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Tannenbaum v. Unum Life Insurance Company of America

June 30, 2010

ALAN TANNENBAUM, M.D., PLAINTIFF,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Plaintiff, Alan Tannenbaum, M.D., filed this action in March 2003 seeking damages and other relief for defendants' failure to pay him benefits under certain long and short term disability insurance policies, and alleged mishandling of his request for such benefits, following a motor vehicle accident that left him unable to continue in practice as a pediatrician. Three counts of plaintiff's third amended complaint remain pending against two defendants-Unum Life Insurance Company of America ("Unum Life" or "Unum") and the Albert Einstein Healthcare Foundation ("Einstein").*fn1 Unum Life and Einstein have filed a joint motion for summary judgment as to those three remaining counts, which assert claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., for breach of fiduciary duty (Count I), failure to provide certain records requested by plaintiff (Count II), and long and short term disability benefits (Count III). Because plaintiff's claims for breach of fiduciary duty and for benefits have become moot, and because neither defendant can be liable for failing to provide the one plan document at issue as a matter of law, the court will grant plaintiff's motion.

I. Facts*fn2

Prior to April 1, 2002, plaintiff worked as a pediatrician in a practice owned by Einstein Community Health Associates. (See Defs.' Mot. for Summ. J. & Statement of Material Facts ["Defs.' Statement"] ¶ 9; Pl.'s Resp. to Defs.' Mot. for Summ J. & Counter-Statement of Material Facts ["Pl.'s Resp."] ¶ 9; Pl.'s Ex. 1, Certification of Alan Tannenbaum, M.D. ["Pl.'s Certification"] ¶ 7.) As an employee of Einstein Community Health Associates, plaintiff was a participant in two employee welfare benefit plans sponsored by defendant Einstein: (1) a group long term disability insurance plan (the "LTD Plan"), which provided benefits pursuant to a group long term disability policy issued by Unum Life to Einstein, and (2) a group self-insured short term disability plan (the "STD Plan") that was self-funded by defendant Einstein. (See Defs.' Statement ¶¶ 6, 8-10; Pl.'s Resp. ¶¶ 6, 8-10.)*fn3

Plan documents identify Einstein as the plan administrator for both the LTD and the STD Plan. (3d Am. Compl., Ex. 5 at 23 (LTD Plan certificate of coverage); id., Ex. 6 at STD-11 (STD summary plan description); see Defs.' Statement ¶¶ 28, 33; Pl.'s Resp. ¶¶ 28, 33.) Unum Life served as the claims administrator for both plans. (Defs.' Statement ¶¶ 33, 38; Pl.'s Resp. ¶¶ 33, 38; see also 3d Am. Compl., Ex. 6 at STD-11 (STD summary plan description).)

On December 1, 2000, plaintiff was involved in a motor vehicle accident, which left him seriously injured. (See Pl.'s Certification ¶¶ 2-3.) After a one-week hospitalization and four to five weeks of bed rest, plaintiff returned to work in January 2001, while continuing to undergo physical therapy for his injuries. (Id. ¶ 4.) Plaintiff experienced increasing difficulty performing his duties because of the physical pain, discomfort, and inability to focus caused by his neck injury, and his treating surgeon advised that he should stop working due to his injuries. (Id. ¶¶ 5-6.) On April 1, 2002, plaintiff stopped working as a pediatrician because he could no longer perform his duties due to the pain. (Id. ¶ 7.)

Plaintiff thereafter submitted an application for disability benefits to Unum Life in early June 2002.*fn4 (Defs.' Statement ¶¶ 41-42; Pl.'s Resp. ¶¶ 41-42; see also Defs.' Ex. 8.) Between June and October 2002, Unum Life obtained medical records from plaintiff's doctors, had surveillance conducted of plaintiff, and referred his claim for medical review. After the medical file review was completed, Unum Life denied plaintiff's disability claim by letter dated October 4, 2002, concluding that plaintiff had "no restrictions or limitations which would limit [or] preclude [him] from performing the material and substantial duties of [his] occupation as a pediatric physician on a full-time basis." (Defs.' Ex. 34.) In particular, Unum Life found plaintiff's complaints of impairment to be "not credible" in light of his observed activities, which included playing golf without using a golf cart with no apparent discomfort or limitation. (See id.)*fn5

On November 11, 2002, plaintiff's counsel wrote to Unum Life, advising that plaintiff wished to appeal the denial of his long term disability claim and formally requesting "all information which was reviewed by [Unum's] in house orthopedic surgeon for purposes of the evaluation of [plaintiff's] claim." (Defs.' Ex. 36.) Unum Life responded by letter dated November 22, 2002, which purported to enclose the information counsel had requested.*fn6 (Defs.' Ex. 37.)

In December 2002 and January 2003, plaintiff's counsel provided Unum Life with several additional medical reports and other documents, and made an additional request for records. (See Defs.' Exs. 39-40, 44, 46, 49, 51-52, 55.) Meanwhile, in December 2002 Unum Life obtained a second medical file review, which was updated on January 21, 2003, in light of additional medical evidence that plaintiff had submitted. (Defs.' Exs. 47, 50.) Although the reviewer-William M. Strasberg, M.D.-initially concluded on December 30, 2002, that plaintiff "would appear to be able to function in his former capacity as a practicing pediatrician" (Defs.' Ex. 47), after reviewing the additional medical evidence, he determined on January 21, 2003, that he was "unable to provide a definitive opinion regarding the insured's functional capacity and ability to work clinically as a pediatrician." (Defs.' Ex. 50.) He recommended "an additional paper file review by a surgeon who operates on the cervical spine, as a mechanism to provide the most thorough and fair assessment of this claim" and also noted that "Psych Unit resources would be able to determine better support for any reports of cognitive impairments by the insured." (Id.)

On January 31, 2003, Unum Life wrote to plaintiff's counsel, advising that Unum's on-site physician had completed his medical review of plaintiff's file and requesting that plaintiff undergo two independent medical examinations-an evaluation with a spinal surgeon specializing in cervical spine conditions and a neuropsychological evaluation-to assist Unum in making a more informed determination on plaintiff's appeal. (Defs.' Ex. 53.) Plaintiff's counsel responded by letter dated February 4, 2003, in which he requested "a copy of Unum's on-site physician's report including a list of all information used in this review" as well as "the entire contents of [Unum's] file/record" and "any other document upon which this plan is operated." (Defs. Ex. 56.) Unum Life again wrote to plaintiff's counsel on February 6, 2003. (Defs.' Ex. 57.) Unum advised that it was declining counsel's request for the on-site physician's review but did not address the remainder of counsel's request. (Id.)

On February 12, 2003, another attorney for plaintiff wrote to the "Plan Administrator" of the Albert Einstein Healthcare Foundation. (Pl.'s Ex. 7.) Noting that the letter was directed to the recipient's attention "as the Plan administrator of the Long Term Disability Income Plan," counsel requested, "[p]ursuant to all relevant provisions of [ERISA]," that his office be provided with "a copy of the entire contents of [plaintiff's] administrative record/claims file and any documents under with [sic] the Plan is established or operated." (Id.)*fn7

The following day, plaintiff's counsel wrote to Unum Life, following up on Unum's February 6 letter denying counsel's February 4 record request. (Defs.' Ex. 60.) Observing that Unum Life had not responded to all of the concerns expressed in the February 4 letter, counsel remarked that he did not believe "that you have provided us with the entire contents of the administrative record developed until the date of your initial denial and any documents under which the Plan is operated." (Id.) Counsel requested that such documents be provided immediately, to the extent not already produced. (Id.) Unum Life responded on February 20, 2003, advising that to the best of Unum's knowledge, counsel had received a copy of all documents contained in plaintiff's claim file as of February 10, 2003, and purporting to enclose copies of the underwriting files prepared at the time plaintiff applied for individual disability coverage as well as copies of the policy and rider terms governing plaintiff's individual disability claims. (Defs.' Ex. 64.)*fn8

On February 20 and 24, 2003, Unum Life wrote to plaintiff's counsel advising him that the two independent medical examinations had been scheduled for March 7, 2003 (neuropsychological evaluation), and March 31, 2003 (spinal surgeon). (Defs.' Ex. 65.)

On March 4, 2003, while plaintiff's appeal of the denial of his claim for benefits was still pending, plaintiff filed (but did not serve) the original complaint in this lawsuit. (See Defs.' Ex. 70.) The complaint named Unum Life and Einstein as defendants and asserted the same three ERISA claims at issue here-for breach of fiduciary duty, failure to provide records, and disability benefits-as well as claims for breach of contract and bad faith. (See id.)

Notwithstanding that suit had been filed three days earlier, the independent neuropsychological evaluation of plaintiff by Bruce N. Eimer, Ph.D., went forward, as scheduled, on March 7, 2003. Eimer completed a report of his evaluation on March 20, 2003, in which he concluded that plaintiff was "not able to perform the substantial and material duties of his occupation." (Defs.' Ex. 72.)*fn9

On April 3, 2003, plaintiff's counsel wrote to Unum Life, advising that suit had been filed and enclosing a copy of the complaint, which counsel represented had been served on Unum Life on March 27, 2003. (Defs.' Ex. 70.) The letter further advised that because litigation had been commenced, plaintiff would not be attending the second independent medical evaluation, which apparently had been rescheduled for April 7, 2003. (Id.)

On June 19, 2003, Unum Life wrote to plaintiff's counsel and reported that based on the results of the independent neuropsychological evaluation, Unum had concluded that plaintiff was disabled due to mental illness within the meaning of the long term disability policy and thus was eligible for a maximum of twenty-four months of benefits (i.e., from March 23, 2003, through March 22, 2005), provided that he continued to meet the policy's definition of disability. (Defs.' Ex. 73 (June 19 letter).) The letter further advised that Unum Life would continue to assess plaintiff's physical condition and that in the event Unum concluded that he was disabled beyond March 22, 2005, due to physical conditions, plaintiff might "continue to be eligible to receive Long Term Disability benefits." (Id.)

Two months later, on August 20, 2003, Unum Life again wrote to plaintiff advising him that Unum had approved his application for short term disability benefits "for the duration of your employer's 360 day plan." (Defs.' Ex. 73 (Aug. 20 letter).)

The following week, on August 28, 2003, counsel for Unum Life wrote to plaintiff's counsel regarding Unum's earlier determination that the twenty-four month limitation for disabilities caused by mental illness applied to plaintiff's claim for benefits under the group long term disability policy. (Defs.' Ex. 73 (Aug. 28 letter).) The letter advised that Unum Life had reviewed this determination in light of a June 28, 2003, letter from plaintiff's counsel outlining counsel's views on the nature of the disability claimed,*fn10 and had "determined that the decision to apply the 24 month mental illness limitation should be reversed at this time. That is, benefits will be paid under the policy without application of the mental illness limitation." (Id.) The letter went on to note that Unum Life "reserve[d] the right, upon further investigation, to apply the mental illness limitation, as well as other relevant policy provisions," including the right to request plaintiff to undergo the orthopedic independent medical examination that had never been completed. (Id.)

Defendants assert that following these decisions to approve plaintiff's claims under the STD and LTD Plans, plaintiff has received all of the benefits he is entitled to receive under the STD Plan and is continuing to receive all benefits he is entitled to receive under the LTD Plan on an ongoing basis. (See Defs.' Statement ¶¶ 11-12, 106, 112; Declaration of Lisa Hyde ["Hyde Decl."] ¶¶ 5-6.) Plaintiff does not dispute that monthly benefit payments under the LTD Plan are current and ongoing. (See Pl.'s Resp. ¶¶ 11 ("Plaintiff admits that he was paid LTD benefits under defendant Einstein's LTD plan . . . beginning at the end of June, 2003 . . . ."), 114 (noting that after suit was filed, defendants "reversed themselves on all accounts, admitted that Dr. Tannenbaum is physically disabled under defendant Einstein's LTD . . . plan[], put him back on claim for future payments without any reservation of rights, and paid him almost all of his back benefits").) Plaintiff did dispute that he had received all benefits to which he was entitled under the STD Plan, noting that, by his calculation, Einstein still owed him "approximately forty-two (42) days of benefits under its STD plan." (Pl.'s Certification ¶ 22; see also Pl.'s Resp. ¶¶ 106, 112.) However, after plaintiff raised this issue, Einstein agreed to pay him the "additional 42 days of STD benefit to which he claims he may be entitled." (Defs.' ...


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