Plaintiff filed her complaint against defendant pursuant to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. seeking long term disability (LTD) benefits under an employee benefit plan (Plan) provided by Arkansas Children's Hospital (ACH) to its employees. The parties have filed cross motions for summary judgment and plaintiff has filed a motion to remand.
ACH provides LTD benefits to eligible employees under a LTD Plan. The Plan is insured by Aetna Life Insurance Company (Aetna) which is also the claims administrator for the Plan.
The Plan provides payment of LTD benefits for the first twelve months if the employee is not able, solely because of disease or injury, to perform the material duties of the employee's own occupation. After the twelve months, an employee is entitled to LTD if she is not able, solely because of injury or disease, to work at any reasonable occupation. Reasonable occupation is "any gainful activity for which [the employee is], or may reasonably become, fitted by education, training or experience. (ALIC001256).
Plaintiff worked as an Early Childhood Development Specialist at ACH from March 16, 1992 until May 23, 2001. Pursuant to her employment, she was covered under a group short and long-term disability plan issued by Aetna to ACH. Plaintiff submitted six disability claims under the Plan. Five of the claims were for short-term disability (STD) benefits stemming from bouts with bacterial pneumonia and bronchitis in 2000 and 2001.
Aetna approved plaintiff's claim for LTD in November 2001, finding that she had become totally disabled from her usual occupation and was eligible for monthly benefits starting July 30, 2001 (ALIC 00158).
In the summer of 2002, Aetna began reevaluating plaintiff's claim under the "any occupation" definition of disability. Karen Lorenz, RN, initially determined that the information in plaintiff's file was inconclusive and suggested obtaining current medical information, restrictions and limitations.
Plaintiff, on September 19, 2002, informed Aetna that she cannot work due to her asthma and therapy vest. Plaintiff stated that in the past year she had at least six asthmatic reactions to something in the environment and gets "deathly ill" around any irritants or aerosols. She also said that she had to spend at least ten minutes several times a day using her therapy vest to clear her lungs. (ALIC 00191).
Aetna obtained an updated evaluation from Dr. Tyrone Lee, plaintiff's treating pulmonologist in October 2002 (ALIC 001078). Dr. Lee stated that plaintiff's condition would be affected by exposure to the public and he did not expect her medical condition to improve. He stated that "This is not a question of whether or not [plaintiff] can tolerate sedentary work or not. She is susceptible to repeated infections secondary to bronchiectasis and sinusitis which can occur and have occurred frequently enough to result in multiple missed days of work." (ALIC 001080).
Lorenz reviewed plaintiff's file on October 28, 2002, and determined that plaintiff's restrictions and limitations of no exposure to the public were reasonable based on her history of repeated bouts of pneumonia with hospitalization. Lorenz referred the file to the vocational department for an any occupation review (ALIC 00200).
On February 7, 2003, Aetna's vocational rehabilitation department determined that plaintiff was not appropriate for vocational rehabilitation given her restriction of being exposed to the public. (ALIC 00202).
On May 27, 2004 Aetna requested that plaintiff provide an updated Attending Physician's Statement ("APS"), medical records, medical authorization and completed Claim Questionnaire. (ALIC 00215). Dr. Lee returned the APS on June 2, 2004, stating that plaintiff's primary diagnosis was asthma and her secondary diagnosis was bronchiectasis. He noted that her asthma was clinically stable and that her condition was treated with her vest therapy and medications. He noted that she was able to work cooperatively with other in a group setting free of dust, allergens and smoke. There were no activity restrictions but that plaintiff is susceptible to repeated infections secondary to bronchiectasis and sinusitis. These infections are aggravated by exposure to infected persons, smoke, allergens, etc. He would not indicate the number of hours or days plaintiff is able to work, and opined that plaintiff could not participate in a vocational rehabilitation job training program due to her susceptibility to repeated infections (ALIC 00855-56).
Plaintiff also completed a Claim Questionnaire on June 2, 2004. In that she stated that she cooked, shopped, did laundry and cleaning on a regular basis and walked 30 minutes three times a week, indoors or outdoors as humidity, wind, or air quality permit She stated that she was unable to engage in any occupations because of her susceptibility to pneumonia and sinusitis by exposure to illness and allergens which result in frequent sick days. She informed Aetna that she was receiving Social Security Disability (ALIC 00861-62).
On August 18, 2004, Maria I. Angelillo, RN, reviewed plaintiff's claim, including the updated information, and concluded that plaintiff's file lacked documentation to support "objective evidence of impairment preventing claimant from performing sedentary work duties." (ALIC 00236-37). Plaintiff's file was sent to the Vocational Rehabilitation department for a Labor Market Survey/Transferable Skills Analysis (LMS/TSA), which was performed on September 1, 2004. (ALIC 00239). Because Angelillo determined that plaintiff had capacity to perform sedentary work, the LMS/TSA concentrated on whether sedentary jobs were available in the appropriate labor market for which plaintiff was qualified and could earn a reasonable wage (ALIC 00240-41). Aetna's LMS/TSA identified several sedentary positions, including billing clerk, accounts payable clerk and administrative assistant (ALIC 00244, 609-11).
By letter dated September 10, 2004, Mary Witek, Senior Technical Specialist for Aetna, notified plaintiff that she was no longer eligible to receive LTD benefits (ALIC 00605-608). Plaintiff appealed that decision on November 10, 2004 (ALIC 00597-602). She noted that she continues to have asthma, bronchiectasis and repeated infections and that she continues to receive Social Security disability benefits. Pursuant to Aetna's request, plaintiff submitted additional ...