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DAVID RADMILOVICH, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 
This action arises out of a dispute regarding Defendant Unum Life Insurance Company of America's (“Defendant” or “Unum”) decision to deny Plaintiff David Radmilovich's (“Plaintiff” or “Mr. Radmilovich”) claim for disability benefits. Mr. Radmilovich, an industrial engineer employed as Senior Director of Production at Prudential Overall Supply (“Prudential”), suffered a cardiac arrest on August 28, 2016. This event, Plaintiff argues, resulted in permanent, life-altering changes including unpredictable chest pain episodes, nausea and fatigue, and cognitive loss. After granting Plaintiff's claim for LTD and LWOP benefits, effective September 25, 2018, Plaintiff argues that Unum subsequently wrongfully terminated his long term disability (“LTD”) benefits and life waiver of premium (“LWOP”) in February 2020. Plaintiff contends Defendant's termination of benefits, which it upheld on appeal, was improper because he suffers from multiple cardiovascular medical conditions that make workplace stress likely to expose him to further cardiac events, as well as cognitive deficits resulting from oxygen deprivation that made it impossible for him to perform the material duties of his job. Unum contends that Plaintiff's medical records since his cardiac arrest in August 2016 demonstrate that he is without functional impairment from either a cardiac or cognitive perspective and that he is therefore neither totally disabled under the terms of the plan nor entitled to LTD benefits.
Plaintiff filed the Administrative Record (“AR”) (Dkts. 31-44). Following the filing of the parties' Opening and Responsive Trial Briefs, the submission of their respective Proposed Findings of Fact and Conclusions of Law, the Court, sitting without a jury, conducted a bench trial on this matter on May 16, 2023 and September 19, 2023. The parties submitted trial briefs following the September 19, 2023 bench trial, which the Court also takes into consideration here.
The Court issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. To the extent that any findings of fact are included in the Conclusions of Law section, they shall be deemed findings of fact, and to the extent that any conclusions of law are included in the Findings of Fact section, they shall be deemed conclusions of law.
II. FINDINGS OF FACT
A. Pertinent Provisions of the Plan
1. Plaintiff was employed by Prudential Overall Supply (“Prudential”), which established and maintained a long-term disability plan and a life insurance plan for its employees. Each was funded by an insurance policy issued by Unum (AR 119-168). The Policy is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq. (“ERISA”).
2. The Unum LTD Policy, in pertinent part, defines Total Disability as:
“TOTAL DISABILITY means, for the first 30 months, that as a result of sickness or injury you are unable to perform with reasonable continuity the substantial and material acts necessary to pursue your usual occupation in the usual and customary way.
After benefits have been paid for 24 months of disability, total disability means that as a result of sickness or injury you are not able to engage with reasonable continuity in any occupation in which you could reasonably be expected to perform satisfactorily in light of your age, education, training, experience, station in life, and physical and mental capacity.
USUAL OCCUPATION means the substantial and material acts you are routinely performing for your Employer when your disability begins.” (AR 136).
3. The Elimination Period under the Policy (a period after the disability onset date that must be satisfied before benefits are payable) is 180 days. (AR 12982).
4. The policy gives Unum the right to conduct a physical exam and a claimant's refusal to undergo an exam can form the basis for a termination of his benefits. (AR 127, 143).
5. The Policy provides that benefits will stop “the date you are no longer disabled” (AR 13003), and LTD coverage will end “the last day you are in active employment.” (AR 12994).
6. The scheduled monthly LTD benefit is 60% of Radmilovich's salary, which according to Unum's calculations is $6,334.38. (AR 122).
B. Mr. Radmilovich's Occupation
7. Prudential, a 190-million dollar uniform and textile rental company, operates 23 plants. (AR 1075). As Sr. Director of Production, Mr. Radmilovich oversaw all 23 production facilities. Id. Along with Mr. Radmilovich's initial claim, Prudential supplied a job description. (AR 99-103) This description explained that “[t]he normal work schedule is 8.00 hours per day 5 days per week,” and that the job required travel, crawling, climbing, pushing and pulling, working in industrial plants, reaching and operating forklifts or other machinery, and occasionally lifting 50 pounds. (AR 99, 101-102, 380). The job's non-physical demands included reasoning, math, reading, writing, speaking, directing/controlling (formulating plans, designs, practices, policies, methods, regulations and procedures for operations or projects; negotiating contracts, supervising subordinate workers), comparing data, and teaching/training others. (AR 102-103).
8. In a Declaration submitted with his ERISA appeal, Mr. Radmilovich explained his occupation further. (AR 1074-1079). His occupation included, “verbally corresponding, negotiating, frequent travel (both locally and out of state), speaking publicly, managing databases, creating system based reports, implementing systems and enhancements, capital project management/implementation, managing budgets, performing operational and financial analysis, addressing complex productivity and quality issues, addressing safety concerns (both in the production plant and in the fleet operations), planning and executing small and large scale meetings, and managing/influencing people at all levels of the organization. The position required working long days, multi-tasking, sustaining attention and was stressful and physically arduous.” (AR 1075). He further explained that he “led work related to design, implementation, and operational startup of capital projects ranging from small to large projects nearing $29M ․ [and] was also responsible for overseeing adherence to and implementation of OSHA/State/Company safety policies/regulations as well as overseeing the adherence to and implementation of Federal/State/Company DOT policies and regulations.” Id.
9. An expert vocational report by Charles Galarraga, submitted with Mr. Radmilovich's ERISA appeal to Unum, provided additional information about the occupation. (AR 807-844). Mr. Galarraga determined that the most analogous occupation from the Enhanced Dictionary of Occupational Titles (“eDOT”), a private resource published by the Economic Research Institute, was Production Superintendent. (AR 807, 825).
10. As part of his vocational evaluation, Mr. Galarraga submitted questionnaires to employers that were hiring for the occupation that most closely corresponded to the eDOT job title. (AR 829-842). No employers would hire an otherwise qualified candidate with any one of the following problems: inability to tolerate stress; issues with fine motor speed and coordination in one upper extremity; issues with language fluency and precision; working memory problems; executive functioning limitations to include divided attention, inability to multitask, cognitive set switching, mental flexibility, insight and self-awareness and inductive reasoning; emotional lability; or difficulty with writing. (AR 829-842).
11. There is no dispute over the eDOT code. Unum's own vocational consultant, Kelly Marsiano, agreed with Galarraga's choice of eDOT code. (AR 459-461, 1464, 1364).
12. Despite acknowledgment by Unum that the more specific requirements of the Production Superintendent eDOT position applied (AR 1530), Unum's medical reviewers were provided the following list of generic cognitive demands: “Directing, controlling, or planning activities of others; Making judgments and decisions; Dealing with people; Performing a variety of duties; Memory for detailed instructions; Concentration and attention; Ability to make work related decisions; Ability to adapt to change; Independent planning; Hazard awareness.” (AR 515, 488, 493, 521, 533-536, 542-543, 1436-1438, 1487-1490, 7264, 7266-7267, 1532). An additional category- “influencing people in their opinions”- was supplied to one medical reviewer. (AR 7267, 1532).
C. Cardiac Arrest
13. On August 28, 2016, at age 53, Mr. Radmilovich experienced cardiac arrest and collapsed while cycling with his daughter. (AR 1075, 1617-1618). Paramedics performed lifesaving CPR after discovering he had no pulse, no blood pressure, and was not breathing. (AR 1617-1618).
14. At the hospital, Mr. Radmilovich was attended to by cardiologist Dr. Kaushal, who became Mr. Radmilovich's regular cardiologist in the following years. (AR 800-802). Urgent catheterization performed by Dr. Kaushal at the hospital revealed multilevel coronary artery disease. (AR 801).
15. On September 7, 2016, Mr. Radmilovich underwent quintuple coronary artery bypass surgery. (AR 1651). He subsequently engaged in in-patient and at-home rehabilitation therapy over the next few months in order to re-learn to walk, move his limbs, and feed himself again. (AR 1075-1076).
D. Return to Work
16. On January 16, 2017, Mr. Radmilovich returned to work, but began to realize his capacity to complete his required tasks, including frequent travel for business, was greatly diminished as a result of both cognitive and physiological symptoms. (AR 1077).
17. The physiological symptoms, including heart palpitations, dizziness, shortness of breath, and chest pain, prompted him to return to see Dr. Kaushal on numerous occasions (AR 408) and cut back his work to be part-time (AR 588). 18. On September 7, 2018 Mr. Radmilovich, went to the emergency department after experiencing increasing chest pain. (AR 2107, 2113).
19. After this visit, Dr. Kaushal examined Mr. Radmilovich on September 18, 2018 and considered various possible causes of his chest pain, including psychosomatic causes resulting from the traumatic history of cardiac arrest exacerbated by depression and anxiety, chronic pericarditis, and structural abnormalities in the chest. (AR 220, 223). He noted that Mr. Radmilovich reported that exercise made him feel better, making the likelihood and anginal etiology of chest pain “very low.” (AR 223). Dr. Kaushal further observed that Mr. Radmilovich had “had to cancel recent business trips to avoid stress which are associated with an increase in chest pain symptoms” (AR 220) and instructed him not return to work (AR 1079).
20. Later that week, Dr. Kaushal reported, “I continue to feel that the majority of symptoms may be psychosomatic from patient's traumatic history of cardiac arrest and possibly exacerbated by depression/anxiety. I have not discovered any organic etiology of this chest pain other than possible neuropathic origin․” (AR 228).
21. At Dr. Kaushal's referral based on his belief that some symptoms may be psychosomatic, on September 21, 2018, Mr. Radmilovich began psychotherapy with Vivian Credidio, Ph.D. (AR 507). Dr. Credidio, in turn, sent Mr. Radmilovich to Dr. Keats for a neuropsychological evaluation. (AR 509).
22. On November 15, 2018 and December 19, 2018, Dr. Keats, a neuropsychologist, completed the interview portion of her exam of Mr. Radmilovich. (AR 585). The psychometric testing portion of the exam was completed on January 31, 2019. Id.
23. In her neuropsychological report (AR 585-606), Dr. Keats rendered two diagnoses: “Mild Neurocognitive Disorder Due to Multiple Etiologies, Without Behavioral Disturbance” and “Somatic Symptom Disorder, With Predominant Pain, Persistent, Mild Neurocognitive Disorder Due to Another Medical Condition.” (AR 598).
24. Dr. Keats noted that Mr. Radmilovich scored at or below 15% on tests of “Delayed contextual verbal learning and memory,” “Semantic and phonemic verbal fluency,” “Problem solving,” and “Fine motor speed and dexterity.” (AR 591).
25. Dr. Keats noted Mr. Radmilovich's scores indicated that his pain “extremely” interferes with his life (AR 594) and recommended a “more flexible, less physically and cognitively arduous occupation in which he can implement pacing and stress reduction.” (AR 598-599).
26. In August 2019, since it had been more than two years since the last ischemic assessment and due to Plaintiff's continued reporting of cardiovascular symptoms, Dr. Kaushal ordered a nuclear stress test for further evaluation. (AR 205).
27. The nuclear stress test, completed on August 29, 2019 showed that “Perfusion imaging is negative for ischemia.4 LV [left ventricle] function and WM are normal.” Overall, it found “[p]atient has low (<1%) cardiovascular risk.” (AR 230-31).
28. Despite the fact that the negative nuclear stress test could not confirm a diagnosis, Dr. Kaushal acknowledged that neuropsychological testing had “deemed origin of chest pain is not psychosomatic.” (AR 205).
E. Unum's Claim Evaluation Finds Mr. Radmilovich Disabled from a Cardiac Standpoint from September 25, 2018 to October 8, 2019
29. In September 2019, Plaintiff submitted a claim for LTD benefits. (AR 54-57). He identified his medical condition as “chronic chest pain / cognitive issues / other diagnosis.” (AR 54). He reported that “Heart Palpitations/Heart Flutters/Quivers in neck/Chest Pressure/Chest Pains/Spikes in Blood Pressure, PVC's, Other Heart issues, Cognitive degradation and limits” rendered him “unable to perform one or more” of the duties of his occupation as a director of production at Prudential. (AR 55).
30. In support of his claim, Plaintiff submitted an Attending Physician Statement (“APS”) from his cardiologist, Dr. Kaushal, who reported Plaintiff had a “history of cardiac arrest” for which he was hospitalized three years earlier, in August/September 2016. (AR 114). Dr. Kaushal reported a diagnosis of coronary artery disease (“CAD”) with “unstable angina,” and chronic angina. (AR 114-116). Dr. Kaushal identified restrictions and limitations (“R&Ls”) consisting of lifting more than 10 pounds, walking more than 50 feet, and cognitive tasks including analytics, administration, communication and project management. (AR 115). Dr. Kaushal told Unum these R&Ls were warranted because he found Plaintiff's “chest pain exacerbated by physical & mental demands of his job requirements.” Id.
31. In September 2019, Unum determined that Dr. Kaushal's records “do not support a severity of conditions that would prevent EE [employee] from performing his job/occ demands.” (AR 252).
32. However, Unum recognized “[t]here also may be some BH [behavioral health] component,” and noted that “records are missing from the therapist and from the neurocognitive psychological evaluation done earlier during 2019.” Id. Unum therefore sought to obtain the records from Plaintiff's psychologist (Dr. Credidio) and the report of the psychological evaluation done by Dr. Lauren Keats. (AR 252).
33. Dr. Credidio provided a written response without her treatment notes (AR 294-296), while Plaintiff's attorney declined to provide Dr. Keats' neuropsychological report at that time (AR 378). Plaintiff later provided the full report from Dr. Keats to Unum on January 14, 2020 (AR 20).
34. Dr. Credidio traced all of Mr. Radmilovich's psychological symptoms to his cardiac arrest. She explained that her diagnosis of “Adjustment Disorder w/ Mixed emotional features” was secondary to his cardiac diagnoses. (AR 294).
35. Dr. Credidio described Mr. Radmilovich as impaired and noted he was “adjusting to ongoing cognitive impairments and cardiac symptoms secondary to cardiac arrest.” Id.
36. She further noted his “primary stress comes from being at work and realizing that symptoms secondary to cardiac arrest impede him from functioning at the necessary level for his professional role.” Id.
37. Addressing his return-to-work prospects, Dr. Credidio noted that Mr. Radmilovich, as a “proud ex-Marine (pilot)” and a “long time high level professional,” would prefer to return to work, but his return to work was “unsuccessful given his inability to sustain the necessary levels of cognitive and physical performance.” (AR 296).
38. In December 2019, Unum engaged its own psychiatrist Dr. Morris and an additional psychiatrist Dr. Schroeder to provide further evaluation of Mr. Radmilovich's claim. (AR 504-512, 542-543). Both psychiatrists were provided with a generic list of occupational duties from which to evaluate Mr. Radmilovich's ability to perform his job. (AR 505; 542).
39. Dr. Morris asked Dr. Credidio to retract her opinion that Mr. Radmilovich's non-physical symptoms were caused by his physical conditions and to instead defer this opinion to other types of providers, but she disagreed. (AR 504-513).
40. In correspondence with Dr. Morris, Dr. Credidio noted Mr. Radmilovich's diagnoses included Hypoxic Encephalopathy after being “without oxygen for 10-15 minutes,” which “likely led to some degree of brain injury that he experiences as memory lapses and inability to track complex and sequential information and instruction.” (AR 508).
41. Both Dr. Morris and Dr. Schroeder pointed to Mr. Radmilovich's reported ability to perform basic activities of daily life as evidence that he did not have a mental disorder that would prevent him from performing his work duties. (AR 509; 543).
42. Unum also engaged other medical consultants to evaluate Mr. Radmilovich's health. Robert Nosaka, M.D. (internal medicine) reviewed the file and found no medical support for R&LS beyond October 9, 2019. (AR 518-521). Dr. Nosaka acknowledged that October 9, 2019 was the day Dr. Kaushal decreased the dosage of Plaintiff's Rosuvastatin (a cholesterol lowering drug). Id. He determined Plaintiff's cardiac-related conditions and symptoms appeared to be stable and well-managed and his exercise/cardiac tolerance was robust. (AR 252).
43. Dr. Nosaka's report focused on his cardiac health in the context of exercise capacity and provided no evidence of the “metabolic equivalent” of Mr. Radmilovich's occupation or information specific to his occupational duties, as he too was only provided the generic list of duties. (AR 493; 533-536).
44. Dr. Kaushal's treatment note dated October 9, 2019 reported that Plaintiff's exercise tolerance was also positive. His subjective complaints of chest pain, palpitations and flutters were “stable,” his flutters occurred for “short periods,” his chest pain was “intermittent,” and his activity level remained robust and therapeutic: “He remains active; cardiac rehabilitation, elliptical exercises 40 minutes 4-5 times a week․ He reports chest pain and tightness improve with exercise.” (AR 445).
45. On December 12, 2019, Dr. Nosaka phoned Dr. Kaushal; the next day (Friday, December 13, 2019) he wrote to him inviting Dr. Kaushal's comment. (AR 573-576). Dr. Kaushal responded on December 30, 2019, which as described further below, was after Unum issued its benefits termination on December 23, 2019.
46. Unum then turned to its cardiologist, Dr. DiDonna, asking whether he agreed with Dr. Nosaka's assessment. Dr. DiDonna stated in agreement that “the medical evidence does not support that the insured was/is precluded due to a physical condition from 10/9/19 forward (the date when rosuvastatin was decreased from 40 mg to 20 mg) from performing the sustained full-time activities” of his occupation. (AR 535-536). Dr. DiDonna found no “direct evidence” of the possible etiologies, pointing to normal test results. (AR 535).
47. Dr. DiDonna similarly equated Mr. Radmilovich's ability to exercise with his ability to perform his occupation: “[t]he insured has demonstrated above average exercise capacity for age and is reasonably capable of performing the occupational demands detailed in the medical referral.” (AR 535). Like other Unum doctors, Dr. DiDonna was not aware of Mr. Radmilovich's specific occupational duties, but relied on the generic list. (AR 533-536).
48. Based on the opinions of Dr. Nosaka, Dr. DiDonna, Dr. Morris, and Dr. Schroeder, Unum determined that the medical information, including test results as outlined in the letter did not establish that Plaintiff was unable to perform the demands of his occupation beyond October 8, 2019. (AR 554). Unum therefore approved benefits through that date and conveyed that determination to Plaintiff's attorney in a letter dated December 23, 2019. (AR 560-568).
49. On December 30, 2019, Dr. Kaushal responded to Dr. Nosaka's letter inviting his comments. In his response, he had crossed out Dr. Nosaka's statement “cardiac work-up for chest pain has been negative,” replacing it with the statement, “upon further review, the etiology of EE's chest pain may be coronary spasm or microvascular disease. Pain is debilitating and similar to his prior MI. Work stress has been found to be a trigger of pain.” (AR 575).
50. Asked about this response by Unum, Dr. Nosaka and Dr. DiDonna agreed in January and February 2020 that it did not change their assessment. (AR 614; 675).
51. Subsequently, Unum reviewed Dr. Keats' neuropsychological testing from January 2019 along with supplemental information from Dr. Keats. (AR 20-21). In a letter dated January 8, 2020, Dr. Keats reiterated that the etiology of Mr. Radmilovich's cognitive and functional impairments appeared to be his cardiac arrest, or a combination of his cardiac arrest and chronic hyperlipidemia, the latter of which is a risk factor for cognitive decline. (AR 607-613).
52. Dr. Keats wrote, “Mr. Radmilovich's cognitive profile suggests he has experienced a decline in cognitive functioning. He describes a concomitant functional decline at his place of work, which is consistent with the results from testing demonstrating cognitive changes.” (AR 611). Dr. Keats acknowledged that unpredictable pain and fatigue posed “a challenge for a fixed schedule.” Id.
53. After obtaining the data underlying Dr. Keats' report, Unum asked Dr. Nowell for an opinion, who indicated the testing “yielded no clear evidence of cognitive impairment.” (AR 664, 690). He did not explain why his interpretation of Dr. Keats' data differed from Dr. Keats' interpretation.
54. On February 14, 2020, Dr. Schroeder noted, “Neuropsychologists Dr. Keats and Dr. Nowell have disagreed about the meaning of the neuropsychological testing from 1/31/2019, with respect to potential psychological and cognitive impairment,” while Dr. Schroeder chose to adopt Dr. Nowell's analysis. (AR 689-690). He concluded, “the additional evidence did not support the AP's opinion about behavioral health restrictions/limitations during the timeframe in question by means of significant mental status abnormalities, psychiatric impairment of daily activities, or by participation in intensive mental health treatment.” (AR 690).
55. Because Unum determined the additional information did not provide a basis to overturn the prior claim determination, in February 2020 Unum reiterated its determination in a letter to Plaintiff's counsel that Plaintiff was able to perform the duties of his occupation and thus not entitled to benefits beyond October 8, 2019. (AR 697-705).
56. Regarding Mr. Radmilovich's cognitive deficits, Unum stated there was “no clear evidence of cognitive impairment” and pointed to the existence of a mild somatic symptom disorder. (AR 700). Unum did not suggest that Mr. Radmilovich undergo any particular tests to submit with his appeal. (AR 699). Unum further denied that Mr. Radmilovich suffered from any behavioral health impairment, but did not explain why “somatic symptom disorder” did not qualify as a behavioral health impairment. (AR 598, 152).
F. Mr. Radmilovich's Appeal of Unum's Claim Determination in August 2021
57. In a letter dated August 6, 2021 (AR 770-790), and in supplemental submissions (AR 1314, 1420), Mr. Radmilovich appealed the denial of his LTD claim through present counsel, providing Unum with additional information.
58. The materials he provided included a July 2020 neuropsychological evaluation report by Dr. Roger Light, Ph.D. which reflected a diagnosis of major neurocognitive disorder, a difference from Dr. Keats' diagnosis of mild neurocognitive disorder. (AR 844-885).
59. In his appeal, Mr. Radmilovich also provided evidence of a cardiac workup he underwent in October-November 2020 with Dr. Kaushal, which Dr. Kaushal believed finally determined the cause of Mr. Radmilovich's chest pain. Dr. Kaushal's notes from this workup found Plaintiff's “[r]ecent stress echocardiogram markedly abnormal, demonstrating stress-induced ischemia of the anterior, anteroseptal, and inferior walls. Likely accounting for patient exertional dyspnea and chest pain syndrome.” (AR 1326). The revelation of ischemia led Dr. Kaushal to deem Mr. Radmilovich unable to return to work indefinitely. Id.
60. Mr. Radmilovich's appeal included an independent report from May 14, 2021 by Dr. Parag Goyal, a Cardiologist at New York's Weill Cornell Medicine. (AR 886, 893). This included a medical examination of Mr. Radmilovich via teleconference and a complete review of his medical records and cardiac studies. (AR 886-892). Dr. Goyal acknowledged that PTSD could be contributing to Plaintiff's chest pain but could not be the sole cause because “objective data on the stress echocardiogram support[s] an organic etiology.” (AR 890).
61. Dr. Goyal stated that Mr. Radmilovich's symptoms supported a diagnosis of typical angina although there were also some atypical features such as the fact that exercise did not reproduce chest pain. (AR 889). This diagnosis differed from prior observations of Dr. Kaushal which had noted a “very low likelihood of angina etiology of chest pain” (AR 223) and that “chest pain syndrome is likely nonanginal in etiology” (AR 219).
62. Dr. Goyal acknowledged the 2019 stress test was negative for ischemia, but explained that “traditional nuclear stress testing (which was previously performed in August 2019) may miss this diagnosis [of coronary microvascular disease]”. Id.
63. Dr. Goyal noted that the purpose of the 2020 cardiac catheterization was to identify whether Mr. Radmilovich had “ischemia related to his bypass grafts” to see if stenting would be necessary. (AR 889).
64. Dr. Goyal also confirmed that “[s]erial echocardiograms have demonstrated that his left ventricular ejection fraction have improved/recovered. Improvement from revascularization (CABG) further supports the likely ischemic etiology of his heart failure.” (AR 887).
65. Concerning the October 2020 Stress echocardiogram, Dr. Goyal noted that “there is objective data demonstrating ongoing myocardial ischemia, which further supports an organic cardiac etiology to [Mr. Radmilovich's] disabling symptoms.” Id. Dr. Goyal therefore found it reasonable to conclude that etiology of Mr. Radmilovich's condition is “coronary microvascular disease” and that it was disabling dating from September 7, 2018, the date Mr. Radmilovich went to the emergency department with chest pain, to the present. (AR 889-890).
66. Dr. Goyal explained that Mr. Radmilovich's “stress echocardiogram demonstrates that his heart becomes acutely ischemic and dysfunctional in the setting of stress. This can lead to worse chest pain symptoms, as well as lead to further injury of the myocardium.” (AR 891). He added that “mental stress-induced myocardial ischemia in patients with known coronary artery disease increases the rate of subsequent cardiac events.” Id.
67. In a September 2, 2021 letter also included in the appeal, Dr. Kaushal explained, “Mr. Radmilovich has undergone an extensive cardiac workup with a resulting diagnosis of coronary microvascular disease as the etiology of his symptoms” with results that are the “hallmark of coronary microvascular disease.” (AR 1426). Dr. Kaushal discussed Mr. Radmilovich's “severe and disabling symptoms of chest pain, shortness of breath, and fatigue which have been exacerbated by physical and emotional stress, including that provided by his occupation.” Id.
68. In his September 2021 letter, Dr. Kaushal also stated as follows: “The objective findings which support this [diagnosis of coronary microvascular disease as the etiology of his symptoms] include the demonstration of severe ischemia on multiple stress echocardiograms.” (AR 1421).
69. This letter differed from Dr. Kaushal's prior statements in 2018 and 2019 to Plaintiff the effect that Mr. Radmilovich's reported chest pain was “[u]nlikely [of] ischemic etiology.” (AR 387). This letter, however, was written after the workup Mr. Radmilovich received in October-November 2020, including the October 2020 Stress echocardiogram that led Dr. Goyal to observe there was objective data demonstrating ongoing myocardial ischemia.
70. In his letter submitted in the appeal, Dr. Kaushal stated, “I have emphatically advised Mr. Radmilovich that he should not resume work as a life-preserving measure. If Ischemia is repeatedly elicited and protracted, this can result in adverse outcome including heart attack, heart failure, and cardiac death.” (AR 1427).
71. Mr. Radmilovich also underwent further neuropsychological testing with Dr. Roger Light, Ph.D for the purpose of the appeal. (AR 844-845). Dr. Light tested and interviewed Plaintiff, as well as Mr. Radmilovich's brother, a former co-worker, and Dr. Credidio (AR 845). He also analyzed the raw data and testing results from Dr. Keats' previous testing, as well as reviewed medical records dating from the cardiac arrest in 2016. (AR 844, 845, 861-862, 874).
72. Dr. Light found a greater degree of impairment than Dr. Keats and diagnosed Mr. Radmilovich with “Major Neurocognitive Disorder Due to an Acquired Organic Brain Injury (likely due to Anoxic-Hypoxic Encephalopathy, Multisystem Failure, and Critical Illness Cognitive Impairment) Without behavioral disturbance.” (AR 872).
73. Dr. Light traced this disorder to the cardiac arrest Plaintiff suffered in 2016, particularly emphasizing the insufficient oxygen flow to the brain. He estimated that Mr. Radmilovich was without cardiac activity or blood circulation for 5-20 minutes post cardiac arrest and noted that the transport to the ER, during which time Mr. Radmilovich had again lost his pulse and was not breathing on his own, were “consistent with insufficient oxygen flow to the brain, required for a diagnosis of hypoxic encephalopathy.” (AR 861).
74. Dr. Light opined that looking at the physical impairments alongside “the cognitive impairments documented in the current assessment, including executive dysfunction, lack of verbal precision, verbal fluency inefficiency, ideational and verbal perseveration, mental calculation deficits, and divided attention deficits, and it becomes obvious that Mr. Radmilovich will never be able to successfully return to his usual and customary occupation.” (AR 874).
75. The appeal also included a vocational analysis by vocational expert Charles Galarraga, who concluded that Mr. Radmilovich could no longer perform the specific substantial and material duties of his occupation in the usual and customary way. (AR 825-842).
G. Unum Conducts Review and Mr. Radmilovich Responds to Unum's Doctors
a. Psychological Review
76. In response to Plaintiff's appeal, Unum arranged for several additional medical consultants to review the file. Neuropsychologist Julie Guay, Psy.D. reviewed Dr. Light's report and the raw data from his testing. (AR 1414-1415).
77. Dr. Guay found that the data supported a diagnosis of mild, not major, neurocognitive disorder. (AR 1414-1415).
78. She questioned the reliability of Dr. Light's opinion on several grounds including:
a. “Dr. Light used a narrow range for premorbid ability (>90%) ․ and argued that every score below that range was considered a decline. This fails to account for normal variability that occurs even in individuals who are very high functioning. The claimant's test indices and vocational history support a hypothesis that premorbid functioning was above average and a range of >75th percentile is more reasonable to account for normal variability.” (AR 1414-1415)
b. “The claimant demonstrated no significant decline on measures of abstract verbal and nonverbal reasoning and two of the three measures of auditory working memory. On most of the remaining tasks, including perceptual reasoning abilities, processing speed, basic attention, and most measures of executive functioning, his scores were average, which suggests mild decline.” Id.
c. “The data does not support the conclusion that somatization was not a possible factor in the claimant's performance.” Id.
79. While Dr. Guay disagreed with some of Dr. Light's conclusions, at no point did she offer an opinion on whether Mr. Radmilovich could have performed the duties of his occupation with Mild Neurocognitive Disorder. Id.
80. Psychiatrist Peter Brown, M.D. reviewed the record on appeal, reviewing the prior reports from Dr. Keats, Dr. Light and Dr. Guay. (AR 1438).
81. Dr. Brown found testing results showed “at most, a mild decline in cognitive function with findings that are not consistent with those typically seen in cognitive disorder.” (AR 1439). Dr. Brown also added that Plaintiff's “refusal to provide relevant treatment records seriously compromised any evaluation of [Dr. Credido's] assertions.” Id.
82. In January 2022, Mr. Radmilovich, in responding to Unum's dispute of Dr. Light's diagnosis, provided a letter from Dr. Light. (AR 1563-1566).
83. Dr. Light noted that even Dr. Guay's diagnosis of Mild Neurocognitive Disorder “would absolutely preclude Mr. Radmilovich from successfully returning to his usual and customary occupation. As per DSM-5 and ICD-10, there are only two possible diagnoses of neurocognitive disorder, Mild and Major Neurocognitive disorder. There is no “moderate” condition. Diagnosing mild neurocognitive disorder does not mean that the impact on one's functioning would be mild. Rather, this condition refers to the depth and breadth of neurologically based cognitive deficits. Those with mild neurocognitive disorder often will find tasks that were simple for them to accomplish prior to the development of that condition would become much more difficult or potentially impossible for them to accomplish. In a high-level occupation such as that of Mr. Radmilovich, which as noted by Dr. Keats is “multifaceted, requiring many different responsibilities, including verbally corresponding, negotiating, travelling, speaking publicly, managing data bases, and managing others․ [and requires] working long days, multi-tasking, and sustaining attention, and is stressful and physically arduous,” his physical symptoms of fatigue and his cognitive deficits, whether considered either “mild” or “major,” would be expected to preclude his successfully return to work.” (AR 1564).
84. Dr. Light also argued that even if Mr. Radmilovich suffered from a somatization disorder or other emotional issues, that did not have any bearing on whether he suffered from neurological impairment. Id.
85. Plaintiff also sent Unum an email exchange dated September 15, 2018 with a subject line titled “David out sick.” (AR 1569). In these emails, after Plaintiff said that he had “contacted the airlines and canceled” and “will be out through Tues.,” a person at Prudential named Stefan Schurter responded as follows: “for your return, we will need a doctor's note that clears you back to work without restrictions. We need to make sure you are 100% ready and healthy for work.” (AR 1569).
b. Cardiac Review
86. On September 22, 2021, Unum sent the file to Dr. Scott Norris, a family and occupational medicine physician, who stated “given the insured's complex cardiac history and condition and the inconsistent cardiac testing data/interpretation when compared to the insured's reported activities, I will refer the file for a Cardiology OSP consult to address insured's functional capacity as it relates to his cardiac condition.” (AR 1446).
87. Despite the disclaimer that his evaluation did not address functional capacity as it related to Mr. Radmilovich's cardiac condition given his more general expertise, Dr. Norris noted discrepancies between Dr. Kaushal's letters prepared after Plaintiff's claim was denied when compared with the evidence of Plaintiff's ability to tolerate work activities as well as regular (and strenuous) exercise, and that “select cardiac functional testing” showed no evidence of ischemia. (AR 1444-1446). Dr. Norris also noted there was no explanation for “how [Plaintiff] would be able to tolerate the physical stress of a rigorous exercise program yet be unable to tolerate the occupational stress associated with his work.” (AR 1446).
88. Unum then sent Mr. Radmilovich's claim for a paper review with their cardiologist, Dr. Tim McDermott.
89. Dr. McDermott found there was “conflicting evidence” as to whether Mr. Radmilovich had myocardial ischemia. (AR 1457). He found, however, that regardless of whether myocardial ischemia was present, Plaintiff's medical records established that the insured retains “the functional capacity to perform (and exceed) the occupational demands of his profession․” Id. Dr. McDermott did not review the imaging from Plaintiff's October 2020 stress electrocardiogram, the primary test Dr. Kaushal relied on in making a diagnosis of ischemia, when making this determination.
90. Dr. McDermott stated that there was no “clear relation between physical or work stress and his related symptoms.” (AR 1457). He relied on the generic list of job demands supplied by Unum in drawing this conclusion. (AR 1449). Additionally, like Unum's other doctors, Dr. McDermott pointed to Mr. Radmilovich's ability to do nonoccupational activities such as exercise “household chores, shopping, visiting relatives, performing household repairs, going out to eat, going to movies, taking trips and going to the park/beach.” (AR 1457)
91. In a December 28, 2021 letter, Dr. Kaushal argued that it was factually and medically wrong to rely on Mr. Radmilovich's exercise tolerance in assessing his ability to work. (AR 1567). While noting Mr. Radmilovich's exercise tolerance was excellent during the October 26, 2020 stress test, Dr. Kaushal also explained that that degree of exercise was associated with objective severe ischemia, supporting the idea that physical activity may be harmful. Id.
92. Dr. Kaushal also noted that “during the last 9 months, Mr. Radmilovich's exercise tolerance has significantly diminished, to the point where he is no longer exercising routinely due to the symptoms previously described,” adding that he “strongly suspect[ed] that the pathology attributable to this change has been present well before 2/14/2020.” Id.
93. Regarding the inconsistent test results over time indicating ischemia, Dr. Kaushal wrote, that it is “also-well described in cardiology literature that balanced ischemia can result in false-negative nuclear perfusion results” and that he “suspected microvascular dysfunction to be the etiologically of this discrepancy.” Id.
H. Unum Denies Mr. Radmilovich's Appeal on January 21, 2022
94. After receiving the responses from Dr. Light and Dr. Kaushal, Unum upheld its original decision to terminate LTD and LWOP benefits. (AR 7261-7276). Unum stated: “The records do not support he is disabled from performing his usual occupation as of February 14, 2020, when his Long Term Disability benefits ended. His Long Term Disability coverage also ended at that time, as he was not in active employment with the policyholder to be in an eligible group for coverage. Any subsequent worsening of his condition or new periods of disability are not covered.” (AR 7266).
95. As in its initial termination letter, Unum listed the generic occupational requirements, rather than those provided by Charles Galarraga's report. (AR 7264).
III. CONCLUSIONS OF LAW
After consideration of the parties' trial briefs, the Court makes the following conclusions of law:
1. Any conclusion under this category that is a finding of fact is also hereby adopted as a finding of fact.
2. This case is governed by the Employee Retirement Income Security Act, 29 U.S.C. Section 1001, et seq. (“ERISA”) because it involves an employee welfare benefit plan within the meaning of that statute.
3. In making the above Findings of Fact and the foregoing Conclusions of Law, the Court employed a “de novo” standard of judicial review, per the parties' stipulation (Dkt. 16-3 at 3), and conducted an independent and thorough inspection of the Administrative Record without affording any deference to the plan administrator's findings. Silver v. Executive Car Leasing Long-Term Disability Plan, 466 F.3d 727, 728 (9th Cir. 2006).
4. As required on a de novo review, the Court freshly evaluated whether Mr. Radmilovich was disabled within the terms of the Policies as of February 2020 and decided which parties' conflicting evidence is more likely to be true. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc).
5. It is Plaintiff's burden to prove he is disabled by a preponderance of the evidence during the relevant timeframe (which in this case is February 2020, when Unum closed his claim). Muniz v. Amec Constr. Mgmt., 623 F.3d 1290, 1294 (9th Cir. 2010) (“the burden of proof is placed on the claimant”); see also Eisner v. The Prudential Ins. Co. of Am., 10 F.Supp.3d 1104, 1113–14 (N.D. Cal. 2014).
6. “The district court must examine only the rationales the plan administrator relied on in denying benefits and cannot adopt new rationales that the claimant had no opportunity to respond to during the administrative process.” Collier v. Lincoln Life Assurance Co. of Bos., 53 F.4th 1180, 1182 (9th Cir. 2022).
7. In this case, Unum's reasons for terminating Mr. Radmilovich's benefits were based on “paper reviews” of his medical records by their own reviewers. The Court finds the opinion of Mr. Radmilovich's attending physicians more reliable and credible than the opinion of the reviewers who only conducted paper reviews of his medical records. While an ERISA claims administrator is not required to conduct in-person exams, the decision not to do so casts doubt on the “thoroughness and accuracy of the benefits determination. Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 634 (9th Cir. 2009); Holmstrom v. Metropolitan Life Ins. Co., 615 F.3d 758, 775 (7th Cir. 2010) (“None of the doctors who concluded that Holmstrom failed to establish disability ever examined her.”). Courts “generally give greater weight to doctors who have actually examined the claimant versus those who only review the file, especially when they are employed by the insurer as here.” Backman v. Unum Life Ins. Co. of Am., 191 F. Supp. 3d 1053, 1066 (N.D. Cal. 2016).
8. On de novo review, the Court finds that Mr. Radmilovich has proved by a preponderance of the evidence that he was disabled under the policy during the relevant time, which is as of Unum's termination of benefits on February 14, 2020.
9. Claims must be administered according to the plan's definitions. Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 460 (9th Cir. 1996). The record shows that Unum's physicians relied on a generic list of occupational activities that they regularly apply to people in professions differing from Mr. Radmilovich's, rather than the specific requirements of Mr. Radmilovich's job. See e.g., Chung v. Provident Life and Cas. Ins. Co., No. 21 CIV. 9344 (AKH), 2023 WL 5928529, at *12 (S.D.N.Y. Sept. 12, 2023). There, Provident/Unum applied the same cognitive demands to the plaintiff, a mergers and acquisitions attorney, as were applied to Mr. Radmilovich, indicating they do not address the specific cognitive demands of a Production Superintendent.
10. By assessing Mr. Radmilovich's capacity to perform generic occupational demands rather than the specific duties of his job, Unum's doctors failed to fully apply the standard of disability articulated in the policy. The Court finds that Unum's doctors' conclusions that Mr. Radmilovich was not disabled under the policy did not take into consideration whether he was unable to perform “with reasonable continuity the substantial and material acts necessary to pursue [his] usual occupation in the usual and customary way.” His usual occupation was “the substantial and material acts you are routinely performing for your Employer when your disability begins.” (AR 136). It is well-established that insurers must consider the insured's actual job activities See, e.g., Salz v. Std. Ins. Co., 380 F. App'x 723, 724 (9th Cir. 2010); Kay v. Hartford Life & Accident Ins. Co., No. 21-55463, 2022 WL 4363444, at *2 (9th Cir. Sept. 21, 2022).
11. Under Ninth Circuit precedent and ERISA's statutory scheme, the Court considers evidence acquired after Unum terminated Mr. Radmilovich's benefits. “Medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988); see also Demer v. IBM Corporation LTD Plan, 835 F.3d 893, 907-908 (9th Cir. 2016) (holding same). As to the statute, ERISA claimants have 180 days to submit an appeal, meaning they regularly undergo and submit updated medical evaluations after the date of termination or denial. 29 C.F.R. § 2560.503-1 (h)(3)(i); (h)(4).
12. Medical diagnosis is often imprecise, so the fact that a doctor's opinion may change over time does not alone render it incredible. A disability may commence long before its etiology is fully understood. Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir. 1995) (remanding to consider new physical etiology as “not a new claim, but simply a new explanation for [plaintiff's] disability”); see also Hineman v. Long Term Disability Plan of ETrade Grp., Inc., 279 F. App'x 546, 548 (9th Cir. 2008) (finding it clearly erroneous to equate the date of disability with the date the disability was first medically diagnosed).
13. Similarly, the fact that a doctor's diagnosis occurs after benefits were terminated does not automatically render it incredible. See, e.g., Radford Tr. v. First Unum Life Ins. Co. of Am., 321 F. Supp. 2d 226, 236–37 (D. Mass. 2004), rev'd in part, appeal dismissed in part, 491 F.3d 21 (1st Cir. 2007) (rejecting Unum's argument that disability was unsupported because a diagnosis by a doctor was not made until after claimant was terminated). In the absence of other indicia that a doctor is not credible, the fact that they issued a diagnosis after the commencement of a claimant's disability is not a reason to discredit that diagnosis.
14. Looking first at Mr. Radmilovich's cognitive impairment, that these deficits alone may render him disabled from his occupation is corroborated by Unum's own hired expert, Dr. Guay. Dr. Guay agreed with Dr. Keats that Mr. Radmilovich suffered from Mild Neurocognitive Disorder. Dr. Brown's determination to the contrary, based on a paper review, does not outweigh the opinions of Dr. Guay, Dr. Keats, and Dr. Light. Furthermore, the Court finds credible the explanation by Dr. Light as to why a diagnosis of “mild neurocognitive disorder” does not mean that the impact on Mr. Radmilovich was “mild,” but would in fact substantially impede his ability to perform the specific duties of his occupation.
15. Considering that it was statistically extremely unlikely that Mr. Radmilovich would survive his cardiac arrest, and accompanying deprivation of oxygen for 5-20 minutes, without cognitive deficits, the Court finds his complaints of his cognitive problems are entitled to greater weight. Additionally, as discussed further below, Mr. Radmilovich is not required to demonstrate that he is disabled from performing the duties of his occupations based on a cognitive deficit alone.
16. Turning to Mr. Radmilovich's alleged disability due to his cardiac problem, the Court finds no reason to discredit Dr. Kaushal's ultimate diagnosis of ischemia just because the diagnosis changed over time, after additional testing and diagnostic inquiries. Bolstering Dr. Kaushal's credibility, an independent cardiologist, Dr. Goyal, supported both his conclusions and his recommendations that Mr. Radmilovich should not be working at a stressful job.
17. The conclusions of Dr. Kaushal and Dr. Goyal indicate that at the time Mr. Radmilovich stopped working in February 2020, he was disabled due to a diagnosis of myocardial ischemia that did not come to light until his symptoms later worsened. That the diagnosis only became conclusive after Mr. Radmilovich applied for benefits does not mean he was not disabled at the time of application.
18. The Court rejects the rationale provided by Unum's reviewers that Mr. Radmilovich's performance on treadmill stress tests proves he could tolerate the stress of his occupation. Treadmill stress tests alone cannot measure a claimant's ability to perform an occupation. In State of New York v. Sullivan, the Second Circuit found that “[a]n individual who does not show signs of heart disease during a treadmill test may still be severely disabled from ischemia. False assessments may occur because treadmill testing does not consider the full range of stresses and exertions that arise at the workplace or in daily living. For example, the test does not account for demands placed on the heart by heat, cold, humidity, pollution, altitude, psychological pressures and physical efforts that are sudden or prolonged.” 906 F.2d 910, 914 (2d Cir. 1990). See also Silver, 466 F.3d at 734 (finding test results indicating some improvement in plaintiff's condition as to the affected areas of his heart fell short of demonstrating his ability to return to a stressful work environment).
19. In rejecting Mr. Radmilovich's reports of chest pain, dizziness, nausea, and cognitive impairment, Unum relied solely on the reports of reviewing physicians, who did not examine or speak with plaintiff. While paper reviews are acceptable under ERISA, their use to discount a patient's report of their own symptoms is questionable. See Demer, 835 F.3d at 905-906 (quoting Godmar v. Hewlett–Packard Co., 631 Fed.Appx. 397, 406 (6th Cir. 2015) (“there is ‘nothing inherently objectionable about a [paper] review,’ ” but such “reviews are particularly troubling when the administrator's consulting physicians—who have never met the claimant—discount the claimant's limitations as subjective or exaggerated”). Moreover, reports by Mr. Radmilovich's treating physicians confirm his symptoms and provide a physical etiology explaining them that stems from his cardiac arrest in 2016.
20. A claims administrator must take all of a claimant's conditions into consideration, including those that might not be disabling alone but might worsen the impact of others. Green v. Sun Life Assurance Co. of Canada, 259 F.App'x 42, 44 (9th Cir. 2007) (a claimant is not required to claim disability based on a single diagnosis). Unum was therefore under a duty to consider whether Mr. Radmilovich, who was suffering from intermittent chest pain, fatigue, dizziness, and nausea, and who also had some level of diminished cognitive capacity, an Adjustment Disorder due to cardiac condition, and perhaps a somatic symptom disorder, could perform his occupation with “reasonable continuity” and in the “usual and customary way.” It failed to adequately do so here. Although the Court does not reach the conclusion that Mr. Radmilovich has met his burden to prove that he was disabled from just his cardiac condition or just his cognitive impairments, it finds these combined conditions would render him disabled and unable to perform his “own occupation” under the terms of the policy, and that he was disabled as of the date of Unum's termination of benefits.
After considering the parties' arguments, trial briefs, response briefs, and supplemental briefs, for the reasons explained above and based on the totality of the evidence in the Administrative Record, the Court holds that Plaintiff was disabled under the terms of the long-term disability policy as of February 2020. Accordingly, this Court awards Mr. Radmilovich benefits through the “own occupation” period and remands the case back to Unum to decide in the first instance whether Mr. Radmilovich is entitled to benefits under the any occupation standards of the LTD and LWOP policies and their respective definitions.
For the foregoing reasons, the Court overturns Unum's claims decisions denying plaintiff's LTD and LWOP benefits. The parties are to meet and confer on a Proposed Judgment, consistent with the Findings of this Order and plaintiff is to submit the same to the Court within ten (10) days of the date of these findings. Thereafter, the parties are to meet and confer regarding plaintiff's Motion for Attorneys' Fees. If the parties are unable to reach an agreement regarding the amount of fees, plaintiff may submit his fee Motion to the Court within thirty (30) days of the date of Judgment.
DAVID O. CARTER UNITED STATES DISTRICT JUDGE
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Docket No: CASE NO. SA CV 22-00181-DOC-KES
Decided: November 07, 2023
Court: United States District Court, C.D. California.
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