United States District Court, D. Colorado
MICHAEL D. ELLIS, Plaintiff,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, a New Hampshire corporation, Defendant.
MEMORANDUM OPINION AND ORDER
T. Babcock, Judge.
ERISA case is before me for determination of the merits
following briefing by the parties. See Doc #s 57, 61
& 62. After consideration of the parties' briefs, the
record, and the case file, and for the reasons stated below,
I enter judgment in favor of Defendant Liberty Life Assurance
Company of Boston (“Liberty”).
Michael D. Ellis is a former Senior Systems Architect for
Comcast Corporation (“Comcast”). As Senior
Systems Architect, Mr. Ellis's responsibilities included
(1) analyzing product requirements working with Senior
Management, Product Management, Product Design, Finance,
Product Development, Integration/Test, and Operations; (2)
allocating system requirements into individual requirements
for new and existing components and interfaces; (3) analyzing
feature complexity and time estimates, negotiating with
management to determine feature set to be delivered; (4)
creating detailed architectural documents; (5) managing
requirements database; (6) creating detailed interface
documents; and (7) performing bandwidth modeling. Doc #
January of 2012, Mr. Ellis, now 59 years of age, became ill
with pneumonia and developed severe chest pain caused by a
pulmonary embolism. Doc # 35-22, p. 10. While receiving
emergency medical treatment for his chest pain on February 1,
2012, Mr. Ellis went into cardiac arrest and his heart
stopped beating for a period of 24 seconds. Id.
Several weeks later, Mr. Ellis reported diminished
concentration, dizziness, and feeling weak and wobbly. Doc #
35-21, p. 24-5. Mr. Ellis's last day of work for Comcast
was February 29, 2012, and he was awarded SSDI benefits from
the Social Security Administration (“SSA”)
beginning in August of 2012 based on his claim of disability
due to brain injury, cognitive deficits, possible cerebral
hypoxia, leg weakness, balance problems, depression, tremors,
and numbness. Doc # 33-12, pp. 9 & 11-15.
Comcast employee, Mr. Ellis was eligible to participate in
Liberty's Group Disability Income Policy
GF3-830-502315-01 (the “Policy”). Mr. Ellis was a
Class 4 employee for purposes of coverages under the Policy.
Mr. Ellis's claim for short term disability benefits,
payable by Comcast pursuant to its Short Term Disability
Plan, was first approved as of March 1, 2012. Liberty, as the
administrator of Comcast's Short Term Disability Plan
ultimately extended Mr. Ellis's short term disability
benefits to the maximum period of September 5, 2012.
Mr. Ellis's Medical Records
Ellis received physical and speech-language therapy. Notes
from Mr. Ellis's physical therapy sessions dated in 2012
reflect that Mr. Ellis was experiencing weakness, fatigue,
and loss of balance/coordination. See e.g. Doc #
34-14, p. 9. Notes from Mr. Ellis's speech therapy
sessions in 2012 and 2013 reflect that Mr. Ellis was
experiencing mild to moderate cognitive deficits in areas
including attention, memory, and complex reasoning. See
e.g. Doc #34-15, p. 22.
A. Helffenstein, Ph.D., performed a neuropsychological
examination of Mr. Ellis in August and September of 2012. Doc
# 35-6, pp. 7-22. In a report dated November 10, 2012, Dr.
Helffenstein detailed cognitive deficits he observed in Mr.
Ellis and opined that these deficits “relate directly
and solely to the medical event that occurred on February 1,
2012” and that it “seems reasonable that an
episode of cerebral hypoxia did occur during this
event.” Id. at p. 19. Dr. Helffenstein
concluded that due to a combination of his “physical,
fatigue, visual, cognitive, and emotional coping problems,
” Mr. Ellis was totally disabled from competitive
employment at that time. Id. at p. 21.
C. Hadley, M.D., Mr. Ellis's primary care physician who
had been treating him since February of 2012, completed a
restrictions form for Liberty on May 23, 2013 and stated that
Mr. Ellis was unable to participate indefinitely in any work
situation requiring a minimal amount of concentration for
more than 10 - 20 minutes due to “cognitive impairment
from hypoxic encephalopothy.” Doc # 34-16, p. 21. Alan
Zacharias, a neurologist who began treating Mr. Ellis in May
of 2012, also completed a restrictions form for Liberty on
May 25, 2013 and stated that Mr. Ellis was unable to work as
shown by neuropsychological testing and his notes. Doc #
34-16, p. 11.
August 12, 2013, Dr. Hadley answered Liberty's request
for specific activities restrictions/limitations and
recommended that in an 8-hour workday Mr. Ellis could sit for
1-1½ hours at a time for a cumulative total of over
5½ hours; stand and walk for a cumulative total of
2½ hours; push, pull, lift, and carry up to 20 pounds
for short distances for a cumulative total of 2½
hours; and was restricted in climbing, squatting, bending,
and kneeling due to dizziness. Doc # 34-12, pp. 11-13. Dr.
Hadley also noted that Mr. Ellis “continues to have
cognitive impairment resulting in ongoing disability related
to concentration/memory.” Id. at p. 13.
16, 2014, Mr. Ellis was seen for a high-resolution brain
SPECT imaging study. S. Gregory Hipskind, M.D. Ph.D.,
reported that the results of the study were abnormal and that
the abnormalities “were most consistent with the
scientific literature pertaining to a diffuse, toxic/hypoxic
encephalopathic process and the patient's clinical
history.” Doc # 34-7, pp. 22-4.
Policy provides that “Liberty shall possess the
authority, in its sole discretion, to construe the terms of
this policy and to determine benefit eligibility hereunder.
Liberty's decisions regarding construction of the terms
of the policy and benefit eligibility shall be conclusive and
binding.” Doc # 52, p. 42.
pertinent part, the Policy defines “Disability”
or “Disabled” for purposes of long term
disability as follows:
i. if the Covered Person is eligible for the 12 Month Own
Occupation Benefit, “Disabled” or
“Disability” means that during the Elimination
Period and the next 12 months of Disability the Covered
Person, as a result of Injury or Sickness, is unable to
perform the Material and Substantial Duties of his Own
ii. thereafter, the Covered Person is unable to perform, with
reasonable continuity, the Material and Substantial Duties of
Id. at p. 9. Under the Policy,
“Own Occupation” means the
Covered Person's occupation that he was performing when
his Disability or Partial Disability began. If the Covered
Person is unable to earn 80% of his predisability earnings he
will be considered unable to perform his Own Occupation. For
purposes of determining Disability under the policy, Liberty
will consider the Covered Person's occupation as it is
normally performed in the national economy.
“Any Occupation, ” with respect
to Class 4, means any gainful occupation that the Covered
Person is or becomes reasonably fitted by training,
education, experience, age, physical and mental capacity.
Gainful occupation means an occupation in which the earnings
-equal to or greater than 80% of the Employee's
-less than 80 % of the Employee's average pre-disability
income, but higher than the average earnings for the
geographic area in which the Employee resides; or
- equal to or greater than the gross benefit.
Id. at pp. 7 & 12.
Policy provides that payment of long term disability benefits