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Bunger v. Unum Life Insurance Company of America

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

March 22, 2018

CHRIS BUNGER, Plaintiff,


          The Honorable Richard A. Jones United States District Judge


         Plaintiff 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).

         The 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.

         The 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.

         On 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.[1]

         As 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. 48.[2] 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.


         1. The 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.

         2. 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.

         3. 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.

         4. 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 job.” Id.

         5. Both 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 conditions. Id.

         6. 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).

         7. The 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.

         8. Unum 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.

         9. Dr. 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, 2015. Id.

         10. 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.

         11. In 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 working. Id.

         12. On June 29, 2015, Mr. Bunger filed suit in this Court. Dkt. 1.

         13. By 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.

         14. In 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, ...

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