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Boston ERISA Attorney Wins 10 Year, Sun Life Long Term Disability Case

Press Release

For Immediate Release

Jonathan M. Feigenbaum, Esq. Boston ERISA Attorney Wins Long Term Disability Case After Ten Years of Fighting Sun Life

July 15, 2016 Boston, Massachusetts – Jonathan M. Feigenbaum, Esq. a leading ERISA attorney and Michael D. Grabhorn, Esq., another leading ERISA attorney are proud to announce that after litigating a long term disability claim for almost ten years for a client suffering with chronic pain he has won a long term disability benefits due from 2007.

Diahann Gross filed a claim for long-term disability benefits from an insurance policy issued and administered by the Sun Life Assurance Company of Canada on account of her chronic pain. Sun Life rejected her claim and subsequent administrative appeal in 2007. After initially losing the case in District Court it was appealed to the First Circuit Court. The First Circuit remanded the case back to Sun Life. Sun Life refused to pay again. Finally, after reviewing all of the medical evidence, surveillance videos, and independent medical evaluations the District Court judge granted Gross’ benefits.

Attorney Feigenbaum states, “This case demonstrates the importance of never giving up. I believe that a denial is the beginning not the end for my clients. I’m thrilled for our client and her family who have waited a long time for justice to prevail.”

Read Case 1:09-cv-11678-RWZ Document 119 below





June 24, 2016 ZOBEL, J. In 2006

Diahann Gross filed a claim for long-term disability benefits from an insurance policy issued and administered by the Sun Life Assurance Company of Canada on account of her chronic pain. Sun Life rejected her claim and subsequent administrative appeal in 2007, and the dispute came before this court some two years later. Ruling on cross-motions for summary judgment, this court, evaluating Sun Life’s denial under a deferential arbitrary and capricious standard of review, affirmed Sun Life’s decision. See Docket # 52. Gross appealed to the First Circuit, which reversed this court’s decision on the grounds that Sun Life’s decision was subject to de novo— not arbitrary and capricious—review. Gross v. Sun Life Assur. Co. of Can., 734 F.3d 1, 16 (1st Cir. 2013). Applying that standard to the record in this case, the First Circuit concluded that Gross’s medical history and the opinions of the medical professionals that examined her amply supported her disability claim. Id. at 24–25. It stopped short of reversing Sun Life’s decision, however, given the existence of three surveillance videos Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 1 of 6 2 in which Gross arguably performs activities inconsistent with her claimed disability. Id. at 28. Instead, the First Circuit remanded Gross’s case to this court with instructions to remand to Sun Life to evaluate “the significance of the video evidence in assessing Gross’s limitations and the veracity of her self-reported and observed symptoms.” Id. This court remanded the case to Sun Life for such assessments in 2014, see Docket # 65, and the company again denied Gross’s claim and subsequent appeal, bringing the matter back before this court on cross-motions for summary judgment. Docket ## 106, 108. Gross’s motion is allowed, and Sun Life’s motion is denied. Background The facts underlying Gross’s condition and this litigation have been discussed at length elsewhere, e.g. Gross, 734 F.3d at 4–5, 16–22, and this opinion offers only a brief recapitulation. A litany of Gross’s treating physicians and a physical therapist have diagnosed her with, among other conditions, reflex sympathetic dystrophy and/or complex regional pain syndrome,1 and fibromyalgia. Citing her concomitant symptoms—chronic pain, inability to sit or stand for extended periods of time, severely diminished functional capacity in her right arm, and inability to bend, kneel, or crouch— these medical professionals have declared Gross incapable of performing even sedentary labor, and the First Circuit held that Gross’s medical records, standing alone, amply supported “a finding of total disability.” Id. at 25. Surveillance records, compiled by a Sun Life investigator in three separate sessions, somewhat complicate the story told by Gross’s medical records, and several 1 Gross’s physicians are split as to whether she suffers from one or both of these conditions, and cite difficulties disentangling one from the other as a rationale for the compound diagnosis. Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 2 of 6 3 doctors—each retained by Sun Life—have rejected the diagnosis of Gross’s treating physicians based on the evidence contained therein. The first surveillance session, from November 2006, generated video of Gross raising her right arm, holding a mobile phone in her right hand, and using her right hand to open a car door. The investigator’s report also describes Gross as driving for ninety minutes to her mother’s home, and ninety minutes back. The second session, from January 2007, produced no video on which Sun Life relies, though its investigator reported that Gross, during a trip to and from KMart lasting less than an hour door-to-door, reached for items above her head, crouched to look at items on lower shelves,2 and carrying two shopping bags plus her purse from her car to her home. The third session, conducted in February 2007, yielded video of Gross operating a gas pump with her right hand while driving two hours to visit her mother, who had been hospitalized following a health emergency of then-unknown origin. The day after, Gross visited Dr. Rukmaiah Bhupalam for an independent medical evaluation—after which Bhupalam initially concurred with the diagnoses of Gross’s treating physicians—conducted at Sun Life’s request pursuant to her disability claim. Gross was recorded walking into the appointment with her husband and leaving in a wheelchair. Interspersed throughout each of the three surveillance reports are mentions of Gross intermittently jogging for a few steps at a time, though the reports often describe her as limping. Medical professionals diverge considerably in their responses to the surveillance videos and reports. Immediately after seeing these videos, Bhupalam rescinded his initial report, claiming that the documented activities were inconsistent with Gross’s self- 2 Gross, in her most recent administrative appeal before Sun Life, disputes this. Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 3 of 6 4 reported symptoms upon which he based his diagnosis. He did, however, recommend an additional face-to-face evaluation with Gross to verify his changed view, though Sun Life did not follow this suggestion. Drs. Alan Neuran and William Hall, also retained by Sun Life, agreed that Gross’s medical records did not mesh with the surveillance, although neither doctor conducted an in-person evaluation of Gross. On remand, Sun Life retained two more medical professionals, Drs. David Ross and Rajat Gupta, who likewise found the surveillance a poor match with Gross’s purported diagnoses. Others disagreed. Chris Kaczmarek, the physical therapist who conducted a functional capacity evaluation in 2007 as part of Gross’s initial disability claim, and found her incapable of sedentary employment, reviewed the surveillance record for remand proceedings before Sun Life and certified its consistency with his initial findings. Dr. Patrick Murphy, one of Gross’s treating physicians, likewise delivered a written report stating that the surveillance records do not “contradict or invalidate the restrictions and limitations placed upon Ms. Gross by her physicians.” Faced with conflicting physician statements when assessing the relevance of the surveillance records on Gross’s disability status, Sun Life again denied Gross’s claim, and likewise denied her subsequent administrative appeal. The matter is thus again before this court, though now for the limited purpose of determining “the significance of the video evidence in assessing Gross’s limitations and the veracity of her self-reported and observed symptoms,” id. at 28. Standard “Sun Life’s rejection of Gross’s claim for benefits is subject to de novo review.” Id. at 16. Unlike a typical summary judgment case, however, non-moving parties are entitled to no inferences in their favor. Id. at 16–17. Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 4 of 6 5 Discussion The First Circuit determined “the sustained and progressive nature of Gross’s complaints, their facial credibility to the medical practitioners who personally examined her, and the objective symptoms consistent with RSD—given the absence of any method for reaching a conclusive diagnosis—support a finding of total disability.” Id. at 24–25. This court must decide whether the surveillance record casts doubt upon that conclusion sufficient to dislodge it. Id. at 16–17. This would require the videos to show Gross performing activities that “directly contradict” the self-reported limitations upon which her treating physicians have offered their diagnoses. Id. at 25. The surveillance tapes show no such contradiction, nor is there sufficient evidence that Gross otherwise exaggerated her symptoms to hoodwink her treating physicians. Gross is thus entitled to disability benefits from Sun Life. To reach this conclusion, the court relies primarily on the opinions of medical professionals who have examined Gross personally. Cf. Maher v. Mass. Gen. Hosp. Long-Term Disability Plan, 665 F.3d 289, 293 n.4 (1st Cir. 2011) (“[Claimaint] would not . . . be able to fool so many doctors over so many years if there were little to no serious pain.”). Dr. Murphy, one of Gross’s treating physicians and a pain-management specialist, reviewed the three sets of surveillance videos and records and concluded that none of these records called Gross’s relevant diagnoses—complex regional pain syndrome and fibromyalgia—into question. Indeed, Murphy explicitly characterized the videos as consistent with these conditions given that their effects “can vary from day to day—even from minute to minute.” Kaczmarek, a physical therapist who performed Gross’s functional capacity evaluation in February 2007, reviewed the surveillance records before reaffirming his conclusion that Gross cannot engage in sedentary Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 5 of 6 6 employment. Only one professional—Bhupalam—who has personally examined both Gross and the surveillance records does not endorse these diagnoses, though his opinion is subject to two caveats. First, Bhupalam initially echoed the consensus of every other physician and therapist who examined Gross—that she suffers from multiple syndromes causing pain sufficient to preclude even sedentary employment. Only after viewing the surveillance videos did Bhupalam retract this opinion. Second, Bhupalam tempered this retraction considerably, recommending a follow-up evaluation of Gross that Sun Life never pursued. This recommendation makes sense only if the surveillance records did not unequivocally contradict Bhupalam’s initial opinion that Gross was totally disabled. The remaining physicians who evaluated Gross’s condition did so only by comparing her medical and surveillance records—they never interacted with Gross. The court hesitates to overweight these opinions, reached at a distance from Gross on review of paper records, given that her conditions lack “any method for reaching a conclusive diagnosis,” Id. at 25 Conclusion Gross’s Motion for Summary Judgment (Docket # 108) is ALLOWED, and Sun Life’s Motion for Summary Judgment (Docket # 106) is DENIED. Parties shall submit a proposed form of judgment by July 8, 2016. June 24, 2016 /s/Rya W. Zobel DATE RYA W. ZOBEL UNITED STATES DISTRICT JUDGE Case 1:09-cv-11678-RWZ Document 119 Filed 06/24/16 Page 6 of 6

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