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Camlin v. Life Insurance Company of North America

United States District Court, W.D. Pennsylvania

May 15, 2018

WENDY CAMLIN, Plaintiff,
LIFE INSURANCE COMPANY OF NORTH AMERICA, d/b/a Cigna Group Insurance Defendant.


          Lisa Pupo Lenihan, United States Magistrate Judge.

         I. Summation

         In this civil action, Plaintiff brings a claim for long term disability benefits pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et. seq. Before the Court is Plaintiffs Motion for Summary Judgment (ECF No. 30) and Defendant's Motion for Summary Judgment (ECF No. 31). Set forth below are this Court's determinations that Defendant's decision to terminate Plaintiffs benefits was fraught with procedural anomolies, founded on a selective reading of the record including failure to give appropriate weight to the opinions of treating physicians, premised in significant part on initial IME findings/diagnosis later determined erroneous and/or disagreed with by Defendant's own Peer Review, and arbitrary and capricious under the applicable standard of review. For these reasons, Defendant's Motion will be denied and Plaintiffs Motion will be granted in the form of an Order that Defendant's termination of Plaintiff s benefits will be vacated and Defendant directed to retroactively reinstate Plaintiff's long-term benefits and calculate those benefits in accordance with the terms of her disability insurance policy. See Miller v. Am. Airlines, Inc.¸ 632 F.3d 837 (3d Cir. 2011) (ordering retroactive reinstatement of disability benefits where defendant's notification of termination was vague and misleading; defendant provided specific limited question for IME, failed to consider all relevant diagnoses and did not base determination on substantial evidence; defendant failed to consider requirements of claimant's own occupation; and defendant had structural conflict); cf. Klassen v. Allstate Cafeteria Plan, 637 F.Supp.2 272 (M.D. Pa. 2007) (vacating denial of benefits under arbitrary and capricious standard). Plaintiff will have thirty (30) days from the date of the Order to file a detailed petition including calculation of specific amounts sought for prejudgment interest and for attorney's fees and costs. Additionally, this Opinion shall be filed temporarily under seal. To the extent a party wishes to request redactions of this Opinion, such request shall be made on or before May 25, 2018.

         II. Factual and Procedural History

         (A) The following facts are relevant and evidenced of record. See generally Plaintiff's Concise Statement of Material Facts, ECF No. 37 (referencing Exhibits of Record); Defendant's Concise Statement of Material Facts, ECF No. 39 (referencing Exhibits of Record):

         Plaintiff, Wendy Camlin, is a participant and beneficiary of an ERISA-governed long-term disability contract/policy issued by Defendant, Life Insurance Company of North America (“LINA”), which is both insurer and administrator of the policy. Plaintiff holds advanced Board certification in nursing and an M.A. in Health Care Administration. She was employed as a Director in the areas of Obstetrics and New Born Services at UPMC Magee Womens Hospital (“UPMC”) since November, 2012. On April 20, 2015, Plaintiff incurred traumatic brain injury and other cognitive and physical injuries reflected in treating physicians' records, when she was struck in the head by a fouled baseball at a Pittsburgh Pirates game. These treating-physician-diagnosed injuries included concussion, post-concussion syndrome, cognitive impairment and difficulty concentrating, fatigue, sleep dysfunction/daytime somnolence, dizziness/vertigo, hearing loss/tinnitus, and neck/cervical/midthoracic pain, vestibularopathy, and limitations in range of motion to head/neck, among others. Plaintiff's treating physicians included Dr. Camiolo-Reddy, to whom Plaintiff was referred at the time of her injury, and who relocated in summer 2016. Plaintiff was also treated and assessed by other physicians, including treating physicians Drs. Helm (UPMC physical therapy), and practice partners Drs. March (Plaintiff's primary care physician since 2013) and Twichell, and assessing UPMC neuropsychologist, Dr. Beers.

         Under the direction of Dr. Camiolo-Reddy, and following short-term disability leave, Plaintiff attempted to return to work. In September, 2015 UPMC placed her in a “transitional” accommodative/reduced (both responsibilities/demands and time) position under its Return-to-Work (“RTW”) Assistance Program (which program was limited to 26 weeks) and she participated in Vocational Rehabilitation. Plaintiff was returned to work as a “Program Administrator” of strategic projects in a 20 hour per week sedentary position, and applied for benefits with LINA on November 16, 2015.[1] On December 3, 2015, Plantiff's long-term disability benefits claim was accepted by LINA. Defendant's claim assessment documentation of that date indicates approval with ICD (International Classification of Disease) codes for concussion and “post-concussion syndrome” and impairments including significant limitations in ROM, headache, reduced cognitive function, and symptom increase with work-related exertion. Plaintiff's third-party records indicate that she continued to experience impairments, including cognitive and physical.[2] In early June, 2016 (a few months after her eligibility for UPMC's RTW Program expired), she was advised that she would be terminated effective the end of the month.[3]

         On November 15, 2016 (approximately four months post termination and less than eleven months since LINA began to provide long term disability benefits to Plaintiff), LINA ordered Plaintiff to complete an independent medical evaluation (“IME”) with Dr. Fishman limited to predetermined areas of cognitive function; LINA also provided instruction to Dr. Fishman on specific content of his IME Report, which was dated January 29, 2017. Dr. Fishman concluded Plaintiff had no impairment in any of the pre-identified cognitive areas, and that she had failed testing for “malingering”, though he noted that did not “rule out” underlying neurologic or psychiatric illness. LINA's Medical Director, Dr. Heydebrand, expressly relied on Dr. Fishman's finding of malingering in his determination to terminate Plaintiff's benefits, as he concluded that Plaintiff's failing the TOMM test of malingering, in particular, “prevent[ed] interpretation of decreased performance.”

         LINA sent Dr. Fishman's Report to Plaintiff's primary care physician, Dr. March, on February 1st with a statement that if she failed to respond by fax within 24 hours, LINA would conclude that Dr. March concurred with the IME findings. Dr. March faxed LINA stating that she received its communication on Friday, February 3rd, and would write a response over the weekend. She then provided a strenuous objection to both the “unreasonable” time frame and - as her “more serious concern” - Dr. Fishman's Report, to which she responded based on “many years” relationship with Plaintiff, “both before and after her TBI” (traumatic brain injury). On February 2, 2017, LINA terminated Plaintiff's long-term disability benefits. LINA's Claim Strategy report of that date indicates concurrence in termination of benefits with citation to (1) Dr. Fishman's IME determination of non-impairment and (2) no response of agreement or disagreement from Dr. March as of February 2nd.[4]

         In response to Plaintiff's timely appeal, LINA retained Dr. Arias to review Plaintiff's claim, which it designated solely as one owing to concussion, including Dr. Fishman's IME Report. LINA expressly directed Dr. Arias to confine his report to the same eleven pre-identified areas of cognitive function and to “refrain from giving any specific opinions on disability or occupational status”. Dr. Arias spoke directly to Plaintiff's treating physicians, Dr. March, and her colleague, Dr. Twitchell, who diagnosed “cognitive, physical and emotional” impairments and “did not consider Plaintiff a viable return to work candidate”.[5] He also spoke to Dr. Beers, Prof. of Psychiatry at the Traumatic Brain Injury Program at the Western Psychiatric Institute and Clinic of UPMC, who had performed a neuropsychological evaluation of Plaintiff, an extensive medical and employment records review, and provided a 22-page report on April 3, 2017.[6] Dr. Arias disagreed with Dr. Fishman, in that Dr. Arias concluded (1) that Plaintiff suffered mild compromise/impairment with complex tasks or stress, and was likely to have loss of efficiency, composure and/or performance, in five of the eleven pre-identified areas and (2) that Dr. Fishman misinterpreted his own raw test data on the TOMM test - by which Plaintiff had passed said testing for malingering. Dr. Arias also cited “adamant” and “support[ed]” statements from Plaintiff's “practitioners” of “genuine” presentation.

         The Medical Investigation Results prepared by LINA's Claims Manager, Ms. Ebalo, omitted Dr. Arias' findings of compromise/impairment, omitted Dr. Arias' finding of the underlying IME's misinterpretation of its own test results in attributing malingering and his crediting of indicia to the contrary, and asserted that Dr. Arias had “opined that RLs were not supported”. LINA's June 14, 2017 denial letter advised that the appeal decision was reached based on file review completed by an independent neuropsychologist. It did not identify Dr. Arias, [7] attributed its own conclusions of non-disability to Dr. Arias as his opinion, [8] and characterized the content of Dr. Arias' and Dr. Fishman's findings in unclearly-intermingled and selectively-included ways that presented a clouded representation of the results of LINA's IMEs.[9]

         (B) Pertinent sections of Plaintiff's long term disability Plan are as follows:

         Schedule of Benefits for Class 1

         An Employee is Disabled if, solely because of Injury or Sickness, he or she is:

1. Unable to perform the material duties of his or her Regular Occupation; and
2. Unable to earn 80% or more of his or her Indexed Earnings from working in his or her Regular Occupation . . . .
After Disability Benefits have been payable for 24 months, the Employee is considered Disabled if, solely due to Injury or Sickness, he or she is unable to perform the material duties of any gainful occupation for which he or she is reasonably fitted by education, training or experience. Gainful occupation means an occupation that is or can be expected to provide the Employee with an income within 12 months of return to work that exceeds 80% of his or her Indexed Earnings if working or not working.
The Insurance Company will require proof of earnings and continued Disability.
Indexed Earnings For the first 12 months Monthly Benefits are payable, Indexed Earnings will be equal to Covered Earnings. After 12 Monthly Benefits are payable, Indexed Earnings will be an Employee's Covered Earnings plus an increase applied on each anniversary of the date Monthly Benefits become payable. The amount of each increase will be the lesser of:
1. 10% of the Employee's Indexed Earnings during the preceding year of Disability; or 2. The rate of increase in the Consumer Price Index (CPI-W) during the preceding calendar year.[10]
Regular Occupation The occupation the Employee routinely performs at the time the Disability begins. . . .
Appeal Procedure for Denied Claims
. . .
Once a request has been received by the Insurance Company, a prompt and complete review of the claim will take place. The review will give no deference to the original claim decision. It will not be made by the person who made the initial claim decision, or a subordinate of that person ..... Any medical or vocational experts consulted by the Insurance Company will be identified. . . .
. . . . Once its review is complete, the Insurance Company must state, in writing, the results of the review and indicate the Plan provisions upon which it based its decision.

         (C) In her Memorandum in Support of Motion for Summary Judgment (“Plaintiff's Memo in Support”) (ECF No. 36), Plaintiff asserts that “[t]he undisputed facts make clear that LINA's termination decisions were arbitrary and capricious when LINA substituted its own opinions for those of its experts. The termination decision was not supported ...

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