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Kenneth William Colassi v. the Hartford Life & Accident Insurance Company

May 15, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 086


Kenneth Colassi, a former participant in the BAE Systems Funded Welfare Benefit Plan ("Plan"), brings a pro se Employee Retirement Income Security Act ("ERISA") action against the Plan Administrator, BAE Systems Inc. ("BAE"), seeking to recover disability benefits allegedly owed him. Both Colassi and BAE have moved for judgment on the administrative record. For the reasons set forth below, I grant the Plan's motion and deny Colassi's motion.


A. Employment with BAE & the Plan

After working at BAE for many years as a programmer analyst, Colassi's employment was terminated on April 16, 2009. At the time, BAE was implementing a reduction in force.*fn2

As an employee of BAE, Colassi was insured under the company's short-term disability plan, which provides short-term income protection for an employee who becomes disabled as the result of a covered accident or sickness. Tr. 136. The Plan names BAE as the Plan Administrator and Employer/Plan Sponsor, and vests BAE with final responsibility for deciding appeals of claims, determining eligibility for coverage, and paying out benefits. Tr. 134, 141, 146. It further provides that BAE "has full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Plan." Tr. 143.

Benefits under the Plan are payable to covered employees who become "Totally Disabled" and furnish proof that they remain disabled. Tr. 138. The Plan explains that individuals are "Totally Disabled" when they are prevented "from performing the essential duties of [their] occupation" by accidental bodily injury, sickness, mental illness, substance abuse, or pregnancy, "and as a result, . . . earn[] less than 20% of [their] pre-disability Weekly Earnings." Tr. 145. Claimants must provide written proof that establishes their entitlement to benefits. Tr. 142.

B. Colassi's Medical History and Filing of Claim

In September 2008, Colassi saw his primary care physician, Dr. Ihab Ziada, about joint pain and muscle aches. Tr. 55-56. Dr. Ziada's notes from that session mention that Colassi had been bitten by a tick, though Dr. Ziada believed Lyme disease was unlikely. Tr. 56. The notes do not mention Colassi raising any other concerns. Id.

In a series of appointments spanning August and September 2008, Colassi visited the office of Dr. David Frost, a chiropractor. Tr. 69-74. Dr. Frost administered chiropractic adjustments to alleviate Colassi's back pain. Id.

Colassi returned to Dr. Ziada's office in December 2008, complaining of lower back pain and muscle spasms. Tr. 61. Dr. Ziada's notes indicate that Colassi had a history of gastroesophageal reflux disease. Id. Dr. Ziada prescribed Vicodin for Colassi's back pain and Prilosec OTC for the reflux. Id.

In February 2009, Colassi saw Dr. Ziada twice for upper respiratory symptoms and was diagnosed with sinusitis. Tr. 62-65. Dr. Ziada's notes do not mention that Colassi complained of reflux or back pain on either visit.

Colassi returned to Dr. Ziada's office on April 22, six days after his employment with BAE had been terminated, and told the doctor that his reflux disease required him to sleep at a 45-degree angle and that he suffered severe back pain as a result of his inability to lie flat. Tr. 67. In his notes, Dr. Ziada indicated that Colassi had "recently been laid off," and he described the appointment as "mainly a counseling dominat[ed] session where we talked about the outcome of the reflux symptoms, how [] we control it, the back pain, what options orthopedics might help us, what options physical therapy and chiropractor work might help us with." Id.

Colassi filed a claim for short-term disability benefits on November 16, 2009 based on his acid reflux and back issues. BAE subsequently advised Colassi that based on the date his employment was terminated, he would have had to become disabled no later than April 30, 2009 to be eligible for benefits.

Colassi saw Dr. Ziada on December 21, 2009, and again complained that his extreme reflux symptoms forced him to sleep at a 45-degree angle, which placed "a tremendous amount of pressure on his lower back" and resulted in "lumbar strain."

Tr. 68. Colassi stated that he was unable to sit or stand for more than 15 or 20 minutes due to the back pain. Id. Dr. Ziada noted that he believed Colassi was in need of surgical intervention to help with his reflux. Id.

C. Initial Claim Process

In response to a request from Hartford-Comprehensive Employee Benefit Service Company ("Hartford"), the Claims Administrator under the Plan, Dr. Ziada completed an Attending Physician's Statement of Functionality ("APS") on December 22, 2009. Tr. 77. Dr. Ziada stated that Colassi's injury was secondary to a "[r]ogue dilation proced[ure] on his lower esophageal sphincter," and caused a primary diagnosis of "lower esophageal sphincter incompetence." Id. He listed lower back pain, insomnia, and fatigue as secondary diagnoses, and burning in the chest, lower back pain, asthma, shortness of breath, and fatigue as Colassi's subjective symptoms. Id. On the functional capability portion of the form, Dr. Ziada indicated that Colassi could occasionally lift up to 20 pounds, and could sit, stand, and walk for a total of 1 hour per day. Tr. 78.

On January 24, 2010, Colassi's attorney, Ronald Eskin, provided Hartford with the treatment notes of Dr. Ziada and Dr. Frost that have been summarized above. The file was referred to medical case manager Kristina Baggett, R.N., for a determination about whether Colassi's condition supported a disability finding.

After reviewing the file, Ms. Baggett noted that there were "[n]o exam findings, diagnostics, or RLS [restrictions and limitations] as of 4/22/09" and that clarification was needed. Tr. 118. On March 10, 2010, she faxed a letter to Dr. Ziada requesting that he confirm that Colassi's April 22 "office visit was primarily a counseling session regarding [] options for ongoing treatment." Tr. 93. The letter stated that the notes of Dr. Ziada's session contained "no indication of a full body physical exam, updated diagnostics performed at that time or specific restrictions or limitations being placed [on] Mr. Colassi at that time." Id. The following day, Dr. Ziada signed the letter that Ms. Baggett had faxed to him, and faxed it, along with his December 21, 2009 treatment notes, back to her office. Tr. 47-49. Dr. Ziada did not include any documentation that would rebut Ms. Baggett's interpretation of his treatment notes through April 22, 2009.

On March 15, 2010, Ms. Baggett provided an assessment of Colassi's file, and concluded that Colassi's claim was insufficiently supported by the medical evidence that had been produced. Tr. 116. The claims managers responsible for ...

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