)(1) provides that:

In an action tried on the facts without a jury ..., the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record ... or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58.

Unlike a Rule 56 motion for summary judgment, in a Rule 52 motion the court does not determine whether there is an issue of material fact, but whether Aetna abused their discretion. See Kearney, 175 F.3d at 1095. The Court is to " evaluate the persuasiveness of conflicting testimony," and make findings of fact. Id.


A. Plaintiff's Policy, Injury, and First Payment of Benefits

Plaintiff Victoria Wong (" Wong" ) was a Regional Facility Manager at the Hobart West Group. (AR 369.) Wong obtained long-term disability (" LTD" ) benefits as

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part of a plan (the " Plan" ) underwritten by Defendant Aetna Life Insurance Company (" Aetna" ). (AR 11.) The Plan provides a monthly benefit for a " period of disability" caused by disease or injury, which begins the first day the member becomes disabled " as a direct result of a significant change in [the member's] physical or mental condition" while insured under the Plan. (AR 12, 13.) The Plan provides a two-prong definition of disability:

From the date that you first become disabled and until Monthly Benefits are payable for 24 months, you will be deemed to be disabled on any day if: you are not able to perform the material duties of your own occupation solely because of:
o disease or injury; and
o your work earnings are 80% or less of your adjusted predisability earnings.
After the first 24 months that any Monthly Benefit is payable during a period of disability, you will be deemed to be disabled on any day if you are not able to work at any reasonable occupation solely because of:
o disease;
o or injury.

(AR 12.)

On April 29, 2006, a little over one year after she was hired, Wong gave birth to a child. (AR 378.) Thereafter, she began suffering from back, leg, and groin pain. (AR 472-480.) On July 28, 2006, Dr. Steven Nelson, M.D., submitted an attending physician statement referencing " marked pain" and stating that Wong had no ability to work. (AR 370-71.) Wong consistently complained to Dr. Nelson of back, leg, and groin pain thereafter. ( See AR 509, 644-50, 910-16, 940-41, 1148-53, 1235-40, 1306-07.) Aetna granted Wong LTD benefits under the Plan effective March 27, 2006. (AR 439-441.)

B. Defendant's First Denial of, and Subsequent Reinstatement of Disability Benefits

Dr. Alan Kawaguchi, M.D., examined Wong and reported on the progress of her pelvic pain by letter dated July 6, 2007. (AR 628-30.) His assessment reflected " [p]ostpartum pelvic pain after complicated pregnancy," noting that " there are not really any good answers" and " [t]ypically these can take a long time for the symptoms to really calm down." (AR 629.)

Aetna terminated Wong's claim in a letter dated February 1, 2008. (AR 585-86.) In that letter, Aetna cited three previous requests for " vocational information and medical records" that received no response, as well as unsuccessful phone calls placed in an attempt to reach Wong. ( Id. ) In this letter, Aetna stated, " [s]ince you have not provided us with this information, and we have no support for continued impairment, your claim for long term disability benefits is terminated effective January 31, 2008." (AR 585.)

On March 4, 2008, Wong wrote to Aetna, stating that she and her husband had recently moved to Hawaii following her husband's deployment to Pearl Harbor, and that all of her mail had not yet been forwarded. ( See AR 594.) Aetna subsequently reinstated benefits until March 27, 2008. ( See AR 673.)

C. Defendant's Second Denial of, and Subsequent Reinstatement of Disability Benefits

After 24 months of benefits, the test for disability under the Plan changes. (AR 12.) To determine whether Wong met the new test, Aetna reviewed her file, requested third party surveillance of her, and

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asked her to participate in an independent medical examination (" IME" ).

On May 28, 2008, Wong underwent an independent medical examination (" IME" ) with Dr. Leonard Cupo, M.D., board-certified in internal medicine, Medical Director of the Occupational Medical Associates of Hawaii. ( See AR 697-712.) Dr. Cupo concluded that Wong could return to her previous job, opining that:

Based on the objective findings of my examination the claimant can return to work as a legal analyst-regional facilities manager. Her inability to return to work as a legal analyst-regional facilities manager is based totally on subjective complaints which are disproportionate to the objective findings on physical examination and imaging studies.

(AR 711.) Dr. Cupo further concluded that Wong could work " full time full duty as a legal analyst without restrictions." (AR 728.)

In response to Dr. Cupo's IME results, Aetna terminated Wong's claim again. ( See AR 739 (" Review of recently [performed] IME indicates that it is reasonable to assume that EE can perform her own occupation. As EE has work capacity to her own occupation, she does not pass test change and the claim is terminated." ).)

In response to the termination, Wong submitted additional information in support of her claim. On July 15, 2008, Dr. Guy Paiement, M.D., an Orthopaedic Trauma/Reconstruction Surgeon at Cedars-Sinai Medical Center, examined Wong and reported the results to Aetna. ( See AR 796-97.) Dr. Paiement noted, " [t]he palpation of symphysis pubis is extremely painful . . . . [t]he sacroiliac joints are also extremely painful." (AR 796.) Dr. Paiement completed an attending physician statement and a capabilities and limitations worksheet on July 31, 2008. (AR 818-19; 820.) Both of these documents reflected Dr. Paiement's opinion that Wong was able to work in a sedentary occupation up to eight hours per day, five days per week. (AR 819; 820.) Dr. Paiement limited Wong to driving 30 minutes at a time and lifting, pushing, or pulling ten pounds for one year. (AR 819.) He also indicated that Wong could never climb, crawl, kneel, lift, pull, bend or twist, and he restricted her to only occasionally reaching above her shoulder, carrying, and reaching forward. (AR 820.)

On September 3, 2008, after Dr. Paiement reported the results of his examination to Aetna, Aetna obtained a transferable skills analysis for Wong, which is summarized in the administrative record but does not appear there in full. ( See AR 843-44.) Aetna's notes reflect that:

while this ee [" employee" ] has multiple skills, the rw [" reasonable wage" ] she would need to earn without driving, lifting over 10 lbs, and the other restrictions on her ability to work will prevent her from consideration at most, if not all occupations given even many sedentary positions require some form of these activities. At this time, it would appear, based on the tsa, that the ee would not be able to work in alternative occupations within the current capabilities, rw and skills.

(AR 844.)

On October 1, 2008, in light of Aetna's review of Dr. Paiement's report and the claim file, the insurer Aetna reversed course and notified Wong that her benefits under the plan had been extended past the date at which the plan's definition of disability changed, March 27, 2008. (AR 866.) Back benefits were paid from March 27, 2008 through September 30, 2008. (AR 867.) Shortly thereafter, on October 3, 2008, Aetna advised Wong to apply for Social Security disability benefits and referred

Page 956

her to Allsup, Inc. (" Allsup" ), " a specialized claims administration company that provides a full range of Social Security assistance services to disability applicants." (AR 871.)

D. Defendant's Social Security Claim and January 2011 Termination of Disability Benefits

Just over one year later, Aetna hired ICS Merrill, an investigations company, to surveil Wong on September 24 and 25, 2009. (AR 976-82.) Despite entering her gated community and waiting outside her house for a total of seven hours over two days, Aetna's investigator failed to make visual contact with Wong. ( Id. )

On October 13, 2009, Wong visited Dr. Paiement once again. (AR 1037.) He noted pain, tenderness in certain areas, and difficulty with some motions. ( See id. ) Dr. Paiement suggested physical therapy and a follow-up visit, at which time he could determine whether a steroid injection would be appropriate. ( See id. )

Aetna scheduled another IME for February 12, 2010. (AR 1098-1113.) Aetna hired ICS Merrill to surveil Wong again around the time of her second IME. (AR 1088-97.) Three days of surveillance from February 11-13 yielded contact with Wong only on the 12th, the date of her IME. (AR 1088-89.) On that day, the investigator made contact with Wong just after the IME took place. (AR 1093.) He observed Wong leaving the appointment and having lunch. (AR 1095-96.) He also saw Wong holding her child in her arms while seated and pushing an empty baby stroller while her husband carried the child.[1] ( Id. )

Dr. Peter B. Lum, M.D., carried out the second IME. (AR 1098.) His report reflects pain that " is basically there every day" in " moderate amount," pain that Wong described as sharp and " rated at 10/10[,]" that " causes her to double over." (AR 1099.) Dr. Lum recorded that Wong " needs to sleep with pillows between her legs" and noted that she " uses a brace for back pain as the back pain is severe." (AR 1100.) Dr. Lum wrote that " usually the pain will come and go throughout the day" and that " [s]ometimes she is good for a couple of days," but that " sometimes when walking she has an onset of pain and needs to grab onto her husband." ( Id. ) Dr. Lum provided a thorough summary of the relevant medical records and then provided his findings and completed a capabilities and limitations worksheet. (AR 1102-07; 1110-11; 1112.) In short, Dr. Lum found that " [h]er objective diagnostic test, including plain x-rays of the pelvis, including the symphysis pubis, SI joints, and MRI scan of the low back, hip, and pelvis were all reportedly negative. Her neurological examination was normal." (AR 1110.) He concluded his letter as follows:

In answer to your question as to whether Ms. Wong is able to perform her usual and customary work:
According to the job description for job title: Western Regional Facilities Manager, there is no indication of physical lifting and carrying requirements. In my opinion, on an objective basis, she is able to perform those job duties. (According to Ms. Wong's description of her job to me today, she estimates the heaviest lifting and carrying would be up to 50 pounds. She would need to drive, travel, bend, and lift and carry boxes of documents and files. Her job required her to travel to different cities.)
In answer to your question as to whether she could perform an occupation:

Page 957

. . . In my opinion, on an objective basis, and in consideration of her symptomatic complaints, her physical work capacity is estimated to be as follows, she would be able to perform an occupation that would allow her to alternatively sit and stand and lift and carry maximally 15 pounds, as this is the weight of her child, which she is able to lift and carry . . . . Her ...

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