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Hertan v. Unum Life Insurance Company of America

United States District Court, C.D. California

June 9, 2015

GAYE HERTAN, Plaintiff,


PERCY ANDERSON, District Judge.

This is an Employee Retirement Income Security Act ("ERISA") action for recovery of partial disability benefits. Plaintiff Gaye Hertan ("Plaintiff" or "Hertan") seeks benefits under a group insurance policy (the "Policy") issued to Seyfarth Shaw, LLP by defendant Unum Life Insurance Company of America ("Defendant" or "Unum").

After providing Plaintiff with an opportunity to conduct limited discovery concerning the potential conflicts of interest under which Unum's medical experts may have operated. Plaintiff has requested that the Court take judicial notice of Unum's discovery responses. (Docket No. 60, Attachment No. 3.) Although Unum disputes the relevance of the evidence, it does not object to the Request for Judicial Notice. The Court therefore takes judicial notice of Unum's interrogatory responses. See Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir. 1995) ("We agree... that new evidence may be considered under certain circumstances to enable the full exercise of informed and independent judgment.... Consequently, we adopt a scope of review that permits the district court in its discretion to allow evidence that was not before the plan administrator. The district court should exercise its discretion, however, only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.'") (quoting Quisenberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)).[1]

Unum filed the Administrative Record ("AR") (Docket No. 37). Following the filing of the parties' Opening and Responsive Trial Briefs, the submission of their respective Proposed Findings of Fact and Conclusions of Law, and their objections to each other's Proposed Findings of Fact and Conclusions of Law, the Court, sitting without a jury, conducted a bench trial on June 9, 2015.

Having considered the materials submitted by the parties and after reviewing the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Any finding of fact that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact.

I. Findings of Fact

1. This is an action for recovery of long term disability benefits under ERISA. This Court has jurisdiction of this matter pursuant to 29 U.S.C. §§ 1132(a), (e), (f) and (g), as well as 28 U.S.C § 1331.

2. Venue is proper in this district because a substantial part of the events giving rise to the claim occurred within the Central District of California. 28 U.S.C. § 1391(b)(2).

3. The parties have stipulated that the trial of this action is subject to the Court's de novo review. (Docket No. 24.)

4. Plaintiff is a practicing attorney and has been employed by Seyfarth Shaw in its Los Angeles office since 1993. (AR 005.) Prior to her disability, plaintiff's monthly earnings were $20, 833.34. (Id.) She was classified as "Senior Counsel" to the Firm.

5. According to the job description Unum requested from Seyfarth Shaw, the position of "Senior Counsel" requires managing client matters without supervision and performing legal work at a level similar to experienced Income Partners or Equity Partners. (AR 282.) Hertan was responsible for advising and representing clients in "all aspects of labor and employment law." (Id.) Her focus was to include issues involving FMLA and state statutory employment laws. (Id.) She was expected to commit the time, both billable and investment, to meet and exceed firm expectations. (Id.) She was expected to "have established a consistent record of delivering excellence and demonstrated a sustained record for solving complex problems in the delivery of legal services to the benefit of firm clients." (Id.) As a Senior Counsel, Plaintiff was also required to exhibit superior judgment and assume responsibility for results. (Id.)

6. For attorneys such as Plaintiff, the Policy defines "disability" as:

You are disabled when Unum determines that:
• you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and
• you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.

(AR 151.) The Policy defines "regular occupation" to mean "the occupation you are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location." (AR 171.)

7. Plaintiff had been ill for several months prior to her disability. (AR 195.) In early October 2010, she had been experiencing headaches for several days. On October 6, 2010, while at work, Plaintiff became dizzy and nauseous and threw up in the building lobby. She was unable to drive home and called her husband to pick her up. The next day, she went to the Emergency Department at St. John's Hospital and was diagnosed with a large brain tumor (meningioma). (Id.) She had surgery to remove the tumor on October 8, 2010. (AR 313.) During the surgery, her neurosurgeon, Dr. Daniel Kelly, removed the tumor and inserted plates and screws in her head. (AR 313-16.)

8. Hertan was discharged three days after her surgery. (AR 309.) Following her discharge, she reported that her headaches had significantly decreased, but as of October 19, 2010, she was still taking prescribed narcotics, including Percocet, for the headaches she was still experiencing. (Id.)

9. Dr. Kelly recommended that Plaintiff not work from October 7, 2010, through November 28, 2010. (AR 563.) Plaintiff returned to work on a part time basis on November 29, 2010. (AR 068.). Dr. Kelly recommended that Hertan be limited to light duty, and work no more than 50 to 70% of her prior work capacity from November 29, 2010, through March 2, 2011. (AR 563.)

10. Dr. Nancy McLaughlin, an associate of Dr. Kelly's, examined Plaintiff on January 11, 2011, for a three-month follow-up. (AR 307.) During that examination, Hertan reported "superficial pain in the right retromastoid area" that occasionally woke her up at night and had been getting worse. (Id.) Plaintiff was taking Tylenol and Percocet for the pain. (Id.) Dr. McLaughlin reported that Plaintiff was "doing very well" and instructed Hertan to make sure that her work schedule remained light for the next few weeks. (Id.)

11. Dr. Kelly referred Plaintiff to Dr. Sheldon Jordan, a neurologist, for treatment of her persistent "peri-incisional" pain. (AR 379.) Hertan's first appointment with Dr. Jordan occurred on March 1, 2011. (AR 261.) Dr. Jordan prescribed Percocet for Hertan's pain. (Id.) Plaintiff continued to treat with Dr. Jordan for her pain and in a follow up visit in May 2011, Dr. Jordan continued to prescribe Percocet. (AR 260.) Dr. Jordan's records documented his findings as occipital neuralgia. (Id.) Dr. Jordan restricted Plaintiff to part time work (working no more than 4 hours a day). (AR 249.)

12. Seyfarth Shaw continued to pay Hertan her full salary until May 2011. Plaintiff made a claim for long term disability benefits to Unum in May 2011. (AR 066.) Seyfarth Shaw confirmed that it had reduced Hertan's pay to 60% of her normal pay. (AR 275.)

13. During a telephone conversation with Unum on June 3, 2011, Plaintiff reported that she was taking the pain medications meloxicam, endocet (Percocet), and Lyrica. (AR 196.) During this same phone call, Unum asked Hertan if she was experiencing side effects from the medication. Hertan reported that the medication made her tired and a little dizzy. (Id.) She also reported that her head pain increased with her activity and that it had been difficult to work because her occupation required her to focus. (Id.)

14. In a follow up telephone call between Unum and Hertan on June 7, 2011, Hertan reported that she could not work at all on some medications. She reported that the endocet made it hard to focus. (AR 248.)

15. Unum conducted roundtables of claims personnel to assess Plaintiff's claim on June 22, 2011, and June 27, 2011. (AR 286, 348.) Unum's claims personnel concluded, based on their review of the records, that is was unclear why Plaintiff was unable to return to work full-time. (AR 348.)

16. Unum referred the matter to Dr. Sabrina Hammond, an in-house medical consultant, for a peer contact with Dr. Jordan. (AR 363, 371-72.) Dr. Hammond asked Dr. Jordan if he thought Hertan was "physically capable of her previous level of functional activity" and, if not, to explain the rationale for his opinion, treatment plan, and prognosis. (AR 372.)

17. Dr. Jordan responded to Dr. Hammond's inquiry on July 25, 2011. (AR 375-77.) According to Dr. Jordan, Plaintiff was not physically capable of her previous level of functional activity due to constant neuralgias. (AR 377.) Dr. Jordan opined that the surgical removal of the menigioma required moderation and caused limited concentration and daytime capacity. (Id.).

18. Unum approved plaintiff's claim under a reservation of rights on July 29, 2011. (AR 405.) Unum then requested that an in house physician, Dr. David Lezberg, review the claim. (AR 414.)

19. Dr. Lezberg confirmed that restrictions and limitations were supported. (AR 418.) His stated conclusions were:

• Ms. Hertan was experiencing post craniotomy neuropathic pain that was termed occipital neuralgia by her physician, Dr. Sheldon Jordan.
• The exact incidence of neuropathic pain following a craniotomy is unknown, but is low.
• In patients experiencing such pain, the examination of the area ...

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