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Sarlo v. Broadspire Services

July 11, 2006

LAWRENCE E. SARLO, PLAINTIFF,
v.
BROADSPIRE SERVICES, INC. AND LUMBERMAN'S MUTUAL CASUALTY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

In this ERISA action, Plaintiff Lawrence Sarlo ("Sarlo") seeks disability benefits to which he asserts he is entitled under his Long Term Disability ("LTD") insurance provided by Defendant Lumberman's Mutual Casualty Company.*fn1 Defendant Broadspire Services, Inc., is the claims administrator.*fn2 Before the Court are the parties' cross-motions for summary judgment.*fn3

I.

Sarlo suffered a serious head injury during a car accident on July 6, 2001. At the time, he was employed by Cellco Partnership d/b/a Verizon Wireless ("Verizon") as a sales representative. A few days after the accident, Sarlo began receiving short-term disability benefits.

On November 30, 2001, Broadspire wrote to Sarlo recommending that he begin the application process for LTD benefits. The letter enclosed the requisite LTD forms, including an "LTD Plan Benefit Application" and an "LTD Questionnaire." (Def. Ex. B at SAR000004) Sarlo completed and signed the forms on December 12, 2001. His LTD Plan Benefit Application indicated that his injury was "nerve damage to spine, neck and back injuries; brain injury; post-concussion syndrome with cognitive changes; lumbar radiculopathy, upper abdominal wall contusion, cervical dorsal sprain / strain, osteochondral injury of right hand." (Id. at SAR000005) In response to the question, "why are you unable to work?" Sarlo wrote, "speech, decision making, concentration, memory loss, constant pain in lower back, legs and arms, headaches." (Id.) In his initial application, Sarlo also identified (with contact information) the following medical providers who had treated him for his disability: Dr. Langanella (occupational injury); Dr. Patil (neurologist); Dr. Einhorn (eye therapist); Lisa Cohen (speech and cognitive therapist); "Mark" (physical therapy); Dr. Lazarus (neuropsychologist); and Dr. Bornfriend (psychologist). (Id. at SAR000012)

Sarlo's LTD policy defines "disability" as: our determination that a significant change in your physical or mental condition due to:

1. Accidental Injury

began on or after your Coverage Effective Date and prevents you from performing, during the Benefit Qualifying Period and the following 24 months, the Essential Functions of your Regular Occupation or of a reasonable Employment Option offered to you, and as a result you are unable to earn more than 80% of your Pre-disability Monthly Income.

After that, you must be so prevented from performing the Essential Functions of any Gainful Occupation that your training, education and experience would allow you to perform.

(Def. Ex. A at 000365-366) Thus, the policy contains two different definitions of disability: one that applies during the first two years of LTD; and another that applies thereafter. The policy makes clear that it is the claimant's responsibility to provide proof of a qualifying disability. (Id. at 000370)

In early January, 2002, Broadspire determined that Sarlo was entitled to LTD benefits, effective January 7, 2002. Shortly thereafter, Broadspire advised Sarlo by letter that "it appears that you are currently disabled from performing the duties of your regular job," and further informed him, "if your disability should extend to the 24 months [referenced in the policy's definition of "disability"], we will reevaluate your claim for total disability." (Def. Ex. B at SAR000023) Finally, the letter stated, "[t]o remain eligible for continued benefits under the Long Term Disability Plan, it is necessary for you to be under the continuous care of a legally qualified physician. Periodically, we will request updated information about your medical condition." (Id.)

Accordingly, Sarlo was paid LTD benefits for the initial two year period, January 7, 2002, through January 7, 2004. During this time, Broadspire several times contacted Dr. Langanella, Sarlo's attending physician and Ms. Cohen, Sarlo's speech-language pathologist, requesting current information, including a description of any significant changes in Sarlo's medical status. Both health care providers stated that Sarlo was having "cognitive problems," including self-reported memory and concentration difficulties. Dr. Langanella's prognosis was "guarded." Ms. Cohen's prognosis was "fair."*fn4

As the end of the initial two year period approached, in June 2003, Broadspire again wrote to Sarlo to advise him that payments under the first disability definition were to expire on January 7, 2004. Quoting the policy language, the letter advised that after January 7, 2004, Sarlo must be "'so prevented from performing the Essential Functions of any Gainful Occupation that [his] training, education, or experience would allow you to perform.'" (Id. at SAR000235)

In a separate letter bearing the same date, Broadspire asked Sarlo to complete the enclosed "Long Term Disability Questionnaire" and "Physician Update Form" and to return the paperwork by July 19, 2003. Broadspire stated that the "updated information" was required "in order to certify your continued eligibility for benefits." (Id. at SAR000236) On the questionnaire, Sarlo indicated that the health care providers he saw regularly were: Dr. Patil (neurology); Dr. Langanella (physician); Ms. Cohen (speech-language pathologist); Dr. Carberry (psychologist); and Dr. Rubin (psychiatrist). (Id. at SAR000238-239). The questionnaire also asked: "Describe in your own words what prevents you from performing YOUR occupation" and "what prevents you from engaging in ANY gainful employment." (Id. at SAR000238) Sarlo answered, "memory and concentration problems" to both. (Id.) Other than filling in his name and address, Sarlo did not complete the Physician Update Form, which asked for the names and contact information of the physicians currently treating him. (Id. at SAR000242)

At the beginning of August, 2003, Broadspire asked Dr. Carberry and Dr. Rubin to complete "Behavioral Health Clinician Statements," specifically asking in bold font, "[p]lease include all current objective medical documentation including all office and/or chart notes, and the results of any diagnostic tests for the last six months of treatment." (Id. at SAR000249-250) Ms. Cohen was asked to complete an "Attending Physician's Statement" and "Estimated Physical Abilities" form, including "current office and/or chart notes, along with any documentation you may have including labs, bloodwork, x-rays and the results of any other diagnostic tests for the last 12 months of treatment." (Id. at SAR000248) Broadspire did not contact either Dr. Patil or Dr. Langanella.

It appears from the record that Ms. Cohen and Dr. Carberry, but not Dr. Rubin, responded to Broadspire's requests for information. With respect to "Cognitive Functioning," Dr. Carberry reported that Sarlo was able to apply attention and concentration for 15-30 minutes but that the span "varies-- need to keep him focused" and that "anxiety interferes with his reasoning; he tends to forget what he is saying mid-sentence." (Id. at SAR000254) When asked about Sarlo's memory functions and ability to perform basic mathematical operations, Dr. Carberry answered, "see neuro psych report of Dr. Lazarus" but the report was not included. (Id.) It is not clear from the record what information Ms. Cohen provided specifically in response to Broadspire's August request.*fn5

On September 24, 2003, Dr. Donald Rose, M.D., a neuro-psychologist, reviewed Sarlo's file in order to answer the question: "Is the claimant totally disabled from his own or any occupation base [sic] on the medical provided [sic]? If not what additional documentation is needed?" (Id. at SAR000289) The General Peer Review conducted by Dr. Rose was based on Sarlo's Long Term Disability Questionnaire, Dr. Carberry's records, Ms. Cohen's "current medical notes" and Sarlo's job description. (Id.)

In his review, Dr. Rose summarized the information provided by Sarlo and the two health care providers, noting that Ms. Cohen had recommended additional speech / language and cognitive therapy "specifically for problems associated with attention /concentration, memory, decision making, organization, abstract reasoning, auditory processing, reading comprehension and retention, and verbal and written expression." (Id. at SAR000290) With respect to Dr. Carberry's records, Dr. Rose noted Sarlo's self-reported "impairment in cognitive and emotional functioning" and specifically noted that although "mention of a neuropsychological report is made" there is "no psychometric testing to substantiate these impressions." (Id.)

Dr. Rose concluded:

the medical information provided and reviewed does not demonstrate objective evidence of impairment which would preclude the claimant from performing the essential elements of any occupation from a neurological standpoint. What would be most helpful in determining this case would be obtaining the aforementioned neuropsychological report and raw test data, or a obtaining current neuropsychological examination to determine his present neurocognitive status and extent of disability. Notes from his treating neurologist and psychiatrist would also be helpful.

(Id.)

Accordingly, by letter dated December 4, 2003, Broadspire asked Sarlo for additional medical documentation supporting his continued disability status. The letter closely paraphrased the substantive portions of Dr. Rose's report, stating:

Long Term Disability Questionnaire completed by you on July 3, 2003 notes memory and concentration problems as what prevent you from performing any gainful employment . . . [the] Behavioral Health Clinician Statement, completed by Hugh Carberry, Ph.D., August 8, 2003 notes impairment in cognitive and emotional functioning, and mention of a neuropsychological report is made. However, there is no psychometric testing to substantiate these impressions. The medical information provided and reviewed does not demonstrate clinical evidence of impairment which would preclude you from performing the essential elements of any occupation from a neuro-psychological standpoint.

In summary, we have determined that, based on our present information, the medical data provided by your physician does not support that you are disabled from your own or any occupation. Therefore, you will need to submit any additional medical documentation you may have which supports that you remain disabled from your own or any occupation as defined by your Policy. Additional documentation would be obtaining the aforementioned neuropsychological report and raw test data, or obtaining a current neuropsychological examination to determine your present neurocognitive status and extent of disability. Notes from your treating neurologist and psychiatrist would also be helpful. . . .

Please forward any additional information to our office within 30 days. . . If you are able to submit any additional objective documentation, we will reconsider our medical review of your file. . . . This documentation must be returned to our office by January 6, 2004.

(Id. at SAR000293)(bold typeface in original)

Sarlo responded by undated letter*fn6 stating that Broadspire should expect to receive "updated reports from: Lisa Cohen, Dr. Carberry, Dr. Rubin, [and] Dr. Lazarus." (Id. at SAR000299) He also wrote, "I am asking to allow for time to receive these reports for your further determinations." (Id.) However, by January 16, 2004--- the date when Dr. Rose re-reviewed Sarlo's file--- only updated records from Dr. Carberry had been received.*fn7 Thus, Dr. Rose again noted that:

[t]reatment notes and letter submitted by Dr. Carberry, make mention of cognitive problems, but these are self-reported by the claimant. There is no neuropsychometric examination performed or objective data specifying neurocognitive dysfunction. . . . I again recommend a comprehensive neuropsychological ...


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