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Thivierge v. Hartford Life

Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so by using KeyCite on Westlaw.

United States District Court,

N.D. California.

Ellen THIVIERGE, Plaintiff,
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY as Administrator and Fiduciary of the Mills Peninsula Hospitals Group Welfare Plan Number 506, and The Mills Peninsula Hospitals Group Welfare Plan Number 506, Defendants.

No. C 05-0163 CW.

March 28, 2006.

Scott D. Kalkin, Esq., Roboostoff & Kalkin, San Francisco, CA, for Plaintiff.
Edith Sanchez Shea, Daniel William Maguire, Esq., Galton & Helm LLP, Los Angeles, CA, Donald P. Sullivan, Morgan, Lewis & Bockius LLP, San Francisco, CA, for Defendants.


CLAUDIA WILKEN, District Judge.
*1 Plaintiff Ellen Thivierge filed this lawsuit against Hartford Life and Accident Insurance Company (Hartford) and the Mills Peninsula Hospitals Group Welfare Plan Number 506 (Plan) (collectively, Defendants), after Defendants terminated her long term disability benefits. Plaintiff now moves, pursuant to Federal Rule of Civil Procedure 52, for judgment by the Court. Defendants oppose the motion, and cross-move for judgment in their favor. The matter was heard on January 13, 2006. Having considered all of the papers filed by the parties, the evidence cited therein and oral argument on the motion, the Court grants Plaintiff's motion and denies Defendants' motion.


Plaintiff worked as a director of organizational development at Mills Peninsula Hospital for approximately sixteen years, from August 20, 1970 until August 2, 1995. Her position is classified as "medium work" requiring three hours of sitting, five hours of standing and one hour of walking. The job description indicates that the job requires good organization and verbal/written communication skills, the ability to influence people and supervisory skills. As an employee of the hospital, Plaintiff was covered by its long-term disability plan (LTD Plan), which was administered by Hartford. Under the LTD Plan, a person is deemed to be totally disabled if, during the six-month elimination period and the next twenty-four months, a disability prevents her "from doing all the material and substantial duties" of her "own occupation." Administrative Record (AR) 583. After that twenty-four month period, a person is considered totally disabled if a disability prevents her "from doing any occupation or work" for which she is, or could become, qualified by training, education or experience. Id.

On January 3, 1996, Dr. Donald Ho filled out Hartford's Attending Physician's Statement of Disability for Plaintiff, noting diagnoses of lupusarthralgia, chronic fatigue syndrome(CFS) and recurrent viral infections. Under the prognosis section of the form, Dr. Ho marked the box indicating that Plaintiff was disabled from her own job and any other job. Dr. Ho further noted that he expected a "fundamental or marked change in the future," and wrote "7/1/96" as the date when Plaintiff would recover sufficiently to perform her duties and return to work. AR 379-80.

A few days later, the hospital submitted a long-term disability benefits claim to Hartford on Plaintiff's behalf, attaching the Attending Physician's statement. The employer's statement listed "fatigue" as the reason Plaintiff stopped working. AR 377.

Plaintiff received a letter from Hartford dated January 19, 1996, stating that it had received her claim and had begun its investigation. AR 368. The letter noted that it had ordered her medical records from Dr. Ho and two doctors that Dr. Ho had referred Plaintiff to see, Dr. Spencer T. Lowe and Dr. David Klonoff.

In a claims division summary report dated February 27, 1996, a Hartford examiner recommended approving Plaintiff's claim. AR 354. The report contained the following information:

*2 In 1994, Dr. Ho had referred Plaintiff to Dr. Lowe for a rheumatology consultation and evaluation of systemic connective tissue disorder, positive ANA, polyarthralgiasand fatigue. Dr. Lowe had observed that "she does have some sort of ‘autoimmunity‘ given the titer of the ANA observed. However, she does not fit diagnostic criteria to be labeled as having systemic lupus erythematosus." AR 353; see also AR 364-66, Dr. Lowe's Dec. 23, 1994 letter to Dr. Ho regarding Plaintiff ("My impression is that this is a very pleasant, 43-year-old female with polyarthralgiasand a marked elevation in the ANA presenting with marked fatigue who has some sort of undefined connective tissue disorder."). Dr. Lowe indicated that Plaintiff's prognosis was good. FN1

FN1.In January, 1996, Hartford sent a Physical Capacities Evaluation form to Dr. Lowe. The form includes such questions as, "Please check the frequency that the patient can perform the following activities" and, "Please check the exact degree of work you feel this patient is capable of performing." He returned the form, writing, "I'm sorry, but I don't have enough information to complete this form. Please see my [word undecipherable] note from Dec. 23, 1994." AR 1786-88. The note he refers to is his letter to Dr. Ho. In January, 1996, Hartford also sent a Physical Capacities Evaluation form to Dr. Ho. He did not fill out the form, writing that it was not an appropriate measure of disability. AR 400.

In June, 1995, Dr. Klonoff, a regional expert in CFS, had found, "There is recently a marked increase in the demands of work and home. The joints feel more painful when she is stressed." He recommended that Plaintiff seek counseling. Based on Plaintiff's July 27, 1995 visit, he had concluded that Plaintiff suffered from "CFS w/ severe job stress (i.e. dx of anxiety) too busy or tired to exercise. She needs time to heal … I feel patient is disabled and cannot work and should not work." Dr. Klonoff indicated that Plaintiff would be able to return to work, but at a different occupation.

On February 28, 1996, the claims division summary report was approved. The next day, Hartford sent Plaintiff a letter informing her that her claim for long-term disability benefits had been approved. The letter stated that her disability date was established to be August 3, 1995, and, following the end of the six-month elimination period, Plaintiff's benefits became effective on February 3, 1996. Also explained in the letter, as noted above, was that, for the first twenty-four months, total disability meant the inability to perform the material and substantial duties of one's own occupation. But to remain eligible for continued long term disability benefits after twenty-four months, one must be unable to work in any occupation. The letter stated that Plaintiff's "test of disability will change on February 3, 1998." AR 350-51.

A case management summary note from March 27, 1996, states that Plaintiff "would like to work but unable due to disease-unreliable as to when she will or will not feel good or bad. Hospital says would use her as a consultant but at present she's too unreliable as her illness dictates when she feels good or bad." AR 341.

Dr. Ho sent a letter regarding Plaintiff to Hartford dated April 3, 1996. He wrote, "Due to the persistent nature of her difficulties and relapsing infections with associated protracted recuperative periods, I have serious doubts that she will be able to return to any gainful employment for the remainder of the year. I have extended her disability until January 1, 1997." AR 124.

On June 6, 1996, a Hartford examiner filled out a Social Security Assistance Referral form on behalf of Plaintiff. The counselor's comments on the form noted that, based on Plaintiff's age and education, getting Social Security benefits would be challenging; however, based on the severity of her debilitating diagnosis, Plaintiff should apply for benefits. AR 326. At first, Plaintiff was denied Social Security benefits. But, in a decision dated May 21, 1997, an Administrative Law Judge determined that Plaintiff was eligible, finding that Plaintiff "suffers from lupus and chronic fatigue syndrome, which prevent her from performing even the full range of sedentary work." The order further found that Plaintiff's subjective complaints are credible and consistent with the medical evidence of record, that she cannot lift ten pounds on a frequent basis and that she cannot perform sustained work activity for more than two to three hours in a workday. AR 289-93.

*3 Plaintiff continued to receive benefits from Hartford, even after the twenty-four months had elapsed and she was entitled to benefits only if she was unable to perform "any occupation." Plaintiff submitted periodic statements from herself and her attending physician, Dr. Ho, from February 3, 1996 through 2003, when her benefits were terminated. Dr. Ho remained Plaintiff's attending physician even after Plaintiff moved from the San Francisco Bay Area to Ashland, Oregon in 1998. According to the statements submitted by Plaintiff and Dr. Ho, her symptoms remained essentially the same and her impairments depended largely on the severity of her flu-like symptoms. See, e.g., AR 144, 150-154, 156-157, 174, 178-79, 198-201, 304.

In 2002, for reasons unstated, Defendants began surveillance of Plaintiff. AR 531-551. She was observed on two days in April, two days in May and two days in November. In April, an investigator observed Plaintiff leaving her home, driving to town and running various errands. According to the investigator, Plaintiff at no time appeared lethargic or tired; instead her movements "were always brisk and quick with no signs of discomfort or fatigue." AR 545. But, during the two days, she was only observed outside her home for a couple of hours each day. On both days, she returned home by noon and the investigator reported no "subject activity" after she returned home. In May, Plaintiff was observed driving her children to school and going to the store. The investigator stated that Plaintiff "was filmed getting into her vehicle twice, reaching in through her car window, reaching over her left shoulder to grab her seat belt and standing with her hands on her hips. During the recorded video period of the subject, no sign of discomfort or fatigue was ever seen by the investigator." AR 538. Most of the day, however, Plaintiff spent inside her home. During the second day of observation in May, Plaintiff never left her home and no subject activity was observed. In November, the investigator stated that Plaintiff was observed away from her home for one hour on the first day of surveillance and at least two and a half hours on the second day of surveillance. On the first day, the investigator observed Plaintiff and her husband taking a one-hour walk, noting that they "walked briskly the whole time." AR 531.

Following the surveillance, a Hartford employee interviewed Plaintiff at her home on February 27, 2003. AR 512-22. During the interview, Plaintiff explained why Dr. Ho was still her attending physician: "The reason I go to California for treatment is because my husband is still employed by the policyholder, Mills Peninsula Hospital and Dr. Ho has been my longtime physician and I really trust him. He is an unbelievably good physician." AR 512. Plaintiff visited Dr. Ho "usually bi-annually." In Oregon, she saw a certified Reiki Healer for energy treatment and a homeopathic healer for nausea, but declined to provide their names, although she later gave the name of the Reiki Healer.

*4 During the interview, Plaintiff stated that, on good days, she can walk twenty to twenty-five minutes, stand, sit, kneel, squat, cook, do light housework and carry light items. But on bad days she experiences weakness and feels sick if she gets up, has severe diarrhea and cannot do anything but lie down. On a good day her pain level is zero, but on a bad day it is ten. On the day of the interview her pain level was two and she stated that it was a bad day. She noted that she can start out having a good day and then it will suddenly be a bad day, where she is weak and ill, which can last up to three weeks; she can have several days when she feels normal, but then wake up the next day feeling like she has a severe case of the flu, which can last two days or three weeks. According to Plaintiff, her good days occur approximately three to eight days a month on average, the rest are bad days; it's impossible to predict when she will have a good day. Even on the bad days, however, she will still have to take her children places if her husband is out of town and a friend is unable to take them. Plaintiff stated that she does not have enough good days to be able to hold down a job and that she cannot function when she experiences the weakness and flu-like symptoms. Plaintiff stated that she did volunteer to be on a committee to develop a criterion for closing a local school. The committee met ten times for two hours a week from September, 2002, to November, 2002. Although she sometimes felt unwell, Plaintiff stated, she still attended the meetings because she very much wanted to stay on the committee. She became the informal leader of the group and gave the presentation to the community and the school board. But when it was over, Plaintiff stated that she crashed hard and went to bed for a week.FN2

FN2.Plaintiff's medical note from July 7, 2003, states, "Ran for local school board in her city and won. Unfortunately, there is going to be some added stress to her life and it may make her chronic fatigue problem worse." AR 684. Although Defendants note that they discovered this through medical records after the interview, Plaintiff does not address her work as a member of the school board in her reply brief. At the hearing, Plaintiff's counsel provided the Court with Plaintiff's declaration describing her work as a member of the school board. Plaintiff filed the declaration after the hearing.

Near the end of the interview, the Hartford employee showed Plaintiff the surveillance videos. According to the Hartford employee, "Mrs. Thivierge watched the surveillance films attentively. Mrs. Thivierge stated that the activity check surveillance video films accurately depict her level of functionality and her level of restrictions and limitations." AR 520. She stated that she could tell she was having a good day on the day she went for the walk in November because she was walking well and that she was having a good day in all the films because she was out of the house. If she was having a bad day, she would not be out of the house.

After the approximately four hour interview, the Hartford employee observed the following:

Mrs. Thivierge was an active participant in the interview process. Mrs. Thivierge was attentive and was able to provide cogent responses and answers. Mrs. Thivierge seemed to be able to concentrate and focus. I noted that Mrs. Thivierge was able to edit and amend her first statement. Mrs. Thivierge was able to correct spelling and grammatical errors. Mrs. Thivierge spent 45 minutes in this process…. Mrs. Thivierge cried on two occasions during the interview. The first one was when she was describing her typical day. She stated that the reason she was crying is because she remembers what she used to be able to do. The second time was when she was describing her vertigo…. Mrs. Thivierge remained seated during the entire interview. Only at the end of the surveillance video did Mrs. Thivierge excuse herself to use the restroom.

*5 AR 522. The Hartford employee also noted that the interview was not yet complete when Plaintiff had to leave to accompany a friend to a doctor's appointment.

Following the interview, Hartford arranged for Dr. Alan Kimelman, a Board-Certified Physical Medicine and Rehabilitation Specialist, to examine Plaintiff. Based on an interview and examination of Plaintiff, her medical records and the surveillance tape, Dr. Kimelman prepared a Long-Term Disability Evaluation dated August 14, 2003. AR 119-139. Dr. Kimelman diagnosed Plaintiff with recurrent chronic fatigue symptoms, finding that she did not meet the criteria for establishing the presence of CFS set by the Center for Disease Control. He noted, "The severity of the condition is episodic with flu-like symptoms, fatigue, muscle pain, nerve pain, diarrhea, nausea, and occasional weight loss occurring paroxysmally and at other times remitting. Mrs. Ellen Thivierge appears very believable and her medical records corroborate symptoms such as she claims. Nonetheless, on today's examination, symptoms and findings are minimal." AR 137. Dr. Kimelman concluded that, although Plaintiff was believable, "her objective factors noted today" show that "Mrs. Ellen Thivierge is able to perform at a sedentary occupation." Id. He checked "Yes" in response to the question, "Has the patient reached maximum medical improvement."

Hartford sent Dr. Kimelman's report to Dr. Ho, along with the video surveillance report and the personal interview report dated February 27, 2005. AR 110-12. Dr. Ho wrote back to Hartford that Plaintiff "has ongoing difficulties with an ill-defined auto-immuno disorderassociated with chronic fatigue syndromeand fibromyalgia. She is incapable of performing steady/consistent occupation of any variety for any duration. She continues to require long-term disability." AR 110.

In Hartford's claim log for October 16, 2003, a Hartford employee noted that he "reviewed information with Team Leader L. Torres and he states that there is not enough to terminate claim at this time based on IME by Dr. Kimelman, suggests that we move forward and refer to UDC for review by Internal Medicine physician with a specialty in fibromyalgia and chronic fatigue syndrome." AR 144.

Hartford sent Plaintiff's medical records to the University Disability Consortium (UDC), where Dr. Jerome Siegel, who is certified in Occupational and Internal Medicine, reviewed them. Dr. Siegel also talked with Dr. Ho. In his medical record review of Plaintiff, dated November 23, 2004, Dr. Siegel concluded:

Based on a review of the medical records, discussion with Dr. Ho and a review of the video surveillance, Ellen Thivierge is a 52-year-old woman with multiple medical problems including chronic fatigue syndrome, fibromyalgia, and a possible undefined connective tissue disease. Ms. Thivierge has been out of work since 8/2/95 and has previously worked as director of organizational development. The medical records support that Ms. Thivierge has had many years of multiple somatic complaints and constitutional symptoms including chronic fatigue, general malaise, diffuse weakness, chronic pain, palpitations, nausea, anxiety, depression, and flu-like symptoms. She has had difficulties with headaches, abdominal cramping, diarrhea, and intermittent cognitive complaints.

*6 The medical records do not clarify what specific functional limitations, if any, Ms. Thivierge has on a regular basis. Dr. Ho indicates that from Ms. Thivierge's self-report, she indicates that she is unable to perform various activities of daily living and instrumental activities of daily living. Despite this, however, he has not been asked to order any visiting nurse or homecare services…. He is unaware if she takes regular walks or participates in a gym or health club program. He is unaware if she has had any recent cardiac stress testto give a quantitative estimate of her level of conditioning or fitness. She is seen at regular intervals such as every two to four months, and she travels with her husband five to six hours to continue to follow with Dr. Ho because of the restrictions of her Health Maintenance Organization (HMO). The medical records do not contain any correspondence with the HMO by Dr. Ho recommending Ms. Thivierge be followed closer to her home or be seen by other specialists or therapists in her local area.

Dr. Ho indicates that he is unaware of what Ms. Thivierge does on a typical day. He notes that all of her limitations have been based on her self-report and he himself has not witnessed her being physically unable to perform specific activities. In addition, there is no other information from a physical therapist, occupational therapist, or visiting nurse to corroborate her self-reported problems with diminished activity…. The video surveillance does not demonstrate any specific problems with physical functions, difficulties with transfers, mobility, or the use of an assistive device. Although the medical record supports that she has had fluctuating and intermittent levels of fatigue throughout the last eight years, there is no information that Ms. Thivierge has returned to any type of work activities. The independent medical evaluation of 9/4/03, supports that Ms. Thivierge is physically capable of at least sedentary work activities.

From the review of the video surveillance and medical records, however, it is my opinion that Ms. Thivierge should be physically capable of performing full time sedentary to light duty work activities. The physical restrictions would include 10-20-lb lifting restriction, alternating sitting and standing, and rotation of job tasks and activities.

Ms. Thivierge has an unclear prognosis.

AR 95-7.

In Hartford's claim log for November 26, 2003, a Hartford employee noted that he received Dr. Siegel's report finding Plaintiff capable of sedentary work and that "Physician, Dr. Ho, was contacted, and still disagrees that claimant is able to hold down a full-time job, however does not provide any current evidence that supports his opinion. Claimant lives 6 hours away from physician and only sees him 2-3 times a year." AR 444. The employee further noted that he was referring Plaintiff's case to the rehabilitation department for an employability analysis.

*7 A Rehabilitation Clinical Case Manager prepared an employability analysis report based on Plaintiff's physical capacities as determined by Dr. Siegel and Dr. Kimelman, and her education and work history. The report determined that there were seven suitable occupations for Plaintiff, including her previous occupation. AR 76-92.

On December 16, 2003, Hartford terminated Plaintiff's long-term disability benefits. AR 66. The ten-page termination letter concluded that the weight of the medical evidence in Plaintiff's file supports that Plaintiff is capable of full-time sedentary level work. It noted that, although she may have some limitations regarding her physical abilities, those limitations are not to a degree that prevents her from gainful employment. The letter cited the Independent Medical Examination performed by Dr. Kimelman and the medical records review performed by Dr. Siegel, both of which found that Plaintiff should be able to perform a sedentary level occupation, and then stated, "Dr. Ho does not provide us with sufficient rationale to support your inability return [sic] to work in a sedentary level occupation."

Part 2

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