Opinion
1:05-CV-00931 OWW DLB.
November 15, 2006
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
1. INTRODUCTION
Plaintiff Karen Martinez ("Martinez") filed a complaint to recover benefits from a Pacific Gas Electric ("PGE") Long Term Disability ("LTD") employee benefit plan. (Doc. 1, Complaint, Filed July 21, 2005.) Before the court is Defendant PGE's motion for summary judgment. (Doc. 20, Mot. for Summary Judgment, Filed September 1, 2006) Martinez opposes the motion. (Doc. 22, Opposition, Filed September 18, 2006)
2. PROCEDURAL BACKGROUND
Martinez filed her complaint on July 21, 2005. (Doc. 1, Complaint.) PGE filed its motion for summary judgment on September 1, 2006. (Doc. 20, Mot. for Summary Judgment.) On September 18, 2006 Martinez filed her opposition. (Doc. 22, Opposition.) On September 25, 2006, PGE filed its reply. (Doc. 25, Reply.)
3. FACTUAL BACKGROUND
Doc. 20-9, Jasper Decl., Exh. A at ¶ 14(a).
I. The Employee Benefit Administrative Committee as Administrator of the Plan
According to the language of the PGE's LTD Plan, the Employee Benefit Administrative Committee ("EBAC") is the Administrator of the Plan and responsible for the overall administration of the plan. (Doc. 20-9, Jasper Decl., Exh. A at ¶ 24(b).) According to the terms of the plan:
The Administrator has the sole power and duty to establish, and from time to time revise, such rules and regulations as may be necessary to administer the Plan in a non-discriminatory manner for the exclusive benefit of Participants and all other persons entitled to benefits under the Plan.
The Administrator shall also maintain such records and make such rules, computations, interpretations, and decisions as may be necessary or desirable for the proper administration of the Plan. The Administrator shall maintain for inspection by Participants copies of the Plan, the group insurance contract, investment policy, each agreement with an investment manager, the latest annual report, plan description and summary description and any amendments or changes in any of these documents. On written request, Participants may obtain from the Administrator a copy of any of these documents at a cost established by the Administrator from time to time.
The Employee Benefit Administrative Committee shall have the authority to allocate among its members or to delegate to any other person any fiduciary responsibility with respect to the Plan. The administrator may appoint and delegate to one or more individuals the power and duty to handle the day-to-day administration of the Plan. Such individuals need not be members of the committee and shall serve at the pleasure of the committee.
( Id.)
ii. The Plan's Definition of Disability
The Plan's definition of disability is as follows:
The determination of disability will be made by the Administrator. In general, a Participant shall be considered disabled if, by any reason of injury or illness, said Participant is off work and: (1)is unable to perform the duties of the Participant's classification, and (2) The employer is unable to place the participant in a position commensurate with the Participant's reduced work capabilities. (Doc. 20-9, Jasper Decl., Exh. A at ¶ 14(a).)
According to Martinez, there does not appear to be any dispute that she meets these requirements. Instead, Martinez argues that the dispute is whether her benefits are limited to two years due to the Plan's "mental/nervous limitation":
If the primary cause of a participant's disability is a Mental or Nervous Disorder except schizophrenia, dementia, organic brain syndromes, delirium, amnesia syndromes or organic delusional or hallucinogenic syndromes, and the Participant is not receiving Social Security disability benefits, Long-Term Disability benefits unless the Participant is hospitalized or institutionalized (institutionalized shall mean admission on a 24-hour basis to a facility under medical supervision and specializing in the treatment of alcoholism, drug addiction, chemical dependency or Mental or Nervous Disorder illness). So long as Participant is hospitalized or institutionalized, benefits shall continue for the duration of the Participant's stay. ( Id., ¶ 19(c))
B. Undisputed Facts
I. PGE's LTD Plan
PGE's LTD plan is covered by the provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a). (DSUF, No. 1) The plan is self-funded and is the product of collective bargaining negotiations between PGE and the International Brotherhood of Electoral Workers ("IBEW"), Local 1245. ( Id.) The plan document provides that determination of disability will be made by the Plan Administrator. (DSUF, No. 2)
The Employee Benefits Administrative Committee ("EBAC") also decides all appeals regarding benefits decisions. (DSUF, No. 4) The EBAC has delegated its operational authority through a contract with Fortis Benefits, but retains its other authority, including the authority to decide appeals under the Plan. (DSUF, No. 5)
In 1999 PGE and the union representing employees including those in Plaintiff's classification, negotiated amendments to the LTD plan. (DSUF, No. 6) The amendments, which applied to all employees whose onset of disability occurred after January 1, 2000 included a provision that LTD benefits would be limited to two years if the primary cause of the employee's disability is a mental or nervous disorder, except for schizophrenia, dementia, amnesia syndromes or organic delusional or hallucinogenic syndromes; and the employee is not receiving social security benefits or is not hospitalized at the time the benefits expire. (DSUF, No. 7)
ii. Martinez's LTD Claim
Martinez is a 50-year-old woman who worked as a clerk in PGE's vegetation management department. (DSUF, No. 8; Doc. 22, Pl.'s Opposition.) The position was covered by the terms of a collective bargaining agreement between PGE and the IBEW, Local 1245. (DSUF, No. 9) She was first hired in July of 1984, and transferred to her final position in November of 2002. (Doc. 22, Pl.'s Opposition.)
Although Plaintiff has a history of Bi-polar II disease, she was able to work with her condition until May 15, 2002. ( Id.) On that day, she was hospitalized for two days due to depressive symptoms of her disease. ( Id.) Upon her release, she was unable to return to work and has not returned since. ( Id.)
In November 2002 Ms. Martinez applied for LTD benefits. (DSUF, No. 10) PGE's LTD Plan administrator granted plaintiff's application for benefits based on her doctor's diagnosis of bi-polar II depression. (DSUF, No. 11) Bi-polar depression is not one of the mental disorders exempted from the two year limit under defendant Plan. ( Id.)
The letter informing plaintiff of the approval of her benefit claim explicitly stated that the maximum duration of the benefits would be two years, ending on November 14, 2004, unless she was hospitalized or receiving Social Security Disability benefits. (DSUF, No. 12)
Plaintiff's treating doctor sent the Plan Administrator yearly medical reports. (DSUF, No. 14) Each of these reports repeated the original diagnosis of depression (bi-polar II). ( Id.) Neither report lists any physical ailments, other than the assertion that Plaintiff's disorder results from a chemical imbalance. ( Id.)
On May 1, 2003 and again on June 27, 2003, the Social Security Administration denied Plaintiff's applications for benefits, finding that she was capable of working, and that her claimed limitations were not fully supported by the evidence in the file. (DSUF, No. 15) The Plan administrator terminated her benefits on November 2004. (DSUF, No. 16)
Plaintiff appealed denial of LTD benefits to the EBAC. (DSUF, No. 17) In her letter of appeal, Plaintiff argued that the Plan Administrator incorrectly characterized her bi-polar II disorder as a mental or nervous disorder, limited to two years of benefits. (DSUF, No. 18) Rather, she claims that it should be considered a physical disorder because it was based on a chemical imbalance. ( Id.) She referred to "significant medical information" she had located to support her contention. ( Id.)
In her appeal letter dated December 24, 2004 Plaintiff states that her bi polar II disorder is a chemical imbalance that "exists in the brain." She further writes that "there is significant medical information that [she has] located" which supports that her disease is a physical condition. (Doc. 20-4, Fries Decl., Ex. J, Filed September 1, 2006.) Plaintiff however does not provide this information in the record.
In addition to reviewing Plaintiff's medical records, the EBAC consulted with a retained psychologist who issued a report to Fortis. (DSUF, No. 19) Based on its review of the record and the psychologist's report, the EBAC denied Plaintiff's appeal and formally communicated its decision and the reasons for it to Plaintiff on March 10, 2005. (DSUF, No. 22) The denial letter specifically referenced the Plan section limiting mental/nervous disorder to two years. ( Id.)
Specifically, the report noted that Plaintiff's has little information regarding Ms. Martinez's treatment or symptoms. (Doc. 20-4, Fries Decl. Ex, K Fortis Behavioral Assessment dated January 15, 2005, Filed September 1, 2006.) According to the report, none of the information from any of the providers has provided a definitive type of Bi polar Disorder diagnosis. ( Id.) Ms. Martinez stated that she had a Bi-polar II Disorder in her appeal letter dated 12/24/04. ( Id.) According to DSM IV-TR a Bi-polar II Disorder is defined as a clinical course of recurrent Major Depressive Disorder accompanied by at least one episode of hypomania. ( Id.)
The report also noted that Plaintiff has written cogent letters regarding her claim on several occasions. (Doc. 20-4, Fries Decl. Ex, K Fortis Behavioral Assessment dated January 15, 2005, Filed September 1, 2006.) The report states that clearly, Plaintiff is not experiencing any cognitive difficulties regarding her written expressive language or abstract thought. ( Id.) The preservation of such abilities in light of true organic mood disorder, according to the report, would be rather remarkable and unusual. ( Id.)
Schizophrenia, dementia, amnesia, delusional disorder, hallucinogenic syndromes, delirium and bi-polar II disorder are included in Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR, 4th ed., rev. Washington D.C. American Psychiatric Association, 2000 (DSM-IV). (DSUF, No. 23)
C. Disputed Facts
I. PGE's LTD Plan
The Plan designates the EBAC as the Administrator and further provides that the Administrator has the sole power to establish and revise Plan rules and regulations and make computations and interpretations as may be necessary or desirable for the proper administration of the Plan. (DSUF, No. 3)
Plaintiff disputes this statement by arguing that while the plan does state that the EBAC has the sole power to establish and revise the plan, Plaintiff claims it does not vest sole power in the EBAC to make computations and interpretations. (PSUF, No. 3.)
ii. Plaintiff's LTD Claim
In December 2002, plaintiff's treating doctor filled out a functional capacity assessment form in which he stated that plaintiff was physically fine, but suffered from "an inherited psychiatric illness." (DSUF, No. 13)
Plaintiff disputes this statement and argues that Dr. Norwood's statement was, "She physically is fine — body wise — She has an inherited psychiatric illness." (PSUF, No. 13)
Further, Defendants argue that Plaintiff did not provide any of the "significant medical information" she uses to support her claim that her Bi-polar II disorder should be considered a physical, rather than mental, disorder. (DSUF, No. 18) Plaintiff argues that the EBAC was in possession of plaintiff's physicians' reports, which constituted significant medical information in support of her claim. (PSUF, No. 18)
According to Defendant, the psychologist's report stated, inter alia, that the Plan Administrator granted plaintiff's application for benefits based on a diagnosis of bi-polar II disorder; that bi-polar II depression is definitely a mental disorder, specifically included in DSM-IV; and is less serious and more easily controlled than some other types of mental disorders. (PSUF, No. 20) Further, all of the medical reports submitted to the LTD Administrator diagnosed plaintiff with bi-polar II disorder; none mentioned any other medical condition. ( Id.) Plaintiff disputes this fact to the extent that the statement attempts to paraphrase Dr. Jones' report. (PSUF, No. 20.) Plaintiff argues that Dr. Sievert's letter dated October 30, 2004 expressly diagnosed Plaintiff with organic mood disorder as well. ( Id.; see also, Fries Decl., Ex. M.)
The letter is not clear as to whether Dr. Sievert's diagnosis that Plaintiff has organic mood disorder is based on a psychiatric assessment or based on Plaintiff's theory that her current mental state is related to gastric bypass surgery she underwent in 2000.
Although it was not a basis for plaintiff's appeal, the psychologist addressed the purported new diagnosis of organic mood disorder and discounted it, because in his opinion, such a disorder would result in significant loss of cognitive abilities. (DSUF, No. 21.) Plaintiff disputes that this conclusion is correct. (PSUF, No. 21.)
4. STANDARD OF REVIEW
Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248).
The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996).
5. DISCUSSION
A. Request for Judicial Notice
Federal Rule of Evidence 201(b) permits courts to judicially notice facts not subject to reasonable dispute because they are either (1) generally known or (2) "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned."
Defendants request judicial notice of the following fact: Schizophrenia, dementia, amnesia, delusional disorder, hallucinogenic syndromes, delirium, and bi-polar disorder are included in Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR, 4th ed., rev. Washington, D.C., American Psychiatric Association, 2000 (DSM-IV).
This fact is not in dispute. Further, in United States v. Cantu, 12 F.3d 1506, 1509 n. 1 (9th Cir. 1993) the Ninth Circuit took judicial notice of the content of the DSM-IV manual.
The request for judicial notice of the inclusion of bi-polar disorder in DSM-IV is GRANTED.
B The Administrator's Determination is Reviewed De Novo
To assess the applicable standard of review, the starting point is the wording of the plan. Abatie, v. Alta Health Life Ins. Co., 458 F.3d 955, 962-963 (9th Cir. 2006). When a plan does not confer discretion on the administrator "to determine the eligibility for benefits or to construe the terms of the plan," a court must review the denial of benefits de novo "regardless of whether the administrator or the fiduciary is operating under a possible or actual conflict of interest." Id. at 963. If de novo review applies, no further preliminary analytical steps are required. Id. The court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits. Id. But if a plan does confer discretionary authority as a matter of contractual agreement, then the standard of review shifts to abuse of discretion. Id. For a plan to alter the standard of review from the default of de novo to the more deferential abuse of discretion, the plan must unambiguously provide discretion to the administrator. Id. If a plan administrator wishes to claim the benefit of discretionary review, it is not difficult to draft plan language to grant the appropriate discretion. Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1206 (9th Cir. 2000). The essential first step of the analysis is to examine whether the terms of the ERISA plan unambiguously grant discretion to the administrator. Id. Accordingly we first turn to the text of the plan. Id.
In Abatie, the language of the plan stated: "The responsibility for full and final determinations of eligibility for benefits; interpretation of terms; determination of claims; and appeal of claims denied in whole or in part under the HFLAC Group policy rests exclusively with HFLAC. Abatie, 458 F.3d at 963. The court in Abatie found this provision to be sufficient to confer discretion on Alta, the plan administrator, and successor in interest to Home Life, even though the word "discretion" does not appear. Id. The court reasoned that "there are no `magic' words that conjure up discretion on the part of the plan administrator." Id. A plan grants discretion if the administrator has the "power to construe disputed or doubtful terms" in the plan. Id. Lastly, Abatie held that, unlike the language of the plan in Ingram v. Martin Marrietta Long Term Disability Income Plan, 244 F.3d 1109, 1112-1113 (9th Cir. 2001), the language of the Abatie plan bestowed on the administrator the responsibility to interpret the terms of the plan and to determine eligibility for benefits. Id. at 965.
The language of the PGE LTD plan in this case cannot be said to be an unambiguous grant of discretionary authority to the EBAC. While Plaintiff argues that PGE's plan does not use the words "full and final," "discretion," or anything similar that would connote discretionary authority there are no "magic" words that conjure up discretion on the part of the plan administrator. Abatie, 458 F.3d at 963. Further, the word "discretion" need not appear for discretion to be explicit. Id.
However, unlike other plan provisions that have conferred discretion, the language of the PGE plan is unclear as to whether it confers authority on EBAC to determine eligibility, to construe the terms of the Plan, or to make final and binding determinations. The PGE plan language states that the EBAC, as the administrator of the plan:
For example, the plan in Bogue v. Ampex Corp., 976 F.2d 1319, 1324 (9th Cir. 1992), stated that "the determination . . . will be made by Allied-signal upon consideration of whether the new position . . . has responsibilities similar to those of your current position"; the plan in Eley v. Boeing Co., 945 F.2d 276, 278 n. 2 (9th Cir. 1991), provided that "the company shall determine the eligibility of a person for benefits under the plan, pursuant to the terms and conditions specified"; the plan in Jones v. Laborers Health Welfare Trust Fund, 906 F.2d 480, 481 (9th Cir. 1990), specified that the "Board of Trustees shall have power to construe the provisions of this Trust Agreement and the Plan, and any such construction adopted by the Board in good faith shall be binding"; the plan in McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir. 2000) which gave the administrator "sole discretion to interpret the terms of the Plan" and whose interpretations "shall be conclusive and binding" conferred discretion sufficient to overcome the presumption in favor of de novo review; and in the language in Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 n. 1 (9th Cir. 1999) which acknowledged "full and exclusive authority to interpret the Group Policy" along with a provision that "any decision [made] in the exercise of our authority is conclusive and binding" clearly confers discretion to decide whether a claimant is disabled. see also, Sandy, 222 F.3d at 1206.
(1) is responsible for the overall Administration of the Plan
(2) has the sole power and duty to establish, and from time to time, revise such rules and regulations as may be necessary to administer the Plan
(3) shall maintain such records and make such rules, computations, interpretations, and decisions as may be necessary or desirable for the proper administration of the Plan.
(Doc. 20-9, Jasper Decl., Exh. A at ¶ 24(b).) Unlike the language in Abatie, it cannot be said that PGE's plan language is unambiguous in granting discretionary authority to the EBAC. Discretion in this case cannot be inferred simply from the EBAC being responsible for the administration of the plan and for establishing and revising the rules of the plan. Further, while the language which states that the EBAC shall "maintain such records and make such rules, computations, interpretations, and decisions as may be necessary or desirable for the proper administration of the Plan," does connote discretionary decision making, it does not unambiguously grant the EBAC power to determine eligibility, to construe the terms of the Plan, or to make decisions that are final and binding. see, Sandy, 222 F.3d at 1206. It does not say the EBAC shall solely and finally determine eligibility and the extent of benefits. The language "necessary and desirable" is ambiguous as to the extent and conclusions of EBAC's discretion to make decisions as to benefits. The EBAC's determination of Plaintiff's benefits will be reviewed de novo. see, Id. at 1207 (it should be clear: unless plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan, the standard of review will be de novo.)
C. The Plan Definition of "Mental or Nervous Disorder" is Unambiguous
The "mental/nervous limitation" of the LTD plan provides: "If the primary cause of a participant's disability is a Mental or Nervous Disorder except schizophrenia, dementia, organic brain syndromes, delirium, amnesia syndromes or organic delusional or hallucinogenic syndromes, and the Participant is not receiving Social Security disability benefits, Long-Term Disability benefits will end immediately after two years from the date the participant became eligible to receive Long Term Disability benefits unless the Participant is hospitalized or institutionalized (institutionalized shall mean admission on a 24-hour basis to a facility under medical supervision and specializing in the treatment of alcoholism, drug addiction, chemical dependency or Mental or Nervous Disorder illness). So long as Participant is hospitalized or institutionalized, benefits shall continue for the duration of the Participant's stay."
It is undisputed that Plaintiff's treating doctor characterized her disability as a psychiatric illness. It also undisputed that Plaintiff's bi-polar II diagnosis was not one of the explicitly excepted mental disorders under the Plan, and that Plaintiff was not hospitalized or accepted for Social Security Benefits.
However, Plaintiff argues that the dispute in this case hinges on whether Plaintiff's condition is a "Mental or Nervous Disorder" as defined by the Plan.
a. Under the Policy Terms Plaintiff is Not Entitled to Benefits
Plaintiff first argues that the Plan provision is fatally ambiguous because it fails to adequately define mental illness. In support of her argument, Plaintiff first cites Kunin v. Benefit Trust Life Ins., Co., 910 F.2d 534 (9th Cir. 1990.) In Kunin, Plaintiff sought reimbursement from his group health insurance policy for treatment of his child's autism. Kunin, 910 F.2d at 535. The court dealt with the issue of whether the term "mental illness" encompasses autism. Id. The Kunin court agreed that the Administrator acted unreasonably in determining that autism was a "mental illness." Id. at 539. The record did not indicate that the doctors with whom the medical director consulted had any significant experience with or particular expertise concerning autism. Id. at 538. The director made no effort to discuss the matter with Kunin's physicians who later testified that autism was not a mental illness. Id. Further, the textbook definition Dr. Zolot relied on states that although autism was previously thought to be "primarily psychiatric," it later came to be thought of as organically based." Id. The court reasoned that, on its face, this definition contains no conclusions about whether autism should be classified as a mental illness. Id. Ultimately the fact that autism was no longer considered "primarily psychiatric" suggests that autism is not a mental illness. Id.
Plaintiff also cites Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993). In Patterson, Plaintiff filed a claim for disability benefits due to headaches. Patterson, 11 F.3d at 949. The Administrator found Plaintiff totally disabled and began paying benefits. Id. However, the benefits were terminated two years later on the ground that Plaintiff's disability "was mental rather than physical, and that he had exhausted the policy's two year limitation on benefits resulting from "mental, nervous or emotional disorders of any type." Id. Upon review, the court held that the term "mental disorder" was ambiguous because the language of the plan did "not define `mental disorder,' or offer illustrations of conditions that are excluded or included." Id. at 950. The court reasoned that the term "mental illness" is ambiguous in two ways: (1) The plan did not specify whether a disability is to be classified as "mental" by looking to the cause of the disability or to its symptoms and (2) the Plan does not make clear whether a disability qualifies as a "mental disorder" when it results from a combination of physical and mental factors. Id. According to the court, Plaintiff's disability may result solely from depression, or solely from headaches, or a combination of the two. Id.
Similarly in Mongeluzo v. Baxter Travenol Long Term Disability Plan, 46 F.3d 938 (9th Cir. 1995) the language of the mental health limitation stated in relevant part: "Payment will not be made under this plan for any disability . . . for more than 24 months during your lifetime if the disability is caused by mental illness or functional nervous disorder. Id. at 941. Relying on Patterson, the court in Mongeluzo reasoned that the mental illness limitation as applied to plaintiff was ambiguous. Id. at 942. Plaintiff suffered from symptoms including fatigue, ulcerative colitis, oral candidiasis, painful lymph nodes, recurrent headaches, muscle weakness, joint pain, depression and anxiety. Id. The court held that the policy did not address the question of whether a disability with mixed physical and emotional symptoms and an unclear etiology is considered a "mental illness." Id. This is particularly problematic in cases — such as plaintiffs's — where the vast majority of symptoms are physical, but the patient becomes depressed or anxious over a lack of adequate medical diagnosis and treatment. Id. In this case, Martinez's claim is factually distinguishable from Mongeluzo since she does not provide evidence that her disability is a mix of physical and emotional symptoms.
Lastly, Plaintiff cites Lang v. Long Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794 (9th Cir. 1997.) In Lang, Plaintiff's disability to work was triggered by stress arising from her job. Id. at 796. The symptoms she described were "uncontrollable crying," "throwing up before work," and "inability to concentrate." Id. Plaintiff was diagnosed as having depressive neurosis and was treated for insomnia and frequent crying spells. Id. Under the insurance plan, mental disorder was defined as "mental, emotional, behavioral, or stress-related disorder." Id. The plan, however, was silent as to whether the administrator should look to causes or symptoms when determining whether the claimant had a "mental disorder" for purposed of applying the limitation. Id. Further, while Plaintiff was receiving benefits during the two year period, she was diagnosed with a type of muscular or soft-tissue rheumatism that affects principally muscles and their attachment to bones. Id. The depression and anxiety associated with this rheumatism are believed to be symptoms of the muscular disease. Id. In reliance on Kunin and Patterson, this court also held that the term "mental disorder" was ambiguous because it did not include "mental" conditions resulting from "physical" disorders. Id. at 779.
This case, however, is factually distinguishable from the cases cited by Plaintiff. Plaintiff does not contend that her bi-polar II disorder is the result or symptom of a physical disorder or condition, except as it relates to a "chemical imbalance" which is medically unexplained. It is undisputed that Plaintiff's treating doctor sent the Administrator yearly medical reports which repeated the original diagnosis of bi-polar II depression. Neither report listed any physical ailments, other than the uncorroborated opinion that Plaintiff's disorder resulted from a chemical imbalance. Further, Plaintiff's treating doctor characterized her disability as a psychiatric illness.
Unlike the policy in Patterson, the policy in this case does define what mental disorders are included rather than only those that are not excluded from the terms of the LTD policy. Bi polar II disorder is a known psychological disability. The fact that some psychological conditions were included in the policy's language and that bi-polar II disorder was not indicates an intent by the insurer to specifically exclude bi-polar II disorder from coverage. While Plaintiff concedes that the Plan does include specific exceptions, she argues that it does not explain why these conditions are excepted and that there is no identifiable link between any of them. Plaintiff argues there is no reason to believe that bi polar illness should be equated with any of these conditions, as defendant suggests. However, Plaintiff offers no law to support her argument that a lack of an explanation as to the excepted mental conditions in the policy makes the terms of the policy ambiguous.
The policy states that "if the primary cause of a participant's disability is a mental or nervous disorder except schizophrenia, dementia, organic brain syndromes, delirium, amnesia syndromes or organic delusional or hallucinogenic syndromes . . . benefits will end immediately after two years . . ."
This forecloses Plaintiff's argument that she is entitled to further benefits. Plaintiff cites the District of Columbia District Court case of Fitts v. Unum Life Ins. Co. of Am., 2006 U.S. Dist. LEXIS 9235 (D.D.C. 2006). In Fitts, under the LTD insurance policy, any employee who develops a disability is eligible for a certain package of benefits until age sixty-five. Id. at *3. The policy contains an exception, however. Id. If the employee's disability is "due to a mental illness," the employee's benefits are discontinued after twenty-four months. Id. The policy in Fitts defines mental illness as a "mental, nervous or emotional disease or disorder of any type." Id. The court framed the final issue Fitts as whether Plaintiff had been properly diagnosed as someone suffering from bi polar disorder, and as such, an individual who should be excluded from the policy's mental illness exception. Id. at *25. The inquiry in this case, however, is different from Fitts. In this case, the policy language includes a list of mental illnesses that are covered under the plan beyond the two year exception. There is no question that certain mental illnesses, such as Bi-Polar II disorder, do not fall under the policy's mental illness exception. Because the insurance company expressly excluded Bi-polar II disorder from the policy coverage beyond two years, a Fitts inquiry as to whether Plaintiff was properly excluded from the mental illness exception is not applicable in this case. Plaintiff also argues that the Ninth Circuit uses a "caused based" classification of what constitutes "mental illness." However, the cases discussed in Fitts and cited by Plaintiff are cases where the language of the policy as to the term "mental illness" is ambiguous. That is not the case here where the language intentionally includes some mental illnesses while intentionally excluding others.
It also undisputed that Plaintiff's bi-polar II diagnosis is not one of the explicitly excepted mental disorders from limited coverage under the Plan, and that Plaintiff was not hospitalized nor accepted for Social Security Benefits.
In addition to reviewing Plaintiff's medical records, the Administrator consulted with a retained psychologist who issued a report on Plaintiff's mental illness. It is an undisputed judicially noticed fact that bi-polar II disorder is among the mental disorders listed in Diagnostic and Statistical Manual of Mental Disorders IV. Unlike the disorder of autism in Kunin, there is no question, based on undisputed facts, that bi-polar II disorder is a mental, rather than physical, disorder.
However, even if the terms of the PGE Policy were ambiguous, the doctrine of contra proferentem, which requires ambiguities in insurance contracts be construed against the drafter of the contract, does not apply in this case. In Winters v. Costco Wholesale Corp., 49 F.3d 550 (9th Cir. 1995), the Ninth Circuit held that "the rule of contra proferentem is not applicable to self-funded ERISA plans that bestow explicit discretionary authority upon an administrator to determine eligibility for benefits or to construe the terms of the plan." Id. at 539; see also, Eley v. Boeing Company, 945 F.2d 550, 280 (1990) (questioned on other grounds.) In this case, it is undisputed that the plan is self-funded and is the product of collective bargaining negotiations between PGE and the International Brotherhood of Electrical Workers ("IBEW"), Local 1245. ( Id.) If the plan contained any ambiguities in its language, according to Winters and Eley, the ambiguities would not be resolved against the Plan.
ii. The Evidence in the Record Supports a Finding that the EBAC's Determination Was Based Upon a Reasonable Interpretation of the Plan's Terms.
Here, it cannot be said that the Administrator's denial of Plaintiff's claims was based on clearly erroneous findings of fact. It is undisputed that Plaintiff's treating doctor sent the Plan Administrator yearly medical reports. Each of these reports repeated and confirmed the original diagnosis of depression (bi-polar II), a mental illness. Neither report lists any physical ailments or causes, other than the opinion that Plaintiff's disorder is related to a chemical imbalance. Plaintiff was also denied Social Security disability benefits based on her bi-polar II disorder and the finding that her cognitive and overall functioning were not as impaired that she could not perform work.
Plaintiff appealed denial of PGE's LTD benefits to the EBAC. In her letter of appeal, Plaintiff argued that the Plan Administrator incorrectly characterized her bi-polar II disorder as a mental or nervous disorder, limited to two years of benefits. Rather, she claims that it should be considered a physical disorder because it was based on a chemical imbalance. She referred to "significant medical information" she had located to support her contention. However, she did not provide such medical information in the record or to the EBAC.
In addition to reviewing Plaintiff's medical records, the EBAC consulted with a retained psychologist who issued a report to Fortis. Based on its review of the record and the psychologist's report, the EBAC denied Plaintiff's appeal and formally communicated its decision and the reasons for it to Plaintiff on March 10, 2005. The denial letter specifically referenced the Plan section limiting mental/nervous disorder to two years.
It is also undisputed that Schizophrenia, dementia, amnesia, delusional disorder, hallucinogenic syndromes, delirium and bi-polar II disorder are included mental disorders in Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR, 4th ed., rev. Washington D.C. American Psychiatric Association, 2000 (DSM-IV). (DSUF, No. 23)
Substantial evidence proves that the decision of the EBAC, as the PGE's LTD plan administrator, was based upon a good faith reliance on and reasonable interpretation of the plan's terms, the medical record, Plaintiff's psychiatric evaluations submitted, and on an undisputed supplemental experts' medical report.
Defendant's motion for summary judgment is GRANTED.
6. CONCLUSION
Defendants's motion for summary judgment is GRANTED. Defendant shall submit a form of judgment consistent with this decision within five (5) days following service by the clerk of this decision.IT IS SO ORDERED.