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Hillebrandt v. Unum Life Insurance Co. of America

United States District Court, W.D. Louisiana, Lake Charles Division

February 13, 2019

CHRISTI HILLEBRANDT
v.
UNUM LIFE INSURANCE CO. OF AMERICA

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before 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 seq.

         The 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 PREJUDICE.

         I. Background

          This action arises from Unum's denial of accidental death benefits for the decedent's death on May 6, 2015.[1] 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.

         A. Original Claim Review

         The 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.

         The 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.

         The 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 hyperkalemia.” Id.

         Following 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.

         The 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.” Id.

         Unum 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.

         A couple of months later, Unum received the records from Mexico described above.[2] 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.

         On May 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.

         B. Second Claim Review

         1. New evidence considered

          On 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 Mexico.

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.

         Dr. 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. Id.

         Dr. 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.

         Dr. 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.”[3] 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.

         2. Decision

         On May 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 cardiac ...


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