ROBERT J. CONRAD, JR., Chief Judge.
Plaintiff Mark Worsley
After he recovered from the accident, Worsley returned to Duke Energy in 1997. He was first given a desk job, but he then returned to his previous position as a line technician. Worsley passed an annual line technician physical for several more years while working in this position. He states that the Duke Power physician during this period cleared him to work as a line technician despite his taking the narcotic Methadone for pain, which should have disqualified him from the job. Then, when Duke Energy hired a new physician to conduct the annual physicals, Worsley was disqualified for the position as a line technician because he was taking prescription pain medications.
Worsley was given a job in dispatch, described as a "sit down" job. He then reported that his medications made him drowsy when he was not actively occupied at work. Worsley reported to his doctor that the decreased activity at the new position at times caused him to fall asleep at his desk. Problems with his supervisor and Aetna's inability to accommodate Worsley ultimately led to his leaving Duke Energy's employment in 2001. Worsley's final day of work at Duke Energy was April 8, 2001. Worsley filed a claim for long-term disability ("LTD") benefits in July 2001, and Duke initiated a claim with its LTD insurance carrier, Aetna, on his behalf.
By letter dated October 19, 2001, Aetna advised Worsley that he met the "usual occupation" definition of disability (that he was unable to work at his "usual occupation" as a line technician). Aetna thus approved his claim for LTD benefits, and he was eligible to receive LTD benefits beginning on October 12, 2001. Aetna explained to Worsley in the October 19, 2001, letter that after the first twenty-four months of disability (after October 12, 2003), he would need to meet the more stringent "any occupation" definition of disability to remain eligible for LTD benefits. The Summary Plan Description
(Doc. No. 41-6 at 28).
Worsley has a history of physical pain, stemming from a shrapnel injury to his shoulder suffered in Vietnam in 1969 for which he underwent three surgeries, and orthopedic problems resulting in a 1983 cervical fusion of his neck vertebra. In 1996, the auto accident in which Worsley was involved left him in a coma for at least thirty days, with two toes on his left foot amputated, and with fractures of his clavicle, right leg, and several ribs.
In the years following the accident, while working again for Duke Energy, Worsley was treated by multiple physicians for various complaints of pain. His physical complaints after the accident involved arm numbness, cervicalgia (neck pain), and other chronic pain. In January 1998, Dr. Chewning, the orthopedic surgeon who had performed Worsley's 1983 cervical fusion,
In May 1999, Worsley underwent a CT scan, which revealed a breakdown of the cervical fusions at the C3 to C4, C5 to C6, and C6 to C7 vertebrae.
Worsley reported increased pain in his upper and lower extremities, including arm numbness, in April of 2001. He underwent an MRI of his spine on May 30, 2001, which found no significant neuron compressions, and the neurologic exam was normal. Dr. Mark B. Harman of Miller Orthopaedic explained to Worsley that he would continue to have the various symptoms he was experiencing, but that there was little more they could do at that time.
Dr. Taub treated Worsley throughout the period between April 2001 and Aetna's
Worsley worked at his cabinet-making business after leaving Duke Energy in April 2001. He was self-employed at this business throughout the disability period from April 2001 to May 2006 and reported that he worked four hours per day and that it represented his sole source of other income. Aetna discovered in May 2005, based on the pay stubs Worsley submitted, that his monthly salary may have increased from $500 to $700. Also in 2005, Dr. Taub reported after two consecutive office visits that Worsley "continues to note a greater than 50% amelioration of pain" and an "overall 30 to 50% average amelioration of pain." (Doc. No. 40-6 at 47, 48). These facts prompted Aetna to investigate whether Worsley had increased his hours at work and whether he continued to meet its definition of disability.
As a part of the investigation, Aetna requested that Dr. Taub and Worsley each complete questionnaires relating to Worsley's capabilities and physical condition. Dr. Taub reported on January 21, 2006, that Worsley was diagnosed with cervicalgia, noting that Worsley experienced chronic neck, back, and leg pain. He explained that Worsley's condition had worsened, and that he was "too impaired" to work and had "no ability to work" and was "incapable of minimal activity."
Aetna arranged for the surveillance of Worsley on January 31, February 2, and February 3, 2006, and Worsley was interviewed at his office on February 3, 2006. The surveillance revealed Worsley was at work more than eight hours per day, which he confirmed in the interview. Worsley, however, explained that his average work day included a significant amount of time spent sleeping in his office because his medications made him drowsy. (Doc. No. 40-6 at 42, 43). He stated that some of his work activities included the following: inputting cabinet data from blueprints into a computer program, saving the data to disk, and transferring the disk to the workshop to be loaded onto the router's computer so that the router could make precise cabinet or shelving pieces; and occasionally operating the forklift, but never lifting or carrying the boards.
Because Dr. Taub's description of Worsley's condition conflicted with the surveillance, Aetna sought clarification from Dr. Taub regarding his diagnosis. Aetna provided Dr. Taub with the surveillance video and Worsley's statements. On March 8, 2006, Dr. Taub explained in a letter that, to his knowledge, Worsley worked a maximum of approximately six hours per day at a sedentary level, and that he would continue to limit Worsley to this level of activity.
Aetna requested that Worsley partake in a FCE on April 26, 2006, because of the
The FCE concluded that Worsley was capable of working full time at a medium level capacity. Looking then to Worsley's self-reported work activities and the FCE, Aetna conducted a TSA to determine whether there were other occupations for which Worsley was reasonably qualified. The TSA concluded that there were occupations for which Worsley was qualified and which he was able to perform, including warehouse supervisor and furniture assembly supervisor, among other positions. The TSA further noted that there were multiple potential employers for these other positions in the Charlotte, North Carolina area.
Aetna notified Dr. Taub in writing of the April 2006 FCE, explaining that it concluded Worsley could work full-time at a medium level. On May 9, 2006, Dr. Taub responded with the opinion that, in light of the FCE, Worsley could work at a medium level capacity, but that he still recommended limiting Worsley to a maximum of six hours of work per day because of pain and the likelihood of increased pain with a full work day.
On May 24, 2006, Aetna presented the conflicting evidence, including Dr. Taub's multiple reports, the surveillance, Worsley's self-reported work activities, the FCE, and the TSA to Dr. Anfield, Aetna's medical director. After reviewing the materials, Dr. Anfield concluded that Dr. Taub's final restrictions and limitations were speculative and that the restriction of six hours per day lacked objective support.
Aetna terminated Worsley's LTD benefits by letter dated May 24, 2006. On March 26, 2007, Worsley appealed the decision. The appeal letter included eighty-five pages of medical records, some of which had not been previously provided to Aetna.
Aetna sent Worsley's entire file to Dr. Eddie Sassoon, a physiatrist and pain management specialist, for a clinical functional impairment review. After reviewing the entire claim file, Dr. Sassoon initially reported that Worsley was capable of full time work at a sedentary, rather than a medium level. Correspondence between Aetna and Dr. Sassoon indicates that Dr. Sassoon may have confused terminology. In his initial report, Dr. Sassoon stated "I would feel that the claimant is able to perform in the sedentary functional level... on a full time basis." (Doc. No. 40-6 at 11). In the same report, however, Dr. Sassoon stated "it does not appear that the restrictions or limitations outlined by the treating provider [Dr. Taub] are appropriate based on the current documentation reviewed. (Id.).
Aetna sought clarification from Dr. Sassoon regarding his opinion as to the maximum functional capacity at which Worsley was capable of performing. Dr. Sassoon, after attempting unsuccessfully to contact Dr. Taub for more information, clarified his opinion. He concluded that Worsley was capable of "medium functional activity with no further restriction or limitations other than medium functional limits of 50 pound lift...." (Doc. No. 40-5 at 36). Dr. Sassoon added that "[t]here are no further updates beyond the day of the FCE including clinical findings indicating objective or functional impairments that would preclude medium level functional activity." (Id.).
In a letter dated June 6, 2007, Aetna upheld its termination of Worsley's LTD benefits. Aetna also informed Worsley that its decision in this regard was final, and of his rights under ERISA to file a civil action.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant has the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 322 n. 3, 106 S.Ct. 2548. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324, 106 S.Ct. 2548. The nonmoving party must present sufficient evidence from which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.1995).
When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "`Where the Record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Ricci v. DeStefano, 557 U.S. ___, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Courts review de novo a denial of benefits claim under § 1132(a)(1)(B) of ERISA, "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When such discretionary authority is vested in the administrator, the Court's review is limited to whether the administrator abused its discretion. Id. at 111, 109 S.Ct. 948; Bernstein v. Capital-Care, 70 F.3d 783, 787 (4th Cir.1995). Under an abuse of discretion standard, an administrator's decision "will not be disturbed if it is reasonable, even if this court would have come to a different conclusion independently." Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir.1997), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). When determining whether a decision was reasonable, a court may consider the following eight factors:
Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, 359 (4th Cir.2008) (quoting Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 342-43 (4th Cir.2000)). The Booth factors are but a more particularized statement of the Court's basic inquiry: whether the decision was "the result of a deliberate, principled reasoning process" and "supported by substantial evidence." Brogan v. Holland, 105 F.3d 158, 161 (4th Cir. 1997). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion" and "consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197, 208 (4th Cir.1984).
Worsley argues that the benefit plan does not grant Aetna discretionary authority to determine eligibility for benefits or to construe the terms of the plan, and that a de novo standard of review should thus apply. He argues that the SPD is silent on Aetna's discretion, and that only the Group Policy and Administrative Information Booklet ("AIB") contain language granting such discretionary authority to Aetna. From here, Worsley asserts that since Aetna maintains that the SPD's terms control in the case of a conflict, and the SPD is allegedly silent on discretion, the Plan does not grant Aetna the discretionary authority that would trigger abuse of discretion review.
This argument fails. The Group Policy and AIB contain express grants of discretion to Aetna, and the SPD does not conflict with these express grants. Rather, the SPD contains multiple references to Aetna's authority to make benefit determinations, and these references are consistent with the grants of discretion in the Group Policy and AIB. For instance, the SPD states that eligibility for long term disability benefits are "determined by Aetna" and that benefits begin only when "Aetna certifies that you are disabled."
Worsley argues that the language of the plan does not support Aetna's determination. He points out that the Plan Documents, in defining disability, provide
As the defendants point out, ERISA's pre-litigation exhaustion requirement is designed to uncover and address such procedural issues. See Makar v. Health Care Corp. of the Mid-Atlantic (Care-First), 872 F.2d 80, 83 (4th Cir.1989) ("By preventing premature interference with an employee benefit plan's remedial provisions, the exhaustion requirement enables plan fiduciaries to efficiently manage their funds; correct their errors; interpret plan provisions; and assemble a factual record which will assist a court in reviewing the fiduciaries' actions.") The exhaustion requirement fulfilled this purpose in the instant action. The language of the plan does not indicate a lack of reasonableness on the part of the defendants.
Worsley contends Aetna did not consider any evidence that he provided when it decided to terminate his LTD benefits. Rather, he argues, Aetna considered only three "self-serving" items: (1) the April 26, 2006, Functional Capacity Evaluation; (2) the reports of Dr. Edward Sassoon, Aetna's medical consultant; and (3) Aetna's Transferable Skills Analysis. Aetna maintains, as it did in its termination letter, that it reviewed the entire claim file in making the decision.
There is no evidence that Aetna's review was restricted to the three items Worsley suggests. Rather, the record is replete with other evidence considered by Aetna when it made the determination. This evidence includes objective materials such as the surveillance video of Worsley showing that he worked more than eight hours per day on the days he was observed. It further includes medical records, office notes, and opinions of treating physicians. Aetna certainly considered Worsley's treating physician Dr. Taub's opinion, as it followed up with Dr. Taub regarding the inconsistencies between the surveillance of Worsley and Dr. Taub's report that Worsley was "too impaired," "had no ability to work," and "cannot work at all."
Because the FCE results conflicted with Dr. Taub's diagnosis, Aetna provided the FCE report to Dr. Taub for comments. Dr. Taub responded by changing his diagnosis, agreeing that Worsley could work at a medium level, but concluding that he could not work more than six hours per day. Aetna discredited this new diagnosis because it was contradicted by the surveillance footage, Worsley's own self-reports, an FCE, Dr. Anfield's review, and Dr. Sassoon's review.
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003).
The Court finds that the materials upon which Aetna based its decision were adequate, that they sufficiently support its position, and that they comprise "more than a mere scintilla of evidence" in favor of the determination. LeFebre, 747 F.2d at 208.
Aetna provided Worsley with LTD benefits between 2001 and 2006. Worsley argues that the termination of his LTD benefits during 2006 is inconsistent with the fact that Aetna provided him with LTD benefits for those roughly five years, and that Aetna ignored key evidence demonstrating his condition had worsened, rather than improved. Aetna maintains that its termination of Worsley's LTD benefits was consistent with its earlier provision of those benefits because Worsley's condition had improved by the time it terminated them. It points to objective evidence in support of this contention, including the April 26, 2006, FCE; the video surveillance; and Worsley's own 2006 self-reported work activities. Aetna further points to Worsley's treating physician's June and September 2005 office notes, which state that plaintiff self-reported a 30% to 50% amelioration in pain, and which prompted Aetna's decision to surveil Worsley.
The record contains sufficient "evidence which a reasoning mind would accept as sufficient" to support Aetna's conclusion that Worsley's condition had improved by the time it terminated his LTD benefits. LeFebre, 747 F.2d at 208.
Worsley requested all documents relevant to his claim after Aetna terminated his LTD benefits. Despite this request, Aetna did not provide him with the documents it has designated as CF 000001-000582 until this litigation. These documents consist of Aetna's computerized notes, which contain information related to the TSA report and Aetna's consultation with Dr. Anfield.
Worsley contends this failure to produce relevant documents violated 29 C.F.R. § 2560.503-1(h)(2). However, he has failed to plead a violation of either § 2560.503-1(h)(2) or 29 U.S.C. § 1132(c)(1), which is the proper method for asserting such a claim. The Court will thus only consider Aetna's failure in this regard as a factor in determining whether Aetna abused its discretion.
The applicable Regulation states that "... the claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit determination unless the claims procedures... [p]rovide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits." 29 C.F.R. § 2560.503-1(h)(2)(iii). Aetna does not contest whether the documents in issue are relevant to Worsley's claim.
Aetna argues, however, that none of the documents in issue include information relevant to Worsley's claim that was not also included elsewhere in the documents Aetna provided him prior to his appeal. After a painstaking review of the administrative
As a result, if Aetna did violate § 2560.503-1(h)(2), such violation was not prejudicial. This factor does not weigh heavily in favor of either party.
Aetna acknowledges that its dual role as both claim reviewer and claim payer may give rise to a potential conflict of interest. It maintains, however, that it has taken appropriate steps "to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances...." Glenn, 128 S.Ct. at 2351. Worsley argues that there is no evidence in the Administrative Record that Aetna took any steps to temper this conflict, and that the Court should not review evidence outside the Administrative Record that Aetna has offered regarding the procedural safeguards it has instituted. Worsley further contends that Aetna's conflict of interest is heightened by its obligation to provide him with life insurance benefits as long as he is eligible for LTD benefits.
When reviewing a plan administrator's denial of benefits de novo, "[i]n the limited circumstance of a court's exercise of discretion with regard to the scope of review, consideration of the nature of the administrator or payor, particularly if they are the same entity, is appropriate." Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1026 (4th Cir.1993). However, the Court is aware of no Fourth Circuit precedent speaking to a district court's consideration of conflict-of-interest evidence outside the administrative record when reviewing a plan administrator's decision under a deferential standard of review, as the Court does here. A case from the First Circuit, however, is instructive as to this precise issue and set of facts. See Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1 (1st Cir.2009). The court stated:
Id. at 10; see also Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1161 (10th Cir.2010) ("Our cases and the Supreme Court's decision in Glenn ... contemplate that this general restriction [on evidence beyond the administrative record] does not conclusively prohibit a district court from considering extra-record materials related to an administrator's dual role conflict of interest."); Johnson v. Conn. Gen. Life Ins. Co., 324 Fed.Appx. 459, 466-67 (6th Cir.2009) (unpublished) (indicating Glenn is consistent with Sixth Circuit's prior case law allowing discovery related to dual role conflict of interest and procedural irregularities); Wilcox v. Wells Fargo & Co. Long Term Disability Plan, 287 Fed.Appx. 602, 603-04 (9th Cir.2008) (unpublished) (instructing that Glenn permits "consideration of evidence outside of the administrative record to determine the appropriate weight to accord the conflict of interest factor").
The Court thus finds it appropriate to consider the very limited evidence presented by Aetna regarding the procedural safeguards it has implemented to ensure that its inherent structural conflict of interest does not lead to biased claim determinations. Both the Affidavit of Carole Roy and Aetna's answer in response to an interrogatory posed by Worsley make clear that Aetna has undertaken multiple steps to guard against potential bias. See (Doc. No. 44-1: Affidavit of Carole Roy; Doc. No. 54-1 at 6-8). While Worsley argues Aetna was biased in cherry-picking evidence in its favor when discontinuing his LTD benefits, there is ample evidence in the record that Aetna conducted a thorough review of Worsley's claim and reached a reasoned, unbiased determination. Aetna has provided sufficient evidence that its structural conflict of interest did not result in a biased claim determination.
While there is certainly evidence favoring Worsley's position, this Court is not free to disturb an administrator's determination where it is reasonable, even if the Court "would have come to a different conclusion independently." Ellis, 126 F.3d at 232, abrogated on other grounds by Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Aetna's decision was "the result of a deliberate, principled reasoning process" and "supported by substantial evidence." Brogan, 105 F.3d at 161.
