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Dutkewych v. Standard Insurance Company

United States Court of Appeals, First Circuit

March 30, 2015

MARK DUTKEWYCH, Plaintiff, Appellant,
v.
STANDARD INSURANCE COMPANY, Defendant, Appellee, and MINTZ LEVIN COHN FERRIS GLOVSKY & POPEO P.C. GROUP LONG TERM DISABILITY PLAN, Defendant

As Amended April 3, 2015.

Page 624

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.

Mala M. Rafik, with whom S. Stephen Rosenfeld was on brief, for appellant.

Brooks R. Magratten, with whom Ronald M. LaRocca and Pierce Atwood LLP were on brief, for appellee.

Before Lynch, Chief Judge, Souter,[*] Associate Justice, and Stahl, Circuit Judge.

OPINION

Page 625

LYNCH, Chief Judge.

Plaintiff Mark Dutkewych is a participant in a disability plan (the " Plan" ), insured and administered by Defendant Standard Insurance Company under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1001 et seq. The Plan limits long-term disability (" LTD" ) benefits to 24 months for " a Disability caused or contributed to by . . . : (1) Mental Disorders; (2) Substance Abuse; or (3) Other Limited Conditions." Applying this Limited Conditions Provision, Standard terminated Dutkewych's benefits after 24 months, on June 1, 2011. After Dutkewych's administrative appeal failed, he brought this lawsuit against Standard for unpaid benefits. The district court entered summary judgment against Dutkewych's claims. Dutkewych v. Standard Ins. Co., No. 12-cv-11073, 2014 WL 1334169 (D. Mass. Mar. 29, 2014). Dutkewych appealed.

Dutkewych contests Standard's decision to limit his LTD benefits to 24 months, saying he has been diagnosed with chronic Lyme disease, " a physical illness that is not limited under the terms of the Plan." Despite the hot dispute between the parties on this issue, this case does not turn on the insurer's doubts about the validity of Dutkewych's diagnosis with chronic Lyme disease. Instead, this case turns on

Page 626

the insurer's application of a different provision of the Plan, the subset of the Limited Conditions Provision related to mental disorders (" Mental Disorder Limitation" ). Standard maintains that, even if Dutkewych was disabled as a result of chronic Lyme disease in June 2011, the Mental Disorder Limitation nonetheless applies because his mental disorders, regardless of their cause, contributed to his disability as of June 2011.

Standard's interpretation of the Mental Disorder Limitation is reasonable and its application to Dutkewych's case is supported by substantial evidence. We affirm the entry of summary judgment to Standard.

I. Factual Background

A. Standard's LTD Plan

The Plan provides that a participant qualifies as " Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy, or Mental Disorder:"

1. You are unable to perform with reasonable continuity the Material Duties of your Own Occupation; and
2. You suffer a loss of at least 20% in your Indexed Predisability Earnings when working in your Own Occupation.

The " Maximum Benefit Period" allowed Dutkewych to receive benefits to age 65.

Certain disabilities, however, are subject to a limited benefits period (" Limited Conditions Provision" ). Specifically, " [p]ayment of LTD Benefits is limited to 24 months during your entire lifetime for a Disability caused or contributed to by any one or more of the following . . . : (1) Mental Disorders; (2) Substance Abuse; or (3) Other Limited Conditions." " Mental Disorders" is defined to include " any mental, emotional, behavioral, psychological, personality, cognitive, mood or stressrelated abnormality, disorder, disturbance, dysfunction or syndrome, regardless of cause . . . or the presence of physical symptoms." " Other Limited Conditions" is defined to include chronic fatigue conditions and chronic pain conditions, such as fibromyalgia.

The Plan provides two " Rules for Disabilities Subject to Limited Pay Periods" :

1. If you are Disabled as a result of a Mental Disorder or any Physical Disease or Injury for which payment of LTD Benefits is subject to a limited pay period, and at the same time are Disabled as a result of a Physical Disease, Injury, or Pregnancy that is not subject to such limitation, LTD Benefits will be payable first for conditions that are subject to the limitation.
2. No LTD Benefits will be payable after the end of the limited pay period, unless on that date you continue to be Disabled as a result of a Physical Disease, Injury, or Pregnancy for which payment of LTD Benefits is not limited.

Standard specified in the Plan that it " ha[s] full and exclusive authority to control and manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve all questions arising in the administration, interpretation, and application of the Group Policy."

B. Dutkewych's Disability

In early 2008, Dutkewych suffered from mental illness, substance abuse, and a dizzying array of physical symptoms that have since received competing diagnoses. Dutkewych left his work as an associate attorney at a Boston law firm on October 3, 2008, and sought LTD benefits from Standard. We summarize here the relevant chronology of Dutkewych's medical history and Standard's decisions concerning his benefits.

Page 627

1. Dutkewych's Early Diagnoses

In March 2008, Dutkewych began to experience symptoms including " severe fatigue, intense back pain and stomach irritation." His symptoms worsened over the summer as Dutkewych developed a painful rash, began bruising and bleeding, suffered severe joint pain, and experienced cognitive issues, including trouble with reading comprehension, concentration, short term memory, directions, organization, and sense of time. His primary care physician, Dr. Eric Serrano, did not identify a cause.

In August 2008, Dr. Serrano referred Dutkewych to a hematologist-oncologist, Dr. Brenda Haynes, who considered the possibility of Lyme disease. At that time, Dutkewych reported " no recent viral exposure or tick exposure that he [was] aware of." A blood test returned negative results for Lyme disease, but the test results warned that false negatives are possible in the early stages of the disease before the patient produces detectable levels of antibodies.

Dr. Serrano then referred Dutkewych to a rheumatologist, Dr. Don Goldenberg, who examined Dutkewych in September 2008. Dr. Goldenberg concluded that Dutkewych's " musculoskeletal symptoms are consistent with what is termed fibromyalgia, which overlaps significantly with mood and sleep disturbances." Dr. Goldenberg noted that Dutkewych had a history of obsessive compulsive disorder, which made it " likely that unexplained physical symptoms with multiple physician evaluations would heighten the intensity of the symptoms." He recommended Dutkewych's treatment " be primarily regulated by [his] psychiatrist."

One week later, Dutkewych visited the psychiatric emergency department at the Cambridge Hospital. He reported his mental health history and his more recent somatic symptoms. He noted his recent diagnosis by Dr. Goldenberg, and attributed his worsening depression to the idea that his doctors did not want to pursue his physical symptoms. At that time, his wife reported that he was " self-medicating" with prescription drugs. Dutkewych was admitted to the Cambridge Hospital's Partial Hospitalization Program, an outpatient program, for the following two weeks. At discharge, he was diagnosed with major depressive disorder, obsessive compulsive disorder, and generalized anxiety disorder.

In November 2008, Dutkewych visited a family practitioner, Dr. Jeanne Hubbuch, who ordered additional tests for Lyme disease. This time, Dutkewych reported experiencing no tick bites, but noted that ticks had been seen in his house. A Western blot test returned positive results for Lyme disease under the IGeneX IGG criteria, but negative results under CDC/NYS and Babesia FISH criteria.

On December 9, 2008, Dutkewych was admitted to the McLean Hospital for substance abuse treatment. At the hospital, he reported that he had been abusing Vicodin, and explained that he had used a stolen credit card to buy things that he then sold to pay for drugs. His intake form noted his recent diagnosis of Lyme Disease and his ongoing depression.

He was discharged from the hospital on December 15, 2008, and immediately entered McLean's residential treatment program. In an Ambulatory Services Initial Assessment, Dutkewych reported a " [l]ongstanding" history of obsessive compulsive disorder and episodic depression. Although his OCD was " in reasonably good control," his depressive symptoms were still significant and included suicidal ideation. He admitted to persistent and daily substance abuse over the last year. Dr. Joshua Katz, who evaluated Dutkewych

Page 628

during this time, reported that " [m]any if not all of [Dutkewych's] physical and cognitive symptoms can be explained by chronic narcotic use and intermittent withdrawal symptoms." Dutkewych was discharged on January 21, 2009.

2. Standard's Approval of Limited LTD Benefits

On April 16, 2009, Standard approved Dutkewych's claim for LTD benefits. At that time, " a significant portion of the medical records in Mr. Dutkewych's claim file relate[d] to his psychiatric condition." The physician consultant who reviewed his records noted that " Mr. Dutkewych has had a combination of chemical dependency and psychiatric disorder of life threatening proportions." Standard concluded that his claim " supports that as of October 4, 2008, [Dutkewych] has been unable to perform with reasonable continuity the Material Duties of his Own Occupation due to symptoms and treatment related to substance abuse and major depression."

Standard specifically warned Dutkewych that his policy " limits payment of LTD benefits to 24 months during your entire lifetime for a Disability caused or contributed to by Mental Disorders, Substance Abuse or Other Limited Conditions." " As major depression is considered to be a Mental Disorder, Standard will be applying the Mental Disorder ...


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