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Holmstrom v. Metropolitan Life Insurance Co.

March 31, 2009

LANETTE HOLMSTROM, PLAINTIFF,
v.
METROPOLITAN LIFE INSURANCE COMPANY AND EXPERIAN INFORMATION SOLUTIONS, INC. EMPLOYEE WELFARE BENEFIT PLAN, DEFENDANT.
METROPOLITAN LIFE INSURANCE COMPANY COUNTER-PLAINTIFF
v.
LANETTE HOLMSTROM COUNTER-DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Lanette Holmstrom ("Holmstrom") filed a complaint initiating this action against Defendants Metropolitan Life Insurance Company ("Met Life") and Experian Information Solutions, Inc. Employee Welfare Benefit Plan (collectively "Defendants"). Defendants terminated Plaintiff's long term disability ("LTD") benefits and Plaintiff seeks review of that decision pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001, et seq. In addition to its answer, Met Life filed a one count counterclaim seeking to recover alleged overpayment of disability benefits to Plaintiff.

Currently pending before the Court are cross motions for summary judgment filed by Holmstrom [30] and Defendants [45]. Also before the Court is Defendant Metropolitan Life's motion for summary judgment on its counterclaim [45]. For the following reasons, Plaintiff's motion for summary judgment [30] is denied and Defendants' motion for summary judgment [45] is granted in its entirety.*fn1

I. Background*fn2

Plaintiff was employed by Experian Information Solutions, Inc. ("Experian") as a senior training specialist in Experian's Schaumburg, Illinois office. Pl. SOF ¶ 5; Def. SOF ¶ 8. In 1999, she moved to Missouri and continued to work for Experian from home. Def. SOF ¶ 8. Her employment with Experian continued until January 2000, when she stopped working in order to undergo surgery for her right ulnar nerve entrapment and neuropathy. Def. SOF ¶ 8; Pl. SOF ¶ 10. Defendant Experian Information Solutions, Inc. Employee Welfare Benefit Plan is the Plan Administrator of a group long term disability benefit plan ("the Plan") provided to eligible employees of Experian. Pl. SOF ¶ 6. As a benefit of her employment with Experian, Plaintiff received coverage under the Plan. Id. ¶ 8. Defendant Met Life is an insurance company authorized and engaged in the business of providing insurance in the State of Illinois. Id. ¶ 7. Met Life underwrote and insured the policy of disability insurance at issue here, which had an effective date of September 1, 1999, and acted as the claims administrator for that policy. Id.

The Plan

Under the Plan, disability is defined as follows: 'Disabled' or 'Disability' means that, due to sickness, pregnancy or accidental injury, you are receiving Appropriate Care and Treatment from a Doctor on a continuing basis; and 1. during your Elimination Period and the next 24 month period, you are unable to earn more than 80% of your Predisability Earnings or Indexed Predisability Earnings at your Own Occupation for any employer in your Local Economy' or 2. after the 24 months period, you are unable to earn more than 60% of your Indexed Predisability Earnings from any employer in your Local Economy at any gainful occupation for which you are reasonably qualified taking into your account your training, education, experience and Predisability Earnings. Your loss of earnings must be a direct result of your sickness, pregnancy or accidental injury. Economic factors such as, but not limited to, recession, job obsolescence, paycuts and job-sharing will not be considered in determining whether you meet the loss of earnings test.

Pl. SOF ¶ 9; Def. SOF ¶ 2.

The Plan also states that "Your Monthly Benefit is reduced by Other Income Benefits shown below." Def. SOF ¶ 5. Benefits received because of the participant's disability under the Federal Social Security Act are included as "Other Income Benefits." Id. The "Monthly Benefit" "will not be further reduced due to cost-of-living increases payable under Other Income Benefits after the correct reduction has been determined." Id. The participant must refund "an amount equal to any Overpayment which resulted from any period in which we were entitled to, but did not, reduce your Monthly Benefit." Id. The Plan also states that "[w]e have the right to recover from you any amount that we determine to be an Overpayment. You have the obligation to refund to us any such amount." Def. SOF ¶ 6.

Claim History

On December 15, 1999, neurologist Diane Cornelison, D.O., wrote a letter to Eric Lomax, M.D. following her examination of Plaintiff. Def. SOF ¶ 9; Pl. SOF ¶ 18. In the introduction, Dr. Cornelison noted that Holmstrom "has had ongoing numbness and tingling predominantly of the right hand of the fourth and fifth digits for approximately eight years, progressively worse" and the "numbness and tingling does awaken her and is aggravated with any type of repetitive movement." Pl. SOF ¶ 18; Pl. Resp. ¶ 9.*fn3 Based on a nerve conduction electromyogram ("EMG") study, Dr. Cornelison concluded as follows:

IMPRESSION: This is an abnormal study consistent with:

1. Right ulnar neuropathy, which is electrically mild to moderate with evidence of ongoing denervation. The compression appears to be about the ulnar groove and just distal to the ulnar groove.

2. There is no electrical evidence to support a right carpal tunnel syndrome.

3. There is no electrical evidence to support a left ulnar neuropathy.

4. There is no electrical evidence to support a right cervical radiculopathy.

CONCLUSION: We will refer back to you for possible surgical intervention. Def. SOF ¶ 9; Pl. SOF ¶ 18.

On January 5, 2000, Dr. Lomax performed surgery on Plaintiff in an attempt to correct her ulnar compression. Def. SOF ¶ 9; Pl. SOF ¶ 19. Following surgery, Met Life paid short term disability benefits to Holmstrom for twenty-six weeks, the maximum period under the Plan. Def. SOF ¶ 10; Pl. SOF ¶ 11. On April 20, 2000, Holmstrom visited Dr. Cornelison complaining of pain in her right elbow and wrist. Def. SOF ¶ 11. Dr. Cornelison noted "Tinel's was positive on examination over the ulnar nerves bilaterally" and injected the ulnar scarring with DepoMedrol. Pl. Resp. ¶ 11. Holmstrom then received another EMG from Dr. Cornelison on May 17, 2000, which noted "electrically mild" evidence of a nerve condition block adjacent to the scar tissue on Plaintiff's right elbow. Def. SOF ¶ 11; Pl. SOF ¶ 20. On June 6, 2000, Dr. Lomax performed surgery on Plaintiff to release a section of her ulnar nerve entrapped by scar tissue.

Def. SOF ¶ 12; Pl. SOF ¶ 20. Following the second surgery, Plaintiff was prescribed Percocet and Oxycontin, although she complained that the Oxycontin made her too nauseated. Id.

Met Life approved Holmstrom's claim for long term disability on June 27, 2000 at the rate of $2,591.78 per month. Def. SOF ¶ 13; Pl. SOF ¶ 12. On that same date Met Life noted "expected recovery time is at 6 weeks from [surgery] on 06/06/00." Def. SOF ¶ 13. Met Life's rationale for that date was Holmstrom's "[attending physician] states that [patient] will need 6 [weeks] to recover [status post] surgery on 06/06/00." Id.

On August 2, 2000, Dr. Lomax called Met Life and reported "his concern for [Holmstrom's] questionable disability." Def. SOF ¶ 14. He stated that "[Holmstrom] is not getting any better and she should be"; "her symptoms keep changing at every visit"; "at one occasion where [Holmstrom] approached him to shake hands, [she] had to think about not using the disabling arm"; and "there are no neurological or clinical problems that can be identified." Id. Dr. Lomax then requested that Met Life obtain a functional capacity evaluation ("FCE") to assess Plaintiff's physical capabilities. Id.

Holmstrom underwent an FCE on October 18 and 19, 2000. Def. SOF ¶ 15; Pl. SOF ¶ 22. The report stated:

Pain Behavior: Client presents with a very guarded/protective posturing of the right upper extremity in adduction, 90 degree elbow flexion with slight shoulder elevation. All lifts and carries were calculated and slow with minimal evidence of full right hand grasp for gross and fine motor activities. Client's pain behavior and c/o pain were consistent and directly related to activities that stressed the r. arm and hand during activity. Client demonstrates avoidance of active use of right upper extremity/hand unilaterally and as a bilateral asset.

Safety: Client demonstrated good body mechanics and evidenced understanding of safety techniques.

Quality of Movement: Slow, guarded and cautious. Transfer of hand dominance from right to left. Fatigue consistently throughout day one and day two as well as from day one to day two. Fine motor coordination/dexterity in the right is rigid and choppy and very laborious.

Significant Abilities: Sitting tolerance. Gross motor movement in a variety of planes void of the use of the bilateral upper extremities in stressed or prolonged positions. Good lower extremity and trunk ROM and strength. Excellent communication skills and evidences a self motivated and goal oriented approach to responsibilities.

Significant Defects: Bilateral upper extremity weakness and endurance. Poor bilateral fine motor dexterity and coordination with client attempting to compensate by changing hand dominance from right to left. Below average strength in the right hand for grip and low average in the left.

Job Description Explored: According to results of the FCE she best matches the definition of "sedentary" given by the Department of Labor. However, many sedentary jobs require varying levels of hand coordination, dexterity and strength. Please refer to the FCE report for results. Due to not having a more defined functional job description with specific critical demands, it is difficult to give a definitive job match Id. The FCE also noted that Holmstrom was able to maintain a sedentary position for 68% to 100% of an 8-hour workday and that she had no limitations in tests of lower extremity strength. Id.

On November 17, 2000, Met Life approved Holmstrom's claim for continued disability benefits under the "own occupation" standard. Def. SOF ¶ 16. Holmstrom states that she sought treatment at the Regional Center for Pain Management at Cox North between November 2000 and January 2001, when she allegedly received a variety of nerve blocks. Pl. SOF ¶ 23. Pursuant to a request by Met Life, Holmstrom submitted a report of her daily activities on January 8, 2001. Id. ¶ 24. In that report, Plaintiff stated that she was suffering from the following ailments: complete loss of use of dominant right arm and hand; deterioration of her left arm and hand; and situational (although not clinical) depression. Id. She also reported that the limitations were preventing her from caring for her son, preparing meals, and taking care of personal hygiene without assistance. Id. Finally, Plaintiff reported that she rarely left home for anything but medical appointments and that she was dependent on her husband to drive her. Id.

Holmstrom continued to see Dr. Lomax for pain management until the middle of 2001. Pl. SOF ¶ 25; Def. Resp. ¶ 25. Dr. Lomax prescribed several different medications including Oxyfast, Percocet, MScontin, Diazepam and Amitriptyline. Pl. SOF ¶ 25. During the period of her care under Dr. Lomax, Plaintiff was reporting pain at a severity level of up to 10 out of 10. Id. Holmstrom also saw her general physician, Dr. Arthur Hale from at least July 2000 to August 2001. Id. ¶ 26. In the charts from this period, Plaintiff complained of right hand pain, once stated that she had been very depressed and once complained of mild low back pain. Id. The charts also indicate that Holmstrom was taking pain medication. Id.

On November 13, 2001, Met Life informed Holmstrom that it would be evaluating her eligibility for disability benefits under the Plan's "any occupation" standard for disability. Def. SOF ¶ 17. Met Life therefore asked Plaintiff to have her current medical provider submit a Physical Capacity Evaluation Form, progress/treatment notes, and objective test results since June 6, 2000. Id. Holmstrom failed to comply with Met Life's request for proof of continued disability, and on March 6, 2002, Met Life denied her disability claim. Id. ¶ 18. On March 13, 2002, Holmstrom submitted 146 pages of documents to Met Life, including medical records from Dr. Lomax, Dr. Hale, and an orthopedic surgeon at Kansas State University, Dr. Bruce Toby. Id. ¶ 19. Met Life then reinstated Plaintiff's monthly benefit payments while evaluating her eligibility for benefits. Id.

Dr. Toby examined Plaintiff for the first time on June 20, 2001. Def. SOF ¶ 20. Dr. Toby noted that after her second surgery "she became even worse. She has been diagnosed as having reflex sympathetic dystrophy.*fn4 She has had a number of blocks, all of which have been unsuccessful. She is on a variety of pain medications * * *." Pl. Resp. ¶ 20. He also stated she "has had numerous electrodiagnostic studies. Her most recent electrodiagnostic study interestingly was reported by Dr. Varghese to show improved ulnar nerve conduction across the elbow. However, again the patient had a transposition, and comparisons might be difficult. The EMG component was unremarkable, except for increased polys noted." Pl. SOF ¶ 27. He went on to state that "[s]he has good range of motion of her elbow. She does not show obvious intrinsic atrophy. She has good range of motion of the wrist and fingers"; "[s]he seemed to have hypersensitivity over the course of the ulnar nerve, but does not have obvious signs of reflex sympathetic dystrophy." Def. SOF ¶ 20. At the conclusion of the treatment plan, Dr. Toby stated that since "she feels that she is making some improvement, we decided to do no surgeries at this point." Id.

Dr. Toby performed a follow-up examination on August 1, 2001. Def. SOF ¶ 21. The chart from that visit noted that Holmstrom complained of pain in her right arm "which just by touching, made her jump," and pain in her left arm. Id. The chart also noted that the most recent EMG study "did not show terrible signs of denervation," and that Holmstrom did not display the characteristic physical signs of CRPS. Id. ¶ 22. Specifically, he noted "[a]gain, her complaints are mostly subjective. Her hand does not show classic appearance of sympathetic maintained pain. There are no color changes, no excessive sweating, no coolness to touch." Id. Dr. Toby recommended that Holmstrom "stay away from surgery, refrain from taking large doses of narcotics and engage in outside activities." Id. ¶ 23. He thought "she should be treated for what I consider significant depression." Pl. Resp. ¶ 23. "[Holmstrom and her husband] should try to do maybe other outside activities, and not be overwhelmed by her subjective pain complaints. This is really not the answer that they were listening for. I am not sure exactly what they had in mind. I do not think that continuing large doses of narcotics would be advisable in this patient. I have nothing further to offer her." Def. SOF ¶ 23.

In July of 2001, Drs. Lomax and Hale included notes in their respective medical charts that Holmstrom was violating pain management agreements by seeking pain medication from more than one source. Def. SOF ¶¶ 24-25. On May 30, 2002, Holmstrom sent a facsimile to Met Life listing the history of her medical treatment to that point. Def. SOF ¶ 26. In that facsimile, she stated that after August 2001, she continued to see Dr. Toby for six months on a weekly basis and that he "continued to prescribe my pain medication however he was uneasy about the dosage of medication I was taking. In February of 2002 he discontinued giving me prescriptions. My family and I continued looking for new solutions." Id. In that same facsimile, Holmstrom stated that in January 2002 she saw Dr. Grillot, who "felt that the ulnar nerve was pinched to the wrist. He recommended surgery to release it." Id. ¶ 27. Holmstrom noted a visit for pain management on February 25, 2002, to Dr. Weber, who conducted an EMG which indicated that "both hands were below normal." Id. Holmstrom stated that Dr. Weber then wrote her "prescriptions and agreed to see me after Dr. Grillot performed the surgery on my right wrist." Id. The fax also indicated that Dr. Weber believed that Holmstrom was in Stage 1 of CRPS and prescribed her 100 mgs of methadone per day, but felt that the methadone had given her very little pain relief. Pl. Resp. ¶ 27. In the same fax, Holmstrom stated that on March 1, 2002, Dr. Grillot performed surgery on her right wrist because "the ulnar nerve was significantly pinched and the carpal nerve was mildly pinched. I have had follow-up visits with Dr. Grillot but I haven't really had pain relief from the surgery." Def. SOF ¶ 28; Pl. SOF ¶ 28. The fax continued:

March 15th, 2002 -- At Dr. Weber's referral I met with Dr. Carlson. Dr. Carlson and I talked for over an hour about my illness and the medications I've been taking. We talked about addiction and he felt that I was not addicted. He felt that I am in genuine pain and that I need genuine medication. He was confused as to why Dr. Weber had changed my medication to methadone. Unfortunately I could give him no answer. We discussed the dosage of methadone and he did not feel that it was at a therapeutic dosage. After we talked he said he did not need to continue to see me because he deals with addicted patients and I don't qualify. - I have continued to see Dr. Weber. He has tried a variety of different medications (most of which I had already tried). He upped my methadone to 120 mgs and then to 140 mgs. I continue to have pain and asked for more pain relief from the methadone, he will discontinue the methadone and give me nothing for pain relief.

Def. SOF ¶ 29.*fn5

On July 3, 2002, Met Life approved Holmstrom's claim for benefits under the "any occupation" definition of disability. Def. SOF ¶ 30. At some point in 2003, Holmstrom moved from Missouri to Alberta, Calgary. Holmstrom initially received medical care and treatment from Wiliam Grisdale, M.D., an internist, and, beginning in June of 2004, from Thomas Vant, M.D. Def. SOF ¶ 31. A letter from Dr. Grisdale to Dr. Vant stated that Holmstrom had CRPS, that her medications were methadone 250 mg three times per day, and that because she was not sleeping, Dr. Grisdale he had added 32 mg Dilaudid at bedtime. Id. ¶ 32. Dr. Vant worked with Holmstrom from July 2004 to April 2007 and prescribed methadone, hydrocodone, elavil, amitriptyline, and clonidine. Pl. SOF ¶ 29.

On May 6, 2005, Met Life began a periodic review of Holmstrom's ongoing eligibility for disability benefits. Def. SOF ¶ 33. It requested updated medical records, test results and a statement from her treating physician identifying her functional restrictions and limitations. Id. On June 8, 2005, Met Life received an Attending Physician Statement ("APS") and Physical Capacities Evaluation ("PCE") signed by Dr. Vant. Def. SOF ¶ 34; Pl. SOF ¶ 32. The APS indicated that Holmstrom's primary diagnosis was CRPS. Id. The APS also noted that, as a result of her medications, Holmstrom had "impaired cognition," which would affect her ability to perform the duties of her job and he concluded that she would be "unable to work again -- permanent disability." Pl. SOF ¶ 32; Pl. Resp. ¶ 34. Dr. Vant opined in the PCE that Holmstrom could not sit for more than one hour per day, stand for more than fifteen minutes per day, or walk for more than fifteen minutes per day due to pain from CRPS. Def. SOF ¶ 35. The report also indicated that Holmstrom would not be able to lift or carry any amount of weight, reach above shoulder level, or operate a motor vehicle. Pl. SOF ¶ 32. He finally indicated that Holmstrom could not use her right hand for repetitive action such as simple grasping, pushing and pulling, or fine manipulation. Pl. SOF ¶¶ 29, 32.

Met Life then consulted John Thomas, M.D., a physician board certified in physical medicine and rehabilitation. Def. SOF ¶ 36. His consultant review, dated July 7, 2005, answered the question "Does current medical information support a severity of impairments/level of limitations preventing Ms. Holmstrom from doing her own work?" Id. Dr. Thomas' report answered:

No. At this time, the only current information I have is a stand alone MetLife Attending Physician Statement of Disability 6/8/05 from Dr. Vant. This is the most restrictive APS in the file. It is without physical exam or accompanying office notes with physical examinations to clearly substantiate. It is without further or more recent testing results. It is without any other consultant or treatment activity notes -- neurology, physical therapy, pain management, etc. Therefore, it is a stand alone form only, without all of these usual, typical, ongoing care activity notes, it is unsubstantiated. I cannot correlate a current physical examination to the significant restrictions and limitations that Dr. Vant is placing on this form.

Def. SOF ¶ 36.

When asked to comment on current appropriate restrictions and limitations, Dr. Thomas stated:

Unable to do so. We certainly do have Dr. Vant's current restrictions and limitations. I am again without recent, detailed neuromuscoskeletal examination or any other supporting notes or test findings which would allow me to substantiate/fully explain these very significant restrictions and limitations offered by Dr. Vant 6/8/05.

Def. SOF ¶ 37.

Dr. Thomas also stated:

I contacted Dr. Vant's office 07/05/05. I spoke with one of his office staff who was very cordial and pleasant. I asked for, after introducing myself, copies of Dr. Vant's office notes beginning 07/06/04 up to the present. If that was not possible, I then asked to have Dr. Vant call me to discuss his findings so that I could try and correlate them with the severe restrictions that he is now issuing. I left both my phone number and an appropriate fax number for Dr. Vant's office to use. I did not receive a call back or receive faxed information the remainder of 07/05/05, on into 07/06/05, ending today 07/07/05.

Def. SOF ¶ 38.

Dr. Vant did not fax anything directly to Dr. Thomas, but did fax four pages of his office examination notes to Met Life on July 6, 2005 for the periods of July 6, 2004 -October 27, 2004 and March 22, 2005 -- June 8, 2005. Def. SOF ¶ 39. These office notes included: (i) March 22, 2005 -- Elavil 75 mg. one am two qhs. Dilaudid 8 mg IV qhs, Methadone 250 mg. tid. Increased numbness arm. EMG.; (ii) April 18, 2005 -- Still getting numbness, paresthesia. Trial of Topomax 25 g. Restart -- go slow and progress.; (iii) May 16, 2005 -- Increased pain, more numbness. On Topomax 25 mg bid. Increase to 75 mg/day. Increased hyperhydrosis in right arm.; and (iv) June 8, 2005 -- Refill of meds. Id.

On July 15, 2005, Met Life sent a fax of Dr. Thomas' Physician Consultation Review to Dr. Vant and requested that he provide medical documentation to support his position no later than July 29, 2005. Def. SOF ¶ 40. On August 5, 2005, Met Life declined Holmstrom's disability claim on the basis that Dr. Vant's restrictions and limitations were not supported by any objective findings and the file review concluded her restrictions and limitations were not severe enough to preclude working. Def. SOF ¶ 41; Pl. SOF ¶ 12.

On August 22, 2005, Dr. Vant faxed 24 pages of documents to Met Life. Def. SOF ΒΆ 42. Those pages included his office examination notes from July 6, 2004 -- July 20, 2005, a statement of medical history prepared by Holmstrom, a nuclear bone scan ...


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