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Levin v. Sun Life Assurance Company of Canada

March 27, 2008


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


From May 17, 2004 to March 18, 2005, Plaintiff Michael Levin worked as a general manager for Diagnostic Products Corporation ("DPC") in China. During his employment, Levin was a participant in the Diagnostic Products Corporation Employee Group Benefits Plan (the "Plan"), an employee group benefits plan issued by Defendant Sun Life Assurance Company of Canada ("Sun Life"). In March 2005, several months after his insurance coverage began, recurring bouts of dysphagia and aspiration pneumonia forced Levin to stop working for DPC. He has been unable to work in any capacity since. In this action against Sun Life, Levin seeks "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. §1132(a)(1)(B). It is undisputed that, at all relevant times, the Plan constituted an "employee welfare benefit plan," as defined by 29 U.S.C. § 1002(1), and that Levin was covered under the Plan as a "participant," as defined by 29 U.S.C. § 1002(7). (See Ans. ¶ 8.) Accordingly, the Employee Retirement Income Security Act of 1974 ("ERISA") governs this dispute. It is also undisputed that Levin's condition was disabling. The parties' disagreement centers on whether Levin's claim for long-term disability benefits is barred by the Plan's pre-existing condition exclusion. For the reasons explained below, the court concludes that Levin's condition is subject to the Plan's pre-existing condition exclusion and therefore enters judgment for Sun Life and against Levin.


Sun Life has denied Levin's request for long-term disability benefits, on the ground that he suffers from a pre-existing condition, rendering him ineligible for benefits under the Plan's terms. Levin filed this action on May 10, 2006, seeking an order directing Sun Life to pay Levin disability and other employee benefits or, in the alternative, to review his appeal. (Docket Entry No. 1.) Levin also seeks prejudgment interest, an order compelling Sun Life to continue paying Levin benefits so long as he remains eligible for those benefits, an award of attorneys' fees, an award of costs, and any and all other relief to which he is entitled. (Id.) To resolve these claims, the parties opted to conduct a trial on the papers submitted to this court. (Docket Entries No. 30 & 32.) A trial on the papers is more akin to a bench trial than to a motion for summary judgment, and therefore governed by Federal Rule of Civil Procedure 52. Cent. States, Southeast & Southwest Areas Pension Fund v. Phencorp Reinsurance Co., 530 F. Supp. 2d 1008, 1010 (N.D. Ill. 2008). To conduct this trial on the papers, the court will review the stipulated record, resolve any disputes of fact, and determine the outcome of the case. See, e.g., Marshall v. Blue Cross Blue Shield Ass'n, No. 04 C 6395, 2006 WL 2661039, at *1-2 (N.D. Ill. Sept. 13, 2006) (concluding that a Rule 52 trial on the papers is appropriate procedure for resolving ERISA benefits disputes, absent objections from the parties). Here, the record is presented in seven documents: Plaintiff's opening trial brief, styled as a motion for summary judgment ("Pl.'s Tr. Br."); Plaintiff's statement of facts pursuant to Local Rule 56.1 ("Pl.'s 56.1"); Defendant's Trial Brief ("Def.'s Tr. Br."); response memoranda from each side ("Pl.'s Resp." and "Def.'s Resp."); the claim record; and the February 2, 2007 deposition of Dr. Diane Flamburis. The parties have stipulated to the court's consideration of those sources. (Docket Entries No. 30 & 32.) Upon consideration of these documents, the court sets forth the following findings of fact and conclusions of law pursuant to Rule 52(a). See Cent. States, 530 F. Supp. 2d at 1010.


Levin's relevant medical history predates the Plan's coverage. In 1998, Levin received treatment--including surgery--from Dr. Harold Pelzer for mucoepidermoid carcinoma of the tongue. (LEVIN-CLAIM-048.) This is a form of salivary gland cancer. Mark H. Beers, ed. in chief, The Merck Manual of Diagnosis and Therapy 843 (18th ed. 2006). According to Dr. Pelzer, after undergoing a course of concurrent radiation and chemotherapy following his surgery, Levin was restored to "normal function." (LEVIN-CLAIM-048 & 398.) Following this treatment, Dr. Pelzer has stated that, until June 2004, Levin was symptom-free. (Id.) Sun Life does not claim that Levin's cancer constitutes a pre-existing condition for purposes of this action.

As noted, Levin began employment with DPC as a general manager, working in China, on May 17, 2004. (LEVIN-CLAIM-229 & 680.) Levin claims total disability as of March 19, 2005 (the date after his last day worked) attributable to aspiration pneumonia and dysphagia. (LEVIN-CLAIM-677 & 680.) Dysphagia is "is difficulty swallowing," which "results from impeded transport of liquids, solids, or both from the pharynx to the stomach." The Merck Manual at 108. Treatment for dysphagia is directed at the cause of the condition. Id. at 109. Sun Life points out that Dr. Christopher McMackin's notes regarding Levin's medical condition mention dysphagia as early as February 15, 2002. (LEVIN-CLAIM-590.) According to Sun Life, dysphagia can cause aspiration pneumonia, if it results in food being aspirated into an individual's breathing passages. (Def.'s Resp. at 1 n.1.) Aspiration pneumonia is in fact "caused by inhaling toxic substances, usually gastric contents into the lungs. The result may be undetectable or chemical pneumonitis, bacterial pneumonia, or airway obstruction. Symptoms include cough and dyspnea." The Merck Manual at 436. An individual whose ability to swallow is impaired is at increased risk for aspiration. Id.

The parties agree that Levin's dysphagia and resulting aspiration pneumonia are totally disabling. (LEVIN-CLAIM-686.) They agree, further, that Levin received short-term disability benefits under the Plan. (Ans. ¶¶ 10-11.) Since leaving his job with DPC, Levin has not resumed work, either for DPC or elsewhere (Pl.'s Tr. Br. at 2), and he therefore seeks long-term disability benefits. Sun Life denied Levin's long-term disability claim (claim number 120505-0511-00) on September 21, 2005. (LEVIN-CLAIM-677 to 687.) The basis for this denial--and the resulting litigation--is Sun Life's position that Levin's dysphagia and aspiration pneumonia were pre-existing conditions excluded from the scope of the Plan's coverage. Assessing this conclusion requires an analysis both of the Plan's language and of Levin's medical history.

I. The Plan

The Plan has an effective date of January 1, 2004. (LEVIN-BKLT-01.) The parties agree that it is an employee benefit plan sponsored by DPC for the benefit of its employees under Group Policy No. 88449. (Ans. ¶ 6.) Pursuant to the Plan, Sun Life, which issued the Plan, agrees to pay certain employee benefits in accordance with the Plan's terms, including long-term disability insurance for covered employees. (LEVIN-BKLT-01 & 06.) All full-time employees scheduled to work at least thirty hours per week are eligible for coverage on the first day of the month following the date of employment. (LEVIN-BKLT-04.) The extent of the available long-term disability coverage varies based on the employee's age at the time of his or disability (the specific amounts of coverage are not relevant to this action).

Levin claims that, as of March 19, 2005, he was totally disabled and therefore entitled to long-term disability benefits under the Plan. The Plan defines the term "total disability" as follows:

Total Disability or Totally Disabled means during the Elimination Period and the next 24 months, the Employee, because of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own Occupation. After Total or Partial Disability benefits combined have been paid for 24 months, the Employee will continue to be Totally Disabled if he is unable to perform with reasonable continuity any Gainful Occupation for which he is or becomes reasonably qualified for by education, training or experience. (LEVIN-BKLT-15.) The Plan defines the "elimination period" as a period of continuous days of total or partial disability for which no long-term disability benefit is payable. (LEVIN-BKLT-13.) The schedule of benefits for long-term disability income insurance specifies that the period is the later of either ninety days from the day of partial or total disability, or the end of the short-term disability maximum benefit period. (LEVIN-BKLT-06 & 13.) It is undisputed that, while Levin was covered under the Plan, Levin sought medical treatment for dysphagia and aspiration pneumonia, both in China and in the United States. (See Def.'s Tr. Br. at 8-9.) Nor does Sun Life contest that these conditions are, in fact, disabling to Levin.

Instead, Sun Life focuses on whether Levin is precluded from collecting benefits based on the Plan's pre-existing condition exclusion. That exclusion provides:

Pre-Existing Condition means during the 3 months prior to the Employee's Effective Date of Insurance the Employee: - received medical treatment, consultation, care or services, including diagnostic measures, or took prescribed drugs or medicines; or - had symptoms which would have caused an ordinarily prudent person to have consulted a health care provider for diagnosis, care or treatment. (LEVIN-BKLT-38.) Although neither party presses this point, on its face the exclusion appears to preclude coverage if an individual received any sort of medical treatment, consultation, care, or services--or experienced symptoms--regardless of whether the treatment or symptom relates to the condition that ultimately results in disability. Governing law limits the scope of the pre-existing condition exclusion, however, providing that such an exclusion "must relate to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care, or treatment was recommended or received within the" pre-existing condition period specified in the Plan. 29 C.F.R. § 2590.701-3(a)(2)(i). As neither party contests this, the court assumes that the Regulation's mandate is incorporated into the Plan's exclusion. The effective date of Levin's coverage under the Plan is June 1, 2004, which is the first day of the month following the start of his employment with DPC on May 17, 2004. (Def.'s Tr. Br. at 2; Pl.'s 56.1 ¶ 11.) As a result, the critical time runs from runs from March 1, 2004 through May 31, 2004 (hereafter the "pre-existing condition period"). (Def.'s Tr. Br. at 2; Pl.'s 56.1 ¶ 12.) Levin is disqualified from recovering benefits during that period if he received treatment for or had severe symptoms of the condition that now renders him disabled.

II. Levin's Medical History

During the pre-existing condition period, Levin visited two health care providers. First, Levin visited Dr. Harold Shrifter on May 20, 2004. (LEVIN-CLAIM-572.) During that examination, Levin reported to Dr. Shrifter that his appetite was "not changed" (though it is not clear from when) but that he was ingesting mostly liquids and soft foods. (Id.) To supplement this diet, Levin drank about four cans of Ensure (a nutritional shake) per day. (Id.) He avoided certain foods, because they got stuck in his esophagus, and, in particular, bread caused him to regurgitate. (Id.) Although no evidence supports or disproves this concern, Levin believed that he was losing weight. (Id.) Levin also suffered from dry mouth. (Id.) He did not smoke cigarettes or drink alcohol, and he reported being able to work out several times a week. (Id.) Levin did not suffer from coughing, chest pains, or palpitations. (Id.)

Levin also visited Dr. John M. Turner, a dentist, during the pre-existing condition period. (LEVIN-CLAIM-668.) On May 17, 2004, Levin had a cleaning appointment with Dr. Turner, who found that decay had "severely compromised" many of Levin's teeth. (LEVIN-CLAIM-668.) Dr. Turner attributed this to severely reduced salivary flow. (Id.) As a result, Dr. Turner prescribed an antibiotic (PennVK 500) for Levin to carry with him in case he had an emerging odontogenic infection--an infection arising in the teeth or tissue surrounding the teeth--while out of town or away from dental care. (Id.) Dr. Turner also prescribed the use of fluoride, to prevent future decay. (Id.) According to documentation Dr. Turner provided Sun Life, he explained to Levin that the prescription ...

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