Hackett v. Standard Insurance

559 F.3d 825, 46 Employee Benefits Cas. (BNA) 1559, 2009 U.S. App. LEXIS 5823, 2009 WL 703235
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 19, 2009
Docket07-3166
StatusPublished
Cited by22 cases

This text of 559 F.3d 825 (Hackett v. Standard Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hackett v. Standard Insurance, 559 F.3d 825, 46 Employee Benefits Cas. (BNA) 1559, 2009 U.S. App. LEXIS 5823, 2009 WL 703235 (8th Cir. 2009).

Opinion

BYE, Circuit Judge.

Kathleen Hackett appeals the district court’s order affirming Standard Insurance Company’s denial of long-term disability benefits under her employer-funded insurance policy. We reverse and remand.

I

Hackett was an employee of Mileage Plus Inc. (MPI) in Rapid City, South Dakota, for fourteen years, eventually serving as a customer service supervisor. As a benefit of her employment, MPI provided disability insurance under a benefit plan (Plan) issued by Standard. 1 The Plan provides disability benefits for the first twenty-four months after the onset of a disability if the insured is unable to work at her “own occupation.” To continue receiving benefits after twenty-four months, the insured must demonstrate an inability to work at “any occupation” as defined by the Plan. The Plan defines “any occupation” benefit eligibility as:

During the Any Occupation Period you are required to be Disabled from all occupations. You are disabled from all occupations if, as a result of Sickness, Injury or Pregnancy, you are unable to perform with reasonable continuity the material duties of any gainful occupation for which you are reasonably fitted by education, training and experience.

Standard determined employment paying $2600 per month or more would qualify as gainful occupation considering Hackett’s experience and abilities.

Hackett asserts she is disabled by the residual effects of a brain hemorrhage suffered on September 28, 2002. On that day, she was taken to the hospital and seen by a neurologist, Dr. James Nab-wangu. She underwent emergency surgery and was released from the hospital eleven days later with instructions to follow up with Dr. Nabwangu.

*827 On November 5, 2002, Dr. Nabwangu noted Hackett had “done exceptionally well” since the surgery, and was planning on returning to work part time at MPI, beginning November 7, 2002. On December 8, 2002, Hackett again saw Dr. Nab-wangu and reported her ability to focus was improving and she was able to do computer work when not distracted. Hackett also reported she was extremely tired after seven hours of work. Dr. Nab-wangu indicated she should remain working thirty hours a week and could resume driving.

After returning to MPI, Hackett continued to receive medical treatment. Hack-ett’s internist, Dr. James Bowman, saw her in early 2008 and noted Hackett was “doing very well” and had more energy, but had suffered a slight headache earlier in the day. On January 15, 2003, Hackett reported to Dr. Bowman she was suffering from a severe headache, which was worse when she did “work on the computer with numbers.” On March 21, 2003, Dr. Bowman noted Hackett had “a lot of mood lability” and was unable to focus at her job, but had not had problems with severe headaches. On April 21, 2003, Dr. Bowman noted Hackett still suffered from “occasional” headaches, but her mood had improved.

On February 28, 2003, Hackett applied to Standard for “own occupation” disability benefits, asserting the effects of the hemorrhage rendered her unable to perform her duties as a customer service supervisor. On May 1, 2003, Standard approved her disability claim from December 26, 2002, through January 17, 2003, but found she was able to return to work after January 17, 2003.

On May 6, 2003, Hackett ended her employment with MPI. She visited Dr. Nabwangu the same day and he noted Hackett “had to quit her job today, because she is really unable to handle the duties demanded of her, due to intellectual impairment of some confusion; etc.”

On June 17, 2003, Hackett was readmitted to the hospital after feeling “confused” while working as a receptionist. She was diagnosed with cerebral ischemia and discharged after three days of treatment with plans for physical and occupational therapy and home medication. Hackett was terminated from the part-time receptionist job because her employer needed someone there every day.

Hackett appealed Standard’s determination she could return to work effective January 17, 2003, and submitted a report from Dr. Nabwangu made after the May 6, 2003, visit, which stated:

I do genuinely believe that this patient may very well have difficulty, because of some residual permanent impairment of her intellectual functions in dealing with a kind of job that she has been responsible for. A less structured and less demanding job intellectually, may be more appropriate. Under the circumstances, I have requested a psychological evaluation; and hopefully with these recommendations, her insurance company will be more amenable to social re-adaptation, in order to find her a more suitable position.

Based upon Dr. Nabwangu’s note, as well as possible cognitive problems and the June 17 hospitalization, Standard reopened her file and found Hackett disabled under the “own occupation” portion of her disability insurance policy on June 23, 2003.

Following the June 17 hospitalization, Dr. Nabwangu referred Hackett to Dr. John E. Meyers, a clinical neuropsychologist. On June 21, 2003, Dr. Meyers conducted a battery of tests and determined Hackett’s verbal IQ fell within the high average range and her performance IQ within the low average range. Although Dr. Meyers noted the scores were below *828 her expected range of function, “[t]he difference between her expected performance and her actual performance was not significant.”

Hackett began seeing neurologist Dr. Steven Hata, and on July 17, 2003, he noted she had recovered well but complained of headaches linked to computer usage. Dr. Hata noted Hackett’s “neurop-sych testing shows performance scores decreased; however, verbal and other scores are normal.” Cognitive functions were also normal. Hackett saw Dr. Hata again in August of 2003, and he noted her headaches had decreased to every four days after modification of her medication.

In September of 2003, Standard advised Hackett she may be eligible for social security benefits and referred her to a firm which assisted with social security applications. On August 25, 2005, Hackett was found disabled and awarded benefits.

Hackett began to see neurologist Dr. Allen Gee, who noted on March 26, 2004, that Hackett reported severe headaches which had begun two months after the brain hemorrhage. On April 9, 2004, Hackett reported she had suffered a constant headache for the past week. Dr. Gee instructed her to keep a “headache diary.” On May 7, 2004, Dr. Hata noted Hackett’s headaches had improved, she only suffered a headache once in every three days, and only needed to take medication twice in the past month for severe headaches. On July 23, 2004, Dr. Gee noted Hackett was suffering from frequent headaches, but they were reduced in intensity and only required medication once or less per month. In July 2004, Hackett was also examined by Dr. Monte S. Dirks, who found she had suffered a thirty-eight percent loss to her total visual system.

In late 2004, Standard reviewed Hack-ett’s disability claim under the “any occupation” provision of the Plan. Standard provided Hackett’s medical records to Dr. Lawrence Zivin, a board certified neurologist and consultant to Standard. Dr.

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Bluebook (online)
559 F.3d 825, 46 Employee Benefits Cas. (BNA) 1559, 2009 U.S. App. LEXIS 5823, 2009 WL 703235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackett-v-standard-insurance-ca8-2009.