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Avena v. Unum Life Insurance Co.

United States District Court, E.D. Louisiana

April 15, 2015

JEFFREY V. AVENA
v.
UNUM LIFE INSURANCE CO. OF AMERICA, Section

ORDER AND REASONS

JANE TRICHE MILAZZO, District Judge.

Before the Court are Cross-Motions for Judgment as a Matter of Law (R. Docs. 11, 13). For the following reasons, Plaintiff's Motion is DENIED, and Defendant's Motion is GRANTED. The Court will enter final judgment in favor of Defendant.

BACKGROUND

Plaintiff, Jeffrey Avena, filed this suit seeking reversal of the denial of his claim for long-term disability benefits under an employee disability plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Defendant, UNUM Life Insurance Company of America ("Unum"), is the administrator and payor of the plan.

Plaintiff is 55-years-old and was employed as a senior director of casino operations. On October 31, 2011, Plaintiff was involved in a car accident in which he was rear-ended while stopped on an interstate exit ramp. Plaintiff first sought medical attention two days after the accident. His chief medical complaints are pain in the lower back, neck, shoulder, and left foot. In the several months following the accident, Plaintiff's primary physician, Dr. Dyess, treated Plaintiff's ailments with the medications Motrin, Norco, and Soma. An MRI of the lumbar spine revealed a multilevel, mild-to-moderate facet arthropaty and mild disk bulging. An MRI of the left foot was normal. On two occasions, Plaintiff received facet joint injections to the right L4-5 and L5-S1 and a transforaminal nerve root injection to the L5-S1. Plaintiff reported receiving some relief from these injections, but the pain later returned. Dr. Dyess restricted Plaintiff's movement to avoid prolonged sitting, standing, walking; climbing stairs or ladders; and lifting objects heavier than 40lbs. Dr. Dyess recommended that Plaintiff participate in physical therapy, but there is no indication in the administrative record that Plaintiff actually did so. Dr. Dyess also indicated that Plaintiff was on strong medications that made decision-making difficult.

Nearly nine and a half months after the accident, Dr. Dyess referred Plaintiff to a neurosurgeon to discuss the possibility of surgery because Plaintiff continued to report the same level of pain. The neurosurgeon, Dr. Vogel, opined that Plaintiff has a cerebral concussion, Grade I herniated cervical disc vs segmental cervical instability, and herniated lumbar disc vs segmental lumbosacral instability. On their second visit, Dr. Vogel recommended that Plaintiff be admitted to the hospital for further evaluation to determine whether he is a surgical candidate. Plaintiff ultimately elected to continue conservative treatment.

Following the accident, Plaintiff was out of work for several months. He returned to work on January 16, 2012, but ultimately resigned on May 17, 2012, because he felt his condition prevented him from continuing to work. Indeed, Dr. Dyess recommended that Plaintiff cease working beginning on April 26, 2012. In its investigation, however, Unum discovered an internet article indicating that Plaintiff attended a fishing trip in "choppy" waters on May 10, 2012. Defendant remains unemployed and stays at home to care for his newborn daughter.

Unum initially denied Plaintiff's claim for long term disability payments because its in-house reviewing physicians felt that the evidence in the record did not support a finding that Plaintiff was disabled. In order to be characterized as "disabled" under Plaintiff's policy with Unum, he must be (1) limited from performing the material and substantial duties of his regular occupation due to injury and (2) have a 20% or more loss in his indexed monthly earnings due to the same injury. Defendant found that the record did not support the position that Plaintiff was unable to perform the duties required by his job as a director of casino operations. Defendant's vocational rehabilitation consultant characterized Plaintiff's job as requiring frequent sitting, occasional standing, walking, reaching, and handling, and occasional exertion of up to 20 pounds of force to lift, carry, or move objects. Defendant relied on the following facts to support its opinion that Plaintiff is not disabled: (1) after his car accident, Plaintiff was able to work full time for five months; (2) the record contains no indication of medication side effects; (3) Plaintiff's lumbar MRI was consistent with age-related changes and inconsistent with his complaints; and (4) neither a cervical MRI nor a nerve conduction study was performed to evaluate Plaintiff's complaints of neck and arm pain.[1] Plaintiff was not personally evaluated by Defendant's physicians.

Plaintiff appealed this determination and submitted additional information for Unum's consideration. Specifically, Plaintiff submitted records from his psychiatric evaluations with Dr. Denney. Those records indicated that Plaintiff reported difficulty concentrating at work because of his pain medications, panic attacks, depression, difficulty sleeping, and anxiety. Dr. Denney diagnosed Plaintiff with panic disorder, general anxiety disorder, and adjustment disorder with depression. Plaintiff was given a prescription of Ativan to be taken when needed. Plaintiff continued to see Dr. Denney on several occasions, although there was a gap in care between April 2012 and October 2012.

Plaintiff also supplemented his appeal with records of his visit to a podiatrist, Dr. Dabdoub. Dr. Dabdoub diagnosed Plaintiff with capsulitis, neuritis, and foot inflamation. Medications and padding were prescribed to address Plaintiff's left foot pain. There is no record of a follow-up visit, and the prescribed medications were filled only once.

Plaintiff also provided letters from Dr. Dyess to Plaintiff's attorney, which further indicated that Plaintiff's complaints and treatments remained unchanged. Dr. Dyess opined that Plaintiff "has a poor prognosis and will likely remain totally disabled for life."

Plaintiff's record was also supplemented with the accident report. The report indicated that Plaintiff's vehicle sustained only "minor" damage in the accident and that the other driver's speed was "unknown, " although Plaintiff has stated that he was hit at a speed of 50 to 55mph. The accident report indicated that no one on the scene received emergency medical treatment and both cars were driven away from the scene without the necessity of towing.

Despite this additional information, Unum's decision remained unchanged. It informed Plaintiff that the many inconsistencies in the administrative record did not support Plaintiff's pain complaints or a finding that he is "disabled" under the terms of his ...


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