United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DOCKET NOS. 94 & 97)
TIMOTHY S. HILLMAN, DISTRICT JUDGE.
before the Court are cross-motions for summary judgment in
this action brought under the terms of the Employee
Retirement Income Security Act of 1974 (ERISA). For the
reasons set forth below, Plaintiff's motion (Docket No.
97) is granted and Defendants'
motion (Docket No. 94) is denied.
Plaintiff's long-term disability benefits are hereby
reinstated and she is to be compensated for past benefits
Plaintiff, Judith Kamerer, initiated this action seeking
judicial review of Unum Life Insurance Company of America
(“Unum Life”), Provident Life and Accident
Insurance Company (“Provident Life”), and Unum
Group's decision to terminate her long-term disability
benefits. Plaintiff was covered under two separate policies.
The group policy issued by Unum Life (the “LTD
Policy”) and the individual policy that she purchased
to supplement her basic coverarge issued by Provident Life
(the “IDI Policy”). (Administrative Record Volume
Policy defines disability as follows:
You are disabled when Unum determines that:
-you are limited from performing the material and substantial
duties of you regular occupation due to your sickness or
injury; and -you have a 20% or more loss in your indexed
monthly earnings due to the same sickness or injury.
You must be under the regular care of a physician in order to
be considered disabled. (GRP-PLN-17).
Regular Occupation is defined in the LTD Policy as:
The occupation you are routinely performing when your
disability begins. Unum will look at your occupation as it is
normally performed in the national economy, instead of how
the work tasks are performed for a specific employer or at a
specific location. (GRP-PLN-43).
Policy also states that benefits are no longer payable when
any of the following occur:
-when you are able to work in your regular occupation on a
part-time basis but you choose not to.
-if you are working and your monthly disability earnings
exceed 80% of your indexed monthly earnings, the date your
earnings exceed 80%.
-the end of the maximum period of payment;
-the date you are no longer disabled under the terms of the
plan, unless you are eligible to receive benefits under
Unum's Rehabilitation and Return to Work Assistance
-the date you fail to submit proof of continuing disability;
-The date you die. (GRP-PLN-24).
Policy defines total disability as follows:
Disability or Totally Disabled means that because of Injuries
1. You are unable to perform the material and substantial
duties of Your Occupation; and
2. You are not engaged in any other occupation; and
3. You are receiving Physician's Care. We will waive this
requirement if We receive written proof acceptable to Us that
further Physician's Care would be of no benefit to You.
Occupation” is defined in the IDI Policy as “The
occupation or occupations, as performed in the national
economy, rather than as performed for a specific employer or
in a specific location, in which You are regularly engaged at
the time You become Disabled.” (IDI-POL-13).
Policy limits all disabilities due to a mental illness to a
cumulative benefit period of 24 months. The LTD Policy
defines mental illness as:
A psychiatric or psychological condition classified in the
Diagnostic and Statistical Manual of Mental Health Disorders
(DSM), published by the American Psychiatric Association,
most current as of the start of a disability. Such disorders
include, but are not limited to, psychotic, emotional or
behavioral disorders, or disorders relatable to stress or to
substance abuse or dependency. If the DSM is discontinued or
replaced, these disorders will be those classified in the
diagnostic manual then used by the American Psychiatric
Association as of the start of a disability. (GRP-PLN-42).
Policy states that if the disability is caused by a mental
disorder the maximum benefit period is also 24 months over
the life of the policy. (IDI-POL-8, 21).
Disorders are defined as follows:
Any disorder (except dementia resulting from stroke, trauma,
infections or degenerative diseases such as Alzheimer's
disease) classified in the Diagnostic and Statistical Manual
of Mental Disorders (DSM), published by the American
Psychiatric Association, most current as of the start of a
Disability. Such disorders include, but are not limited to
psychotic, emotional or behavioral disorders, or disorders
relatable to stress or to substance abuse or dependency. If
the DSM is discontinued or replaced, these disorders will be
those classified in the diagnostic manual then in use by the
American Psychiatric Association as of the start of a
Plaintiff's Medical History and the Termination of
20, 1988, Ms. Kamerer began working at Accenture. (ARIDI at
372). She worked continuously at Accenture until becoming
occupationally disabled in January 2004. (ARIDI at 382). Her
last position at Accenture was Associate Partner, which paid
an annual salary of $155, 400. (ARIDI at 373l; ARLTD at
5445). Ms. Kamerer became disabled due to fibromyalgia,
inflammatory arthritis, hypothyroid and insomnia, which she
contends caused her constant pain in her joints, severe
headaches, and “fibro-fog.” (ARIDI at 363; 372;
377; 380). She was prescribed numerous medications including
OxyContin, Lortab, Actiq, Suboxone, Phenergan, Maxalt, and
Zonegran to treat her pain. (ARLTD at 308; 5155; 5158).
Kamerer concurrently struggled with depression. (ARLTD at
308). In January 2004, Ms. Kamerer reported being depressed
over having lost her job and having a child in the hospital.
(ARLTD at 308). In February 2004, her arthritis specialist,
Dr. Katz, noted that Ms. Kamerer had fibromyalgia and that
depression could be playing a role in her condition. (ARLTD
at 255). A month later, Dr. Katz noted that Ms. Kamerer's
condition was “a classic fibromyalgia picture”
but “[a]s is typical with pain syndromes, it has been
difficult to establish whether her depression has been
primary or secondary.” (ARLTD at 167).
February of 2004, she filed claims for benefits under both
policies. (ARIDI at 361-377). On May 10, 2004, Unum approved
her claim under both policies. (ARIDI 594-597). In 2008, Ms.
Kamerer's claim was assigned to the extended duration
unit. (ARIDI at 342-343). Unum paid Ms. Kamerer's
benefits uninterrupted for the years 2004-2013. (ARIDI at
to the initial approval of her claim and throughout its
administration, Ms. Kamerer was required to submit periodic
claimant statements, attending physician statements, and both
Unum Life and Provident Life had periodic contact with Ms.
Kamerer regarding her condition. (ARLTD at 438-444; 522-526;
879; 968; 1061-1064; 1124). During this time, Ms. Kamerer did
provide extensive records to Unum from her treating
healthcare providers, principally a neurologist, urologist,
and psychologist. (ARIDI at 197- 230; 248; 253; 362; 376;
380; 540-543; 548-549; 561-580; 617-718; 788-808; 814-839;
849; 852-853; 908-921; 923; 928; 940-945; 948-950; 962-964;
977-1083; 1092-1135; 1282-1430; 1432-1580; 1583-1761;
1763-1837; 1857-1865; 1875-1883; 1888-1890; 1909-1953;
1958-1959; 2001-2002; 2073-2086; 2092; 2241-2247; 2255-2256;
2382-2383; 2423-2425; 2439-2440; 2462-2463; 2480-2481;
2494-2495; 2559; 2566-2569; 2590-2593; 2595-2598; 2615-2617;
3271; 3297-3298; ARLTD at 5299-5310).
her symptoms failed to improve, Ms. Kamerer sought treatment
at the Mayo Clinic. (ARIDI at 749-772). Doctors at Mayo also
found that Ms. Kamerer had “symptoms and findings . . .
consistent with the diagnosis of fibromyalgia” and
subsequently entered her into the Fibromyalgia Treatment
Program. (ARIDI at 755; 759). She also sought treatment at
Mayo for her depression. (ARLTD at 353-355). Doctors at Mayo
subsequently recommended admission to the Mood Disorder's
Unit at Mayo for treatment of her depression. (ARLTD at
July, 2013, Charlene Saucier, a Clinical Consultant,
performed a review of Ms. Kamerer's medical history.
(ARLTD at 3042-3049). In an interview shortly before that
review, Ms. Kamerer told Unum representatives that she was
being treated by Dr. John Gamble, Dr. Holly Kaufman, and Dr.
Jim Lemons. (ARLTD at 2952-2953). Dr. Gamble gave Ms. Kamerer
no work restrictions. (ARLTD 2982-2983). Dr. Kaufman
suggested that Unum contact Ms. Kamerer's pain management
specialist. (ARLTD at 3000). After Dr. Gamble left his
practice, Ms. Kamerer began seeing Dr. Karan Baucom (ARLTD at
3060). Dr. Baucom, who was treating Ms. Kamerer for
addiction, did not provide any restrictions on Ms. Kamerer
returning to work. (ARLTD at 3087).
September 6, 2013, Unum notified Ms. Kamerer that her
benefits under the LTD Plan would be discontinued after its
medical department reviewed her file and determined that she
had the functional capacity to return to her job. (ARIDI at
2520-2525; ARLTD at 3220-3225). On September 10, Unum also
terminated Ms. Kamerer's benefits under the IDI Plan.
(ARIDI at 2521). Unum's vocational review classified Ms.
Kamerer's occupation as a Systems Project Manager and an
internal medical reviewer concluded that she had the
functional capacity to meet the physical demands of that
occupation. (ARIDI at 2829). According to the vocational
review, the physical demands associated with a Systems
Project Manager included, among other demands, exerting up to
10 pounds of force occasionally and a negligible amount of
force frequently to move objects. The occupation is sedentary
and required sitting most of the time, but might include
“micro-breaks” such as walking or standing for
brief periods. Finally, the review noted that the position
ordinarily mandated travel, the frequency of which would be
job specific. (ARLTD at 3021). According to Unum, Ms. Kamerer
was able to satisfy the functional demands of this job as she
was capable of working full-time while sitting frequently,
standing or walking on occasion and sometimes lifting up to
ten pounds. (ARIDI 2829).
Unum notified Ms. Kamerer that her benefits would be
discontinued, Dr. Lemons, one of her treating physicians,
wrote a letter to Unum dated September 25, 2013, noting that
Ms. Kamerer “continues to experience severe chronic
pain that makes it impossible for her to be involved in
gainful, meaningful employment. (ARIDI at 2559). On September
18, 2013, Unum sent another one of Ms. Kamerer's treating
physicians, Dr. Samuel Lehman, a questionnaire. On the
questionnaire he certified that Ms. Kamerer's current
diagnoses included fibromyalgia, migraines and depression;
that she did not have the functional capacity to work
full-time while performing activities that require the
ability to sit frequently, stand or walk on occasion, lift up
to 10 pounds occasionally and travel on occasion; that
“she cannot sit for any length of time that would make
working possible. The patient cannot travel regularly which
is a requirement of her job.” (ARIDI at 2566-2567). Dr.
Lehman further reported that “although the patient can
sit occasionally, once the patient begins sitting she is able
to sit for shorter and shorter periods of time, so over time
she is unable to sit at all for several days.” (ARIDI
at 2569). Finally, when asked about the possibility of
improvement or a change in Ms. Kamerer's condition, Dr.
Lehman replied, “Unless new treatments for fibromyalgia
are found the patient is not expected to have any significant
improvement.” (ARIDI at 2568-2569). On October 25,
2013, Dr. Lemons documented in his medical records that Ms.
Kamerer's pain was “really bad. More frequent flare
ups.” (ARIDI at 3297). On November 11, 2013, Dr. Lemons
noted that Ms. Kamerer's “pain levels are higher
most of the time. Depression also ‘really bad' as
she has to move out of her home.” (ARIDI at 3297).
Subsequently, Unum's in-house medical consultant, Dr.
LaClaire recommended an independent medical examination to
determine Ms. Kamerer's functional capacity. (ARIDI at
2925). On December 10, Unum notified Ms. Kamerer that it
wanted her to participate in an in-person evaluation and that
Unum would continue to make payments in the interim under
reservation of rights. (ARIDI at 2956-2958; ARLTD at
December 16, 2013, Unum claims examiner Andy Hamilton wrote
to Ms. Kamerer's counsel, explaining that Unum had
arranged for a medical examination with Dr. Steven Hendler, a
physical medicine and rehabilitation physician. (ARIDI
2983-2984). A letter from Unum to Dr. Hendler informed him
that Kamerer was a System Project Manager and asked him to
assess whether Kamerer had the functional capacity for full
time work with sedentary physical demands. (ARIDI 2987-2988).
Dr. Hendler's exam took place on January 13, 2014 and is
a point of contention between the parties. The Plaintiff
asserts that the exam lasted approximately five minutes.
(ARIDI at 3047-3050; ARLTD 4873-4874). Dr. Hendler contends
that the appointment was longer because his calendar slotted
the appointment in an hour block. Hendler Dep. 61: 24- 25.
Dr. Hendler concluded that Ms. Kamerer was suffering from
fibromyalgia, depression, headaches, pain associated with
psychological factors and a general medical condition, and
hypothyroidism. (ARLTD at 4825). In his opinion, Ms. Kamerer
historically met the criteria for fibromyalgia and likely met
the current criteria. (ARLTD at 4825). With respect to
functional capacity, Dr. Hendler was asked and answered:
a. In your expert opinion, if her psychological symptoms and
conditions are not taken into account due to policy
limitations, would Ms. Kamerer have functional capacity for a
full time occupation with Sedentary physical demand as
defined by the Department of Labor that is performed with:
a. Frequent Sitting, Talk, Hear, Hear Acuity, Keyboard Use
b. Occasional walk, Sit/Stand Option, Reach, Finger, Feel,
Handle, Lift/Carry and Push/Pull up ...