Opinion
Civil No. 03-264-AS.
May 11, 2004
FINDINGS AND RECOMMENDATION
OVERVIEW
Richard Teplick filed a complaint against The Boeing Company Employee Health and Welfare Benefit Plan (Plan) pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001-1461 (ERISA), seeking to recover disability insurance benefits pursuant to the terms of the Plan. Teplick also seeks his costs and attorney fees pursuant to 29 U.S.C. § 1132(e)(1) and 1132(f).
The parties agree that, based on the Administrative Record submitted by Aetna, the matter can be decided by briefing on the merits and without the need for trial.
Teplick is a programmer at Boeing and a participant in the Plan, which includes benefits for long-term disability. Teplick alleges that he became totally disabled on July 26, 2000, due to "extreme pain" from arthritis. Aetna initially allowed Teplick's claim and paid him long-term disability benefits through August 31, 2002. Subsequently Aetna investigated and determined that Teplick was no longer disabled from performing the duties of his sedentary occupation as a programmer. Accordingly, Aetna terminated the benefits being paid to Teplick under the Plan.
FACTUAL BACKGROUND
Teplick, who was 61 years old at the time the complaint was filed, worked at Boeing as a machine tool computer programmer from 1981 until 2000. He programmed computer-controlled machines to make airplane parts, which required long periods of standing at the manufacturing machines and sitting at his computer. On a typical day, he spent approximately five hours sitting, three hours standing and one hour walking. Occasionally, Teplick would be required to lift up to 25 pounds.
As a Boeing employee, Teplick was eligible for long-term disability (LTD) benefits under the Plan. The Plan is underwritten by Aetna Life Insurance Company ("Aetna") and, pursuant to an Administrative Services Contract (ASC) with Boeing, Aetna is also the claims administrator for the Plan. The ASC provides that Aetna "shall have discretionary authority to determine whether and to what extent participants and beneficiaries are entitled to benefits, and to construe disputes or doubtful Plan terms."
Teplick left work in July 2000, complaining that his pain made it impossible to concentrate on his work, to stand at the computer-controlled machines during "program proveout," and to walk back and forth as required. On January 16, 2001, Teplick submitted an application for LTD benefits to Aetna. Teplick stated that he became totally disabled in July 2000 due to "arthritis — severe back injury" arising from a motorcycle accident 30 years prior. Teplick alleged that he suffered disabling pain from severe arthritis at multiple levels in his cervical and lumbar spine, in his left leg and both hands. Teplick's treating physician, Dr. Peter Bernier, submitted an Attending Physician's Statement (APS) to Aetna. Dr. Bernier rated Teplick's physical impairment as Class 5, which means "[s]evere limitation of functional capacity; incapable of minimal (sedentary) activity." On March 5, 2001, Aetna approved Teplick's application for LTD benefits, effective January 24, 2001.
On July 26, 2001, Dr. Bernier completed another APS. Dr. Bernier stated that Teplick's diagnosis was "severe degenerative disc disease back, depression, osteoporosis, rheumatoid arthritis." In response to questions regarding Teplick's present capabilities, limitations and restrictions, Dr. Bernier responded only that Teplick "Can Not Work." Dr. Bernier again rated Teplick's impairment as Class 5 and assessed that Teplick would not return to work.
On August 14, 2001, Aetna sent Teplick a letter advising him that the definition of disability under the Plan would be changing and his claim would be reviewed to determine if he was still entitled to benefits. In the letter, Aetna stated, in part, that:
To be eligible for benefits after 24 months of a period of disability, you must be disabled from all occupations for which you are qualified by reason of education, training and experience. You must be unable, because of injury or disease, to work at any reasonable occupation. This is referred to as the Any Occupation Definition of Disability.
. . . .
To determine if you remain eligible for continued benefits, we will evaluate your ability to perform another occupation beginning July 24, 2002. Our review will analyze the medical and vocational information available to us, and will consider, among other things:
• Your medical condition and how it may limit your ability to work on a regular basis;
• The skills and knowledge you gained from your education and past work experience;
• Your prior occupations; and
• Jobs you can perform based on your vocational and physical abilities.
If you have any medical and/or vocational information that you would like us to consider in making our decision, please let us know.
. . . .
In summary, under your Basic LTD claim, you began a period of disability on July 24, 2000. Therefore, your first 24 months of Disability ends on July 24, 2002. In order to receive benefits after July 24, 2002 you must be disabled from all occupations for which you have the education, training and experience. . . .
On August 10, 2001, Aetna sent a letter to Teplick requesting records from Dr. Bernier and the OHSU Pain Clinic as proof of continuing disability. In addition, Aetna sent a letter dated August 15, 2001, to Dr. Bernier requesting Teplick's records for the period "January 2000 to the present." Dr. Bernier provided Aetna with records for the period March 1, 2001, to August 13, 2001. Aetna also obtained Teplick's records from the OHSU Pain Clinic, which Dr. Bernier referred Teplick to in April 2001.
At the pain clinic, Teplick was treated by Andrew Chiu, M.D., from April 24, 2001, to August 13, 2001. During his first examination of Teplick, Dr. Chiu noted that Teplick suffered, among other things, "[i]ntractable pain secondary to arthritis." However, an August 13, 2001, chart note from Dr. Chiu is the last treatment record for Teplick received by Aetna, despite repeated requests for Teplick to submit additional records or other relevant information in connection with his LTD benefits claim.
In a Work History and Education Questionnaire dated August 22, 2001, Teplick stated that his job as a programmer "requires long periods of time standing at the machine during program proveout. Also walking back and forth to the proveout site causes increased pain." Teplick further stated that during a work day he spends five hours sitting, three hours standing, and one hour walking. Teplick also completed a Claim Questionnaire on August 22, 2001. Teplick stated that he cannot engage in any occupation due to "Extreme Pain", that he did not anticipate returning to his job as a programmer or any other occupation in the near future, and that he was not interested in seeking training for some other line of work. He stated that he performs the following chores on a regular basis: cooking, shopping, laundry, and cleaning. Teplick further stated that he rides his horse when he feels well enough.
Aetna referred Teplick's claim to its special investigation unit in order to obtain surveillance of Teplick. Aetna contends that the purpose of the surveillance was to determine Teplick's current level of physical activity. Over three days of video surveillance, the investigators mostly noted no activity at Teplick's home, i.e., no activity for four and one half hours on December 6 and no activity for five hours on December 7. In fact, surveillance of Teplick was conducted over a three-day period and resulted in only seven minutes and 35 seconds of video. Teplick was observed to "stand, sit, walk, drive, turn his head to the left and right, fully extend both arms, lift and carry objects and drive a tractor." In addition, on December 8, the investigator spoke briefly with Teplick on the telephone. Teplick volunteered to the investigator that he was taking only over-the-counter pain medication, and was no longer taking prescription medication.
On April 29, 2002, Dr. Bernier completed another APS and again rated Teplick's impairment as a Class 5 (incapable of sedentary activity). Also, when asked about Teplick's capabilities, limitations, and restrictions, he once again wrote only "Can Not Work."
In June 2002, Aetna had Teplick's file reviewed by a physician consultant, Brent Burton, M.D., M.P.H. After reviewing Teplick's file, Dr. Burton concluded, in part, that: "On the basis of the data contained in this file, Mr. Teplick has no evidence of physical limitations that would impair his ability to work."
On August 8, 2002, Aetna sent Teplick a letter advising him that the company had reviewed his claim and determined that he was no longer entitled to LTD benefits because the evidence did not indicate that he was unable to perform his occupation as a programmer. Accordingly, Aetna advised Teplick that his LTD benefits would be terminated effective August 31, 2002. Aetna stated the bases for its decision, including a review of Teplick's medical records and the surveillance of Teplick's physical activity. Aetna also advised Teplick of his right to appeal its decision and to submit additional information in support of his claim.
Aetna applied the "own occupation" definition of disability even though the "any occupation" definition of disability was applicable to Teplick's claim since 24 months had elapsed since his disability began.
On September 18, 2002, Teplick sought review of Aetna's decision to terminate his LTD benefits. In response, Aetna sent a letter to Teplick's counsel stating that the review process would be commenced and advised that "[a]ny new, relevant information should be submitted as soon as possible." (Emphasis in original). On November 15, 2002, Aetna sent another letter to Teplick's counsel, stating that "In order to give the claim fair consideration and to comply with all ERISA guidelines, we have forwarded Mr. Teplick's file to be reviewed by another consulting physician. We hope to conclude our review shortly." Aetna again invited Teplick to submit any additional relevant information regarding his claim.
In December 2002, Teplick's file was reviewed by Paul Raford, M.D., M.P.H., who focused primarily on Teplick's medical records. In addition to reviewing Teplick's medical records, Dr. Raford also called Dr. Bernier to obtain more information about Teplick's condition. Dr. Bernier stated that he no longer followed Teplick. He also told Dr. Raford that Teplick had consulted with other physicians including a rheumatologist, whose records were not provided to Aetna. Aetna asserts that, prior to that time, it was not aware that Teplick had ever been treated by anyone other than Drs. Bernier and Chiu. Although Dr. Bernier also offered to send Teplick's entire chart with all records to Aetna, those records were never received by Aetna. In concluding that there was insufficient evidence to reverse Aetna's termination of Teplick's claim, Dr. Raford stated, in part:
In his LTD application dated January 16, 2001, Teplick listed Dr. Bernier as the only physician who had treated him in the last year. Dr. Bernier also did not list any other treating physicians in his APS dated January 15, 2001. In his APS dated July 26, 2001, the only other treating physician for Teplick that he listed was the OHSU Pain Clinic. In his APS dated April 29, 2002, Dr. Bernier listed the OHSU Pain Clinic and for the first time Legacy Emanuel Pain Clinic. However, the Administrative Record does not appear to include any records from the Legacy Emanuel Pain Clinic.
There is no doubt to my review of the records that claimant has significant [degenerative disc disease] and osteopenia. There is likewise no doubt on my review that claimant has engaged in drug seeking behavior, is addicted to narcotics, and likely has ongoing alcohol abuse, yet demonstrates no evidence of cognitive or mental status impairment on multiple provider assessments. The records currently offer no support to the claims [rheumatoid arthritis] and emphysema [diagnosis], and little support for a [diagnosis] of depression independent of substance abuse and withdrawal and/or pain issues.
On December 23, 2002, Teplick's counsel sent a letter to Aetna stating that "[w]e are continuing to seek additional medical evidence. . . ." We will be providing additional medical evidence before your January 18 ERISA deadline." Aetna did not receive any additional medical evidence. The following month, January 2003, Dr. Bernier sent a letter to Aetna stating that Teplick has been his patient "for more than 15 years," which appeared to contradict his statement to Dr. Raford a month earlier that he was no longer seeing Teplick. Dr. Bernier also stated, in part, that Teplick: "suffers from rheumatoid arthritis and osteoarthritis. His arthritis is among the most severe cases that I have ever seen. The objective evidence for this is found in the radiological studies performed at the Providence Medical Center on March 8, 2001, and Emanuel Hospital on March 31, 2001."
With regard to the activities that the investigator observed in December 2001, Dr. Bernier stated that "[t]here is no reason he could not perform any of these activities, as tolerated. However, he would not be capable of them as regular employment." Dr. Bernier's letter is the only additional information that Aetna received in support of Teplick's appeal. Dr. Bernier did not, however, include any medical records with his letter and he did not mention any treatment that Teplick received since August 2001. Thus, even on appeal in early 2003, the latest medical record that Aetna had was Dr. Chiu's chart note dated August 13, 2001.
Aetna upheld the decision to terminate Teplick's claim. In its denial letter, Aetna responded to Dr. Bernier's letter and stated, in part, that:
Dr. Bernier cites diagnostic studies dating from March of 2001. These studies confirm degenerative changes with osteophyte formation and disc space narrowing in Mr. Teplick's cervical and lumbar spine. However, no evidence of central canal or nerve root compromise is provided and there are no documented physical examinations that indicate neurological dysfunction.
Aetna also noted that "the activities captured on videotape are inconsistent with the Class Five impairment rating (incapable of sedentary activity) that Dr. Bernier has consistently assigned to Mr. Teplick on Attending Physician Statements." Aetna also explained that its decision was based on Dr. Raford's review of Teplick's claim. Aetna concluded that, "[w]hile we do not deny that Mr. Teplick may experience symptoms associated with a medical condition, it has not been established that his medical condition continued to render him unable to work at the time his claim was terminated on August 31, 2002."
DISCUSSION
I. Legal StandardThe parties vigorously dispute the standard of review the court should apply in this case. Aetna insists that the Plan documents unambiguously vest it with discretion to make benefit determinations and construe Plan terms. It further argues that there is no evidence that Aetna had a conflict of interest when it conducted its review of Teplick's claim. According to Aetna, the record shows that its review was thorough and fair. Thus, Aetna asks this court to review its decision to terminate Teplick's LTD benefits for an abuse of discretion.
Conversely, Teplick denies that Aetna has unambiguously reserved discretion under ERISA. Moreover, Teplick contends that even if the Plan unequivocally reserved discretion to Aetna, Aetna has a conflict of interest that influenced its decision. Finally, Teplick argues that Aetna treated the facts of his case as an adversary and not a fiduciary, including using a videotape obtained surreptitiously to support the denial Teplick's claim, mischaracterizing the physical requirements of Teplick's job, and insisting on compelling evidence in Teplick's medical records to support his claim for LTD benefits. Based on the foregoing, Teplick insists that the court should review this case de novo.
A district court reviews an administrator's decision to deny benefits de novo, "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan," and in those instances an abuse of discretion standard is applied. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). In Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999) (en banc), the Ninth Circuit held that the plan documents must grant this discretionary authority unambiguously; if the plan fails to do this, the district court must review a committee's decision de novo. Id. "[T]he default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision." Id. at 1089. The court must therefore examine the text of Aetna's LTD plan to determine whether it "unambiguously" states that Aetna has "discretionary authority" in making benefits decision. See, e.g., Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1112 (9th Cir. 2001).
Aetna maintains that the Plan at issue here explicitly grants such authority. Aetna explains that pursuant to the Administrative Services Contract (ASC) it is responsible for processing claims for LTD benefits under the Plan. The ASC provides:
In accordance with Section 503 of Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and subsidiaries and affiliates of Aetna to the extent specifically designated as such by Aetna, are hereby designated as the Named Fiduciary under The Boeing Company ("Plan") with complete authority to review all denied claims for benefits under the Plan's Contract No. ASC-728777, ASC-000707, ASC-000714 (including but not limited to the denial of certification of the medically necessity of hospital or medical treatment). In exercising such fiduciary responsibility, Aetna and any such designated subsidiaries and affiliates shall have discretionary authority to determine whether and to what extent participants and beneficiaries are entitled to benefits, and to construe disputes or doubtful Plan terms. Aetna and any such designated subsidiaries and affiliates shall be deemed to have properly exercised such authority unless they have abused their discretion hereunder by acting arbitrarily and capriciously.
The above language is set forth in an addendum, dated April 6, 2000, to the ASC between Boeing and Aetna. Aetna maintains that this language is sufficient to trigger review for an abuse of discretion. See McDaniel v. The Chevron Corp., 203 F.3d 1099, 1107 (9th Cir. 2000) (Abuse of discretion standard applied where the Plan provided that the administrator has "sole discretion to interpret the terms of the Plan" and that those interpretations "shall be conclusive and binding."); Wadyal v. Metropolitan Life Ins. Co., 2003 WL 22846229 *3-4 (N.D. Cal. 2003) (Abuse of discretion standard applied where the Plan provided that "the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan.").
While Teplick agrees that the language here may be sufficient to confer discretion on Aetna if it were included in the Plan or in the summary plan description (SPD), he maintains that the language is inapplicable here as it is contained in a letter amending the ASC between Aetna and Boeing, which the employee had no notice and, therefore, was not accurately and comprehensively informed of its provisions. Moreover, Teplick argues that even if the ASC was to be construed as part of the Plan, the SPD would control and Aetna has not reserved discretion under ERISA in the SPD.
Thus, the question for the court is whether the addendum to the ASC between Aetna and Boeing is considered a "plan document" for purposes of conferring discretion in determining eligibility for benefits. See, e.g., Kearney, 175 F.3d at 1090 (plan documents must grant this discretionary authority (emphasis added)). In reaching its decision, the court must determine which documents constitute the ERISA plan. ERISA requires that "[e]very employee benefit plan shall be established and maintained pursuant to a written instrument. . . ." 29 U.S.C. § 1102(a)(1).
A formal plan document is one in which a plan participant could read to determine his rights or obligations under the plan. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995) (One of ERISA's basic purposes was to afford employees the opportunity to inform themselves, "on examining the plan documents," of their rights and obligations under the plan." (quotations omitted)). The only written document specifically required under ERISA is the SPD. See Krishan v. McDonnell Douglas Corp., 873 F. Supp. 345, 350 (C.D.Cal. 1994). Moreover, ERISA requires employers to provide participants with a copy of a SPD that sets forth the "circumstances which may result in disqualification, ineligibility, or denial or loss of benefits" and shall "be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." Id. at 1022(a)-(b). Finally, ERISA requires plan fiduciaries to act "in accordance with the documents and instruments governing the plan. . . ." 29 U.S.C. § 1104 (a)(1)(D).
Aetna insist that the ASC addendum is a formal plan document within the meaning of section 1102(a)(1). See, e.g., Klebe v. Mitre Group Health Care Plan, 894 F. Supp. 898, 902-903 (D.MD 1995); see also Mario v. PC Food Markets, Inc., 313 F.3d 758, 764-765 (2nd Cir. 2002). While the ASC contains language suggesting discretion on the part of Aetna in determining entitlement to benefits, the ASC is more properly viewed as a contract for services between Aetna and Boeing rather than a plan document. See, e.g., Local 56, United Food and Commercial Workers Union v. Campbell Soup Company, 898 F. Supp. 1118, 1136, (D.NJ 1995); Christian v. Dupont-Waynesboro Health Care Coverage Plan, 1997 WL 470361 (W.D.VA 1997); Fritcher v. Health Care Service Corp., 301 F.3d 811, 817 (7th Cir. 2002). Further, it appears from the court's review of the April 6, 2002, addendum to the ASC that the only purpose served by the addendum was to confer discretion for eligibility determinations on Aetna. Such discretion was not provided for in either the Plan itself of the SPD, i.e., the formal plan documents. There has long been a presumption in favor of de novo for the participant or beneficiary of a plan administrator's decision regarding entitlement to benefits. The plan administrator's decision is insulated from this full judicial review only if it is unambiguously disclosed in a formal plan document. The court finds that Aetna is unable to overcome the presumption of full judicial review by way of the addendum to the ASC. For purposes of conferring discretion here, the plan documents do not include the April 6, 2002, addendum to the ASC.
The Ninth Circuit's decision in Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995), does not alter this determination. In Atwood, the Ninth Circuit stated that "ERISA requires that the SPD explain the `circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.'"Id. at 1321 (quoting 29 U.S.C. § 1022(b)). "Where the SPD fails to meet this requirement and differs materially from the terms of the plan, the SPD is controlling." Id. The court added that the Ninth Circuit has "interpreted § 1022(b) to mean that the SPD must be specific enough to enable the ordinary employee to sense when there is a danger that benefits could be lost or diminished." Id. (quotations omitted).
The Ninth Circuit went on to find that the omission of the plan language placing the determination of entitlement in the discretion of the employer did not undermine its conclusion that the SPD amply informed the employee that he would be ineligible for severance benefits if he resigned. Id. at 1321-1322. Thus, the determination of discretion was not required in the SPD.Id. (The SPD should explain the plan's rules in such a way that an ordinary employee would recognize that "certain events or actions could trigger a loss of benefits," and that the discretionary language provision "has no bearing on the events or actions determinative of eligibility under the plan.") (emphasis in original)).
Based upon the Ninth Circuit's decision in Atwood, this court concludes only that there is no requirement that the discretionary language must appear in the SPD. However, that does not relieve Aetna of its obligation to include the discretionary language in another plan document; namely, the ERISA plan itself. For example, the ERISA plan in Atwood specified that the administrator "shall be the sole and exclusive judge as to whether or not a termination is qualified for benefits under the terms of this Plan." Id. at 1321. Aetna concedes that the language conferring discretion upon the Plan Administrator to determine eligibility for benefits and to construe the terms of the plan language does not appear in either the SPD or the Plan. As such, a de novo standard of review applies to Aetna's decision to terminate Teplick's LTD benefits.
II. De Novo Review
Aetna insists that it terminated Teplick's LTD benefits effective August 31, 2002, because it determined that he was no longer unable to perform his occupation as a programmer and Aetna maintains there is substantial evidence in the record supporting its decision. Specifically, Aetna points out that Teplick's medical records establish that by August 2001, Teplick's pain control had improved markedly and he was increasing his physical activities; and, that by December 2001, Teplick no longer needed prescription pain medication and was able to engage in various activities such as horseback riding, driving his truck, operating a tractor, and pushing a wheelbarrow. Aetna argues that both of these circumstances indicate that Teplick is capable of performing either sedentary or light work and, as such, its decision to terminate LTD benefits was reasonable.
Teplick contends that Aetna terminated his LTD benefits without noting any change in his condition and based only on a "flagrant misinterpretation of three minutes of surveillance videotape and misrepresentation of the medical records and the requirements of [Teplick's] job." Specifically, Teplick argues that Aetna has misrepresented what the videotape showed and, thus, medical opinions relying on the videotape are flawed. Regardless, Teplick does not contend that he cannot do any particular activity for a short time but, rather, that he cannot sustain the concentration and the physical positions needed to perform his job on a regular basis. Moreover, Aetna has erroneously categorized Teplick's job as sedentary when the requirements of his position clearly exceed the sedentary work definition. Finally, Teplick charges that on the one hand Aetna has arbitrarily excluded his subjective complaints of pain, yet it has relied on reports of improved pain to show that he is not disabled. Based on the foregoing, Teplick insists that Aetna's decision should be reversed and his LTD benefits should be reinstated.
When a court reviews the administrator's decision de novo, as here, the record that was before the administrator furnishes the primary basis for review. Kearney, 175 F.3d at 1090. Moreover, neither party requests that the court consider additional information beyond what was available to the administrator when he made his decision. See Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir. 1995) (The district court has discretion to allow evidence that was not before the plan administrator "only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review."). Thus, the record before the court is complete for a determination of whether Aetna properly terminated Teplick's LTD benefits.
The Plan defines "total disability" as follows:
"Total disability" or "totally disabled" means, during the first twenty-four months of any one period of disability, that the employee is unable, solely because of disease, accidental bodily injury, or pregnancy-related condition, to perform the duties of his own occupation or other appropriate work made available by his Participant Employer; and thereafter during the continuance of such period of disability, that the employee is unable, solely because of disease, accidental bodily injury, or pregnancy-related condition, to work at any reasonable occupation.
Thus, under the express terms of the Plan, once twenty-four months of disability benefits have been paid, as is the case here, a participant is disabled when he is unable to work at any reasonable occupation due to disease or accidental bodily injury.
Teplick challenges Aetna's assertion that he is not totally disabled because he could return to work at any reasonable occupation. Teplick asserts that Aetna failed to provide the required notice under ERISA prior to relying on the "any reasonable occupation" clause rather than the "own occupation" standard. Upon review of the record, the court finds that Teplick had notice that Aetna may seek to rely on either standard to deny LTD benefits.
The Plan and SPD include numerous other provisions relevant to the review and determination of coverage by the plan administrator. First, a physician's certification that the employee is totally disabled because of the condition is required. Second, Aetna is permitted to request "any additional evidence it believes is necessary before deciding that benefits are payable." Third, it is provided that the period of total disability ends, among other things, on the date a claimant fails to give proof that he is still totally disabled or the date a claimant ceases to be under the care of a physician. Finally, the Plan requires that "[s]ubsequent written proof of the continuance of such disability must be furnished to the Insurance Company at such intervals as the Insurance Company may reasonably require."
Aetna states that it based its decision to terminate the LTD benefits on Teplick's own admissions; the OHSU pain clinic records; the surveillance report and videotape; and the absence of any additional medical records. The court will consider each of these grounds to determine if Aetna's decision should survive de novo review.
A. Teplick's Admissions
Aetna insists that Teplick's own statements evidence that he is not totally disabled from his occupation as a programmer. Aetna relies on the following:
First, in the Claim Questionnaire that plaintiff completed on August 22, 2001, he stated that he performs the following chores on a regular basis: cooking, shopping, laundry, and cleaning. . . . Plaintiff further stated that he rides his horse when he feels well enough. . . . Second, when plaintiff went to the OHSU Pain Clinic on August 13, 2001, he told Dr. Chiu that his overall pain control was better, and that he had increased his physical activities including maintaining the animals on his property. . . . Third, on December 8, 2001, plaintiff told the investigator that Aetna had hired that he was no longer taking any prescription medication for pain and that he was only taking over-thecounter pain medication. . . .
(Emphasis in original and citations omitted).
B. OHSU Pain Clinic Records
Next, Aetna relies on the most recent chart note from Dr. Chiu who, as mentioned above, treated Teplick at the OHSU Pain Clinic from April 24, 2001, to August 13, 2001. In his final chart note, dated August 13, 2001, Dr. Chiu stated:
SUBJECTIVE: Mr. Teplick presents for a follow up visit today. His last visit with us was on July 30, 2001. Mr. Teplick reports that he is doing much better with his current regimen of Roxicodone. He continues to have pain about low back, bilateral hands, and feet. Currently, his pain, however, is rated at a 4/10 level with variation between 2 to 8 over 10 on the visual analog scale. He describes pain about deep bone joints. He states that overall pain control was better, and that he is able to take the pain medications when it seems to be most needed and effective for him as he is increasing his physical activities with his daily chores in maintaining animals on his property. He describes some chronic stable numbness and weakness involving the left 2 fingers on the left hand and low back region. He denies any change in urinary control. There is also no change in sexual function. He does note improved bowel control and no problems with constipation. Overall, he rates his pain relief at 80%. He does request slight increased dose as he states that he would like to have "a couple of extra doses" to help him sleep at night.
. . . .
ASSESSMENT:
1. Osteoarthritis with multifocal joint pain. The patient reports markedly improved pain control with the use of short-acting oxycodone. He also notes that the cost of this medications overall is affordable as compared to when he was on the OxyContin.
2. Ongoing financial issues.
3. No significant, adverse side effects with current regimen and medications.
This is the last treatment report on record.
C. Surveillance Report and Videotape
Aetna insists that it did not rely exclusively on the surveillance report and videotape of Teplick in reaching its decision. Rather, the investigator's observation of Teplick driving his truck to the Sandy Transfer Station, removing a garbage can from the back of the truck, carrying and emptying the can into a dumpster, pushing a wheelbarrow containing debris, and driving a tractor on an unpaved surface were considered only in combination Teplick's own statements regarding his activities and his treatment records from the OHSU Pain Clinic.
D. Supplemental Records
Finally, Aetna maintains that, contrary to the requirements of the Plan, it has no records of any medical treatment for Teplick after August 13, 2001, despite repeated requests to Teplick to supplement the record. Aetna concludes that Teplick's inability or unwillingness to provide Aetna with updated or complete medical information about his condition further supports its decision to terminate his benefits.
While Dr. Bernier submitted a letter dated January 15, 2003, the letter did not (1) indicate when Dr. Bernier had last examined Teplick; or (2) reference any medical evidence more recent than March 2001. Nor were any subsequent medical records forthcoming from Dr. Bernier, as promised. In fact, in December 2002, Dr. Bernier informed Aetna that he was no longer even treating Teplick. Further, while Dr. Bernier stated that Teplick was being seen by a rheumatologist, the record is silent with respect to both the identity of the rheumatologist or any treatment provided.
E. Evidence of "Totally Disabled"
Under the terms of the Plan, Teplick has failed to establish that he was totally disabled beyond August 31, 2002, the date on which Aetna terminated his LTD benefits. While there is evidence that Teplick suffered from severe rheumatoid arthritis and osteoarthritis and endured considerable pain associated with that condition, the treatment records stop as of August 13, 2001, one year prior to the termination of LTD benefits. Further, it is unclear whether Teplick has remained under the care of a physician past August of 2001, as required by the Plan.
The Plan places an obligation on Teplick, among other things, to continue treatment and to provide evidence of his continuing disability in exchange for continued entitlement to the benefits. There is no suggestion that these straightforward requirements were unreasonable or onerous. If Teplick's physical condition remained unchanged or worsened and his pain continued to be debilitating beyond August 2002, he simply needed either Drs. Bernier or Chiu, his rheumatologist, or any other qualified physician to provide contemporaneous medical records.
Also, Teplick was offered, in fact urged, repeatedly to supplement the record with medical information. It is clear that at each level of review Aetna sought more data upon which to make a determination of entitlement to benefits. During the period between August 13, 2001, and January 2003, Teplick elected not to provide any relevant data upon which Aetna could ground its LTD benefits decision. Indeed, in his Reply Brief Teplick states "[b]ecause plaintiff provided no such evidence, it is fair to infer that no such evidence exists."
Teplick challenges Aetna's request for new treatment records and argues that it has redefined the term medical record to mean only records of new treatment and to exclude the opinion of a treating doctor. This argument is without merit. Aetna's request for updated information was generic and broad; essentially, send us any records to support your claim of total disability after August 31, 2002. Teplick elected not to do so and cannot now argue that Aetna's request for medical documentation was outside the requirements of the Plan.
Teplick has failed to provide Aetna with proof that he remains totally disabled, i.e., unable to perform any reasonable occupation, as required by the Plan. In fact, the evidence supports the conclusion that Teplick is able to perform a number of physical activities on a regular basis and that his pain is under control. The record reveals that, in reaching its decision to terminate Teplick's LTD benefits, Aetna considered all the medical evidence submitted by Teplick, including the reports of Drs. Bernier and Chiu; Teplick's subjective complaints of pain; and his written testimony regarding restrictions in his daily living.
While video surveillance showed Teplick engaging in physical activities in apparently unrestricted fashion, the court finds this evidence to be of minimal import. The videotape shows only minutes of Teplick's life over a three-day period. Further, the fact that Teplick was engaging is some physical activities during those minutes does not establish his ability to perform any particular occupation on a day-to-day basis over an extended period of time.
Moreover, the court is persuaded both by Dr. Brent Burton's and Dr. Paul Raford's analysis of whether the objective medical evidence supported a finding that Teplick was unable to work in any occupation as of August 31, 2002. Both doctors based their findings, among other things, on a thorough review of the medical records and a transcript of the surveillance tapes.
Dr. Burton stated, in part, that:
In spite of Mr. Teplick's continued complaints of intractable pain, his physicians have failed to document objective findings of impairment that would limit his ability to engage in at least sedentary activities at the workplace. Instead, his complaints have been accepted uncritically and he has received exceedingly large doses of narcotic medication. On the basis of the data contained in this file, Mr. Teplick has no evidence of physical limitations that would impair his ability to work. Mr. Teplick's major problem appears to be related to his use of narcotic medication.
(Emphasis added).
Dr. Raford stated, in part, that:
Specifically, AP OV records without exception describe claimant as in "no apparent distress," with clear sensorium and mental status, and almost always "sitting comfortably" to even "quite comfortably." These constant descriptors are utilized no matter whether the claimant is complaining bitterly of breakthrough pain, and even when claimant is asserting "goofiness" or confusion PX medication adjustments. Similarly, claimant's VS show no elevation c/w breakthrough pain even when so claimed, and on every visit AP recorded "no specific joint swelling" or the equivalent. AP per 6/12/01 OV also recorded "no clubbing or deformities of the extremities," and per 4/25/01 OV, described how claimant had declined to pursue pulmonary referral and PFTs. There are no indications of any lab work such as the claimed RF+, and ESR, CRP, CBC, LFTs, Serum hormone levels, pulse Ox, or any other routine assessments c/w claimed DX or RA, COPD, or hypogonadism of non-alcohol origin, indicating at worst, incidental and non-severe conditions, if they are valid and present at all.
. . . .
There are also numerous contradictory statements between AP and OHSU records during the same periods. Particularly, OHSU records indicate progressively good pain control per claimant's own descriptions, with last 8/13/01 OV noting "80%" pain control, and pain reduced to 4/10 severity. However, during all AP OV in the period covered, he asserted "bitterly" that his pain was poorly controlled, and that OHSU was doing him no good whatsoever.
. . . .
There are no further records submitted by claimant for appeal since 8/01 OHSU records, despite AP TC acknowledgment of numerous other specialists and ongoing care elsewhere. . . .
Dr. Raford concurred that Teplick had "significant DJD and osteopenia", but concluded there was "little doubt" that Teplick retained "significant functionality."
As the Supreme Court recently made clear in Black Decker Disability Plan v. Nord, 538 U.S. 822 (2003), a plan administrator, while not permitted to "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician," is not required to accord any special weight or deference to the opinion of a treating physician or otherwise credit the opinions of treating physicians over other evidence relevant to the claimant's medical condition. Id. at 826, 832-834. Here, based on the analysis of both Drs. Burton and Raford and other medical evidence of record the plan administrator's decision not to accept Dr. Bernier's opinion was a rational determination based on the entirety of the medical record.
In the end, Teplick's LTD benefits were terminated for a failure to establish a "continuing level of functional impairment." Teplick's claim was terminated on August 31, 2002. The most recent medical evidence of record was over a year old and indicated the Teplick's pain was under control and that he was continuing to increase his daily chores. Teplick had an obligation under the Plan to remain under the care of a physician and supplement the medical evidence as required by Aetna. The record before the court indicates that he failed on both these obligations. Aetna was justified in its decision to terminate benefits. Aetna's decision to deny continued LTD benefits to Teplick should survive de novo review.
III. Aetna's Second Counterclaim
Finally, Aetna asserts a counterclaim for overpayment in the amount of $12,489.13 due to an offset from a retroactive award of Social Security benefits and pension payments. Teplick has received Social Security benefits effective January 1, 2001, and he began receiving pension payments on July 1, 2002. The Plan expressly provides that LTD benefits are to be reduced by social security benefits and pension payments. Aetna paid Teplick full LTD benefits from January 24, 2001, to April 1, 2002. Because Teplick received a social security disability benefit award effective January 1, 2001, he has received an overpayment of LTD benefits in the amount of $12,489.13. Under the terms of the Plan, Teplick must repay that amount to Aetna. Summary judgment should be granted on Aetna's second counterclaim for overpayment.
CONCLUSION
Based on the foregoing, the court finds that Aetna's decision to terminate Teplick's LTD benefits should be AFFIRMED. Moreover, judgment for Aetna on its second counterclaim in the amount of $12,489.13 should be GRANTED. Accordingly, Teplick's complaint should be DISMISSED and all pending motions should be DENIED as moot.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 26, 2004. If no objections are filed, then the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due no later than June 9, 2004. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.