Maulolo v. Billings Clinic and Sun Life Assurance of Canada

ERISA: Former clinic Medical Education Specialist proved that she was totally disabled and entitled to benefits for 24-months ending 3/29/20, denial applied wrong definition of “Total Disability and Totally Disabled,” Claimant was unable to perform one or more material & substantial duties of her Regular Occupation, denial based on subjective evidence combined with perceived lack of objective evidence contrary to case law… Claimant awarded attorney fees, costs, prejudgment interest, remanded for determination of whether she met policy’s “any occupation” definition of “total disability” after 3/29/20… “paper bench trial”… Watters.

Before the Court are proposed findings & conclusions submitted by Paula Maulolo and Sun Life Assurance of Canada on Maulolo’s claim for ERISA benefits. The parties stipulated to “a paper bench trial” on the administrative record under Rule 52(a). At issue is whether Maulolo is entitled to long-term benefits under Billings Clinic’s group policy. After considering the submissions, the Court finds her to be disabled and entitled to benefits.

Billings Clinic employed Maulolo from 2008 as Internal Medicine Residency Program Administrator, Organizational Development Consultant, and Medical Education Specialist. She also owned a jiu-jitsu dojo with her husband.

She first sought medical care for radiating back & leg pain in the spring of 2016 after years of pain symptoms. The pain affected her homelife and activities. She lost 140 pounds over 7 years from exercise but now found her capabilities limited. A 12/3/16 MRI revealed a sacral cyst at L5-S1. She underwent injections, electrical stimulation, and bed rest, and ultimately opted for a drain in the cyst. The drain improved radicular symptoms but caused intense sacral pain. On 2/2/17 she had a shunt installed and experienced relief for 48 hours. However, the incision began building fluid, causing positional headaches, and did not result in lasting relief. She continued to work and integrated various measures to find comfort such as a standing desk or lying down for brief periods.

Maulolo had the cyst removed in 8/17 by Dallas neurosurgeon Dr. Feigenbaum who identified it as a sacral meningeal cyst. She took medical leave and by the end of August had made “slow but steady” progress with use of medication but still had sacral and leg pain. Dr. Kari Kale in Billings noted in 10/17 that she was “still in lots of pain, but gradually improving,” had increased steps to 8,000 – 10,000 per day, could not stay in one position too long, and used a “sit to stand desk at work.” Maulolo reported to Kale in 11/17 that her pain was worsening, activities increased it, and work was difficult.

Kale referred Maulolo to pain specialist Michael Schabacker who documented her reports of “persistent deep aching and stabbing pain in the lower reaches of her lumbar spine” that “radiates distally into her lower extremities but does not follow a radicular pattern.” He further documented severe and incapacitating pain that was creating “substantial despair in her life” including dependence on family for household duties like cooking and concluded: “Clearly, the impact of this chronic pain condition on her life both at home and at work is dramatic.” He increased her Oxycontin and Oxycodone and referred her to Giancarlo Barolat in Denver for possible spinal cord stimulation therapy.

Billings Clinic had provided accommodations including a special chair, a standing desk, a conference room to lie down, and a yoga mat to lie down in her office. In 12/17 she requested to work from home. Billings Clinic denied her request based on the requisites of her job description such as attending meetings, escorting medical students and residents, and other in-person tasks.

Maulolo was informed 1/5/18 that her 12 weeks of leave was expiring 1/8, she may be placed on inactive status for up to 12 weeks, and she may be eligible for long-term disability under Billings Clinic’s Sun Life group policy. She applied for long-term disability 1/10/18 and resigned 1/12.

She underwent percutaneous placement of a temporary spinal cord stimulator in 4/18, initially reporting near-complete relief, and considered a permanent stimulator for which Barolat opined she was a “great candidate.” On 6/19/18 he implanted a permanent stimulator.

In a follow-up with Schabacker’s nurse 8/1/18 Maulolo reported her frustration with the stimulator; while some improvement had occurred, it was not what she had hoped. She felt the pain was well-managed when immobile but worsened with activity and included new pain in her thorax.

2 weeks later Schabacker noted that Maulolo was “a viable candidate for application disability given the substantial impairment in function chronic pain condition has imparted. It is apparent she is substantially limited functionally.” He reiterated his opinion in a 2/19 letter that she was disabled as of 12/29/17. SSA determined that she was disabled as of 1/5/18.

Sun Life was unable to make a disability determination based on its initial processing of Maulolo’s claim. It interviewed her 1/25/18 during which she disclosed that she had 2 jobs in addition to Medical Education Specialist at Billings Clinic: the jiu-jitsu dojo that she co-owns with her husband and a sales-commission job with health coaching company Optavia. It further determined “in lieu of an ISO search a background check given the claim circumstances would be best.” No explanation was given as to what “claim circumstances” prompted the background check. It obtained a background check investigation from PHOTOFAX which revealed details of her day-to-day life from recreation to social media posts and interviews with neighbors. The investigator summarized the neighbors’ observations as confirming her injuries, surgeries, and activity level pre- and post-injury.

Sun Life nevertheless rejected Maulolo’s claim 3/13/18:

We have determined that the medical evidence does not support that you would be precluded from performing the Material and Substantial Duties of your Own Occupation as Medical Education Specialist I throughout and beyond the Elimination Period. As such, you do not meet the definition of Total Disability and benefits are denied.

“Own Occupation” is not defined in the policy or rejection letter. They define “Elimination Period” as

the number of consecutive days of Disability, shown in the Benefit Highlights, which must be completed before we will pay you the benefit. No benefits will be paid to you for any portion of your Disability that occurs during your Elimination Period.

Maulolo’s Elimination Period ran 1/29/17 through 3/29/18. The policy defines “Total Disability” and “Totally Disabled” as

during the Elimination Period and the next 24 months you are unable to perform one or more of the material and substantial duties of your Regular Occupation.

After 24 months of receiving Total and Partial Disability benefits combined, Total Disability and Totally Disabled means you are unable to perform with reasonable continuity any Gainful Occupation for which you are or could become reasonably qualified for by education, training and experience.

Total Disability must be caused by an Accident or Sickness and must commence while you are insured under the Policy.

Maulolo appealed 3/22/18 and included medical records from 10 additional providers which Sun Life forwarded to Dr. Germaine Rowe who noted that the clinical evidence supported her physical condition as functionally impaired and concluded that “from the perspective of Pain Medicine, the medical data supports that the claimant has remained functionally impaired from 12/29/17 to the present.” But she also found that Maulolo had the ability to perform certain activities such as sitting 6 hours per 8-hour day; walking & standing 60 minutes/hr at a time, 8 hours total per day; and lifting & carrying 50 pounds occasionally and 25 pounds frequently. (Sun Life also referred Maulolo’s records for a psychiatric opinion but denial of benefits based on psychiatric conditions is not raised in this action.)

Maulolo’s appeal was denied 7/3/18 on grounds of insufficient evidence to support continuous “Total Disabled” throughout the Elimination Period. The denial omitted Rowe’s finding that the medical data supported functional impairment 12/18/17 onward. Maulolo contacted Sun Life to dispute the decision and to assert that Dr. Barolat had additional records supporting her disability. Sun Life agreed to consider Barolat’s records and arrange for Rowe to speak with him. Barolat later confirmed the contents of his discussion with Rowe but corrected a mischaracterization, circling the statement “You stated that the claimant can work a job with prolonged sitting or lifting” and hand-wrote: “I believe I stated that the claimant needs a FCE to evaluate the extent of her work capabilities/limitations.” Rowe confirmed Maulolo’s functional impairment from 12/29/17 to 7/23/18.

Maulolo told Sun Life that she would try to obtain an FCE from Schabacker on her next visit. On 9/1/18 he noted that “it is apparent she is substantially limited functionally.” He appears to write that an FCE was not necessary but the note is unclear: “I do not believe that FCE is nothing very.” Sun Life did not request Maulolo to undergo an FCE and she never underwent one.

Rowe issued an addendum 10/3/18 which included Barolat’s additional reporting but did not alter Rowe’s conclusion relating to the Elimination Period which included sitting 6 hours per 8-hour workday; walking & standing 60 minutes/hr at a time and 8 hours total per 8-hour workday; lifting & carrying 50 pounds occasionally & 25 pounds frequently; and bending, squatting, climbing, kneeling frequently.

Sun Life denied Maulolo’s appeal 10/9/18 based “on the opinion of Dr. Rowe,” concluding that while Maulolo had experienced 2 closed periods of disability she failed to demonstrate disability during the Elimination Period and she was ineligible because her coverage had ended 12/28/17, the last full day of work, and she was no longer “actively at work.” It also concluded that her medical limitations “would not prevent you from performing the duties of your Regular Occupation as an Administrative Assistant (classified as requiring a sedentary physical exertion level).” It also explained that she had exhausted her administrative remedies regarding the disability decision “from a physical condition(s) perspective.

Maulolo sued 6/13/19 seeking relief from wrongful denial of benefits under 29 USC 1132(a)(1)(B).

Maulolo has met her burden to establish total disability, that is, “during the elimination Period and the next 24 months [she was] unable to perform one or more of the material and substantial duties of [her] Regular Occupation.”

Her Elimination Period ran 12/29/17 through 3/29/18. She provided records for 7 visits with healthcare providers during the period. After her initial denial she submitted additional records when she realized she was not limited to only 3 records (the number of spaces on the form). The records depict chronic back problems including surgical removal of a cyst and installation of a spinal stimulator and severe pain. Chronic pain clearly affected her ability to work, especially when accommodations were no longer helpful or feasible, by 1/18. Thus she decided to leave Billings Clinic “due to feeling she is unable to manage work physically.” Billings Clinic denied her final request for accommodation (work from home) because her position as “Medical Education Specialist requires you to attend meetings, take minutes, cover phones and escort medical students and residents.” Thus she was no longer capable of performing “one of more of the material and substantial duties” of her job.

The records also extensively document her discomfort with sitting and preference to stand amid pain & discomfort for periods as short at 10 minutes, casting doubt on Sun Life’s finding on her ability to do sedentary work. Her pain physician Dr. Schabacker further explicitly supported her claimed disability, and SSA separately determined her disabled and entitled to SSD. A plan administrator’s disregard for SSA’s contrary determination is another of the case-specific factors courts may weigh when reviewing a benefit determination. Montour (9th Cir. 2009). Maulolo’s condition appears to have been substantially unchanged from when she left her employment through the final rejection of her claim.

Sun Life’s supposition that Maulolo was capable of sedentary work — that she could sit for 6 hours; lift, carry, pull, and push 50 pounds occasionally; and frequently bend, squat, climb, and kneel — is directly contradicted by her medical records. Multiple physicians observed her discomfort with sitting and preference to stand amid pain & discomfort. Sun Life itself reported in its initial denial letter that she may:

occasionally walk, sit, push, pull. May not bend, squat, climb, twist, kneel or crawl. Lift/carry indicated 0 lbs. Comments must be able to change positions every 10 minutes, sit to stand. Dr. Kale also noted despite surgery pain continues has difficulty maintaining position >10 minutes.

Her medical records clearly state that she cannot sit 6 hours a day; lift or carry 50 pounds occasionally; or bend, squat, climb, twist, kneel, or crawl frequently,” as Sun Life’s reviewing physician Dr. Rowe suggests.

Sun Life proffers no evidence to contradict Kale, Schabacker, or NP Lisa Guthrie’s observations relating to Maulolo’s discomfort sitting or disability. In fact, its own private investigator appears to confirm her transformation from a “very active and health-conscious individual” to someone with back issues who “may go on long term disability.” While this observation is not medical by nature, contemporaneous observations by neighbors support her change in circumstances.

Sun Life’s denial of Maulolo’s claim did not apply the same definition of “Total Disability and Totally Disabled” found in Billings Clinic’s policy as stated in the rejection letter. The policy clearly requires the claimant to be “unable to perform one or more of the material and substantial duties of your Regular Occupation.” The rejection letter states: “The medical evidence does not support that you would be precluded from performing the Material and Substantial Duties of your Own Occupation.”

Maulolo’s debilitating pain prevented her from performing “one or more” of the duties in her Regular Occupation-equivalent as an Administrative Assistant, which typically requires sedentary exertion. She could not sit for 6 hours/day or bend, squat, climb, twist, kneel, or crawl. Further, the difference in the amount of duties she could not perform — “one or more” v. “material and substantial duties” — is inaccurate per plan language.

Sun Life’s proposition that Maulolo’s records were devoid of any objective evidence of functional impairment and consisted entirely of self-reported pain, which her physicians then adopted to support her claim of disability is unconvincing and contrary to 9th Circuit precedent. “A disability insurer cannot condition coverage on proof by objective indicators where the condition is recognized yet no such proof is possible.” Holmgren v. Sun Life (ND Cal. 2018) (Cruz-Baca (9th Cir. 2017)). Indeed, Sun Life’s reliance on objective evidence to deny benefits for a claimant with chronic pain was roundly rejected in Holmgren and is no more convincing here. Holmgren noted that “the Ninth Circuit has found that chronic pain, like that of which plaintiff complains, ‘is an inherently subjective condition.'” (Quoting Cruz-Baca).

Chronic pain is clearly one condition for which courts have not required objective evidence and the 9th Circuit has repeatedly held that “the lack of objective physical findings” is in and of itself insufficient to justify denial of disability benefits. Eisner (ND Cal. 2014) (citing Salomaa (9th Cir. 2011)). Other circuits agree. “It has long been the law of this Circuit that ‘the subjective element of pain is an important factor to be considered in determining disability.'” Valentine (ED NY 2015); Connors (2nd Cir. 2001).

Maulolo has met her burden of proof by a preponderance of the evidence that she was totally disabled and entitled to disability benefits for the 24 months ending 3/29/20. Sun Life’s denial applied the wrong definition of “Total Disability and Totally Disabled.” Maulolo was unable to perform one or more material and substantial dues of her Regular Occupation. Its denial based on her proffering of subjective evidence combined with a perceived lack of objective evidence runs contrary to case law.

Maulolo’s Long Term Disability claim must be remanded to Sun Life for a determination of whether she met the policy’s “any occupation” definition of “total disability” after the 24 months ending 3/29/20. Saffle (9th Cir. 1996).

Judgment is entered in Maulolo’s favor for total disability benefits for the 24 months ending 3/29/20 with reasonable attorney fees, costs, and prejudgment interest under 29 USC 1132(g)(1).

Maulolo v. Billings Clinic and Sun Life Assurance of Canada, 44 MFR 254, 9/9/21.

Caitlin Boland Aarab & Samir Aarab (Boland Aarab), Great Falls, for Maulolo; Mikel Moore (Moore, Cockrell, Goicoechea & Johnson), Kalispell, for Sun Life.