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Plummer v. Hartford Life Insurance Co.

January 5, 2007


The opinion of the court was delivered by: Judge Thomas M. Rose


This cause arises from the disability of Plaintiff Robin Plummer ("Plummer"). Before becoming disabled, Plummer was employed by Kmart as a pharmacist. While employed at Kmart, Plummer was provided long term disability benefits under Group Long Term Disability Insurance Policy No. SRE83099256 (the "Policy"). The Policy was issued to Kmart by Continental Casualty Company ("CNA"). CNA administered the Policy until late 2003 when Defendant Hartford Life and Accident Insurance Company ("Hartford") assumed responsibility for administration of the Policy.

In February of 1998, Plummer began to experience pain in her lower back. She ceased working at Kmart on July 20, 1998 and, after receiving disability benefits from Kmart for a period of time, applied to CNA for disability benefits under the Policy. This application is not included in the Administrative Record ("AR") so the date she applied cannot be ascertained by the Court. However, on June 24, 1999, CNA acknowledged receipt of Plummer's claim. The screening referral sheet indicates that Plummer's claim was received on June 18, 1999.

On July 21, 1999, CNA informed Plummer that her disability claim was approved with benefits to begin on January 20, 1999. In 2004, Hartford reviewed Plummer's record and ultimately decided to terminate her long term disability benefits as of February 1, 2005. Plummer unsuccessfully appealed this decision and ultimately filed the Complaint that is now before the court.

Count I of Plummer's Complaint is an ERISA claim for long term disability benefits. Count II is for attorneys' fees and costs.

The Sixth Circuit has directed that claims regarding the denial of ERISA benefits are resolved using motions for judgment on the administrative record. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998). Now before the Court are Plummer's and Hartford's motions for judgment on the administrative record. (Docs. # 16 and 17.) The AR*fn1 has been filed and both Parties have filed responses. (Docs. #19 and 20.)

Hartford's Memorandum In Support of Judgment On the Administrative Record exceeds twenty pages in violation of Court rules and Plummer's Response To Defendant's Motion for Judgment On the Administrative Record was not filed by the date set by the Court. However, in the interest of providing justice to the Parties, both will be considered. Therefore, the motions for judgment on the administrative record are now ripe for decision.

A factual background will first be set forth. The factual background will be followed by the standard of review for claims to recover benefits due under terms of a plan subject to ERISA and an analysis of the cross motions for judgment on the administrative record.


Plummer was employed at Kmart from September 9, 1988 to July 19, 1998. (AR (hereinafter "PLUM") 968.) During the relevant time, Plummer was working in the position of pharmacist/manager. (PLUM 550.)

As a pharmacist/manager at Kmart, Plummer was responsible for overseeing the operation of the pharmacy department including customer service, profitability, investment control and compliance with federal, state and local laws, regulations and Company policies and procedures. (PLUM 892.) She was also responsible for supervising the work of the pharmacy technicians and customer service team members and for receiving and filling prescriptions. (Id.)

Kmart's job description for Plummer required, among other things, repetitive standing, bending, stooping, kneeling, lifting, stretching and reaching. (Id.) The job description used by Hartford for evaluation purposes classified the pharmacist position as "light" and identified the following as time spent on physical demands: sitting - 5%; standing - 70%; walking - 25%; bending - 10%; and reaching - 10%. (PLUM 823.)

A. Relevant Policy Provisions

The Policy provides an elimination period of six months provided the employee is considered totally disabled by the Kmart Disability Claims Administrator and has received salary continuation payments from the Kmart Disability Pay Policy. (PLUM 322.) Those covered are not eligible to receive benefits from the Policy during the elimination period. (PLUM 328.)

The Policy defines "disability" or "total disability" as when the insured employee, because of injury or sickness, is:

(1) continuously unable to perform the Substantial and Material duties of the Insured Employee's Regular Occupation;

(2) under the regular care of a legally qualified Doctor other than the Insured Employee; and

(3) not Gainfully Employed in any occupation for which the Insured Employee is or becomes qualified by education, training or experience.

(PLUM 337.) The policy also provides a different definition of "disability" or "totally disabled" that is applicable after the Monthly Benefit has been payable for the Insured Employee Occupation Period shown in the Summary of Benefits. (Id.) However, in the case of the Policy issued to cover Kmart's employees, the Summary of Benefits includes a "Maximum Period Payable" but does not include an Insured Employee Occupation Period. (PLUM 322.)

The Policy also provides for the type of information a claimant must submit to be eligible to receive long term disability benefits. Relevant to this matter, the Policy requires the following proof of disability:

4. Proof that You are receiving Appropriate and Regular Care for Your condition from a Doctor, who is someone other than You or a member of Your immediate family, whose specialty or expertise is the most appropriate for Your disabling condition(s) according to Generally Accepted Medical Practice.

5. Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations standardly accepted in the practice of medicine, for Your disabling condition(s).

6. The extent of Your Disability, including restrictions and limitations which are preventing You from performing Your Regular Occupation.

(PLUM 333.) Appropriate and regular care is defined in the Policy as "regularly visiting a Doctor as frequently as medically required to meet Your basic health needs." (PLUM 337.)

Further, "[t]he effect of the care should be of demonstrable medical value for Your disabling condition(s) to effectively attain and/or maintain Maximum Medical improvement." (Id.)

In addition to describing the type of information that must be provided for initial coverage, the Policy indicates that the insured may be asked to submit proof of continuing disability and proof of continuing to receive "Appropriate and Regular care of a Doctor." (PLUM 333.) This proof of continuing disability may be requested "only as often as We [the insurer] feel reasonably necessary." (Id.)

Finally, the version of the Policy that is presumably provided to the insured indicates that the insurer has the right to have a doctor examine the insured "as often as reasonably necessary while the claim continues" and that "failure to comply with this examination will suspend or terminate benefits" unless the insurer agrees that the insured has "a valid and acceptable reason for not complying." (PLUM 334.) No mention is made of an independent medical examination ("IME"). However, another version of the Policy that is part of the AR goes much further. This version indicates that disability benefits will not be paid for any period for which the insured refuses to have an IME when required by the insurer, for any period for which the IME is not received by the insurer and for any period for which the required IME does not substantiate medical evidence of total disability. (PLUM 352.)

B. Procedural History

Plummer began to experience pain in her lower back in February of 1998. (PLUM 957.) She related the beginning of her back pain to working twelve hours per day at Kmart. (PLUM 899.) Plummer left the employment of Kmart on July 20, 1998. (PLUM 968.)

Plummer received full disability pay from Kmart from July 20, 1998 until January 19, 1999. (Id.) Prior to and during this time she was evaluated and treated by Dr. Seymour. (Id.) Plummer had been referred to Dr. Seymour by Dr. Fronista, her general practitioner at the time. (PLUM 920.)

On July 7, 1998, Dr. Seymour initially concluded that Plummer had musculoskeletal low back pain with deconditioning syndrome. (PLUM 921.) He began outpatient therapy for truncal strengthening and stabilization. (Id.) Dr. Seymour saw Plummer again on July 22, 1998, and sent her for an MRI of the lumbosacral spine. (PLUM 922.) On July 23, 1998, Dr. Seymour concluded from the MRI performed on July 22, 1998, that Plummer had a mild central bulge of the intervertebral disc at the L4-5 level. (PLUM 259.)

At Kmart's request, Plummer was seen by Dr. Brown, M.D., on August 31, 1998, for an IME. (PLUM 926.) Dr. Brown reviewed the MRI (PLUM 923) and agreed with the finding of a mild central bulge of the disc at the L4-5 level causing minimal impingement on the ventral aspect of thecal sac. (Id.) Dr. Brown recommended an EMG of the right lower extremity to try to better delineate the source of Plummer's pain and concluded that Plummer was disabled from work. (PLUM 928.)

On September 4, 1998, Plummer again saw Dr. Seymour. (PLUM 928.) Dr. Seymour concluded that Plummer had not responded well to the chiropractic care that she had been receiving. (PLUM 929.) Dr. Seymour recommended a trial of epidural steroids and, after discussing Plummer's case with Kmart's insurer, concluded that an EMG was needed. (Id.) The EMG, performed on September 10, 1998, indicated acute posterior rami irritation at the L5-S1 level. (PLUM 931.)

On September 28, 1998, Plummer again saw Dr. Seymour. Dr. Seymour concluded that Plummer had a probable disk derangement at L4-5. (PLUM 932.) He planned the use of a warm "N" back brace, resumption of lumbar stabilization exercises and a third epidural steroid injection followed by a re-evaluation. (PLUM 932.)

After a visitation on October 15, 1998, Dr. Seymour concluded that Plummer had a degenerative disc at L4-5 and some mild L5-S1 nerve root irritation. (PLUM 933.) He referred Plummer to Dr. Amongero, an orthopedic spine surgeon. (Id.) Dr. Seymour also concluded that Plummer could not return to work at least through November 15, 1998. (PLUM 933.)

Plummer was then referred by Kmart to Dr. Gilliotte, M.D., for a second IME. (PLUM 935.) Dr. Gilliotte saw Plummer on October 30, 1998. (Id.) He agreed with the findings of the previous MRI and EMG. (PLUM 937.) Dr. Gilliotte noted that Dr. Amongero had recommended a discogram and that Plummer was concerned about this test because it carried significant risk. (PLUM 937.) Dr. Gilliotte concluded at the time that proceeding to any form of back surgery would be premature. (Id.) On November 5, 1998, Dr. Gilliotte recommended that Plummer not return to work. (PLUM 939.)

In October of 1998, Plummer was referred by Dr. Teeters, her chiropractor, to Dr. Goodall, D.O., at the Greene Memorial Hospital outpatient neurosurgical clinic. (PLUM 938.) Dr. Goodall examined Plummer, reviewed the MRI and concluded that a myleogram CT would be as effective as a discogram. (Id.) The lumbar myleogram and post-myleogram CT, performed on November 9, 1998, were negative. (PLUM 940.)

Dr. Goodall dismissed Plummer from the neurosurgical clinic on November 10, 1998 (PLUM 941) and followed up with Plummer on November 12, 1998. (PLUM 943.) Dr. Goodall concluded that, although obvious frank nerve root compromise was not identified, Plummer had radicular pain. (Id.) Since Dr. Goodall had not found the cause of Plummer's radiculopathy, he suggested that she consider a second opinion at a major neurosurgical center. (Id.) He then referred her to the Mayo Clinic. (PLUM 944.)

Plummer was seen at the Mayo Clinic on November 23-25, 1998. (PLUM 952.) At the Mayo Clinic, Plummer underwent a series of examinations and tests. Dr. Dekutoski, of the Mayo Clinic, concluded that "there is no clear role for surgical intervention." (PLUM 949.) He recommended further chronic pain management evaluation and follow-up evaluation by her hometown treating physicians. (PLUM 949.) One of the doctors in the psychology department at Mayo found that Plummer exhibited depressive symptoms of frustration, irritability, some anbedonia, and hopelessness. (PLUM 945.) Dr. Hunt of the Mayo Clinic reported final diagnoses of back pain with radiation to the right posterior leg and previous hysterectomy. (PLUM 952.)

On December 10, 1998, Plummer returned to Dr. Gilliotte for a review and further guidance as to the next step. (PLUM 905-06.) Dr. Gilliotte reported that Plummer showed symptoms of depression. (Id.) He concluded that Plummer had back and right lower extremity pain which thus far had alluded to any definitive diagnosis. (Id.) Dr. Gilliotte then ordered a CT scan of the pelvis and a bone scan. (Id.) He also declined to pursue physical therapy at the time. (Id.)

Plummer saw Dr. Gilliotte again on January 12, 1999. (PLUM 908.) Dr. Gilliotte noted that Plummer was "about the same." (Id.) He recommended physical therapy and referred her to Dr. Demirjian for a pain management consultation. (Id.)

The next medical contact included in the AR is an IME performed by Dr. King, M.D., at Kmart's request. (PLUM 900-01.) Dr. King reviewed Plummer's prior examinations and treatments including those by Dr. Teeters, Dr. Gilliotte, Dr. Seymour and the Mayo Clinic. (Id.) Dr. King noted that Plummer had had epidurals and facet blocks with minimal relief. (Id.) He also noted that Plummer's CT discogram was positive at two levels: L4-5 and L5-S1 and that Plummer would be "seen and followed" by Dr. Amongero, a spine surgeon, to surgically decompress these two levels. (Id.) Dr. King concluded that Plummer was not able to function in the capacity of a "registered nurse" (???) and was unable to return to work. (Id.)

On April 6, 1999, Dr. Amongero performed a lumbar diskogram. (PLUM 258.) He found a normal contour and no symptoms at the L3-4 disc. (Id.) He also found posterior extension of contrast material in the annulus at L5-S1 and immediate severe pain. (Id.)

On June 19, 1998, Plummer had back surgery. (PLUM 662.) She had an anterior and posterior surgical fusion between L4 and the sacrum. (PLUM 252) Dr. Gilliotte reported to CNA that restrictions and limitations were to be developed by Dr. Amongero, Plummer's surgeon, and that she may be ready for part time work by January 1, 2000. (PLUM 887.) A lumbar CT scan on December 16, 1999, revealed the results of the surgery and that there may be centrally located clumped nerve roots or other soft tissue lesion in the spinal canal at the L4 and L5 levels. (Id.)

Plummer then submitted a claim for disability benefits to CNA that was received by them on June 23, 1999. (PLUM 697.) This application is not included in the AR.

On July 21, 1999, CNA informed Plummer that her claim had been approved and provided the monthly benefit amount. (PLUM 892.) The period from July 20, 1998, to January 20, 1999, was used to satisfy the Policy's six-month elimination period. (Id.) Following the elimination period, Plummer began receiving $2878.73 monthly. (Id.)

The letter from CNA also informed Plummer that benefits under the Policy are payable for 24 months if she is totally disabled from her own occupation and that benefits will continue after 24 months only if she is totally disabled from any occupation. (Id.) However, the "any occupation" language is not applicable to Plummer in accordance with the employee Plan Summary that is included in the AR.

Plummer was next examined by Dr. Gilliotte on January 4, 2000. (PLUM 862.) As a result, he continued to certify Plummer as disabled. (PLUM 871.) Dr. Gilliotte stopped her physical therapy and suggested that she see Dr. Amongero regarding the results of the lumbar CT scan. (Id.) He reported to CNA that Plummer was unable to stand, walk or sit for extended periods and her estimated date to return to work was now July 1, 2000. (PLUM 871.)

Plummer was again examined by Dr. Gilliotte on June 16, 2000. (PLUM 842.) Dr. Gilliotte reported to CNA that Plummer was in a pain management program and could not currently perform the work of a pharmacist due to pain, depression and anxiety. (Id.) He also reported that Plummer may begin work on March 1, 2001. (Id.)

Plummer was again examined by Dr. Gilliotte on September 5, 2000. (PLUM 833.) Dr. Gilliotte reported to CNA that Plummer was in a pain management program and could not currently perform the work of a pharmacist due to pain, depression and anxiety. (Id.) He reported that Plummer continued to be disabled and may be able to return to work on March 1, 2001. (Id.)

On September 15, 2000, in response to a request from CNA, Dr. Gilliotte reported that Plummer's function had not improved and that it would never improve enough for her to return to full time work. (PLUM 809.) He reported that Plummer has chronic pain and would not tolerate any work environment unless she improves substantially. (Id.)

CNA then contracted with ProWork to determine Plummer's current physical/functional capabilities and to determine Plummer's ability to perform the pharmacist job. (PLUM 830.) The Functional Capacity Evaluation ("FCE") was scheduled to be conducted on November 15 and 16, 2000. (PLUM 820.) The FCE was discontinued on the first day following the musculoskeletal portion of the evaluation. (PLUM 812) Plummer was reported to be weeping throughout the evaluation and reported pain in her low back. (Id.)

On December 5, 2000, CNA again asked Dr. Gilliotte for his evaluation. He responded that there had been no improvement in Plummer and future improvement was uncertain. (PLUM 805.) The current treatment noted by Dr. Gilliotte was continued pain management, physical therapy and medications. (Id.)

On February 22, 2001, Plummer filed for social security disability benefits. (PLUM 733.) The Social Security Administration determined that she became disabled on July 20, 1998, and was entitled to social security disability benefits beginning February 2000. (Id.) Pursuant to the terms of the Policy, Plummer was required to reimburse CNA for social security payments received. (PLUM 739.)

Dr. Gilliotte again evaluated Plummer on September 26, 2001. (PLUM 700.) He found that she could not perform full time work and that she continued to have severe limits to her ability to sit, stand, walk and concentrate. (Id.)

On October 24, 2002, CNA offered Plummer a lump sum of $105,000 to settle her disability claim. (PLUM 684.) This offer was based upon the present value of Plummer's future benefits. (Id.) Plummer declined the offer. (PLUM 674.)

In late 2003, Hartford assumed responsibility for administration of the Policy. Hartford's case notes indicate that Dr. Fronista had examined Plummer on November 13, 2003, and concluded that Plummer was totally disabled with no marked change expected in the future. (PLUM 671.) The case notes also include Hartford's conclusion that "there is minimal supportive evidence on the file from 2001 through the present" and that a request will be made to Plummer to provide a current attending physician's statement and work and education history. (PLUM 671.) The AR also includes a Disability Claim Form submitted by Plummer on November 13, 2003, in which she reports that she cannot return to work until a new technique is developed to decrease pain and increase mobility. (PLUM 672.)

On June 1, 2004, Hartford asked Plummer for a "periodic update" of its records. (PLUM 668.) Plummer responded by completing a Claimant Questionnaire and an attending physicians's statement ("APS") dated July 28, 2004. (PLUM 659-65.) She reported that she had "arachnoiditis, severe back pain, can only be up for short periods when sitting down feet up and using ice, tens unit and medication" and that there had been no change in her condition. (Id.) She also reported that she had been treated by Dr. Fronista and Dr. Snow*fn2 within the last 18 months. (Id.) The APS diagnoses arachnoiditis and severe back pain and lists October 28, 2004, as the latest treatment date. (PLUM 662.) The APS also indicates that no treatment is available for this condition. (Id.)

Hartford then asked Dr. Fronista for copies of his office records for Plummer for January 2003 to the present. (PLUM 652.) Dr. Fronista's records indicate that he had seen her four times between August 7, 2003, and June 28, 2004, for various reasons. (PLUM 640-646.) Each of Dr. Fronista's visit sheets includes a diagnosis of arachnoiditis. (Id.)

On July 28, 2004, Hartford referred Plummer's claim to its Special Investigation Unit ("SIU"). (PLUM 635.) The claim was referred as a "Proactive." (Id.)

The SIU contracted with Dempsey Investigations, Inc. for surveillance of Plummer to determine her current activities and physical limitations. (PLUM 614.) The initial surveillance took place on Saturday August 14th, Sunday August 15th and Monday August 16th, 2004 (Id.) On August 14th and 15th, Plummer was not observed outside of her residence. (Id.) On August 16th Plummer was observed away from her residence for approximately thirty-nine minutes. (Id.) Plummer was observed traveling to a nearby cleaner's, a fast food restaurant and a department store. (Id.) During this time, she was observed driving, walking, entering and exiting her vehicle, squatting, bending at the waist, reaching, lifting and pushing a shopping cart. (Id.) The observer noted that Plummer displayed a full range of motion and displayed no physical signs that would support her stated limitations. (Id.)

Hartford then requested further surveillance. The second surveillance took place on Sunday September 12 and Monday September 13, 2004. (PLUM 606.) On Sunday, Plummer was not observed outside of her residence. (Id.) On Monday, Plummer was observed away from the residence for approximately two hours. (Id.) Plummer traveled to a private residence, to a medical center, back to the private residence and then back to her residence. (Id.) During this time, she was observed and videotaped walking, bending at the waist, carrying a baby in a car seat using her left and right hand, reaching and pulling, and driving approximately thirty miles round trip without any other adults in the vehicle. (Id.) According to the observer, Plummer walked in a normal manner and pace, displayed good range of motion and did not display any visible physical signs of discomfort. (Id.)

Following the surveillance, Plummer's claim was given to Hartford Investigator John Snow ("Snow"). (PLUM 596.) Snow then interviewed Plummer on October 21, 2004. (PLUM 541.) Plummer declined Snow's offer to view the video tapes. She did, however, indicate that she had been watching her granddaughter during the surveillance. (PLUM 66.) She indicated that she was watching her granddaughter because the child's mother had been beaten by the father of the child. (Id.) The older woman seen at the private residence was someone who occasionally watched the child. (Id.)

As part of the interview, Plummer was asked to describe her restrictions and limitations. (PLUM596.) She indicated that she was prevented from returning to work because of severe back pain caused by arachnoiditis and that this causes an inability to sit or stand for any extended period of time. (PLUM 53.) She also stated that she had the following restrictions and limitations: walk for about twenty or twenty-five minutes; stand for fifteen to twenty minutes at most and lift and carry items that weigh less than five pounds and push and pull something like an empty shopping cart on wheels. (Id.) Plummer also indicated that she could bend and twist at the waist, squat, kneel and reach to the front and side. (Id.) Finally, Plummer indicated that her condition has remained the same for the past six months and that the information on the claimant questionnaire dated July 28, 2004, remained the same. (Id.)

On October 26, 2004, Hartford sent copies of the surveillance to Dr. Fronista.*fn3 (PLUM 594.) Dr. Fronista was told that the surveillance supports a conclusion that Plummer's functionality exceeds his assessment. (Id.) He was asked to review and comment on the surveillance. (Id.) The AR does not include a response to this letter.

Hartford also scheduled an IME for Plummer with Dr. Klein, who is a board certified occupational medicine physician and family practitioner, and an independent medical examiner. (PLUM 591.) The IME was conducted on November 22, 2004. (Id.) Hartford asked Dr. Klein to determine what precludes Plummer from working and to determine her restrictions and limitations. (PLUM 580.)

Dr. Klein issued his initial report on that same day. (PLUM 574-77.) He examined Plummer and the medical records that had been provided by Hartford. (Id.) Dr. Klein concluded that Plummer presented herself as credible and having ongoing pain. (Id.) He also concluded that Plummer would presently be classified in the sedentary job description meaning that she could occasionally lift up to 10 pounds but would require frequent change of body position from standing, sitting and lying. (Id.)

After receiving Dr. Klein's initial report, Hartford sent Dr. Klein copies of the two surveillance videos, one taken on August 16, 2004 for a total of five minutes and one taken on September 13, 2004 for a total of approximately twelve minutes. (PLUM 559-60.) On December 17, 2004, Dr. Klein issued an addendum report. (Id.) In the addendum report, Dr. Klein first wrote what he saw in the videos. (Id.) He then indicated that Plummer is capable of performing at a higher level than she presented to him in her evaluation in November. (Id.) Specifically, Dr. Klein, based upon viewing the videos, believed that Plummer was capable of lifting up to twenty-five pounds on an occasional basis, was capable of frequently lifting up to ten pounds and was capable of standing and walking about as needed on a frequent basis. (Id.) This, according to Dr. Klein, would put Plummer in the light duty classification and capable of performing the duties of a pharmacist. (Id.)

Hartford then sent both of Dr. Klein's IME reports to Dr. Fronista. (PLUM 567.) In the letter dated January 3, 2005, Hartford concludes that Plummer has the capacity to work an 8-hour day at a light physical demand level and would be able to return to her own occupation as a pharmacist. (Id.) Hartford asked Dr. Fronista to agree with this assessment or, if not, to provide a statement addressing the "above" information and a copy of any information supporting Plummer's functional capacity. (Id.)

On January 20, 2005, Dr. Fronista responded. (PLUM 565.) Dr. Fronista told Hartford that Plummer has been his patient for about ten years and that he had been treating her for the usual colds and a bout with pneumonia. Dr. Fronista further indicated that Plummer's back problems have been treated by others and that he does not involve himself with her back anatomy and physiology except for prescribing analgesics for her symptoms. (Id.) Dr. Fronista concluded that he did not feel comfortable evaluating Plummer's state of disability. (Id.)

On February 1, 2005, Hartford notified Plummer that they were terminating her long term disability benefits effective February 1, 2005.*fn4 (PLUM 539-44.) Hartford indicated that it based its decision on policy language ...

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