Free Lodged Proposed Document - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Stephen M. Bressler, State Bar No. 09032 Direct Dial: (602) 262-5376 Direct Fax: (602) 734-3742 E Mail: [email protected] Ricki L. Cohen, State Bar No. 024884 Direct Dial: (602) 262-5759 Direct Fax: 602 748-2502 E Mail: [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA David L. Mazet, ) ) Plaintiff, ) ) vs. ) ) Halliburton Company Long-Term Disability ) ) Plan; and, Hartford Life & Accident ) Insurance Company, ) ) Defendants. ) ) No. CV 04-00493 PHX-FJM DEFENDANTS' SUR-REPLY IN OPPOSITION TO PLAINTIFF'S MOTION FOR REMAND

If Plaintiff's current earning potential is greater than 60% of his indexed predisability-earnings, then he does not meet the Plan definition of disability during the "any occupation period," and he is not entitled to disability benefits. Plaintiff's Reply accuses Defendants of miscalculating his earning potential. He challenges Defendants' calculation that he could earn 104% of his pre-disability earnings. Plaintiff argues that he can only earn 95% of his pre-disability earnings. Below, Defendants explain why their 104% calculation is correct. In the end, the difference is academic. Plaintiff is only entitled to disability benefits if cannot earn 60% or more of his pre-disability earnings. His own calculations do not support his claim for benefits. The analysis begins with the Plan language, which provides during the "any occupation" period, a participant is not disabled if his earning potential is greater than

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60% of his indexed pre-disability earnings:

See Plan, p. 9, CF-00095, Exhibit 1 to Defendants' Statement of Facts in Support of Cross-Motion for Summary Judgment, filed August 13, 2007 Following the Court's February 5, 2008 Order1, Hartford studied whether Plaintiff met the definition of total disability during the any occupation period. After recalculating Plaintiff's pre-disability earnings for purposes of determining what back benefits were owed, Hartford then "indexed" these earnings. This resulted in $3,089.51.2 Defendants then needed to determine Plaintiff's present estimated median wage. Hartford did not rely upon its earlier employability assessment performed in 2003. It ordered an updated assessment. Vocational Rehabilitation Counselor Maggie White completed the updated assessment (employability analysis) on April 16, 2008. Ms. White took into consideration Plaintiff's current functional capabilities as reported by his attending physician, his educational and employment history and skill set.
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Document 76 Plaintiff's Reply did not challenge this calculation.
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She used the Occupational Access System (OASYS) to identify occupations that match those skills and functional capabilities. This is a computerized job matching system that cross references an individual's qualifications with all the occupations classified by the U.S. Department of Labor in the Dictionary of Occupational Titles. OASYS includes data reflecting 2006 national median wages. Ms. White found matching occupations with an estimated median wage of $3218.80.3 See Exhibit A, page 2. With the updated employability analysis and following the Plan's direction, Defendants made the following calculation: $3218.80 (estimated median wage) ÷ $3,089.51 (plaintiff's indexed pre-disability earnings). This yielded a 104% earning potential compared to Plaintiff's indexed pre-disability earnings. This far exceeds the 60% maximum for Plaintiff to qualify for disability benefits. Plaintiff's reply has a number of different calculations. Each resulted in a figure far higher than the maximum 60%. Plaintiff used a median wage based on 2003 U.S. DOL published statistics. See Reply at p. 2, fn.3, fn.4 and Exhibit 3 thereto. The most favorable calculation to him was as follows: $2,938.33 (estimated median wage) ÷ $3,089.51 (plaintiff's indexed pre-disability earnings). This resulted in 95%.4 This is also above the 60% maximum and does not qualify him for total disability under the Plan. Defendants previously produced to Plaintiff the entire administrative record. As might be expected, the claim work outlined above resulted in additional documentation in the claim file. Plaintiff never requested copies of this additional file. Instead, he wholly speculated about what Defendants supposedly failed to do. His speculation was wrong (not to mention unfairly and unnecessarily harsh5).
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In 2003, OASYS yielded a median wage of $3,103.03. Plaintiff also calculated 100.4% as follows: $3,103.03 (the 2003 estimated median wage figure) ÷ 3089.51 (plaintiff's indexed pre-disability earnings) = 1.00437 or 100.4%). See Reply at p. 4, lines 2-4. And at another point, Plaintiff asserted that the actual 2003 "median wage" for the occupations was 105% of plaintiff's indexed predisability earnings. See Reply at p. 3, fn.4. 5 For no apparent purpose other than to tarnish or embarrass defense counsel, Plaintiff accuses Defendants of filing a late response. See Reply, p. 1, fn.1. In fact, Defendants' response was timely. The plaintiff's motion was filed on June 24, 2008. Defendants had 10 days to respond (not counting weekends and 4th of July holiday). That date was Wednesday, July 9. To that day, 3 additional days for mailing are added. That date was Saturday, July 12. It rolls to Monday, July 14. Defendants filed the reply on that day.
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And he accused the Defendants of failing to supplement their disclosure by producing the additional claim file. He forgets that the case had been remanded to the claim administrator for compliance with the Court's February 5, 2008 order. While ERISA regulations entitle Plaintiff to all documents, records and other information submitted, considered or generated in the course of making the benefit determination, this is only upon request. See 29 CFR 2560.503-1(m)(8) Plaintiff never made a request. RESPECTFULLY SUBMITTED this 25th day of July, 2008. LEWIS AND ROCA LLP

By s/Ricki L. Cohen Stephen M. Bressler Ricki L. Cohen Attorneys for Defendants

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CERTIFICATE OF SERVICE I certify that on July 25, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing of the following CM/ECF registrants: Randolph G. Bachrach, Esq. Law Offices of Randolph G. Bachrach 5103 East Thomas Road Phoenix, Arizona 85018 Attorneys for Plaintiff

s/Michelle T. Gallegos

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