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Hoch v. Hartford Life and Accident Insurance Co.

April 29, 2009

DAWN HOCH, PLAINTIFF,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court are Cross-Motions for Summary Judgment filed by Plaintiff Dawn Hoch ("Hoch") and Defendant Hartford Life and Accident Insurance Company ("Hartford"). For the following reasons, Hartford's Motion is granted, and Hoch's Motion is denied.

I. FACTS

A. Hoch's Employment and Hartford's Policy

Hoch worked as a parts counterperson at Sloane Automotive Group ("Sloane") from November 16, 1998 to July 11, 2005. (Pl.'s Mem. Supp. Mot. Summ. J. at 2.) Hoch participated in the Group Benefit Plan for Sloane, which provided long-term disability ("LTD") benefits to eligible and qualified employees insured by Group Policy No. GLT-703432 ("Policy"). (Hartford's Administrative Record ("R.") at 650.) The Policy is insured by, administrated by and funded by Hartford. (Def.'s Ans. ¶ 6.) Coverage under the Policy provides a benefit plan of sixty percent of an employee's monthly base compensation in the event of total disability. (Id.) The Policy provides benefits to an eligible participant who is prevented by certain enumerated conditions "from performing one or more of the Essential Duties of Your Occupation, and as a result your Current Monthly Earnings are no more than eighty percent of your Indexed Pre-disability Earnings" ("Own Occupation standard" or "Own Occupation period"). (R. at 662.) After the Own Occupation period, a person "must be so prevented from performing one or more of the Essential Duties of Any Occupation" to remain eligible to receive benefits ("Any Occupation standard"). (Id.) The Policy further provides that Hartford has "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy."*fn1 (Id. at 661.)

B. Hoch is Injured and Receives Long-Term Disability Benefits

Hoch claims that, as early as 2004, she began experiencing "sporadic onsets of dizziness and imbalance" but initially continued to work despite such onsets. (Pl.'s Mem. Supp. Mot. Summ. J. at 2.) On June 2, 2005, Hoch fell when exiting a store, landing on her right knee, back and neck. (Id.) As a result of the fall, Hoch claims she fractured her right foot, injured her right knee, and suffered cervical disc protrusions, migraine headaches, worsening of pre-existing lumbosacral pain and a severe exacerbation of her pre-existing dizziness and balance problems. (Id.) As a result of these injuries and the exacerbation of her dizziness and balance problems, Hoch claims that she was unable to continue working at Sloane. (Id.)

Hoch applied for and received short-term disability ("STD") benefits as the result of pain and swelling in her foot. (R. at 629.)

On July 11, 2005, Dr. Charles Odgers ("Dr. Odgers") completed an Attending Physician's Statement ("APS") in support of Hoch's STD application, indicating that Hoch's diagnosis was a right talus avulsion fracture.*fn2 (Id. at 628.) On September 21, 2005, Hoch visited Dr. Thomas H. Graham ("Dr. Graham") of Graham Neurological Associates, complaining of a depth perception problem. (Id. at 1312.) Dr. Graham noted that Hoch's symptoms were developing the quality of agoraphobia,*fn3 for which he was not inclined to treat her. (Id.) He decided to stop testing Hoch and to re-evaluate her in six months. (Id.) He encouraged her to start adjusting her lifestyle to deal with her sense of altered depth perception. (Id.)

On September 26, 2005, Dr. Odgers completed another APS for Hoch, which indicated that she continued to suffer from a right ankle talus fracture and cervical thoracic pain. (Id. at 613-14.) On October 18, 2005, Hoch visited Dr. Michael Lee ("Dr. Lee"), a physical medicine and rehabilitation specialist, and received an epidural steroid injection for cervical back problems. (Id. at 586.) On October 19, 2005, Hoch visited Dr. David A. Bernstein ("Dr. Bernstein"), a podiatrist, complaining of pain in her right foot. Dr. Bernstein examined Hoch, but found no areas of tenderness, that her range of motion was pain free without crepitus,*fn4 and that her neurovascular status was within normal limits. Dr. Bernstein explained that, without any areas of tenderness, swelling or other abnormalities, he could not offer her much of a diagnosis.

(Id. at 1264.)

On November 21, 2005, Hoch completed an application for LTD benefits, asserting that her problems with her back and foot rendered her disabled. (Id. at 599-602.) On January 16, 2006, Hartford wrote to Hoch informing her that it had approved her LTD benefits under the Own Occupation standard. (Id. at 453-56.)

C. Hoch Continues Treatment and Receives Social Security Benefits

On January 18, 2006, Hoch visited Dr. Robert Lawlor ("Dr. Lawlor"), Hoch's family doctor, and complained to him that she had been experiencing a chronic dizzy feeling for the last four years. (Id. at 1318.)

On February 16, 2006, the Social Security Administration ("SSA") denied Hoch Social Security Disability ("SSD") benefits. (Id. at 422-26.) Hoch subsequently requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 410.) On August 24, 2006, an ALJ held that Hoch had been under a "disability" as defined by the Social Security Act since July 11, 2005, and that she was entitled to SSD benefits. (Id. at 934-40.)

On March 19, 2006, Hoch visited Dr. Bernstein, who concluded that she had bursitis*fn5 for which she received a cortisone injection. (Id. at 1259.) The following week, Hoch visited Dr. Graham, who noted a possible defect in her left eye with a tendency for left exophoria,*fn6 some facial pressure and a new stress fracture in her left foot. (Id. at 1261.) Dr. Graham observed no other new problems on examination, but Hoch reported degenerative disc disease in her cervical spine. (Id.) She also continued to have amblyopia*fn7 and migraine complaints, as well as neck pain which was being addressed by another doctor. (Id.) Dr. Graham noted that the exact nature of Hoch's complaints was unclear. (Id.) Dr. Graham and Hoch decided that she would follow-up with Dr. Lawlor for her hypertension issue and would return to Dr. Graham only if her migraines worsened, or if she experienced new neurologic episodes. (Id. at 1260.)

On April 11, 2006, Hoch underwent a bone scan of her feet which showed signs consistent with a stress fracture of her left foot and a healing stress fracture in her right foot. (Id. at 1263.) On July 10, 2006, Hoch visited Dr. M. Anjum Irfan ("Dr. Irfan"), a psychiatrist, for a psychiatric evaluation. Dr. Irfan concluded that Hoch suffered from bipolar mood disorder and sought to rule out Post Traumatic Stress Disorder ("PTSD") as a possible diagnosis. (Id. at 1344.)

On September 21, 2006, Hoch completed a Claimant Questionnaire for Hartford, claiming that she experienced severe pain in her left foot when she walked for more than five minutes and that she continued to have intermittent pain three to four days a week in her neck. (Id. at 1360.) Hoch further indicated that she could not bend down much or carry or pick up her grandchildren without severe pain in her neck, back and foot after three to four minutes. (Id.)

D. Hartford Conducts Surveillance of Hoch

On October 2, 3, 25 and 26, 2006, Hartford performed video surveillance of Hoch. (Id. at 1471-78.) On October 2, Hoch was observed walking her dog. On October 3, Hoch was observed ascending and descending steps, leaning right and left, tilting her head, flinging her hair to the side, holding a conversation for more than fifteen minutes while gesturing with her hands, tossing an object onto the lawn, carrying two large cardboard boxes, walking her dog and driving, all in a normal, unrestricted fashion without aides or braces. (Id. at 1472-74.) On October 26, Hoch was seen driving with a dog and a young child later determined to be her grandchild, carrying the dog, bending over to speak with the child, and entering a department store with two young children and remaining there for twenty minutes, again all in a normal, unrestricted fashion. (Id. at 1476-78.) Hoch was not observed during the attempted surveillance on October 25. (Id. at 1475-76.) Hartford forwarded this surveillance video to Drs. Lee, Lawlor and Irfan, asking that they review the video and indicate whether they agreed that Hoch was capable of light level physical demand work. Dr. Lee agreed that Hoch was capable of such work, Dr. Lawlor disagreed and Dr. Irfan did not respond. (Id. at 1484.)

E. Hoch is Diagnosed with Chronic Subjective Dizziness

On January 26, 2007, Dr. Michael J. Ruckenstein ("Dr. Ruckenstein"), a neurologist at the University of Pennsylvania Balance Center, referred Hoch to an audiologist for a Balance Function Evaluation. (Id. at 1184.) The results of Hoch's audiogram and balance function tests were normal. (Id. at 1184-85.) On March 5, 2007, Dr. Ruckenstein then conducted a full otologic review of Hoch and concluded that although there was no physical basis for her complaints, Hoch had Chronic Subjective Dizziness ("CSD"), a condition "most typically associated with chronic anxiety disorder with superimposed panic and/or phobic attacks." (Id. at 1186.) Dr. Ruckenstein believed, however, that in Hoch's case, there "may be more profound psychopathology present." (Id.) Dr. Ruckenstein then referred Hoch to Dr. Jeffrey P. Staab ("Dr. Staab"), a psychiatrist, also of the University of Pennsylvania Balance Center.

F. Hartford Conducts its First Independent Medical Record Review of Hoch

On March 27, 2007, Hartford conducted an Independent Medical Record ("IMR") review, requesting that Dr. Marie-Claude Rigaud ("Dr. Rigaud"), a psychiatrist, review Hoch's file from a psychological perspective, and that Dr. Arousiak Varpretian ("Dr. Varpetian"), a neurologist, review Hoch's file from a physical perspective. (Id. at 1509; 1240-43.) On April 16, 2007, Dr. Rigaud reported to Hartford after reviewing Hoch's record and Hartford's surveillance, and summarized the various diagnoses Hoch had received since she began seeking disability benefits.*fn8 (Id. at 1500.) Dr. Rigaud found "no evidence to support that [Hoch] cannot be out of the home, interacting with others or engaging in typical activities of daily living related to her mental health." (Id. at 1502.) She concluded that the documentation related to Hoch's psychiatric condition and Hoch's observed activities on the surveillance video: did not provide evidence of limitations in [Hoch's] capacity to stand [or] walk for a prolonged period of time based on depressive symptoms, lack of stamina or endurance.... Based on all the information reviewed, it is this reviewer's opinion that there is no psychiatric rationale to assign specific restrictions or limitations to [Hoch's] daily activities. (Id. at 1501-02.) Dr. Rigaud further found that there was no "objective clinical evidence of serious psychiatric symptoms or behaviors.... Objective findings of mental status were limited to pressured speech and the psychiatrist assessed at some point that the claimant was 'stable but symptomatic.'" (Id. at 1503.) Accordingly, Dr. Rigaud "found no objective evidence to support severe psychiatric functional limitations that would prevent [Hoch] from working." (Id.)

Dr. Varpetian also reported to Hartford on April 16, 2007, after reviewing Hoch's record and Hartford's surveillance. (Id.) Dr. Varpetian was able to discuss Hoch's condition with Dr. Lawlor.*fn9 Dr. Lawlor informed Dr. Varpetian that "according to Ms. Hoch, the reason she can't work is dizziness. The diagnosis has been 'elusive' until she was seen by a neuro-otologist and diagnosed with 'chronic subjective dizziness'...." (Id. at 1504.) Dr. Varpetian concluded that there was "no evidence of balance deficit or any other physical barrier to a full time occupation." (Id. at 1505.) He further found that there was no documentation or observable behavior to support the assertion that Hoch lacked the physical functional capacity to lift or carry up to twenty pounds occasionally or ten pounds frequently, nor was there medical or video support for the finding that Hoch could not move her cervical spine in a normal manner to enable her to engage in the routine activities of daily living. (Id.) Dr. Varpetian therefore saw no medical reason that Hoch could not sit for prolonged periods during an eight hour work day if she were permitted to alternate sitting with periods of standing, walking or stretching. (Id. at 1506.)

G. Hartford First Terminates Hoch's Benefits; Hoch Continues Treatment

On May 14, 2007, Hartford terminated Hoch's LTD benefits, concluding that, as of May 5, 2007, Hoch no longer met the policy definition of "disabled," which was defined as an inability to perform "one or more Essential Duties of Your Occupation" (i.e., as a parts counterperson). (Id. at 51-55.) Hartford primarily based its decision to terminate Hoch's LTD benefits on its video surveillance and the record reviews by Drs. Rigaud and Varpetian. (Id. at 53-55.)

Following Hartford's termination of Hoch's benefits, Hoch visited Dr. Staab on May 16, 2007. During this visit, Dr. Staab noted that Hoch complained of: a sudden onset of unsteadiness 7-8 years ago. Initially, it happened a few times sporadically, but gradually increased in frequency and duration. Now occurs most days with a rapid onset of unsteadiness without warning. Some episodes last for a few seconds, others persist for days or weeks. When standing still or sitting still, she has an illusion of falling into the ground. Nearly housebound. Goes out only with someone else. Walks with a cane, walker, or holding onto something.

Otherwise she inches forward, fearful of falling. No true vertigo. Only one fall near onset of her illness. (Id. at 1189.) Dr. Staab diagnosed Hoch as having vestibular migraines with CSD, agoraphobia without panic attacks and "[d]epressive disorder NOS (subthreshold depression)." (Id. at 1192.) Hoch followed up with Dr. Staab on July 18, 2007. (Id. at 991.) Dr. Staab noted that "her depression decreased a bit, but her motor sensitivity did not change." (Id.) On August 29, 2007, Dr. Staab saw Hoch again and noted no clear change in her symptoms. (Id. at 1189-90.)

H. Hoch Appeals Hartford's Decision; Hartford Conducts a Second IMR Review

In a letter dated October 26, 2007, Hoch's counsel appealed Hartford's decision to terminate Hoch's LTD benefits. (Id. at 989.) Hoch asserted that it was her CSD, coupled with anxiety and depression, that precluded her from working. (Id. at 990.) Hoch also submitted additional medical records from Dr. Staab, as well as Drs. Ruckenstein and Lawlor. (Id. at 990-92; 994-95.) Hartford subsequently referred Hoch's claim, including all newly submitted information, as well as all of the documentation previously contained in Hoch's file, to Dr. ...


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