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Sandoval v. Unum Life Insurance Co.

United States District Court, D. Colorado

August 29, 2018




         Plaintiff Brenda Sandoval (“Sandoval”) brings this action against Defendant Unum Life Insurance Company of America (“Unum”) alleging that Defendant wrongfully denied her disability insurance benefits while she was recuperating and disabled following cervical surgery. (ECF No. 5.) Sandoval therefore sues Unum for breach of insurance contract, common law bad faith breach of insurance contract, and unreasonable delay or denial of an insurance claim in violation of Colorado Revised Statutes §§ 10-3-1115 and -1116. (Id.)

         Currently before the Court is Unum's Motion for Partial Summary Judgment (the “Motion”). (ECF No. 48.)[1] The motion is “partial” in that it only addresses the bad faith and unreasonable delay/denial claims. Thus, irrespective of how the Court rules on the instant Motion, Sandoval's breach of insurance contract claim will remain set for trial.

         For the reasons explained below, the Court grants Defendant's Motion on the common law and statutory bad faith claims, leaving for trial only Sandoval's breach of contract claims against Unum. Given the Court's disposition of this Motion, the Court denies as moot Defendant's Rule 702 Motion to Exclude Opinions and Testimony of Plaintiff's Bad Faith Expert (ECF No. 66). Defendant's Motion in Limine to exclude certain evidence (ECF No. 73) remains pending. Finally, given this disposition, the Court will shorten the currently scheduled jury trial to four days.

         I. BACKGROUND

         The following factual summary, viewed in the light most favorable to the nonmoving party, is based on the parties' briefs on the Motion and documents submitted in support. These facts are generally undisputed except where noted. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.[2]

         Sandoval worked as a Training Supervisor for the Douglas County Motor Vehicle Department. The parties agree that Sandoval's position required her to train staff about the Motor Vehicle Department, vehicle titles, registration, submissions, and laws. Her job also required giving presentations, frequent typing, and occasional standing. (ECF No. 48 at 3, ¶ 2; ECF No. 55 at 1-2, ¶ 2.)

         As an employee, Sandoval was insured under three separate policies: (1) a Group Long Term Disability Policy (“LTD Policy”); (2) a Group Life and Accidental Death and Dismemberment policy (“Life Insurance Policy”); and (3) a Supplemental Life Insurance policy (“Supplemental Life Insurance Policy”). (ECF No. 47 at 2; see ECF Nos. 48-5, 48-6, 48-7.)

         A. Medical History

         1. First Surgery in September 2014

         Sandoval developed neck and left arm pain in the summer of 2014, and visited orthopedic surgeon Dr. John Barker at the Rocky Mountain Spine Clinic, P.C., on September 3, 2014. (ECF No. 47-1 at 89-93.) Dr. Barker determined that Sandoval had spinal issues from C5-C7 and recommended surgical intervention. (Id. at 92.) On September 16, 2014, Dr. Barker performed an anterior cervical fusion surgery at ¶ 5-C7. (Id. at 138.)

         Within six weeks of the surgery, Sandoval returned to work on a part-time basis and started physical therapy. (Id. at 86.) Within three months, Sandoval returned to work full time without restrictions. (Id. at 82.) Dr. Barker stated that as of December 2014, Sandoval was “doing very well.” (Id. at 95.) He released her to return to work “because she was not going to do any heavy bending, lifting or twisting and because her pain was under good control.” (Id.)

         2. Second Surgery in October 2015

         In February 2015, Sandoval's neck pain began to worsen and she developed pain in her right arm. (Id. at 79.) Sandoval again saw Dr. Barker. He reviewed x-rays of her cervical spine and observed a delayed union and possible development of symptomatic pseudoarthrosis (an abnormal union after a fracture). (Id. at 80.) He recommended an external bone stimulator to encourage healing of her cervical spine. (Id.) Sandoval used the stimulator for three months but her symptoms continued to worsen. (Id. at 74.) In June 2015, Dr. Barker reviewed additional x-rays, observed symptomatic pseudoarthrosis at ¶ 5-C6 and C6-C7, evidence that the bone fusion was not healing, and recommended posterior cervical fusion. (Id. at 76.)

         On September 14, 2015, nearly one year to the day after her first surgery, Dr. Barker saw Sandoval again for increased neck pain, worsening left arm pain, and right arm pain. (Id. at 70.) X-rays showed a questionable non-union at ¶ 5-C6, and a clear non-union at ¶ 6-C7, as well as increasing kyphosis (excessive curvature) at ¶ 4-C5 above the fusion. (Id. at 72.) Dr. Barker recommended an anterior and posterior pseudoarthrosis repair from C5-C7, as well as extending the fusion to C4-C5. (Id.)

         On October 6, 2015, Sandoval had a second cervical fusion surgery. (Id. at 140.) Dr. Barker removed the C5-C7 anterior cervical plate, redid the C6-C7 level, added a C4-C5 anterior plate, and placed posterior rod and screws from C4-C7. (Id. at 94, 140-142.)

         3. Recovery from Second Surgery

         On October 21, 2015, two weeks after the surgery, Sandoval attended a follow-up appointment with Dr. Barker. (Id. at 25.) He observed that she was “doing very well, ” as her radiating pain had dissipated and weakness in her left arm resolved. (Id.) At that time, Sandoval exhibited “5 over 5 motor strength” (normal strength) in her “bilateral upper extremities” (both arms and shoulders). (Id. at 26.) Sandoval still had “posterior trapezius pain” (upper back pain). She had stopped taking “all narcotics, ” but continued to take Tylenol and alternate between Robaxin and Zanaflex (muscle relaxants). (Id. at 25.)

         Sandoval returned to Dr. Barker on November 23, 2015. (Id. at 22.) He noted that she was “continuing to improve” and had been “working on active range of motion of her cervical spine as well as her shoulders.” (Id.) Sandoval had “some” cervical-induced headaches as well as posterior cervical pain. Sandoval's incision had healed nicely, she continued to have normal strength in her arms and shoulders, and had “intact sensation in all dermatomes bilateral upper extremities” (normal sensory perception on skin on the upper body). (Id. at 23.) The parties agree that Dr. Barker's physical examination revealed “very good progress.” (ECF No. 47 at 6 ¶ 33; ECF No. 55 at 3, ¶ 33.) Sandoval had not returned to work because of the pain. (ECF No. 47-1 at 23.) She also had not resumed driving because of decreased neck mobility. (Id.) Dr. Barker noted as much in his “plan”: “She is not able to return to work because she cannot sit for more than 30 min. at a time secondary to posterior cervical pain and she cannot drive.” (Id. at 24.)

         On December 21, 2015, Dr. Barker saw Sandoval again three months after the second surgery. (Id. at 19.) Sandoval was “continuing to slowly improve.” (Id.) Sandoval had normal strength in her shoulders and arms, and had been exercising to increase her range of motion and strengthen her shoulders, though continued to have shoulder pain and some left arm numbness. (Id. at 19-20.) Dr. Barker recommended that Sandoval “increase her activity of her cervical spine” and “start using light barbell weights in order to further rehabilitation.” (Id. at 21.) He noted that Sandoval was taking Robaxin and could also take ibuprofen for pain management. (Id.) Finally, Dr. Barker noted that Sandoval “cannot return to work at this time as she is unable to sit at a desk for more than 30 minutes” and opined that “it is my estimation that she will be unable to return to work where she has to sit at a computer and desk for 8 hours a day until at least April 1.” (Id.)

         Sandoval returned to Dr. Barker's office on February 29, 2016. (Id. at 16.) She had been working on her range of motion of her cervical spine and shoulders, but still had some posterior trapezius and cervical pain. (Id.) When she had pain in the back of her neck, her left arm tingled and went numb; the tingling sensation resolved when pain improved. (Id.) During the physical exam, Sandoval continued to exhibit “5 over 5 motor strength.” (Id. at 17.) In addition, Dr. Barker noted that Sandoval had “some pain with cervical flexion past 60° and rotation to the right and left” and “no pain with cervical extension.” (Id.) She had “intact sensation in all dermatomes bilateral upper extremities.” (Id.) X-rays revealed “no evidence of any loosening of her posterior hardware.” (Id. at 18.)

         Dr. Barker determined that Sandoval was “unable to return to work secondary to her inability to sit for any significant amount of time at a desk or work computer.” (Id.) At his deposition, Dr. Barker stated that he included this limitation based on Sandoval's report and assessment of her own pain. (ECF No. 60-2 at 4-5.) He instructed Sandoval to work on her active range of motion, take anti-inflammatory medication and muscle relaxants as needed for pain, and remain out of work until her next evaluation in June. (ECF No. 47-1 at 18.) The June 2016 records, if any, are not in the materials cited by the parties.

         One year after the surgery, on October 10, 2016, Sandoval returned to Dr. Barker for evaluation. (This visit occurred between Unum's denial of benefits and Sandoval's appeal, as discussed below in Parts I.B.4-5.) He noted that she continued to have pain in the back of her neck, and neck pain when seated for more than 30 minutes. (Id. at 67.) Sandoval had numbness in her left arm, as well as right arm numbness when seated for too long. Household activities, such as cleaning, took her much longer because she required breaks to manage the pain. (Id.) At this visit, Sandoval's range of motion of her cervical spine measured extension 30°, flexion 60°, and right and left rotation 40°, but she reported pain with moving. (Id. at 69.) She continued to exhibit normal motor strength. On the x-rays, Dr. Barker observed a solid fusion from C4-C7. He noted that Sandoval was “continuing to work on active range of motion of her cervical spine. Unfortunately, she is permanently disabled.” (Id.)

         B. Insurance Claim

         1. Applicable Policy Language

         As mentioned above, Sandoval was covered under three separate insurance policies by her employer, the LTD Policy, the Life Insurance Policy, and the Supplemental Life Insurance Policy.[3] (ECF No. 48 at 2; see ECF Nos. 48-5, 48-6, 48- 7.) For each month that Sandoval met the policies' definition of “total disability, ” Sandoval was eligible for a monthly benefit. (ECF No. 48 at 7, ¶ 41.)

         The LTD Policy defined “disability” for the first twenty-four months of payments as:

You are disabled when Unum determines that due to your sickness or injury:
1. You are unable to perform the material and substantial duties of your regular occupation and you are not working in your regular occupation or any other occupation
2. You are unable to perform one or more of the material and substantial duties of your regular occupation, and you have a 20% or more loss in your indexed monthly earnings while working in your regular occupation or in any occupation.

(ECF No. 48-5 at 2.) In addition, the patient must be “under regular care of a physician.” (Id.) The LTD Policy defined “regular occupation” as “the occupation you are routinely performing when your disability begins.” (Id. at 3.) Unum further clarified that it would “look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.” (Id.)

         2. Submission of the LTD Claim

         In late December 2015, Sandoval filed a LTD claim form with Unum under the LTD Policy (“LTD claim”). (ECF No. 48-4 at 2, 5.) Sandoval identified her disabling medical condition as “cerv disc dis w/myelopathy” and Dr. Barker as her sole treating physician. (Id. at 2-3.) Sandoval listed her last day of work as October 2, 2015, and April 1, 2016[4] as the day she expected to return. (Id. at 3-4.)

         In early January 2015, Dr. Barker submitted the physician statement for the LTD claim. (Id. at 14-17.) He confirmed that he started treating Sandoval on September 3, 2014 for anterior cervical discectomy and fusion (C4-C7) and posterior cervical fusion (C4-C7). (Id. at 14.) He also advised that he told Sandoval to stop working in October 2015 and that she could not return to work “until at least [April 1, 2016] as she is unable to sit at a desk for more than 30 minutes.” (Id. at 15.) In support of this limitation, Dr. Barker explained that “patient is recovering from surgery.” (Id.)

         Shortly thereafter, Douglas County (Sandoval's employer) submitted the employer statement. (Id. at 18-22.) The statement identified “training of new staff into the Motor Vehicle Division” and “multi-week classroom training” as Sandoval's primary duties. (Id. at 18.) Douglas County also submitted a formal job description for Sandoval's position as “Motor Vehicle Trainer/Branch Supervisor.” (Id. at 21.) The physical qualifications for the position “require[d] walking or standing to a significant degree” and “lift[ing] up to 25 lbs, ” though “[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions.” (Id. at 22.)

         Sandoval's claim was assigned to Disability Benefits Specialist Chandra Towns. (Id. at 23.) On January 18, 2016, Sandoval provided an oral history to Towns of her symptoms of numbness and pain, diagnosis, and two surgeries. (Id. at 4.) She explained that she did not attend physical therapy, but completed home exercises using resistance bands (but not weights) and tried to stretch her back frequently. (Id.) Sandoval also explained that her movement was restricted: her hands were weak, she could not move her head left or right, and turning toward her shoulder caused pain. The only head positions that did not cause pain were looking up and straight ahead. (Id.) Sandoval also reported that she could not “sit for any period before she has to continually adjust.” (Id.) Finally, she told Towns that she had discussed possibly returning to work no sooner than April 1, 2016, depending on a reevaluation of her status. (Id. at 5.)

         In addition to discussing her medical condition, Sandoval and Towns talked about Sandoval's work and job responsibilities. Sandoval noted that the physical demands of her job as a Training Supervisor included giving presentations (often while standing), frequent typing, and teaching. (Id.) Sandoval also told Towns that she was a licenced hairstylist with approximately ten customers, whom she retained as clients to keep her license valid. Sandoval explained that she “tried to do some hair a few times but it didn't work out” because it was “too painful.” (Id. at 5-6.).

         Towns confirmed the details of her conversation with Sandoval in a letter dated January 21, 2016, and provided additional information about claims processing. (ECF No. 48-4 at 24-27.) She informed Sandoval that Unum would review her medical records to evaluate her claim, and that Sandoval could request an independent medical examination (“IME”) if she or her physician disagreed with Unum's assessment. (Id. at 24-25.) Towns also requested that Sandoval complete and return a Work Experience and Education Questionnaire by March 3, 2016. (Id. at 24.)

         3. Unum Initial Approval of the LTD Claim

         Unum began the new claim triage process for Sandoval's claim with a meeting on January 25, 2016. (Id. at 28.) In attendance were Towns, her director Jim Farr, nurse clinician Rachelle Mak, and vocational representative Laura Feeney. (Id.) They determined that the information provided as of that date would support “functional loss, ” but physical therapy records, x-rays, and additional assessment would be needed to determine ongoing duration of the impairment. (Id. at 29.) They planned to submit the claim for approval, monitor progress of physical therapy for Sandoval's return to ...

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