United States District Court, W.D. Washington, Seattle
ORDER RE: SECOND CROSS MOTIONS FOR JUDGMENT
Honorable Richard A. Jones United States District Judge
Chris Bunger brings this action against Defendant Unum Life
Insurance Company of America (Unum) under the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
et seq. He seeks to recover benefits under the
Costco Employee Benefits Program's - Voluntary Short Term
Disability Plan (STD Plan) and the Costco Employee Benefits
Program's - Long Term Disability Plan (LTD Plan).
Court previously denied the parties' cross motions for
judgment under Federal Rule of Civil Procedure 52, issuing
Findings of Fact and Conclusions of Law in an Order dated
July 20, 2016. Dkt. 24. As described in that Order, Mr.
Bunger became ill in early 2014, while working as a Web
Content Specialist for Costco Wholesale Corporation. After
providing STD benefits for periods of time between January
and August 29, 2014, Unum found plaintiff no longer eligible
for STD benefits and denied LTD benefits. Mr. Bunger filed
suit, alleging total disability due to chronic fatigue
syndrome (CFS), Lyme disease, or an unspecified illness
causing fatigue and inability to concentrate. Unum argued
plaintiff has no properly diagnosed conditions and has not
shown his inability to perform his job.
Court concluded Unum failed to sufficiently develop the
record. Unum had denied benefits because (1) it was unlikely
Mr. Bunger has Lyme disease; (2) Mr. Bunger was not properly
diagnosed with CFS because other potential causes of symptoms
had not been ruled out, with no re-test for Lyme disease or
referrals to an infectious disease specialist, neurologist,
or behavioral health specialist; and (3) Mr. Bunger had not
undergone cognitive testing. However, these arguments only
showed a need for more information, which Unum had not
requested or even suggested. Unum appeared to conflate the
issue of whether Mr. Bunger is sick with the issue of whether
he has been properly diagnosed. Even if not correctly
diagnosed, it did not mean Mr. Bunger was not sick, and Unum
should have informed Mr. Bunger of the need for further
testing, diagnosis, or treatment. The Court remanded with
instructions to Unum to inform Mr. Bunger of the additional
testing or diagnostics required to make an informed decision
as to whether he is able to perform his job functions.
remand, Unum again denied Mr. Bunger benefits. Mr. Bunger
filed an unopposed motion to reopen the action. This matter
now comes before the Court on the parties' second cross
motions for judgment under Rule 52. Mr. Bunger seeks a
judgment declaring he meets his burden of showing disability
under the STD plan from August 30 to October 4, 2014,
disability from his “own job” under the LTD plan
from October 5, 2014 to July 5, 2015, and disability from
“any gainful occupation” under the LTD plan from
July 6, 2015 through the present. Dkt. 47. Unum asks that the
Court affirm its benefits decision and grant judgment in its
favor. Dkt. 53. Unum also argues that, if the Court finds Mr.
Bunger meets his burden of proving his inability to perform
his own job at Costco for the first nine months of LTD
benefits, the Court should remand to Unum the question of
whether Mr. Bunger was disabled under the more stringent any
gainful occupation standard after that point.
before, the Court conducts a de novo trial of this
matter under Rule 52 based on the administrative record
considered by Unum. See Dkt. 24 at 2-3. The
administrative record now before the Court is comprised of
(1) Unum's file for plaintiff's claim for STD
benefits (STD 1-447), Dkt. 12; (2) Unum's file for
plaintiff's claim for LTD benefits (LTD 1-513), Dkt. 12;
and (3) Unum's expanded claim file (AR 1-992), Dkt.
Plaintiff also asks that the Court consider a new declaration
not included in the administrative record. See Dkt.
51. The Court now issues the following findings and
conclusions pursuant to Rule 52.
FINDINGS OF FACT
Court incorporates its prior findings of fact as set forth in
its July 20, 2016 Order. Dkt. 24. With exceptions to allow
for a complete understanding of the issues, the Court does
not re-state those facts here.
Chris Bunger's job as a Web Content Specialist for Costco
Wholesale Corporation required “[e]xcellent written and
verbal communication skills, . . . [s]trong organizational
and analytical skills, and attention to detail[, ]” as
well as the ability to multi-task and perform a variety of
complex tasks. LTD 368, 370. Through his employment with
Costco, Mr. Bunger was offered STD and LTD benefits in plans
administered by Unum Life Insurance Company of America. STD
378; LTD 450.
Unum's STD Plan provides for 26 weeks of benefits,
awarded if an employee is “limited from performing the
material and substantial duties of [his] own job . . . due to
. . . sickness or injury; and [he] ha[s] ¶ 20% or more
loss in weekly earnings.” STD 367, 371.
Unum's LTD Plan provides for benefits beyond the 26-week
window. LTD 434. For the first nine months of LTD coverage,
“disabled” is defined in the same way for LTD
benefits as it is for STD benefits. LTD 428. After nine
months, an employee must show he is disabled from “any
gainful occupation” as opposed to just his “own
the STD and LTD plans define “sickness” as
“an illness or disease, ” and require a showing
the claimant is “under the regular care of a
physician.” STD 358, 377; AR 420, 450. “Regular
care” is defined as personal visits to a physician and
receipt of “the most appropriate treatment and care
which conforms to generally accepted medical standards for
your disabling condition(s) by a physician whose specialty or
experience is the most appropriate” for those
Under the LTD plan, disabilities “which are primarily
based on self-reported symptoms, and disabilities due to
mental illness have a limited pay period up to 18
months.” AR 436 (emphasis removed).
STD and LTD plans provide for payments to stop at the
earliest of certain events. For STD benefits and for the
first 9 months of LTD benefits, payments stop when a claimant
is “able to work in [his] own job or a reasonable
alternative” offered by the claimant's employer
“on at least a part-time basis but [the claimant]
choose[s] not to[.]” STD 371; AR 436. After the first 9
months of LTD benefits, part-time work need not be offered by
the claimant's employer, and payments stop “when
you are able to work in any gainful occupation on a part-time
basis but you chose not to[.]” Id. Part-time
basis “means the ability to work and earn between 20%
and 80%” of weekly earnings for STD benefits and
indexed monthly earnings for LTD benefits. STD 376; AR 449.
approved Mr. Bunger's claims for STD benefits for some 22
weeks between early January and August 29, 2014. STD 56, 77,
145, 150, 250. Unum denied further STD benefits and LTD
benefits, STD 339; LTD 388-89, and, on January 23, 2015,
denied Mr. Bunger's appeal, LTD 480-83.
Traci Taggart, a naturopath and Mr. Bunger's primary care
provider, gave Costco an update on his status in a January
30, 2015 letter. AR 793. Mr. Bunger continued to have chronic
fatigue, weakness in his lower extremities, anxiety, and
cognitive impairments, and was unable to work. Id.
Dr. Taggart extended Mr. Bunger's FMLA leave for an
additional month and estimated his return to work as March 1,
Although Mr. Bunger remained symptomatic, he improved to the
point he was able to return to work part-time. Dr. Taggart
approved Mr. Bunger's return to his job, for two days a
week, six hours per day, from March 2 through June 30, 2015.
AR 787-92. Mr. Bunger could not start work before 7:00 a.m.,
had symptoms that may wax and wane, and may miss some
scheduled work days or need to leave early. Id.
June 2015, Dr. Taggart approved an increase to eight-hour
days, two days a week, following further improvement in Mr.
Bunger's symptoms. AR 786. However, Mr. Bunger stopped
working that same month. AR 854. He at times found it
difficult to focus and concentrate, became exhausted after a
few hours, missed scheduled days, and ultimately had to stop
June 29, 2015, Mr. Bunger filed suit in this Court. Dkt. 1.
September 2015, Mr. Bunger's health had improved and Dr.
Taggart approved his return to work for three days a week,
eight hours per day, through October 31, 2015. AR 779,
781-84. Dr. Taggart noted physical examination revealed
hyperreflexia and mild weakness in Mr. Bunger's lower
extremities and labs showed mild immune dysregulation.
Id. Dr. Taggart suggested the ability to work
remotely would mitigate some of Mr. Bunger's challenges
in returning to work. Id.
early November 2015, Dr. Taggart reported that Mr. Bunger
continued to show significant improvements in his health, but
was starting a new treatment protocol, which would likely
cause him to feel worse initially. AR 778. His symptoms
remained and physical examination revealed mild
hyperreflexia, improved from the previous visit, and mild
weakness in his hands. Id. Dr. Taggart approved work
three days a week, ...