United States District Court, D. Rhode Island
Jamal Khalil, Plaintiff: Bernard P. Healy, LEAD ATTORNEY, Law
Offices of Bernard P. Healy, Pawtucket, RI.
Liberty Life Assurance Company of Boston, a/k/a Liberty
Mutual Insurance Company, Defendant: Guy P. Tully, PRO HAC
VICE, Jackson Lewis LLP, Boston, MA; Jonathan R. Shank,
Jackson Lewis P.C., Boston, MA.
J. McConnell, Jr., United States District Judge.
Khalil received long-term disability payments from Defendant
Liberty Life Assurance Company (" Liberty" ) after
suffering shoulder and neck injuries resulting from a go-cart
accident in 2009. Liberty terminated those benefits at the
end of 2013, finding him capable of working based on outside
medical reviews and video surveillance it collected
demonstrating Mr, Khalil's activities. Mr. Khalil asserts
that he continues to be disabled, is entitled to long-term
disability benefits, and that Liberty's decision to deny
him benefits is rooted in an impermissible structural
conflict because Liberty serves as both plan administrator
and benefits payer. Both parties have moved for summary
thorough review of the record and the law, the Court GRANTS
the Defendant's Motion for Summary Judgment (ECF No. 12)
and DENIES the Plaintiff's Motion for Summary Judgment
(ECF No. 18).
Khalil's go-cart accident occurred at a work-sponsored
event in November 2009. At the time, Mr. Khalil worked in a
sedentary position as a finance and insurance executive with
Zurich American Insurance Company. He suffered injuries to
his upper back, neck, right shoulder, and wrist. He initially
received short-term disability benefits through an insurance
policy that Liberty administered. An MRI in January 2010
revealed Mr. Khalil had a labial tear of the shoulder. He
needed surgery, but it was delayed for a year for several
reasons not pertinent to the instant dispute.
Khalil's employer also had a long-term disability policy
(" LTD" ) for its employees through Liberty.
Liberty not only insures the disability with this type of
policy, but it also administers any claims on the policy. The
policy provides coverage if a participant is disabled from
performing the material and substantial duties of his "
own occupation" for a twenty-four month period and,
thereafter, if he is disabled from performing the material
and substantial duties of " any occupation" for
which he is reasonably fitted by training, education
experience, age, and physical and mental capacity. In June
2010, Liberty approved Mr. Khalil's claim for long-term
disability benefits under the " own occupation"
definition of the policy. By August 2010, Mr. Khalil's
wrist issue was resolved. In December 2010, he had surgery to
repair the labral tear in his shoulder. At the beginning of
2011, his shoulder was getting better, but now he had pain in
his neck; a cervical neck issue was subsequently identified.
He received physical therapy and injections and ultimately
he had neck fusion surgery in April 2012.
he was still experiencing neck and shoulder pain, Liberty
approved his claim for LTD benefits in July 2012 under the
" any occupation" definition because he was
disabled from performing the material and substantial duties
of any other job he is trained, educated and otherwise able
to perform. While health professionals discussed other
treatment options with Mr. Khalil, including more surgery,
Mr. Khalil chose to use ointments and massage therapy to
treat his pain.
this entire time, Mr. Khalil continually claimed that he was
unable to sit, stand or walk for more than several minutes at
a time, and that he was unable to use his upper right
extremity whatsoever. During the same 2010-2013 timeframe,
Liberty periodically commissioned surveillance of his
functional activities, the results of which were captured
both in written reports and on video. In September 2013,
Liberty engaged a doctor to exam Mr. Khalil. Dr. Ajit Mirani
concluded that Mr. Khalil could work only in a sedentary
capacity and could not lift, pull or push with his right
upper extremity. And while Liberty claims that Mr,
Khalil's physical activity during the surveillance period
was in stark contrast with both his self-reported limitations
and the information he was providing to his treating
physicians, Dr. Mirani disagreed, concluding that Mr. Khalil
was not exaggerating his symptoms, but rather that the
activity in the videos could be due to his use of medicine to
relieve his symptoms or the time of day when he generally
felt well enough to be more active.
video surveillance continued in the fall of 2013 and Liberty
retained Dr. Gale Brown to review Mr, Khalil's claims.
Dr. Brown concluded in a December 2013 report that based on
the medical records and the videos, Mr. Khalil's actual
functional abilities were better than he reported to Liberty;
that he was capable of sedentary work with some restrictions
to accommodate for neck and shoulder pain, if he experienced
any. Dr. Brown contacted Drs. Fadi Mansourati and Todd
Handel, Mr. Khalil's primary care physician and pain
doctor respectively, to discuss Mr. Khalil's functioning.
Both treating doctors agreed that Mr. Khalil could do
sedentary work and therefore was no longer eligible for LTD
terminated Mr. Khalil's long-term disability benefits in
December 2013. Mr. Khalil appealed in May 2014. In July 2014,
Liberty asked an independent consulting firm to assign a
doctor to conduct a peer review of the claim. Dr. Chang
concluded that the records and surveillance showed that Mr.
Khalil was able to work full time in a sedentary capacity
with some restrictions. Liberty upheld its decision to deny
benefits and this lawsuit ensued.
Khalil argues that he is entitled to judgment because
Liberty's decision to deny his LTD benefits was arbitrary
and capricious as it was made through the lens of a
structural conflict rooted in Liberty's dual role as plan
administrator and benefits payer. Liberty moves for judgment,
arguing that its decision was based on substantial evidence
from the well-developed record over a three and half year
review period (during which it paid Mr. Khalil short-term
disability benefits) and was not clouded by its dual role.