R. BROOKE JACKSON, District Judge.
This case arises under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. It is a review on the record of the defendant's denial of long term disability and life insurance benefits under the terms of an insurance policy issued to the employer of plaintiff's late husband, John Bray. Plaintiff moves for summary judgment [docket # 79]. At the conclusion of briefing on the motion, the parties jointly moved for judgment on the pleadings [#88], essentially signaling that the motion for summary judgment was ripe for determination. This order resolves those motions and this case.
The Court finds the facts to be as set forth below. These facts taken from documents in the record. The Court has considered the parties' disputes about some parts of one another's statements of "undisputed material facts." However, the record supports the following as an accurate and sufficient statement of the material facts. They are largely undisputed.
John Bray became employed by PhoCusWright, Inc. ("PCW") as Vice President of Advisory Services on January 1, 2005. LTDAR 181.
As will be discussed in more detail below, during 2005 the Advisory Services division did well, outperforming the two other divisions of the company. His division did not do nearly as well in 2006 as it had in 2005. Throughout 2006 colleagues, clients, and others observed that Mr. Bray's behavior was increasingly angry, agitated, sometimes confused, and generally uncharacteristic of him.
Finally, on September 29, 2006 Mr. Bray presented to his family physician, Arlis Adolf, M.D., complaining of anger, frequent mood swings, being wrongly interpreted, going from low and lethargic to enthusiastic, an inability to concentrate and focus, and depression and difficulty sleeping. LTDAR 303. Mrs. Bray presented Dr. Adolf with a letter she had written, at Mr. Bray's request, describing his behavior. LTDAR 331. She describes, and gives examples of, his short temper, sudden changes of emotion, rages, feelings of being attacked, saying improper things to her, the children and others such as waiters and service personnel, blaming and shaming others, creating public scenes, drinking, and secretiveness. One passage in the letter states:
Dr. Adolf diagnosed complex psychological problems and prescribed Paxil. LTDAR 304.
PCW terminated Mr. Bray, effective October 4, 2006, citing the poor performance of the Advisory Services division. LTDAR 2-3. The jobs of two other members of the division were also eliminated. The following day PCW entered into a Professional Services Agreement with Mr. Bray under which he warranted that he would complete certain outstanding projects and scheduled speaking engagements "without any limitations." LTDAR 258-260. Thereafter, in addition to providing services to PCW under this contract, he opened his own consulting business. He continued to travel to various destinations where he spoke at conferences, and he published articles in industry journals. He also apparently applied for a position with Yahoo.
Mr. Bray also continued to see Dr. Adolf. As late as April 27, 2007, she continued to attribute his symptoms to psychological issues. LTDAR 276. In her record of that visit Dr. Adolf indicated that his symptoms were worsening and included anxious mood, hypersomnia, decreased ability to concentrate and fatigue. She noted that he felt "shaky, especially before speeches, which is new for him, and can't sit or lie still." She described recent stressors as including "unemployment and Laid off from most recent job because of his anger and `acrimony' issues." She indicates that Mr. Bray reported that he was working as an independent consultant but was feeling "lethargic all the time" and was having "trouble focusing and feeling spacy." Dr. Adolf changed his medications.
However, on May 21, 2007, after contacting Dr. Adolf again to complain about migraines, vomiting, nausea and blurred vision, disorientation and crashing his car
On May 22, 2007, after meeting with Mr. Bray, Dr. Schneiders noted that "last year in the late summer the patient began to become increasingly irritable and experience uncharacteristic explosive verbal outbursts." He continued,
LTDAR 313-15.
On May 24, 2007 Mr. Bray underwent brain surgery consisting of stereotactic resection through a right parieto occipital craniotomy. LTDAR 310-12. Chemoradiation therapy to the tumor bed and residual disease was also undertaken. LTDAR 282.
On May 31, 2007 Dr. Arenson, the neuro-oncologist, completed an Attending Physician's Statement in which he stated that the symptoms first appeared and that the patient ceased work on May 21, 2007. LTDAR 356.
On June 4, 2007 Dr. Adolf, the family physician, saw Mr. Bray again. In her record of that date she states,
LTDAR 274.
In a letter dated June 7, 2007 Dr. Arenson stated,
LTDAR 354.
Other than offering to provide additional information as needed, Dr. Arenson concluded his letter by declaring that "[a]t the present time [Mr. Bray] is completely disabled and under my care and I wanted to emphasize the fact that the onset of this disease and histopathology verifies our opinion that his loss of employment is attributable to this disease." Ibid.
On July 14, 2007 Mrs. Bray, on behalf of her husband, filed for LTD benefits with defendant Sun Life and Health Insurance Company ("Sun Life").
The application described the illness as "acrimonious behavior, memory & vision loss, inability to complete tasks, headaches, anxiety." It indicated that he was first treated for the illness on September 29, 2006, and that he had been unable to work because of the disability since January 1, 2007. She explained that the dates concerning the history of the disability were difficult to determine because Mr. Bray was misdiagnosed for a long time. LTDAR 327, 329.
In support of the claim Mrs. Bray, on Mr. Bray's behalf, submitted medical information including Dr. Arenson's letter of June 7, 2007, tracing the symptoms of the tumor back to behavioral aberrations predating the loss of Mr. Bray's job. Also submitted was an Attending Physician's Statement of Dr. Adolf who indicated that the symptoms first appeared on September 29, 2006, and that "his neurosurg, medical oncologist, neuropsychologist all think his behavior changes/exacerbations were due to his growing tumor which was not diagnosed initially." LTDAR 321.
On September 13, 2007 Sun Life denied Mr. Bray's claim for LTD benefits. LTDAR 251-52. The letter, written by Carol A. Earle, Senior Claim Administrator, noted that in order to qualify for benefits, Mr. Bray had to have had a "total disability," meaning that "you are unable to perform all the material and substantial duties of your regular occupation," before his employment at PCW ended. The letter does not comment on the medical information that had been submitted other than to acknowledge that Mr. Bray had seen Dr. Adolf on September 29, 2006 for mood swings; that on October 21, 2006 he reported doing better on Paxil; and that a thalamic mass had been diagnosed in May 2007. Ms. Earle stated that Mr. Bray was terminated by PCW on October 4, 2006 because of the closure of his division; that he signed a consulting contract with PCW the following day; and that she understood that he also sought other work. The letter concluded, "[a]s you were able to perform consulting work after the termination of your insurance and were seeking other employment, it is our determination that you were not disabled at the time your insurance terminated." Id. at 251.
Mr. Bray, through counsel, filed an internal appeal of the denial of LTD benefits on January 28, 2008. LTDAR 149. In support of the appeal, additional information was provided, including the following:
On March 13, 2008, by means of a letter written by Paul L. Briere, LTD Appeals Consultant, Sun Life upheld the previous denial of Mr. Bray's LTD claim. LTDAR 50-55. Sun Life maintained its position that Mr. Bray was not "totally disabled" as defined in the insurance policy as of October 4, 2006 when he was terminated by PCW. The letter acknowledged that the specialized duties and knowledge reflected in Mr. Bray's job description must be considered in evaluating his claim of disability. However, Mr. Briere provided the following reasons for denying the appeal: (1) Mr. Wolf's letter of January 12, 2008 indicated that Mr. Bray had been terminated because of the performance of the Advisory Services group that he headed; (2) Christine Lent, the Vice President of PCW, had also indicated that the Advisory Services group was under budget, and that there was no other position within the company to which to move Mr. Bray; (3) following his termination, Mr. Bray signed the Professional Services Agreement with PCW in order to complete three specific projects; (4) information available on the Internet indicated that Mr. Bray had been a featured speaker at events on November 15, 2006 and January 24, March 18 and April 11 and April 24, 2007; (5) he had published articles in industry journals dated in the October 25, 2006 through April 26, 2007 time frame (he acknowledged that the articles might represent work done while Mr. Bray was employed but that some of them might not); and (6) after leaving PCW Mr. Bray had formed his own business, John Bray Consulting, was in demand as an international speaker, and had been able to engage in "extensive travel."
Mr. Briere's letter acknowledged that the appeal documents included "a letter from Dr. Edward Arenson of the Colorado Neurological Institute concerning the likely timeline for the development of Mr.
On October 28, 2008 Mr. Bray through counsel filed the original complaint in the present case, asserting that Sun Life had wrongfully denied his long term disability claim in violation of ERISA.
Mr. Bray died on December 16, 2008 as a result of the brain tumor. AR 930. On January 15, 2009 plaintiff submitted a claim for life insurance benefits. Ibid. The present case was later stayed for a period of time while the life insurance claim was being determined.
As with the long term disability claim, to qualify for survivor benefits under the life insurance part of the PCW policy, Mr. Bray must have been totally disabled while he was still employed. However, for purposes of the life insurance benefits a person is considered totally disabled "if an injury or sickness prevents you from performing all of the main duties of any occupation that you are or become qualified for by education, training or experience." AR 5-6.
On April 9, 2009 Sun life denied plaintiff's LI claim. AR 560-67. The letter, by Marie Leveille, Life Benefits Specialist, notes that she had reviewed the LTD record (but not the benefit determination). In addition, "we" contacted Ms. Lent of PCW who confirmed that Mr. Bray's position and two other positions were eliminated because his division was not profitable. She noted that Dr. Arenson's Attending Physician's Statement of May 31, 2007 had stated that Mr. Bray was obliged to cease work on May 21, 2007; that Dr. Adolf's Attending Physician's Statement had indicated that Mr. Bray was obliged to cease work on December 1, 2006; and that Mr. Bray's application for long term disability benefits stated that he had been unable to work since January 1, 2007. Ms. Leveille also repeated the facts that Mr. Bray had become an independent contractor to PCW following his termination, that he had spoken at several conferences, and that he had opened a consulting business. She made no reference to the opinions expressed by Dr. Arenson, Dr. Adolf or Dr. Schneiders other than her mention of Dr. Arenson's and Dr. Adolf's "Attending Physician Statements."
This denial was also appealed internally. On June 3, 2009 Mrs. Bray sent a lengthy letter to Sun Life in which she responded to points made in the denial of the life insurance claim. Her letter is in the record in two parts: pages 1-10 are at AR 658-67; pages 11-18 are at AR 525-32. A formal appeal prepared by counsel followed on July 30, 2009. AR 415. Collectively the appeal provided the following information in addition to that which had been previously submitted:
On July 29, 2010 Sun Life issued a letter upholding its denial of Mrs. Bray's claim for LI benefits in a letter authored by Kristen Goodwin, Life Claims Analyst. AR 1-10. She concluded that Mr. Bray was not prevented from performing "all of the main duties of any occupation" or even "all the customary and regular duties of his own occupation doing so both under the terms of his Professional Services Agreement, with PhoCusWright and as President of John Bray consulting." AR 6.
Ms. Goodwin did acknowledge receiving reports and letters from Drs. Arenson, Schneiders and Adolf. However, she indicated that these doctors were not treating Mr. Bray at the time of his termination, and that they were not aware of Mr. Bray's work after his termination. AR 9.
The balance of the letter for the most part repeated information that Sun Life had cited in denying the long term disability claim. Ms. Goodwin noted that Mr. Bray's application for disability benefits had indicated that he became disabled on January 1, 2007. She did not mention Mrs. Bray's explanation as to why she, when filling out the application, had inserted that date (at the suggestion of Ms. Lent). She noted that Mr. Bray's application for Social Security benefits listed the date on which he could no longer work as May 21, 2007. That was the date his tumor was diagnosed. She repeated that PCW had terminated Mr. Bray because his division was doing poorly and cited a statement by Ms. Lent that PCW was satisfied with Mr. Bray's job performance but could not find another place to put him in the small company. The Lent letter also noted, but Ms. Goodwin did not, Mr. Wolf's earlier letter that had indicated that Mr. Bray's behavioral issues in 2006 were not the "direct" cause of his termination but were "inconsistent with the standards required to successfully perform his job." AR 94. Ms. Goodwin noted that after his termination by PCW he entered into a contract with PCW, formed his own consulting business, attended conferences, made presentations, and took business trips. She also mentioned that Mr. Bray had applied for a job at Yahoo.
Ms. Goodwin did not comment on the information that had been presented concerning the difficulties and problems that had occurred after Mr. Bray's termination when he was attempting to complete projects, take on new consulting business, and make presentations.
District court review of a denial or termination of benefits under ERISA is de novo 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). If discretionary authority exists, review is under an abuse of discretion (arbitrary and capricious) standard. Id.
Sun Life argues that the discretion granted to the original administrator of PCW's plan, Phoenix American Life Insurance Company, was passed along to Genworth Life and Health Insurance Company which became Sun Life. Plaintiff argues that there was not explicit grant of discretion to Sun Life, and in any event, that Sun Life as both the administrator and payor is in a conflict position.
The Court will assume that Sun Life succeeded to its predecessor's grant of discretionary authority. See Ray v. Sun Life & Health Ins. Co., 752 F.Supp.2d 1229, 1232 (N.D.Ala.2010)(so holding based on evidence produced by Sun Life in that case). Being in a conflict position is a factor to be considered in deciding whether there has been an abuse of discretion, but it does not change the scope of review. Firestone, 489 U.S. at 115, 109 S.Ct. 948. Accordingly, the Court applies an abuse of discretion standard.
Under ERISA, an administrator, as fiduciary, "must discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries....." 29 U.S.C. § 1104(a)(1); See Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 115, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). The Court concludes from the record of this case that this was not done.
When deciding "an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment," the Administrator "shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment." 29 C.F.R. § 2560.503-1(h)(3)(iii). This did not occur.
Nor did Sun Life, insofar as its denial letters indicate, give any serious weight to the strong medical evidence that was presented on Mr. Bray's behalf. Treating physicians might tend to support their patients' disability claims. However, that is no excuse for ignoring them, and if Sun Life had been suspicious of the bona fides of the opinions of Dr. Arenson and other treating doctors, it could and should have obtained its own medical information. Even had the administrator acknowledged all of the medical evidence, it could not then reject it without a sufficient evidentiary basis for doing so. See Zavora v. Paul Revere Life Ins. Co., 145 F.3d 1118, 1123 (9th Cir. 1998). Sun Life did not have a sufficient evidentiary basis to reject the medical opinions.
As indicated above, to be considered totally disabled under the policy a person must be "unable to perform all the material and substantial duties of [their] regular occupation" at the time his employment ended and during an "elimination period" and the following 24 months. LTDAR 219. The medical evidence presented to Sun Life overwhelmingly indicated that Mr. Bray was suffering from an undetected
On May 22, 2007 Dr. Schneiders, the neuropsychologist to whom Mr. Bray had been referred for counseling following disclosure of the tumor, implied that Mr. Bray's behaviors during the late summer of 2006 might have been related to the tumor. Dr. Adolf quickly changed her diagnosis, indicating on June 4, 2007 that she thought many of Mr. Bray's angry outbursts and mood swings in 2006 were secondary to the tumor and noting in addition that these behaviors had become significantly worse in the last month or so. A stronger opinion was expressed by Dr. Arenson, the neuro-oncologist, on June 7, 2007: "it is highly probable, if not absolutely certain, that the patient's behavioral aberrations were attributable to this lesion."
Sun Life denied the LTD claim without commenting on Dr. Arenson's, Dr. Schneiders' or Dr. Adolf's reports concerning the impact of the tumor on his previous behavior. It only noted that Dr. Adolf had seen him in September and October 2006 for "mood swings." It is apparent to this Court that Sun Life became fixated from this early date on the "facts" that Mr. Bray's termination was due to the poor performance of his division and that he continued to do work thereafter; and that Sun Life stubbornly and continuously thereafter refused to credit what the doctors were saying. The issue was not why Mr. Bray's employment was terminated. It was whether he was able to perform all the material and regular duties of his occupation. It does not appear that Sun Life considered, then or later, whether the poor performance of the division might have been related to Mr. Bray's behavioral issues, or whether the work he attempted to do after his termination was performed competently and satisfactorily.
After the initial denial of the LTD claim, Mr. Bray's attorney provided more and stronger medical evidence in support of its internal appeal of that decision. On October 24, 2007 Dr. Arenson advised Sun Life in a letter that "[i]f I have to testify I will state categorically that this tumor was present at the time that the patient lost his job and that he was disabled by it." On December 23, 2007 Dr. Schneiders wrote that Mr. Bray's "behavioral and cognitive symptoms sounded quite consistent with a right thalamic tumor." After reviewing the job description of the position Mr. Bray had held with PCW, Dr. Arenson on January 4, 2008 told Sun Life that "based on that, as well as my knowledge of the histopathology and location of his tumor and functionality, that it is, in my opinion, to a reasonable degree of medical probability that Mr. Bray was disabled by this disease no later than the summer of 2006 and would have been incapable of adequately performing the very complex and demanding functions of his position as described."
In addition, Mr. Bray's representatives beefed up the non-medical evidence. A senior manager at PCW characterized Mr. Bray's behavior during 2006 as adversarial and intimidating, adding that a PCW client had refused to continue with a project if
Sun Life denied the appeal. It all but ignored the additional medical evidence. Mr. Briere's letter cited Mr. Wolf's letter indicating that Mr. Bray was terminated because of the performance of his division but did not comment on the parts of the letter in which Mr. Wolf indicated that Mr. Bray's behaviors were inconsistent with the requirements of his job and that his behaviors were not the "direct" cause of his termination. Mr. Briere noted that following Mr. Bray's termination, PCW had contracted with him to complete three projects, but did not comment on his failure to complete at least one of them (Google) successfully. He noted that Mr. Bray had been booked as a speaker at conferences, and that he had published articles, apparently ignoring evidence that Mr. Bray's work on at least some post-termination projects was unsatisfactory. Nor did Mr. Briere seem to have considered the comment of a former colleague that Mr. Bray was having difficulty preparing to give speeches and was essentially just repeating material from much earlier speeches. Mr. Briere did not know whether articles that were published post-termination were written earlier. He either did not care about the quality of Mr. Bray's work or just assumed it was satisfactory. But, as Dr. Arenson had told Sun Life, a tumor of that size and location would have made it all but impossible for Mr. Bray to have worked at a satisfactory level.
A claimant's attempt to continue working past the claimed date of disability does not necessarily preclude a finding that the claimant was totally disabled before ceasing to work entirely. See Locher v. Unum Life Ins. Co. of America, 389 F.3d 288, 297 (2d Cir.2004); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003). A bright line test of that sort would unfairly penalize the individual who tries to work, notwithstanding a disabling condition, and would essentially mean that he is "damned if he does (try to continue to work)" and "damned if he doesn't."
Nor are the cases on which Sun Life now relies to support its decision persuasive. In Kunstenaar v. Connecticut General Life Ins. Co., 902 F.2d 181 (2d Cir. 1990) a sales executive expressed anxiety over a possible reduction in force to a company doctor who initially suggested that he try to relax with a glass of wine at dinner and long walks and later suggested that he consult a psychiatrist, which he did not. He lost no time from work, and there is no indication that his work suffered in any way. The executive was thereafter laid off, and approximately two months later he saw a psychiatrist who apparently diagnosed depression. The court upheld the district court's decision that the plan administrator had not abused its discretion in denying the claim under a policy that required a disabled employee to be under the care of a physician while employed and to have a sickness or injury that "completely prevented [him] from performing the duties of his occupation or employment." Not only is the policy language different from that at issue in the present
In Brown v. Seitz Foods, Inc., Disability Ben. Plan, 140 F.3d 1198 (8th Cir.1998), the court reversed the district court's reversal of the administrator's denial of benefits. The employee returned to his job as a salesman after missing time due to an automobile accident and continued to work until he was fired for cheating the company. His own doctor "believed him capable of working at his regular occupation," and three other doctors also found he was not disabled. Id. at 1199-1200.
In Burchett v. Unum Life Ins. Co. of America, 2009 WL 256561 (E.D.Ky. Feb. 3, 2009), the court held that the administrator's denial of disability benefits to an emergency room physician was not an abuse of discretion. The physician's partners had voted him out of the partnership, and he was later diagnosed with depression. However, the evidence was that he had worked in the ER until he was terminated, that he had intended to continue to work until he learned of the termination, and that the evidence did not support a finding of a "complete inability to perform" the duties of an ER doctor. Id. at *3.
Unlike the facts in Kunstenaar and the other cited cases, in the present case substantial medical and non-medical evidence was presented that Mr. Bray was unable to perform his job duties satisfactorily because of the undetected tumor in his brain. The medical evidence was systematically ignored. The evidence of Mr. Bray's continued efforts to work after his employment by PCW was terminated was viewed myopically, without any apparent effort to see the whole picture or, particularly on the internal appeal, to adjust to a continuing stream of evidence that contradicted the position that Sun Life initially took and to which it doggedly continued to adhere.
This Court finds and concludes that the decision that Mr. Bray was able to perform all of the material and substantial duties of his occupation when he was terminated from PCW, and therefore Sun Life's denial of long term disability benefits, was not supported by substantial evidence. It was arbitrary, capricious and therefore, an abuse of discretion.
As indicated, the life insurance policy requires that Mr. Bray must have been totally disabled while he was still employed but, for this purpose, defines total disability to mean that an injury or sickness "prevents you from performing all of the main duties of any occupation that you are or become qualified for by education, training or experience." AR 5-6. Thus, whereas for purposes of long term disability benefits Mr. Bray had to show that he could not perform the material and substantial duties of his regular occupation, for survivor benefits Mrs. Bray must show that he could not perform the duties of "any occupation" for which he was or could become qualified.
At the outset it must be noted that the facts of the present case are significantly different from those in the cases cited by Sun Life. In those cases the employee qualified for an initial period of benefits by showing that he could not perform the material duties of his regular job. To continue to receive benefits after the initial period, the employee was required to show that he could not perform the duties of "any occupation." Typically, the issue turned on whether a disability that rendered the employee unable to perform a physically demanding job could, after appropriate training, perform a sedentary job. See Brigham v. Sun Life of Canada, 317 F.3d 72, 83-86 (1st Cir.2003) (a paraplegic who became unable to travel because
In the present case Mr. Bray did not apply for disability payments until after the tumor was diagnosed and was believed, by his doctors, his wife and others, to be the cause of the significant problems he began to experience during the second year of his position with PCW. The impacts of the tumor increased as the tumor continued to grow. This continued after his employment ended. There was no issue of his being qualified or trainable to perform some other occupation, sedentary or otherwise. He was already well along the path that culminated in his death. For him, the distinction between being able satisfactorily to perform the duties of his "regular occupation" and to perform the duties of "any occupation" is a distinction without a difference.
Sun Life denied the claim and, despite the additional information then provided, denied the appeal. Once again it all but ignored the medical evidence. Ms. Leveille noted that Dr. Arenson had once indicated that Mr. Bray was obligated to cease work on May 21, 2007, disregarding all his later correspondence that explained that the disability caused by the tumor likely dated back as far as December 2005. She noted that Dr. Adolf had once listed December 1, 2006 as the disability date but ignored her later indications that the behaviors for which she was treating Mr. Bray in September and October 2006 were likely secondary to the tumor. In short, the information received from the doctors was selectively and, in context, inappropriately cited.
Ms. Goodwin at least acknowledged receiving letters and reports from Drs. Adolf, Arenson and Schneiders. However, she did not discuss their substance. Instead, she discounted them because they were not treating Mr. Bray in October 2006. That hardly justifies ignoring opinions that necessarily were expressed as a matter of hindsight after the tumor was discovered. Cf. Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir.1998) (discussed in more detail below). Her comment is not even correct with respect to Dr. Adolf, who was treating Mr. Bray while he was still employed, and who later expressed the opinion that the behaviors for which she was treating him were secondary to the tumor of which she was unaware at the time. Ms. Goodwin suggests, without citing evidence, that the doctors were unaware of Mr. Bray's work after he was terminated by PCW. That is contrary to the facts that were in her file. Dr. Arenson's letter of April 7, 2009 expressly states that he had reviewed Mr. Briere's denial letter of March 13, 2008, which had discussed Mr. Bray's post-termination activities. Dr. Wortzel's report also indicated that he had reviewed Sun Life's LTD denial. AR 626; LTDAR 50-55. However, Ms. Goodwin's letter does not even mention Dr. Wortzel. Consistent with its previous stance, Sun Life did not, so far as the record discloses,
Instead, Ms. Goodwin denied the life insurance claim essentially on the same grounds that had been given in support of the denial of the long term disability claim. There is again no indication that she made any effort to determine whether Mr. Bray's work, before or after he was terminated by PCW, was competent or satisfactory. Documents that had been submitted to her showed several instances where it was not. Ms. Goodwin mentioned that Mr. Bray had indicated on an application for Social Security benefits that he became disabled on May 21, 2007. I wonder whether Ms. Goodwin considered the possibility that he (if indeed he actually filled out the application himself) simply wrote down the date his tumor was detected or the likelihood that his opinion was less informed than that of his doctors?
I can understand the discounting of Mrs. Bray's effort to clarify or disavow some of the comments she had made to Dr. Adolf in September 2006 about behaviors Mr. Bray had demonstrated in years past. Mrs. Bray's comments can fairly be discounted as self-serving. Moreover, there surely is some truth in Mrs. Bray's original letter. I do not doubt that she had observed behaviors by her husband in the past of which she was critical and that might have appeared to her to be similar to some of the behaviors that were troubling her in 2006.
However, the evidence from co-workers, colleagues, and friends was overwhelming that his behavior in 2006 was materially different and worse. There was, of course, a medical explanation for that — he was suffering from the debilitating effects of a large malignant tumor in his brain. However, from beginning to end, Sun Life refused to acknowledge that the tumor might have been the cause of the deterioration of his work, or that Mr. Bray might in any sense have been unable to carry on his occupation or any other occupation that could be seen as relevant to the situation.
A distinguishable but nevertheless instructive case is Woo v. Deluxe Corp., 144 F.3d 1157, 1161 (8th Cir.1998). During nearly 15 years of employment Woo secretly suffered from multiple sclerosis, but it was generally stable and did not significantly impact her work. In 1993 she began to experience symptoms of severe fatigue, stiffness, pain and loss of concentration that affected her job performance to the point that a supervisor considered changing her job duties. She consulted doctors, but they did not diagnose what later turned out to be systemic scleroderma, a potentially debilitating and fatal disease. In November 1993 Woo resigned, without disclosing her medical condition and indicating that she was leaving to pursue other opportunities (although she wrote on a questionnaire that she did not consider her resignation to be a "voluntary separation").
Three months later Woo was diagnosed as suffering from scleroderma. Her doctors determined that scleroderma symptoms had existed at least several months before she resigned. Woo then applied for long term disability benefits under her former employer's plan, which defined disability as being "prevented by accidental bodily injury or sickness from doing all the material and substantial duties of your own occupation." The court reversed the district court's grant of summary judgment upholding the administrator's denial of the claim. The court applied an abuse of discretion standard, albeit a somewhat less deferential one because the administrator, as in the present case, was in a conflict position. The administrator, who did consider Woo's medical evidence and an opinion from its own in-house medical consultant, relied heavily on Woo's failure
Woo was decided under a disability definition similar to the long term disability standard in the Sun Life policy. However, as indicated above, there is no practical difference in the present case between that standard and the "any occupation" standard that defines total disability for purposes of life benefits. I cite Woo because the court recognized, as Sun Life did not, that retrospective opinions of doctors who determine that an undiagnosed condition existed and impacted the employee's job performance before the employment must be seriously considered. "Fiduciaries cannot shut their eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary's theory of entitlement and when they have little or no evidence in the record to refute that theory." Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 809 (10th Cir. 2004).
In sum, the Court concludes that Sun Life's determination that Mr. Bray was not totally disabled within the meaning of the life insurance policy was not supported by substantial evidence; rather, it was arbitrary, capricious and an abuse of discretion.
