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Lervick v. Hartford Life and Accident Insurance Co.

United States District Court, W.D. Washington, Seattle

December 9, 2014

CALLY LERVICK, Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on the Parties' motions for judgment on the record pursuant to Fed.R.Civ.P. 52. (Dkt. Nos. 15, 19.) After reviewing and considering the Parties' briefing and all related papers, the Court makes and enters the following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

Based on the evidence presented in the record, the Court makes the following findings of fact:

Parties and Background

1. Plaintiff Cally Lervick worked as a senior finance manager for Totem Ocean Trailer Express, a subsidiary of Saltchuk Resources, Inc., until January 28, 2012. (Dkt. No. 16-2 at 10-12.)

2. Plaintiff is eligible to receive disability benefits under Defendant Hartford Life and Accident Insurance Company's long-term-disability benefits policy, Policy Number GLT-678897, sold by Defendant to Plaintiff's former employer. (Dkt. No. 16-2 at 10-12.)

3. Plaintiff was a dedicated employee who worked diligently in a challenging position and enjoyed her job before her illness. (Dkt No. 20-1 at 13-18.)

4. Although building for some time, Plaintiff's fatigue began to interfere with her work in 2011 and she sought medical attention for the problem. (Dkt. No. 16-2 at 2-3, 25-31.)

5. Plaintiff began seeing Dr. Brunsvold at the Polyclinic on October 21, 2011, prior to a chronic fatigue diagnosis, regarding her fatigue problems. (Dkt. No. 16-2 at 2-3.)

6. Dr. Brunsvold ordered extensive testing and referred Lervick to several doctors for specialized evaluations, including a sleep study, blood work, a rheumatologic evaluation, an endocrinology work up, a colonoscopy and an esophagogastroduodenoscopy. Based on the results from various tests and the opinions of various doctors and naturopaths, Lervick began a series of treatments, including Ritalin, B-12 injections, Vitamin D supplements, acupuncture, cognitive behavioral therapy, and homeopathic remedies. (Dkt. No. 16-2 at 25-31; 20-3 at 102-06; 20-4 at 2-4; 20-5 at 53, 72-74.)

7. Lervick went to the Chronic Fatigue Syndrome Clinic in February 2012, where Dr. Edwards confirmed a diagnosis of Chronic Fatigue Syndrome ("CFS") and made several treatment recommendations. (Dkt. No. 20-1 at 30.)

8. Between January 2012 and June 2012, Lervick's employer supported her short-term-disability leave until her Family Medical Leave Act leave had been exhausted, paying one hundred percent of her salary until she would become eligible for long-term-disability benefits. (Dkt. No. 20-1 at 27.)

Application for Long-Term-Disability Benefits

9. Plaintiff applied for long-term-disability benefits from Defendant in June 2012. Plaintiff also applied for Social Security Disability ("SSD") benefits after Defendant advised her that Social Security "is [the] primary provider for disability and [Hartford] pays secondary." (Dkt. No. 20-1 at 7.)

10. In support of Plaintiff's application, Dr. Brunsvold made an attending physician's statement dated June 2012. (Dkt. No. 16-2 at 3.) In that opinion, Dr. Brunsvold found Plaintiff to be limited to sitting for one hour at a time for one hour per day, no standing, and walking for forty minutes at a time for forty minutes per day. (Id.) Dr. Brunsvold also noted that Plaintiff had been diagnosed with chronic fatigue at the Chronic Fatigue Center, and opined that "stress and anxiety will worsen chronic fatigue symptoms of confusion." (Id.)

11. In conjunction with Plaintiff's application, Defendant procured a review of Plaintiff's medical records by Dr. Cooper dated September 18, 2012. (Dkt. No. 16-2 at 5-8.)

12. Dr. Cooper found Plaintiff to be not limited based on his conclusion that "symptoms/findings do not support any diagnosis that is leading to impairment or causing restrictions and limitations." (Dkt. No. 16-2 at 5-8.) He made this conclusion because "[t]here were no focal findings on exam or positive findings on blood tests that support the claimant's complaint of fatigue" and "[t]here are no physical findings on exams by Brunsvold or testing that would explain the claimant's subjective symptom of chronic fatigue." (Id.)

13. Defendant denied Plaintiff's claim in a letter dated September 27, 2012. (Dkt. No. 16-2 at 10-12.)

14. In conjunction with her initial application for SSD benefits, the Social Security Administration ("SSA") procured record reviews from Drs. Rubio and Thuline and an examination of Plaintiff by Dr. Anderson.

15. Dr. Anderson concluded that she "cannot make a case for any sort of debilitating psychiatric condition" but opined that Plaintiff "would likely have marked difficulty concentrating on tasks, persisting at tasks, and completing tasks in a timely fashion over the course of a work day" because of her CFS. (Dkt. No. 16-2 at 25-31.) She opined this "would likely result in significant absenteeism." (Id.)

16. Drs. Rubio and Thuline opined that based on the records before them, Plaintiff's limitations would not prevent her from performing work. (Dkt. Nos. 16-2 at 45-47; 20-1 at 11-12.) Dr. Rubio ...


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