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Domingues v. Liberty Life Assurance Company of Boston

United States District Court, W.D. Arkansas, Fayetteville Division

May 8, 2017



          Susan O. Hickey United States District Judge.

         Plaintiff David Domingues filed this action against Defendant Liberty Life Assurance Company of Boston pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. In his complaint, Plaintiff alleges that his claim for Long Term Disability (“LTD”) benefits was wrongly denied by Defendant. The Administrative Record has been filed, and both parties have submitted briefs. (ECF Nos. 14, 15). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         In October 1993, Wal-Mart Stores, Inc. (“Wal-Mart”) hired Plaintiff. In 2012, Plaintiff became Vice President of Global Business Process for Wal-Mart. Plaintiff was a participant in the Wal-Mart Stores, Inc. Associates Health and Welfare Plan (the “Plan”), which was insured by a Group Disability Income Policy (the “Policy”) issued by Defendant.

         As Vice President of Global Business Process, Plaintiff described his duties as “leveraging global talent and process to improve specific markets.” Plaintiff's job requires him to travel 50-60% of the time, and his job involves use of a telephone, computer, and requires attendance at meetings.

         The Policy provides that a participant may receive LTD benefits if the party is “disabled.”[1] To be entitled to benefits, a participant must present proof of: (1) disability, (2) regular attendance of a physician, and (3) appropriate available treatment. “Proof” is defined as evidence to support a claim for benefits and includes, but is not limited to, (1) a claim form completed and signed by the person claiming benefits; (2) an attending physician's completed and signed statement; and (3) the provision by the attending physician of standard diagnosis, chart notes, lab findings, test results, x-rays, and/or other forms of objective medical evidence in support of a claim for benefits.

         A. Plaintiff's Claim for LTD Benefits

         On December 3, 2012, Plaintiff became ill and was required to be away from work.[2] On December 10, 2012, Plaintiff went to his medical care provider, Dr. John Smiley, presenting viral-like symptoms, including joint and muscle pain, cough, headache, fatigue, and fever. In January 2013, Plaintiff was hospitalized with flu-like symptoms, nausea, weakness, cold intolerance, and jaundice. In February 2013, Plaintiff underwent a liver biopsy, revealing cirrhosis of the liver.[3] On March 5, 2013, Dr. Smiley noted that Plaintiff had Stage IV cirrhosis of the liver and alcohol dependence, and recommended that Plaintiff completely cease drinking.

         In March 2013, Plaintiff made a claim for LTD benefits due to his diagnosis of cirrhosis, as well as symptoms of fatigue. Defendant initially approved Plaintiff for LTD benefits and began paying benefits on April 6, 2013, subject to periodic evaluations to determine ongoing disability.[4]

         In August 2013, Plaintiff was seen at the Mayo Clinic for evaluation for a possible liver transplant. The Mayo Clinic's report confirmed that Plaintiff had cirrhosis, which the report suggested was likely due to alcohol-induced liver disease. The report also found that Plaintiff had possible early hepatic encephalopathy[5] due to his reported fatigue, mental fogginess, and sleep disturbance, as well as mild microcytic anemia. The report stated that Plaintiff denied any overt confusion or disorientation, and noted that since he began abstaining from alcohol, he began feeling somewhat better overall and that his jaundice was gone. However, Plaintiff was not placed on the transplant list at that time, and was scheduled for a follow-up appointment in six months for re-evaluation.

         On September 9, 2013, Plaintiff saw Dr. Smiley again. Dr. Smiley's notes from this visit indicated that Plaintiff's liver was not to the point where he could be considered for a transplant. Dr. Smiley noted that Plaintiff had some regeneration and improvement of his overall liver function, but found that Plaintiff was experiencing some hepatic encephalopathy, which resulted in mental fogginess and confusion if Plaintiff did not regularly take the medicine lactulose. Dr. Smiley also noted that Plaintiff was unable to return to work. Dr. Smiley noted that Plaintiff had not been sleeping well and had been experiencing anxiety.

         On October 13, 2013, Dr. Smiley completed a restrictions form at Defendant's request. Dr. Smiley indicated that Plaintiff was capable of performing light work on a full-time basis, defined as lifting and carrying up to twenty pounds occasionally, sitting at least occasionally, and standing and walking frequently. Dr. Smiley noted that Plaintiff was diagnosed with alcohol-induced fatty liver disease, and that Plaintiff occasionally suffered from hepatic encephalopathy, which made decision-making difficult at the level of performance required for Plaintiff's job. Dr. Smiley imposed work restrictions from January 8, 2013 to September 9, 2014.

         On November 26, 2013, Defendant ordered an independent peer review of Plaintiff's clinical records to be conducted by Dr. Sunil Sheth, a board-certified gastroenterologist. Dr. Sheth did not meet with or examine Plaintiff, but rather reviewed his medical file. Dr. Sheth agreed with Dr. Smiley's October 13, 2013 assessment that Plaintiff could perform full-time sedentary or light work. Dr. Sheth noted that Dr. Smiley's restrictions and limitations on Plaintiff would be indefinite until Plaintiff either improves entirely or worsens and requires a liver transplant. Dr. Sheth stated that if Plaintiff performs full-time sedentary or light work and becomes confused or fatigued, he may need to be reassessed by his primary care doctor and liver doctor.

         On December 10, 2013, Defendant sent Plaintiff a letter advising him that his LTD benefits would be terminated as of December 8, 2013. The letter referenced Dr. Sheth's peer review and Dr. Smiley's October 13, 2013 restrictions form, and concluded that Plaintiff is capable of performing his own occupation, which consists of sedentary to light work, as defined by the Department of Labor Dictionary of Occupational Titles. The letter stated that Plaintiff's medical records did not contain physical restrictions and limitations precluding Plaintiff's performance of his own occupation, and as such, Plaintiff was not “disabled” under the Policy.

         B. Plaintiff's Appeal

         On January 22, 2014, Plaintiff provided Defendant with a letter of appeal. Plaintiff's claim was referred to Defendant's appeal review unit. Defendant agreed to continue paying Plaintiff's LTD benefits past December 8, 2013 until the completion of the appeal review process.

         On March 21, 2014, Defendant ordered independent peer reviews of Plaintiff's disability claim file, including all new information received upon appeal, to be conducted by Dr. Sheth and Dr. Philip Barry, a board-certified neuropsychologist. Dr. Sheth and Dr. Barry did not meet with or examine Plaintiff, but rather reviewed his medical file and spoke with Dr. Smiley on the telephone. Dr. Sheth found that Plaintiff had alcoholic cirrhosis, and that the medical record provided a reasonable explanation for Plaintiff's reported symptoms of loss of concentration, fatigue, and memory loss due to encephalopathy. Dr. Sheth noted that Plaintiff's symptoms of loss of concentration, fatigue, and memory loss seemed to improve when Plaintiff took lactulose. Dr. Sheth found that, as of December 9, 2013, Plaintiff had no physical impairments from a gastrointestinal standpoint, and thus he had no restrictions or limitations related to his alcoholic cirrhosis. However, Dr. Sheth stressed that he could not comment on Plaintiff's neuropsychiatric symptoms because no formal evaluation had been done.

         Also in the March 21, 2014 report, Dr. Barry noted that while Plaintiff was at the Mayo Clinic for liver-transplant evaluation, he was seen by a psychologist who gave him a Personality Assessment Inventory, to which Plaintiff's scores were within normal limits and reported that Plaintiff was a good candidate for a transplant in terms of his psychological stability. Dr. Barry stated that the Mayo Clinic psychologist did not report any cognitive dysfunction or related complaints from Plaintiff. Dr. Barry also stated that although Plaintiff had expressed cognitive- related complaints to Dr. Smiley, there was no objective evidence of cognitive dysfunction in the records. Thus, Dr. Barry found that Plaintiff had no neuropsychological impairments. Dr. Barry noted that Plaintiff's primary limitation involved excessive fatigue and lack of mental stamina secondary to his medical status. Dr. Barry stated that Plaintiff's complaints of fatigue were consistent with the nature of his medical problems. Dr. Barry found that the medical record indicated that Plaintiff is limited with regard to the amount of time he can function in any demanding job, and that he is unable to travel in any business capacity. Dr. Barry concluded that, as of December 9, 2013, Plaintiff is impaired to the extent that he cannot perform his own job on a full-time basis because of his limitations related to fatigue and stamina.

         On April 22, 2014, Dr. Smiley completed a Medical Source Statement, listing Plaintiff's various symptoms, [6] restrictions, and limitations. Dr. Smiley stated that Plaintiff's restrictions included only being able to sit or stand for twenty minutes at a time before needing to move; that Plaintiff was only capable of sitting and standing/walking for less than two hours per day; that Plaintiff was only able to work approximately ten hours per week; and that Plaintiff would require more than ten unscheduled breaks per day. Dr. Smiley estimated that Plaintiff's symptoms would likely cause him to be off task at least twenty-five percent of each workday. Dr. Smiley noted that Plaintiff could tolerate normal work-related stress. Dr. Smiley stated that Plaintiff's impairments would likely produce “good days” and “bad days, ” and that Plaintiff would likely be absent from work more than four days per month due to his impairments or treatment.

         On May 6, 2014, Defendant ordered an additional independent peer review of Plaintiff's disability claim file to be conducted by Dr. Teddy Bader, board certified in gastroenterology, transplant hepatology, and internal medicine. Dr. Bader did not meet with or examine Plaintiff, but rather reviewed his medical file and spoke with Dr. Smiley on the telephone. On May 21, 2014, Dr. Bader completed his report, confirming the previous diagnosis of alcoholic cirrhosis of the liver, and noting that Dr. Smiley indicated to him on May 12, 2014 that Plaintiff's April 7, 2014 liver function blood tests suggested that Plaintiff resumed heavy drinking for at least two weeks prior to the liver function tests. Dr. Bader stated that hepatic encephalopathy could vary in severity from day to day, but found that Plaintiff had not undergone either of the two methods for establishing a diagnosis of hepatic encephalopathy, and concluded that there was no ...

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