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April 2010

Yvette Bravo v. The United States Life Insurance Company in the City of New York, et al. ? Summary Judgment Denied in Non-ERISA Disability Benefits Action

Summary Judgment Denied Where There Were Material Questions of Fact Regarding Whether Bravo Was Disabled and Whether Defendant Insurer Reasonably Made Disability Determination

(March 25, 2010) 2010 U.S. Dist. LEXIS 29028

This is a non-ERISA governed disability insurance benefits action.  The Eastern District Court of California denied defendant insurer U.S. Life Insurance Company's ("U.S. Life") motion for summary judgment challenging plaintiff Yvette Bravo's suit for breach of contract and insurance bad faith, finding material issues of fact. 

Bravo worked as an office assistant for a school district.  Her job duties were categorized as light.  Bravo suffered from degenerative disk disease and fibromyalgia.  She stopped working due to neck and back pain on June 12, 2006, and applied for long term disability benefits.  Her treating orthopedic surgeon, Dr. Le, stated she was totally disabled.  Initially, U.S. Life approved Bravo's claim for long term disability benefits, but after review of Bravo's claim and condition, U.S. Life terminated further benefits, finding Bravo able to perform her job functions. 

The policy defined disability as "the complete inability of the employee to perform the material duties of his regular job."  The policy further provided, "to be considered totally disabled, ? an employee must also be under the regular care of a physician."

Bravo described her pain as constant, making it difficult to do anything at a reasonable pace, and indicated that some days she would have to lie down throughout the day, especially after exerting herself.  She stated she had to rest for an hour or two after doing simple chores.  Dr. Le initially stated Bravo would be able to return to work August 19, 2006, but after extending this date twice, he indicated Bravo was permanently disabled on September 22, 2006.  Dr. Clair, Bravo's treating pain management specialist, stated, "her subjective complaints of pain rated at a level 10/10 [are] out of proportion with her clinical objective finding."  U.S. Life argued this statement indicates Bravo overstated her pain.  Bravo, relying on other statements made by Dr. Clair, argued this statement merely indicated Dr. Clair's conclusion of heightened pain response might be attributed to her fibromyalgia and other condition. 

Nurse Girard performed the clinical review for U.S. Life and concluded Bravo suffered degenerative disk disease, and, "[i]t is reasonable that the claimant may experience some pain ?; however, her symptoms seem to be in excess of her exam findings."  Nurse Girard opined Bravo could perform light duty work if she could alternate positions as needed. 

Bravo underwent a functional capacity evaluation ("FCE") by Steve Moon, who concluded Bravo was able to perform sedentary and light work, and that some of her poor test scores resulted from "self-limiting behavior."  Bravo's treating orthopedic surgeon, Dr. Le, refused to comment on the disparity between the FCE results and his own evaluation. 

U.S. Life terminated benefits, finding "[no] medical evidence to support, with a reasonable degree of medical certainty that [Bravo] had ongoing symptoms or an ongoing loss of functional capacity, which would preclude [her] from performing [her] job as an Office Assistant."

On administrative appeal, U.S. Life retained Dr. Wagner to perform a record review.  Dr. Wagner concluded Bravo was able to perform her job functions.  Bravo criticized Dr. Wagner's report for failing to mention Bravo suffers from fibromyalgia and that Bravo was taking morphine and methadone.  Despite Bravo's critique, U.S. Life upheld its termination of Bravo's benefits. 

Evaluating the motion for summary judgment, the district court considered whether Bravo was disabled under the terms of the policy.  Bravo argued the policy's definition of disability was inconsistent with California law, and should be defined as the inability "to perform with reasonable continuity the substantial and material acts necessary to pursue [one's] usual occupation in the usual or customary way."  The district court found the question moot, absent an argument from Bravo as to how the definitions differed.  The district court held "disability" required a showing that Bravo was unable to consistently perform the material duties of her former office assistant position. 

The district court found Bravo had tendered evidence sufficient to defeat summary judgment on the issue of disability.  The evidence included Dr. Le's findings, Bravo's self reports and some of the FCE findings.  Interpreting the policy language in the light most favorable to Bravo, the district court assumed Bravo was under the care of a physician during the relevant period. 

As to Bravo's bad faith claim, the district court held Bravo raised material questions of fact regarding the reasonableness of the insurer's position, and as to whether U.S. Life's experts were biased. 

In finding a material issue of fact regarding bias of the reviewing experts, the district court accepted the reasoning in three ERISA cases cited by Bravo.  In each of the ERISA cases, it was noted the experts had a financial incentive to provide opinions favorable to the insurer, and that this was some evidence of a conflict of interest.  The district court found these points combined with the argument the experts' opinions were not reasonable interpretations of the evidence sufficed to raise a material question of fact as to bias.

The district court also found a material question of fact as to whether U.S. Life's conclusion Bravo was not disabled was reasonable.  It found that a jury could conclude U.S. Life unreasonably ignored the limits imposed by Dr. Le and afforded too little weight to Bravo's subjective pain reports.

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This opinion is not final.  Though it has been certified for publication, it may be withdrawn from publication, modified on rehearing, or granted review by the Ninth Circuit Court of Appeals.  Should any of these events occur, the opinion would be unavailable for use as authority in other cases.

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Shannon L. Wodnik