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Turner v. Life Insurance Co. of North America

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

December 1, 2017

ADASHA TURNER, Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant.

          ORDER

          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on cross-motions for judgment, [1] docket nos. 30 and 33. Having reviewed all papers filed in support of, and in opposition to, each motion, as well as the relevant portions of the Administrative Record (“AR”), the Court enters the following order.

         Background

         Plaintiff Adasha Turner brings this action against defendant Life Insurance Company of North America (“LINA”), pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), seeking a declaratory judgment that, because of her disability, LINA is required to provide to her, with respect to a group life insurance policy, a waiver of premium (“WOP”) benefit until she is no longer disabled or she reaches the age of 65, whichever occurs earlier. The policy at issue states:

If the Employee[2] submits satisfactory proof that he or she has been continuously Disabled for the Waiver Waiting Period shown in the Schedule of Benefits, coverage will be extended up to the Maximum Benefit Period shown in the Schedule of Benefits.[3]

         AR 4351. The Waiver Waiting Period shown in the Schedule of Benefits is nine (9) months after the Employee's active service ends. AR 4338, 4345. Plaintiff stopped working on March 13, 2014, at the age of 36, because of a high-risk pregnancy. See AR 1064 & 1071. Thus, to qualify for WOP benefits, plaintiff was required to provide “satisfactory proof” that she was “continuously Disabled” from March 14, 2014, to December 14, 2014. See Def.'s Mot. at 3 n.2 (docket no. 33).

         The term “Disabled” means that, as a result of injury or sickness, the Employee is “unable to perform all the material duties of any occupation [for] which he or she may reasonably become qualified based on education, training or experience.” AR 4351. In this case, no dispute exists with regard to the disorders from which plaintiff suffers. The disagreement that brings this matter before the Court is whether plaintiff's disorders render her “Disabled” as defined in the policy.[4] In deciding that plaintiff is not “Disabled” for purposes of WOP benefits, LINA elected not to conduct an independent medical examination or functional capacity evaluation of plaintiff, and instead relied on the reviews of plaintiff's records that were conducted by S. Rebecca Gliksman, M.D. and Joseph Rea, M.D., both of whom specialize in occupational medicine, and by ophthalmologists Jacqueline Wong, M.D. and Sami Kamjoo, M.D., as well as on the transferable skills analysis (“TSA”) performed by certified rehabilitation counselor (“CRC”) Paul Wilson, M.A.

         On November 3, 2015, CRC Wilson completed a TSA that relied entirely on Dr. Gliksman's assessments.[5] See AR 2513. CRC Wilson summarized Dr. Gliksman's opinion as follows:

Limit lifting to <10 pounds, carrying <5 pounds, pushing/pulling <15 pounds, rare overhead reaching, walking 15 minute intervals 2-3 hours per day, standing 15 minute intervals 2-3 hours per day, sitting 45 minute to 1 hour intervals 6 hours per day, avoid stairs, bending occasionally, squatting occasionally, no crawling, rare stooping, occasional to frequent fine and simple grasp, occasional firm grasp and claimant has deteriorating vision but it does not preclude work with recommended glare protection, magnified font of at least 16 point and work at the computer in 20 minute intervals with 2-3 minute break between intervals. Claimant may benefit from computer glasses to avoid strain and extra lubrication as computer work tends to dry eyes.

Id. CRC Wilson did not include Dr. Gliksman's noted restriction that plaintiff be on a 4-hour-per-day work schedule for six weeks before increasing to a 6-hour shift. See Gliksman's Report at 46 (AR 2646) (“Since claimant has been out of the workforce for an extended period would start at 4 hours/day x 6 weeks and then advance to 6 hours/day x 4 weeks and the[n] advance as tolerated.”). Based on his understanding of plaintiff's residual functional capacity, [6] CRC Wilson concluded that plaintiff could perform sedentary work as an Information Clerk or Gate Guard. AR 2514. He did not, however, indicate whether such positions are available to individuals who can work only up to four or six hours per day. See AR 2513-14.

         In connection with plaintiff's appeal of LINA's denial of WOP benefits, additional records were provided, a second round of peer reviews was conducted, and CRC Wilson performed another TSA. On June 17, 2016, Dr. Rea submitted a report recounting a conversation with plaintiffs treating physician, Kimo Hirayama, M.D., who indicated that “from a practical standpoint, Ms. Turner was functionally disabled, since she could not stand or walk and had considerably reduced strength, besides joint pain, particularly involving the hands and wrists, so that made it hard to hold onto objects.” AR 3275. Nevertheless, Dr. Rea opined that plaintiff:

• could “lift, push, pull or carry up to 10 pounds on an occasional basis”
• could “stand for up to 15 minutes at a time for up to a total of three hours over an eight-hour period of time”
• could “walk for up to 15 minutes at a time for up to a total of two hours over an eight-hour interval of time”
• should “avoid squatting, crouching, crawling, kneeling, ...

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