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Counsell v. Liberty Life Assurance Company of Boston

March 31, 2010

THEA GRAM COUNSELL, PLAINTIFF,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON AND LIBERTY MUTUAL GROUP, INC. DEFENDANTS.



The opinion of the court was delivered by: Honorable Denise Page Hood

ORDER

I. INTRODUCTION

This matter is before the Court on cross-motions for entry of judgment based on the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff Thea Gram Counsell ("Counsell") filed a Motion for Judgment to Reinstate Long-Term Disability Benefits [Docket No. 15, filed on June 2, 2009]. Defendants Liberty Life Assurance Company of Boston and Liberty Mutual Group, Inc. filed a response on June 24, 2009 [Docket No. 20], to which Plaintiff filed a reply [Docket No. 23, filed on July 27, 2009]. Defendants filed a Motion for Entry of Judgment [Docket No. 14, filed on June 2, 2009]. Plaintiff filed a response on June 24, 2009 [Docket No. 21], to which Defendants filed a reply [Docket No. 24, filed on July 27, 2009].

II. STATEMENT OF FACTS

Plaintiff was employed as a Resident Sales Representative with Defendant Liberty Mutual.*fn1 As an employee, she was insured under the Liberty Mutual Long Term Disability Policy ("the Policy"). Under the Policy, "disability" or "disabled" means:

i. If the Covered person is eligible for the 18 Month Own Occupation, Benefit, "Disability" or "Disabled" means during the Elimination Period and the next 18 months of Disability the Covered Person is unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness; and

ii. After 18 months of benefits have been paid, the Covered Person is unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age and physical and mental capacity. (AR 6).

Plaintiff currently suffers from paraesophogeal hernia, suspected Marfan's syndrome, and major depression. As a result, she has undergone several operations and requires heavy medication. In August of 2003, after undergoing one of several surgeries, Plaintiff was deemed eligible to receive short-term disability benefits. On October 8, 2004, Plaintiff was approved for long-term disability benefits under the Policy. Within a few weeks of having been approved for benefits, Plaintiff states that she attempted to return to work on a part-time basis, under a plan established by her treating physician, Dr. Gayla Zoghlin, M.D. Due to surgical complications, she was unable to return to work, even on a part-time basis. Defendant Liberty Life ("Defendant") suspended partial disability payment to Plaintiff effective November 8, 2004, on the grounds that it had not received supporting medical documentation. On February 2, 2005, after receiving proof of Plaintiff's medical disability, Defendant reinstated disability benefits retroactive to November 8, 2004.

In April 2005, Plaintiff informed Defendant that she had undergone another surgery. Defendant requested medical records and treatment information from the surgeon, Dr. Borovoy, as well as other physicians identified by Plaintiff. In addition, Defendant retained an investigation company to conduct surveillance on Plaintiff during the summer of 2005. According to the resulting reports, a person thought to be Plaintiff was observed driving, walking, carrying packages, and engaging in functions that did not reflect significant physical impairment.

Defendant provided Plaintiff's medical records and video surveillance reports to independent physicians for review. These physicians were Dr. Herbert Malinoff, an internist, Dr. Manaj Mehta, an internist and gastroenterologist, and Dr. Gil Lichtshein, a neurologist and psychiatrist. Each physician opined that Plaintiff could work, at least in a sedentary position. The three reports were sent to Catherine Chandick, a member of Defendant's vocational rehabilitation department, for a determination of whether Plaintiff was capable of performing the occupation of resident sales representative. Based on these reports, Ms. Chandick concluded that the Plaintiff could perform the sedentary positions within her occupation.

On October 4, 2005, Defendant issued a letter discontinuing Plaintiff's disability benefits. In addition to providing summaries of the three physician's reports, the letter referenced the surveillance tape, informing Plaintiff that her activities had been observed. According to Defendant, it reached this conclusion on the grounds that Plaintiff did not meet the definition of "disability" under the Policy, because her condition did not prevent her from performing the material duties of her occupation of resident sales representative.

On April 25, 2006, Plaintiff appealed the decision. Plaintiff produced affidavits from herself, her husband, and Dr. Zoghlin, indicating that the person on the video was not Plaintiff, but rather Plaintiff's 23 year-old daughter. Plaintiff also submitted additional medical records including: four surgical reports regarding her esophageal surgeries; letters from Dr. Zoghlin and Dr. Borovoy stating that Plaintiff's medical records had been misinterpreted; the results of a Functional Capacities Evaluation concluding Plaintiff could sit, stand, and walk for a maximum of an hour; additional reports from a psychologist and psychiatrist; records from a pain management clinic; and physical therapy notes.

Defendant referred Plaintiff's medical records, but not the surveillance video, to two new doctors, Dr. Alan Altman, an internist and gastroenterologist, and Dr. Jean Dalpe, a psychiatrist and neurologist. Both physicians stated that Plaintiff could return to her sedentary occupation as a sales representative. The reports were forwarded to Ms. Chandick, who again opined that Plaintiff could still perform the duties of her occupation as a sales representative.*fn2 On June 1, 2006, Defendant upheld its original termination of benefits, indicating that Plaintiff's file would not be subject to further review. Plaintiff ...


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