KATHRYN H. VRATIL

Donald N. Peterson, II, Sean M. McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC, Wichita, KS, for Plaintiff. Christopher J. Leopold, William E. Hanna, Stinson Leonard Street LLP, Jacy J. Hurst Moneymaker, Swope Health Services, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

John V. Meyer brings suit against UNUM Life Insurance Company of America and UNUM Group (collectively “UNUM”) for recovery of benefits under a long-term disability insurance policy governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. This matter is before the Court on Plaintiff's Motion For Summary Judgment (Doc. # 66) and Defendants' Motion For Summary Judgment (Doc. # 67), both filed January 20, 2014. For reasons set forth below, the Court finds that plaintiff's motion should be sustained and that defendants' motion should be overruled.

Facts

In reviewing Unum's decision, the Court relies on the following facts.

Niska Gas Storage, LLC (“Niska”) operates the Salt Plains storage facility near Manchester, Oklahoma. Niska is the administrator and named fiduciary of the Niska Gas Storage, LLC Plan (“the Plan”), which is an employee welfare benefit plan under ERISA § 3(1), 29 U.S.C. § 1002(1). On March 23, 2007, Unum issued Niska a group insurance policy to provide long-term disability benefits to Niska employees under the Plan. UA 108.

Niska gave Unum discretionary authority to make benefit determinations under the Plan.

On October 15, 2008, John Meyer began working for Niska at the Salt Plains facility. On November 14, 2008, Meyer became a qualified participant with disability coverage under the Plan.

On March 4, 2010, Meyer suffered an ischemic stroke. Ischemic strokes are caused by blockage of an artery to the brain; hemorrhagic strokes, in contrast, are caused by rupture of an artery. Ischemic strokes are caused by either an embolus, i.e., a clot that travels to the brain from elsewhere in the body, or by a thrombus, i.e., a clot that forms in the artery. See J.E. Schmidt, M.D., Attorneys' Dict. of Medicine (2010). Four days after the stroke, Meyer had extra-cranial carotid bypass surgery. As a result of the stroke, he has speech difficulties and paralysis on one side of the body. UA 24.

On August 1, 2010, Meyer submitted a claim for disability benefits under the Plan.

The Plan defines “disability” as follows:

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....

* * *

SICKNESS means an illness or disease.

* * *

INJURY means a bodily injury that is the direct result of an accident not related to any other cause.
UA 119, 135, 137 (emphasis in original). The Plan, however, excludes coverage for pre-existing conditions, i.e., “any disabilities caused by, contributed to by, or resulting from [a]—pre-existing condition.” UA 126. The Plan defines “pre-existing condition” as follows:

You have a pre-existing condition if:

–you received medical treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines in the 6 months just prior to your effective date of coverage; and

–the disability begins in the first 24 months after your effective date of coverage unless you have been treatment free for 12 consecutive months after your effective date of coverage.

* * *

TREATMENT FREE means you have not received medical treatment, consultation, care or services including diagnostic measures, or taken prescribed drugs or medicines for the pre-existing condition.
UA 126–27, 136–37 (emphasis in original).

Unum assigned Ashley Forbes, a Unum Disability Benefits Specialist (“DBS”), to evaluate Meyer's claim. On September 13, 2010, Forbes spoke with Meyer about his claim. She told him that because his disability began within the first 24 months of coverage, she would review his claim for pre-existing conditions. Forbes then sent a follow-up letter which asked Meyer to complete a supplemental claim form. The letter explained that Unum would determine whether Meyer had received treatment for his disabling condition during the six month “look-back” period before his coverage was effective, i.e., from May 13, 2008 to November 13, 2008. UA 172.

Based on the exclusion for “pre-existing conditions,” Forbes investigated whether Meyer: (1) had received treatment for a condition that “caused, contributed to, or resulted in” the disability during the six months before his effective date of coverage, November 14, 2008 (“the look-back period”) and if so, (2) whether he was treatment-free for a period of 12 months before his claimed date of disability, March 5, 2010. UA 437.

Medical records revealed that during the look-back period, (1) doctors had diagnosed Meyer with atrial fibrillation (UA 285–92, 387–90, 395, 401–03, 437); (2) Meyer had received numerous electrocardiograms related to atrial fibrillation (UA 285–292, 379–82, 437); and (3) doctors had prescribed medicines for anticoagulation (Coumadin), to prevent thrombus and embolus problems, cardiac rhythm control (Amiodarone) and blood pressure control (Betaxolol, Lisinopril, and Atenolol). Doctors prescribed such medications continuously through Meyer's date of disability. UA 163–67, 192–93, 233, 315, 325, 398, 401–03, 423–25, 438.

On October 22, 2010, Forbes extended the time to decide the claim because Unum had not received copies of all medical records. UA 221–23. Several weeks later, on November 11, 2010, Forbes entered a note in the Unum claim file which stated “referred for triage review as Rx records rec'd and appears that claimant rec'd meds w/in LB [look-back] period that are pre-existing.” UA 320.

On November 12, 2010, Forbes, Director Carolyn Brooks, Gary McCollum, R.N., and John Clancy, Vocational Rehabilitation Consultant, participated in a round-table review in which they briefly reviewed Meyer's records from the look-back period. Three days later, on November 15, 2010, Forbes asked McCollum to review Meyer's file and answer the following questions:

–What medical treatment, consultation, care, services, or diagnostic measures did the claimant receive, or prescribed medicines did the claimant take for the pre-ex illness/injury?

–Did the claimant have symptoms of the claimed disabling illness/injury during the look[-]back period and, if so, what were they?

– What is the medical relationship between the pre-ex illness/injury and the claimed disabling illness/injury? Please explain how and why this claimant's pre-ex illness/injury is a risk factor that led to the claimed disabling illness/injury.
UA 324–25 (emphasis added). These questions closely followed the Unum guidelines for reviewers seeking information regarding pre-existing conditions from clinical and/or medical experts.

On November 17, 2010, McCollum issued an opinion that Meyer had received treatment for atrial fibrillation and high blood pressure during the look-back period, and that those factors as well as obesity, hyperlipidemia and tobacco addiction increased his chance of a stroke. UA 325–27. Because the file did not contain all medical records for the period after the look-back, McCollum could not determine if Meyer had been continuously treated for atrial fibrillation and high blood pressure.

On November 29, 2010, after obtaining additional medical records, Forbes referred the case back to McCollum. UA 427. On November 30, 2010, Forbes, McCollum, Brooks and Vocational Rehabilitation Consultant Michael Stevens discussed the additional medical records at another round-table review. The meeting notes stated that during the look-back period, Meyer had received treatment for conditions “likely of causing stroke.” The summary also stated that “[p]harmacy records in file show consistent use of medications noted in LB period throughout [treatment-free] period. Therefore no 12 mth. treatment [-free] period found.” UA 428.

On December 2, 2010, Forbes requested that Brooks review the Meyer file “for non-comp[ensable] due to pre-ex.” UA 431. Forbes recited that Meyer had a number of conditions for which he was treated during the look-back period, all “known high risk factors for acute stroke.” Id. (Meyer treated throughout look-back period for A–Fib, known condition with high likelihood of causing stroke). Forbes thus made the initial determination to deny benefits. On December 3, 2010, Brooks approved her decision. Id.

On December 6, 2010, Forbes sent Meyer a letter explaining Unum's decision to deny benefits, stating in part as follows:

In conclusion, our pre-existing evaluation determined that you were treated for dysrhythmia, atrial fibrillation, hypertension, anticoagulation and hyperlipidemia during the look[-]back period and did not have a period of 12 consecutive months treatment free. The conditions that you were treated for are all known as high risk factors for an acute stroke. These conditions either caused, contributed to, or resulted in the condition for [sic] disabling condition. As a result, no benefits are payable for this medical condition and your claim has been closed.
UA 437.

On May 20, 2011, Meyer appealed the denial of benefits, stating in part as follows:

Your interpretation of the policy was that benefits were not payable due to a pre-existing condition. You state that Mr. Meyer was treated for dysrhythmia, atrial fibrillation, hypertension, anticoagulation, and hyperlipidemia during the look[-]back period.

It is our position, however, that these conditions or any of them are not the cause of his disability.

On or about March 4, 2010, Mr. Meyer was treated for a cerebral artery ischemic stroke. At no time was thrombosis identified. The patient's medical records do not identify embolic stroke at all. Further, Mr. Meyer had no prior history of a cerebral artery ischemic stroke. Attached please find a letter from Dr. Andrew Massey, head of the neurology department at the University of Kansas Medical Center in Wichita. Dr. Massey states that Mr. Meyer had no prior history of ischemic stroke prior to the stroke on March 4, 2010 that disabled him. Further, in keeping with the [Plan's] definition of a “pre-existing condition,” Mr. Meyer had never been treated for a cerebral artery ischemic stroke.
UA 467–68. Meyer attached a letter dated May 19, 2011 from neurologist, Dr. Andrew Massey M.D., which stated in part as follows:

As we discussed this afternoon, I did evaluate Mr. Meyer at Via Christi St. Francis Hospital on March 9, 2010 where he had been hospitalized March 5, 2010 for an acute stroke complicated by a right hemiparesis and dysphasia. Though he does have risk factors for an ischemic stroke, to my knowledge he had never been treated for a stroke prior to his hospitalization.

I have reviewed the denial letter sent to Mr. Meyer and question why benefits should be excluded based on prior risk factors for ischemic stroke. According to the recent guidelines from the American Heart Association and the American Stroke Association, risk factors for stroke may include: hypertension, tobacco use, diabetes mellitus, atrial fibrillation, carotid stenosis, dyslipidemia, sickle cell disease, post menopausal hormone therapy, poor diet, physical inactivity, obesity, body fat distribution, metabolic syndrome, alcohol, birth control pills, drug abuse, sleep disordered breathing, migraine, hyperhomocysteinemia, elevated lipoprotein(a), hypercoagulable states, chronic inflammation, infection, age, gender, ethnicity, genetic predisposition, and possibly birth weight.

To say that someone being treated for a condition that is a risk factor for stroke (and risk factors for many other diseases besides stroke including heart disease) can be excluded from benefits based on a “pre-existing condition” seems to be too loose an interpretation of the meaning of “pre-existing condition.”
UA 469 (internal citation omitted).

In offering his opinion, Massey did not describe his evaluation of Meyer and did not indicate whether he had reviewed any information other than Unum's denial letter. Massey did not offer an opinion as to whether atrial fibrillation, high blood pressure or any other condition caused, contributed to or resulted in Meyer's stroke. Massey did not provide his qualifications to offer an opinion on a heart/cardiac issue. UA 469.

Unum assigned Jennifer Wellman, a Unum Lead Appeals Specialist, to evaluate Meyer's appeal. Wellman reviewed Meyer's claim file, which included all information submitted in support of Meyer's claim, as well as all information obtained and developed by Unum.

On May 26, 2011, Wellman entered a note on UNUM's computer system to schedule a round-table review of Meyer's appeal.

UA 500–02.

On May 31, 2011, Appeals Quality Compliance Consultant Jane Carson led a third round-table of Meyer's claim with Wellman, Clinical Representative Laura Mininni and in-house cardiologist Dr. Costas Lambrew.

The group recommended that Unum obtain additional medical records including ER records and ECG records from the second admitting hospital (Via Christi Medical Center) before referring the case for a medical opinion from Lambrew.

Medical records from Via Christi Medical Center included Massey's evaluation of Meyer on March 9, 2010, shortly after his stroke. Massey noted that Meyer's past medical history was remarkable for atrial fibrillation and hypertension. UA 564. He also commented that after the stroke, Meyer had undergone tests which included a transthoracic echocardiogram that showed “mitral regurgitation, tricuspid regurgitation and increased left atrial size.” Id. Under “Impression,” Massey wrote, “Left middle cerebral artery ischemic stroke, status post extracranial-intracranial bypass, but also right frontal stroke suggesting the possibility of an embolic source ... complicated by cerebral hemorrhage, edema and seizures.” Id. He further explained:

Would not anticoagulate for atrial fibrillation or if findings of a mural of left atrial clot until after basal ganglia hemorrhage has resolved. Would also hold any antiplatelet therapy for now until hemorrhage has disappeared. He could be treated by controlling risk factors including hyperlipidemia and optimize blood pressure control per neurosurgery to preserve patency of the extracranial-intracranial bypass.
UA 565. The discharge summary for Meyer's stay at Via Christi contains the following statements:

2–D echocardiogram was done to rule out embolic source of stroke....

On 03/10/2010, transesophageal echocardiogram [TEE] was done in order to rule out any potential embolic source of stroke and no intracardiac mass or clot was seen as well as no vegetation.
UA 567.

On June 28, 2011, after receiving the additional medical information, Wellman summarized the state of the claim (including the initial denial because of a pre-existing condition and the contents of the record) and requested that Lambrew review and comment on the following questions:

What medical treatment, consultation, care, services, or diagnostic measures did the claimant receive, or prescribed medicines did the claimant take for the pre-ex illness/injury during the period of 5/14/08–11/13/08?

What is the medical relationship between the pre-ex illness/injury and the claimed disabling illness/injury? Specifically, explain how and why this claimant's pre-ex illness/injury led to this claimant's claimed disabling illness/injury? (Note: If the pre-ex illness/injury is a “risk factor” for the claimed disabling illness/injury, please explain in specific detail how and why each “risk factor” actually led to this claimant's claimed disabling illness/injury.)

What medical conditions and/or symptoms did the claimant receive treatment for, if any, during the time period of 11/14/08 ... through 3/4/10? Please indicate specific dates and corresponding conditions and/or symptoms treated.
UA 687–88.

On July 14, 2011, Lambrew issued his opinion and stated that in reaching his opinion, he had reviewed all medical records in the file.

UA 688–91.

Lambrew noted that Meyer had a history of “recurrent or paroxysmal atrial fibrillation for which he was followed and treated for at least 4 years prior to the ischemic stroke,” including during the look-back period. UA 689. Lambrew opined that “[t]he pre-existing condition of atrial fibrillation, based on the medical evidence, was the primary cause of the claimant's embolic, ischemic stroke on 3/5/10.” UA 690. Lambrew explained his reasoning as follows:

It is well-known that patients in chronic persistent AF [atrial fibrillation] or paroxysmal AF are at an increased risk of stroke.... The increased risk is related to the fact that during AF, atrial contraction is disorganized and not synchronous in moving blood to the left ventricle, with resultant stasis which promotes clotting of blood. Echocardiogram in Mr. Meyer documented that the LA [left atrium] was increased in size to 4.4 on one determination and 4.5 in another. LA enlargement further results in stasis and increases the propensity for clot formation. It has also been noted that embolization of the clot that has formed in the left atrium may frequently occur when the patient converts from NSR [normal sinus rhythm] to AF, or converts spontaneously or by cardioversion or with drugs from AF to NSR. The evidence records that Mr. Meyer had paroxysmal AF, and would go in and out of the rhythm over the years, as well as periods of persistent AF. This is documented in the history, as well the observations during the hospital admission from 3/5/10 to 3/16/10. The risk was recognized by Drs. Blunk and Reader, since he was anticoagulated during the look-back period, and prior to the stroke, to prevent a CVA [cerebrovascular accident] or embolization to another organ. While the TEE [transesophageal echocardiography] did not find evidence of a thrombus in the [left atrium] after the stroke, it is not unusual to find no residual clot after embolization. Emboli tend to lodge at a branch point in the arteries of the brain, and it is of interest that in Mr. Meyer, it occluded the left middle cerebral artery at the trifurcation point. Hypertension also contributed to his risk of acute CVA, as an independent predictor of ischemic stroke, and it should be noted that his BP on admission was 163/95.

The absence of significant atheromatous involvement of the internal and external carotids on both sides, by Doppler evaluation, and absence of any evidence of coronary disease given the negative stress perfusion imaging study done on 6/6/09, would not favor an etiology of primary thrombosis of atheromatous cerebral vessels.
UA 690–91 (internal citations omitted). Lambrew opined that “[w]ith a reasonable degree of medical certainty, the medical evidence, therefore, supports the conclusion that the claimant had an ischemic stroke that was caused by an embolus from the LA [left atrium] that formed as a result of AF [atrial fibrillation]. AF was present before and during the look-back period.” UA 691. Lambrew also stated that Meyer was treated for atrial fibrillation and hypertension during the look back period, “to prevent embolization and possible ischemic stroke.” UA 690.

On July 15, 2011, Unum notified Meyer that it had denied his appeal. Unum stated that according to Lambrew, the primary cause of the stroke was Meyer's pre-existing atrial fibrillation, for which he received treatment during the look-back period and continuously thereafter. UA 696–701. Unum stated that “it upheld the benefit denial because the stroke was “caused by, contributed to by, or resulted from” pre-existing conditions,” i.e.,atrial fibrillation and hypertension. UA 698–99.

Facts Relating To Unum Claim Practices And Inherent Conflict Of Interest

The Unum Appeals Unit is separate and independent from the Benefits Center. The units are located on different floors and have separate management structures and personnel, including medical and vocational resources.

The Benefits Center disability benefits specialists and the Appeals Unit specialists do not have any roles or responsibilities in managing or reporting, or other functions regarding Unum finances. Wellman testified that Financial personnel do not advise or influence the Benefits Center or the Appeals Unit with respect to whether a claim is approved or denied—they have no involvement whatsoever in claim decisions.

Lambrew has worked for Unum on a part-time basis under a contract agreement over the past ten years. Unum pays Lambrew $200 per hour. From 2007 through 2012, Lambrew earned between $116,050 and $219,600 per year. Lambrew works at the Unum offices in Portland, Maine, where he has a cubicle, a telephone and computer that are interrelated with Unum's company systems, and dictation transcription services. Lambrew performs medical review services only for Unum and does not own a consulting business.

Lambrew has access to all information in the claim file including claim denial notes. He testified that he does not decide whether to grant or deny claims, but merely issues medical opinions based on information provided. Unum does not base his compensation on the results of his opinions, whether he decides for or against the claims. Lambrew testified that he feels free to give an opinion that someone is disabled, and that he has an ethical responsibility to give the correct opinion regardless of the outcome.

Analysis

Plaintiff asserts that he is entitled to summary judgment because Unum's denial of benefits was arbitrary and capricious. Unum asserts that it is entitled to summary judgment because substantial evidence supports its decision. The parties appear to agree that the core of the dispute is whether Unum abused its discretionary authority to determine eligibility for benefits, including the discretion to resolve factual disputes and to interpret Plan provisions, in denying plaintiff's claim for disability benefits because his disability was “caused by, contributed to by, or resulting from a pre-existing condition.” Before addressing this issue, the Court must determine the appropriate standard for reviewing Unum's decision.

I. Standard Of Review

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. SeeFed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538–39 (10th Cir.1993).

This Court has acknowledged, however, that summary judgment standards are not completely suited to the Court's review of the administrative record in an ERISA action. See McNeal v. Frontier AG, Inc., 998 F.Supp.2d 1037, 1040–41 (D.Kan.2014); Baker v. Tomkins Indus., Inc., 339 F.Supp.2d 1177, 1181 (D.Kan.2004). Here, the parties do not ask the Court to determine whether material issues of fact remain for trial; they seek review of an administrative record to determine whether Unum reasonably denied plaintiff's claim. See McNeal, 998 F.Supp.2d at 1040. The Court's task is to act “as an appellate court and evaluate[ ] the reasonableness of a plan administrator or fiduciary's decision based on the evidence contained in the administrative record.” Id. (citing, inter alia, Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579 & n. 31 (10th Cir.1994)).

A district court reviews denial of ERISA benefits under a de novo standard “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir.2010) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). If, as here, the plan administrator has discretion to determine eligibility for benefits and to construe plan terms, then the court reviews the administrator's actions under a “deferential standard of review.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (quoting Firestone, 489 U.S. at 111, 109 S.Ct. 948). Under this standard, a court reviews the administrator's decision for abuse of discretion. See Foster v. PPG Indus., Inc., 693 F.3d 1226, 1231 (10th Cir.2012).

The Tenth Circuit “treats the abuse-of-discretion standard and the arbitrary-and-capricious standard as ‘interchangeable in this context,’ and ‘applies an arbitrary and capricious standard to a plan administrator's actions.’ ” Id. at 1231–32 (quoting Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1003 & n. 2 (10th Cir.2004) (per curiam), abrogated on other grounds by Glenn, 554 U.S. at 118, 128 S.Ct. 2343). Here, the parties do not dispute that the Plan grants the Plan Administrator discretion to determine eligibility for benefits, including resolving factual disputes and interpreting and enforcing Plan provisions, within the parameters that “all benefit determinations must be reasonable and based on the terms of the Plan and the facts and circumstances of each claim.” The Court therefore evaluates Unum's decision that plaintiff is not entitled to disability payments under an arbitrary and capricious standard of review.

The review under the arbitrary and capricious standard “is limited to determining whether the interpretation of the plan was reasonable and made in good faith.” LaAsmar, 605 F.3d at 796. The decision need not be the only logical one or even the best one. It need only be sufficiently supported by facts within the administrator's knowledge to counter a claim that it was arbitrary or capricious. Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.1999) (citing Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1460 (10th Cir.1991)) (court should uphold decision unless not grounded on any reasonable basis). The reviewing court need only assure that the administrator's decision falls somewhere on a continuum of reasonableness—even if on the low end. Id. (quoting Vega v. Nat'l Life Ins. Serv., Inc., 188 F.3d 287, 297 (5th Cir.1999), overruled on other grounds by Glenn, 554 U.S. at 118, 128 S.Ct. 2343) (rejecting “sliding scale” approach to deferential review where benefits plan administrator is operating under a conflict of interest).

The Court's review under the arbitrary and capricious standard is influenced, however, by the inherent conflict of interest when, as here, the claims administrator acts in a dual role as evaluator and payor of the claim. Glenn, 554 U.S. at 112, 128 S.Ct. 2343. The Court must weigh the conflict of interest as a factor in the abuse of discretion analysis, weighing it “more or less heavily depending on the seriousness of the conflict.” Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1157 n. 1 (10th Cir.2010). The Court applies “a combination-of-factors” method of review that allows it to take account of several different factors, often case-specific, in reaching a result. Holcomb v. Unum Life Ins. Co., 578 F.3d 1187, 1193 (10th Cir.2009) (internal quotation marks and alterations omitted) (citing Glenn, 554 U.S. at 117, 128 S.Ct. 2343). A conflict “should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision ... [and] should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Glenn, 554 U.S. at 117, 128 S.Ct. 2343.

Plaintiff asserts that the record here requires the Court to attribute “great importance” to the inherent conflict of interest.

Specifically, plaintiff contends that Unum (1) has a history of biased claims administration, (2) did not take measures to reduce potential bias and (3) “blindly” relied on Lambrew's opinion, who (a) gave his opinion in response to standard leading questions by Unum, (b) was involved in round-table reviews designed to deny costly claims, (c) reviewed the entire claim file before issuing his opinion and (d) though termed a “consultant,” is essentially a highly-paid Unum employee.

Plaintiff points to Unum's handling of another case in which Unum relied in part on Lambrew's opinion which connected treatment for risk factors with existence of underlying disease. See Ex. K. to Doc. # 69, Memorandum in Lafferty v. Unum Life Ins. Co. of Am., No. 3:10–cv–02465, 2012 WL 667811 (M.D.Pa. Feb. 29, 2012) (opinion vacated July 11, 2012 and withdrawn from publication by the Court), see Order, Ex. M to Doc. # 69. In Lafferty, the district court noted Lambrew's concession that plaintiff was not treated for heart failure during the look-back period and that treatment of coronary artery disease was done to prevent the development of heart failure. The Court in Lafferty did not address the policy language at issue here but found that plaintiff had not been treated for heart failure during the look-back period. After the district court entered its order in favor of plaintiff, the parties entered a settlement and requested that the court withdraw its opinion, which it did. See Ex. M to Doc. # 69. Plaintiff criticizes Unum for asking the court to vacate the Lafferty opinion and not discussing with Lambrew the result in Lafferty, i.e. the district court's determination that prophylactic health care to treat risk factors during the look-back period is not the same as care for the disability itself. Lambrew took the same approach in both Lafferty and this case.

Courts have noted Unum's history of biased claims administration. See Glenn, 554 U.S. at 117, 128 S.Ct. 2343; Stephan v. Unum Life Ins. Co. of. Am., 697 F.3d 917, 933–34 (9th Cir.2012) (collecting cases that commented on Unum's history of erroneous and arbitrary benefits denials). Recently, however, Judge Julie Robinson of this Court noted that judicial criticism of Unum's history related primarily to claims practices which Unum employed from 1993–2003. See Swanson v. Unum Life Ins. Co., No. 13–CV–4107–JAR, 2015 WL 339313, at *8 (D.Kan. Jan. 26, 2015). Courts have recognized that Unum has since changed its internal procedures, and Judge Robinson found that Unum's previous pattern of misconduct is “no longer present.” Id. at *8 & n. 41 (numerous recent cases have found Unum's claims administration history is not factor, or is only minor factor, in reviewing Unum decisions to deny benefits).

Judge Robinson placed limited weight on Unum's history because nearly a decade has elapsed since its “documented history of abusive practices.” Id. at *8.

Plaintiff contends that in this case, rather than take steps to reduce potential bias, Unum's procedures in handling Meyer's claim exacerbated the impact of the inherent conflict of interest. These practices include use of leading questions in medical referral questions, use of round-table reviews, and allowing appeals personnel to review the entire file (including claims notes). Perhaps most importantly, plaintiff criticizes these practices in relation to Unum's reliance on the opinion of Lambrew, who (a) gave his opinion in response to standard leading questions by Unum, (b) was involved in round-table reviews designed to deny costly claims, (c) reviewed the entire claim file before issuing his opinion and (d) though termed a “consultant,” is essentially a highly-paid Unum employee.

Regarding round-table reviews, Unum asserts that it uses the reviews to assist disability benefits decision-makers in understanding medical aspects of claims. Cf. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1012 (9th Cir.2007) (criticizing predecessor company's round-table practice, describing meetings with “lawyers, doctors, and claims handlers” in order to clear “most expensive claims” from books). Plaintiff has not demonstrated that Unum used the round-table reviews in this case to eliminate expensive claims.

Plaintiff asserts that Unum posed leading questions to Lambrew, thus suggesting answers. As discussed in the analysis section below, the Court finds that leading questions may have contributed to possible bias in this case.

As to the fact that Unum gave appeals staff and Lambrew access to all files, Unum points out that the files contain information needed to complete a full evaluation. Medical information in the file may be helpful; however, shielding a physician from claims decisions would minimize risk of bias. See Prado v. Allied Domecq Spirits & Wine Group Disability Income Policy, 800 F.Supp.2d 1077, 1096–98 (N.D.Cal.2011) (insurance company had opportunity to show that medical examiners were shielded from bias but chose not to do so). This practice adds to the potential for bias.

Finally, plaintiff points out that Lambrew receives substantial remuneration for his work at Unum, and that Unum did not seek an independent opinion. Unum counters that it does not compensate Lambrew based on his opinion, and that Lambrew testified that he feels ethically obligated to provide accurate opinions. Nonetheless, whether a decisionmaker seeks an opinion from an independent expert is a factor to consider. The fact that Unum did not seek an outside expert is entitled to considerable weight in the Court's review—especially in light of the Lafferty case. As noted, in Lafferty, the United States District Court for the Middle District of Pennsylvania rejected Lambrew's effort to treat coronary artery disease (a risk factor) as a proxy for heart failure (a disabling event) for purposes of the pre-existing condition exclusion. The fact that Unum did not counsel Lambrew about his error—and instead asked the district court to vacate its decision—suggests that Unum's commitment to independent impartial medical advice is more window dressing than substance. This practice suggests actual bias and is entitled to some weight in the Court's review.

Unum cites measures which it has taken to reduce potential bias, including the fact that it operates the Benefits Center and Appeals Unit as physically separate units with different personnel. Appeals specialists do not discuss initial claims decision with employees from the Benefits Center. Unum does not pay decision makers based on claim quotas or targets. Unum business units, including Finance, are completely separate from the Benefits Center and Appeals Unit, and Finance personnel are not involved with claim decisions. These steps reduce potential bias. See Brown v. Hartford Life Ins. Co., 428 Fed.Appx. 817, 821 (10th Cir.2011) (separating initial claims handler from appeals specialist and separating financial department from claims department minimized conflict of interest).

Overall, the circumstances of this case suggest that the Court should weigh Unum's conflict of interest heavily in reviewing whether Unum acted reasonably in denying plaintiff's claim.

Finally, the Court notes that plaintiff bears the burden to show by a preponderance of the evidence that he is disabled under the Plan. See Thompson v. Union Sec. Ins. Co., 688 F.Supp.2d 1257, 1264 (D.Kan.2010). Plaintiff has met this burden.

Unum bears the burden to show by a preponderance of the evidence that it reasonably applied the policy exclusion for pre-existing conditions, based on the terms of the Plan and the circumstances of Meyer's claim. See Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1319 (10th Cir.2009) (under ERISA, insured has burden of showing that covered loss occurred, while insurer has burden to showing that loss falls within exclusionary clause of policy). In ERISA cases, exclusionary clauses are interpreted narrowly. See Frerking v. Blue Cross–Blue Shield of Kan., 760 F.Supp. 877, 881 (D.Kan.1991).

II. Application

The Court now turns to the specific issue at hand: whether Unum abused its discretion in denying Meyer's claim because his disability was “caused by, contributed to by, or resulting from” a “pre-existing condition” of atrial fibrillation and hypertension. The case law analyzing preexisting condition limitations in ERISA polices is “highly dependent on the individualized fact scenarios.” Goetz v. Greater Ga. Life Ins. Co., 649 F.Supp.2d 802, 818–19 (E.D.Tenn.2009) (collecting cases). The Court reviews Unum's decision in light of the Plan language and the entire administrative record to determine whether its decision was arbitrary and capricious, bearing in mind its inherent conflict of interest.

Plaintiff alleges that he became disabled on March 5, 2010 when he suffered an ischemic stroke that made him unable to perform his job. As noted, the Plan excludes benefits for disabilities “caused by, contributed to by, or resulting from” a pre-existing condition. The Plan defines “pre-existing condition” by stating that a pre-existing condition exists when claimant

received medical treatment, consultation, care or service including diagnostic measures, or took prescribed drugs or medicines in the 6 months just prior to your effective date of coverage; and—the disability begins in the first 24 months after your effective date of coverage unless you have been treatment free for 12 consecutive months after your effective date of coverage.
Plaintiff's effective date of coverage was November 14, 2008. Thus, under the Plan, any condition for which plaintiff received treatment during the six-month look-back period before that date was pre-existing, unless he was treatment-free for a 12–month period after the effective date of coverage, which he was not.

Therefore, the dispositive issue is whether plaintiff received medical treatment, consultation, care, service or diagnostic measures, or took prescribed drugs or medicines for an ischemic stroke during the six months prior to November 14, 2008. If so, the Court must address the entirely separate question whether the pre-existing condition, as defined by the policy, “caused,” “contributed to” or “resulted in” plaintiff's disability. If not, the analysis is at an end; absent a pre–existing condition, as defined in the policy, Unum cannot satisfy its burden of proof on the policy exclusion.

Here, Unum abused its discretion in finding that plaintiff had pre-existing conditions as defined by the policy. During the look-back period, plaintiff undeniably had atrial fibrillation and took prescription drugs for anticoagulation, cardiac rhythm control and high blood pressure. No one claims that during that period, plaintiff had a prior stroke or received care, treatment, diagnoses or medicines on account of a prior stroke.

Unum's decision that plaintiff was not entitled to benefits because his disability was “caused by,” “contributed to by” or “resulted from” pre-existing conditions of atrial fibrillation and high blood pressure was arbitrary and capricious in three respects: (1) Lambrew's opinion was not consistent with independent contemporaneous medical records and other independent evidence and (2) Unum adopted Lambrew's opinion wholesale without an independent examination; and (3) Unum did not reasonably interpret and apply the policy exclusion for pre-existing conditions—which must be construed narrowly. More specifically, Unum acted arbitrarily and capriciously in disregarding the plan's express definition of what constitutes a “pre-existing condition” and jumping instead to an entirely different question—causation. A. Lambrew's Opinion

As noted, Lambrew opined that atrial fibrillation and hypertension caused the stroke,

i.e. that because atrial fibrillation and hypertension are risk factors for ischemic strokes, plaintiff had a pre-existing condition under the policy.

Atrial fibrillation and hypertension are not the precipitating causes, however, of ischemic strokes; such strokes are caused by either (1) an embolus (a clot that travels to the brain from elsewhere in the body); or (2) a thrombus (a clot that forms in an artery). Lambrew explained that plaintiff had an enlarged left atrium, which increases the “propensity” for clotting and that embolization “may frequently occur” in such circumstances. Independent contemporaneous medical records and tests, however, seem to have ruled out an embolus. Specifically, Massey's records noted that two separate tests (a 2–D echocardiogram and a transesophageal echocardiogram) were performed to “rule out any potential embolic source of stroke.” The tests revealed “no intracardiac mass or clot” and plaintiff was discharged “without any further issues.” Lambrew noted this evidence but refused to accept it because it is not “unusual” to find no residual clot after embolization.

In other words, he implies that to rule out an embolic source of plaintiff's stroke, his treating physicians used echocardiogram procedures which were completely incapable of ruling out an embolic source. Lambrew apparently rejects the test results because it is “not unusual” for them to yield false negative results—even though in this case, the record contains no evidence or scientific support for that opinion. In addition, Lambrew reasons that a false negative test result (no visual evidence of an embolus when one was actually present) is tantamount to a true positive result (an embolus was present, even if evidence is not available).

B. Independent Medical Exam

In light of the significant gap between Lambrew's opinion and the results of medical tests to rule out an embolic source of plaintiff's stroke, along with Lambrew's history in the Lafferty case, Unum did not act reasonably in relying on his opinion to deny benefits without an independent medical opinion. Cf. Panther v. Synthes (USA) Employee Benefit Plan, 380 F.Supp.2d 1198, 1209 (D.Kan.2005) (defendant abused discretion in discounting opinion of treating doctor without obtaining independent evaluation). C. Policy Interpretation

In applying Lambrew's opinion, Unum ignored the policy definition of pre-existing condition. Unum denied benefits because plaintiff's stroke was “caused by, contributed to by, or resulted from ... pre-existing condition [s],” i.e.,atrial fibrillation and hypertension. This conclusion is at odds with a plain reading of the policy exclusion.

Under the policy, plaintiff is entitled to disability benefits if he is limited from working due to sickness or injury unless he had a pre-existing condition ( as defined in the policy ) which “caused,” “contributed to” or “resulted in” his disability.

Here, the sickness or injury which prevents plaintiff from working is ischemic stroke, not atrial fibrillation or hypertension.

Thus, plaintiff's stroke caused, contributed to or resulted in plaintiff's disability. Unum has not produced evidence or even suggested that plaintiff was treated for stroke any time during the six-month look-back period or at any time during the 24–month waiting period. In finding that Meyer's disability was caused by, contributed to by, or resulted from a “pre-existing condition,” Unum was arbitrary and capricious because it ignored the policy definition of “preexisting” and—treating risk factors as proxies for pre-existing conditions—jumped directly to the question of causation.

As noted, the Court must narrowly construe policy exclusions. If Unum wants to exclude coverage for pre-existing risk factors, it should do so unambiguously and not through a post-disability underwriting process in the claims department. With the benefit of hindsight, insurers may find it cheap and convenient to use risk factors as proxies for pre-existing conditions, especially in cases which involve chronic diseases and high-dollar claims.

Absent evidence of actual causation, however, the Court must reject any suggestion that treatment for a risk factor constitutes treatment for a pre-existing condition. Where expert testimony is necessary to establish a causal link, the party bearing the burden of proof may not prevail if the expert evidence consists of testimony expressed only in terms of risk factors or various possibilities. Cleary v. Knapp Shoes, Inc., 924 F.Supp. 309, 318 (D.Mass.1996) (decision makers cannot conclude that hypertension caused plaintiff's stroke based on doctors' opinions that hypertension was risk factor for stroke); cf. Holsey v. UNUM Life Ins. Co. of Am., 944 F.Supp. 573, 579 (E.D.Mich.1996) (pre-existing condition of diabetes caused vision problems which were known complication of diabetes).

Risk factors are not proxies for pre-existing conditions under the language of this policy exclusion. In denying plaintiff's claim in the first instance, Unum had no evidence that plaintiff's atrial fibrillation or hypertension caused his stroke. On appeal, Unum relied on an opinion by Lambrew, a tainted, highly paid Unum contractor who rendered his opinion in response to leading questions and discounted physical test results. In applying his opinion, Unum adopted an arbitrary and capricious interpretation of the policy definition of “pre-existing condition.” For all of the reasons set forth above, the Court finds that Unum abused its discretion in denying plaintiff's disability claim.

IT IS THEREFORE ORDERED that Plaintiff's Motion For Summary Judgment (Doc. # 66) filed January 20, 2104 be and hereby is SUSTAINED.

IT IS FURTHER ORDERED that Defendants' Motion For Summary Judgment (Doc. # 67), filed January 20, 2014 be and hereby is OVERRULED.

IT IS FURTHER ORDERED that Defendants' Motion For Leave To File Sur–Reply In Opposition To Plaintiff's Reply In Support Of Motion For Summary Judgment (Doc. # 81) filed March 14, 2014 be and hereby is SUSTAINED.

IT IS FURTHER ORDERED that Defendants' Motion For Leave To File Notice Of Supplemental Authority (Doc. # 88) filed August 14, 2014 be and hereby is SUSTAINED.