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Meyer v. UNUM Life Ins. Co. of Am.

United States District Court, D. Kansas

March 31, 2015

JOHN V. MEYER, Plaintiff,

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[Copyrighted Material Omitted]

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For John V. Meyer, Plaintiff: Donald N. Peterson, II, Sean M. McGivern, LEAD ATTORNEYS, Withers, Gough, Pike, Pfaff & Peterson LLC, Wichita, KS.

For UNUM Life Insurance Company of America, Unum Group, Defendant: Christopher J. Leopold, Jacy J. Hurst Moneymaker, William E. Hanna, LEAD ATTORNEYS, Stinson Leonard Street LLP - Walnut, Kansas City, MO.


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KATHRYN H. VRATIL, United States District Judge.

John V. Meyer brings suit against UNUM Life Insurance Company of America and UNUM Group (collectively " UNUM" ) for recovery of benefits under a long-term disability insurance policy governed by the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1001 et seq. This matter is before the Court on Plaintiff's Motion For Summary Judgment (Doc. #66) and Defendants' Motion For Summary Judgment (Doc. #67), both filed January 20, 2014. For reasons set forth below, the Court finds that plaintiff's motion should be sustained and that defendants' motion should be overruled.[1]


In reviewing Unum's decision, the Court relies on the following facts.

Niska Gas Storage, LLC (" Niska" ) operates the Salt Plains storage facility near Manchester, Oklahoma. Niska is the administrator and named fiduciary of the Niska Gas Storage, LLC Plan (" the Plan" ), which is an employee welfare benefit plan under ERISA § 3(1), 29 U.S.C. § 1002(1). On March 23, 2007, Unum issued Niska a group insurance policy to provide long-term disability benefits to Niska employees under the Plan. UA 108.[3] Niska gave Unum discretionary authority to make benefit determinations under the Plan.[4]

On October 15, 2008, John Meyer began working for Niska at the Salt Plains facility. On November 14, 2008, Meyer became a qualified participant with disability coverage under the Plan.[5]

On March 4, 2010, Meyer suffered an ischemic stroke. Ischemic strokes are caused by blockage of an artery to the brain; hemorrhagic strokes, in contrast, are caused by rupture of an artery. Ischemic strokes are caused by either an embolus, i.e., a clot that travels to the brain from elsewhere in the body, or by a thrombus, i.e., a clot that forms in the artery. See J.E. Schmidt, M.D., Attorneys' Dict. of Medicine (2010). Four days after the stroke, Meyer had extra-cranial carotid bypass surgery. As a result of the stroke, he has speech difficulties and paralysis on one side of the body. UA 24.

On August 1, 2010, Meyer submitted a claim for disability benefits under the Plan.

The Plan defines " disability" as follows:

You are disabled when Unum determines that: - you are limited from performing the material and substantial

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duties of your regular occupation due to your sickness or injury . . . .

* * *
SICKNESS means an illness or disease.
* * *
INJURY means a bodily injury that is the direct result of an accident not related to any other cause.

UA 119, 135, 137 (emphasis in original). The Plan, however, excludes coverage for pre-existing conditions, i.e., " any disabilities caused by, contributed to by, or resulting from [a] - pre-existing condition." UA 126. The Plan defines " pre-existing condition" as follows:

You have a pre-existing condition if:
- you received medical treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines in the 6 months just prior to your effective date of coverage; and
- the disability begins in the first 24 months after your effective date of coverage unless you have been treatment free for 12 consecutive months after your effective date of coverage.
* * *
TREATMENT FREE means you have not received medical treatment, consultation, care or services including diagnostic measures, or taken prescribed drugs or medicines for the pre-existing condition.

UA 126-27, 136-37 (emphasis in original).

Unum assigned Ashley Forbes, a Unum Disability Benefits Specialist (" DBS" ), to evaluate Meyer's claim. On September 13, 2010, Forbes spoke with Meyer about his claim. She told him that because his disability began within the first 24 months of coverage, she would review his claim for pre-existing conditions. Forbes then sent a follow-up letter which asked Meyer to complete a supplemental claim form. The letter explained that Unum would determine whether Meyer had received treatment for his disabling condition during the six month " look-back" period before his coverage was effective, i.e., from May 13, 2008 to November 13, 2008. UA 172.

Based on the exclusion for " pre-existing conditions," Forbes investigated whether Meyer: (1) had received treatment for a condition that " caused, contributed to, or resulted in" the disability during the six months before his effective date of coverage, November 14, 2008 (" the look-back period" ) and if so, (2) whether he was treatment-free for a period of 12 months before his claimed date of disability, March 5, 2010. UA 437.

Medical records revealed that during the look-back period, (1) doctors had diagnosed Meyer with atrial fibrillation (UA 285-92, 387-90, 395, 401-03, 437); (2) Meyer had received numerous electrocardiograms related to atrial fibrillation (UA 285-292, 379-82, 437); and (3) doctors had prescribed medicines for anticoagulation (Coumadin), to prevent thrombus and embolus problems, cardiac rhythm control (Amiodarone) and blood pressure control (Betaxolol, Lisinopril, and Atenolol). Doctors prescribed such medications continuously through Meyer's date of disability. UA 163-67, 192-93, 233, 315, 325, 398, 401-03, 423-25, 438.

On October 22, 2010, Forbes extended the time to decide the claim because Unum had not received copies of all medical records. UA 221-23. Several weeks later, on November 11, 2010, Forbes entered a note in the Unum claim file which stated " referred for triage review as Rx records rec'd and appears that claimant rec'd meds w/in LB [look-back] period that are pre-existing." UA 320.

On November 12, 2010, Forbes, Director Carolyn Brooks, Gary McCollum, R.N., and John Clancy, Vocational Rehabilitation Consultant, participated in a round-table

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review in which they briefly reviewed Meyer's records from the look-back period. Three days later, on November 15, 2010, Forbes asked McCollum to review Meyer's file and answer the following questions:

-What medical treatment, consultation, care, services, or diagnostic measures did the claimant receive, or prescribed medicines did the claimant take for the pre-ex illness/injury?
-Did the claimant have symptoms of the claimed disabling illness/injury during the look[-]back period and, if so, what were they?
- What is the medical relationship between the pre-ex illness/injury and the claimed disabling illness/injury? Please explain how and why this claimant's pre-ex illness/injury is a risk factor that led to the claimed disabling illness/injury.

UA 324-25 (emphasis added). These questions closely followed the Unum guidelines for reviewers seeking information regarding pre-existing conditions from clinical and/or medical experts.

On November 17, 2010, McCollum issued an opinion that Meyer had received treatment for atrial fibrillation and high blood pressure during the look-back period, and that those factors as well as obesity, hyperlipidemia and tobacco addiction increased his chance of a stroke. UA 325-27. Because the file did not contain all medical records for the period after the look-back, McCollum could not determine if Meyer had been continuously treated for atrial fibrillation and high blood pressure.[6]

On November 29, 2010, after obtaining additional medical records, Forbes referred the case back to McCollum. UA 427. On November 30, 2010, Forbes, McCollum, Brooks and Vocational Rehabilitation Consultant Michael Stevens discussed the additional medical records at another round-table review. The meeting notes stated that during the look-back period, Meyer had received treatment for conditions " likely of causing stroke." The summary also stated that " [p]harmacy records in file show consistent use of medications noted in LB period throughout [treatment-free] period. Therefore no 12 mth treatment[-free] period found." UA 428.

On December 2, 2010, Forbes requested that Brooks review the Meyer file " for non-comp[ ensable] due to pre-ex." UA 431. Forbes recited that Meyer had a number of conditions for which he was treated during the look-back period, all " known high risk factors for acute stroke." Id. (Meyer treated throughout look-back period for A-Fib, known condition with high likelihood of causing stroke). Forbes thus made the ...

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