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Wallace v. Select Group Insurance Trust

December 16, 2009

MICHAEL B. WALLACE, PLAINTIFF,
v.
SELECT GROUP INSURANCE TRUST, DEFENDANT.



The opinion of the court was delivered by: Opinion Jeanne E. Scott, U.S. District Judge

Pending before the Court are Defendant Select Group Insurance Trust's Motion for Summary Judgment (d/e 24) and Plaintiff Michael B. Wallace's Motion for Summary Judgment (d/e 27). Wallace's First Amended Complaint (d/e 10) seeks to recover disability benefits allegedly due under the terms of an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1971 (ERISA). See 29 U.S.C. § 1132(a)(1)(B). Both parties have moved for summary judgment. For the reasons set forth below, Defendant's Motion for Summary Judgment is allowed, and Plaintiff's Motion for Summary Judgment is denied.

BACKGROUND

Wallace participated in an employee welfare benefit plan (the Plan) as an employee of Converter Concepts, Inc. The Plan is administered by Unum Life Insurance Company of America (Unum). Unum insures the Plan through Policy No. 292000 issued to the Maine National Bank, as Trustee of Defendant Select Group Insurance Trust. The applicable Plan documents are included in the record. See Defendant's Appendix to Motion for Summary Judgment (d/e 25) (Defendant's Appendix), UACL00634-763, Policy No. 292000; UACL00567-595, Summary of Benefits; & UACL00767-787, Certificate of Coverage.*fn1

Beginning in late 2000 and early 2001, Wallace developed symptoms of persistent diarrhea and fatigue. On April 21, 2001, Wallace was diagnosed with human immunodeficiency virus (HIV). On June 25, 2001, Wallace submitted a long-term disability claim to Unum. The claim included an Employee's Statement, completed by Wallace, an Employer's Statement, completed by human resource manager Ruth Allensworth, and an Attending Physician's Statement, completed by Dr. Angela Clay. Defendant's Appendix, UACL00020-28. The Employer Statement indicated that Wallace had stopped working on March 22, 2001 due to illness. On the Employee Statement, Wallace indicated that he was unable to work because he was "weak." Id., UACL00021.

Dr. Clay's Statement indicated a diagnosis of Leukopenia, oral and esophageal candidiasis, thrombocytopenia, and high viral load for HIV. Defendant's Appendix, UACL00028. Dr. Clay noted Wallace's symptoms to be as follows: weakness, fatigue, nausea, vomiting, and diarrhea. Id. Dr. Clay stated the following restrictions for Wallace: caution with lifting and fatigue. Id., UACL00027. Dr. Clay also noted that Wallace might have difficulty with thought processing due to medication, which would resolve if at all present. Dr. Clay stated that Wallace was unable to do heavy lifting and that his limitations would vary day to day secondary to his reactions to medication. Id. With respect to a prognosis for recovery, Dr. Clay opined that improvement was "highly likely" once Wallace adjusted to the side effects of his medication and his white blood cells increased. Id. She indicated that Wallace had not achieved maximum medical improvement and that she expected to see fundamental changes in his condition in three to six months.

Upon receipt of Wallace's claim, Unum requested his medical records from various providers. Unum received records from Blessing Hospital, indicating in relevant part that Wallace had been hospitalized on March 14-15, 2001, based on a three-day history of vomiting and diarrhea with sore throat and intermittent fevers since the beginning of 2001. Defendant's Appendix, UACL00105-142. Wallace reported that he did not have a primary care physician, and he was seen by Dr. Clay in the hospital. Wallace's initial white blood cell count was 3.7, and he had a white blood cell count of 3.3 on the morning of March 15.*fn2 Wallace was treated with antibiotics and released on March 15, 2001, after reporting that he was feeling very well. Dr. Clay scheduled a follow up appointment for March 23, 2001.

Unum received records from Dr. Clay's office, Quincy Family Practice, which revealed that Wallace was seen by Quincy Family Practice doctors on February 24, 1998, June 21, 2000, August 2, 2000, March 23, 2001, and March 27, 2001. Defendant's Appendix, UACL00037-45. In relevant part, Wallace saw Dr. Clay on March 23, 2001, complaining of fatigue and fever up to 101 degrees following his hospital stay the previous week. Dr. Clay noted "HIV was neg. at the hospital." Id., UACL00044. Dr. Clay ordered blood tests and scheduled a follow up visit for the following week.

During a March 27, 2001 visit, Dr. Clay noted that Wallace's white blood count was 2.3. Defendant's Appendix, UACL00044. Wallace continued to complain of fatigue and report fever up to 101 degrees. Dr. Clay referred Wallace to an oncologist, noting a concern for leukemia. Wallace saw Dr. Woolridge, an oncologist, who ordered blood work and referred Wallace to the Infectious Diseases Clinic of the University of Missouri Hospitals and Clinics.

On April 20, 2001, Dr. George Koch and Dr. E. Dale Everett of the Infectious Diseases Clinic examined Wallace. Defendant's Appendix, UACL00082-83. They noted that two prior HIV tests had been negative; however, the doctors stated an impression of HIV seroconversion.*fn3 The doctors prescribed antiviral medications, Combivir and efavirenz. Wallace had a follow up appointment with Dr. Koch and a Dr. William Salzer on June 5, 2001. The progress notes from the appointment describe Wallace as newly diagnosed with HIV infection. Id., UACL00077. Wallace reported that he had been doing well, but he continued to complain of fatigue, which he characterized as possibly slightly improved since his last visit. The doctors directed follow-up in approximately three months. Id., UACL00078.

Unum sent Wallace a letter, dated August 3, 2001, confirming its decision to pay monthly long-term disability benefits under a reservation of rights while it evaluated whether Wallace's condition fell under the Plan's exclusion for pre-existing medical conditions. Defendant's Appendix, UACL00062-65. Unum began paying benefits effective June 21, 2001. In a letter, dated July 17, 2002, Unum informed Wallace that it had completed its review on the pre-existing condition issue and approved his claim for long-term disability benefits. Id., UACL00213. The letter also stated as follows: "You will receive monthly benefit payments as long as you continue to satisfy the definition of disability and all other policy provisions. It may be necessary for you to also submit additional information from time to time as continued proof of disability. Please refer to your policy under Section VI titled 'GENERAL POLICY PROVISIONS'." Id.

On May 8, 2002, while Unum's evaluation of the pre-existing condition issue was on-going, Unum sent Wallace a request for an updated certification of continued disability. Defendant's Appendix, UACL00206. Unum enclosed a medical supplemental statement form to be completed by Wallace and his attending physician and a capacities' form for the doctor to complete. Unum asked that the forms be returned within thirty days.

On July 19, 2002, a Unum representative attempted to telephone Wallace to inquire about the supplemental form that had not been returned. Defendant's Appendix, UACL00215. The call notes indicate that the representative was told she had the wrong number. When the representative called a secondary number in the file, it was disconnected. The representative attempted to telephone Wallace again on July 25, 2002, but there was no answer. Id., UACL00216. The call notes indicate that the representative planned to send Wallace a letter.

In a letter, dated August 6, 2002, Unum informed Wallace of its attempts to contact him regarding the medical supplemental statement form. Defendant's Appendix, UACL00221-22. The letter reminded Wallace that the Plan required proof of continued disability to be provided within thirty days of a request for such. The letter concluded as follows: "If you are interested in continued disability benefits please contact me immediately. If no contact has been made within 30 days from the date of this letter, it may be necessary to suspend any future benefit payments until we hear from you regarding your current medical treatment." Id., UACL00221.

Wallace contacted Unum by telephone on August 9, 2002, and asked Unum to resend the forms to him because he was unable to locate them. Defendant's Appendix, UACL00223. Unum resent the forms with a cover letter, dated August 12, 2002. Id., UACL00224. Unum asked that the forms be completed and returned by August 26, 2002.

The parties agree that Wallace provided Unum with a four-page supplemental statement on August 29, 2002. See Defendant's Appendix, UACL00227-30. Wallace's submission included a one-page Claimant's Statement and a one-page Attending Physician's Statement. In the Claimant's Statement, Wallace indicated that he was not able to return to work yet. Id., UACL00228. Wallace indicated that his illness impeded his ability to work as follows: "several fatigue, diarrhea, small fevers about once a month." Id. Wallace described his current activities as "Rest & try to do small walks daily." Id. Wallace noted that his current condition prevented him from caring for himself, but he failed to indicate how, despite being asked to do so. Wallace further indicated that no one provided him assistance. Wallace noted that he was awaiting a decision on Social Security disability benefits.

The Attending Physician's Statement was completed by Dr. William Salzer. Defendant's Appendix, UACL00227. Dr. Salzer indicated that Wallace sees a doctor in Quincy, Illinois, and that Salzer had not seen him in the previous nine months. Dr. Salzer noted that fatigue impaired Wallace's work capacity, but he did not complete the section relating to functional capacity.

In a letter, dated September 6, 2002, Unum informed Wallace that it was unable to continue benefits based on the limited information he provided regarding proof of on-going disability. Defendant's Appendix, UACL00234-36. Unum explained "The information you provided on August 29, 2002, from Dr. Salzer indicates that he has not seen you in nine months and that you are being treated by someone in Quincy, IL. The name of this doctor is not provided. In addition, no restrictions or limitations were provided." Id., UACL00235. Unum informed Wallace of his administrative appeal rights.

On September 20, 2002, Wallace, through Attorney Lucinda Awerkamp, submitted an appeal to Unum. Defendant's Appendix, UACL00253. Awerkamp submitted the following documents with the appeal: progress notes from Dr. Chaudhry, dated April 24, 2002; lab records from April 2002 and August 2002, and an Attending Physician's Statement completed by Dr. Chaudhry, dated September 17, 2002. Id., UACL00241-51. On the Attending Physician's Statement, Dr. Chaudhry noted a diagnosis of HIV, stated that Wallace had "limited physical endurance --ability to work depends upon nature of job available," and characterized Wallace's condition as "chronic" and "permanent." Id., UACL00241.

On September 26, 2002, Awerkamp forwarded Unum an Attending Physician's Statement completed by Dr. Clay, dated September 24, 2002. Defendant's Appendix, UACL00237 & UACL00239. Dr. Clay noted a diagnosis of HIV, fatigue, and general weakness. She characterized Wallace's restrictions as "Chronic Fatigue, HIV status." Id., UACL00239. Dr. Clay marked "Yes", in response to the question "Has patient been released to work in his/her occupation?" Id. However, Dr. Clay marked "No," in response to the follow-up question "In any occupation?" Id. Dr. Clay noted that Dr. Salzer did not release Wallace to work.

In October 2002, Glenda Lawson, R.N., reviewed the additional documentation that had been submitted in connection with Wallace's appeal. Defendant's Appendix, UACL00254-55. She noted that Wallace had a normal viral load and CD4 count in April and August 2002. Lawson opined that the records submitted failed to identify specific restrictions and limitations. She forwarded the records for physician review by Nancy Beecher, M.D.

On October 10, 2002, Dr. Nancy Beecher opined that Wallace's HIV was controlled. Defendant's Appendix, UACL00256. She noted Dr. Chaudhry's statement that Wallace had limited physical endurance and his ability to work depended on the type of job. Dr. Beecher recommended that Unum forward a copy of Wallace's job description to Dr. Chaudhry to obtain his opinion of Wallace's restrictions and limitations relating to his former position.

On October 16, 2002, Awerkamp faxed Unum records relating to an August 28, 2002, examination of Wallace by Dr. Chaudhry. Defendant's Appendix, UACL00258-66. The records indicate that Wallace was feeling well and had no new symptoms. Wallace reported that "[h]e still has good days and bad days when he feels tired and fatigued, and cannot really do very much which involves physical endurance. Also episodic diarrhea off and on, but this resolves on its own." Id., UACL00264. Dr. Chaudhry noted that Wallace looked "his normal self." Id., UACL00265. Dr. Chaudhry further noted as follows:

He brings disability forms for me to fill out. These pertain to a time period when I was not his physician, and are from his former employer, Converter Concepts who are now out of business. He was followed by Dr. Angela Clay at that time. I have suggested that he get new forms and take them to Dr. Clay's office to see what she can do to help him. I told him that it is not appropriate for me to fill out any kind of forms for him that pertain to a time period when I was not his physician.

Id., UACL00264.

On October 18, 2002, Unum sent Wallace a letter indicating that the supplemental information had been reviewed and that it was deemed insufficient to reverse the previous decision to discontinue benefits. Defendant's Appendix, UACL00268. However, the letter informed Wallace that the claim file was being submitted for appellate review.

On October 22, 2002, Awerkamp faxed Unum updated records from Dr. Clay and asked that the records be forwarded to the appeals unit. Defendant's Appendix, UACL00271-73. The records reveal that Wallace saw a Dr. M. Hoffman on September 10, 2002, because Dr. Clay was out of town. Dr. Hoffman noted that Wallace complained of a sore throat and fatigue and wanted disability forms filled out. Dr. Hoffman noted that Wallace had not seen Dr. Clay in over a year and that the office had no recent records on him. Dr. Hoffman did not feel comfortable filling out the disability forms, given his limited knowledge of the patient. Dr. Hoffman prescribed Augmentin, an antibiotic, for Wallace's sore throat and directed Wallace to follow up with Dr. Clay in two to three weeks. The records reveal that Wallace saw Dr. Clay on September 24, 2002.*fn4 Dr. Clay noted that Wallace's most recent viral load was still undetectable. Wallace complained of double vision when he was very tired. Dr. Clay told Wallace that he should see an ophthalmologist. She also discussed the need for Wallace to see an HIV specialist at least once a year. Dr. Clay filled out Wallace's long term disability form.

By fax dated November 1, 2002, Unum requested that Dr. Chaudhry review Wallace's position description and comment on current restrictions and limitations that would prevent Wallace from performing the duties of the position. Defendant's Appendix, UACL00281-89. Unum also requested "copies of all office notes, test results and consultative reports that support the information you have provided" and enclosed a release signed by Wallace. Id., UACL00281 & UACL00285.

Dr. Chaudhry responded by letter dated November 20, 2002. Defendant's Appendix, UACL00290-91. Dr. Chaudhry stated that, in formulating his response, he reviewed the job description and met with Wallace. With respect to current restrictions and limitations that would prevent Wallace from performing the duties of his position, Dr. Chaudhry noted as follows:

Mr. Wallace tells me that ever since his initial diagnosis he has been plagued by disabling fatigue, so much so that he cannot ambulate and move about normally. This apparently is pervasive and remains with him most of the time. Superimposed upon this are episodes that he relates consisting of high fevers, sore throat, increased visual blurring and slowness of thought. These episodes apparently can last for up to two weeks out of every month. The patient says that even the slightest activity will often result in disabling fatigue and total inability to walk. Even when feeling well he cannot walk more than 1 1/2 blocks. He also tells me that he cannot use his hands as described in your job analysis.

Therefore, for all the disability that the patient describes as detailed above, he would probably be unable to make independent judgments, and employ written, verbal and reasoning skills on a consistent basis. His vision is not likely to remain good on a consistent basis. He would probably be at ...


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