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Broderick v. Hartford Life and Accident Insurance Co.

United States District Court, D. Minnesota

February 16, 2017

Michael Broderick, Plaintiff,
v.
Hartford Life and Accident Insurance Company, Defendant.

          Sarah J. Demers, Esq., and Katherine L. MacKinnon, Esq., Law Office of Katherine L. MacKinnon PLLC, St. Paul, MN, on behalf of Plaintiff.

          Scott A. Moriarity, Esq., Lockridge Grindal Nauen PLLP, Minneapolis, MN, on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         On 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.

         II. BACKGROUND

         A. Work and Medical History

         Broderick 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.

         As a 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 HART572.

         By 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.” Id.

         Broderick 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.

         B. Radiofrequency Ablation Procedure and Subsequent Work Restrictions

         In 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.

         On 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.

         Due to 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.

         On 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.

         On 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 “Undetermined.” Id.

         On 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, HART281.

         On 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.

         On May 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 his condition.

Id.

         C. Long Term ...


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