Free Reply in Support of Motion - District Court of Arizona - Arizona

R ANDOLPH G . B ACHRACH
ATTORNEY AT LAW

5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 Tel: (602) 852-9540 Fax: (602) 840-0318 (AZ #12621 - CA #93278)

Attorneys for Plaintiff

United States District Court
FOR THE DISTRICT OF ARIZONA

DAVID L. MAZET, Plaintiff, vs. HALLIBURTON COMPANY LONGTERM DISABILITY PLAN; and, HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendants.
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No.: CV 04 0493 PHX FJM REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR REMAND TO THE PLAN ADMINISTRATOR, OR, ALTERNATIVELY, FOR DE NOVO REVIEW (Oral argument requested)

Plaintiff submits the following REPLY in support of his motion for second remand to the plan administrator, or, alternatively, for de novo review ("MxRemand"). Hartford's responding brief is misleading on several critical points, especially, as concerns Mr. Mazet's eligibility for continued ("any occupation") disability benefits.1 After Plaintiff filed his MxRemand, Hartford informally supplemented the administrative record (via e-mailed documents to Plaintiff's counsel) with documents related to its remand decision.2 These documents (hand-written claim "notes") are substantial evidence that Hartford abused its discretion (on second remand) by continuing to deny "any occupation disability" benefits to Mr. Mazet. Thus, Plaintiff is entitled to either judgment, as

Hartford did not explain why its Response was filed late (Local Rule 7.2(c)), nor, did it seek additional time to late file its Response. Hartford has failed to comply with Rule 26(e)(1), even though it refers to these documents in its Response to MxRemand.
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a matter of law, or, a de novo review on this issue because these claim "notes" clearly establish that Hartford has failed to follow this Court's prior admonition to "to fairly and accurately perform its obligations," and has once again breached its fiduciary duties while simultaneously and actively misleading Plaintiff and the Court in the premises. Hartford inserted (in its Response) a screen shot of a hand-written claim "note" which it claims is part of the administrative record, even though, no formal supplementation of the record has been made. This document (titled "Index") was provided to Plaintiff only a few days ago, via informal (e-mail) disclosure. Hartford offers this document as evidence that its representatives calculated Mr. Mazet's "Indexed Pre-disability Earnings" for the purpose of determining his eligibility for "any occupation" Plan benefits. (Response, pg. 5:19.) The facts, however, belie this claim. This "Index" is substantial evidence that Hartford has again abused its discretion (on second remand) by continuing to deny LTD benefits on the patently false assertion that Mr. Mazet's "indexed pre-disability earnings" represent 104% of the "estimated median wages" for certain previously identified occupations. In its initial denial, Hartford claimed that Mr. Mazet was ineligible for continuing benefits because it had determined that several occupations were available to him "all showing monthly earnings of $3,103.03." (Exhibit 1, CF-00193, attached.) Hartford continues to claim that this wage accurately reflects the 2003 "adjusted" "estimated median wage" for these occupations.3 (Exhibit 2, CF-00205, attached.) Initially, Hartford claimed
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In the entire administrative record (consisting of more than 800 pages) there is not a single document (or reference to any document or government statistic) which supports Hartford's claim that $3,103.03 was an accurate "estimated median wage" for these jobs in 2003. All we have is Hartford's statement that this is an accurate wage "estimate." Because Hartford claims to have derived its wage "estimate" from published government statistics, it is appropriate for the Court to examine these statistics. The actual 2003 U.S. Dept. of Labor wage data for these occupations reveals that Hartford's "median wage estimate" was substantially inaccurate. (Exhibit 3, attached, U.S. DOL, Occupational Employment and Wages, 11/2003, "43-5061: Production, Planning, and Expediting Clerks;" listing the 2003 "median" wage for these occupations as $35,260 [or, $2,938.33/monthly]); http://www.bls.gov/oes/2003/november/oes435061.htm. Because

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that wages for these occupations represented 114% of Mr. Mazet's "indexed pre-disability earnings." (Id.) On second remand, Hartford admits that this was inaccurate. (See Exhibit 1, MxRemand: "Mr. Mazet should have been paid using the new gross monthly benefit of $2,972.57 versus the prior benefit of $2,714.40.") With respect to the same occupations, Hartford now claims that "[t]he salaries for these occupations provide 104% of Mr. Mazet's Indexed Pre-Disability Earnings. . ." (Id.) The record does not support this claim. The hand-written "Index"which Hartford informally produced to Plaintiff reveals the truth. The "Index" shows that Mr. Mazet's "indexed pre-disability earnings" were $3,089.51 [or, $37,074.12/annual], as of January 2003. Thus, Hartford's own "Index" shows that Mr. Mazet's "indexed pre-disability earnings" were actually 100% of the wage Hartford claimed to represent the "adjusted" "estimated median wage" for these occupations, in 2003.4 In that light, it is extraordinary that Hartford claims in its Response that The plaintiff's earnings potential in the occupations identified far exceeds 60% of his indexed pre-disability earnings, and thus he did not meet the plan's definition of disabled during the any occupation period. Response, pg. 5:12; also, pg. 7:2, (emphasis added). Again, Hartford's "Index" (on its face) reveals the falsity and absurdity of this assertion. Hartford's "Index" is remarkable for yet another unexplained inconsistency. Hartford's second remand decision letter claimed that "[t]he salaries for these occupations provide 104% of Mr. Mazet's Indexed Pre-Disability Earnings. . ." (Response, pg. 5:10.) A quick math calculation is sufficient to reveal the falsity of this statement. It is clearly the non-indexed pre-disability earnings ($2,972.57), referenced on the first page of the second

Hartford's initial denial was in Feb. 2003, the ending 2002 OES data for these occupations is more relevant than late 2003 data ("estimated" or otherwise). This published data lists a much lower "median wage" of $33,650. http://www.bls.gov/oes/2002/oes435061.htm. Indeed, the U.S. DOL published statistics (See Exhibit 3) shows that the actual 2003 "median wage" for these occupations was 105% of Mr. Mazet's indexed pre-disability earnings, even nine (9) months after his claim was first denied (Feb. 2003). 3
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remand decision letter, to which the "104%" calculation applies (3,103.03 ÷ $2,972.57 = 1.039). (See Exhibit 1, MxRemand.) In contrast, the "indexed pre-disability earnings" ($3,089.51), contained in the recently produced "Index," produces a 100% calculation ($3,103.03 ÷ 3,089.51 = 1.00437). The reason for Hartford's reluctance to timely produce or to supplement its Rule 26 disclosure with these claim "notes" ("index" calculations) is obvious -- even Hartford's unsupported "estimated median wage" assumption ($3,103.03) for the identified occupations does not support a denial of "any occupation disability" benefits to Mr. Mazet. Moreover, there does not exist even a scintilla of good faith in Hartford's argument that "[t]he plaintiff's earnings potential in the occupations identified far exceeds 60% of his indexed pre-disability earnings." (See Response, pg. 5:12; also, pg. 7:2, emphasis added.) The record shows that Hartford never made any attempt to "index" Mr. Mazet's predisability earnings prior to rendering its most recent decision on second remand. Yet, Hartford was required by the Plan to "index" Mr. Mazet's predisability earnings (including his 401(k) contributions) in January 2002 and January 2003, before deciding his claim for "any occupation disability" benefits. The cost and the tragedy of Hartford's failure to follow the plain terms of the Plan has been enormous -- Mr. Mazet has been wrongfully denied LTD benefits for more than five years, during which time, all of the parties and the courts (trial and appellate) have wasted vast resources in time and money (tens of thousands of dollars). SUMMARY In its second remand Order (Docket #76, pg. 6:6), this Court specifically admonished Hartford "to fairly and accurately perform its obligations." The Court added that Hartford's ". . . decision on the first remand is utterly irrational and counsel's attempts to justify it press the limits of appropriate advocacy." Hartford's second remand decision suggests a bold indifference to the Court's admonition. This is evidenced by the fact that Hartford intentionally misled Mr. Mazet when it told him in the second remand decision letter (which did not include the "Index") that "[t]he salaries for these [previously identified] 4

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occupations provide 104% of [your] Indexed Pre-Disability Earnings. . ." Hartford's subsequent (informally) produced "Index" unmasked this deception. Compounding this prevarication is Hartford's Response to Plaintiff's MxRemand, which avers to the Court that "plaintiff's earnings potential in the occupations identified far exceeds 60% of his indexed pre-disability earnings." Again, Hartford's misinformation is completely contradicted by the belatedly produced "Index." Based on these facts and this record, Plaintiff requests that the Court exercise its discretion to find, as a matter of law, that Mr. Mazet is entitled to "any occupation disability" benefits under the terms of the Plan. Alternatively, Mr. Mazet requests a de novo review and hearing on the issue of his eligibility and entitlement to "any occupation disability" benefits under the Plan. Respectfully submitted: DATED: July 18, 2008 RANDOLPH G. BACHRACH Attorney at Law By s/Randolph G. Bachrach Randolph G. Bachrach, Esq. 5103 E. Thomas Road Phoenix, Arizona 85018 Attorney for Plaintiff I hereby certify that on July 18, 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 to the following CM/ECF registrants:
Steve Bressler LEWIS & ROCA, LLP 40 N. Central Ave. Phoenix, Arizona 85004-3329 Attorneys for Defendants s/Randolph G. Bachrach

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EXHIBIT 1
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We have reviewed your job history taking into account your work as Service Supervisor, Multi Service Operator & Service Operator with Halliburton since 1981 . In addition, you hav e demonstrated your ability to work as a Milk Truck Driver by performing the duties when yo u worked for Desert Milk Transportation during the period of November 2001 to April 2002 . You are currently performing the duties of a Bus Driver with Tempe School District and have been sinc e June 2002 . We also considered your education . You indicated that you have a 12`s grade education . By reviewing your abilities as stated by Dr . Armstrong, which show you are able to perform at th e Sedentary ­ Medium occupation level, along with your work and educational history, we were abl e to identify several occupations at the Sedentary and Light level, which you could perform wit h minimal or no retraining. The occupations found were Assignment Clerk, Repairer Order Clerk , Jacket Preparer, Fabric And Accessories Estimator, and Weave Defect Charting Clerk . These occupations would provide sufficient income to maintain your station in life. These occupations all show monthly earnings of $3,103 .03 or $17 .90 hourly. This wage is derived fro m the 2001 Estimated Median Wage following an adjustment to reflect estimated wages for 2003 . These occupations are prevalent in the national economy . This is only a partial list and should not in any way limit your ability to return to work in another occupation . Therefore, the weight of the medical evidence together with information about your education , training and experience does not support your Total Disability from any occupation . Therefore, effective 2/26/03, you are no longer eligible to receive Long Term Disability Benefit and we ar e terminating your claim . Please also continue to keep us updated on the settlement regarding your work-related injury . It is our understanding that you had a hearing on 2/11/03 . Please continue to provide us with a cop y of any correspondence you receive regarding this matter . Once we receive the documentation w e will review and determine if any portion of this settlement is considered other income under th e Long Term Disability Policy . The Hartford Life and Accident Insurance Company reserves all rights and defenses as stipulate d by the contract not herein referenced . The Employee Retirement Income Security Act of 1974 ("ERISA") gives you the right to appeal our decision and receive a full and fair review . You may appeal our decision even if you do no t have new information to send to us. You are entitled to receive, upon request and free of charge , reasonable access to, and copies of, all documents, records and other information relevant to you r claim . If you do not agree with our denial, in whole or in part, and you wish to appeal our decision , you or your authorized representative must write to us within one hundred eighty (180) days from the date of this letter. Your appeal letter should be signed, dated and clearly state your position . Along with your appeal letter, you may submit written comments, documents, records and other information related to your claim .

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EXHIBIT 2
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Analysis Results : The results of the job-person match run at the Sedentary level identified two matches at the closest matc h level, five matches at the good match level, one hundred twenty two matches at the fair match level an d two hundred ten matches at the potential match level . After careful consideration, one of the occupations identified at the closest match level was eliminated fro m further consideration as it appears that the occupation may not provide a sufficient monthly earnin g potential . The following occupation was identified at the closest match level was deemed appropriate give n Mr. Mazet's education, skills, work history, functional capacities and required monthly earnings potential o f $2714 .46 : Job Title Assignment Clerk DOT Code 215 .367-010 Monthly Earnings Potential Comparison $3103 .03 or 114% of the required earnings potentia l

After careful consideration, one hundred percent of the occupations identified at the good match level wer e eliminated from further consideration as it appears that the occupations may not provide a sufficient monthly earning potential. After careful consideration, eighteen of the occupations identified at the fair match level, as it appears tha t Mr. Mazet may not possess the specific vocational preparation required to be considered readil y employable in the occupations . One hundred additional occupations identified at the fair match level wer e eliminated from further consideration, as it appears that the occupation may not provide a sufficien t monthly earning potential . The following occupations identified at the fair match level were deeme d appropriate given Mr . Mazet's education, skills, work history, functional capacities and required monthl y earnings potential of $2714 .46: Job Title Repair Order Clerk Jacket Preparer Fabric and Accessories Estimator Weave Defect Charting Clerk DOT Code 221 .382-022 221 .387-030 221 .482-010 221 .587-042 Monthly Earnings Potential Compariso n $3103 .03 or 114% of the required earnings potentia l $3103 .03 or 114% of the required earnings potentia l $3103 .03 or 114% of the required earnings potentia l $3103 .03 or 114% of the required earnings potential

After careful consideration, one hundred eight of the occupations identified at the potential match leve l were eliminated form further consideration as it appears that Mr . Mazet may not possess the specifi c vocational preparation required to be considered readily employable in the occupations . One hundred one additional occupations identified at the potential match level were eliminated from further consideration, a s it appears that the occupation may not provide a sufficient monthly earning potential . The following occupation identified at the potential match level was deemed appropriate given Mr . Mazet's education, skills, work history, functional capacities and required monthly earnings potential of $2714 .46: Job Title Tablet Tester DOT Code 559 .667-010 Monthly Earnings Potential Comparison $2772 .13 or 102% of the required earnings potentia l

The above noted wage information is derived from the 2001 Estimated Median Wage following a n adjustment to reflect estimated wages for 2003 . The above noted occupations appear to be prevalent in th e national economy. It is known that the occupations provide the opportunity to reposition during the cours e of the workday . Mr . Mazet has demonstrated the ability to perform basis computer skills .

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EXHIBIT 3
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Production, Planning, and Expediting Clerks

http://www.bls.gov/oes/2003/november/oes435061.htm

S p N avi gati on Li nks ki

U.S. Department of Labor
www.bls.gov

Bureau of Labor Statistics
Occupational Employment Statistics Advanced Search | A-Z Index

BLS Home | Programs & Surveys | Get Detailed Statistics | Glossary | What's New | Find It! In DOL

RELATED OES LINKS

Occupational Employment and Wages, November 2003
43-5061 Production, Planning, and Expediting Clerks Coordinate and expedite the flow of work and materials within or between departments of an establishment according to production schedule. Duties include reviewing and distributing production, work, and shipment schedules; conferring with department supervisors to determine progress of work and completion dates; and compiling reports on progress of work, inventory levels, costs, and production problems. Exclude "Weighers, Measurers, Checkers, and Samplers, Recordkeeping" (43-5111). National estimates for this occupation Industry profile for this occupation State profile for this occupation Metropolitan area profile for this occupation National estimates for this occupation: Top Employment estimate and mean wage estimates for this occupation: Employment (1) 281,030 Employment RSE (3) 1.7 % Mean hourly wage $17.60 Mean annual wage (2) $36,610 Wage RSE (3) 0.6 %

Percentile wage estimates for this occupation: Percentile Hourly Wage Annual Wage (2) 10% $10.09 $21,000 25% $12.76 $26,550 50% (Median) $16.95 $35,260 75% $21.58 $44,880 90% $26.40 $54,900

Industry profile for this occupation: Top Industries with the highest levels of employment in this occupation: Industry Employment services Wired telecommunications carriers Management of companies and enterprises Postal service Aerospace product and parts manufacturing Top paying industries for this occupation: Industry Employment Hourly mean Annual mean Employment 8,770 7,730 7,270 6,690 6,580 Hourly mean wage $12.31 $20.28 $18.21 $22.63 $20.10 Annual mean wage $25,600 $42,180 $37,870 $47,070 $41,810

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