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Brown v. Connecticut General Life Insurance Co.

United States District Court, N.D. California

December 17, 2014

PAULA BROWN, Plaintiff,

For Paula Brown, Plaintiff: Ryan Hideki Opgenorth, LEAD ATTORNEY, Pillsbury & Coleman LLP, San Francisco, CA; Terrence J. Coleman, LEAD ATTORNEY, Pillsbury & Coleman LLP, Transamerica Pyramid, San Francisco, CA; Michael James Quirk, Pillsbury & Coleman LLP, The Transamerica Pyramid, San Francisco, CA.

For Connecticut General Life Insurance Company, Defendant: Adrienne Clare Publicover, Francis Jude Torrence, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, San Francisco, CA.


PHYLLIS J. HAMILTON, United States District Judge.

The parties' cross-motions for judgment under Federal Rule of Civil Procedure 52 came on for hearing on October 29, 2014. Plaintiff appeared by her counsel Ryan Opgenorth, and defendant appeared by its counsel Adrienne Publicover. Having read the papers submitted by the parties and carefully considered their arguments and the relevant legal authority, the court hereby DENIES plaintiff's motion and GRANTS defendant's motion.


Plaintiff Paula Brown seeks reinstatement of a " waiver of premium" benefit under group life insurance coverage offered by her former employer, Life Insurance Company of America (" LINA"), a subsidiary of defendant Connecticut General Life Insurance Company (" CGLIC"). The policy and this action are governed by the Employment Retirement Income Security Act of 1974 (" ERISA"), as amended, 29 U.S.C. § 1001, et seq.

Plaintiff was employed by LINA for 24 years, initially working as a claims adjuster, and later as a Senior Account Executive. She received several awards and commendations, and was ranked #1 in insurance sales for many years. As an employment benefit, LINA provided plaintiff with self-insured short-term disability (" STD") coverage, long-term disability (" LTD") coverage, and life insurance coverage.

The LTD Policy contained an 18-month " own occupation" definition of disability, followed by an " any occupation" definition. It also contained a 24-month limitation on payment of benefits for disability caused by certain enumerated conditions, including depressive disorders and mental illness (" the Mental Illness provision").

Plaintiff's life insurance coverage, which is at issue in this action, is under CGLIC group life insurance policy number GUM 102600, certificate number 2024602 (" the Life Policy"). Administrative Record (" AR") 416-417, 442. The insurer and underwriter of the Life Policy is CGLIC. Plaintiff elected $342, 000 in coverage under the Life Policy, although by the time she ceased working because of her disability, the death benefit had increased to $594, 000.

Plaintiff has always been required to pay premiums for this coverage, because it is optional under the employee benefit plan. Those premiums are waived if the beneficiary becomes " Totally Disabled, " as defined in the Life Policy, before age 60, as long as she provides continuing proof that she is Totally Disabled (defined as " completely unable to engage in any occupation for wage or profit because of injury or sickness"). AR 475-476.

The Life Policy provides that " [s]uch proof of Total Disability must be submitted to the Insured Company no later than one year from the date the . . . Insured becomes Totally Disabled." AR 475. Once the premium has been waived for one year, it will be waived for further periods of one year if the insured " remains continuously Totally Disabled" and " submits to [CGLIC] during the three months before the end of each such one-year period, proof of the continuation of Total Disability." AR 475; see also AR 787.

In the fall of 2000, plaintiff began suffering from a number of conditions, ultimately including symptoms of major depressive disorder, hypertension, chronic pain, severe headaches, lightheadedness, dizziness, chronic fatigue, insomnia, anhedonia, anergy, and suicidal ideation, along with psychomotor retardation, memory problems, and concentration difficulties.

In November 2000, plaintiff submitted a claim for STD benefits, which was initially denied on the basis that plaintiff's doctors had not provided any " objective medical evidence" to substantiate her disability. AR 343. After plaintiff appealed the decision, it was overturned, based in part on the further submissions of her treating physicians -- Dr. Andrew Krompier and Dr. Bruce Robertson. AR 310-313, 345.

CGLIC referred plaintiff for evaluation to a psychologist, Tatiana Novakovic-Agopian Ph.D, who saw plaintiff on April 24 and May 1, 2001, and issued a report in early May 2001. AR 247-254. Dr. Novakovic-Agopian's diagnosis was Major Depressive Disorder, severe, without psychotic features (296.23) and Cognitive Disorder NOS (294.9). She also noted that plaintiff had been diagnosed with hypertension, headaches, occupational and health problems. She recommended a head MRI or CT scan to further clarify plaintiff's symptoms, and an evaluation for a different antidepressant medication or increased dosage, and suggested plaintiff might benefit from more intensive psychotherapy treatment.

In March 2001, plaintiff submitted a claim for LTD benefits. See AR 348-349. The basis of her claim of total disability was that she suffered from mood and cognitive disorders. She claimed no physical limitations. Her LTD claim was approved in May 2001. On January 17, 2003, LINA wrote plaintiff a letter explaining that, because her primary disability was caused by Major Depressive Disorder, the Mental Illness provision would apply, and her benefits would end on May 22, 2003, unless she could show she was unable to perform the duties of any occupation based on a physical condition. AR 150. Plaintiff's husband Larry Brown appealed the proposed termination of benefits on plaintiff's behalf on February 10, 2003. AR 148.

On May 2, 2003, while the LTD appeal was pending, plaintiff underwent a neurological assessment with Michael Greicius, M.D., Clinical Instructor in the Department of Neurology and Neurological Sciences at Stanford University Medical Center. The assessment was performed at the request of plaintiff's internist, Dr. Robertson, and was not ordered by LINA. AR 67. Dr. Greicius' May 2, 2003 report indicated that plaintiff appeared depressed, but he also remarked on " several instances throughout the examination suggestive of poor effort or a tendency to exaggerate difficulty with a certain task (such as when trying to touch her finger to her nose with eyes closed and touching her forehead"). AR 68. A brain MRI appeared to him to be normal. AR 69.

On the same day, plaintiff participated in a formal neuropsychological assessment conducted by Peter Karzmark, Ph.D., Clinical Assistant Professor of Neurology at Stanford. Dr. Karzmark's May 16, 2003 report stated that a test for exaggeration of cognitive function was administered in part because of suspicion of external motivation for claiming illness or disability. AR 892. Because plaintiff performed at such a low level, Dr. Karzmark concluded that the test results were " strongly suggestive" of exaggeration of her claimed cognitive dysfunction. AR 893. He also found that her remaining formal assessment test results were " strongly influenced by exaggeration and not to be indicative of her level of cognitive functioning[, ]" and that her claimed severe depression was unsupported by the assessment, which revealed no more than " minimal depression." AR 895.

In a letter dated June 16, 2003, LINA advised plaintiff that plaintiff's LTD claim was being denied based on the Mental Illness limitation. AR 52-55. The letter stated that plaintiff had provided LINA with a letter indicating that she was disabled due to a physical condition, and that she had asked that LINA obtain additional medical information. The letter stated further that LINA had written to plaintiffs' medical providers (Drs. Robertson, Krompier, and Greicius) asking specific questions and also requesting office notes. AR 53-54.

The letter stated that Dr. Krompier responded in February 2003, but failed to complete the physical assessment form, and also did not provide office notes but instead requested that LINA send " a copy service." He provided a list of medications plaintiff was taking. AR 53. Dr. Robertson also responded in February 2003, stating he was sending medical records (though none were enclosed) but that his office was not equipped to perform a Physical Abilities Assessment. Dr. Robertson finally provided office notes in April 2003, which did not show any physical disability.

In particular, the notes from January 18, 2002 and February 24, 2003 showed plaintiff's hypertension was under control, and notes from September 2002 reflected a normal EEG. AR 53-54. Dr. Greicius provided a report dated May 2, 2003, stating that on examination, plaintiff provided poor effort with a tendency to exaggerate difficulty, and that the MRI exam and neurological exam were both normal. AR 54. Dr. Krompier also had an EEG and MRI performed, and both were negative for disability due to a physical condition. AR 54. Plaintiff did not file a further appeal. Nor did she seek judicial review of the decision.

In December 2006, plaintiff submitted a claim to CGLIC's life insurance claim division for an LWOP under the group life insurance coverage. AR 1055-1056. CGLIC requested that plaintiff complete a Waiver of Premium Proof of Loss Form and a Disability Questionnaire and Disclosure Authorization (so that CGLIC could obtain necessary medical evidence to support plaintiff's claim), and that she have her doctor complete an Attending Physician Statement (" APS"). AR 1036-1037, 1056-1057.

In her January 7, 2007 Disability Questionnaire, plaintiff claimed " significant deterioration of cognitive functioning and abilities" as well as " uncontrollable hypertension" and migraine headaches. She indicated she was able to shower and dress herself, and drive, watch TV, and shop " minimally, " but that she otherwise engaged in no activities other than occasionally going boating with her husband on the weekends. She asserted that her " severe mental illnesses" would not allow her to work. AR 1018.

In response to CGLIC's records request, plaintiff's therapist Noga Dreifuss, MFT, submitted plaintiff's records and psychotherapy notes from June 2003 to January 2007. Dr. Robertson, plaintiff's internist, also provided all of his office visit notes. Based on those records, CGLIC approved plaintiff's LWOP claim on March 5, 2007, noting that the benefit would continue for one-year periods " if we receive proof that total disability, as defined by your policy, continues." CGLIC added that " [w]e will contact you on an annual, or as needed basis, to request a current statement of your continued disability. Your life insurance premiums will be waived as long as you remain continuously disabled." AR 830, 833.

For the next four years, CGLIC continued the LWOP benefit based on documentation and certifications provided annually by Dr. Robertson, plaintiff's internist, AR 789-801, although both Dr. Robertson (AR 815) and plaintiff's husband Mr. Brown (AR 798-799) also questioned the necessity of providing annual certifications of continuing disability.

In a May 12, 2011 letter to plaintiff again continuing her benefits (AR 787), CGLIC Technical Specialist M. Scott Donelli reminded plaintiff of the policy provisions applicable to the LWOP benefit, including the requirement that she remain continuously Totally Disabled, and that she provide proof of continuation of Total Disability. He added that " next year we will likely require a medical records update because our auditors require our medical staff to periodically update our files." AR 787-788.

On February 22, 2012, a CGLIC Waiver Claim Specialist wrote to plaintiff requesting that she complete a new Waiver of Premium Questionnaire. As completed by plaintiff, the form, dated June 6, 2012, contained minimal information. She noted that her husband had helped her complete the form. AR 761. In response to the question, " Tell us why you cannot work in your own occupation, " plaintiff answered, " Totally disabled." In response to the question, " Tell us why you cannot work in any occupation based on your education, training, and work experience, " plaintiff answered, " Cognitive impairment, severe depression." AR 760.

Plaintiff stated she was not working and was not interested in career options, and that she could not use a computer and that she was " not computer literate." AR 760. She indicated she engaged in no activities other than " enjoy[ing] the beauty of the garden and looking at home magazines." AR 762. She stated that they had a housekeeper and gardener to do housework and yardwork, and that her husband " shops for groceries and picks up meals." AR 762.

In response to the request for the names of " doctors" she sees " regularly, " plaintiff provided only two names -- Andrew Krompier, M.D., her psychiatrist (whom she said she saw " every other month"), and Noga Dreifuss, M.S. (whom she said she saw " monthly"). AR 762.

At plaintiff's direction, Dr. Robertson also provided a new certification form and extensive medical records. AR 768-772. However, while he stated on the form (dated May 24, 2012) that plaintiff was " permanently disabled, " he also stated that he was " unable to comment regarding pt's mental impairments." AR 770. Recent office notes from Dr. Robertson indicated that he continued to treat plaintiff for hypertension and hyperlipidemia (high cholesterol). AR 719-721. Notes from the September 26, 2011 office visit state that " [t]he patient feels quite well." Her blood pressure was recorded at 140/84. AR 721. Both the hypertension and the hyperlipidemia were reported to be " improved." AR 722. The office notes for March 5, 2012 state that " [t]he patient feels OK (at least physically). AR 719. At her March 11, 2012, office visit, her hypertension was noted to be " improved" -- 134/84. AR 720.

Starting in June 2012, CGLIC began attempting to obtain records and completed behavioral health questionnaires from Dr. Krompier and Ms. Dreifuss. AR 709-710; see also AR 684-686. On June 21, 2012, CGLIC requested that Dr. Krompier submit a completed Behavioral Health Questionnaire, plus " Office and Treatment notes, Therapy Notes, Consultation Reports, Operative Reports, Radiology Reports, Admission and Discharge Summaries, any test results and/or any labs" dated from January 2011 through the date of the request. CGLIC also requested " any objective test results even those outside the requested date range that will support your patient's condition and better help us understand their level of function." AR 709.

Also on June 21, 2012, CGLIC requested that Ms. Dreifuss submit a completed Behavioral Health Questionnaire, as well as copies of " medical records, consultation reports, operative reports, hospital admission and discharge summaries, test, x-rays, and lab results and therapy notes" from January 2001 to the date of the requests. AR 710. CGLIC made similar requests of Ms. Dreifuss on July 16, 2012, and August 9, 2012. AR 686, 691. CGLIC also left a voicemail message for Ms. ...

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