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Marantz v. Permanente Medical Group Inc. Long Term Disability Plan

December 21, 2009


The opinion of the court was delivered by: James F. Holderman, Chief Judge


Plaintiff Dr. Susan Marantz originally filed this lawsuit on March 8, 2006 in the Central District of California against Life Insurance Company of North America ("LINA")*fn1 and Permanente Medical Group Inc. Long Term Disability Plan ("the Plan") (collectively "Defendants"), alleging violations of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq, based on LINA's termination of her long term disability ("LTD") benefits. On May 11, 2006, the Defendants moved to transfer venue to the Northern District of Illinois, and District Judge John F. Walter of the Central District of California granted that motion on May 31, 2006. District Judge James B. Moran, who was initially assigned to preside in this case, conducted a four-day bench trial in October 2008 and took this case under advisement. Judge Moran passed way on April 21, 2009 before he was able to issue a ruling in the trial. The case then was assigned to this court, who proceeded under Federal Rule of Civil Procedure 63. Pursuant to an agreement of counsel, this court reviewed the October 2008 trial record and on December 4, 2009 heard further testimony from Dr. Marantz as well as final arguments of counsel. After considering the evidence in the record, Dr. Marantz's testimony, and counsel's final arguments, the court finds in favor of the Defendants and against Dr. Marantz on her claim that she is entitled to benefits under the Plan's LTD policy. The court directs that judgment be entered accordingly for the reasons set forth in this memorandum opinion.


Prior to August 1999, Dr. Marantz worked full-time as Chief of Pulmonary and Critical Care Medicine at Kaiser Permanente Hospital in California. In that position, Dr. Marantz split her time between working in the Kaiser Permanente clinic and hospital (Trial Tr. 30:11-25) and treated both in-patient and out-patient pulmonary patients, including performing physical procedures such as bronchoscopes, intubations, and inserting arterial lines (id. at 31:1-33:21). During her employment at Kaiser Permanente, Dr. Marantz also worked as the department's Assistant Head of Quality Assurance and spent a year as the Director of Utilization. (Id. at 37:1-9.) As the Director of Utilization, Dr. Marantz consulted with the nurses running the department to determine whether the amount of money spent on patients was being properly utilized consistent with medically accepted practices. (Id. at 37:10-23.)

As a benefit of her employment, Dr. Marantz had LTD coverage under the Plan, which is an "employee welfare benefit plan" under ERISA, 29 U.S.C. § 1002(1). LINA issued a group insurance policy ("the Policy") that funded the LTD benefits provided by the Plan. Under the terms of the Policy, an employee is eligible for LTD benefits if he or she meets the following definition of disability:

For purposes of coverage under the Policy, you are Disabled if, because of Injury or Sickness, you are unable to perform all the material duties of your regular occupation, or solely due to Injury of Sickness, you are unable to earn more than 80% of your Indexed Covered Earnings.

After Disability Benefits have been payable for 60 months, you are Disabled if your Injury or Sickness makes you unable to perform all the material duties of any occupation for which you may reasonably become qualified based on education, training or experience, or solely due to Injury or Sickness, you are unable to earn more than 80% of your Indexed Covered Earnings.*fn2 (Defs.' Ex. 1 at L1421.)

In December 1997, Dr. Marantz underwent back surgery for herniated intervertebral discs. (Trial Tr. 34:3-35:1.) Thereafter, Dr. Marantz continued to experience back pain, and in August 1999 she ceased working full-time as a critical care pulmonologist. (Id. at 38:7-39:7.) In October 1999, she filed a claim with LINA, the claim administrator for the Plan, seeking LTD benefits under the Plan. (L1356-74.) According to Dr. Marantz, radiculopathy, pain, and paresthesia prevented her from performing her occupational duties as the Chief of Pulmonary and Critical Care Medicine. (Id. at L1361-62.) LINA accepted this claim on behalf of the Plan and began paying Dr. Marantz's LTD benefits effective February 2000. (L1243.) In July 2000, Dr. Marantz underwent a second back surgery. (Trial Tr. 39:19-20.)

In November 2000, Dr. Marantz asked LINA to provide partial funding for her to enroll in Johns Hopkins University's online Masters of Public Health program, which would allow her to re-train for a medical position that was less physically demanding than pulmonary medicine.

(L1186-87.) LINA ultimately contributed approximately $26,000 toward the tuition and fees for that program. (Defs.' Ex. 7 at L093, L1178-79.)

In July 2001, Dr. Marantz began working part-time at the Illinois Department of Public Health, where she held the titles of Medical Director of the Bureau of Medical Programs and Medical Director of the Tuberculosis Program. (Trial Tr. 24:1-18; L435; L1092; L1102-03.) While working for the Illinois Department of Public Health, Dr. Marantz pursued her Masters Degree in Public Health, which she ultimately received in 2004. (Trial Tr. 24:19-25:1; 26:17-24.)

For the sixty month period from February 2000 to February 2005, LINA paid Dr. Marantz disability benefits under the definition of "disability" applicable to that time period. During that period, LINA also periodically asked Dr. Marantz's treating physicians to assess her condition. In March 2001, physiatrist Kirk Pappas, M.D., stated that Dr. Marantz could occasionally (up to 2.5 hours) sit, stand, walk, climb, and reach in an eight hour day. (Defs.' Ex. 6 at L1148.) In April 2001, Dr. Pappas stated he believed that Dr. Marantz was a suitable candidate for rehabilitation. (L1142-44 at L1143.) In September 2001, Joseph Skom, M.D., another treating physician, found that Dr. Marantz was capable of performing clerical, administrative, and sedentary work and that she could sit for a couple of hours at a time. (Defs.' Ex. 8 at L1042.) Similarly, in November 2003, Rochelle M. Parker, M.D., reported that Dr. Marantz's limitations were moderate and would not preclude sedentary work. (Defs.' Ex. 9 at L579.)

In August 2004, LINA began an investigation to determine whether Dr. Marantz was entitled to continue receiving benefits under the more stringent definition of "disability" in the second paragraph of Dr. Marantz's policy quoted above which was scheduled to go into effect in February 2005. From November 29, 2004 to December 3, 2004, LINA hired an investigative firm, PhotoFax, to perform video surveillance on Dr. Marantz. (See Dec. 6, 2004 PhotoFax Surveillance Report, Defs.' Ex. 10.) The surveillance videos documented that Dr. Marantz was performing various activities after her part-time work day had concluded, such as dining with friends, shopping at various stores, getting into and out of her car without difficulty, sitting for extended periods of time, and loading groceries into her car, including on one occasion a twenty-four pack of canned dog food which weighed almost twenty pounds. (Defs.' Ex. 11.)

Then, in January 2005, LINA asked Dr. Marantz to undergo a functional capacity evaluation ("FCE"), which was conducted by Christi Burns, a licensed and registered occupational therapist employed by HealthSouth. (Trial Tr. 273:21-277:8; 278:8-15.) During the 2008 trial, Ms. Burns testified that an FCE consists of a battery of tests that "determine a patient's current physical and functional abilities and their potential to return to work." (Id. at 280:7-11.) Susan Keeshin, M.D., one of Dr. Marantz's treating physician who also testified during the 2008 trial, confirmed that FCEs provide such measurements. (Id. at 149:24-150:2.)

On April 4 and 5, 2005, Ms. Burns conducted Dr. Marantz's FCE. Based on the results of the FCE, Ms. Burns rated Dr. Marantz as being capable of performing "light work" under the U.S. Department of Labor's classification system. (Defs.' Ex. 14 at L443.) "Light work" is the category of work that is the second least physically demanding work. The ability to perform "light work" also indicates that Dr. Marantz can perform the least demanding work which is work in the category "sedentary work," and requires less strength and endurance than "light work." (Id.) Specifically, Ms. Burns determined that Dr. Marantz was able to engage in "constant" (i.e. 5.5 hours or more) sitting and "frequent" (i.e. 2.5 to 5.5 hours) standing and walking. (Id. at L445.)

Before and after the April 2005 FCE, Photofax again monitored Dr. Marantz. (See Apr. 29, 2005 PhotoFax Surveillance Report, Defs.' Ex. 15.) On April 2, 2005, the Photofax surveillance video captured Dr. Marantz going to Home Depot, Neiman Marcus, Loehmann's, and Nordstrom Rack. (Defs.' Ex. 16.) On April 3, 2005, the surveillance videos show Dr. Marantz riding a stationary bike at a cycling class at Lifetime Fitness Gym. (Id.) Finally, on April 5, 2005, immediately following the completion of the FCE, the videos capture Dr. Marantz stopping at a fur store and shopping at PetCo. (Id.)

On April 19, 2005, LINA's medical director, Robert Manolakas, M.D., reviewed Dr. Marantz's file, including the FCE. Dr. Manolakas determined that Dr. Marantz could perform full-time sedentary to light work because (a) Dr. Marantz was not currently under a physician's care for low back pain; (b) she was working part-time and exercising; (c) although an MRI showed stenosis and disc disease, her spine was stable and her neurological exam, strength, reflexes, and sensation were normal; (d) no neuromuscular atrophy in the lower extremities had been documented; and (e) she was on weak analgesics but inconsistently claimed to suffer from debilitating physical pain. (Defs.' Ex. 17.) Dr. Manolakas never physically examined Dr. Marantz. (See Manolakas Dep. 8:1-19; 9:16-10:7, Mar. 2, 2007.)

On April 21, 2005, Dr. Marantz's case manager from LINA, John Buchanan, faxed the FCE report to Elizabeth Anderson, M.D., an internist who had been Dr. Marantz's treating physician since September 2004. (Defs.' Ex. 45, Anderson Dep. 41:12-16, Oct. 2, 2008; Defs.' Ex. 18.) In his cover letter, Mr. Buchanan informed Dr. Anderson that Dr. Manolakas would contact her to discuss the FCE. (Defs.' Ex. 18.) Dr. Manolakas spoke with Dr. Anderson that same day. (See Defs.' Ex. 19; Anderson Dep. 30:11-33:5.)

Dr. Manolakas sent a letter to Dr. Anderson, dated April 21, 2005, summarizing their conversation. (Defs.' Ex. 19.) According to that letter, Dr. Anderson purportedly informed Dr. Manolakas that Dr. Marantz was physically capable of performing light demand work, i.e., she could physically sit and stand or walk for six hours cumulatively in an eight hour day, lift and carry up to twenty pounds from zero to one third of the time, and lift and carry ten pounds one third to two thirds of the time. (Id.) Additionally, the letter stated that Dr. Anderson agreed that Dr. Marantz had no other restrictions, either postural or manipulative. (Id.) Dr. Manolakas requested that Dr. Anderson amend any statements which she believed were inaccurate and fax him the corrected letter. (Id.)

Also on April 21, 2005, Margie Munoz, M.S., C.R.C., conducted a transferable skills analysis ("TSA") of Dr. Marantz at Mr. Buchanan's request. (Defs.' Ex. 20.) The TSA compared Dr. Marantz's skills, training, and physical capacities documented in the FCE with the job requirements for different occupations set forth in the Department of Labor's Enhanced Dictionary of Occupational Titles to determine what jobs Dr. Marantz could perform. (Id. at 424.) The TSA indicated that Dr. Marantz could perform the duties of a pulmonary medicine physician. (Id. at 425.)

In a letter dated April 21, 2005, Mr. Buchanan notified Dr. Marantz that LINA was terminating her LTD benefits because based on the results of the FCE, coupled with Dr. Anderson's and Dr. Manolakas's assessments, LINA had determined she did not meet the more stringent definition of "disabled" which went into effect in February 2005. (Defs.' Ex. 21.)

On April 26, 2005, Dr. Marantz sent LINA a letter disputing the termination and arguing that Dr. Anderson had only certified her ability to work four to six hours a day, which was insufficient to practice pulmonary medicine. (L302-04.) Dr. Marantz's April 26, 2005 letter also included an April 2002 report by Jeffrey Karasick, M.D., which he prepared for Dr. Marantz's private disability carrier, Unum Provident. (L305-06.) In that report, Dr. Karasick determined that Dr. Marantz's choice to cease practicing pulmonary critical care was reasonable but that she was able to perform activities of daily living "perfectly well." (Id. at L306.)

On April 27, 2005, Dr. Anderson faxed Dr. Manolakas an addendum to Dr. Manolakas's April 21, 2005 letter, stating that Dr. Marantz was unable to bend at the waist for longer than a few seconds and able to work only four to six hours per day. (Defs.' Ex. 22.) Dr. Manolakas again spoke with Dr. Anderson on April 29, 2005 regarding her addendum to his letter. During that conversation, Dr. Anderson told Dr. Manolakas that the additional limitations identified in her addendum "were based upon [Dr. Marantz's] self-report and not her own clinical assessment of the situation," and that she had not examined Dr. Marantz's back recently. (Defs.' Ex. 23; Anderson Dep. 40:6-15.) During her deposition, Dr. Anderson also explained that her statements to Dr. Manolokas were not intended to determine Dr. Marantz's disability:

[T]his doctor [Manolokas] called the office after hours. I didn't have the chart in front of me. And then when I understood what was happening was they were taking away her disability, I said, well, I wasn't really the person that made her disability; go back and review to the ...

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