Blankenship v. Liberty Life - Part 2

First, we must determine whether it is necessary to go beyond the administrative record to determine if Blankenship was disabled under the terms of the policy. The Court finds that it should not be limited to the record before Liberty, because Liberty’s termination of Blankenship’s disability benefits violated ERISA regulations. In accordance with 29 U.S.C. § 1331(1), the Department of Labor promulgated regulations governing the procedural steps that must be followed by a plan in determining whether to terminate or deny benefits. These regulations require a plan administrator to notify a claimant of any adverse benefit determination in a writing which sets forth “in a manner calculated to be understood by the claimant:”

*7 (i) The specific reason or reason for the adverse determination;

(ii) Reference to the specific plan provisions on which determination is based;

(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

(iv) A description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review.

29 C.F.R. § 2560.503-1(g)(1). When Liberty terminated Blankenship’s benefits in April 2000, a reasonable person reading the first denial letter would believe that Liberty’s rationale for terminating the benefits was based on claimant’s failure to submit to alternative surgical treatments. Based on this letter, and despite Liberty’s failure to identify “any additional material or information necessary … to perfect the claim,” Blankenship appealed the decision with a point-by-point challenge to Liberty’s letter. The ERISA regulations require a “full and fair review” of any adverse benefit determination. 29 C.F.R. 2560.503-1(h)(1). This review must be completed and claimant notified “not later than 60 days after receipt of the claimant’s request for review.” Id. at 2560.503-1(i)(1)(i). The time period may be extended if “special circumstances” require, but “written notice of the extension shall be furnished to the claimant prior to the termination of the initial 60-day period.” Id. (emphasis added). Blankenship’s notice of appeal was received by Liberty on June 13, 2000. (VB 241). Liberty did not request more time to complete the review until September 8, 2000. Clearly, Liberty violated these regulations through its failure to conduct the review or notify Blankenship that more time would be necessary within 60 days. Moreover, Liberty’s final denial, mailed September 29, 2000, relied on several new theories for the denial of benefits, while cutting off any further right to review. (VB 181).

Under ERISA, an administrator’s procedural violations do not allow a court to ignore the information relied on by that administrator. Thus, this Court will consider all information upon which Liberty based its denial.

We note, however, that “ERISA and its accompanying regulations were intended to help claimants process their claims efficiently and fairly; they were not intended to be used by the Fund as a smoke screen to shield itself from legitimate claims.” Richardson v. Central States, S.E. & S.W. Areas Pension Fund, 645 F.2d 660, 665 (8th Cir.1981). Any deficiency in the administrative record is clearly due to the manifest failure of the insurance company to follow the proper procedures for denial of benefits and provide the proper opportunities for Blankenship to perfect the record and obtain a full and fair review of the denial of benefits. As a result, this Court will not constrain itself to the administrative record in making the determination of whether Blankenship was “totally disabled” under the policy. ^FN3 With it established that review will not necessarily be limited to the administrative record, we turn to the determination of whether Plaintiff was “totally disabled” under the policy at the time Liberty terminated his benefits in April of 2000.

FN3. Notwithstanding the Court’s determination of the appropriate scope of review, the Court would reach the same conclusion under either the de novo standard or the arbitrary and capricious standard, and whether it considered all evidence, or just the evidence in Liberty’s claim file.

*8 In its trial brief, Liberty argues that Plaintiff was not “totally disabled” within the meaning of the policy. In the alternative, Liberty argues that its denial of benefits should not be overturned because “plaintiff was no longer under the regular care of a physician as of April 19, 2000.” Def. Trial Brief at 17. We will consider each of these points in turn.

The KPMG Long-Term Disability Plan defines “totally disabled” as “unable to perform all of the material and substantial duties of his occupation on a full-time basis because of a disability.” (VB 453) (emphasis added). To receive benefits for the entire eligible period, the insured must provide to the Company “proof of continued total disability and regular attendance of a physician.” (VB 456). The policy also states that such information must be given “upon request.” Id.

After Blankenship underwent brachytherapyfor his prostate cancer, he experienced a total blockage of the urinary tract. As a result, Blankenship required catheterizationin order to urinate. For a five-week period, he was catheterized by a Foley catheter, and thereafter taught to self-catheterize as needed, which he did for nearly nine months. During this time, frequent bladder spasms required Blankenship to self-catheterize 15 to 20 times during each 24-hour period. He experienced repeated bladder infectionsas a result of the self-catheterization.

Eventually, Blankenship ceased the self-catheterization. However, he remained unable to urinate voluntarily, accumulating only about 200 to 250 cc’s of urine in his bladder before suffering involuntary bladder spasms that expelled a portion of the accumulated urine. These spasms necessitated diaper changes between 15 and 20 times each day, causing interruptions to Plaintiff’s sleep, daytime fatigue, confusion and inability to concentrate. Throughout the time period at issue, Blankenship has been on a regimen of medication prescribed by his physicians to manage his symptoms. He continues under the care of Dr. Carl Thomas, whom he sees on a yearly basis as instructed.

Although the burden of demonstrating the existence of the disability rests with the claimant, “one relevant consideration in determining the existence of a disability is whether any significant changes have occurred in the individual’s condition since the insurer’s initial determination that the covered individual was disabled.” Dishman v. Unum Life Ins. Co. of Am., 1997 U.S. Dist. LEXIS 22676 (C.D.Cal.1997). Liberty determined that Blankenship was “totally disabled” in June 1998, at which time it began paying disability benefits. In July 1998, Liberty’s in-house nurse noted:

“Claimant is a tax attorney for Peat Marwick. He is very motivated to RTW [return to work] but until he gets his voiding under control he feels he cannot function at work and I agree. Not only would he be sleep deprived but he would be distracted and preoccupied with his urinary problems. However, that may improve over time and a RTW [return to work] would be feasible at that time.”

*9 (VB 196). Liberty continued to monitor Blankenship’s condition so that it could reevaluate the case based on any forthcoming improvements. However, Dr. Grimm’s evaluation of Blankenship’s mental and physical capacities indicate that Blankenship had lessened functionality in January 1999 and July 1999 than he did in July 1998 when Liberty first began paying benefits. Liberty has provided no evidence that Blankenship’s condition has improved since June 1998.

Rather than demonstrate a “significant improvement” in Plaintiff’s condition to show that he is no longer totally disabled, Liberty insists that it denied the claim, “not because there was no objective evidence of a disability (urinary incontinence), but rather because [Blankenship] had not established that the medical condition precluded him from returning to work.” Def. Trial Brief at 17. This Court finds that the administrative record provides ample evidence that Blankenship’s disability prevented him from performing the duties of his occupation. We also note that Liberty completely neglected to address Plaintiff’s actual duties at KPMG or how he could perform these duties despite his acknowledged disability.

Because the KPMG policy requires a determination with respect to a claimant’s ability to perform “the material and substantial duties” of his own position, it follows that each disability determination under the policy must necessarily depend on what those “material and substantial duties” are. (VB 489). The record itself is surprisingly silent on Blankenship’s actual duties as a Senior Tax Consultant at KPMG, and Liberty never defines Plaintiff’s “material and substantial duties” at KPMG. For his part, Blankenship argues that the duties of his position as a Senior Tax Consultant at a reputable accounting firm involved a high level of mental acuity and concentration.

Liberty did not ask either of the two “independent” physicians who reviewed Blankenship’s file to evaluate his condition as it related to his duties at KPMG. In fact, it is not clear that either doctor even knew what Blankenship’s duties at KPMG were. It is also undisputed that neither physician ever met with, examined, or treated Blankenship, despite the fact that the policy gives Liberty the “right and opportunity” to do so “as often as reasonably required.” (VB 468).

As Liberty points out, Dr. Nieh’s report concluded that “Yes, it is reasonable that this patient could return to work with or without employer accommodations and/or with reasonable medical care.” (VB 258). A full reading of Dr. Nieh’s report, however, indicates that Dr. Nieh’s conclusion was predicated on Blankenship submitting to an invasive surgery, against which Blankenship’s own treating physicians had advised. Dr. Nieh wrote that there was a good to excellent chance that the surgery would improve Blankenship’s symptoms, and that Blankenship “certainly could be no worse off than he is now.” (VB 258). Dr. Nieh also opined that resuming self-catheterization would allow Blankenship to return to work. (VB 258). However, Dr. Nieh did not mention the risks of self-catheterization, nor Dr. Grimm’s opinion that frequent self-catheterization was partially responsible for the damage to Blankenship’s urethra. (VB 243).

*10 After Blankenship appealed the first denial of benefits, Liberty engaged Dr. Donald Abbott to review Blankenship’s file and write a second report. Like that of Dr. Nieh, Dr. Abbott’s report makes no mention of Blankenship’s duties at KPMG in concluding that “there is no apparent impairment sufficient enough that would prevent him from having work capacity to do his own occupation at this time.” (VB 205). Dr. Abbott supports this assertion with vague statements like: “many people with urinary incontinence frequently work” and “it appears he may well have functional capacity.” (VB 206). Unlike Dr. Nieh, however, Dr. Abbott clearly acknowledges that self-catheterization “may be traumatic to his urethra and bladder neck, and therefore may be contraindicated.” Id.

The evidence Liberty employs to draw a picture of Blankenship’s functioning is selective and misleading. In its trial brief, Liberty recites the results of Dr. Grimm’s physical capacities evaluation dated July 1999 as support for Liberty’s “determination that plaintiff was no longer disabled under the policy.” Def. Trial Brief at 13. Dr. Grimm’s evaluations, which were completed at Liberty’s behest on forms created by Liberty, quantify Blankenship’s level of functioning with regard to both mental and physical capabilities. These forms appear to be generic, containing no indication of which capabilities are most relevant to Blankenship’s duties at KPMG. Liberty also makes no mention of how Blankenship’s physical capabilities relate to his duties. More importantly, Liberty’s trial brief fails to mention the two Mental Status Functional Capacities Forms, dated January and July 1999, which classify most of Blankenship’s mental functions as “significantly” or “moderately” restricted due to his disability. ^FN4 In the eyes of this Court, a medical opinion finding that a Senior Tax Consultant has “significant” restrictions on his ability to sustain work performance, cope with work pressure, or concentrate is more helpful in determining whether that patient is able to perform his work duties on a full-time basis than a medical opinion stating that the Senior Tax Consultant is able to “lift” ten percent or “type” thirty percent of an eight hour day.

FN4.Though Liberty fails to acknowledge them in its trial brief, the final denial letter did discuss the latter two Mental Status Capacities Forms. However, that letter appears to dismiss the “significant” restrictions on Blankenship’s mental capacities because of a lack of evidence that Blankenship underwent treatment or “psychological testing” for “inability to concentrate, decreased attention span, decreased ability to cope, or other complaints …” (VB 179). Thus, Liberty is unwilling to rely on the answers provided to its own questions by Blankenship’s physician, instead requiring corroborative proof in the form of separate medical treatment for the side-effects caused by the disability. Liberty did not point to any support for this stance in the policy. As the Supreme Court recently observed, “plan administrators, of course, may not arbitrarily refuse to credit claimant’s reliable evidence, including the opinions of a treating physician.” Black & Decker Disability Plan v. Nord,538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Neither did Liberty provide Blankenship any opportunity to otherwise corroborate his symptoms, as the same letter in which this rationale is first raised also deems his right to review “exhausted.” (VB 178-181).

In its trial brief, Liberty also relies on a statement made by Dr. Thomas to Liberty’s in-house nurse that Dr. Thomas did not believe Blankenship was disabled. There are several problems with this evidence. First, the evidence of this statement is second-hand and based on notes made by Liberty’s own nurse after a phone call with Dr. Thomas. If Dr. Thomas believed that his patient was not disabled and told the insurer his opinion, it is difficult to understand why Liberty would not obtain an official opinion in writing. Second, assuming Dr. Thomas’s statement was made as recorded, it suffers from the same deficiency as those of Drs Nieh and Abbott-namely, that it fails to address how Blankenship’s condition relates to his duties at KPMG. In fact, as Liberty relates it, Dr. Thomas also acknowledged that Blankenship suffered from a urologic condition. (VB 191). Dr. Thomas’s subjective opinion that this condition did not render Blankenship “disabled” is insufficient under the policy unless it is the result of a specific finding that Blankenship was able to perform his material and substantial duties on a full-time basis, despite his urologic condition. Finally, Liberty never relied on Dr. Thomas’s statement in either the initial denial or final denial letter, depriving Blankenship of any opportunity to ascertain the context of the statement or otherwise rebut it.

*11 This Court’s de novo review must determine whether Plaintiff was “totally disabled” as defined by the policy as of April 2000. Because the policy defines “totally disabled” as unable to perform the duties of claimant’s occupation on a full-time basis, this Court must make its determination in the context of Blankenship’s actual duties at KPMG. Despite Liberty’s failure to address these duties, the Court finds sufficient evidence in the administrative record to support a general understanding that Blankenship’s duties as a Senior Tax Consultant were intellectual in nature and consisted of client interaction and meetings. Liberty does not deny that Blankenship suffers from bladder dysfunction, nor that this dysfunction causes frequent bladder spasms and leakage which require significant attention. This Court finds that the acknowledged bladder dysfunction, with resultant sleep interruption and emotional degradation, would necessarily have a significant adverse impact on a person’s ability to perform sustained intellectual activity and conduct professional client meetings.

Liberty’s failure to make any mention of Blankenship’s specific duties at KPMG, or how the various medical evaluations relate to those duties, clearly falls short of the standard required by the policy. The administrative record clearly reveals, and Liberty admits, that Blankenship suffers from a disability. This disability was deemed sufficient to render him eligible for benefits in June 1998. Subsequent medical reports show that Blankenship’s functionality continued to deteriorate. Liberty requested and received these reports, which show low functioning of mental capacities directly relevant to Blankenship’s actual duties. However, Liberty insists that it denied the claim, “not because there was no objective evidence of a disability (urinary incontinence), but rather because [Blankenship] had not established that the medical condition precluded him from returning to work.” Def. Trial Brief at 17. The Court finds the evidence directly contrary. On three separate occasions, Blankenship’s physician, Dr. Grimm, filled out the forms Liberty sent him. When Blankenship himself was contacted in January 2000, Liberty’s own in-house nurse asked him if he thought he could begin to work out of his home, to which he answered that he didn’t think it was realistic because he could not take client meetings. (VB 189). After speaking with Blankenship, Liberty’s nurse confirmed in the notes her assessment that “practical prognosis for claimant return to gainful employment poor.” Id. Nevertheless, Liberty terminated Blankenship’s benefits four months later.

In sum, the administrative record shows indisputable evidence that Blankenship suffers from a disabling medical condition. After Liberty first granted disability benefits, Blankenship’s physician submitted evaluations showing a worsened condition and significant restrictions on Blankenship’s mental capabilities. The independent doctors’ reports obtained by Liberty lack any evaluation of Blankenship’s disability with respect to his actual duties at KPMG. Finally, nothing in the administrative record addresses how Blankenship could return to work with his acknowledged disability and adequately perform the duties of his specific occupation on a full-time basis. For these reasons, this Court finds that Blankenship was “totally disabled” under the policy as of April 2000.

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