United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on the parties' motions for summary judgment. No party requested oral argument. For the reasons stated below, the court DENIES Defendant's motion for summary judgment (Dkt. # 17) and DENIES Plaintiff's motion for partial summary judgment (Dkt. # 19). The court orders the parties to file motions in limine in accordance with Local Rules W.D. Wash. LCR 7(d)(4), except that they shall file their motions no later than noon on November 13, they shall file oppositions no later than noon on November 20, and they shall note them for November 20 as well.
Plaintiff Naira Oganessova has three disability insurance policies from Defendant Mutual of Omaha Life Insurance Company. Two of them are essentially identical longterm disability policies; another is a short-term injury-only disability policy ("STD Policy"). For ease of reference, the court will treat the two long-term disability policies as a single policy (the "LTD Policy") except where context demands otherwise.
Beginning in late June 2010, Ms. Oganessova contends that she has experienced persistent dizziness that has made it difficult to continue her employment as an interpreter and instructor for in-home caregivers. She asserts that the dizziness and other complications forced her to limit her work hours from mid-2010 until February of this year, when she contends that she became totally unable to work. She submitted a disability benefits claim to Mutual of Omaha in August 2010. Mutual of Omaha denied that claim initially and after several requests for reconsideration. Mutual of Omaha contends that Ms. Oganessova's dizziness is the result of an ear disorder for which the LTD Policy and STD Policy exclude coverage. Ms. Oganessova contends that her dizziness is the result of a head injury she suffered in an accidental fall at her home on June 19, 2010, and that both Policies cover injury-induced disabilities.
To rule on these summary judgment motions, the court must discuss the evidence before it. The court will do so only to the extent it is necessary to resolve those motions. The parties have put a virtual mountain of evidence before the court, containing notes and reports from dozens of treating medical providers, non-treating medical providers, and medical providers retained solely for litigation, not to mention evidence from vocational specialists, purported "experts" in insurance practices, and at least one lawyer who Plaintiff's counsel believes can act as an expert witness. That evidence serves largely to establish what the parties' motions do not acknowledge: the resolution of this case will depend on the resolution of disputed issues of material fact. That is the province of the jury, not the province of the court on summary judgment. The court has considered all of the parties' evidence, but it makes no attempt to mention all of it in this order.
A. Ms. Oganessova's Persistent Dizziness and First Six Months of Medical Treatment
The court briefly summarizes the medical evidence relating to Ms. Oganessova's alleged disability, focusing on 2010, the year in which her dizziness manifested. The parties should not misconstrue the summary as expressing any findings of fact. On June 29, 2010, Ms. Oganessova called a nurse to report that she was experiencing a fourth day of dizziness, along with nausea and fatigue. She suspected that she had an ear infection, and on the following day she called the office of her otolaryngologist, Dr. David Mehlum, to request antibiotic ear drops. She had received treatment from Dr. Mehlum previously, relating to several issues with her ears. She had a cholesteatoma (a growth in the ear canal) removed, and had a perforated eardrum repaired as recently as 2007.
She did not see a medical provider for her dizziness until July 6, 2010, when she saw Dr. Geraldine Hashisaki, a family practice specialist. She reported two complaints: a sprain or break in her left great toe that occurred after a fall at her home 18 days earlier, and the persistence of dizziness and nausea. Dr. Hashisaki directed her to continue splinting her toe, and diagnosed her dizziness as vertigo arising from labyrinthitis, a condition involving swelling in the inner ear.
Her dizziness continued, prompting her to visit her regular family practitioner, Dr. Carol McCandless, who referred her to Dr. Mehlum. When she saw Dr. Mehlum on July 21, 2010, she reported that her dizziness had persisted for three weeks. Dr. Mehlum suspected vestibular neuritis, another inner ear condition, and ordered an MRI. The MRI was inconclusive.
She saw Dr. Noah Silver on September 1, 2010, again complaining of vertigo. Dr. Silver's notes contain this statement: "Vertigo - thinks she's had it for years, worse of late. constant'" His notes also contain this statement: "No head trauma." Mutual of Omaha portrays this as conclusive evidence that Ms. Oganessova denied experiencing head trauma, but the court disagrees. It is perhaps likely that Ms. Oganessova did not mention head trauma, but to assert that she "denied" head trauma is speculation at best.
At the recommendation of several of her physicians, including Dr. Mehlum, Ms. Oganessova saw Heather Morgenroth for vestibular rehabilitation treatment on September 24, 2010. Her notes contain the following statements: "Head trauma: no, " and "Fall history last 6 months: yes 4 months ago and vertigo started about 10 days later." Again, Mutual of Omaha asserts that Ms. Morgenroth's notes are conclusive proof that Ms. Oganessova denied head trauma. The court again disagrees.
She saw Dr. McCandless again on October 27, 2010. Although she was there primarily for treatment for a rash, she "report[ed] intense frustration with her vertigo symptoms." Dr. McCandless's notes state that Ms. Oganessova "[h]as had vertigo for 4 mo[nths], ever since a fall (which did not involve loss of consciousness, but was a significant jarring by her history)." Ms. Oganessova requested a referral to a neurologist, and Dr. McCandless apparently made the referral after consulting with Dr. Mehlum.
On December 21, 2010, Ms. Oganessova saw Dr. Benjamin Podemski, a neurologist. His notes include the following statement:
[Ms. Oganessova] had no symptoms of vertigo until the end of June, when she tripped at home. She hit the back of her head and neck. She was dazed and felt jarred but did not lose consciousness. She thought she might have fractured her toe and was somewhat immobilized as a result for several days but then noted positional and then persistent vertigo."
He observed that Ms. Oganessova walked with a "bizarre gait" in which she "would hold on to the wall in the hallway as she walked." He interpreted her gait as evidencing "histrionic tendencies." He also decided to treat her condition "as if [it were] a persistent post concussive syndrome with subjective vertigo."
Since 2010, a variety of medical providers, including several non-treating, nonexamining physicians, have weighed in with assessments of the cause of Ms. Oganessova's vertigo, which apparently persists to this day. Some, like Dr. Mehlum, have attributed her condition to head trauma as a result of her fall at home. Others, like Dr. Lily Jung Henson (a physician offering expert testimony for Mutual of Omaha) have attributed her condition to ear conditions that have no connection to the fall or only an incidental connection.
B. Ms. Oganessova's Unsuccessful Attempts to Obtain Disability Benefits from Mutual of Omaha
While Ms. Oganessova sought treatment for her dizziness, she also sought benefits from Mutual of Omaha. She submitted the initial documents for a disability claim in August 2010. She complained of vertigo, but did not mention her fall or head trauma.
For various reasons, Mutual of Omaha did not receive Ms. Oganessova's medical records until February 2011. Dr. Timothy Tse, a psychiatrist who has worked exclusively for Mutual of Omaha since 2002, reviewed her records. After summarizing the medical history the court summarized above, he wrote as follows:
The insured has a very long history of problems with her ears. She had a history of cholesteatoma and after it was ...