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Williams v. Hartford Life And Accident Insurance Co.

United States District Court, D. Utah, Central Division

February 8, 2017

TERRI LYN WILLIAMS, Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          DAVID NUFFER DISTRICT JUDGE.

         This case involves a claim for long-term disability (“LTD”) benefits through a group insurance plan. Plaintiff Terri Lyn Williams (“Williams”) brought a claim for breach of contract against Defendant Hartford Life and Accident Insurance Company (“Hartford”) after it terminated her LT D benefits and denied her subsequent appeal.[1] The parties filed cross motions for summary judgment on March 31, 2015, [2] but stipulated that the case be decided by the court, as the trier of fact, on the record evidence and the parties' summary judgment memoranda.[3]Upon careful review of the evidence, briefing, and oral arguments, and for the reasons stated more fully below, Williams's Motion is GRANTED and Hartford's Motion is DENIED.

         TABLE OF CONTENTS

         TABLE OF CONTENTS ................................................................................................................ 2

         BACKGROUND ............................................................................................................................ 3

         UNDISPUTED FACTS .................................................................................................................. 5

         Breach of Contract Claim Element 1: Existence of a Contractual Duty ............................. 6

         The Plan and Group Policy Provisions ................................................................... 6

         Breach of Contract Claim Element 2: Performance of the Contract by Williams .............. 9

         Proof of Loss ........................................................................................................... 9

         Breach of Contract Claim Element 3: Breach of the Contract by Hartford ...................... 10

         Williams's LTD Claim .......................................................................................... 10

         Hartford's Administration of Williams's LTD Claim After the Initial Approval .. 12

         Hartford's Any Occupation Investigation ............................................................. 26

         Hartford's Determination of Williams's Appeal ................................................... 39

         Breach of Contract Claim Element 4: Damages ............................................................... 41

         Initial Denial of Williams's Claim for LTD Benefits ............................................ 41

         Denial of Williams's Appeal .................................................................................42

         Summaries ......................................................................................................................... 44

         Summary of Medical Evidence ........................................................................... 44

         Summary of Medical Opinions Regarding Williams's Restrictions and Limitations.............................. 46

         STANDARD OF REVIEW .......................................................................................................... 52

         DISCUSSION ............................................................................................................................... 54

         Hartford has a contractual duty to pay LTD benefits to Williams .................................... 55

         Williams performed her duties under the Plan and Group Policy .................................... 57

         Williams properly applied for LTD benefits ......................................................... 57

         Williams provided Hartford with timely and satisfactory Proof of Loss .............. 58

         Williams was and is under the Regular Care of a Physician ................................ 65

         Hartford breached its contractual duty to Williams by denying her claim for LTD benefits............................................ 66

         Williams has a qualifying Disability that is not excluded from coverage and became Disabled while insured under the Plan and Group Policy ........... 66

         Williams remained Disabled beyond of the effective date of the Plan and Group Policy's Any Occupation provision .......................................................... 69

         Williams suffered damages as a result of Hartford's breach ............................................. 77

         CONCLUSION ............................................................................................................................. 78

         ORDER ......................................................................................................................................... 78

         BACKGROUND

         Williams was employed as a teacher for the Sevier School District in Richfield, Utah until March 2011, when she stopped working due to a claimed disability.[4] She applied for, and was granted, LT D benefits, which Hartford paid until June 2013, when it terminated her benefits based on the insurance policy's narrowing of the definition of “Disability” after 24 months of benefit payments.[5]

         Williams appealed Hartford's termination decision, alleging that she continued to be disabled under the insurance policy's terms .[6] She had several physical impairments in the first 24 months of disability payments and alleges a variety of current physical impairments, the greatest of which is fibromyalgia.[7] Williams's treating physician, Dr. Dwight Inouye, found her totally disabled due to fibromyalgia.[8]

         On appeal, Hartford referred Williams's claim file to Dr. Joseph Rea for review.[9] Dr. Rea did not personally examine Williams.[10] In his report, Dr. Rea opined that Williams's work-related abilities were limited by a hip impairment, but acknowledged that she consistently complained of fibromyalgia.[11] Dr. Rea concluded that “fibromyalgia does not stand as an objective clinical entity (upon which impairment and resultant physical limitations can be based)[.]”[12] Therefore, he assigned Williams's work-related limitations to her hip impairment, specifically excluding any limitations related to fibromyalgia.[13] Hartford adopted Dr. Rea's opinion, at least to the extent of his limitations, and denied Williams's appeal.[14] Hartford maintains that although it adopted Dr. Rea's limitations, it rejected his opinion relating to fibromyalgia.[15]

         The policy itself does not exclude coverage for disabilities caused by fibromyalgia, nor does it affirmatively require a claimant to provide objective evidence of impairment and limitation.[16] Similarly, the policy does not exclude coverage for these types of impairments.[17]None of Hartford's referred health care professionals ever personally examined Williams.

         Williams asserts a single cause of action for breach of contract against Hartford for its denial of her claim for LTD benefits.[18] Williams's claim against Hartford is not governed by the Employee Retirement Income Security Act of 1974 (ERISA).[19] The parties agree that because employee welfare benefit plans administered by government entities are specifically precluded from ERISA pre-emption, Williams's claim against Hartford is simply one for breach of a contract's express terms.[20] The parties filed cross motions for summary judgment on March 31, 2015.[21] On May 1, 2015, the parties filed response memoranda, [22] and on May 18, 2015, the parties filed reply memoranda.[23] Oral argument was heard on June 23, 2015.[24]

         UNDISPUTED FACTS

         This collection of Undisputed Facts is distilled from the parties' summary judgment briefing. Hartford's Motion provided a statement of background facts and a statement of elements which refers generally to the background facts.[25] Williams's Motion also provided a statement of elements followed by a factual background.[26] Williams's Response stated that “[t]he parties have conferred about the resolution of this case, have agreed that this case should be decided on the evidence of record, and that there is no material dispute about any facts in this case.”[27] In Hartford's Response, it agreed that “there is no dispute about any material fact in this case.”[28] Hartford also submitted the administrative record[29] and a CD of video surveillance.[30]

         The parties' statements of facts did not comply with DUCivR 56-1(b)(2)(C), which requires:

Under each element, a concise statement of the material facts necessary to meet that element as to which the moving party contends no genuine issue exists…. Each asserted fact must be presented in an individually numbered paragraph that cites with particularity the evidence in the record supporting each factual assertion.[31]

         On June 18, 2015, an email was sent to counsel with a summary set of undisputed facts incorporating the parties' filings and complying with the local rule. That summary was reviewed at the start of the June 23, 2015 hearing.[32] This collection of undisputed facts was finalized based on discussion at the hearing.[33] The headings in these Undisputed Facts are descriptive, not declaratory or substantive, and are taken from the elements of a claim for breach of contract.

         Breach of Contract Claim Element 1: Existence of a Contractual Duty

         The Plan and Group Policy Provisions

         1. This case arises under the Utah School Boards Association Group Benefit Plan (the “Plan”), [34] Group Policy No. GLT-034943 (“Group Policy”), issued by Hartford to the Utah School Boards Association in order to fund the Plan's LTD benefits.[35]

         2. The Plan and Group Policy provide LTD benefits to eligible employees of the Utah School Boards Association, including the Sevier School District.[36]

         3. Benefits paid under the Group Policy are equal to 662/3% of a claimant's Pre-Disability Earnings, reduced by Other Income Benefits as defined by the Plan and Group Policy.[37]

         4. Benefits are payable under the terms of the Plan and Group Policy when:

1. [The participant] become[s] Disabled while insured under th[e] Plan;
2. [The participant is] disabled throughout the Elimination Period;
3. [The participant] remain[s] Disabled [90 days] beyond the Elimination Period;
4. [The participant is], and ha[s] been during the elimination Period, under the Regular Care of a Physician; and
5. [The participant] submit[s] Proof of Loss satisfactory to [Hartford].[38]

         5. The Plan defines “Disability” or “Disabled” as:

[D]uring the Elimination Period and for the next 24 months, [the participant is] prevented by:
1. accidental bodily injury;
2. sickness;
3. Mental Illness;
4. Substance Abuse; or
5. Pregnancy,
from performing one or more of the Essential Duties of [the participant's own] Occupation, and as a result [the participant's] Current Monthly Earnings are no more than 80% of [the participant's] Indexed Pre-disability Earnings.
After that, [the participant] must be so prevented from performing one or more of the Essential Duties of Any Occupation.[39]

         6. The Plan defines “Essential Duty” as:

[A] duty that:
1. is substantial, not incidental;
2. is fundamental or inherent to the occupation; and
3. cannot be reasonable omitted or changed.
To be at work for the number of hours in [the participant's] regularly scheduled workweek is also an Essential Duty.[40]

         7. The Plan defines “Any Occupation” as:

[A]n occupation for which [the participant is] qualified by education, training or experience, and that has an earnings potential greater than the amount equal to the lesser of the product of [the participant's] Indexed Pre-disability Earnings and the Benefit Percentage and the Maximum Monthly Benefit shown in the Schedule of Insurance.[41]

         8. Certain conditions are excluded from coverage under the Plan and Group Policy:

Are there any other limitations on coverage?
No benefit will be payable under the [P]lan for a Disability that is due to, contributed to by, or results from a Pre-existing Condition[.][42]
What Disabilities are not covered?
The [P]lan does not cover, and no benefit shall be paid for any Disability:
1. unless [the participant is] under the Regular Care of a Physician;
2. that is caused or contributed to by act of war (declared or not);
3. caused by [the participant's] commission of or attempt to commit a felony, or to which a contributing cause was [the participant] being engaged in an illegal occupation; or
4. caused or contributed to by an intentionally self inflicted injury.
If you are receiving or are eligible for benefits for a Disability under a prior disability [P]lan that:
1. was sponsored by the Employer, and
2. was terminated before the Effective Date of this [P]lan, no benefits will be payable for the Disability under this [P]lan.[43]

         9. A claimant for LTD benefits must submit a Proof of Loss.[44]

         10. The Proof of Loss includes documentation about the basis for the claim, including, among other things, the cause of the disability and “any and all medical information[.]”[45]

         11. The Proof of Loss “must be satisfactory” to Hartford.[46] Hartford is authorized to “request Proof of Loss throughout [a claimant's] Disability.”[47]

         12. Based on Williams's age at the time of her claim for LTD benefits, her maximum period of LTD benefits would be her normal retirement age of 66.[48]

         13. However, the Plan provides that LTD benefits will end on the date when a claimant is “no longer Disabled as defined.”[49]

         14. The Plan and Group Policy govern the “[f]inal interpretation of all provisions and coverages.”[50]

         Breach of Contract Claim Element 2: Performance of the Contract by Williams

         Proof of Loss

         15. In March 2011, Williams was employed by the Sevier School District as a Third Grade teacher and therefore a participant under the Plan.[51]

         16. Williams's last day of work for the Sevier School District was March 29, 2011, [52]after which she submitted a claim for LTD benefits under the Plan.[53]

         17. Pursuant to the terms of the Plan and Group Policy, Williams applied for LTD benefits alleging disability beginning in March 2011.[54]

         18. On July 6, 2011, Hartford received Williams's claim for LTD benefits.[55] The application for LTD benefits contained information from Williams, Williams's employer, and Williams's treating physicians.[56]

         19. Williams based her disability claim on “[p]ain and limited mobility in [her] right hip & leg - lower back pain.”[57]

         20. Williams offered proof of her disability satisfying the policy's definition of “Disability.”[58]

         Breach of Contract Claim Element 3: Breach of the Contract by Hartford

         Williams's LTD Claim

         21. Williams's family doctor, Dr. Dwight Inouye, completed an Attending Physician's Statement of Functionality (“APS”) dated April 25, 2011.[59]

         a. Dr. Inouye listed Williams's primary diagnoses as osteoarthritis of the right hip with a secondary diagnosis of hyperthyroidism.[60]

         b. Dr. Inouye indicated that Williams could not engage in prolonged sitting, standing, and bending.[61]

         22. Dr. Alan Colledge, Williams's orthopedist, completed an APS dated May 5, 2011.[62]

         a. Dr. Colledge indicated Williams's primary diagnoses as degenerative disk disease and osteoarthritis in the hip with a secondary diagnosis of hypothyroidism.[63]

         b. Dr. Colledge reported that, among other things, Williams was capable of sitting up to 30 minutes at a time up to 8 hours with breaks, and standing for 20 minutes at a time up to 2 hours with breaks.[64]

         23. On July 15, 2011, Hartford summarized the information received with Williams's LTD claim.[65]

         a. Hartford found that “[b]ased on the medical documentation, the [restrictions and limitations] appear reasonable and prevent [Williams] from performing her own occ[upation] throughout and beyond the [Elimination Period.]”[66]

         b. Hartford noted that “[Williams] has a progressive condition which appears to be more tolerable while not working (standing/walking) however, it appears that she can perform sed[entary]/light work with changing of position.”[67]

         c. Hartford decided to approve LTD benefits for Williams through May 2012.[68]

         d. Hartford also decided to refer the file to one of its vocational rehabilitation specialists for review “as it appears that [Williams] has at least sed[entary]/light work capacity.”[69]

         e. Hartford noted that “it is likely that [Williams] will not remain disabled throughout and beyond” the time of the change to the “Any Occupation” definition.[70]

         24. On July 15, 2011, Hartford informed Williams of its initial claim determination that her claim for LTD benefits was approved.[71]

         25. Hartford summarized the Plan's terms applicable to Williams's continued receipt of LTD benefits and informed Williams that the “Any Occupation” definition would take effect on June 13, 2013.[72]

         Hartford's Administration of Williams's LTD Claim After the Initial Approval

         26. On September 7, 2011, a Hartford Rehabilitation Case Manager interviewed Williams by telephone.[73]

         27. Williams stated that she had undergone surgery and treatment for thyroid cancer.[74]Williams told the Rehabilitation Case Manager that her cancer treatments had prevented medical treatment on her hip, and that she probably would need additional surgery for her parathyroidism.[75]

         28. On September 7, 2011, the Rehabilitation Case Manager provided her recommendations based on the telephone interview with Williams.[76]

         29. The Rehabilitation Case Manager closed the file from a vocational rehabilitation perspective for the time being because of the need for Williams's additional medical issues to be addressed.[77]

         30. The Rehabilitation Case Manager recommended obtaining updated medical records, and left open the possibility of considering vocational rehabilitation again in the future based on the status of Williams's treatment.[78]

         31. On September 22, 2011, Hartford's assigned Ability Analyst contacted Williams by telephone.[79]

         a. The Ability Analyst and Williams discussed the status of Williams's medical condition and functionality.[80]

         b. The Ability Analyst explained the change to the “Any Occupation” definition.[81] Williams stated that she “hope[d] to [return to work] in some capacity in the future, ” but did not “expect to [return to work in her] own occ[upation].”[82]

         32. On September 24, 2011, the Ability Analyst summarized her conclusions about the status of Williams's claim.[83]

         a. She found that it “remains reasonable that [Williams] is unable to perform her own occ[upation] as a teacher due to the prolonged/walking standing required.”[84]

         b. The Ability Analyst indicated that she would follow up after Williams's surgery to re-evaluate whether Williams continued to be disabled.[85]

         33. On September 29, 2011, the Ability Analyst's Manager reviewed and agreed with the Ability Analyst's assessment.[86]

         34. On November 18, 2011, the Ability Analyst again called Williams to check on her status.[87]

         a. Williams reported that she was still waiting to be released for hip surgery.[88] Williams stated that she had received a diagnosis of fibromyalgia.[89]

         b. The Ability Analyst told Williams that “the restrictions we have for her hip while disabling for her occ[upation] allow for sedentary work.”[90]

         35. On November 18, 2011, the Ability Analyst summarized her plan of action on Williams's claim in light of her telephone conversation with Williams.[91]

         a. She outlined the information received from Williams and expressed her view that Williams “does not appear to be medically stable yet.”[92]

         b. The Ability Analyst noted that she would seek updated medical information.[93]

         c. The Ability Analyst stated that “[o]nce [Williams] is stable medically, [we]

         will need to determine her limitations for possible referral to rehab.”[94]

         36. On November 21, 2011, the Ability Analyst's Manager summarized the future course of action regarding the claim based on the latest conversation with Williams.[95]

         a. The Manager indicated that she had requested updated medical information “to clarify [Williams's] functionality.”[96]

         b. The Manager also noted that it would call Williams about issues relating to Social Security Disability Insurance (“SSDI”) benefits.[97]

         37. On December 22, 2011, the Ability Analyst called Williams for an update on her condition.[98]

         38. On December 23, 2011, the Ability Analyst recorded her conclusions and plan based on her conversation with Williams.[99]

         a. The Ability Analyst felt that the evidence continued to support Williams not being able to perform the duties of her own occupation as a teacher.[100]

         b. The Ability Analyst indicated that she would “[c]ontinue to monitor [Williams's] condition[s] and surgery.”[101]

         39. Dr. Inouye completed another APS dated December 2, 2011.[102]

         a. Dr. Inouye changed Williams's primary diagnoses to fibromyalgia and right hip degeneration.[103]

         b. Dr. Inouye also added a secondary diagnosis of parathyroid ademma.[104]

         c. Dr. Inouye indicated that Williams was capable to sitting up to 4-5 hours per day, standing 1-2 hours per day, and walking up to 20 minutes.[105]

         d. Dr. Inouye reported that Williams did not have any psychiatric or cognitive impairment.[106]

         e. Dr. Inouye reported that Williams could not “participate in vocational rehabilitation services[, ]” including “worksite accommodations, identifying alternative work, and or retraining assistance[.]”[107]

         40. By a letter dated December 6, 2011, Hartford requested additional information from Dr. Inouye.[108]

         a. Hartford noted that Dr. Inouye's functional restrictions and limitations for Williams “would appear to allow [Williams] to work at least part time capacity.”[109]

         b. Hartford requested information to support Dr. Inouye's statement that Williams was incapable of participating in vocational rehabilitation.[110]

         41. On December 27, 2011, Hartford's Ability Analyst had two telephone conversations with Williams about the need for a response from Dr. Inouye, and Williams said that Dr. Inouye would not be in the office until her next office visit on January 3, 2012.[111]

         42. On December 30, 2012, the Hartford Team Leader, who supervised the Ability Analyst assigned to Williams's claim, summarized the status of Hartford's claim review, noting that Hartford would continue to seek updated information from Dr. Inouye, and that it was “unclear why [Williams] is unable to participate in [vocational rehabilitation].”[112]

         43. On January 8, 2012, Hartford sent a second request by fax to Dr. Inouye asking him “to clarify why [Williams] cannot participate in [vocational rehabilitation] within [the restrictions and limitations] provided on [his] prior APS” and requesting updated medical records.[113]

         44. On January 11, 2012, Dr. Inouye sent his response to Hartford.[114]

         a. Dr. Inouye described Williams as “very weak and fatigues very easily[.]”[115]

         b. Dr. Inouye stated that Williams had “chronic pain (moderate to severe)” which was “probably fibromyalgia.”[116]

         c. Dr. Inouye reported that Williams used a wheelchair on “any prolonged trips.”[117]

         d. Dr. Inouye added that Williams “is not a malingerer in any way.”[118]

         45. On January 19, 2012, the Ability Analyst recorded her assessment of the information received from Dr. Inouye and summarized Dr. Inouye's characterization of Williams's condition.[119]

         a. The Ability Analyst indicated that she would refer the file to a Medical Care Manager (“MCM”) “to determine if the [restrictions and limitations] as provided on the APS are supported and prevent [Williams] from even participating in [vocational rehabilitation].”[120]

         b. The Ability Analyst also decided to refer the file to Hartford's Investigation Unit, because Williams's “reported activity does not appear to be consistent with [Dr. Inouye's] note of req[uired] sitting down after 100 [feet] or less of walking, or use of wheelchair.”[121]

         46. On January 24, 2012, the MCM reported on her review of the medical records that Hartford had received from Williams's medical providers.[122] The MCM found:

insufficient medicals during the life of the claim to make an accurate functional assessment at this time. There is a gap in time between 4/25/11 to 10/24/11… when there are no medicals from Dr. Inouye ([Family Physician]) likely due to referral to Dr. Susan Maturlo (Endocrinology). Medicals needed to further clarify [Williams's] cancerous endocrine conditions, surgical involvement [with] need for radiation [treatment] and prognosis. Missing are Dr. [Richard] Jackson (Ortho[pedist]) medicals as appears per Dr. Inouye ([Family Physician]) this is [Williams's] current [treating] ortho[pedist] who may consider scoping [Williams's] right hip.[123]

         47. The MCM returned the file to the Ability Analyst in order to obtain additional medical records.[124]

         a. The Ability Analyst promptly followed up with Williams to obtain the contract information for her endocrinologist, Dr. Maturlo, and orthopedist, Dr. Jackson.[125]

         b. The Ability Analyst then contacted Dr. Jackson and Dr. Maturlo to obtain their records on Williams.[126]

         c. The Ability Analyst also requested updated medical records from Dr. Colledge, Dr. Inouye, and Dr. Jeffrey Wallentine.[127]

         d. Multiple requests were necessary before Hartford received the requested medical records from Williams's doctors.[128]

         48. On January 23 and 24, 2012, Triad Investigations, Inc. (“Triad”) conducted video surveillance of Williams's activities at the request of Hartford.[129]

         49. On March 7 and 8, 2012, Triad conducted a second video surveillance of Williams.[130]

         50. On April 19, 2012, a Hartford Field Investigator, Mike Morrell, interviewed Williams at her home.[131]

         a. In discussing her level of functionality, Williams said that various activities caused pain, but Williams denied needing any “special equipment.”[132]

         b. Mr. Morrell observed that Williams “was stable upon her feet and she stood without support[, ]” and that “[w]hile viewing the functionality videos, [she] stood for the entire 20 minutes it took to view the videos.”[133]

         c. Even though Williams “mentioned that many normal movements or body functions cause her a lot of pain[, she] never spontaneously complained of fatigue in [Mr. Morrell's] presence, and she did not display any objective signs of fatigue in [Mr. Morrell's] presence.”[134]

         d. Williams “did not display any objective signs of cognitive impairment, confusion, inability to concentrate, or lack of focus in [Mr. Morrell's] presence.”[135]

         e. Williams viewed and commented on the surveillance video.[136]

         f. Williams “noted that the things she did on the videos caused her a lot of pain, and we couldn't see that.”[137]

         g. Williams later sent a letter dated April 25, 2012, to Mr. Morrell in which she provided further comments on her activities during the video surveillance.[138]

         51. By a letter dated April 27, 2012, Williams sent a new APS to Hartford, which Dr. Inouye had completed.[139]

         a. Dr. Inouye indicated that Williams could sit for 30 minutes at a time with breaks and changes of position for 4-6 hours.[140]

         b. Dr. Inouye opined that Williams could stand for 30 minutes at a time with breaks and changes of position for a total of 2 hours.[141]

         c. Dr. Inouye stated that Williams's degree of functionality “depends on [the] day[.]”[142]

         52. On July 10, 2012, the Ability Analyst summarized the medical and investigative evidence in Williams's file, [143] noting that he would refer the file to an “MCM to review medical records, surveillance investigation findings and interview statement to help clarify [Williams's] current restrictions and limitations and her ability to return to work in [her] Own Occupation.”[144]

         53. On August 9, 2012, the MCM reported on her assessment of the file materials and provided a detailed summary of the evidence.[145]

         a. The MCM stated that the medical evidence “could support some degree of discomfort secondary to the underlying inflammatory processes however the findings do not support an impairment to function, nor the severe limitation to function as reported by [Dr. Inouye].”[146]

         b. The MCM felt that “[Williams's] observed activities and time away from home are in contrast to her self-reported limitations of walking 5 minutes and standing for 15-20 then needing to rest.”[147]

         c. The MCM had learned from Dr. Jackson's office that Williams had undergone a surgical procedure on her hip, but the office “could not confirm [the] specific procedure nor were they able to locate any activity restrictions.”[148]

         d. The MCM reported that additional medical information was necessary in order to determine Williams's functionality.[149]

         54. On September 11, 2012, Hartford received and reviewed Dr. Jackson's medical records, showing that Williams had a right hip arthroscopy on June 11, 2012.[150] Dr. Jackson reported that as of July 31, 2012, Williams was “doing well[.]”[151]

         55. On September 14, 2012, the MCM provided an updated assessment of Williams's medical records.[152]

         a. The MCM confirmed that Williams did not have future appointments scheduled with Dr. Jackson.[153]

         b. The MCM noted that she would contact Dr. Inouye and Dr. Jackson “for clarification of [Williams's] function[ality].”[154]

         c. The MCM stated that “[i]n light of the successful hip procedure [the] MCM [is] anticipating improvement in overall capabilities, less reported pain and no findings to support an inability to perform the sit/stand/walk activity required of a teacher.”[155]

         d. The MCM also indicated that Hartford would send the video surveillance to Dr. Inouye and Dr. Jackson for their review and comment.[156]

         56. Hartford decided that it needed an additional opinion “to clarify/update [Williams's] current maximum functional abilities[, ]” and contemplated scheduling an independent medical examination (“IME”) by an orthopedic specialist.[157]

         a. However, Hartford learned that there were “no orthopedic IME providers within 78 miles of [Williams's home].”[158]

         b. Hartford concluded that the available IME providers were too far away from Williams's home to require her participation in an IME, and therefore, decided to arrange for a physician peer review of Williams's claim.[159]

         57. On October 12, 2012, Hartford referred Williams's file to a third party vendor, BMI, in order to obtain an independent peer review.[160]

         a. Hartford requested that the peer reviewer opine about Williams's level of functionality based on the medical evidence and other information provided.[161]

         b. Hartford also asked the peer reviewer to “observe and note any consistencies/inconsistencies in comparing the subjective and objective findings versus the level of activity as seen in the surveillance [video].”[162]

         58. Dr. Robert Green, a Board Certified Orthopedic Surgeon, licensed to practice medicine in Florida, performed the peer review of Williams's claim for BMI and provided a report dated November 1, 2012.[163]

         a. Dr. Green spoke with Dr. Inouye.[164]

i. Dr. Inouye stated that Williams's “main problem is fibromyalgia[.]”[165]
ii. Dr. Inouye noted that surgery had addressed Williams's hyperparathyroidism and right hip pathology, and that surgery on the left hip was scheduled.[166]
iii. Dr. Inouye expressed his view that Williams is incapable of “return[ing] to the workforce in any capacity” due to fibromyalgia.[167]

         b. Dr. Green also spoke with Dr. Jackson who felt that Williams “certainly can return to a sedentary-type job as far as her hips are concerned, especially after she has the other hip [surgery] if he finds it necessary after doing an MRI and working her up.”[168]

         c. Dr. Green concluded that fibromyalgia was “a limiting factor[.]”[169]

         d. Dr. Green opined that Williams “should be able to start at four hours a day or 20 hours a week” with limitations relating to lifting, stooping, squatting, pushing, and pulling.[170]

         e. Dr. Green noted that “[i]t is possible that [Williams] may eventually be able to increase the amount of time per day she is able to function.”[171]

         59. On November 8, 2012, the MCM reviewed and summarized Dr. Green's report.[172]

         a. The MCM returned the file for continued administration.[173]

         b. The MCM identified Williams's primary diagnosis as osteoarthritis with a secondary diagnosis of fibromyalgia.[174]

         60. On December 21, 2012, the Ability Analyst reviewed the status of Williams's claim.[175]

         a. The Ability Analyst noted Dr. Green's opinion that Williams had the capacity to return to part-time sedentary work.[176]

         b. The Ability Analyst also indicated that it was “not clear if [Williams] will regain enough capability to do full time sedentary work by [the effective date of the Plan's “Any Occupation” definition].”[177]

         c. The Ability Analyst documented his plan to begin the investigation of whether Williams would continue to be disabled under the Plan's “Any Occupation” definition.[178]

         Hartford's Any Occupation Investigation

         61. On December 21, 2012, the Ability Analyst took several actions to begin the investigation of whether Williams would continue to be disabled under the Plan's “ Any Occupation” definition.[179]

         a. The Ability Analyst sent a letter to Williams informing her that the Plan's “Any Occupation” definition would take effect on June 17, 2013.[180]

         b. The Ability Analyst summarized the applicable terms of the Plan and requested updated information.[181]

         c. The Ability Analyst also sent letters to Williams's physicians requesting updated information.[182]

         d. The Ability Analyst also sent a letter to Williams requesting her assistance in obtaining the updated records from Dr. Inouye and Dr. Jackson.[183]

         e. The Ability Analyst also interviewed Williams by telephone regarding her medical condition.[184]

         62. On January 4, 2013, the Ability Analyst's Manager reviewed the issues relating to the Any Occupation investigation.[185]

         a. Based on the information received from Williams's treating physicians and Dr. Green's the independent peer review, the Manager noted that Williams's “return to part time sedentary functionality would be anticipated around [January to February 2013]” if the scheduled November 16, 2012 surgery on her left hip occurred.[186]

         b. The Manager indicated that the claim would be transferred to a new Ability Analyst with a specialty appropriate to Williams's conditions.[187]

         c. The Manager recommended obtaining Dr. Jackson's latest office visit notes in order to evaluate “if functionality has returned to [part-time] or [full-time] sedentary levels.”[188]

         63. On January 30, 2013, the new Ability Analyst documented the status of the Any Occupation investigation and summarized the information received and information still needed.[189]

         a. The Ability Analyst stated that “[o]nce we receive all [medical records], it appears an IME would be the most appropriate step to confirm that [restrictions and limitations] are supported.”[190]

         b. The Ability Analyst noted that Williams “has been participating in [part-time work], so it appears that [she] would have had improvement in functionality greater than part-time sed[entary] work.”[191]

         c. The Ability Analyst outlined a planned future course of conduct in the Any Occupation investigation.[192]

         64. On February 19, 2013, the Ability Analyst summarized the information on file regarding Williams's claim in anticipation of a “Roundtable” discussion.[193]

         65. On February 21, 2013, the Manger and the Ability Analyst had a “Roundtable” discussion of Williams's claim.[194]

         a. The Manager and the Ability Analyst decided to “refer [Williams's file] to [the] MCM to clarify what is impacting functionality with regards to finger/handle and reaching.”[195]

         b. The Manager noted that Dr. Inouye had “not really addressed the objective testing to validate these limitation[s].”[196]

         c. The Ability Analyst would ask the MCM “whether any change in functionality would be expected from the past peer review, ” and “if no change in functionality would be expected and restrictions [are] reasonable, ” the Analyst Ability would refer Williams's file for an Employability Analysis Report.[197]

         66. On February 22, 2013, the Ability Analyst referred Williams's file to the MCM.[198]

         67. On February 28, 2013, the MCM reported on her review of Williams's file.[199]

         a. The MCM summarized the medical evidence.[200]

         b. The MCM noted that she would contact Dr. Inouye in an attempt to clarify Williams's functionality.[201]

         c. The MCM observed that “[i]t is possible that [Williams] may have had some increases in her functionality since the prior peer review [of Dr. Green] was performed.”[202]

         68. On February 20, 2013, the MCM sent a fax to Dr. Inouye requesting clarification of Williams's functionality.[203]

         69. On March 7, 2013, the MCM contacted Dr. Inouye's office to follow up on the request, and resent the request.[204]

         70. On March 14, 2013, the MCM again contacted Dr. Inouye's office to confirm receipt of the request.[205]

         71. On March 21, 2013, the MCM reported that she had not yet received a response from Dr. Inouye to her request seeking classification of Williams's functionality.[206]

         a. The MCM indicated that she would discuss with the Ability Analyst about whether to refer Williams's file to a peer review vendor “to further clarify functionality of any occ[upation].”[207]

         b. The Ability Analyst agreed with the plan to refer Williams's file “for peer review as we have not received response from [Dr. Inouye] to clarify [restrictions and limitations].”[208]

         72. On April 2, 2013, Hartford referred the file to a third party vendor, MES Solutions, in order to obtain a new independent medical peer review[209] and sent letters to Dr. Inouye and Dr. Jackson notifying them to expect a telephone call from the independent medical consultant.[210]

         73. MES Solutions assigned the peer review to Dr. Siva Ayyar, who is Board Certified in Occupational Medicine and has licenses to practice medicine in California, Florida, Ohio, Tennessee, and Texas.[211]

         74. Dr. Ayyar submitted a detailed report dated April 24, 2013.[212]

         a. Dr. Ayyar left voice mail messages for Dr. Inouye, but the calls were not returned.[213]

         b. Dr. Ayyar was able to speak with Dr. Jackson.[214]

i. Dr. Jackson reported that Williams's “hip issues have essentially been treated to resolution.”[215]
ii. Dr. Jackson told Dr. Ayyar that “[h]e is not a proponent of [Williams's] LTD claim.”[216]
iii. Dr. Jackson suggested that Dr. Ayyar contact Dr. Joseph Richey, who was treating Williams's low back pain.[217]

         c. Dr. Ayyar noted that Dr. Jackson “affirmed [his] conclusion that the hip issues were a temporarily limiting concern, as opposed to a continuously limiting concern.”[218]

         d. Dr. Ayyar summarized the medical records.[219]

         e. Dr. Ayyar stated that Williams would not have been able to perform any work for two weeks immediately following her hip surgery on November 16, 2012.[220]

         f. Dr. Ayyar identified restrictions and limitations relating to the postoperative recovery period, “December 1, 2012 to March 31, 2013[.]”[221]

         g. Dr. Ayyar indicated that he lacked sufficient medical evidence to extend the restrictions and limitations beyond April 1, 2013.[222]

         h. Dr. Ayyar stated that the nature of Williams's “functional, technical, and/or anatomic outcomes” would determine what, if any, restrictions and limitations would be appropriate after April 1, 2013.[223]

         75. On April 25, 2013, the MCM reviewed and summarized Dr. Ayyar's report[224] and sent a letter to Dr. Inouye asking Dr. Inouye to review the summary and provide any comments and remarks.[225]

         76. On April 25, 2013, the MCM also called Dr. Inouye's office in order to confirm receipt of her letter dated April 25, 2013.[226]

         77. On April 30, 2013, the Ability Analyst spoke with Williams about the status of the claim review.[227]

         a. The Ability Analyst informed Williams of Dr. Ayyar's conclusions, and that Hartford was awaiting Dr. Inouye's comments.[228]

         b. Williams asked whether her receipt of SSDI benefits played a role in Hartford's determination.[229]

         c. The Ability Analyst explained that “the SSA and Hartford have different definitions of disability and different ways to make a decision[, ]” and that Hartford “do[es] not make [its] decision based on [the] SSA[']s decision.”[230]

         78. On May 1, 2013, Williams again spoke with the Ability Analyst.[231]

         a. Williams discussed her referral to Dr. Richey regarding her back pain and said that she was scheduled to see him on May 7, 2013, regarding the results of an MRI.[232]

         b. Williams asked whether Hartford considered her “whole health condition[.]”[233]

         c. The Ability Analyst responded that Hartford “would take into consideration [the] totality of all medical condition[s].”[234]

         d. Williams stated that Dr. Inouye disagreed with Dr. Ayyar, and that he would provide a response.[235]

         e. Based on her conversation with Williams, the Ability Analyst noted that she would seek the records of Dr. Jackson and Dr. Richey referenced by Williams.[236]

         f. The Ability Analyst commented that “Hartford will need this information as it could potentially change [the Any Occupation] decision.”[237]

         79. Dr. Inouye responded to the MCM's letter by letter dated April 30, 2013.[238]

         a. Dr. Inouye provided a short overview of Williams's diagnoses.[239]

         b. Dr. Inouye neither addressed any specific points in Dr. Ayyar's report nor cited any medical evidence supporting his opinions.[240]

         c. Instead, Dr. Inouye generally attacked the ability of a peer review physician to comment on Williams's medical condition.[241]

         d. Dr. Inouye reiterated his opinion that Williams “is disabled currently[, and that s]he cannot in any way continue to work as a teacher.”[242]

         80. On May 8, 2013, the MCM documented her review of Dr. Inouye's response, [243]noting that he had not provided “additional medical records… for further review.”[244]

         81. On May 9, 2013, Williams and the Ability Analyst spoke about Williams's recent visit with Dr. Richey.[245]

         a. The Ability Analyst noted that Hartford was continuing its review of whether Williams would continue to be disabled after June 17, 2013, under the “Any Occupation” definition.[246]

         b. Williams expressed her view that her back condition would prevent her from doing any type of work.[247]

         c. The Ability Analyst told Williams that she would need to review the medical information from Dr. Richey.[248]

         82. On May 15, 2013, the Ability Analyst received a letter from Williams and medical records from Dr. Jackson and Dr. Richey, and forwarded the new materials to the MCM.[249]

         83. On May 15, 2013, Williams called the Ability Analyst to tell her that additional medical information would be available the following week.[250] Hartford and Williams had follow up telephone conversations about the status of those materials.[251]

         84. On May 21, 2013, Hartford received the additional medical records, and the Ability Analyst referred them to the MCM for review.[252]

         85. The MCM reviewed the additional medical records and recommended their referral to Dr. Ayyar for an addendum review.[253]

         86. Hartford then referred the additional medical records to MES Solutions for an addendum review.[254]

         87. On June 4, 2013, Dr. Ayyar submitted an addendum report.[255]

         a. Dr. Ayyar again tried to speak with Dr. Inouye, but was unsuccessful.[256]

         b. Dr. Ayyar reviewed and summarized the 101 pages of new information.[257]

         c. Dr. Ayyar found evidence of fatigue attributable to Williams's hypothyroidism and recommended some activity limitations for the period of May 6, 2013 to June 6, 2013, to allow a month for adjustment of Williams's hypothyroidism medication.[258]

         d. Dr. Ayyar stated that Williams's hip condition may “cause intermittent limitations and restrictions.”[259]

         e. Dr. Ayyar found no evidence to support restrictions or limitations attributable to Williams's back condition, citing the fact that the lumbar MRI was “essentially negative[.]”[260]

         f. Dr. Ayyar found that “[Williams's] thyroid cancer has seemingly been treated to resolution[.]”[261]

         88. On June 6, 2013, the Ability Analyst sent a letter to Dr. Inouye summarizing the findings in Dr. Ayyar's addendum report, [262] and referred the file for the preparation of an Employability Analysis Report.[263]

         89. On June 11, 2013, Sandra Shelton, MA, CRC prepared an Employability Analysis Report for Hartford, [264] based on the limitations offered by Dr. Ayyar and on the June 6, 2013 report of MCM-RN Michelle McNamara.[265]

         a. According to the Employability Analysis Report, Ms. Shelton considered the following limitations:

sit unlimited; stand/walk no more than 15 minutes continuously for total of 30 cumulative minutes per hour, maximum of 4 cumulative hours per day; lift up to 25 [pounds] up to 3 cumulative [hours] per day, up to 26 [pounds] or more up to 30 cumulative minutes per day; occasionally kneel, squat, bend or stoop maximum of 2 [hours] per day; activity not formally limited above should be considered unlimited. Ms. Williams is able to perform Sedentary demands 8 hours per day, 40 hours per week. There is no evidence to support cognitive and/or mental restrictions.[266]

         b. Ms. Shelton “identified 6 occupations within the Closest level; no occupations within the Good level; 77 occupations within the Fair level; and 205 occupations within the Potential level[, ]” and provided a “representative sample of occupations that meet [Williams's] profile[.]”[267]

         c. Ms. Shelton opined that Williams could perform work as a Teacher, Elementary School-Williams's past occupation; Teacher, Mentally Impaired; Teacher; Vocational Training; and Teacher, Learning Disabled.[268]

         d. Ms. Shelton also opined Williams could perform work as a Jacket Preparer, which was categorized as a “Potential” level occupation.[269] According to the Employability Analysis Report's Transferability Table, a “Potential” level occupation has low transferability, requiring plan development and training, and training in tools and materials is required.[270]

         e. Ms. Shelton stated that “[e]ach occupation is within the restrictions/limitations provided by Dr. Ayyar.”[271]

         f. Ms. Shelton also stated that the job of Jacket Preparer “requires no experience or education” and “can be performed with short on-the-job training” despite its classification as a “Potential” level occupation.[272]

         90. On June 13, 2013, Hartford informed Williams of its determination that she was “not Disabled from [her own] Occupation effective [June 12, 2013] and will not be Disabled from Any Occupation as of [June 17, 2013].”[273]

         a. Hartford acknowledged that Williams had received SSDI benefits, but stated that “[t]he standards governing these public and private benefits are different in critical ways.”[274]

         b. Hartford indicated that it had considered “the SSA's disability determination as one piece of relevant evidence, ” but added that “the SSA's determination is not conclusive.”[275]

         c. Hartford went on to summarize the relevant terms of the Plan and the information it considered.[276]

         d. Hartford determined that the payment of LTD benefits to Williams would end on June 12, 2013.[277]

         e. According to the termination, Williams could perform her own occupation as a Teacher, Elementary School, as well as other occupations, listed as: Teacher, Mentally Impaired; Teacher; Vocational Training; Teacher, Learning Disabled; and Jacket Preparer.[278]

         Hartford's Determination of Williams's Appeal

         91. By a letter dated November 19, 2013, Williams's counsel submitted an appeal of the claim determination, arguing that Williams's medical records show that she has continuing problems with hypothyroidism, hip osteoarthritis, pain, and weakness.[279] Williams's counsel enclosed a Functional Capacity Evaluation, [280] as further proof of Williams's disability.[281]

         92. Hartford referred the file to a third party vendor, Reliable Review Services, for a new independent peer review.[282]

         93. Reliable Review Services assigned the peer review project to Dr. Joseph L. Rea, who is Board Certified in Occupational Medicine with licenses to practice medicine in Alabama and Texas.[283]

         94. Dr. Rea provided a report dated January 10, 2014.[284]

         a. Dr. Rea summarized Williams's clinical history.[285]

         b. Dr. Rea concluded that Williams should be capable of full-time work with various noted activity limitations from June 11, 2013, to the present.[286]

         95. On January 13, 2014, Hartford issued its determination on Williams's appeal.[287]

         a. Hartford noted the arguments on which Williams based her appeal and summarized the conclusions of Dr. Rea.[288]

         b. Hartford stated that “[a]lthough our previous decision was supported by the information we had at the time, we will reopen [Williams's] claim an extend benefits through [June 16, 2013, ]”[289] an additional five days, after which it denied Williams's appeal.[290]

         c. Hartford again concluded that “the medical information does not establish that [Williams] remained Disabled from performing [A]ny [O]ccupation as defined by the [Plan and Group P]olicy.”[291]

         d. Hartford found that “the weight of the information in [Williams's] file viewed as a whole supports that [she] is medically capable of performing at least full time sedentary work within the above noted limitations [of Dr. Rea] ...


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