United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court are memoranda filed by plaintiff Christi
Hillebrandt and defendant Unum Life Insurance Company of
America (“Unum”) relating to the plaintiff's
petition for review of Unum's decision to deny accidental
death benefits for the death of her husband, Charles
Hillebrandt (“decedent”). Both parties now seek
judgment as a matter of law, following remand of the case to
the plan administrator for consideration of additional
evidence. See docs. 16, 19. Because the challenged
decision arises from a life insurance policy that the
decedent obtained from his employer, the court's review
is governed by the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of this
court. For the reasons provided below, Unum is entitled to
judgment as a matter of law in this matter. Accordingly,
IT IS RECOMMENDED that plaintiff's
claims be DENIED and DISMISSED WITH
action arises from Unum's denial of accidental death
benefits for the decedent's death on May 6,
2015. The decedent had basic and supplemental
life insurance coverage through group plans covered by ERISA
and issued to his employer. See doc. 10, atts. 2
& 4 (basic and supplemental policies). Both policies
provide for payment of additional benefits for losses caused
by accidental bodily injury, but state that losses
“caused by, contributed by, or resulting from . . .
disease of the body” are excluded from coverage.
See doc. 10, att. 2, pp. 34-40; doc. 10, att. 4, pp.
46-52. Unum has discretionary authority, as delegated by the
plan administrator, to make benefit determinations and
interpret plan provisions. Doc. 10, att. 2, p. 54; doc. 10,
att. 4, p. 67. Additionally, under both plans the insured or
his representative is required to show that a covered loss
occurred. See doc. 10, att. 2, p. 15; doc. 10, att.
4, p. 16.
Original Claim Review
decedent, a 58-year-old man, was scuba diving in Cozumel on
May 3, 2015, when he surfaced due to difficulty breathing.
Doc. 10, att. 1, p. 38. He passed into a coma and was
airlifted to a hospital in Houston, Texas, where he died on
May 6, 2015. Id.
incident report from the diving guide, which was translated
from Spanish, described how the decedent began having
complications within the first three minutes of diving, while
the group was at a depth of up to 35 feet. Id. at
418. The diving guide helped him come up to the surface.
Id. The decedent then told the guide that he was
having trouble breathing and the guide noticed that he had a
cyanotic appearance. Id. He returned to the boat
with the decedent and gave him oxygen, but the decedent
suffered what the guide described as a heart attack shortly
thereafter. Id. The guide provided CPR for 25 to 30
minutes, until they reached the shore and the decedent was
moved to an ambulance. Id.
emergency medical report from the Cozumel International
Clinic stated that the decedent presented with problems
breathing while scuba diving. Id. at 390. It
recorded that, after ascent, the decedent's shortness of
breath increased and led to cyanosis, apnea, and loss of
consciousness. Id. Upon arrival at the clinic the
decedent was cyanotic and comatose, with no palpable pulse.
Id. He was resuscitated but remained in a coma.
Id. A lung ultrasound showed “pattern B (focal
alveolar interstitial syndrome) in both pulmonary
bases” while an echocardiogram showed no abnormalities.
Id. The decedent was diagnosed with “Overall
neurological dysfunction Post prolonged CPR, Compensatory
Respiratory Acidosis, Asthma, Hypertension, Overweight, Mild
the decedent's death in Houston, an autopsy was performed
at the Harris County Institute of Forensic Sciences. See
Id. at 36-42. The autopsy report noted that the decedent
had a history of hypertension, dyslipidemia, and asthma, and
that the body showed signs of “[h]ypertensive and
atherosclerotic cardiovascular disease.” Id.
at 38, 42. Microscopic examination of the lungs showed
“[f]ocal dilated airways with alveolar septal
rupture.” Id. at 43. The autopsy report
concluded by noting that the death may have resulted from a
cardiac event due to underlying cardiovascular disease, but
that “the scuba diving equipment must be examined and
tested in deaths that occur in this setting.”
Id. at 42. Because the equipment was unavailable for
testing, the cause and manner of death were reported and
undetermined. Id. at 37, 42.
plaintiff submitted claims to Unum for basic and supplemental
life benefits and basic and supplemental accidental death
benefits. Id. at 34-35. She attached the
decedent's medical records and the autopsy report.
Id. She also provided an account of the
decedent's death, stating that it was “[her] belief
and the consensus of [her] friends that there was an
equipment failure, either mold in a line or some other defect
that was the source of the resulting death.”
submitted the claim and autopsy report for internal review by
a consulting physician. See Id. at 358-59. Dr.
Barbara Golder, a pathologist, completed the review on
September 23, 2015. Id. at 359. She observed that
the autopsy showed “no evidence of trauma apart [from]
that incurred by resuscitation” and that the scuba gear
was not available for testing. Id. She stated that
neither cardiac disease nor equipment failure could be ruled
out on the information provided, and so she could not
determine the cause of death “to a reasonable degree of
medical certainty.” Id. Unum then sent a
letter to the plaintiff, approving her claims for basic and
supplemental life benefits and advising that it was awaiting
accident reports from Mexico before decided her claims for
accidental death benefits. Id. at 369-71.
couple of months later, Unum received the records from Mexico
described above. Id. at 389-90, 399-402, 418. Dr.
Golder reviewed both reports and stated that there was
insufficient information to reach a conclusion on the cause
and manner of death. Id. at 435-37. Accordingly,
Unum denied the plaintiff's claims for accidental death
benefits and informed her of her right to appeal.
Id. at 502-05. The plaintiff responded that she was
appealing and understood that an independent review of the
file would be made as a result. Id. at 522. She
asked the reviewer to “consider the chain reaction
theory of recovery for such incidents as there is no question
that Charlie did not die of natural causes.”
Id. On February 15, 2016, Unum informed the
plaintiff that the individual review had concluded and that
it was upholding the original denial of benefits.
Id. at 533-36.
5, 2016, the plaintiff filed suit against Unum in the
Fourteenth Judicial District Court, Calcasieu Parish,
Louisiana. Doc. 1, att. 1, pp. 4-8. Unum removed the matter
to this court, invoking federal question jurisdiction under
ERISA. Doc. 1. The plaintiff presented additional materials
(namely, an expert report from forensic pathologist Dr. James
Caruso and excerpts from medical treatises), in support of
her new theory that the decedent's death was caused by a
pulmonary air embolism. See doc. 11, att. 1. She
moved for judgment as a matter of law or, alternatively,
remand to the plan administrator for consideration of
additional materials. Doc. 11; doc. 11, att. 1. The court
agreed that the new material should be considered and
remanded the case to the plan administrator on March 15,
2018. Docs. 16, 19.
Second Claim Review
New evidence considered
remand Unum considered the Caruso report along with a report
prepared by its own expert, Dr. Craig Nelson. See
doc. 34, pp. 14-15. Both Caruso and Nelson are
board-certified forensic pathologists with specialized
training in diving medicine. Doc. 11, att. 1, p. 9; doc. 30,
att. 2, pp. 170-77. Dr. Caruso stated that he believed that
the decedent had died from complications of an air embolism
sustained while scuba diving. Doc. 11, att. 1, p. 9. He noted
that “[d]eath due to a primary respiratory problem does
not typically present with the dramatic collapse of the
individual, ” and ruled out a fatal primary cardiac
event based on the echogram performed in Mexico. Id.
He further stated:
The standard dictum in diving medicine is that a loss of
consciousness within ten minutes after surfacing from a
compressed gas dive is an air embolism until proven
otherwise. . . . This was not a difficult diagnosis to make
in this case and should have been the initial diagnosis for
the decedent during the initial treatment administered in
Id. He also noted that the diving equipment may or
may not show evidence of malfunction, and that in his
experience “improperly functioning equipment rarely
plays a significant role in a standard open-water diving
related death.” Id.
Nelson completed his report on May 15, 2018. See
doc. 30, att. 2, pp. 179-81. In addition to the reports
described above, he reviewed records from the decedent's
primary care physician. Id. at 179. He observed that
the decedent was being treated for hypertension,
hyperlipidemia, and asthma, among other conditions.
Id. He also noted that the asthma was diagnosed in
adulthood, with attacks averaging “once every few
months” and was treated with maintenance and rescue
inhalers. Id. Finally, he recorded that the decedent
had been advised at his last physical (December 2014) to
avoid heavy exertion and limit cold air exposure.
Nelson opined that there were several potential medical and
non-medical explanations for the “initial event”
that caused the decedent to surface. Id. at 180.
“Whatever the trigger, ” he continued, it was
“possible that the initial event then initiated an
ascent that led to the air embolism.” Id. He
also observed, however, that the decedent was able to speak
upon his ascent, and that the diving guide did not note an
out-of-control or rapid ascent or any breath-holding by the
decedent. Id. at 181. He asserted that “none
of these [factors] suggest[s] the setting that would cause
air embolism.” Id. Finally, he stated that the
alveolar septal rupture found on autopsy could have resulted
from resuscitation or mechanical ventilation. Id.
Nelson noted that the decedent's respiratory distress on
surfacing could have been caused by asthma, immersion
pulmonary edema (which could be worsened by heart disease or
asthma), air embolism, or a combination thereof. Id.
After reviewing the risk factors associated with the
decedent's medical history, he determined that
“[t]he initiating event in this case, and therefore the
final cause of death, cannot be determined with
certainty.” Id. at 180-81. Accordingly, he
stated, “the role of natural disease cannot be excluded
as a cause or contributing factor in this death.”
Id. at 181.
24, 2018, Unum sent a letter to plaintiff's counsel
describing its second review and decision to uphold the
previous denial of accidental death benefits. Id. at
208-15. It noted that the Caruso report had not considered
the effects of the decedent's history of asthma and