United States District Court, D. Minnesota
J. Demers, Esq., and Katherine L. MacKinnon, Esq., Law Office
of Katherine L. MacKinnon PLLC, St. Paul, MN, on behalf of
A. Moriarity, Esq., Lockridge Grindal Nauen PLLP,
Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
November 17, 2016, the undersigned United States District
Judge heard oral argument on Plaintiff Michael
Broderick's (“Broderick”) Motion for Summary
Judgment [Docket No. 16] and Defendant Hartford Life and
Accident Insurance Company's (“Hartford”)
Motion for Summary Judgment [Docket No. 20]. For the reasons
stated below, Broderick's motion is granted in part and
Hartford's motion is denied.
Work and Medical History
began working for Xcel Energy, Inc. (“Xcel”) in
2006. Moriarity Aff. [Docket No. 26] Ex. 1 (Administrative
Record, hereinafter “AR”) at HART304. He last
worked at Xcel as a phone service representative in the
Credit and Collections department. Id.
result of his injuries in a December 2010 car accident, there
were several periods starting in July 2012, when Broderick
was unable to work or able to work only part time.
Id. at HART519-20, 537, 543, 551, 559, 592, 618-19.
His medical complications included neck pain, headaches, and
tingling and numbness in his arms. Id. at HART557,
559, 592, 618-19. Broderick began receiving short term
disability (“STD”) benefits in July 2012 under
Xcel's STD policy insured by Hartford. Id. at
January 13, 2013, Broderick had exhausted his STD benefits
and was transitioned to long term disability
(“LTD”) benefits under Xcel's group LTD
policy insured through Hartford. Id. at HART561. The
LTD policy defines “Disability or Disabled” in
relevant part as:
You are prevented from performing one or more of the
Essential Duties of:
1) Your Occupation during the Elimination Period;
2) Your Occupation, for the 24 month(s) following the
Elimination Period . . .; and
3) after that, Any Occupation.
Id. at HART18. “Essential Duty” is
defined to include “”Your ability to work the
number of hours in Your regularly scheduled work week.”
was on LTD from January 14, 2013 to May 27, 2014 due to his
inability to work full time. Id. at HART172, 175.
During this time period, Broderick had three surgeries: for
neck pain in February 2013, for hip pain in June 2013, and
for nerve decompression in his right elbow and a carpal
tunnel release in February 2014. Id. at HART398,
411, 461, 476. On June 16, 2014, Broderick returned to a
full-time work schedule. Id. at HART389.
Radiofrequency Ablation Procedure and Subsequent Work
September 2014, Broderick stopped working due to neck pain
and headaches. Id. at HART363-64. His orthopedist,
Dr. Sherif Roushdy (“Dr. Roushdy”), wrote to
Hartford on October 8, 2014, that he had seen Broderick
“and kept him off work because of the increasing
headache and inability to concentrate and process
information.” Id. at HART374. He also
explained that Broderick would be undergoing a radiofrequency
ablative (“RFA”) procedure, and that Dr. Roushdy
would “reevaluate his condition and likely send him
back to work thereafter.” Id.
December 3, 2014, Dr. Roushdy performed the RFA on Broderick
without complications. Id. at HART272-74. At a
follow-up exam with Dr. Roushdy on December 15, 2014,
Broderick reported that he had a 70-80% improvement in his
pain, was taking pain medications only “as needed, but
very rarely, ” and wanted to discuss going back to
work. HART270. Broderick reported his pain level as 2 on a
10-point scale. Id. Dr. Roushdy's notes from
this exam state: “We will have him go back to work with
some restrictions.” Id. at HART271. Consistent
with this statement, Dr. Roushdy completed a Report of
Workability form specifying that Broderick could return to
work on December 16, 2014 with restrictions. Id. at
HART278. Specifically, Broderick was restricted to working
four hours per day, 20 hours per week for four weeks, and was
restricted from lifting, carrying, pushing or pulling
anything over 20 pounds. Id. The Report of
Workability form included a section titled “Permanent
Disability, ” which gives the physician the option of
answering “Yes, ” “No, ” or
“Undetermined.” Id. Dr. Roushdy left
this portion of the form blank. Id.
the holidays, Xcel did not schedule Broderick to return to
work until January 19, 2015. Id. at HART283. On
January 8, 2015, Dr. Roushdy completed another Report of
Workability form for Broderick, stating that he could return
to work with restrictions on January 19, 2015. Id.
at HART279. Dr. Roushdy again restricted Broderick to working
four hours per day, 20 hours per week for four weeks;
restricted him from lifting, carrying, pushing or pulling
anything over 20 pounds; and left the“Permanent
Disability” portion of the form blank. Id.
January 12, 2015, before he had resumed work at Xcel,
Broderick had a follow-up appointment with Dr. Roushdy.
Id. at HART268. At that appointment, Broderick
complained of neck pain and stated there was a “new
feeling of numbness and tingling” in his arms.
Id. He described his pain level as 6 on a 10-point
scale. Id. Dr. Roushdy recommended that Broderick
continue taking the opioid pain medication that had already
been prescribed to him at the time of the RFA procedure, and
to also take 600 mg of Advil three times per day for 14 days.
Id. at HART269.
February 5, 2015, Dr. Roushdy approved an early refill of
Broderick's pain medication due to his increased pain.
Id. at HART267. The next day, Dr. Roushdy completed
a Report of Workability form ordering Broderick to be
completely off work from February 4 to February 16, 2015.
Id. at HART280. No other restrictions were imposed.
Id. In the “Permanent Disability”
section of the form, Dr. Roushdy checked the answer for
February 16, 2015, Broderick reported
“unbearable” neck pain at a follow-up exam with
Dr. Roushdy. HART265. Broderick told Dr. Roushdy that he had
been doing well and returned to work, but that about 10 days
ago he began experiencing pain. He described his pain level
as 7 out of 10. Id. After examining Broderick, Dr.
Roushdy completed a Report of Workability form ordering him
to be off work for six weeks beginning February 16, 2015.
HART281. No weight restrictions were imposed, and the
“Permanent Disability” portion of the form was
left blank. Id. Dr. Roushdy also ordered Broderick
to undergo a work hardening program. Id. at HART266,
March 27, 2015, Broderick returned to Dr. Roushdy to discuss
work forms given his cervical pain. Id. at HART262.
Broderick reported his pain level at this appointment at 7
out of 10. Id. He informed Dr. Roushdy that he had
been doing physical therapy and would be starting the work
hardening program that day. Id. Dr. Roushdy stated
that he would “adjust [Broderick's] workability
according to what the PT schedule[d].” On April 14,
2015, Dr. Roushdy refilled Broderick's opioid pain
medication. Id. at HART261.
7, 2015, Broderick came to Dr. Roushdy's office
“without any appointment demanding to discuss his
care.” Id. at HART282. Broderick informed Dr.
Roushdy's staff that he “needed a workability to
return to work without restrictions for four hours per day
due to training at work, that was required for him to be
at.” Id. Dr. Roushdy noted:
Mr. Broderick had the radiofrequency ablative procedure
followed by a slow return to work with limitations as far as
hours. He was unable to tolerate that. A work hardening
program was ordered but he was unable to do it due to the
extreme physical demands. As a result I took him off work a
few months ago. . . . He initially wanted to have a renewal
of his hydrocodone/acetaminophen which was done. He later on
said that he does not need this prescription renewed once
more. Patient kept arguing the issue of workability. . . .
Mr. Broderick kept on asking for a dictated letter as to what
was done before. . . .
I advised him that I did take him off work because of the
possibility for soft tissue injury however he would certainly
need to go back to some kind of rebuilding of his muscle
function through physical therapy even though it might be
spaced out enough to allow rebuilding of the muscles of his
neck as a result of the injury that he suffered previously. I
advised patient that this is the extent of what I can do for
him and also that I am willing to provide any further
information once needed by his insurance company to optimize
Long Term ...