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Christoff v. Unum Life Insurance Company of America

United States District Court, D. Minnesota

September 30, 2019

Michael J. Christoff, Plaintiff,
Unum Life Insurance Company of America, Defendant.

          Mark M. Nolan, Esq., and Robert J. Leighton, Jr., Esq., Nolan, Thompson, & Leighton, counsel for Plaintiff.

          Christopher J. Haugen, Esq., and Terrance J. Wagener, Esq., Messerli & Kramer P.A., counsel for Defendant.




         This matter is before the Court on cross motions for summary judgment brought by Plaintiff Michael J. Christoff (“Christoff”) (Doc. No. [99]) and Defendant Unum Life Insurance Company of America (“Unum”) (Doc. No. [91]). For the reasons set forth below, the Court grants Christoff’s motion in part and denies Unum’s motion. As described more fully below, the Court awards Christoff damages in the amount of his unpaid benefits with interest.


         The factual background for the above-entitled matter is clearly and precisely set forth in previous orders issued in this matter which are incorporated by reference here. (See Doc. No. 52 (“February 2018 Report and Recommendation), Doc. No. 68 (“August 2018 Order”).) The Court notes certain facts relevant to this Order below, with additional facts as furnished by the parties through the proceedings.[1]

         Christoff asserts two claims against Unum under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”), arising out of the termination of his long-term disability (“LTD”) benefits under a group employee benefit plan (the “Plan”) which was insured by Unum. (See Doc. No. 1 (“Compl.”) ¶¶ 1, 7, 11.) Christoff participated in the Plan through his employer, Spencer Stuart. (Id. ¶¶ 5, 6, 9.)

         The Plan became effective on September 1, 2001. (Doc. Nos. 29-35 (“Second Connolly Aff.”), Doc. No. 30 at 120.) The LTD policy states that it consists of “all policy provisions and any amendments and/or attachments issued; employees’ signed applications; and the certificate of coverage.” (Id.) The LTD policy identifies its Certificate Section as its “certificate of coverage.” (Id. at 129.) The certificate of coverage states: “If the terms and provisions of the certificate of coverage (issued to you) are different from the policy (issued to the policyholder[2]), the policy will govern.” (Id.) It further provides that “[w]hen making a benefit determination under the policy, Unum has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy.” (Id.)

         The policy defines disability, in pertinent part, as when Unum determines that the covered employee is “limited from performing the material and substantial duties of your regular occupation due to your sickness or injury[.]” (Id. at 133 (emphasis in original).) “Regular occupation, ” in turn, is defined as “the occupation you are routinely performing when your disability begins, ” which Unum will determine by looking at “your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer at a specific location.” (Id. at 153.) The policy also provides that Unum “may require [Christoff] to be examined by a physician, other medical practitioner and/or vocational expert of [Unum’s] choice, ” and that Unum “can require an examination as often as it is reasonable to do so.” (Id. at 133.)

         On September 26, 2002, Unum sent Spencer Stuart a document entitled “Amendment No. 1” with an attachment purported to replace the entire policy at issue, to be effective as of September 1, 2001. (Id. at 383.) Amendment No. 1 provides: “If this Amendment is unacceptable, please sign below and return this amendment to [Unum] . . . within 90 days of September 26, 2002. YOUR FAILURE TO SIGN AND RETURN THIS AMENDMENT BY THAT DATE WILL CONSTITUTE ACCEPTANCE OF THIS AMENDMENT.” (Id. (emphasis in original).) Below this language is an unexecuted signature block for an officer of Spencer Stuart. (Id.)

         The replacement policy attached to Amendment No. 1 includes a Certificate Section with language regarding conflicts between the certificate of coverage and the policy, as well as Unum’s discretionary authority, that is identical to that in the original policy cited above. (Id. at 393.) The definitions of “Disability” and “Regular Occupation, ” in addition to the statement that Unum “can require an examination as often as it is reasonable to do so, ” also remain the same as before. (Id. at 397, 419.) The replacement policy also contains a “Discretionary Acts” provision not included in the original policy, which states:

In exercising its discretionary powers under the Plan, the Plan Administrator, and any designee (which shall include Unum as a claims fiduciary) will have the broadest discretion permissible under ERISA and any other applicable laws, and its decisions will constitute final review of your claim by the Plan. Benefits under this Plan will be paid only if the Plan Administrator or its designee (including Unum), decides in its discretion that the applicant is entitled to them.

(Id. at 416; see also Id . at 120-55.)

         In November 2001, Christoff became disabled due to severe fibromyalgia and received LTD benefits under the Plan for more than fifteen years. (Compl. ¶¶ 8-10.) Effective November 22, 2016, Unum determined Christoff was no longer disabled and terminated his benefits. (Id. ¶ 11.) Christoff appealed the decision, and on June 15, 2017, Unum upheld its termination decision. (Id. ¶ 12.)

         Before Christoff became disabled, he was a partner at Spencer Stuart whose work involved placing “high-level executives . . . in blue chip industries on a national basis, ” generating revenue of one to two million dollars a year, developing a network of contacts, constant availability to clients, and extensive travel. (Doc. No. 104 (“Pl. Mem.”) at 4.)

         From the time of his initial diagnosis, Christoff’s primary treating physicians have included Drs. Hickman, Newcomb, Davidson, and Rodysill at the Mayo Clinic’s Fibromyalgia Clinic. (Id. at 3, 5.) His treating physicians have consistently noted objective signs, e.g. trigger points, [3] and Christoff’s subjective complaints, which they have found to be credible. (Id. at 5.) Throughout the course of his treatment, Christoff’s physicians have placed restrictions and limitations on his activity, and all have found that Christoff is “totally disabled from any occupation which requires a 40-hour work week on a consistent, reliable basis.” (Id.) For example, Dr. Hickman stated in 2004 that Christoff was “[t]otally disabled from severe fibromyalgia” and suffered “profound fatigue with slow recovery from any significant activity or travel.” (Id.) By 2013, Dr. Rodysill noted that they had “tried everything available, ” “unless new therapies come out, further treatment is unlikely to be beneficial, ” and concluded that Christoff was “certainly disabled by this condition, ” noting that his diagnosis was “very clear and confirmed.” (Id. at 6.) In March of 2016, Dr. Rodysill stated that Christoff’s fibromyalgia “is stable- nothing has changed” with “[n]o improvement expected, ” causing Christoff to have difficulty traveling for one hour. (Id.) In July of the same year, Dr. Rodysill noted that “[t]here has been no change in [Christoff’s] fibromyalgia for many years.” (Id.)

         Unum evaluated Christoff’s condition as it related to his benefits several times, conducting independent medical examinations (“IME’s). Exams carried out in 2003 over a period of three days resulted in Unum’s evaluators finding that Christoff’s subjective complaints were credible and that his limited endurance rendered him unable to perform “mentally demanding tasks” full time or to meet the “travel demands of his occupation.” (Id. at 7.) Claim notes and reviews by Unum’s own medical reviewers also found Christoff’s disability claim valid. (Id. at 8.) For example, a 2005 clinical review based its support on Christoff’s credible and consistent subjective symptoms -which were “medically supported”-restricted his activity “from anything greater than sedentary.” (Id.) Christoff avers that in 2009, Unum analyzed his claim “in order to offer a settlement” and concluded that the results of three IMEs showed that Christoff’s symptoms “were genuine and totally disabling, ” and he “will likely never be able” to return to work. (Id.) A 2014 review noted that Christoff’s condition is “totally debilitating” at least two days per week and “substantially limited” the remaining days, and due to the unpredictable nature of his condition, it is unlikely that he would have reliable functional capacity to return to work “as an Executive Search Consultant.” (Id.)

         In 2007, Christoff was awarded Social Security Disability Insurance (SSDI) benefits after a finding by an administrative judge that his effective disability date was December 15, 2001, and that Christoff’s subjective complaints appeared “fully credible.” (Id. at 9; see also Second Connolly Aff., Doc. No. 31 at 482.) In awarding him benefits, the administrative judge also found that Christoff’s symptoms prevent him from engaging in any work activity on a full-time basis, that he can no longer perform any of his past relevant work, and that “there are no other jobs existing in significant numbers in the national economy that he is capable of performing on a full time, competitive basis.” (Id.)

         In March of 2016, Christoff provided Unum with a description of his condition and activities. (Second Connolly Aff., Doc. No. 33 at 507.) Christoff explained that over the years he “developed a low-intensity lifestyle that allows [him] the flexibility to deal with [his] variable energy while maintaining a reasonable quality of life” and continuing activities such as volunteering with his church as his symptoms allow and writing articles and blog postings that had yet to generate any income. (Id. at 510.) Upon Unum’s June 28, 2016 request (id. at 514), Christoff provided additional description of these activities in July 2016, explaining that he does not schedule many activities and “always give[s] [himself] a buffer both before and after activities” (id. at 515). Further, Christoff noted that his “efforts do not include any deadlines or set schedules” and that he makes progress “as [he] is physically able.” (Id.)

         In June of 2016, Unum had a Vocational Rehabilitation Counselor (VRC) conduct a vocational review of Christoff’s records. (Second Connolly Aff., Doc. No. 33 at 355.) VRC Arthur Dumont concluded that the requirements for Christoff’s own occupation had not changed since his claim began, still requiring a “light” level of physical activity (greater than “sedentary”), as well as extensive travel. (Id.) Dumont confirmed that the job description for the position at Spencer Stuart Christoff performed before his disability had not changed in the intervening years. (Id.) Unum had another VRC, Carrie Gregor (then known as Carrie Johnson), review Christoff’s occupation shortly thereafter, on July 7, 2016, using an occupational code from the United States Department of Labor Dictionary of Occupational Titles (DOT) that describes an job with physical demands of a mostly administrative position including constant walking, sitting, and use of a keyboard as well as occasional standing and reaching. (Id. at 453.)

         In August 2016, Unum’s internal medical professionals conducted a roundtable discussion and medical review of Christoff’s case; their proceedings all reached the conclusion that Christoff remained disabled. (Pl. Mem. at 12.) Specifically, Dr. Joseph Antaki noted in a “doctoral consult” dated August 18, 2016 that Christoff was not observed exhibiting activity during any recent surveillance, and though Christoff “has demonstrated functional capacity (by receiving a Master’s degree in theology, evangelizing, online lecturing) and the AP has recommended gradually increasing activity level to 60 minutes of low-impact aerobic activity per day, [Christoff’s] pain and fatigue would support [restrictions and limitations] that would preclude a sustained level of work activity.” (Id. at 538.) Dr. Antaki reported that improvement in Christoff’s condition was not expected, and recommended as “next steps” that Christoff’s records be updated in one year. (Id.)

         On August 25, 2016, VRC Gregor completed another occupational review after Unum asked her to “revisit” the occupational description used in her July 7 vocational review, particularly the demands for standing and walking on a constant basis, and to also advise regarding travel requirements. (Id. at 545.) VRC Gregor changed the physical demands for Christoff’s occupation to a sedentary level, with occasional walking, and determined that only occasional travel would be required, “likely done locally and by vehicle, ” without defining “local” (or for that matter, “vehicle”) or providing the basis for these revised findings. (Id.)[4]

         Dr. Antaki was provided the new occupational information and conducted another medical review on August 30, this time concluding that Christoff was not disabled from his occupation. (Id. at 595.) Christoff’s treating physician, Dr. Kirk Rodysill, was also provided the new job description and asked to respond. (Pl. Mem. At 15.) On September 8, 2016, the two doctors spoke, and Dr. Rodysill stated that not only could Christoff no longer perform his former job due to his condition, at most on “some days he might be able to work an hour or two, ” but on other days, Dr. Rodysill did not think Christoff “could do anything really” and that this would be inconsistent and hard to predict. (Id. at 15-16.) Unum also sought the opinion of its in-house doctor, Dr. Norman Bress, who stated in his September 2016 review of Christoff’s records that Christoff “is very active” and had been able to work “for many years despite his [fibromyalgia] symptoms” and noted that the records only occasionally mentioned “pain related weakness.” (Second Connolly Aff., Doc. No. 33 at 596-97.) Dr. Bress noted that Christoff had previously met the diagnostic criteria for fibromyalgia, but agreed with Dr. Antaki’s August 30 findings. (Id.)

         Unum went on to have an IME done by Dr. Adam Locketz on November 15, 2016. (Doc. Nos. 105-1-12 (“Third Nolan Aff.”), Doc. No. 105-3 at 3; Second Connolly Aff., Doc. No. 34 at 806.) Dr. Locketz produced a report after a short physical exam of Christoff and review of his medical records that concluded Christoff has the functional capacity to do sedentary work on a full time (40 hour per week) basis and that his physical exam yielded “mild objective findings.” (Id. at 831.) Dr. Locketz did not have Christoff’s SSDI records for review. (Pl. Mem. At 18.)[5]

         Unum’s claims procedure manual instructs that “Unum has an obligation to consider all medical information, which includes giving deference to the opinion of the claimant’s [attending physicians (“AP’s)] when making a medical determination.” (Third Nolan Aff., Doc. No. 105-6.) It also states that an opinion from an AP “with a higher level of expertise, specialization or training is generally more persuasive than the opinion from a provider with a lesser level of expertise, specialization, or training, ” and directs that “the lack of current care or treatment . . . may not impact our claim decision if the claimant would not benefit from treatment.” (Id. at Doc. No. 105-7; 105-11 at 2.) Further, the “care requirement” is “generally” met “so long as claimant is being seen by a physician at intervals recommended by the physician.” (Id.) With respect to the weight to give an award of SSDI benefits, the manual instructs that Unum “will give significant weight to the [Social Security Administration’s] determination that the claimant is disabled unless there is compelling evidence” that the award of SSDI was based on an error of law or abuse of discretion, inconsistent with applicable medical evidence; or inconsistent with the definition of disability contained in the applicable insurance policy. (Third Nolan Aff., Doc. No. 105-10 (emphasis in original).) Without such compelling evidence, the manual instructs that Unum will give the SSDI award “significant weight and will agree with the award unless . . . there is other evidence that clearly shows that the claimant is not disabled, ” for example, if a claimant were to be found to be working after claiming to be unable to do so. (Id. (emphasis in original).) Finally, the manual requires that if Unum disagrees with the SSDI finding, it will “articulate the reason and analysis” and “support that reason and analysis with reference to facts and information in the claim file documentation.” (Id.)

         During his appeal of the termination of his benefits, Christoff provided Unum with additional records including the results of a functional capacity examination (FCE) conducted by VRC Dr. Justin King and an additional statement from Dr. Rodysill. (Pl. Mem. at 19-20.) Dr. King found that Christoff’s condition precluded any employment on a sustained, continuous basis. (Id. at 21.) Dr. Rodysill reiterated previous statements, again noting that Christoff’s symptoms are severe, exacerbated by stress, ...

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