Opinion
CIVIL ACTION NO. 02-3291, SECTION "N"
January 30, 2004
ORDER AND REASONS
Before the Court are: (1) Defendant's Motion for Summary Judgment, filed by defendant Tenet Employee Benefit Plan (the "Plan"); (2) a Motion for Summary Judgment, filed by defendant UNUM Life Insurance Company of America; and (3) Plaintiff's Cross Motion for Summary Judgment. For the reasons that follow, plaintiff's motion is GRANTED. The defendants' motions are DENIED.
I. BACKGROUND
Plaintiff filed this suit against the Tenet Employee Benefit Plan (the "Plan") and Unum Life Insurance Company of American ("UNUM"), alleging that her long-term disability benefits were wrongfully terminated. Prior to her disability, plaintiff worked as a medical technologist for Northshore Regional Medical Center, an affiliate of Tenet Healthcare Corporation. In November 1999. plaintiff began having numbness in her right hand. (UACLOOO28). Then, in June or July 2000. she began to have burning pain in her right scapula. (UACLOOO52). She sought medical treatment for this "right shoulder, right-sided arm pain, and right scapular pain," and was prescribed narcotic pain medication. (UACL00131). A myelogram revealed a defect in her cervical spine, and she underwent a cervical fusion at C5/C6 on August 16, 2000. (UACL00130). Dr. Bert R. Bratton performed the surgery. Plaintiff was then referred to Dr. Robert J. Beck, a chiropractor for post-surgery rehabilitation.
Plaintiff used sick leave beginning in July 2000. (UACL00052). In September 2000, she applied for short-term disability benefits pursuant to the Tenet Employee Benefit Plan, giving a disability date of July 14, 2000. She was approved for these benefits, which were self-insured by Tenet. See Tenet Exh. C, p. 29 ("During the first 180 days of a disability, . . . payable plan benefits are paid out of the general assets of the Company. . . . Beginning on the 181st day of a disability, income replacement benefits are insured by UNUM."). UNUM began providing long-term disability benefits on January 10, 2001.
Beginning in October 2000, according to Dr. Bratton's notes, plaintiff reported an increase in pain, the "same original pain" — "shoulder pain:' (UACL00023). In January 2001, Dr. Beck reported that plaintiff had experienced two episodes of right arm "paralysis." (UACL00101). One of these episodes occurred in his office, and he observed that it involved the bicep, tricep, wrist flexor and extensors, as well as the intrinsic muscles of the right hand. The severity was such that he had difficulty trying to straighten out the affected joints. He had no explanation for what he had observed and was "at a loss" as to why such episodes were occurring, when a January 23, 2001 MRI revealed no problems with plaintiff's cervical spine. At an insured/claimant visit in February 2001, the interviewer similarly recorded that plaintiff reported "seizures" in her right arm. (UACL00114). In February 2001, Dr. Beck reported that "working over a microscope and other daily tasks [we]re contraindicated" for plaintiff, that she was "under full restriction with no work at this time." (UACL00099-00100).
In March 2001, plaintiff was referred for an MRI and bone scan. These tests revealed nothing to explain plaintiff's symptoms. (UACL00140-143). An ultrasound of plaintiff's right upper extremity in April 2001 likewise revealed no abnormal physiology. (UACL00165).
On May 10, 2001, UNUM sent a letter to Dr. Bratton, stating that UNUM typically anticipates recovery from a cervical fusion to be complete within six to nine months and asking Dr. Bratton to answer a series of questions relating to plaintiff's condition. (UACL00177). Dr. Rand Metoyer responded to the letter on June 14, 2001, stating that he was "not able to determine" plaintiffs current restrictions and limitations or whether she had any work capacity. In response to the question "What are the current barriers for Ms. Needham to return to work? What would need to change in order for her to get back into the work force?," Dr. Metoyer responded: "Pain. Psychological Support." (UACL00176).
A few days later, on June 21, 2001, UNUM sent a letter to plaintiff notifying her that it had determined she no longer met the policy's definition of disability and therefore no longer was entitled to long-term disability benefits. (UACL00191-189). According to the letter. UNUM was denying further benefits because information in her file did "not support restrictions and limitations which would preclude [plaintiff] from [her] own occupation." (UACL00187). In particular, the letter focused on the post-surgery MRIs, x-rays, and bone scan, none of which had revealed a physiological explanation for plaintiff's symptoms. The letter noted Dr. Metoyer's statement of pain as a "return to work barrier," although it gave no explanation for rejecting this doctor's opinion that pain precluded plaintiff from returning to work. Moreover, the letter ignored altogether Dr. Beck's conclusion that "working over a microscope and other daily tasks [we]re contraindicated" for plaintiff and that plaintiff was "under full restriction with no work at this time." Indeed, the only concrete evidence cited in the letter was plaintiff's own report to UNUM that she (as part of her prescribed rehabilitation program) had been doing weight-lifting exercises up to 30 pounds. The letter gave plaintiff 90 days in which to appeal UNUM'S decision.
The policy 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;
— you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury; and
— during the first 60 days of the elimination period, you are unable to perform the material and substantial duties of your regular occupation.
After 12 months of payments, you are disabled when UNUM determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.Limited means what you cannot or are unable to do.
Material and substantial duties means duties that:
— are normally required for the performance of your regular occupation; and
— cannot be reasonably omitted or modified.
Regular occupation means the occupation you are routinely performing when your disability begins. UNUM will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location. (UACLOO465).
On June 29, 2001, Dr. Peter R. Galvan wrote a letter stating that plaintiff was under his care "with a chronic neuropathy of her shoulder and upper extremity causing physical disability." (UACL00206). On July 2, 2001, Dr. Beck wrote a letter to UNUM stating that plaintiff "continues to experience moderate to severe cervical pain that radiates into the right upper arm and into the right interscapular region." (UACL00208). In this letter, he explained that the controlled exercises he had prescribed for plaintiff did not evidence an absence of reduced capacity to perform her occupation. To the contrary, "[s]imple activities such as bending her neck downward to look into a microscope should be avoided at all times." Id. "Any repetitive cervical motion that alters her posture from the neutral position will cause her to have complications." Id.
On September 18, 2001, plaintiff wrote a letter to UNUM, informing it that she wished to appeal UNUM's decision to deny her benefits. (UACL00219). In the letter, plaintiff cataloged her continuing attempts to find a medical answer for her condition, including cortisone injections, acupuncture, and possible arthroscopy. She explained that one could now "physically see the unevenness and drop of [her] right shoulder" and that she continued to have spasms, pain, and an inability to use her right arm and shoulder most of the time. Id. As a result, she had increased her use of prescribed narcotics. Id. She also reported that Dr. Galvan has requested a handicapped parking permit on her behalf, which had been approved. Id.
In addition, plaintiff sent UNUM information from her employer, Tenet, including a June 30, 2000 letter informing plaintiff that Tenet had received a fax from plaintiff's treating physician indicating that neither Soma nor Vicodin should be taken during work or immediately prior to work. (UACL00215). The letter further instructed plaintiff that if she needed to take either Soma or Vicodin prior to or during work, she would be relieved of her duties for that shift.
On October 9, 2001, Dr. Bratton (the neurosurgeon who performed the August 16, 2001 cervical fusion) wrote a letter to UNUM, confirming that plaintiff had continued to have pain following the surgery, for which she took pain medication. (UACL00224). Dr. Bratton admitted that he was "somewhat at a loss to explain the significant complaints based on an uneventful one level fusion with good stability" and that he found it difficult to determine the exact extent of plaintiff's disability. Id. Dr. Bratton opined that, although a one-level fusion generally carries with it only a five to ten percent permanent disability, in plaintiff's case, "there is a more significant problem going on." Id.
On January 18, 2002, UNUM sent plaintiff a letter stating that the additional information "was not sufficient to reverse" UNUM's previous decision. (UACL00243). The letter stated that plaintiff's claimed disability was inconsistent with her performing the exercises prescribed by Dr. Beck (lateral pull-downs at 20 to 30 pounds, chest press, and rows at 15 pounds). The letter also suggested that plaintiff's claimed limited ability to use her hands for fine dexterity beyond short periods was refuted by her indication that she "would be interested in Rehabilitation taking classes over the computer." In response to plaintiff's complaints that her prescribed narcotic pain medication (Soma and Vicodin) made her groggy, UNUM simply stated that "use of these medications should not cause significant cognitive impairment." Id.
Ten days later, on January 28, 2002, UNUM sent a letter informing plaintiff that, based on its review, denial of her claim was appropriate. (UACL00248-246). The letter reiterated UNUM's conclusion that plaintiff's claimed limitations were "inconsistent with [her] activities" (the exercises requiring plaintiff to lift 15 to 30 pounds) and that the "severity of [plaintiff's] pain complaints [was] not supported by the clinical data on file or [plaintiff's] reported activities" (presumably the rehabilitation exercises).
One month later, on March 7, 2002, plaintiff called UNUM. According to the UNUM memo documenting this call, plaintiff told the representative that plaintiff had been diagnosed with a progressive condition — would UNUM reconsider her claim? (UACLOO249). The representative told plaintiff that since she was not considered disabled on June 21, 2001, her coverage ended at that time, and any worsening of her condition would not be covered. Id. "[H]er claim therefore could not be reopened." Id.
On October 1, 2002, plaintiff's attorney wrote a letter to UNUM, explaining that he had been retained to represent plaintiff. He informed UNUM that plaintiff had been diagnosed with remote Parsonage — Turner syndrome on November 13, 2001 — a fact that had not been considered in UNUM's determination of plaintiff's claim. (UACL00430). The letter also informed UNUM that the Social Security Administration had found plaintiff to be disabled, based in part on the Parsonage — Turner diagnosis. Id. Counsel enclosed with the letter the November 2001 diagnosis and other medical evidence. He concluded the letter with a request that UNUM reconsider plaintiff's claim for benefits based upon the supplemental information.
Among the materials submitted to UNUM by plaintiff's counsel was a September 25, 2001 letter to UNUM from Dr. Galvan. (UACL00278). It is unclear why this letter was not in UNUM'S file when it made its January 2002 decision. In the letter, Dr. Galvan explained how he had referred plaintiff to other physicians and ordered numerous diagnostic tests to determine the cause of the pain that plaintiff "continues to have, even after the successful [fusion]." Id. He stated that he had "documented the spasm, paralysis, the tenderness and pain, as well as loss of function she experiences in her right scapula and arm." Id. He explained that "in [his] opinion, this is a physical/neurological problem" the cause of which "has not been able to be identified to date." Id. According to Dr. Galvan, plaintiff "is unable to do any type of work what so ever and cannot perform routine daily tasks without assistance or experiencing physical pain." Id. In his opinion, plaintiff was "not able to perform" the repetitive procedures required of a medical technologist, including "extensive bending over the microscope." Id. In addition, her daily regimen of Valium and Vicodin could interfere with the performance of her job duties such that "she should have no dealings with patient testing and reporting of results." Id.
Also among the materials sent to UNUM by plaintiff's counsel were November 2001 medical records from Dr. Felix Savioe and Dr. An Leis. diagnosing plaintiff's condition as Parsonage — Turner syndrome (also known as neuralgic amyotrophy), based on a nerve conduction study and EMG performed on November 13, 2001. (UACL00284-280, UACL00330). According to other materials submitted by plaintiff's counsel, "[t]his condition presents with severe pain in the shoulder and arm. followed by atrophic paralysis of some muscles." (UACL00279). Counsel also sent to UNUM the March 22, 2002 decision by the administrative law judge for the Social Security Administration, approving plaintiff's claim for disability benefits. (UACL0031 1-307).
UNUM replied to plaintiff's counsel in a letter dated October 18, 2002, stating that "no further review [would] be completed" regarding plaintiff's claim for benefits, but that UNUM would be reviewing plaintiff's file to determine whether, in light of plaintiff's recovery of social security benefits, UNUM might be entitled to a set-off against payments previously made to plaintiff. (UACL00337). Shortly thereafter, on October 31, 2002, plaintiff filed this suit pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA").
II. LAW AND ANALYSIS
All parties agree that this Court's review is limited to the administrative record (although there is some dispute as to what materials should be included, as discussed infra). Accordingly, they have submitted the matter on cross motions for summary judgment.
A. Summary Judgment Standard:
"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 534 U.S. 892 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211.
B. Standard of Review:
"`[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed 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.'" Vega v. National Life Ins. Services, Inc., 188 F.3d 287, 295 (5th Cir. 1999) (quoting Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Factual determinations are also reviewed for abuse of discretion. Lain v. UNUM Life Ins. Co. of America, 279 F.3d 337, 342 (5th Cir. 2002). When applying the abuse of discretion standard, the Court's task is to determine whether the administrator acted arbitrarily or capriciously. Id. "A decision is arbitrary when made `without a rational connection between the known facts and the decision or between the found facts and the evidence.'" Id. (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Michigan, 97 F.3d 822, 828 (5th Cir. 1996)). Thus, an "administrator's decision to deny benefits must be `based on evidence, even if disputable, that clearly supports the basis for its denial.'" Id. (quoting Vega, 188 F.3d at 299). The Court owes no deference to an administrator's "unsupported suspicions" and will not uphold the denial of a claim "solely because an administrator suspects something may be awry." Vega, 188 F.3d at 302. Simply put, there must be "some concrete evidence in the administrative record that supports the denial of the claim." Id. If there is none, the Court must find that "`the administrator abused its discretion.'" Lain, 279 F.3d at 342 (quoting Vega, 188 F.3d at 302).
This standard of review is somewhat less deferential where, as here, the administrator is operating under a conflict of interest. Here, it is undisputed that UNUM is both the party charged with determining whether claims for long-term benefits will be approved and the insurer responsible for paying claims that are approved. Such administrators "ha[ve] a financial incentive to deny the claim and often can find a reason to do so." Vega, 188 F.3d at 296. This creates a conflict of interest, as UNUM concedes. The Fifth Circuit has adopted a "sliding scale" standard of review for such cases. Vega, 188 F.3d at 296. Using this sliding scale approach, "the court always applies the abuse of discretion standard, but gives less deference to the administrator in proportion to the administrator's apparent conflict." Id. For example, where an administrator is conflicted, the Court will be "less likely to make forgiving inferences when confronted with a record that arguably does not support the administrator's decision." Id. at 299. C. The Administrative Record:
As the Fifth Circuit explained in Vega, "there are two ways employee benefit plans may be created: (1) the employer funds the program and either contracts with a third party who administers the plan or provides for administration by a trustee, individual, committee, or the like; or (2) the employer contracts with a third party that both insures and administers the plan." Vega, 188 F.3d at 295. "In the latter situation, the administrator of the plan is self — interested, i.e., the administrator potentially benefits from every denied claim." Id.
The parties concur that the Court is limited in its review to the administrative record. They vigorously dispute, however, whether the November 2001 diagnosis regarding the cause of plaintiff's right — arm pain, numbness, and paralysis (i.e., Parsonage — Turner syndrome) should be considered part of that record. Plaintiff's counsel submitted this diagnosis (along with additional medical records supporting plaintiff's disability) to UNUM in October 2002 — before filing suit, but after UNUM had denied plaintiff's pro se administrative appeal. UNUM refused to consider the additional material on grounds that plaintiff's appeal had been denied and her file closed.
Citing Vega, supra, plaintiff argues that the material constitutes part of the administrative record, and thus properly may be considered by the Court, because it was presented to UNUM before filing suit, thereby affording UNUM a fair opportunity to reconsider its decision prior to litigation. UNUM argues that the Court should not consider this material because it was not before UNUM when it made its final decision on January 28, 2002. Alternatively, UNUM argues that the Court should not consider the material because it relates to a "new" condition, which was not diagnosed until after UNUM'S initial decision to terminate plaintiff's benefits and Tenet's consequent decision to terminate plaintiff's employment, thereby disqualifying her as eligible to participate in the plan.
The Court disagrees with UNUM's latter argument. The record contains no evidence to support a determination that the condition diagnosed as Parsonage — Turner syndrome in November 2001 was a new condition. To the contrary, the record evidence is overwhelming that the condition diagnosed (i.e., right scapular pain and right arm/shoulder pain, numbness, and paralysis) was the same as that for which she sought medical treatment in July and August 2000, that she complained of again post-surgery in October 2000, that was painstakingly documented by Dr. Beck in January/February and July 2001, and was described by Dr. Galvan in June 2001. (e.g., UACLOOO23, UACL00130, UACL0099-101. UACL00206, UACL00208). The record contains no evidence to support a contrary conclusion.
UNUM's primary argument (i.e., that in determining whether UNUM abused its discretion. the Court should limit its review to materials presented to UNUM on or before it made its final decision on January 28, 2002) is more persuasive. The question is not an easy one, however. Dicta in Vega, an en bane Fifth Circuit decision, tends to support plaintiff's argument. "Before filing suit," the Vega court stated, "the claimant's lawyer can add additional evidence to the administrative record simply by submitting it to the administrator in a manner that gives the administrator a fair opportunity to consider it." Vega, 188 F.3d at 300. If the claimant's lawyer does so, then "that additional information should be treated as part of the administrative record." Id. Here, plaintiff's counsel did submit additional material to UNUM prior to filing suit and did ask UNUM to reconsider its decision. See UACL00430. He did so, however, eight months after UNUM had denied plaintiff's appeal.
See also Estate of Bratton v. National Union Fire Ins. Co. of Pittsburgh, 215 F.3d 516, 521 n. 5 (5th Cir. 2000) ("as a safeguard against possible abuse or mistake, the claimant's lawyer may add additional evidence to the administrative record simply by submitting it to the administrator in a manner that gives the administrator a fair opportunity to consider it. . . . If the claimant submits additional information to the administrator, and requests the administrator to reconsider its decision, that additional information should be treated as part of the administrative record.").
It appears that plaintiff herself attempted to inform UNUM of her November 2001 diagnosis on March 7 2002, only one month after UNUM's final decision. However, this telephone call yielded only a one page internal memo by the UNUM representative who took the call. Thus, even if it were considered part of the record, it adds little that is of substance.
Were this Court seated in a different circuit, the Court would be confident in excluding from its review any materials submitted to UNUM after January 28, 2002, the date on which UNUM issued its decision denying plaintiff's appeal. The Fifth Circuit also has made statements that tend to support UNUM on this issue, but it has done so (as far as this Court can determine) only in the context of evidence that had been presented for the first time in the district court, not with respect to evidence that had been presented first (albeit late) to the administrator prior to filing suit. In Vega, too, the Fifth Circuit was faced with evidence which the claimants had sought to present to the trial court in the first instance, not with evidence such as that confronting this Court, which was presented first to the administrator prior to filing suit. Vega, 188 F.3d at 299-300 ("The testimony that the Vegas sought to introduce is evidence . . . which easily could have been presented to the administrator by the Vegas' counsel. The district court therefore correctly held that it could not admit new evidence for the purpose of resolving this dispute. . . ."). Thus, while Vega does contain dicta that supports plaintiff on this issue, it does not address specifically the question presented here. Nor does it provide any guidance regarding the limits of post hoc accretion of the administrative record. Does an administrator ipso facto abuse its discretion by refusing to reconsider its decision after the administrative appeal process is concluded? At what point, if any, may an administrator close its file and simply refuse to consider new evidence? If an administrator legitimately may take this position eight months after denying a claimant's appeal, is it not inconsistent with the abuse of discretion standard of review for the Court to then judge the reasonableness of the denial in light of evidence submitted post hoc?
See, e.g., Marks v. Newcourt Credit Group, Inc., 342 F.3d 444. 458 (6th Cir. 2003) ("The district court did clearly err, however, in relying on Auletta's affidavit to designate a piece of electronic mail sent from Rob McFarlane to Auletta on August 30, 1999, as part of the administrative record. The benefits committee notified Marks that it had denied his appeal on August 27. 1999. Clearly McFarlane's electronic mail could not have been available to the administrators when they made their final decision to deny Marks's claim. Therefore, this document should not be considered part of the administrative record."); Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999) ("`[1]n reviewing decisions of plan administrators under the arbitrary and capricious standard, the reviewing court may consider only the evidence that the administrators themselves considered on or before the final decision denying benefits.' . . . Mr. Kimber appealed from the letter denying his benefits on May 20. 1996 and the plan administrator issued a final decision denying reinstatement for physical disability on August 13, 1996. . . . Thus, our review is limited to evidence presented to Thiokol before August 13, 1996."); Chambers v. Family Health Plan Corp., 100 F.3d 818, 824 (10th Cir. 1996) (magistrate judge properly limited scope of review to evidence presented to administrator "on or before its final decision"); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 48 n. 8 (3rd Cir. 1993) (holding that evaluations submitted after the committee's final decision cannot be considered in determining whether the decision was arbitrary and capricious); Alford v. DCH Foundation Group Long-Term Life Ins. Co. of America, 144 F. Supp.2d 1183 (C.D. Cal. 2001) ("Because this Court is primarily concerned with the propriety of the August 5, 1998 affirmance of the decision to grant benefits only through November 1. 1996, documentation `received' only after that decision was rendered is not properly part of the `record' against which it must be judged."), aff'd, 311 F.3d 955 (9th Cir. 2002).
See Demon v. First Nat'l Bank of Waco, Texas, 765 F.2d 1295, 1304 (5th Cir. 1985) ("In reviewing a decision under the arbitrary and capricious standard, the trial court must focus on the evidence that was before the Plan committee when the final benefit determination was made.").
Fortunately, in this case, resolution of this difficult issue is not outcome determinative. With the November 2001 diagnosis, and the diagnostic tests that supported it, the main rationale offered by UNUM (i.e., that the "objective medical evidence" did not support her claimed limitations) is thoroughly undermined, thus making UNUM's abuse of discretion more plain. However, even without these materials, the Court is compelled to conclude that UNUM abused its discretion, as discussed infra. Thus, the Court is comfortable deciding the administrative record issue in UNUM's favor. In determining whether UNUM abused its discretion in terminating plaintiff's benefits, the Court will restrict its review to the evidence that was before UNUM when it made its final benefits determination on January 28, 2002. D. Analysis of UNUM'S Decision:
UNUM denied plaintiff's claim for benefits based on its finding that she was not "limited from performing the material and substantial duties of [her] regular occupation," as required under the terms of the policy. (UACLOO465). The question for the Court is whether this determination was "`based on evidence, even if disputable, that clearly supports the basis for its denial.'" Lain, 279 F.3d at 342 (quoting Vega, 188 F.3d at 299). The Court owes no deference to an administrator's "unsupported suspicions." Vega, 188 F.3d at 302. There must be "some concrete evidence in the administrative record that supports the denial of the claim." Id.
The Court can find no concrete evidence in the record that supports UNUM's determination that plaintiff was not limited from performing the material and substantial duties of a medical technologist. As specified in the policy, UNUM looked to the occupation of medical technologist as it is normally performed in the national economy, rather than how work tasks might have been performed for plaintiff's specific employer. (UACLOO465). According to UNUM, a medical technologist's tasks include cutting, staining, and mounting biological material on microscopic slides, examining slides under a microscope, analyzing test results, entering findings into a computer, cultivating and analyzing microbial organisms, conducting medical research, and setting up, cleaning, and maintaining laboratory equipment. (UACL00183-180). The job requires precision working; frequent reaching, handling, and fingering; frequent lifting up to 10 pounds; and occasional lifting up to 20 pounds. Id.
Other than evidence that plaintiff was capable of occasional lifting between 10 and 20 pounds (evidenced by plaintiff's performance of her prescribed rehabilitation exercises), the record contains no evidence to support UNUM's conclusion that plaintiff was capable of performing any of the material and substantial duties of a medical technologist. Indeed, the evidence was to the contrary: e.g., Dr. Beck's opinion that "working over a microscope and other daily tasks [we]re contraindicated" for plaintiff and that plaintiff was "under full restriction with no work at this time" (UACL00099-00100, UACL00208); Dr. Metoyer's report of pain as a return-to-work barrier (UACL00176); Dr. Bratton's opinion that there was "a more significant problem going on" than the normal five to ten percent disability associated with a stable cervical fusion. (UACL00224). As the record stood on January 28, 2002, not a single treating or examining physician was of the opinion that plaintiff was able to perform the sorts of tasks required of a medical technologist. UNUM is correct that these doctors had not yet uncovered the physiological explanation for plaintiff's disability — and admitted so. However, this fact does not constitute concrete evidence that plaintiff had no such disability, particularly given these doctors' expressed opinions to the contrary. UNUM was not required to accept these physicians' opinions. But for the Court to uphold UNUM's finding of no disability, the record must contain some concrete evidence that supports that finding. Here, the record contains none.
Other than plaintiff's performance of prescribed exercises and the alleged absence of "objective" medical information in the file, the only other evidence cited by UNUM for its finding was plaintiff's expressed interest "in Rehabilitation taking classes over the computer." (UACLOO243). According to UNUM, this interest on plaintiff's part refuted her claimed inability to perform computer work or other fine fingering beyond short periods of time. The Court disagrees. The fact that plaintiff might have expressed a desire to take a class via computer does not support a rational inference she was indeed capable of performing the microscope, computer entry, and other fine fingering work required of medical technologists. It does not even demonstrate that she is in fact capable of taking a rehabilitation class via computer — only that she was interested in doing so.
Based on UNUM'S description of a medical technologist's job responsibilities, the occasional lifting of 10 to 20 pounds constitutes only a minute aspect of the job. The overwhelming majority of tasks described require fingering and handling of microscopic slides, cultures, biological samples, microscopes and other laboratory equipment, as well computer data entry. Thus, the fact that plaintiff was able to perform her prescribed weight-lifting exercises cannot support UNUM's conclusion that she was capable of performing the material and substantial duties of her occupation.
In short, even without applying a "sliding scale" to its standard of review, the Court is able to find no concrete evidence in the record to support UNUM's basis for denying plaintiff's claim for benefits. Thus, it is the conclusion of the Court that UNUM abused its discretion in terminating plaintiff's benefits.
E. The Plan's Motion for Summary Judgment:
Under the terms of the Plan, UNUM is both the claims administrator and the insurer responsible for paying long-term disability claims. See Tenet Exh.C, p. 29 ("Beginning on the 181st day of a disability, income replacement benefits are insured by UNUM. Plan benefits are paid in accordance with the insurance contract between UNUM and Tenet Healthcare Corporation."). The Plan argues that plaintiff's claims against it should be dismissed because UNUM is the party ultimately responsible for paying any claim for long-term disability benefits, the only kind of benefits at issue in this suit.
It is undisputed that, pursuant to the insurance policy between Tenet and UNUM, UNUM is responsible for paying approved long-term disability benefits. However, plaintiff derives her right to benefits from and through the Plan. The Plan has cited no authority to support its argument that by contracting with a third party to administer and insure claims such as plaintiff's', the Plan is relieved of its responsibility to claimants such as plaintiff. Indeed, as plaintiff points out, there is jurisprudence in this Court holding that the Plan is the only proper defendant in an action to recover benefits pursuant to 29 U.S.C. § 1132(a)(1)(B). See, e.g., Roig v. Limited Long Term Disability Program, 2000 WL 1146522 *9 (E.D. La. 2000) (Vance, J.). Accordingly, the Court finds that Tenet has failed to carry its burden of demonstrating that is entitled to judgment as a matter of law dismissing plaintiff's claims against it.
F. Amount of Judgment and UNUM'S Argument for Set-Off:
It is uncontested that plaintiff's basic monthly earnings were $3,577.77 and that, if found disabled, her gross disability payment would be fifty percent of her basic monthly earnings, or $1,788.88. It is further uncontested that plaintiff is receiving Social Security disability benefits in the amount of $1,394.10 per month, which reduces her minimum monthly benefit under the policy to $394.78. The parties agree further that, should this Court rule in plaintiff's favor, plaintiff is entitled to receive this minimum monthly benefit retroactively to June 21, 2001. According to the Court's calculation, this yields 31 months of benefits, totaling $12, 238.18. UNUM states that all such amounts are subject to any set-offs under the policy. However, UNUM has presented no evidence or argument regarding the amounts of any such set-off. Thus, the Court does not find that UNUM is entitled to any such set-offs as part of the judgment in this case. The Court agrees with plaintiff that prejudgment interest is appropriate under the facts of this case.
Regarding future benefits, the Court agrees with UNUM that plaintiff is simply to be placed "back on claim." Her right to receive future benefits will be subject to the terms of the policy, including the obligation to provide proof of continued disability, as defined by the policy. G. Attorneys' Fees:
An award of attorneys fees is authorized under 29 U.S.C. § 1132(g)(1). In determining the appropriateness of such an award, the Court is to consider the following factors: 1) the degree of the opposing parties' culpability or bad faith; 2) the ability of the opposing parties to satisfy an award of attorneys' fees; 3) whether an award of attorneys' fees against the opposing parties would deter other persons acting under similar circumstances; 4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant question regarding ERISA itself; and 5) the relative merits of the parties' positions. See Riley v. Administrator of Supersaver 40IK Capital Accumulation Plan for Employees of Participating AMR Corp. Subsidiaries, 209 F.3d 780, (5th Cir. 2000) (citing Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)). Weighing these factors in this case, the Court finds that an award of attorneys' fees to plaintiff is appropriate. Plaintiff shall file an appropriate motion within thirty (30) days.
III. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that: (1) the Motion for Summary Judgment filed by Tenet Employee Benefit Plan is DENIED; (2) the Motion for Summary Judgment filed by defendant UNUM Life Insurance Company of America is DENIED; and (3) Plaintiff's Cross Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment in favor of plaintiff and against defendants in the amount of $12, 238.18, with legal interest thereon from date of judicial demand, plus attorneys fees and costs.