Exhibits 3b to 3e to Bahar Declaration - Declarations from Current Employees

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Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 1 of 8

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Jessica S. High (Bar No. 030502) Aaron T. Winn (Pro Hac Vice) Maryam Maleki (Pro Hac Vice application pending) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 Fax: +1 619 744 2201 E-mail:jhigh@duanemorris.com atwinn@duanemorris.com mmaleki@duanemorris.com Attorneys for Defendant MATRIX ABSENCE MANAGEMENT, INC.

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 12 13 14

Tina Weeks, Michael McDonald & Cassandra Magdaleno, individually and on behalf of others similarly situated, Plaintiffs,

15 16 17 18

v. Matrix Absence Management, Inc. an Arizona Company,

Case No. 2:20-cv-00884-PHX-SPL DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Defendant.

19 20

Judge:

21

Action Filed:

Hon. Steven P. Logan May 6, 2020

22 23

I, Christopher Pheil, declare as follows:

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1)

The following information is true and correct and based upon my

25

own personal knowledge, and if called upon as a witness, I could and would

26

competently testify thereto.

27 28 DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 1


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 2 of 8

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2)

I am a Senior Claims Examiner - AMS [Absence Management

2

Specialist] (“AMS examiner”) for Matrix Absence Management, Inc. (“Matrix”),

3

Defendant in this lawsuit. I have been in this position for the last three to four

4

years.

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3)

Prior to this, I was employed with Matrix as a Claims Examiner I -

AMS. I have been in the Portland, Oregon office of Matrix for six years. 4)

AMS examiners adjudicate, assess, and manage leaves of absence

8

under federal and state leave of absence laws requested by employees of an

9

assigned client. Additionally, AMS examiners adjudicate, assess, and manage

10

Short Term Disability (“STD”) claims. STD claims call for paid benefits under

11

the relevant client-employer’s plan, if I determine that the claimant-employee

12

presents adequate medical support establishing that he or she has a qualifying

13

“disability,” as that term is defined by the client-employer’s plan document.

14

5)

I currently work with an assigned client-employer that employs

15

individuals in the state of Washington, which has extensive leave of absence

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laws. Additionally, I assist clients based in California and Oregon. I have to be

17

familiar with complicated and nuanced state law requirements for California,

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Oregon, and Washington, and leave entitlements pursuant to the Family

19

Medical Leave Act (“FMLA”).

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6)

Further, my client has approximately eight (8) different leave

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policies that can run concurrently with their Short Term Disability plan. I

22

adjudicate, manage, and assess all such leave policies as well as STD claims that

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may run concurrent with such policies.

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7)

With regard to leaves of absence, a claimant-employer will initiate

a leave of absence request. 8)

If a claimant-employee is entitled to leave under the FMLA or state

27

law, I evaluate whether the leave of absence the claimant-employee is

28

requesting is the correct or only leave to which they are entitled. I make this 2

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 2


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 3 of 8

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determination based on the facts and circumstances. If they are so entitled, I

2

advise the claimant-employee what leave(s) s/he is entitled to and will

3

adjudicate, assess, and manage that leave.

4

9)

Thereafter, I obtain and review medical support to make the

5

determination whether or not to approve the request for leave. Once the medical

6

support is obtained, I review it against federal and state regulations and analyze

7

whether the claimant-employee’s condition meets the legal definition of serious

8

health condition.

9

10)

Because this analysis can become complex, Matrix has resources

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that I can (but am not required to) utilize for more in depth clinical/medical

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opinions. For example, if I would like a recommendation or interpretation from

12

a clinician, I can ask a Nurse Case Manager to review the medical

13

documentation obtained and provide guidance on the medical issues. If this

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should occur, I consider and analyze the clinical information together with all

15

other information I have to decide whether to approve or deny the claim, ask for

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more information, recommend a second opinion to the employer, or take other

17

action.

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11)

If I determine that the medical certification is complete and

19

sufficient, that the documents show the claimant-employee, (or appropriate

20

family member, if applicable) had a serious health condition, and that the

21

employee was otherwise eligible for leave under state or federal law, I approve

22

the leave. I make this approval decision on my own without supervisory review,

23

discussion, or oversight.

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12)

In addition, I adjudicate, assess, and manage every leave that is

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available pursuant to the FMLA and/or under state law including but not

26

limited to bonding with a new child, military exigencies, in some states domestic

27

violence, parental school leave, organ donation, and currently, school closures

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3

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 3


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 4 of 8

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due to COVID. All such leaves are complex and nuanced and require me to

2

analyze the claim in light of the relevant federal and/or state statutes.

3

13)

If the claimant-employee requests a continuous leave of absence, I

4

manage the leave until it concludes. This includes maintaining communication

5

with the employee on leave and his or her employer to coordinate the anticipated

6

leave end date, assessing whether the claimant-employee may need an extension

7

of time based on medical support received and otherwise monitoring the leave.

8

14)

Additionally, as it pertains to leaves for serious health conditions, I

9

adjudicate, assess, and manage leave requests to determine if a second (or third)

10

opinion is warranted based on various factors related to the individual leave

11

request as set forth in the employee’s medical certification, such as if the

12

frequency and/or duration of anticipated need for leave seems inconsistent with

13

the nature of the condition for which the employee is seeking leave.

14

15)

The process of managing a leave of absence is more complicated if

15

an employee is requesting an intermittent leave, as I must closely track the

16

leave and identify any patterns that could be improper and request a

17

recertification, if the pattern of absences reported exceeds the frequency of leave

18

for which the employee has been approved, if there is a pattern of reporting

19

absences on specific days (every Friday) or there is some other evidence of

20

impropriety or reason to doubt the validity of the employee’s leave.

21

16)

I review claimant-employee files requesting intermittent absence

22

and leave claims on a daily basis to make decisions about how to proceed or if

23

additional efforts are warranted.

24

17)

Pursuant to the FMLA, an employer has limited tools to manage a

25

request for leave because FMLA is an entitlement- if the employee is an “eligible

26

employee” and has a qualifying reason to take leave (such as a serious health

27

condition or family member with one) he or she gets to take leave, provided a

28

certification of that FMLA need is established. STD claims often have a higher 4

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 4


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 5 of 8

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bar as to what constitutes a “disability” under the relevant plan. In practice,

2

that means an employee may be approved for FMLA leave based on that

3

certification, but to be approved by the AMS examiner for STD benefits, he or

4

she will often have to provide additional medical support.

5

18)

Concurrent with managing the request for leave, AMS examiners

6

are required to determine if the STD plan applies to the particular individual

7

claimant-employee’s claim so they can: (a) identify whether the employee is

8

eligible; (b) identify what it means to be “disabled,” and analyzing his/her own

9

interpretation against the facts of the claim; (c) identify whether the date of loss

10

fell within the eligibility period; (d) gather the medical support and assist the

11

employee in doing so; (e) review the medical information and using same to make

12

a determination as to whether the claim should be approved or denied; and (f)

13

decide whether the claim should be approved or denied.

14

19)

In analyzing a claim for STD benefits, in addition to medical records

15

and reports which I request from the claimant-employee’s HCP, I utilize IDC 10

16

and CPT codes which are codes used in the medical community that identify

17

which procedure or treatment the claimant-employee underwent. For example,

18

a CPT code could tell me whether a claimant-employee’s surgery was

19

lathroscopic or open. I review those codes independently and analyze against the

20

disability claim to ascertain whether the parameters (i.e. duration) are

21

reasonable.

22

20)

Additionally, I review medical records and review the doctor’s notes

23

to determine whether the claimant-employee’s injury or illness reaches the

24

threshold of disability. These determinations are made by me based on my

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training, experience and analysis of medical facts.

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21)

I consult the Official Disability Guidelines (“ODG”), guidelines

27

written by medical doctors and clinicians (not affiliated with Matrix) which

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assists in providing medical advice and information regarding expected duration 5

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 5


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 6 of 8

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of specific conditions, injuries, treatments, and illnesses. While ODG is a helpful

2

and informative tool to assist me and other AMS Examiners with claim

3

decisions, the decision to approve disability benefits, disapprove disability

4

benefits, or approve benefits for a longer or shorter duration is based on the facts

5

of the disability claim I am adjudicating.

6 7 8

22)

In addition to consulting the ODG, I can request additional

information from the claimant-employee, client-employer, or medical provider. 23)

Throughout the life of the disability claim, I also adjudicate whether

9

there is an ongoing need for leave and whether the disability continues to impact

10

claimant-employee’s ability to perform his/her job duties. Depending on the

11

complexity of the diagnosis, if there are multiple diagnoses or co-morbid

12

conditions, I can refer the claim to other specialties such as an Americans With

13

Disabilities Act (“ADA”) specialist. I am not required to do so and only do so in

14

incredibly complex cases. More often than not, I assess vocational capacity of a

15

claimant-employee independently based on my experience and knowledge.

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24)

Additionally, my authority to approve disability benefits is not

17

capped. I have unlimited authority with regard to benefit approval based on my

18

experience and tenure at Matrix.

19

25)

I received training on hire and continued to receive training on

20

Matrix best practices and legal developments, proper interpretations of various

21

provisions of the FMLA and state regulations and a host of other topics that are

22

relevant to appropriately exercising the discretion with which I am vested to

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adjudicate and manage leaves of absence and disability claims.. I follow blogs on

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topics that relate to my role at Matrix voluntarily. I also discuss issues in my

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field with my coworkers in an informal capacity. Additionally, Matrix

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supervisors and managers will distribute new Court cases which impact our

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adjudication of claims pursuant to the FMLA or requisite state leave laws so we

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can read the opinion and factor that into our analysis and adjudication of claims. 6

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 6


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 7 of 8

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26)

I am very autonomous in my role at Matrix. I am not required to

2

have my supervisor review any of my claims decisions to include denials. I only

3

go to supervisors or managers for something unusual or out of the ordinary.

4

However, I do this if I choose to or need to. I am not required to do so. Moreover,

5

if I or other employees need or want a ‘second set of eyes’ on a denial

6

recommendation, we discuss with a supervisor only after a complete analysis is

7

done and a recommendation to deny is rendered by the Matrix employee.

8

27)

Generally, I do not have supervisory oversight of my claims files and

9

handle entirely independently but for my communications with the client-

10

employer. Every two weeks, we have a pre-scheduled telephone call to discuss

11

various claims. However, the client-employer contacts me directly at least

12

weekly.

13

28)

While Matrix provides guidance in the form of training and relevant

14

training documents, Matrix does not have checklists regarding how to

15

adjudicate, assess, or manage claims. Rather, adjudicating, assessing, or

16

managing claims are within the full discretion of the examiner without

17

oversight; it is up to me to understand the issues and properly apply the law and

18

processes to the claim or leave of absence I am adjudicating.

19

29)

If I make a mistake in adjudicating leave requests or disability

20

claims that can be hugely detrimental to the claimant-employee, client-employer

21

or Matrix. For example, if I make an error, a claimant-employee may not receive

22

their pay for weeks. If I approve a leave that should have been denied, Matrix

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itself may lose business. If I deny a leave that should have been approved, the

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client-employer may be exposed to liability under FMLA, state leave laws, or

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employment discrimination laws.

26

I declare under penalty of perjury that the foregoing is true and correct.

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7

DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 7


Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 8 of 8

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Dated: October 1, 2020

__ Christopher Pheil

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DECLARATION OF CHRISTOPHER PHEIL IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-B, p. 8


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 1 of 13

1 2 3 4 5 6 7 8

Jessica S. High (Bar No. 030502) Aaron T. Winn (Pro Hac Vice) Maryam Maleki (Pro Hac Vice application pending) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 Fax: +1 619 744 2201 E-mail:jhigh@duanemorris.com atwinn@duanemorris.com mmaleki@duanemorris.com Attorneys for Defendant MATRIX ABSENCE MANAGEMENT, INC.

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 12 13 14

Tina Weeks, Michael McDonald & Cassandra Magdaleno, individually and on behalf of others similarly situated, Plaintiffs,

15

v.

16 17 18

Matrix Absence Management, Inc. an Arizona Company,

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT Judge: Hon. Steven P. Logan Action Filed: May 6, 2020

Defendant.

19

Case No. 2:20-cv-00884-PHX-SPL

20 21

I, Darcy Freese, declare as follows:

22

1)

I am a Director of Operations for Matrix Absence Management, Inc.

23

(“Matrix”), Defendant in this lawsuit. I have served in this capacity since May

24

2018.

25

2)

The following information is true and correct and based upon my

26

own personal knowledge, and if called upon as a witness, I could and would

27

competently testify thereto.

28 DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-c, p. 1


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 2 of 13

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3)

I started working for Matrix in June 2008 as a Leave of Absence

2

(“LOA”) Claims Examiner.

3

promoted to Manager and then Senior Manager of AMS Operations for Matrix’s

4

Portland, Oregon office. In May 2018, I was promoted to my current role—

5

Director of Operations for Matrix’s Portland Office.

6

4)

I later became an AMS Examiner before being

In my role as Senior Manager, my reporting chain included Matrix

7

employees who would adjudicate, assess, and manage both Leave of Absence

8

requests and Short Term Disability claims (“AMS examiner”) such as Amanda

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Wright. Margaret (“Maggie”) Berg was also in my reporting chain but only

10

managed Leave of Absence requests (“LOA examiner”). Further, Sandra Matos,

11

while not in my reporting chain, was also employed as an AMS examiner in

12

Matrix’s Santa Clara, CA office.

13

5)

During her employment, Ms. Berg served in multiple positions at

14

Matrix, starting as a Claims Assistant (a non-exempt role). She was promoted

15

to Claims Examiner I - LOA, then Claims Examiner II - LOA Examiner. Ms.

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Wright also served as Claims Assistant, and was ultimately promoted to AMS

17

examiner.

18

6)

Wright’s and Berg’s duties changed based on what client(s) they

19

oversaw and/or the type of claim(s) being handled.

20

adjudicating and administering disability claims is vastly different from

21

adjudicating and administering leave of absence requests.

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Leave of Absence Requests

23

7)

This is so because

AMS examiners and LOA examiners are responsible for managing

24

leaves of absence under federal and state leave of absence laws requested by

25

employees of an assigned client. For example, Berg had client-employers with

26

employees in California and Wright had client-employers with employees in

27

Washington. Thus, those responsible for managing leave of absence requests

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2

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 2


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 3 of 13

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must be familiar with the applicable state law requirements as well as federal

2

leave entitlements under the Family Medical Leave Act (“FMLA”).

3

8)

For example, Berg was responsible for knowing whether a leave of

4

absence during pregnancy was covered under the FMLA, the California Family

5

Rights Act (“CFRA”), or both. Moreover, Ms. Berg would be required to

6

determine if California Pregnancy Disability Leave (“PDL”) was applicable,

7

notify the client-employer accordingly if so, and begin to adjudicate and

8

administer that leave. Ms. Wright was responsible for knowing the Washington

9

Family and Medical Leave (“WAFML”) and the many other leaves available to

10 11

employees in the state of Washington. 9)

Lower level staff determine if the claimant-employee is eligible

12

under FMLA and/or state law. Thereafter, the LOA or AMS examiner obtains

13

and reviews medical records to determine whether the claimant-employee’s

14

condition qualifies as a “serious health condition.” The AMS or LOA examiner

15

then applies the requirements of relevant federal and/or state regulations to

16

either approve or deny leave of absence requests.

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10)

There were times when a request for a leave of absence would be far

18

more complex. For example, in determining whether an illness or injury

19

constituted a serious health condition, the illness/injury would in some instances

20

fall within a gray area. When this occurs, the AMS or LOA examiner can choose

21

(but is not required) to seek assistance from a Nurse Case Manager, who would

22

provide medical information and a recommendation regarding the condition at

23

issue. Once the AMS or LOA examiner receives the recommendation, s/he

24

determines whether or not to follow that recommendation.

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11)

To help AMS and LOA examiners properly evaluate claims and

26

correctly apply the applicable federal and state regulations, Matrix provides

27

AMS and LOA examiners with training regarding how federal and state law

28

define eligibility and how to properly evaluate and adjudicate claims. 3

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 3


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 4 of 13

12)

1

The AMS or LOA examiner then speaks directly with the claimant-

2

employee, explains that he or she would be responsible for managing the

3

request, explains the claims process, including the requirement that the

4

employee provide a supporting medical certification, and confirms the details of

5

the employee’s request. 13)

6

AMS or LOA examiners must also analyze the applicability of all

7

other relevant FMLA or state leave law requirements. For example, if a

8

claimant-employee requests leave to care for a family member, the AMS or LOA

9

examiner must determine whether the individual at issue actually qualifies as

10

a “family member” pursuant to the FMLA. This in some instances requires an

11

in-depth analysis of whether an “in loco parentis” relationship (as defined by the

12

FMLA) exists.

13

14)

As another example, if the claimant-employee provides a medical

14

certification, the AMS or LOA examiner must first determine whether it is a

15

“complete and sufficient certification” as defined by applicable FMLA and state

16

law. If the medical certification is determined not to be complete or sufficient,

17

then the claims examiner informs the claimant-employee in writing regarding

18

the deficiencies and asks the claimant-employee to supplement the information.

19

Once the claimant-employee has provided a “complete and sufficient”

20

certification, then the examiner must then determine whether the information

21

demonstrates the existence of a “serious health condition” under the applicable

22

law.

23

15)

If the AMS or LOA examiner determines that the medical

24

certification is complete and sufficient, that the documents show the claimant-

25

employee, or his or her family member for whom he sought care if applicable,

26

had a serious health condition, and that the employee was otherwise eligible for

27

leave under state or federal law, the examiner approves the leave. The AMS

28

4

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 4


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 5 of 13

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and LOA examiners make this approval decision on their own; they do not need

2

to discuss it with anyone else at Matrix or request ratification of their decision.

3

16)

AMS or LOA examiners are also expected to identify medical

4

certification documentation that appears suspicious or improper. For example,

5

if the certification is completed by a medical provider that is inconsistent or

6

inappropriate for the condition, or if the frequency and duration seem unusual

7

or excessive, a claimant-employee’s certification might require a second and/or

8

third opinion under the FMLA.

9

17)

If the AMS or LOA examiner concludes that there is a need for a

10

second or third opinion, the AMS or LOA examiner then manages

11

communications with relevant parties regarding the second and/or third

12

opinion. The AMS or LOA examiner is responsible for understanding the very

13

detailed parameters of how to obtain a second opinion, communicating with the

14

relevant stakeholders to do so, and most importantly, how to administer a leave

15

of absence governed by a second or third opinion, and not the certification the

16

claimant-employee submitted in connection with the initial request.

17 18 19

18)

After the AMS or LOA examiner decides to approve a leave of

absence, s/he is responsible for further assessing and managing the claim. 19)

Properly managing an approved claim also requires examiners to

20

recognize unusual patterns of absences (e.g., the employee reporting a need for

21

time off every Friday for 3 weeks in a row) or other oddities and to determine

22

whether it is appropriate to request a recertification.

23

20)

If an examiner determines that recertification is necessary, and the

24

claimant-employee does not provide the recertification, then the AMS or LOA

25

examiner is responsible for denying further leave to that individual. Pursuant

26

to the FMLA, a claimant-employee must provide a medical certification within

27

a specific amount of time. Often, claimant-employees will provide such

28

certifications after the due date, to wit, a “late certification.” 5

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 5


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 6 of 13

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21)

If the claimant-employee provides a “late certification,” the AMS or

2

LOA examiner must follow the complicated dictates of the FMLA regulations to

3

designate time accordingly and communicate with the employer-client to

4

determine whether employment action was taken on any dates for which there

5

had previously been no supporting certification.

6

22)

Additionally, if the client-employer believed an employee was

7

abusing the leave of absence process and had a belief the employee was engaged

8

in behavior or activities that called into question whether the leave was

9

necessary, the employer-client would contact the AMS or LOA examiner

10

directly. The AMS examiner would then interview the employer-client and

11

support the client in its investigation of the inconsistent conduct.

12

23)

If the claimant-employee requests a continuous leave of absence, the

13

AMS or LOA examiner is required to manage the leave throughout its entire

14

duration. This includes, but is not limited to, maintaining communication with

15

the employee on leave and his or her employer to coordinate the anticipated

16

leave end date, assess whether the claimant-employee may need an extension of

17

time, and otherwise monitoring the leave.

18

24)

Additionally, AMS and LOA examiners must be familiar with the

19

details of their client-employer’s policies regarding a company leave of absence

20

such that s/he can manage and administer that leave in compliance with those

21

policies.

22

Short Term Disability Claims

23

25)

In addition, as an AMS examiner, Ms. Wright adjudicated, assessed,

24

and managed Short Term Disability (“STD”) claims, which are claims for paid

25

benefits under the relevant client-employer’s plan, provided the AMS examiner

26

concludes that the claimant has presented adequate medical support

27

establishing that he or she has a qualifying “disability,” as that term is defined

28

by the plan document.

6

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 6


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 7 of 13

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26)

Despite the wholly inaccurate language in the declarations of

2

Wright and Berg, the percentage of benefits payable if an STD claim is approved

3

is not always a set amount. Rather, many employers select plan benefit levels

4

that can vary depending on factors such as tenure and type of position, and some

5

employers have different STD plans for certain classes of employees, like a

6

separate plan for union members and another for those who are on corporate

7

staff or salaried.

8

27)

AMS examiners are required to determine which plan applies to the

9

particular individual claimant-employee’s claim so they can: (a) identify

10

whether the employee is eligible; (b) identify what it means to be “disabled,” and

11

analyzing his/her own interpretation against the facts of the claim; (c) identify

12

whether the date of loss fell within the eligibility period (as, often, there is a

13

robust pre-existing condition provision in client-employer STD plans that

14

renders some employees ineligible for benefits); (d) gather the medical support

15

and assist the employee in doing so; (e) review the medical information and

16

using same to make a determination as to whether the claim should be approved

17

or denied; and (f) decide whether the claim should be approved or denied.

18

28)

Unlike the FMLA, STD plans often have a higher threshold for what

19

constitutes a “disability.” The determination must be based on clear, objective

20

medical evidence. What constitutes sufficient clear and objective medical

21

support is defined by the plan/contract. Thus, the AMS examiner requests a

22

completed short-term disability certification be obtained by the claimant-

23

employee’s and/or his or her medical provider and reviews the certification to

24

determine whether or not it is sufficient to meet the definition of “disabled”

25

pursuant to the client-employer’s plan.

26

29)

If

the

certification

is

sufficient,

the

AMS

examiner

will

27

independently approve the claim for paid leave benefits under the STD plan and

28

calculate the amount of benefits to which the employee is entitled, and the 7

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 7


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 8 of 13

1

duration for which such benefits should be paid. If the AMS examiner

2

determines that the certification is not sufficient and s/he needs additional

3

information to render a determination on the claim, s/he will request additional

4

medical support, such as office visit notes or other medical records to support

5

the STD claim.

6

30)

Often, the AMS examiner will receive and review the medical

7

information and approve a claimant-employee’s STD claim in part (a partial

8

approval) if the AMS examiner determines that the injury/illness and medical

9

records do not support approval of the claim for the entire duration of potential

10

benefits available under the relevant plan. 31)

11

In making that determination, AMS examiners review treatments

12

notes, medication, and information regarding the claimant-employee’s

13

occupation (including claimant-employee’s job description). If the claimant-

14

employee seeks approval for the entire claim, the AMS examiner will request

15

additional medical information to determine if an extension of benefits for the

16

duration of benefits available under the relevant STD plan document is

17

supported. 32)

18

Further, each time a claimant-employee is seen by his or her

19

healthcare provider treating him or her for the condition for which STD benefits

20

have been sought, the AMS examiner requests additional medical records to

21

determine if the claimant continues to be “disabled” under the relevant STD

22

plan.

23

33)

In

analyzing

medical

information,

certain

complexities

in

24

connection with an STD claim may warrant that an AMS examiner utilize

25

internal nurses and other resources as appropriate for consultation purposes,

26

although the examiner is not required to do so. For example, if a claimant-

27

employee has heart disease which constitutes the basis upon which the AMS

28

examiner initially approved the claim, but develops another condition that 8

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 8


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 9 of 13

1

delays the claimant-employee’s previously understood return to work date, or

2

for which the claimant-employee is seeking additional benefits, the AMS

3

examiner can utilize a Nurse Case Manager to provide clinical or other medical

4

recommendations.

5

34)

The AMS examiner obtains the recommendation(s) from those

6

clinical resources and then decides whether to apply those recommendation(s),

7

based on his/her knowledge of relevant law, the client’s STD plan language, the

8

medical support and other information the AMS examiner elicited from the

9

claimant-employee and others in connection with his or her claim management

10

responsibilities.

11

35)

The AMS examiner can disagree with medical personnel and

12

approve or deny the claim based on his/her knowledge of the claim, contract, and

13

medical information. The denial must be explained in significant detail. Thus,

14

the AMS examiner, in compliance with ERISA and Department of Labor

15

Guidelines, prepares a non-form adverse benefit (denial) decision letter (if

16

denied) which discusses the claim, the applicable law, the evidence reviewed,

17

and the analysis of how all of those factors resulted in a denial.

18

36)

STD adjudication, assessment, and management also requires the

19

AMS examiner to determine whether there are offsets and, if so, calculate their

20

amount. If the employee receives other state benefits or income in respect of the

21

disability on which the STD claim is based, that benefit or income will likely

22

offset the amount paid under the STD plan.

23

37)

This requires managing the claim (obtaining additional medical

24

information to extend the benefit period, if appropriate, or terminate benefits if

25

not) and if an individual exhausts STD entitlement, the AMS examiners are

26

responsible for determiningif a claim should be transitioned to Long-Term

27

Disability (“LTD”) and, if so, managing that transition.

28

9

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 9


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 10 of 13

1

38)

To the extent an STD claim needs to transition to a LTD claim, an

2

AMS examiner must independently anticipate that potential need while the

3

STD claim is being adjudicated, assessed, and managed. For example, through

4

his/her review of the medical records the AMS examiner must recognize if the

5

claimant-employee has co-morbid conditions or the claimant-employee’s

6

condition is worsening (making a timely return to work unlikely). This analysis

7

triggers the AMS examiner’s responsibility to transition the claim to LTD, a

8

process that varies based on whether Matrix manages the LTD plan (based on

9

client-employer requirements and/or job title) or if the client has another third

10 11

party vendor who does so. 39)

As the processes are varied, the AMS examiner must be familiar

12

with those processes to ensure no delay in continued payment of the claim.

13

Additionally, if the client-employer LTD plan is managed by another company,

14

the AMS examiner must communicate with the LTD provider to accomplish the

15

transition so that when the maximum STD benefit is reached, the claimant-

16

employee has an LTD claim underway and can avoid a benefits.

17

40)

Client-employers directly and frequently interface with AMS and

18

LOA examiners such as Ms. Wright and Ms. Berg, since the client-employer

19

must manage the employee’s absence internally. An AMS or LOA examiner is

20

the main point of contact for the client-employer to provide status of the claim

21

because the examiner is handling contact with the claimant-employee, medical

22

providers, and analyzing the claim. For example, Matrix eventually terminated

23

Ms. Wright’s employment because she repeatedly failed to respond to the client-

24

employer’s requests and the client-employer became so frustrated with her non-

25

responsiveness that they asked that Wright no longer handle any of their leave

26

claims.

27 28

41)

In their declarations, Plaintiffs Wright and Berg contend that

Matrix has “guidelines” which are used to adjudicate claims “embedded” within 10

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 10


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 11 of 13

1

their “computer system.” This is simply not so. Matrix does not have

2

guidelines/criteria embedded in its computer software regarding how to

3

adjudicate, assess, or manage claims. Rather, adjudicating, assessing, or

4

managing claims are within the full discretion of the AMS or LOA examiner

5

without oversight.

6

42)

Matrix provided training to its employees, but did and does not have

7

“strict guidelines” to perform assessment, adjudication, or management of

8

claims regardless of line of business. AMS or LOA examiners are provided

9

training and/or resources on the requirements of the FMLA and/or state leave

10

laws as well as ERISA and are vested with the discretion to make decisions

11

about whether the specific facts and circumstances of a request for a leave of

12

absence and/or STD disability claim meet those legal criteria or the

13

requirements of the relevant policies and/or plan documents.

14

43)

For example, Matrix notifies AMS and LOA examiners about new

15

court decisions or regulations that impact FMLA or other applicable state laws

16

regarding leave claims.

17

understanding of with these changes so that they can properly apply the law

18

when determining whether to approve or deny a claim.

19

44)

And Matrix expects its examiners to have an

AMS and LOA examiners, including Ms. Berg and Ms. Wright, did

20

not share information or documents with supervisors, managers, or staff unless

21

it was necessary or unless they chose to do so. Matrix expects its examiners to

22

independently resolve the disability claims and/or leave of absence requests they

23

are assigned to manage.

24

45)

Further, Plaintiffs Wright and Berg claim in their declarations that

25

they are not permitted to calculate an amount due on a claim and that it is

26

essentially “a set amount.” However, this is incorrect on its face. AMS and LOA

27

examiners are not required to calculate an “amount due on a claim” for federal

28

or state leaves of absence because these are unpaid leaves. Thus, there could not 11

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 11


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 12 of 13

1

be any “amount due on a claim.” As to STD claims, AMS examiners

2

independently approve benefits within their dollar authority.

3

46)

While, as with any corporate employer, all employees are required

4

to follow Matrix’s company policies such as attendance, anti-discrimination,

5

anti-sexual harassment, and adhere to the requirements of their positions, these

6

policies are unrelated to the claims adjudication process, which is driven by

7

client-employer leave of absence policies and/or applicable federal/state

8

regulation.

9

47)

AMS or LOA examiners exclusively deal directly with all parties

10

involved in adjudicating and assessing a request for leave, including the client-

11

employer contact(s), the client-employee, and relevant medical providers,

12

documents such communications in the Matrix computer system, and uploads

13

medical support for the AMS examiner’s review and final determination. The

14

AMS or LOA examiner’s conclusions are also documented in the system.

15

48)

Matrix provides resources that AMS or LOA examiners could, but

16

were not required to, consult in the course of their work. However, Matrix never

17

provided guidelines for how claims should be adjudicated nor are such guidelines

18

“embedded” in the computer system.

19

49)

Except as described herein, Matrix did not and does not consult

20

outside experts to determine entitlements to leave of absence claims and/or

21

disability benefits. This is precisely why it hired individuals like Berg and

22

Wright. Nor do AMS or LOA examiners assign a “percentage of fault to parties”

23

or “negotiate claims,” as neither of these tasks are related to a client-employee’s

24

request for a federal/state mandated leave of absence or short term disability

25

claim.

26

50)

AMS and LOA examiners have significant authority and autonomy

27

to make decisions related to adjudicating, assessing, and managing a claimant-

28

employee’s request for leaves of absence and/or disability claims. They are 12

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 12


Case 2:20-cv-00884-SPL Document 34-8 Filed 10/01/20 Page 13 of 13

1

responsible for all decision-making on leave of absence or disability benefit

2

decisions from the time a leave/claim is initiated until closure. To that end, they

3

independently and autonomously analyze the request for leave or disability

4

benefits claim, make a decision about its status, and advise their supervisors,

5

the employee and the client of his/her decision.

6

I declare under penalty of perjury that the foregoing is true and correct.

7 8

Dated: October 1, 2020

__ Darcy Freese

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

13

DECLARATION OF DARCY FREESE IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 7, p. 13


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 1 of 7

1 2 3 4 5 6 7 8

Jessica S. High (Bar No. 030502) Aaron T. Winn (Pro Hac Vice) Maryam Maleki (Pro Hac Vice application pending) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 Fax: +1 619 744 2201 E-mail:jhigh@duanemorris.com atwinn@duanemorris.com mmaleki@duanemorris.com Attorneys for Defendant MATRIX ABSENCE MANAGEMENT, INC.

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11 12 13 14

Tina Weeks, Michael McDonald & Cassandra Magdaleno, individually and on behalf of others similarly situated, Plaintiffs,

15 16 17 18

v. Matrix Absence Management, Inc. an Arizona Company,

Case No. 2:20-cv-00884-PHX-SPL DECLARATION OF JACQUELIN DENTON IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Defendant.

19 20

Judge:

21

Action Filed:

Hon. Steven P. Logan May 6, 2020

22 23

I, Jacquelin Denton, declare as follows:

24

1)

The following information is true and correct and based upon my own

25

personal knowledge, and if called upon as a witness, I could and would competently

26

testify thereto.

27

2)

28

I am a Senior Claims Examiner - LOA [Leave of Absence] (“LOA

examiner”) for Matrix Absence Management, Inc. (“Matrix”), Defendant in this lawsuit. DECLARATION OF JACQUELIN DENTON IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 1


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 2 of 7

1

I also have “super user” access to the computerized system Matrix LOA and AMS

2

examiners use to administer leaves of absence , which means that I have far ranging

3

independence and autonomy. For example, I am authorized to update company policies

4

in the leave of absence system for clients who have adopted such policies.

5 6 7

3)

I have served as a Senior Claims Examiner for LOA for five to six years.

I have been granted “super user access” for approximately the last three years.

4)

Prior to serving in my current role, I was employed with Matrix as an

8

Integrated Examiner which job title was phased out in approximately 2014. I have

9

been employed by Matrix in its Portland, Oregon office for eleven and a half years.

10

5)

LOA examiners are responsible for managing leaves of absence under

11

federal and state leave of absence laws initiated by claimant-employees of an assigned

12

client-employer. As an LOA examiner, I am currently working with two, very large,

13

assigned clients. These clients have employees in every state in the United States. One

14

client, an airline, has seven unions each with its own Collective Bargaining Agreement

15

(“CBAs”).

16

6)

The Unions themselves are categorized by job title. For example, pilots

17

belong to a specific union while flight attendants belong to another and mechanics

18

belong to another all of which have different and unique requirements with which I

19

have to be familiar.

20

7)

Each CBA has unique rules and requirements for its constituents that I

21

must be able to reference and interpret in light of the facts of the particular leave of

22

absence request I am adjudicating, assessing, and/or managing in addition to federal

23

and state leave of absence laws.

24

8)

For example, as noted, pilots belong to their own union, may be entitled

25

to leave under the Family and Medical Leave Act (“FMLA”) as an employee, state leave

26

law as an employee, and any company-provided leaves of absence. This is in addition

27

to any entitlements they may have pursuant to the CBA.

28

2

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 2


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 3 of 7

1

9)

Thus, I have to be knowledgeable about and be able to analyze

2

complicated and nuanced state law requirements across all states, CBAs, and leave

3

entitlements pursuant to the FMLA for every request for leave that I adjudicate,

4

assess, and/or manage. For example, a flight attendant who resides in California and

5

needs leave for her grandparent may not be eligible for leave in California but might

6

be eligible for leave in Oregon due to her position and the allowances under the law.

7

10)

Additionally, the client-employers I oversee have many company policies

8

providing personal leaves of absence that I must be able to determine apply based on

9

the facts of the leave of absence request I am adjudicating, assessing, and managing.

10

This includes, but is not limited to determining whether a claimant-employee is

11

entitled to leaves under federal and/or state laws, as well as a company policy personal

12

leave of absence. Alternatively, if I determine that the specific employee’s request for

13

leave does not qualify for state or federal leave, I must then determine whether a

14

company policy applies. As an alternative to that, under some circumstances, I have to

15

determine if an employee is entitled to a company leave of absence after he or she has

16

exhausted applicable federal or state leave entitlement.

17

11)

Moreover, when claimant-employees initiate a request for leave, I speak

18

directly with him or her to explain that I will be managing the request and explain the

19

process. When claimant-employees initiate a claim, they are often not asking for what

20

they really need. They are sick or injured and scared. Thus, they may be eligible for a

21

more fulsome or longer leave. I make this determination based on the facts and

22

circumstances. If they are so entitled, I advise the claimant-employee what leave(s)

23

s/he is entitled to and will adjudicate, assess, and manage that leave.

24

12)

If a claimant-employee is entitled to leave under the FMLA or state law,

25

I must obtain medical certification from a Health Care Provider. Once the medical

26

support is obtained, I review it against federal and state regulations and analyze

27

whether the claimant-employee’s condition meets the legal and/or clinical definition of

28

serious health condition.

3

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 3


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 4 of 7

1

13)

Because this analysis can become complex, Matrix has resources that I

2

can (but am not required to) utilize for more in depth clinical/medical opinions. For

3

example, if I would like a recommendation or interpretation from a clinician, I can ask

4

a Nurse Case Manager to review the file and provide guidance on the medical situation.

5

On receipt of such guidance, I determine the appropriate next steps based on my

6

understanding of state and/or federal law, company policy or the CBA being

7

administered.

8

14)

I must also analyze the applicability of all other relevant FMLA or state

9

leave law requirements. For example, if a claimant-employee requests leave to care for

10

a family member, I must determine whether the individual at issue actually qualifies

11

as a “family member” pursuant to the FMLA. This in some instances requires an in-

12

depth analysis of whether an “in loco parentis” relationship (as defined by the FMLA)

13

exists which requires consideration of many circumstances between the claimant-

14

employee and the person(s) for whom care leave is sought.

15

15)

If I determine that the medical certification is complete and sufficient

16

based on my analysis per state and/or federal law requirements, that the documents

17

show the claimant-employee, (or appropriate family member, if applicable) had a

18

serious health condition, and that the employee was otherwise eligible for leave under

19

state or federal law, I approve the leave. I make this approval decision on my own

20

without supervisory review, discussion, or oversight.

21

16)

The process of managing is even more complicated if an employee is

22

requesting an intermittent leave as I must closely track the leave, analyze for excess

23

usage, identify any patterns of usage that could be improper, and otherwise continually

24

assess the leave .

25

17)

If the claimant-employee requests a continuous leave of absence, I

26

manage the leave until it concludes. This includes maintaining communication with

27

the employee on leave and his or her employer to coordinate the anticipated leave end

28

4

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 4


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 5 of 7

1

date, assessing whether the claimant-employee may need an extension of time based

2

on medical records or other relevant documents, and otherwise monitoring the leave.

3

18)

Additionally, I adjudicate, assess, and manage FMLA leave requests to

4

determine if a second opinion is necessary based on red flags such as if the frequency

5

and duration authorized by the provider seem unusual or excessive, the provider is

6

related to the claimant-employee, the provider is in the wrong specialty, and other

7

factors which indicate a need for a second (or third) opinion under the FMLA.

8

19)

Prior to recommending a second and, if necessary, a third opinion, I

9

review all of the information to ensure that there is not a reasonable explanation for

10

what may seem out of the ordinary. For example, in reviewing a claim for intermittent

11

leave which seems to have high parameters, on review I may find that this claimant-

12

employee just returned to work from disability leave due to breast cancer and, thus,

13

the parameters are explicable and reasonable.

14

20)

If I conclude that there is a need for a second or third opinion, I advise

15

client-employer, and if the client approves me to proceed, the claimant-employee. I

16

manage the entire process to completion and communicate the results of the second

17

opinion process to all parties. This includes that I work with the outside vendor

18

providing the second (or third) opinion, coordinate with the claimant-employee to

19

schedule the appointment and advise of the process, and, for a third opinion, I

20

coordinate with all relevant stakeholders to select a mutually agreeable medical

21

provider.

22

21)

Additionally, as an LOA examiner, I must be aware of all possibilities

23

even if there is no applicable leave for which the claimant-employee is eligible. For

24

example, if FMLA and/or state leave law do not apply and there is no applicable policy,

25

the claimant-employee may be entitled to a reasonable accommodation under the ADA

26

for the claimant-employee’s own medical condition. I am responsible for recognizing

27

this and proposing it to the client-employer based on my analysis.

28

5

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 5


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 6 of 7

1

22)

Since I (and LOA examiners) must have extensive legal knowledge and

2

the ability to analyze leave of absence requests against the law and applicable contracts

3

(CBAs) and employer-provided policies, Matrix provides six weeks of training on hire.

4

23)

My position as an LOA examiner requires critical thinking, the ability to

5

work independently, the ability to make decisions regarding approving or denying

6

leaves or disability to which claimant-employees are legally or contractually entitled

7

with minimal oversight.

8

24)

I am very independent in my role at Matrix. I am responsible for making

9

every decision regarding a claim from start to finish. I rarely ask management for help

10

in regards to approving and denying claims. The only time I ask management for

11

assistance is if the parameters of a particular request for FMLA or other state leave

12

are so high that I feel uncomfortable approving or denying a claim on my own. Even

13

then, I speak with management as a preventative measure and second set of eyes on

14

my recommendation and conclusion, not as a requirement.

15

25)

In fact, Matrix supervisors provide all employees minimal supervision

16

even if someone is new, as new employees are assigned an experienced mentor who

17

assists them in learning, in addition to the training regarding federal and state law

18

provided by Matrix. Also supervisors and other employees at Matrix are always willing

19

to assist when asked to do so.

20

26)

LOA examiners exclusively deal directly with all parties involved in

21

adjudicating and assessing a request for leave, including the client-employer contact(s),

22

the client-employee, and relevant medical providers. My clients contact me directly via

23

email on a daily basis without including any other Matrix employees in the messages.

24

Additionally, my clients and I hold monthly meetings to discuss all of their employees

25

that are on a leave of absence.

26 27 28

27)

I know that the work that I do for Matrix is extremely impactful for the

company itself and the employee-claimants that submit claims. What Matrix does is 6

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

Ex. 3-D, p. 6


Case 2:20-cv-00884-SPL Document 34-9 Filed 10/01/20 Page 7 of 7

1

help people who are scared, sick, and or injured and need help navigating complicated

2

processes and obtain leave to which they are rightfully entitled.

3

28)

Additionally any mistakes could have huge implications to Matrix and

4

client-employers. For example, we are dealing with extremely sensitive private health

5

information that is governed by employee privacy protections under state law and the

6

disclosure and use of such information is subject to rigorous standards that such

7

information only be used for the limited purpose of evaluating, for example, a request

8

for FMLA.

9

29)

In the event that I or other LOA examiners who worked with client-

10

employers that have CBAs in place make a mistake, this could expose the client-

11

employer to a charge with the National Labor Relations Board. Accordingly, a mistake

12

in this situation would hugely impact the business operations of Matrix and its client

13

employer. Mistakes for clients even those who do not have CBAs are hugely impactful

14

as well, as this could expose the client to legal proceedings, including litigation or an

15

investigation by the Department of Labor.

16 17 18

I declare under penalty of perjury that the foregoing is true and correct. Dated: October 1, 2020

__ Jacquelin Denton

19 20 21 22 23 24 25 26 27 28

7

DECLARATION OF JACQUELIN DENTON I IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT

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Jessica S. High (Bar No. 030502) Aaron T. Winn (Pro Hac Vice) Maryam Maleki (Pro Hac Vice application pending) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 Fax: +1 619 744 2201 E-mail:jhigh@duanemorris.com atwinn@duanemorris.com mmaleki@duanemorris.com Attorneys for Defendant MATRIX ABSENCE MANAGEMENT, INC. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Tina Weeks, Michael McDonald & Cassandra Magdaleno, individually and on behalf of others similarly situated, Plaintiffs, v. Matrix Absence Management, Inc., an Arizona Company, Defendant.

Case No. 2:20-cv-00884-PHX-SPL DECLARATION OF RACHEL RONFELDT IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT Judge: Action Filed:

Hon. Steven P. Logan May 6, 2020

I, Rachel Ronfeldt, declare as follows: 1)

The following information is true and correct and based upon my

own personal knowledge, and if called upon as a witness, I could and would competently testify thereto. 2)

Since 2014, I have served as the Director of Integrated Claims for

Matrix Absence Management, Inc., the defendant in this lawsuit.

I am

responsible for leading Matrix’s long-term disability operations in its Phoenix,

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Arizona office. As a Director, I am very familiar with Matrix’s business and the services it provides to clients. 3)

Matrix adjudicates and manages requests for leaves of absence and

claims for disability benefits under short-term and long-term disability insurance and self-funded plans and policies. Matrix provides its clients with policies and plans they can revise or implement as is. Additionally, Matrix adjudicates disability claims based on the client’s own policies or under a policy issued by Matrix’s affiliate, Reliance Standard Life Insurance Company (“RSL”), each with its own specific terms and benefits. 4)

In order to address the enormity of the task of managing such

programs for so many clients, Matrix employs staff to adjudicate and assess claims in accordance with legal requirements and the policies of its clientemployers. 5)

To that end, Matrix claims staff are separated by line of business as

follows: Leave of Absence (“LOA”), Short Term Disability (“STD”), Long Term Disability (“LTD”), and Absence Management Specialist (“AMS”). 6)

When a client’s claimant-employee initiates an LTD claim through

Matrix, Matrix assigns the claim to an LTD Examiner. To properly adjudicate and manage the claim, LTD Examiners must have a thorough familiarity with, and understanding of, the terms of the relevant LTD policy or policies issued by the applicable client-employer, as well as the legal rules and regulations applicable to the claims adjudication process. The LTD Examiner must then evaluate the claim against the relevant policies and applicable legal rules and regulations. Depending upon the nature of the claim, this may require the LTD Examiner to assess and apply ERISA regulations, Social Security Disability regulations, and other applicable state and federal laws. 7)

The first assessment an LTD Examiner must make when evaluating

a claim is whether the claimant is eligible for LTD benefits under the relevant

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plan. To make this adjudication, the examiner must first review and apply the plan’s specific eligibility requirements. This analysis sometimes requires contacting the client to gather more information. For example, if the relevant plan or policy required the claimant to purchase the benefits at issue, the LTD Examiner may need to interview the client and review documents regarding the timing and details of the purchased benefits. In other cases, such as when the claimant previously submitted a STD claim, it may be necessary for the LTD Examiner to review any medical support submitted in connection with the STD claim to determine the “date of loss” (the first day the claimant asserts that the “disability” commenced), which would impact the analysis of whether the claimant’s claim was covered by the terms of the applicable LTD policy or plan. 8)

LTD Examiners make this preliminary eligibility determination on

their own. 9)

If an LTD Examiner concludes that the claimant is “eligible” for

seeking benefits under the applicable policy or plan, then the examiner proceeds to administer the claim. This process usually begins with a call to the claimant. During that call, the LTD Examiner interviews the claimant to gather specific information about the nature of the disability and how it impacts job performance, whether the claimant is (or has been) seeking medical treatments for the condition, and the contact information for medical providers who are treating the claimant.

The LTD Examiner will also discuss the need for

supporting medical documentation, how to best gather that documentation, the claim’s evaluation process, and the deadline for Matrix to receive supporting medical documentation. 10)

When the applicable policy includes a provision excluding coverage

for pre-existing conditions (i.e., conditions that arose prior to the effective date of the relevant policy or plan), the LTD examiner must also perform a preexisting condition review or Pre-Ex Review. A Pre-Ex Review requires an LTD

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examiner to interview the claimant and obtain a statement from the claimant regarding his or her disabling condition(s), when treatment was obtained, and the provider(s) who administered that treatment. Often, this process is very time and labor intensive, requiring the LTD Examiner to analyze, interpret, and apply medical documentation from pharmacies, physicians, therapists, and other medical professionals and facilities. Once the LTD Examiner has the prior medical documentation, he or she must then determine whether the disabling condition for which the claimant seeks benefits is a pre-existing condition under the terms of the relevant LTD plan or policy document. To help with this pre-existing condition adjudication, LTD Examiners may consult internal medical resources, initiate a “roundtable review” with Matrix’s Medical Director or internal Nurse Case Managers, send the medical records to an outside physician, and/or interview medical professionals. 11)

If the LTD examiner finds that a claim is barred by a pre-existing

condition, the LTD examiner must draft and issue an adverse benefit (denial) decision. Given ERISA’s rules and regulations, adverse benefit (denial) decision letters are not templates or forms, they must be detailed and fact-specific. Thus, when preparing an adverse benefit decision, an LTD Examiner is expected to identify the relevant LTD policy or plan provisions, describe the investigation conducted, identify and analyze medical documentation and communications with medical professionals that support the denial, and summarize other information relevant to the decision. This cannot be accomplished using form letters or template language. 12)

If a claim meets the preliminary eligibility requirements, the LTD

examiner then determines entitlement to benefits on the merits. This requires a comprehensive analysis by the LTD examiner as to whether, in light of the claimant-employee’s job functions, his or her condition and medical support

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constitute sufficient evidence for “disability” as that term is defined by law and the relevant plan/policy. 13)

To make this determination, an LTD examiner must first obtain and

review all relevant medical documentation. When assessing the sufficiency and ramifications of the medical documentation, an LTD examiner may consult with internal and external resources, such as those outlined above as part of the PreEx Review. For example, an LTD examiner could request a peer review—i.e., having an outside consultant with a specialty in the relevant condition opine as to whether that individual had functional or other work capacity. An LTD examiner also has the discretion to send a claimant to an Independent Medical Exam (“IME”) to provide an assessment of functional capability or work capacity. 14)

These assessments are fact-intensive and can become very complex.

For example, some cases involve multiple co-morbid conditions that the claimant-employee contends impact upon his or her ability to perform job functions. The LTD examiner must then delve into each of these conditions, analyze the interplay between them, and determine the ultimate work capacity, if any, of the claimant. Because each claim involves a unique set of circumstances, an LTD examiner is expected to use a significant level of discretion to determine how to best adjudicate these claims, when and how to best utilize internal or external medical resources, and how to interact with the claimant. 15)

After assembling all of the medical support, conducting any relevant

interviews, reviewing the documentation and records, and analyzing the relevant terms and conditions of the LTD policy, the LTD examiner must decide to either approve or deny the claim. 16)

If an LTD examiner recommends paying an amount that exceeds

the limits of their specific monetary authority, a supervisor must approve the

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LTD examiner’s decision. 17)

When an LTD examiner denies a claim, he or she must prepare and

issue an adverse benefit (denial) decision in accordance with the requirements of ERISA. As described above, the adverse benefit decision letters must be detailed and fact-specific; these are not form letters. In addition to the analysis described above, a denial due to a determination that the claimant is not “disabled” under the definition of the plan or policy requires the examiner to analyze, synthesize, and explain in plain language the claimant’s medical condition as supported by the records, the claimant’s job duties, and how those facts relate to the terms of the policy . Because denying a claim has significant ramifications, Matrix requires a “second set of eyes” on adverse benefit decisions. In practice, this generally means that the LTD Examiner’s supervisor will review the LTD examiner’s decision to deny benefits. 18)

When an LTD examiner approves a claim, he or she must then

manage the claim on an ongoing basis. Claim management tasks are numerous and varied. 19)

For example, after approving a claim, an LTD examiner must

monitor the claimant’s condition, evaluate requests to extend claims, and seek solutions to identify possible return-to-work opportunities. 20)

LTD plans and policies frequently distinguish between disability

from the claimant’s “own occupation” (disabled from the job the claimant held at the time he or she sustained the disability at issue) and disability from “any occupation” (disabled from performing any position in the general economy). Thus, if a claimant-employee has exhausted his or her “own occupation” benefit entitlement and the relevant plan provides for the possibility of benefits under the “any occupation” provisions of the plan, the LTD Examiner must engage in a rigorous process to determine whether the claimant is incapable of performing any occupation. This requires the LTD examiner to assess both the medical

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condition and the claimant’s vocational capability—i.e., the claimant’s skills, education, training, and experience to perform another occupation. To make this adjudication, the LTD Examiner, in addition to interviewing the claimant, may interview and consult vocational rehabilitation experts. An LTD Examiner must use this information to determine whether the claimant meets the plan’s specific definition of “disability.” As with the initial decision to approve benefits under the LTD plan or policy, an LTD Examiner can consult internal and external resources when managing claims. 21)

If the LTD examiner determines, after completing the “any

occupation” analysis, that the claimant is disabled from “any occupation,” the examiner approves benefits under the terms of the relevant plan document. If the LTD Examiner determines that the claimant is not disabled from “any occupation,” the examiner would render an adverse benefit (denial) decision as detailed above. 22)

Collette Monique Cokley, Mary Floyd, Kimberly Green, and

Jennifer Hassell were each employed in Matrix’s LTD claims department. While Tina Weeks (“Stable and Mature examiner”) was also in Matrix’s LTD claims department, she handled a very specialized area of LTD known as “Stable and Mature” as discussed below. 23)

Plaintiff Mary Floyd was a Senior LTD Claims Examiner. Floyd

managed claims for disability benefits under LTD insurance policies issued to clients who purchased such policies from RSL. 24)

Collette “Monique” Cokley was an LTD examiner charged with

administering claims for benefits under RSL LTD policies for various Matrix clients. Ms. Cokley was in my reporting chain until early 2018. 25)

Tina Weeks had a different job from that of Ms. Cokley, Ms. Floyd

and Ms. Hassell. Specifically, Ms. Weeks was assigned to a particular client as

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a Stable and Mature examiner. Her duties in this job function are better understood in contrast to the general duties of an LTD Examiner. 26)

When LTD Examiners conclude that a claimant’s condition is

stable—no likely increase in work function—the claim is transferred to the Stable and Mature LTD claims unit. The Stable and Mature examiners must continuously ascertain a continuing need for benefits in addition to confirming whether the condition is the same, worsening, or improving. 27)

Weeks was dedicated to managing hundreds of claims for a single

client-employer after the LTD Examiner assigned to that client made the initial decision to approve LTD benefits for a particular claimant under that client employer’s self-funded LTD plan. 28)

Ms. Weeks was only one of two individuals assigned to the Stable

and Mature LTD Unit during her tenure at Matrix. She was the sole “Stable and Mature” LTD Examiner for the client-employer described above. Her job required her to manage claims previously approved by an LTD Examiner, which primarily involved ascertaining the claimant’s continued entitlement to benefits under the relevant client’s self-funded LTD plan. A Stable and Mature examiner must continually request updated medical information to see if the impairment(s) are improving, staying the same, or worsening, and compare that new documentary evidence with what the plan requires to ascertain whether or not that individual remains “disabled” as defined by the LTD Plan. Further, the Stable and Mature LTD examiner must also engage in a financial and vocational investigation, communicating with the claimant to ascertain if he or she has any other sources of income, requiring him or her to complete a questionnaire under oath, and obtaining income tax filings to identify other sources of income. 29)

Accordingly, the Stable and Mature examiner communicates with

the claimant-employee and his/her medical provider(s) to obtain additional medical support, medical records, and interviews the claimant-employee so that

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the Stable and Mature examiner may reach a decision as to whether or not the claimant is entitled to continued benefits. 30)

As part of this process, Weeks was required to competently and

diligently perform investigative skills. She had the authority to request that the client authorize external resources if there was reason to believe the claimant was employed elsewhere or receiving income during the timeframe for which they claimed to be disabled and incapable of doing so. If she ascertained the possibility of the claimant’s performing work functions by reviewing medical support she obtained in connection with the review she was charged with completing, she could ask her client for authority to send the claimant to an independent medical exam. Ms. Weeks had the authority and discretion to recommend these efforts. While she did not have the authority to hire them, that was because the client-employer would be paying the associated costs and thus reserved such authority to itself. 31)

Both LTD examiners and Stable and Mature examiners have

significant contact with client-employers. In Ms. Weeks’ case, the clientemployer would call her almost daily with probing questions. 32)

If Ms. Weeks determined based on the results of her investigation

that the claimant-employee was no longer eligible to receive benefits, it was her job to render an adverse benefit (denial) decision. The client had different appeals processes and was not an ERISA plan, so the language she used to describe the decision she was rendering was different from that of LTD examiners responsible for rendering decisions under ERISA plans. 33)

Matrix gives its LTD examiners, regardless of level or tenure, the

authority to independently adjudicate and manage their claims. This does not mean that LTD examiners make their adjudications in a vacuum.

LTD

examiners are free to consult with coworkers and supervisors when assessing their claims. But LTD Examiners are not expected or required to submit their

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claims-handling decisions to their supervisors for review; decisions regarding how to adjudicate any particular claim rests with each LTD examiner—not his or her supervisor. This does not mean, of course, that Matrix does not monitor the decisions its examiners make. To ensure that it understands how its examiners are handling claims, Matrix will review the claim files of its LTD examiners and provide feedback when it discovers opportunities for correction and improvement. I declare under penalty of perjury that the foregoing is true and correct. Dated: October 1, 2020 Rachel Ronfeldt

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