Nicole Rigg


Case No.: C 03-00296 PVT


2004 U.S. Dist. LEXIS 8009

May 5, 2004, Decided

DISPOSITION: [*1] Defendants' Motion for Summary Judgment DENIED IN PART and Plaintiff's Motion for Summary Judgment GRANTED.

COUNSEL: For Nicole Rigg, Plaintiff: Melvyn D. Silver, Silver & Taube, San Jose, CA. Ruth A. Silver-Taube, Silver & Taube, San Jose, CA.

For Continental Casualty Company, Symantec Corporation Long Term Disability Plan, Defendants: Michelle Yumi McIsaac, Kelly Herlihy & Klein, San Francisco, CA. Margie R. Lariviere, Kelly, Herlihy & Klein LLP, San Francisco, CA.

JUDGES: PATRICIA V. TRUMBULL, United States Magistrate Judge.




On April 6, 2004, the parties appeared before Chief Magistrate Judge Patricia V. Trumbull for hearing on cross motions for summary judgment. n1 Based on the briefs and arguments presented,

n1 The holding of this court is limited to the facts and the particular circumstances underlying the present motion.

IT IS HEREBY ORDERED that Plaintiff's [*2] motion is GRANTED and Defendants' motion is DENIED IN PART for the reasons stated herein.


Plaintiff Nicole Rigg ("Rigg") filed this action against Continental Casualty Company ("CCC") and Symantec Corporation Long Term Disability Plan under the Employee Retirement Income Security Act of 1974 ("ERISA"), challenging the denial of her claim for disability benefits. Rigg worked for Symantec Corporation as a Project Manager, facilitating the implementation of accounting software on a global basis. She began her career at Symantec in 1995. As part of its employee benefits package, Symantec offered its employees coverage under the Group Disability Income Insurance Plan ("the Plan"), issued by CCC.

Rigg filed a claim for disability benefits, identifying Guillain-Barre Syndrome (GBS) n2 and associated hypotension, tachycardia and autonomic neuropathy as her disabling condition and primarily complaining of fatigue and weakness. After investigating Rigg's disability claim, which included interviewing Rigg, obtaining medical information from her physicians and conducting covert surveillance for three days, CCC denied Rigg's claim. Rigg appealed and CCC upheld the claim denial. [*3]

n2 GBS, also known as acute inflammatory demyelinating polyneuropathy, is an inflammatory disorder of the peripheral nerves, characterized by rapid onset of weakness and often paralysis of the legs, arms, breathing muscles and face. Symptoms, initial and subsequent abnormalities vary, and may include autonomic neuropathy (weakness from peripheral nerves), fatigue and pain. Approximately 90% of those afflicted with GBS make a full recovery.

For the reasons set forth below, the court reviews CCC's claim denial under the abuse of discretion standard of review, finding that CCC abused its discretion by relying on erroneous findings of fact regarding Rigg's actual job duties as of her Date of Disability and her ability to perform those duties based on her ability to perform daily tasks, as well as misconstruing Rigg's regular occupation to include reduced and flexible work schedule accommodations which her employer eliminated before her date of disability.


Rigg was first diagnosed and treated for GBS in [*4] January 1998. After spending two months in the hospital, Rigg steadily improved and returned to part-time work in July of 1998, partially working from home. Rigg briefly returned to full-time work in or around January 1999, but quickly resumed her modified and reduced flex work schedule until March 2001 when her new manager told her that she could no longer work from home. Rigg stated in a narrative she provided to CCC that, under her new manager, "it was expected that I put in at least 45 hours per week like everyone else" and this statement is uncontradicted in the Administrative Record. In fact, internal notes by the claim administrator in the Administrative Record indicate that CCC was aware of Rigg's job requirements under her new manager. Specifically, on February 25, 2002, the claim administrator noted that "claimant was working with accommodations since first diagnosis [sic] about 1998. Claimant's manager changed and would not allow accommodations to continue."

In her narrative, Rigg said of her new job requirements, which became effective in March of 2001:

I tried very hard through April and May to do what was expected of me, however the more I worked ... the worse [*5] I got physically and mentally. I was so exhausted that I had to leave work early many days ... Finally at the end of May I could no longer go on.

Rigg notified CCC of her claim for disability benefits in September 2001, having been on disability leave since May 24, 2001. The Plan includes a 180-day elimination period, beginning from the date of disability, before an employee is eligible to receive benefits. Rigg's elimination period ended on November 19, 2001.

CCC investigated Rigg's claim from September 2001 until March 2002. The claim administrator interviewed Rigg over the phone on September 27th and November 20th. In addition, the claim administrator contacted both Rigg and her general physician's office numerous times from November 5th to December 27th via phone and correspondence to obtain medical records and other information. On December 28th, Rigg sent the claim administrator a facsimile transmission which contained documentation of her disability.

In January, the claim administrator asked Rigg to complete a two-week daily activities log. While Rigg kept this log, CCC engaged a private investigator to conduct a three-day covert surveillance in order to compare her stated [*6] activities with her observed activities. On January 28th, the private investigator met with Rigg to interview her and collect the activity log. On February 6th, the claim administrator telephoned Rigg to advise her of information still needed. On February 7th, the claim administrator telephoned the employer, requesting a copy of Rigg's job description, which the employer provided to CCC on February 21st.

In the meantime, on February 14th, Rigg's general physician, Dr. James Guetzkow, sent a letter to the claim administrator, describing Rigg's medical history and disabled status. Specifically, Dr. Guetzkow documented Rigg's disability, explaining that her neurologist, Dr. Guisado, first diagnosed Rigg's post-GBS autonomic neuropathy and her cardiologist, Dr. Starksen, confirmed this diagnosis by performing a 24-hour Holter electrocardiogram which contained twelve readings over a one-month period and showed intermittent rapid heart rates.

On February 27th, the claim administrator telephoned Rigg to advise her of receipt of Dr. Guetzkow's letter and to inform her that her claim was being sent for peer review. The peer review resulted in the claim administrator asking Dr. Guetzkow to [*7] complete an additional one-page functional assessment form, which he completed and returned to CCC on March 13th. On the form, CCC asked Dr. Guetzkow whether Rigg's condition caused a change in blood pressure every time she rises from a seated or reclining position, and, if yes, what resultant physical manifestations occur. Finally, the form asked Dr. Guetzkow to provide copies of any medical data which supports his opinion, including tests, lab results and physical exams. Dr. Guetzkow responded that Rigg's blood pressure drops below normal ranges and her heart rate increases each and every time she rises from a seated or reclining position. Dr. Guetzkow did not attach any medical data to the form. Instead, he wrote on the form "you should have all records from previous requests. We have no new info [sic]."

CCC denied Rigg's claim on March 21, 2002, noting that the Plan became effective on January 1, 2001, and that, "at this time [Rigg was] working in an accommodated work format." CCC determined that Rigg's condition did not meet the Plan definition of disability. The Plan language essentially defines disability as an "injury or sickness [which] causes physical or mental impairment [*8] to such degree of severity that You are ... continuously unable to perform the material and substantial duties of Your regular occupation." In denying Rigg's claim, the claim administrator determined that "the medical information provided, along with the inconsistent information received regarding your activities, does not indicate that the condition is of such severity that it would prevent you from performing the material and substantial duties of your occupation as a Project Manager." In the denial letter, the claim administrator acknowledged that Rigg had been working with accommodations, including part-time work and work from home, but that her new supervisor had eliminated the accommodations.

Rigg appealed the claim denial on October 8, 2002, re-submitting Dr. Guetzkow's letter and functional assessment form, as well as providing additional letters by Dr. Guetzkow and Dr. Guisado and detailing her job requirements before and after Symantec stopped allowing the accommodated work schedule.

Dr. Guisado's one-page letter, dated August 16, 2002, provides a diagnosis of Chronic Inflammatory Demyelinating Polyneuropathy (CIDP), n3 based on fluctuating weakness in the upper and lower [*9] extremities, orthostatic low heart rate and ongoing complaints of fatigue, poor exercise tolerance, palpitations and lightheadedness. Dr. Guisado noted no irregularities in blood pressure. He also reported laboratory data of a positive ANA and increased serum IgM fraction, but did not explain what this data means. Dr. Guisado mentioned that "repeat electrophysiological testing is currently pending." However, these test results are not in the Administrative Record. n4 Finally, Dr. Guisado opined that "[a] work week of not more than 30 hours is probably adequate."

n3 CIDP is essentially a chronic form of GBS.

n4 The Administrative Record contains neither the initial test results nor the repeat test results.

In his second letter, Dr. Guetzkow reiterated Rigg's medical history without providing any additional medical data such as tests, lab results or physical exams. In essence, his second letter did not provide any further information. He concluded by saying that Rigg "could not realistically work more than [*10] 30 hours a week."

CCC denied Rigg's appeal, finding that, based on the totality of the offered and obtained medical and other information, Rigg's condition did not meet the definition of total disability. CCC pointed to, inter alia, a lack of standardized diagnostic testing, specifically, tests which would confirm cognitive impairment related to Rigg's ability to concentrate.



The district courts review ERISA plan benefit denials "under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Rigg concedes that the Plan gives the fiduciary discretion. As such, the claim denial is reviewed under the abuse of discretion standard, which is equivalent to the arbitrary and capricious standard. See Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir. 1996). In assessing whether a claim administrator abused its discretion, the court considers whether the claim denial was unreasonable. Clark v. Washington Teamsters Welfare Trust, 8 F.3d 1429, 1432 (9th Cir. 1993). [*11] "Our inquiry is not into whose interpretation of plan documents is most persuasive, but whether the plan administrator's interpretation is unreasonable." Id.

Rigg argues that CCC's claim denial should be reviewed de novo because CCC failed to make a claim determination within the time limits set by ERISA regulations. n5 Jebian v. Hewlett-Packard Co., 349 F.3d 1098 (9th Cir. 2003). In Jebian, the court concluded that the plan administrator failed to comply with applicable time limits, which resulted in the appeal of benefits denial being deemed denied and subsequently required de novo review. Id. However, the Jebian court distinguished cases where the dilatory claim administrator is engaged in an ongoing good faith exchange of information with the claimant, stating that "inconsequential violations of the deadlines ... would not entitle the claimant to de novo review," particularly "in the context of an ongoing good faith exchange of information between the administrator and the claimant. Id. at 1107, quoting Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003). CCC engaged in an ongoing [*12] good faith exchange of information with Rigg from September 2001 until March 2002, as set forth above. As such, defendants remain entitled to an abuse of discretion standard of review.

n5 The regulations in effect at the time of Rigg's claim required the claim administrator to make a claim determination within 90 days, subject to a 90-day extension of time upon written notice to the claimant before expiration of the initial 90-day period. 29 C.F.R. § 2560.503-1(e) (2000).


Under the abuse of discretion standard of review "the usual tests for summary judgment, such as whether a genuine dispute of material fact exists, do not apply." Mizzell v. Paul Revere Life Ins. Co., 118 F. Supp.2d 1016, 1019 (C.D. Cal. 2000), citing Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999). Rather, "a motion for summary judgment is merely the conduit to bring the legal question before the district court." Mizzell at 1019, [*13] quoting Bendixen at 942.


A reasonable claim denial, supported by substantial evidence, is not an abuse of discretion. McKenzie v. General Tel. Co. of Cal., 41 F.3d 1310, 1316-17 (9th Cir. 1994). In assessing claim denials under this standard, courts look at whether (1) the claim was denied without explanation; (2) the denial construed the plan terms in conflict with the plain language of the plan; or (3) the plan administrator relied on clearly erroneous findings of fact. Bendixen v. Standard Ins. Co., 185 F.3d 939, 944 (9th Cir. 1999).

In Taft v. Equitable Life, 9 F.3d 1469 (9th Cir. 1990), the court defined what constitute clearly erroneous findings of fact, namely, decisions which "lack foundation in factual basis." Taft at 1473 (citations omitted). Hunt v. National Broadcasting Co., explicates "clearly erroneous findings" as follows: "We will not reverse ... because we would have reached a different result. To determine whether there has been an abuse of discretion, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a [*14] clear error of judgment." Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989) (internal quotations and citations omitted).

Defendants concede that if CCC failed to consider the requirements of Rigg's particular employment position as of her date of disability, that failure may constitute an abuse of discretion, citing Mizzell v. Paul Revere Life Ins. Co., 118 F. Supp.2d 1016, 1022 (C.D. Cal. 2000) (the plan administrator abused its discretion when it used a Department of Labor occupation description rather than the claimant's actual job duties).

1. CCC Relied on Clearly Erroneous Findings of Fact

In its denial letter, CCC relied on the fact that it began insuring Rigg on January 1, 2001 and that, at that time, she was working in an accommodated position. However, the Plan defines regular occupation as "the occupation that You are performing ... on Your Date of Disability. It is not limited to the specific position You held with Your employer." The Administrative Record clearly shows that as of her Date of Disability, May 24, 2001, Rigg was no longer in the accommodated position she held on January 1, 2001. Her employer eliminated [*15] substantial work schedule accommodations in March 2001 n6 and imposed a work schedule of at least 45-50 hours per week in the office. Thus, CCC's factual finding that Rigg's job duties on her May 24th Date of Disability were part-time and could be performed from home as needed was clearly erroneous and its unreasonable reliance on that finding constituted an abuse of discretion.

n6 While there is no evidence in the record to suggest that Rigg's supervisor reassigned international travel duties to Rigg, it is clear that the supervisor would no longer allow Rigg to work part-time and from home as needed.

Further, the plan administrator found that because Rigg was able to engage in some activities of daily living, n7 she was not disabled from her job as a project manager. n8 The plan administrator did not point to any substantial evidence in the Administrative Record to correlate Rigg's ability to perform some daily living tasks with the ability to work at least 45-50 hours per week as a project manager, facilitating [*16] business requirements and the implementation of accounting software on a global scale. Indeed, upon reviewing the entire Administrative Record, this court finds no such evidence.

n7 Rigg's stated and observed daily activities included caring for her seven-year-old daughter and two-year-old son with the assistance of a nanny, driving and walking to appointments, occasionally preparing family meals, performing other light household tasks with assistance, attending a real estate course twice a week, engaging in a one-hour therapeutic exercise program three times a week and spending on average four to five hours away from home per day. A comparison of Rigg's stated daily activities as recorded in her two-week log with the observed activities recorded by the investigator in the three-day covert surveillance conducted within the same time period reveals only insubstantial differences.

n8 Rigg's job duties, as of her Date of Disability, consisted of approximately nine-hour days spent performing cognitive-intensive project management tasks, including solving technical and procedural problems.


The plan administrator's finding that Rigg's ability to perform daily tasks meant that she was not totally disabled from her job lacked any factual basis. In the Social Security claim setting, n9 the Second Circuit overturned a claim denial absent proof that the claimant engaged in daily activities "for sustained periods comparable to those required to hold a sedentary job." Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2nd Cir. 1983). Likewise, CCC's reliance on the insubstantial evidence of Rigg's stated and observed minimal daily activities, which were not for sustained periods comparable to those required for her job, constituted an abuse of discretion.

n9 Social Security cases are "instructive" in ERISA suits. Duncan v. Cont'l Cas. Co., 1997 WL 88374, *5 (N.D. Cal. 1997).

2. CCC Misconstrued Plan Terms

In denying Rigg's claim, CCC relied on the fact that Rigg had been performing her job duties with accommodations in her work schedule for the past [*18] three years. However, these accommodations were eliminated in March, 2001, two months before Rigg went on disability leave.

Rigg relies on Saffle v. Sierra Pacific Power Co., 85 F.3d 455 (9th Cir. 1996), wherein the court held that "the Benefit Committee abused its discretion by erroneously factoring accommodation into the criteria for total disability." Saffle at 460 (internal quotes omitted). Significantly, the accommodations considered by the committee in Saffle were outside the realm of the claimant's regular job and were hypothetical in that the company had not actually offered the accommodations to the claimant. Likewise, Symantec had substantially eliminated the accommodations which CCC considered in making its claim decision, thus, the eliminated accommodations were no longer actually offered to Rigg. n10

n10 The court notes that the Plan provides a procedure for vocational rehabilitation services including job modification. Symantec, Rigg's employer, is identified on the Summary Plan Description as the plan administrator. Under these circumstances, as both the employer and disability plan administrator, Symantec was perfectly situated to assess and offer any appropriate job modifications.


The defendants rely on Ross v. Indiana State Teacher's Assoc., 159 F.3d 1001 (7th Cir. 1998), in which the Seventh Circuit distinguished Saffle, holding that "it was not an abuse of discretion for the Board of Trustees to consider the actual accommodations offered Mr. Ross." Ross at 1012. Ross is inapposite to the facts at hand because Rigg's employer was not offering flexible and reduced work schedule accommodations to Rigg as of her Date of disability. CCC did not investigate why her supervisor eliminated these accommodations. In any case, the end result remains the same. Namely, following Saffle and Ross, it is an abuse of discretion to consider accommodations which are not actually available to the employee.


Although Saffle states that when a plan administrator misconstrues plan terms, remand to the plan administrator is warranted to apply the properly construed plan terms to the disability claim, this case is not like Saffle because no additional factual determinations remain to [*20] be made and reevaluation of the merits of Rigg's claim is not required. Canesco v. Const. Laborers Pension Trust, 93 F.3d 600, 609 (9th Cir. 1996) (the court found abuse of discretion when the pension plan administrator denied retroactive retirement benefits in conflict with plan language but held that remand to the administrator for further determination was not warranted). The undisputed facts in the Administrative Record show that Rigg suffered from fatigue and weakness associated with her medical condition to the extent that she could work no more than 30 hours a week and required frequent rest periods throughout the day. The unrefuted record further shows that Rigg's job required her to work 45-50 hours per week. Based on this record, Rigg is entitled to benefits.


Under the Plan, Rigg is eligible for disability benefits for the first twenty-four months beyond the elimination period if she is disabled from performing the material and substantial duties of her regular occupation. Beyond twenty-four months, in order to remain eligible for disability benefits under the Plan, [*21] Rigg must be unable to engage in "any occupation." The Plan contains other notable exclusions for disability beyond twenty-four months, including disability "due to a diagnosed condition which manifests itself primarily with Self-Reported Symptom(s)."

The complaint, filed January 22, 2003, fourteen months after the elimination period expired, does not include a request for benefits based on Rigg's total disability from any occupation. Neither does the current record address Rigg's ability to engage in any occupation beyond the initial twenty-four months period to the present. Because this court finds that Rigg is disabled from her regular occupation, it is appropriate to remand Rigg's claim for benefits beyond twenty-four months to CCC to make a determination as to whether Rigg is totally disabled from any occupation. See Saffle at 460-61; Thomas v. Cont'l Cas. Co., 7 F. Supp.2d 1048, 1056 (C.D. Cal. 1998).


For the reasons stated herein Defendants' Motion for Summary Judgment is DENIED IN PART and Plaintiff's Motion for Summary Judgment is GRANTED. Rigg is totally disabled from her regular occupation as a project manager and is entitled to benefits [*22] under the Plan.

Dated: 5/5/04


United States Magistrate Judge