Daniel J. Rochow v. Life Insurance Co. Of North America

482 F.3d 860, 40 Employee Benefits Cas. (BNA) 2374, 2007 U.S. App. LEXIS 7599, 2007 WL 967196
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 3, 2007
Docket05-2100
StatusPublished
Cited by31 cases

This text of 482 F.3d 860 (Daniel J. Rochow v. Life Insurance Co. Of North America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel J. Rochow v. Life Insurance Co. Of North America, 482 F.3d 860, 40 Employee Benefits Cas. (BNA) 2374, 2007 U.S. App. LEXIS 7599, 2007 WL 967196 (6th Cir. 2007).

Opinion

OPINION

OBERDORFER, District Judge.

Daniel Rochow, the former President of Arthur J. Gallagher & Co. (“Gallagher”), currently suffers from HSV-Encephalitis, a rare and severely debilitating disease. The question in this case is whether or not the insurer, Life Insurance Company of North America (“LINA”) acted arbitrarily and capriciously when it concluded that Rochow was not disabled on the date that he left his job, therefore denying his claim for disability benefits. The district court held that LINA’s determination was arbitrary and capricious and unsupported by the administrative record. For the reasons hereinafter stated, we AFFIRM that decision.

BACKGROUND

A. Rochow’s Symptoms and Diagnosis

The Administrative Record reveals the following facts. Daniel Rochow was the President of Gallagher for ten years. He had long-term disability coverage through Gallagher’s Group Insurance Plan (the “Plan”), administered by LINA. In 2001, Rochow began to experience short-term memory loss, occasional chills, sporadic sweating, and stress at work. On June 15, 2001, he visited Dr. Bruce Forman to discuss his symptoms. Dr. Forman took notes, but did not record any conclusions.

In July 2001, Gallagher demoted Ro-chow from President to Sales Executive— Account Manager. According to Jack Tel-lerieo, an Area Vice President and Ro-chow’s co-worker at Gallagher, this demotion occurred because Rochow could no longer perform his duties as President.

On August 21, 2001, Rochow returned to Dr. Forman. He reiterated his concerns about his short-term memory loss, which had now been ongoing for six to eight months. Dr. Forman again took notes regarding Rochow’s complaints. He concluded that Rochow was suffering from depression, prescribed anti-depressants, and referred him to a neurologist. [JA 131],

On October 2, 2001, Rochow saw a neurologist, Dr. Mary Ann McKee. According to Dr. McKee’s notes, during the examination, Rochow was at times unable to answer her questions or describe his problems. He was tearful and cried often during the exam. He told Dr. McKee that the reason for his visit was “distractibility and difficult[sic] with memory.” [JA 153]. He explained that “for the last six months he has noticed that he might think of something and then in the middle of his thoughts he will lose the rest of the thought and not be able to complete the sentence.” [JA 153]. Dr. McKee concluded that “his memory difficulty is really secondary to depression and does not represent an organic brain disorder.” [JA 154]. An MRI on October 9, 2001 was “unremarkable.” [JA 156].

During this time, Rochow was having increasing difficulties at work. According to Tellerico, Rochow became unable to perform duties as a Sales Executive-Account Manager, which included budgeting revenue, developing sales plans, and identifying new clients or new products for existing clients; “[s]ince Mr. Rochow could not perform these material duties, he was not able to continue working at Arthur J. Gallagher & Co.” [JA 113]. January 2, *863 2002 was his last day of employment, and the day on which his disability coverage with LINA lapsed.

In February 2002, Rochow visited his son in Sarasota, Florida. On the evening of February 17, security guards discovered Rochow wandering alone in a parking lot, unable to explain why he was there. His speech was slurred, and he exhibited am-nestic symptoms. The Sarasota Fire Department transported him to the emergency room at Sarasota Memorial hospital. There, Rochow believed he was in Michigan and continued to exhibit amnestic symptoms. A radiologic scan was again “unremarkable.” [JA 415]. He was involuntarily civilly committed at a psychiatric hospital.

On February 20, 2002, Rochow was brought back to the emergency room because of a “sudden change and altered mental status.” [JA 223]. The emergency room staff conducted a lumbar puncture. An infectious disease specialist and a neurologist diagnosed Rochow with HSV-Encephalitis. HSV-Encephalitis is an extremely rare form of herpes that can cause “brain trauma not unlike the sort associated with strokes, car accidents, or gunshot wounds.” In re Myrick, 624 A.2d 1222, 1224 (D.C.Ct.App.1993). He was prescribed long-term anti-viral medications. On February 25, 2002, a physician attempted to interview Rochow; he was still unable to provide helpful information. Based on discussions with Rochow’s ex-wife and a colleague, this physician concluded that “[t]he patient’s history fits better with a more slow onset process.” [JA 262],

On March 5, 2002, Rochow was transferred by medical helicopter to Henry Ford Hospital in Michigan for continued treatment. He was discharged on March 14, 2002 with a recommendation for assisted living or 24-hour supervision at home, and with the sad prognosis that “he may never fully recover or be able to function on his own.” [JA 467],

B. The Claims Process

In late December 2002, Rochow, through his personal representative, filed a claim for disability benefits pursuant to LINA’s insurance plan. The plan provided in relevant part as follows:

WHEN COVERAGE ENDS
Your coverage ends on the earliest of the following dates:
... the day you are no longer in Active Service.
DESCRIPTION OF BENEFITS
WHAT IS COVERED
Disability Benefits
We will pay Disability Benefits if you become Disabled while covered under this Policy. You must satisfy the Elimination Period, be under the Appropriate Care of a Physician, and meet all the other terms and conditions of the Policy. You must provide to us, at your own expense, satisfactory proof of Disability before benefits will be paid.
DEFINITIONS
Active Service
If you are an Employee, you are in Active Service on a day which is one of your Employer’s scheduled work days if either of the following conditions are met.
1. You are actively at work. This means you are performing your regular occupation for the Employer on a Full-time basis, either at one of *864 the Employer’s usual places of business or at some location to which the Employer’s business requires you to travel.
2. The day is a scheduled holiday, vacation day or period of Employer approved paid leave of absence.
You are in Active Service on a day which is not one of the Employer’s scheduled work days only if you were in Active Service on the preceding scheduled work day....
Disability
You are considered Disabled if, solely because of Injury or Sickness, you are ... unable to perform all the material duties of your Regular Occupation or a Qualified Alternative[.]

[JA 27-37].

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Bluebook (online)
482 F.3d 860, 40 Employee Benefits Cas. (BNA) 2374, 2007 U.S. App. LEXIS 7599, 2007 WL 967196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-j-rochow-v-life-insurance-co-of-north-america-ca6-2007.