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Kamerer v. Unum Life Insurance Company of America

United States District Court, D. Massachusetts

September 21, 2018




         Pending 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 due.


         1. Plaintiff's Policies

         The 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 I).[1]

         The LTD 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).

         The LTD 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 program;
-the date you fail to submit proof of continuing disability;
-The date you die. (GRP-PLN-24).

         The IDI Policy defines total disability as follows:

         Total Disability or Totally Disabled means that because of Injuries or Sickness:

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. (IDI-POL-13)

         “Your 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).

         The LTD 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).

         The IDI 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).

         Mental 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 Disability. (IDI-POL-11).

         2. Plaintiff's Medical History and the Termination of Benefits

         On June 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).

         Ms. 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).

         In 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 2647-2657).

         Subsequent 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).

         When 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 354-355).

         In 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).

         On 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).

         After 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 3651-3653).

         On 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 ...

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