Opinion
4:11CV3031
01-22-2013
SCOTT A. BOLES, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.
MEMORANDUM AND ORDER
The complaint filed by the plaintiff, Scott A. Boles, alleges ERISA claims for recovery of benefits on two disability income insurance policies issued by UNUM Life Insurance Company of America ("UNUM"). Although discovery has historically been denied in ERISA lawsuits, Boles argues discovery is warranted in this case because UNUM, the plan administrator, has a conflict of interest. UNUM "both determines whether an employee is eligible for benefits and pays benefits out of its own pocket." Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 108 (2008). This dual role creates a conflict of interest. Id.
Boles served discovery seeking information regarding whether and to what extent UNUM's conflict of interest impacted its decision to deny Boles' claims. UNUM has responded to the majority of the discovery requests, but objects to Interrogatories 13, 14 and 18 as unduly burdensome and irrelevant. Boles moves the court for an Order compelling UNUM to answer these interrogatories. (Filing No. 48). After receiving UNUM's response to the motion to compel, Boles submitted additional evidence in reply. (Filing No. 60). UNUM has moved to strike this additional evidence (Filing No. 62) or, in the alternative, for leave to file a sur-reply brief and evidence in response to Boles' reply. (Filing No. 64).
For the reasons discussed below, UNUM's motion to strike (Filing No. 62) will be denied, and its motion to submit sur-reply evidence and briefing, (Filing No. 64), will be granted. Along with all other evidence and briefs on Plaintiff's motion to compel, the court has considered UNUM's additional evidence and arguments, (Filing No. 64), in ruling on the motion to compel. For the reasons discussed below, Boles' motion to compel will be granted.
STATEMENT OF FACTS
Boles was insured under a long term group disability policy and a disability insurance income policy offered through his employer, Telesis, Inc. ERISA governs Boles' claims for recovery under both policies. (Filing No. 30). The policies were issued by UNUM, and decisions on claims for benefits were made by UNUM. UNUM has denied the plaintiff's claims for recovery under his group disability and disability income policies
By way of background, UNUM was the subject of substantial criticism and review between 2002 and 2004 for alleged improper claims handling processes. A Multistate Market Conduct Examination was performed "to determine if the disability income claims handling practices of [UNUM] reflected systemic 'unfair claim settlement practices' " in violation of applicable statutory law governing the insurance industry. (Filing No. 60-2, at CM/ECF p. 3).
After conducting a review of UNUM's files, the multistate examination identified the following areas of concern:
• Excessive reliance upon in-house medical professionals;(Filing No. 60-2, at CM/ECF p. 3-4). As explained in the examination findings:
• Unfair construction of attending physician or IME reports;
• Failure to evaluate the totality of the claimant's medical condition; and
• Inappropriate burden placed on claimants to justify eligibility for benefits. . . in which benefits were denied by the Companies on the grounds that the claimant had failed to provide "objective evidence" of a disabling condition.
[UNUM's] insurance contracts generally allow [UNUM] to require claimants to submit to an independent medical examination ("IME") conducted by a physician of [UNUM's] choice. The examination team identified numerous instances in which [UNUM] relied heavily upon the analysis of their in-house medical professionals, and refrained from securing an IME. In many such instances, [UNUM] discounted or disputed the opinions of claimants' attending physicians, but chose not to invoke the requirement that the claimant attend an IME. Where there is conflicting medical evidence or conflicting medical opinions with respect to a claimant's eligibility for benefits, [UNUM has] the ability to invoke the policy provision and obtain an IME, and should do so.(Filing No. 60-2, at CM/ECF p. 4).
The multistate investigation was resolved in November 2004. UNUM agreed to comply with the terms of a Regulatory Settlement Agreement ("RSA") which required, among other things, that UNUM increase its use of Independent Medical Examinations rather than relying so heavily on the opinions of its own employees and independent contractor physicians. (Filing No. 60-2, at CM/ECF p. 5).
Boles stopped working for Telesis, Inc. in October 2007, allegedly because he was experiencing incapacitating symptoms of fibromyalgia, chronic fatigue syndrome, and neurally mediated hypotension. (Filing No. 31, ¶ 7). He thereafter submitted claims to UNUM for coverage under his long term disability and disability insurance policies. Boles submitted his medical records to UNUM in support of his claims for benefits. UNUM, in turn, forwarded Boles' medical records for review by James H. Bress, M.D., Joseph Sentef, M.D, and Jana Zimmerman, M.D. Dr. Bress and Dr. Sentef are independent contractors for UNUM, (Filing No. 50-2, at CM/ECF pp. 1 & 6, interrogatory responses 1 & 7); Dr. Zimmerman is a UNUM employee.
Based on the records from Boles' treating physicians, including both family practice doctors and rheumatology specialists, Boles was disabled from work due to chronic fatigue and fibromyalgia. UNUM submitted those records to Dr. Bress, an internal medicine doctor, for medical review. After reviewing the records, Dr. Bress recommended that Boles' claim be denied, finding "the clmt is capable of FT work including his former occ. as a restaurant manager." (Filing No. 64-3, at CM/ECF p. 7). Dr. Bress explained:
Fibromyalgia is a condition that is based solely upon reported symptoms such as diffuse muscle pain, fatigue, and "brain fog," as reported by this claimant. The diagnosis is based on reported symptoms confirmed only by noting 11 of 18 specific tender points on physical examination. There is no such examination provided in the claim file to date.(Filing No. 60-5, at CM/ECF p. 4).
Since Dr. Bress' opinion differed from that of Boles' treating physicians, Boles' records were forwarded to Dr. Sentef, a family practice doctor, for a UNUM "Designated Medical Officer" review. Dr. Sentef "concur[red] with Dr. Bress,". . . explaining "There does not appear to be support for fibromyalgia. The claimant is quoted to have 'fibro fog' but there does not appear to be any basis for that diagnosis especially since no trigger points are documented in the medical record." (Filing No. 64-3, at CM/ECF p. 15).
Thereafter, Boles' treating physician, Dr. Rutz, performed a Fibromyalgia Medical Evaluation on July 15, 2009. The UNUM examination form completed by Dr. Rutz documented 16 tender points. (Filing No. 60-4, at CM/ECF p. 5). It was forwarded to Dr. Bress for further consideration. (Filing No. 60-5, at CM/ECF p. 5).
Upon review of the new information, Dr. Bress noted "14/18 tender points, no control testing done." (Filing No. 60-5, at CM/ECF p. 7). Dr. Bress concluded: "The new information does not change my prior opinion that the claimant is capable of FT work including his prior occ. as a restaurant manager. It is further my opinion that the claimant's problems are caused by and/or contributed to by his M&N issues of anxiety and depression and substance addiction." (Filing No. 60-5, at CM/ECF p. 9).
Dr. Bress spoke with Dr. Rutz on August 4, 2009, and in a letter to Dr. Rutz, summarized his interpretation of Dr. Rutz' statements as follows:
You stated that Mr. Boles has fibromyalgia with diffuse pain and fatigue. He has good days when he could do some work and bad days when he could not do any work. He cannot tell how he will feel on any given day and said his main limiting problem is the fatigue. He also has depression which overlaps with his fatigue. You said fibromyalgia is a subjective disease and there is no way to measure his functional capacity. You must go by what the patient tells you and based on that you opined that Mr. Boles could not work in any capacity.(Filing No. 60-6, at CM/ECF p. 3. Dr. Rutz was afforded 11 days to submit additions or corrections to Dr. Bress' interpretation of the conversation, in the absence of which the summary statement would be deemed correct.
Dr. Rutz timely sent a letter to "clarify and admonish [Dr. Bress'] paraphrasing of [Dr. Rutz'] comments in regards to Scott Boles." (Filing No. 60-7, at CM/ECF p. 3). Dr. Rutz explained:
You indicated that I suggested that fibromyalgia was a subjective disease. However, fibromyalgia is diagnosed using the medical model. As we were taught in medical school, it is important to obtain an excellent history as to the patient's pain including the location, exacerbating factors, alleviating factors, radiation patterns, nature of the pain, intensity and timing. When conducting this kind of a history with a patient with fibromyalgia or more specifically with Mr. Boles, it becomes apparent that fibromyalgia is the diagnosis even before physical examination. The presence of the tender points serves to confirm that diagnosis. Therefore, it is a disease that is diagnosed by excellent history taking and then complemented by the physical examination.(Filing No. 60-7, at CM/ECF p. 3).
Even after Dr. Rutz conducted the tender point testing Dr. Bress and Dr. Sentef considered critical to diagnosing fibromyalgia, Dr. Bress did not order an Independent Medical Examination. Instead, Boles' records were again submitted to Dr. Sentef for review. (Filing No. 60-9, at CM/ECF p. 1). Like Dr. Bress, Dr. Sentef re-iterated the subjective nature of Boles' complaints. And now that tender point testing was included in Boles' records, Dr. Sentef considered the results were unreliable. (Filing No. 60-9, at CM/ECF p. 9). Dr. Sentef concluded: "It appears that most of the information that Dr. Rutz has gleaned is based on the claimant's self-report." (Filing No. 60-9, at CM/ECF p. 9). "[T]here is no support for the diagnoses of fibromyalgia or chronic fatigue Syndrome." (Filing No. 60-9, at CM/ECF p. 10).
The defendant's discovery responses in this case reveal that for the years 2007 through 2011:
• Dr. Bress reviewed an average of 250 UNUM claims per year, and of that, approximately 11 claims per year requested recovery of disability benefits arising from alleged "myalgia and myositis, unspecified" or "chronic fatigue syndrome;" (Filing No. 50-3, at CM/ECF p. 1-3, interrogatory responses 2 & 3; Filing No. 50-4, at CM/ECF pp. 1-2, interrogatory response 3). For the years 2008 and 2009, Dr. Bress received an average of $237,500 per year for his work on UNUM files. (Filing No. 50-7, pp. 1-3).
• Dr. Sentef reviewed an average of 332 UNUM claims per year, and of that, approximately 24 claims per year requested recovery of disability benefits arising from alleged "myalgia and myositis, unspecified" or "chronic fatigue syndrome;" (Filing No. 50-3, at CM/ECF pp. 4-6, interrogatory responses 8 & 9; Filing No. 50-4, at CM/ECF pp. 4-5, interrogatory response 9). For the years 2008 and 2009, Dr. Sentef received an average of $171,100 per year for his work on UNUM files. (Filing No. 50-7, pp. 4-5).
• Dr. Zimmerman reviewed an average of 129 UNUM claims per year, and of that, approximately 5 claims per year requesting recovery of disability benefits arising from alleged "myalgia and myositis, unspecified" or "chronic fatigue syndrome;" (Filing No. 50-4, at CM/ECF pp. 9-11, interrogatory response 16; Filing No. 50-5, at CM/ECF pp. 3-4, interrogatory response 15).
As to each of these physicians, the plaintiff requested the total number of disability claims reviewed for UNUM from 2007 through 2011 in which an insured who was covered under a UNUM disability insurance policy made a claim under the policy due to Fibromyalgia and/or Chronic Fatigue Syndrome, and the reviewing physician concluded that:
a) the restrictions and limitations claimed by the insured and/or his or her physician(s) were not substantiated and/or supported by medical evidence.(Filing No. 50-4, at CM/ECF pp. 7-9 & 12-13, interrogatories 13, 14, and 18). UNUM objected to these interrogatories as vague, overbroad, irrelevant, and requesting information beyond the scope of the ERISA administrative record. UNUM states that Drs. Bress, Sentef, and Zimmerman were not necessarily asked to offer opinions responsive to plaintiff's interrogatories 13, 14, and 18, and therefore UNUM cannot answer these interrogatories without performing a manual review of 173 claim files. UNUM claims the manual file review would seriously disrupt UNUM's business by requiring UNUM to reassign an employee with sufficient expertise to the task of manually reviewing 173 closed files, and that file review would take at least 72 hours. (Filing No. 55-6, at CM/ECF p. 2). UNUM asserts the burden of providing a response to interrogatories 13, 14, and 18 is not justified by the limited probative value of the information requested. (Filing No. 50-5, at CM/ECF pp. 1-3 & 7-8, interrogatory responses 13, 14, and 18).
b) the insured was capable of full-time work in his or her former occupation.
The plaintiff has moved to compel the remaining discovery. The plaintiff's unanswered discovery seeks to determine whether, and to what extent, the UNUM physicians who reviewed Boles' claims may have been impacted by a UNUM bias against granting disability benefits to persons diagnosed with fibromyalgia and Chronic Fatigue Syndrome.
LEGAL ANALYSIS
The court must consider UNUM's conflict of interest when reviewing its discretionary determination to deny Boles' claim for benefits. Glenn, 554 U.S. at 115 . The court "must analyze the facts of the case at issue, taking into consideration not only the conflict of interest, but also other factors that might bear on whether the administrator abused its discretion." Chronister v. Unum Life Ins. Co. of America, 563 F.3d 773, 775 (8th Cir. 2009). As a factor, the conflict of interest "should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration." Glenn, 554 U.S. at 117 .
Glenn abrogated or modified the historical limitations on discovery in ERISA cases. Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1, 10 (1st Cir. 2009) (holding limited discovery to "flesh out" the conflict is appropriate); Wilcox v. Wells Fargo and Co. Long Term Disability Plan, 287 Fed.Appx. 602, 603, 2008 WL 2873735, 2 (9th Cir. 2008) ("[C]onflict of interest [is] a factor whose weight depends on the 'nature, extent, and effect' of the conflict on the decision-making process, which may be unmasked through discovery); Zalkin v. Coventry Health Care of Neb., Inc., Case No. 8:09CV96, 2010 WL 1052263 at *6 (D. Neb. 2010) (permitting discovery beyond the administrative record to determine "How many other similar cases have been determined and to what result," the financial interests, training, and expertise of the reviewers, how they were chosen for review of the claim, and what studies and treatises were available and reviewed to make the decision); Winterbauer v. Life Ins. Co. of North America, Case No. 4:07cv1026, 2008 WL 4643942 at *4 (E.D. Mo. 2008) (allowing limited discovery, explaining "there is no practical way to determine the extent of the administrator's conflict of interest without looking beyond the administrative record")(collecting cases).
Based on the history revealed in the record, UNUM's financial conflict of interest has led to a "disturbing pattern of erroneous and arbitrary benefit denials, bad faith contract misinterpretations, and other unscrupulous tactics." Chronister v. UNUM Life Ins. Co. of America, 563 F.3d 773, 776 (8th Cir. 2009). However, UNUM urges the court to disregard the UNUM's history, citing to the remedial policies it has instituted. UNUM asserts its past conduct is not relevant to Boles' claim because its claims procedures were changed after the November 2004 Regulatory Settlement Agreement. The question is: Did UNUM's culture change when its policies changed?
As in Strope v. Unum Provident Corp., Case No. 06CV628C, 2010 WL 1257917 at *7 (W.D.N.Y. 2010), contrary to the policy statements within the RSA, UNUM did not order an IME of Boles before rejecting the diagnosis of his treating physicians, relied heavily on contract physicians to review his file, and those contract physicians discounted plaintiff's complaints as subjective only, when by its very nature, "there is no objective test that can conclusively confirm chronic fatigue syndrome." Id. See also, Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 635 (9th Cir.2009) (holding it was "unreasonable for Hartford to require Montour to produce objective proof of his pain level"); Cook v. Liberty Life Assur. Co. of Boston, 320 F.3d 11, 21 (1st Cir.2003) (requiring objective documentation of Chronic Fatigue Syndrome is unreasonable); Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3rd Cir.1997) (same). The UNUM contract physicians noted the lack of tender point testing in Boles' medical records, but even when that testing was documented in the records and confirmed Dr. Rutz' diagnoses of fibromyalgia, the UNUM physicians rejected the findings as unreliable. In other words, despite the RSA and the passage of time, UNUM may still be placing an "[i]nappropriate burden . . . on claimants to justify eligibility for benefits," and denying benefits when the claimant fails "to provide 'objective evidence' of a disabling condition." (Filing No. 60-2, at CM/ECF p. 3-4). See, e.g., Champion v. Black & Decker, Inc., 550 F.3d 353, 358-59 (4th Cir. 2008)(court is to consider conflict of interest as a factor in determining whether administrator abused its discretion in denying benefits); Heffernan v. UNUM Life Ins. Co. of America, 101 Fed. Appx. 99 (6th Cir. 2004) (LTD plan administrator's denial of benefits to a plan participant claiming pain, fatigue and depression was arbitrary and capricious); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003) (insurer abused discretion by denying benefits on a fibromyalgia claim based on lack of objective evidence).
Dr. Bress noted that although the tender point findings were included in the report, there were no documented control point findings. It would seem that documenting the "control" results (e.g., any "false positive" complaints of tender point pain) would only be necessary when the patient provides a false positive response on testing. In all other cases, the physician would consider the testing results valid and therefore simply report the number of tender points.
"Chronic fatigue syndrome, like fibromyalgia, poses unique issues for plan administrators, since for both conditions, its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective." Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 916 (7th Cir. 2003). Boles' motion to compel is focused on determining whether UNUM has a pattern on how it handles these unique issues; specifically, whether the UNUM medical reviewers who examined Boles' records were biased against granting disability claims when the claimant has fibromyalgia and chronic fatigue syndrome. Id. (holding a plan administrator acted arbitrarily and capriciously, primarily because the denial of benefits was based on its medical consultant's belief that a claimant cannot be found disabled due to fibromyalgia because the amount of pain experienced is subjective in nature).
The information requested by plaintiff's interrogatories 13, 14, and 18 is relevant or could lead to the discovery of relevant information. Although it may take 72 hours of file review to respond to the plaintiff's discovery, based on the evidence of record and the potential relevancy of the information requested, this time commitment is not unduly burdensome.
Accordingly,
IT IS ORDERED:
1) UNUM's motion to strike, (Filing No. 62), is denied, and the plaintiff's supplemental evidence, (Filing No. 60), has been considered in ruling on the plaintiff's motion to compel.
2) UNUM's motion for leave to file a brief and evidence in reply to Boles' reply evidence and arguments, (Filing No. 64), is granted, and UNUM's submissions have been considered in ruling on the plaintiff's motion to compel.
3) Plaintiff's motion to compel, (Filing No. 48), is granted.
4) UNUM's answers to Interrogatories 13, 14 and 18 shall be served on or before February 19, 2013.
5) On or before March 5, the parties shall confer and shall jointly file a proposed schedule for progression of this case to final resolution.
BY THE COURT:
Cheryl R. Zwart
United States Magistrate Judge
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