Case 2:20-cv-00884-SPL Document 34-7 Filed 10/01/20 Page 1 of 8
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 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:
24
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
1
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.
5 6 7
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
16
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,
18
Oregon, and Washington, and leave entitlements pursuant to the Family
19
Medical Leave Act (“FMLA”).
20
6)
Further, my client has approximately eight (8) different leave
21
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
23
may run concurrent with such policies.
24 25 26
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
1
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
10
that I can (but am not required to) utilize for more in depth clinical/medical
11
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
14
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
16
more information, recommend a second opinion to the employer, or take other
17
action.
18
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.
24
12)
In addition, I adjudicate, assess, and manage every leave that is
25
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
28
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
1
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
1
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
25
training, experience and analysis of medical facts.
26
21)
I consult the Official Disability Guidelines (“ODG”), guidelines
27
written by medical doctors and clinicians (not affiliated with Matrix) which
28
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
1
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.
16
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
23
adjudicate and manage leaves of absence and disability claims.. I follow blogs on
24
topics that relate to my role at Matrix voluntarily. I also discuss issues in my
25
field with my coworkers in an informal capacity. Additionally, Matrix
26
supervisors and managers will distribute new Court cases which impact our
27
adjudication of claims pursuant to the FMLA or requisite state leave laws so we
28
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
1
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
23
itself may lose business. If I deny a leave that should have been approved, the
24
client-employer may be exposed to liability under FMLA, state leave laws, or
25
employment discrimination laws.
26
I declare under penalty of perjury that the foregoing is true and correct.
27 28
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
1
Dated: October 1, 2020
__ Christopher Pheil
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8
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
1
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
9
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.
16
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.
22
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
28
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
1
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.
17
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.
25
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
1
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
1
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
1
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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