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Engel v. Jefferson Pilot Financial Insurance Co.

September 28, 2009

ANNETTE ENGEL, PLAINTIFF,
v.
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

In this ERISA action the Plaintiff, Annette Engel, challenges a plan administrator's decision to deny her request for payment of benefits under a long-term disability policy issued by Defendant, Jefferson Pilot Financial Insurance Company ("Defendant"). Presently pending before the Court are the parties cross-motions for summary judgment.

I.BACKGROUND

Plaintiff was at all relevant times employed by Harborcreek Youth Services, Inc. as a Clinical Director. By virtue of her employment, she was a participant in the group long-term disability plan ("the Plan") issued by Defendant, which provides disability benefits in the event that a participant becomes totally disabled. It is undisputed that the Plan is an employer- sponsored benefit program that is subject to the Employee Retirement Income Security Act of 1974 ("ERISA") as amended, 29 U.S.C. 1003(a).

According to the Plan, "totally disabled" is defined as follows:

1. During the Elimination Period and Own Occupation Period, it means that due to an Injury or Sickness, the Insured is unable to perform all of the Main Duties of his or her Own Occupation.

2. After the Own Occupation Period, it means that due to an Injury or Sickness, the Insured Employee is unable to perform all of the Main Duties of any Gainful Occupation. ...

(AR 0041).*fn1 In addition, for certain specified injuries or sicknesses such as "chronic fatigue sickness," "mental sickness" and "musculoskeletal/connective tissue injury or sickness," Plan benefits are limited to 24 months for any one period of disability unless the participant is confined to a hospital. (AR 0061).*fn2

1. Initial review by Defendant

On September 5, 2007, Plaintiff applied for long-term disability benefits alleging disability due to exhaustion and pain exacerbated by stress and long hours. (Ex. 2). In support of her claim she submitted the treatment notes of Brenda Stringer, M.D., of the Fibromyalgia and Fatigue Centers; treatment notes from Christie Ray, M.D., her primary care physician; and a physician's statement completed by Dr. Ray dated September 9, 2007.

Dr. Stringer's notes show that Plaintiff was evaluated on May 8, 2007 for complaints of fatigue, headaches, stiffness and soreness. (AR 0226-0227). Plaintiff reported that she was only able to sleep uninterrupted for two hours per night and that a previous sleep study had revealed the absence of REM sleep. (AR 0226). Dr. Stringer found 11 fibromyalgia tender points on physical examination, and diagnosed the Plaintiff with chronic fatigue and immune dysfunction syndrome, fibromyalgia, hyperthyroid and depression. (AR 0227). On May 30, 2007, Plaintiff reported continuing sleep problems. (AR 0225). Dr. Stringer reiterated her previous diagnosis and also recommended B12 injections for a perceived B12 deficiency (AR 0225). During her office visit of June 25, 2007, Plaintiff complained of increased stress at work, feeling constantly tired, and of an inability to get more than fours hours of uninterrupted sleep at night. (AR 0217).

She also reported an incident at work where she had passed out after discontinuing her blood pressure medication. (AR 0217). Dr. Stringer prescribed Neurontin for her sleep problems. (AR 0217). Plaintiff reported that she was sleeping somewhat longer at her office visit of August 22, 2007, but noted continuing problems in falling asleep and short term memory problems. (AR 0214).

Dr. Ray's notes reflect that on August 29, 2007, Plaintiff complained of migraines, soreness and muscle aches and problems with stress. (AR 0202-0203). By report, some migraines were so severe that she was passing out. (AR 0203). She diagnosed her with migraines and fibromyalgia. (AR 0203). Dr. Ray completed a physician statement dated September 9, 2007, wherein she opined that the Plaintiff was totally disabled due to fibromyalgia, chronic pain, migraine headaches and syncope. (Ex. 3). She noted in that report that the Plaintiff's symptoms included severe pain, fatigue, memory loss, syncope and migraine headaches. (Ex. 3). Objective findings of trigger point tenderness and loss of strength were noted. (Ex. 3). She concluded that Plaintiff was "unlikely [to] make [a] full recovery" and could only sit for two hours, stand for one hour, walk for one hour in an eight hour day and not lift more than 25 pounds. (Ex. 3).

Following the submission of the previously described medical information, Defendant requested a description of the Plaintiff's job duties from her employer. (AR 0256-0257). A job description was supplied which described the Plaintiff's primary duties as follows:

1. Provides vision and leadership to the SCS clinical services by developing and refining programs, implementing the strategic plan, developing a team and learning environment, and interpreting the agency's mission, philosophy, objectives and goals as needed.

2. Develops proposals for new programs for review by the CEO and approval by the Board of Directors.

5. Formulates and implements policies and procedures affecting the agency's SCS clinical services, with approval by the CEO. Ensures that all policies, procedures and structures for the effective operation and integration of agency services are followed, and refined as necessary.

6. Ensures that prospective clinicians are recruited, interviewed and hired to provide for effective staff complement at all times, in accordance with agency policies and procedures. Conducts exit interviews or ensures that they are conducted for all SCS clinical staff leaving a regular position.

7. Provides ongoing SCS clinical consultation to therapists and agency managers.

8. Chairs all agency SCS clinical meetings ensuring professional and ethical treatment to all clients and families.

9. Monitors adherence to national standards and state regulations regarding clinical standards and conduct.

10. Assists in the development of new SCS treatment approaches and programs within the agency.

11. Actively facilitates and promotes collaboration of quality and compliance activities across divisions/departments as well as, clients, family and referral agencies.

12. Serves as a member of the agency's administrative team.

(AR 0278) (incorrect numbering in original). This position required her to supervise approximately six people; continuously relate to others; engage in written and verbal communication; engage in reasoning, math and language; and exercise independent judgment.

(AR 0256). Physically, she was required to continuously stand; frequently walk and sit; occasionally lift and carry 25 pounds; and perform computer work with the use of both hands.

(AR 0256-0257).

The initial review of the Plaintiff's claim was conducted by Carla Tierno-Hogue, RN, BSN, CCM, who concluded, following her consideration of the submitted medicals records and the Plaintiff's job description, that there was insufficient documentation of physical limitations or cognitive defects that would support any restrictions or limitations precluding the ability to perform her own occupation. (AR 0085). Defendant subsequently denied the Plaintiff's claim on October 30, 2007 stating:

[T]he medical documentation contained in your claim file does not support Total Disability as defined by this policy. You were diagnosed with fibromyalgia, chronic pain, migraine headaches and syncope. You had complaints of fatigue, poor sleep, pain, and passing out. According to the medical records on file your pain level as of 08/29/2007 was 3/10, and as of 08/22/2007 you were getting six hours of uninterrupted sleep. It was also indicated that you could lift up to 25 pounds. If you disagree with our decision, you may appeal this determination by following the steps outlined below.

(AR 0199). Plaintiff was informed of her right to request a review, including the right to submit additional documentation in support of her claim, such as "[m]edical records to support your appeal such as office and treatment notes, laboratory results, x-rays and testing results." (AR 0199).

2. Second review by Defendant

By letter dated December 3, 2007, Plaintiff appealed the Defendant's denial of benefits dated October 30, 2007. (AR 0190-0193). In her letter, the Plaintiff stated, in part:

I am writing to appeal your decision of denying my Long Term Disability claim and benefits. I am totally disabled at this time and have been from the beginning of the elimination period. I have been diagnosed with Fibromyalgia Syndrome which is a condition recognized by the FDA.

Fibromyalgia Syndrome (FMS) is a widespread musculoskeltal (sic) pain and fatigue disorder. Fibromyalgia means pain in the muscles, ligaments and tendons - the soft fibrous tissues in the body. I ache all over every single day. My muscles twitch; burn and I have stabbing pains in the neck area most days. Do you remember the last time you had a really bad flu; every muscle in your body shouted out in pain. That is what I feel every single day. In addition, I am devoid of energy. There is a physical exam that Dr. Stringer preformed (sic) that shows that I have at least 11 out of the 18 tender points or trigger points. I have widespread pain in all four quadrants of my body. The most painful trigger points are in my neck, shoulders, chest, hips and elbows. There are days that I lay flat on my back all day without watching TV or anything because the pain is so acute.

I have also been diagnosed with Chronic Fatigue Syndrome (CFS) that is closely related to FMS and usually goes hand in hand with it. My fatigue is incapacitating. I have "brain fatigue" or "brain fog" in which I feel totally drained of energy, have problems with short-term memory and concentration. My boss can attest to the problems that I was having with concentration and memory prior to taking Family Medical Leave at his request because he knew that I could no longer handle my job.

I have been diagnosed with a sleep disorder in which I have problems falling asleep and wake up throughout the night. In the denial letter, it specifies that I was getting six hours of uninterrupted sleep nightly. I am not sure if I misunderstood the question or if you misinterpreted the information, but I do not ever get six hours of uninterrupted sleep. I am up at least three or four times to run to the bathroom due to Irritable Bowel Syndrome. I did have a sleep lab test that indicated that I do not go into REM sleep stage. I will forward that information to you. Researchers find that most FMS patient's stage 4 sleep is interrupted by bursts of awake-like brain activity as well. I wake up in the morning feeling like I was run over by a Mack truck at least 4x per week. My husband can attest to all of this information.

I have also been diagnosed with Major Depressive Disorder, Recurrent and am on a very high level of antidepressant medication to combat this. I take 400 mg of Wellbutrin and 40 mg of Celexa. I have been suicidal several times since FMS has taken over my life. It is incredibly hard to go from being an energetic, happy, very successful woman to being almost bed ridden. It is not unusual for me to spend weeks in my house without leaving due to all the symptoms. I have very little interest in the things that I used to do. I cry easily and often. I have depressed mood most of the day, nearly every day. I have lost 20 pounds since the beginning of the elimination period, which should be documented in my medical records. I have insomnia nearly every night. I have fatigue and loss of energy every day. I have feelings of worthlessness as I have gone from being a very committed Director of a residential youth treatment center to being at home. I have a diminished ability to think or concentrate. I do strange things like putting the telephone in the refrigerator, putting the milk into the cupboard instead of the refrigerator. This week when I went to shave my legs, I started to use my toothbrush. These are all symptoms of depression and FMS. My mother, sister, best friend and husband can all attest to these symptoms.

I have been diagnosed with Migraines, Recurrent. I have been hospitalized on one occasion for passing out from the migraines. I have migraines approximately one time per week that are incapacitating. I cannot get out of bed and stay in a completely dark and quiet room when I have migraines. The incident in which I passed out was at work and can be documented by the medical department in the residential facility that I worked at. Dr. Ray indicated that my passing out was from pain from Migraine and Fibromyalgia. I have had one other incident of passing out at a grocery store during the elimination period, after the hospitalization.

There were several errors in my denial letter. First, Dr. Ray is sending you a letter stating that she never documented that I had a 3/10-pain level on 8/29/07 per the denial letter. I have not had a pain level on any day lower than 7/10 since I first started suffering from Fibromyalgia. I don't know if this was a misinterpretation on your part or if something she wrote looked like a three.*fn3 Dr. Ray stated to me that she certainly would not have suggested to me that I take FMLA and keep me on it this entire time if I had only a 3 on a 10-point pain scale. She is well aware of my pain. She recently added Hydrocodone to the list of medications that I take for pain. These include: Hydrocodone, Fiorocet, Midrin, and Celebrex. I, obviously, do not take these medications together. I try very hard to use only the Celebrex on a daily basis, as I do not want to become addicted to painkillers. I do have a daily journal that Dr. Stringer has had me keep that rates my pain, fatigue, IBS, and sleep daily. I would be happy to provide a copy of that to you.

As per your decision that I could carry out the main duties of my occupation, I will be happy to get a letter from they (sic) CEO and HR Director at Harborcreek Youth Services. I was not able to carry out my duties. My boss allowed me to only work four days and stay home Wednesdays when I was first diagnosed and I still missed 3 days per week. HYS has already replaced my position with someone who is able to carry out the duties. I cannot go out to recruit when I am in pain. I cannot concentrate on a daily basis to write policies and procedure. Subordinates were questioning me before I left because they would tell me something or ask me to do something and I would not remember the conversations. I have a Clinical Therapist who worked for me that I am sure would testify to my memory issues as he was very confused by the change in me until I explained what was going on to him. He told me that he thought that I was "going crazy" as I had been an excellent boss to him and "all of a sudden" became "flighty and air-headed." A Director in a residential facility with 100 Juvenile Sex Offenders cannot be flighty and complete her job in a reasonable manner. I was putting my co-workers in jeopardy when I was on the floor in the residential facility as I was not able to help de-escalate or restrain boys when they became out of control. I was not able to keep up with the research in my field due to extreme fatigue. I think that it is very obvious that the job description that HYS has for me is very generic and general. It does not begin to describe the day-to-day operations that I was in charge of supervising and completing. I do not understand how your committee can deny my benefits when both my boss and my doctors have repeatedly said that I cannot do the requirements of my job or any other job at this time. Dr. Ray has steadfastly refused for me to try to work part-time at the facility, as she knows that I am in severe pain.

SSDI is sending me for a psychological with a Dr. Glenn Bailey, tomorrow, December 4th. If I am able to get a copy of that sent to you, I will. I will also have Dr. Stringer send you the information from my last two appointments when I see her on December 18th. I will have my sleep study sent to you if my doctor has not already sent it. I currently travel two hours to see Dr. Stringer who is not covered by my insurance. I see her because she is a specialist in Fibromyalgia. There are no such specialists in the Erie area. If you would like a second opinion, I will see a Rheumatologist in the Erie area.

I am not sure if you have a current list of the medication and supplements that I am ordered to take, so I will enclose a list of them. Please reconsider your decision as I cannot go back to work, no matter what your decision is and my family will suffer.

(AR 0190-0192) (footnote added).

In further support of her appeal, Plaintiff subsequently forwarded the results of a sleep study dated January 11, 2007, additional treatment notes from Dr. Stringer dated October 11, 2007 and December 11, 2007, a report from Dr. Ray dated September 12, 2007, and a report from Glenn Bailey, Ph.D. dated December 4, 2007 (AR 0152-0161). The sleep study results dated January 11, 2007, revealed the absence of REM sleep and slow wave sleep. (AR 0173- 0174). Dr. Ray's report of September 12, 2007, stated:

Annette Engel has a history of fibromyalgia. At this point her fibromyalgia is not well controlled. She is currently being treated by fibromyalgia and fatigue centers. With their help, hopefully she will improve greatly. She also has [a] history of migraines which are associated for her sycope (sic). When Annette's stress level escalates, her fibromyalgia is worse, which worsens ...


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