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COMPLAINT PAGE 1

CASE NO. 4:17-CV-728

MICHELLE L. ROBERTS (SBN: 239092)

Email: mroberts@robertsbartolic.com

ROBERTS BARTOLIC LLP

1050 Marina Village Pkwy., Suite 105

Alameda, CA 94501

Telephone: (510) 992-6130

Facsimile: (510) 280-7564

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND/SANFRANCISCO DIVISION

THIERRY LEBEAU,

Plaintiff,

vs.

LIFE INSURANCE COMPANY OF 

NORTH AMERICA,

Defendant,

Case No. 4:17-cv-728

COMPLAINT (ERISA)

JURISDICTION

1. Plaintiff Thierry Lebeau (“Plaintiff”) brings this action for declaratory, injunctive, 

and monetary relief pursuant to § 502(a)(1)(B) of the Employee Retirement Income Security Act 

of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). This Court has subject matter jurisdiction over 

Plaintiff’s claim pursuant to ERISA § 502(e) and (f), 29 U.S.C. § 1132(e) and (f), and 28 U.S.C. § 

1331.

VENUE

2. Plaintiff resides in Alameda County in California.

3. On information and belief, Defendant Life Insurance Company of North America 

(“LINA”) is a licensed insurance company domiciled in the Commonwealth of Pennsylvania and 

State of Connecticut. LINA is a wholly owned subsidiary of CIGNA Holdings, Inc. a Delaware

holding company. LINA offers only group long-term disability (“LTD”) policies in various 

states, including California. 

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COMPLAINT PAGE 2

CASE NO. 4:17-CV-728

4. Venue lies in the Northern District of California pursuant to ERISA § 502(e)(2), 

29 U.S.C. § 1132(e)(2), because Plaintiff resides in this District, the breaches alleged occurred in 

this District, and the ERISA-governed plan at issue was administered in part in this District. 

Venue is also proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or 

omissions giving rise to Plaintiff’s claims occurred within this District.

INTRADISTRICT ASSIGNMENT

5. This action arises in Alameda County since Plaintiff resides in, Defendant may be 

found in, and the employee benefit plan at issue is administered in part in, and some of the 

breaches alleged occurred in Alameda County. Plaintiff does not oppose assignment to either the 

Oakland or San Francisco divisions of the United States District Court for the Northern District of 

California.

PARTIES

6. LINA issued a Group Policy, LK-962901, to the Trustee of the Group Insurance 

Trust for Employers in the Manufacturing Industry, on behalf of Andre-Boudin Bakeries, Inc.

(“Boudin”). The Group Policy funds the benefits provided under the Andre-Boudin Long Term 

Disability Insurance Plan (“the Plan”).

7. LINA is the claims administrator for the Plan and makes decisions regarding 

eligibility for benefits under the terms of the Plan. 

8. At all relevant times, Plaintiff was a participant, as defined by ERISA § 3(7), 29 

U.S.C. § 1002(7), in the Plan. 

9. At all relevant times, the Plan was an employee welfare benefit plan within the 

meaning of ERISA § 3(1), 29 U.S.C. § 1002(1). At all relevant times, the Plan offered, inter alia, 

LTD benefits to participants, including Plaintiff.

FACTS

10. In January 2011, Plaintiff began working as a Food and Beverage Systems 

Manager for Boudin and was responsible for implementing, programming and supporting 

corporate Food and Beverage management systems. As stated in Boudin’s job description, 

physical demands included: “Must be able to speak, interact and listen 100% of the time. Must 

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COMPLAINT PAGE 3

CASE NO. 4:17-CV-728

be capable of standing, sitting, bending, twisting, stooping, and stretching, for eight hours at a 

time. Must be flexible and capable of responding to changing priorities and duties. Must be able 

to adjust to fluctuations of work pace and volume. Must be capable of lifting a minimum of 25 

pounds. Must be able to use a computer 100% of the time.” Environmental demands included: 

“Position resides at the Corporate Office on the 12th floor but will require occasional site visits to 

other locations. Requires occasional travel. Fast paced with extensive contact with people. Light 

to moderate background noise.” 

11. About one year later, Plaintiff began seeking treatment for persistent right leg pain, 

weakness, and paresthesias. Although his symptoms started four years earlier, they had improved 

significantly following a decompressive laminectomy. However, the symptoms became severe 

and Plaintiff underwent nerve conduction testing with Dr. Barry S. Mann which ruled out lumbar 

radiculopathy. Dr. Mann opined that Plaintiff’s symptoms seem related to his previous cervical 

spinal stenosis and that perhaps the spinothalamic tract was damaged beyond its ability to recover 

despite the surgical decompression. For treatment, Plaintiff underwent bilateral L2, L3, L4, and 

L5 medial branch blocks. He was also prescribed significant pain medications. 

12. Plaintiff’s doctor, Dr. Navin Mallavaram, diagnosed him with peripheral 

autonomic neuropathy, chronic pain syndrome, and cervical and lumbar spondylosis. As a result 

of severe symptoms associated with his condition, Plaintiff stopped working altogether on August 

3, 2012. Dr. Mallavaram gave Plaintiff work restrictions of only occasional sitting, standing, 

walking, and reaching. He also restricted Plaintiff to occasionally lifting, carrying, pushing, and 

pulling up to 10 lbs.

13. Plaintiff applied for benefits under the Plan. The Plan contains the following 

standard for disability:

Definition of Disability/Disabled

The Employee is considered Disabled if, solely because of Injury or Sickness, he 

or she is: 

1. unable to perform the material duties of his or her Regular Occupation; and 

2. unable to earn 80% or more of his or her Indexed Earnings from working in his 

or her Regular Occupation. 

After Disability Benefits have been payable for 24 months, the Employee is 

considered Disabled if, solely due to Injury or Sickness, he or she is:

1. unable to perform the material duties of any occupation for which he or she is, 

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COMPLAINT PAGE 4

CASE NO. 4:17-CV-728

or may reasonably become, qualified based on education, training or experience; 

and

2. unable to earn 60% or more of his or her Indexed Earnings.

14. Following a 90-day Elimination Period (essentially a waiting period), the Plan 

provides Plaintiff income protection of the lesser of 60% of the Employee’s monthly Covered 

Earnings rounded to the nearest dollar or $6,000, and minus other benefits for that month. 

15. When investigating his claim, LINA contacted Boudin to confirm Plaintiff’s pay. 

Boudin confirmed that Plaintiff was working 30 hours per week per his doctors’ advisement and 

his hourly rate is $44.5673. LINA did not inquire further about Plaintiff’s reduction of hours.

16. On September 4, 2012, LINA referred Plaintiff’s claim to Allsup for Social 

Security assistance. By letter dated November 27, 2012, LINA approved Plaintiff’s LTD claim 

with a date of disability of August 4, 2012. 

17. On September 4, 2014, Plaintiff underwent a Functional Capacity Evaluation 

(“FCE”) with TrueCapacity Evaluation in Hayward, California. The FCE was performed by 

Steve Talajkowski, PT. Mr. Talajkowski gave Plaintiff a “valid” rating on “Overall Validity” and 

“Overall Pain Validity.” He concluded that Plaintiff had several areas of functional limitations, 

including significant limitations in the cervical and lumbar spine range. Plaintiff could lift zero 

lbs. below waist level, 10 lbs. to shoulder level, and 8 lbs. overhead due to pain and poor balance. 

Mr. Talajkowski noted that Plaintiff uses a cane and was unable to perform the step test for 

unstable gait/balance concerns. For functional job-related activities, Plaintiff could occasionally 

sit and stand, rarely walk, and never climb or kneel. Occasionally is defined as less than 1/3 of a 

day.

18. By letter dated November 1, 2014, LINA informed Plaintiff that it continued to 

find him eligible for ongoing benefits. Plaintiff was only eligible for ongoing benefit if he met 

the definition of disability after 24 months. In other words, LINA found that Plaintiff was unable 

to perform the material duties of any occupation for which he is or may reasonably become, 

qualified based on education, training or experience. 

19. Shortly after determining that Plaintiff was disabled from “any occupation,” LINA 

sent him to be examined by Dr. Donald Lee in Fremont, California. Dr. Lee claimed to have 

spent two hours with Plaintiff and an additional four hours reviewing clinical information and 

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COMPLAINT PAGE 5

CASE NO. 4:17-CV-728

preparing his report. Dr. Lee observed that Plaintiff had restricted motion of the cervical and 

thoracic spine. There was tenderness and tightness to palpation over the paraspinal musculature. 

Sensory examination showed increased sensitivity and pain to pinprick and light touch especially 

in both lower extremities, but most pronounced over the right anterior thigh. Dr. Lee further 

observed that Plaintiff has an antalgic gain on the right and he was not able to walk on his heels. 

Dr. Lee concluded that Plaintiff was physically functionally impaired. He noted that Plaintiff has 

allodynia in his lower extremities that is “quite pronounced. He is on high dose pain medications 

and need to use a spinal cord stimulator to barely maintain activities of daily living. He has 

restrictions with active range of motion in the cervical and lumbar spine.” Dr. Lee gave Plaintiff 

restrictions of sitting, standing, walking, reaching overhead, reaching desk level, reaching below 

waist, climbing regular stairs, balancing, stooping, kneeling, crouching, crawling, exposure to 

extremes in heat, and a number of other restrictions. In an accompanied Physical Abilities 

Assessment Form, Dr. Lee checked that Plaintiff could frequently sit (2.5-5.5 hours), and 

occasionally (<2.5 hours) stand, walk, and reach overhead and below the waist. 

20. In order for Plaintiff to be physically able to perform sedentary work, he must be 

able to sit for six hours. See Armani v. Nw. Mut. Life Ins. Co., No. 14-56866, __F.3d__, 2016 

WL 6543523 (9th Cir. Nov. 4, 2016). Dr. Lee’s opinion cannot be read to support any claim that 

Plaintiff is capable of full-time sedentary work. 

21. On March 5, 2015, LINA obtained a Transferable Skills Analysis (“TSA”) from 

Melissa Mendez, M.S., CRC based on the restrictions and limitations given only by Dr. Lee. Ms. 

Mendez did not rely on the FCE or any of the restrictions and limitations imposed by Plaintiff’s 

treating doctors. She did not address any limitations caused by Plaintiff’s pain symptoms and 

medications. Based on very limited data, the TSA concluded that Plaintiff could perform as a 

Department Manager, Customer-Complaint Service Supervisor, and Food and Beverage 

Controller.

22. LINA terminated Plaintiff’s LTD benefits effective March 11, 2015. Later that 

month, Plaintiff submitted a written appeal of LINA’s decision. Included in his appeal was a 

March 20, 2015 letter from Dr. Dennis Nakamura explaining that Plaintiff is permanently 

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COMPLAINT PAGE 6

CASE NO. 4:17-CV-728

disabled from any occupation whatsoever. He further explained that Plaintiff has constant 

neuropathic pain, dysesthesias, and allodynia. Plaintiff requires high-dose pain medication and 

has an implanted spinal cord stimulator for palliative care. Dr. Mallavaram also provided a letter 

dated March 24, 2015, wherein he explains that Plaintiff has a diagnosis of cervical laminoplasty, 

chronic painful neuropathy, and chronic pain syndrome. Plaintiff has had multiple spine 

injections and a spinal cord stimulator implant. Like Dr. Nakamura, Dr. Mallavaram also 

explained that Plaintiff takes high dosage of opiates and should be considered permanently 

disabled due to ongoing pain, limited use of his right leg, and high dose opiates to maintain 

function.

23. By letter dated October 20, 2015, LINA informed Plaintiff that it was upholding 

the decision to stop paying his claim beyond March 11, 2015. It relied on a pure paper review 

from Dr. Marc Rosen. LINA claimed that there was no recent documentation of severe functional 

deficits noted. It acknowledged that a November 2014 CT scan showed central canal stenosis at 

C6-7, but claimed that more recent clinical findings did not correlate the spinal stenosis at C6-7. 

LINA’s reasoning is completely nonsensical. As Chief Judge Kozinski noted in Saffon v. Wells 

Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 871 (9th Cir. 2008): “After all, MetLife 

had been paying Saffon long-term disability benefits for a year, which suggests that she was 

already disabled. In order to find her no longer disabled, one would expect the MRIs to show an 

improvement, not a lack of degeneration.” Similarly here, Plaintiff has been long suffering from 

a chronic and degenerative spinal condition. His doctors, an FCE, and an independent 

examination showed findings of significant impairment. The only basis for LINA to terminate 

Plaintiff’s claim is if it determined that he improved. No such determination is supported by the 

record.

24. Plaintiff appealed this denial by letter dated February 17, 2016. By letter dated 

April 18, 2016, LINA upheld its prior decision to terminate Plaintiff’s claim. It informed Plaintiff 

that he exhausted all administrative levels of appeal and no further appeals will be considered. 

25. Plaintiff has exhausted any and all administrative remedies required before 

bringing suit.

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COMPLAINT PAGE 7

CASE NO. 4:17-CV-728

26. LINA’s termination of Plaintiff’s LTD benefits is arbitrary and contrary to the 

weight of the evidence.

COUNT I

[Claim for Benefits Pursuant to ERISA § 502(a)(1)(B)]

27. Plaintiff incorporates Paragraphs 1 through 26 as though fully set forth herein.

28. ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), permits a plan participant to 

bring a civil action to recover benefits due to him under the terms of a plan, to enforce his rights 

under the terms of a plan, and/or to clarify his rights to future benefits under the terms of a plan.

29. At all relevant times, Plaintiff has been entitled to LTD benefits under the Plan. 

By denying Plaintiff’s claim for LTD benefits under the Plan, and by related acts and omissions, 

Defendant has violated, and continues to violate, the terms of the Plan and Plaintiff’s rights 

thereunder.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court grant the following relief:

A. Declare that Defendant violated the terms of the Plan by denying Plaintiff’s claim 

for LTD benefits;

B. Order Defendant to pay LTD benefits to Plaintiff pursuant to the terms of the Plan

through the date judgment is entered herein; together with prejudgment interest on each and every 

such monthly payment through the date judgment is entered herein; 

C. Declare Plaintiff’s right to reinstatement into the Plan and his right to receive 

future LTD benefit payments under the terms of the LTD Plan for as long as he remains disabled 

under the Plan’s terms;

D. Award Plaintiff reasonable attorneys’ fees and costs of suit incurred herein 

pursuant to ERISA § 502(g), 29 U.S.C. § 1132(g); and

E. Provide such other relief as the Court deems equitable and just.

Dated: February 14, 2017 Respectfully submitted,

ROBERTS BARTOLIC LLP

/s/ Michelle L. Roberts

Michelle L. Roberts

Case 3:17-cv-00728-EDL Document 1 Filed 02/14/17 Page 7 of 7