Shelley Brown v. Federal Express Corporation, et al

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Alice M. Batchelder (Authoring), and John M. Rogers, Circuit Judges.

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0327n.06

FILED

No. 14-5777

May 05, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHELLEY BROWN,
Plaintiff-Appellant,
v.
FEDERAL EXPRESS CORPORATION;
FEDERAL EXPRESS CORPORATION SHORT
TERM DISABILITY PLAN; FEDERAL
EXPRESS CORPORATION LONG TERM
DISABILITY PLAN,
Defendants-Appellees.

BEFORE:

)
)
)
)
)
)
)
)
)
)
)
)
)
)

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
WESTERN DISTRICT OF
TENNESSEE

SILER, BATCHELDER, and ROGERS, Circuit Judges

ALICE M. BATCHELDER, Circuit Judge.

This Employee Retirement Income

Security Act (“ERISA”) case stems from a denial of disability benefits by employer Federal
Express Corporation (“FedEx”).

Plaintiff Shelley Brown, a FedEx employee, applied for

disability benefits, contending that several doctors had diagnosed her with Lyme disease and
thyroiditis.

FedEx, and its claims-paying administrator Aetna Life Insurance Company

(“Aetna”), denied her request for benefits, due to the contradiction between negative lab results
and her doctors’ diagnoses. Brown challenged FedEx’s determination in federal district court.
The district court held that FedEx’s denial of benefits was not arbitrary and capricious. Finding
no error in the district court’s determination, we AFFIRM.

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 2

No. 14-5777
Brown v. FedEx

I.
FedEx established its Short Term Disability (“STD”) Plan to provide for the payment of
short-term disability benefits for its employees. [R. 10-8 at ID# 629] FedEx acts as the
administrator of the plan.

[Id. at 630]

The plan designates Aetna as its claims-paying

administrator. [R. 10-7 at 528] It further provides that “[u]pon receipt by the Claims Paying
Administrator of proof that a Covered Employee has incurred a Disability, such Covered
Employee shall be entitled to receive a Disability Benefit subject to the limitations and
conditions set forth herein.” [R. 10-8 at 640]
The plan requires that a disability be “substantiated by significant objective findings
which are defined as signs which are noted on a test or medical exam and which are considered
significant anatomical, physiological or psychological abnormalities which can be observed apart
from the individual’s symptoms.” [R. 10-8 at 631-32] It specifically states in bold-face type: “It
is important to remember pain alone is not proof of disability.” [R. 10-7 at 533] The burden of
proof for establishing a disability is on the employee. [R. 10-8 at 652] If Aetna determines that
the employee cannot substantiate his disability, “such Employee may be required to submit
himself to an examination by a Practitioner selected by [Aetna].” [Id.]
Shelley Brown was a senior strategic sales specialist with FedEx from 2005 to 2012. [R.
10-5 at 300] Among other job responsibilities, a senior strategic sales specialist uses “advanced
business analysis skills, computer modeling techniques, database tools and/or approaches to
develop innovative, high quality, and/or customer centric results.”

[Id.]

Brown claimed

disability benefits under FedEx’s STD plan beginning on February 8, 2012. [R. 10-2 at 56]
Prior to that date, she visited a doctor at least once, on January 20, 2012, claiming pelvic pain,

-2-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 3

No. 14-5777
Brown v. FedEx

back pain, swollen lymph nodes, and urination difficulty. [R. 10-4 at 234] The treating doctor
detected no abnormalities at that time. [Id.]
On March 29, 2012, Brown visited Dr. Wallace of The Family Physicians Group to
discuss the possibility of her having Lyme disease.

[Id. at 262]

Dr. Wallace drafted an

Attending Physician Statement a few days later in which he said that Brown was unable to work
in any capacity until April 30, 2012. [Id. at 261] His diagnosis, however, was not Lyme disease
but fibromyalgia and post-partum depression. [Id.]
Meanwhile, Aetna had referred Brown’s claim to Dr. Wendy Weinstein. [Id. at 279] Dr.
Weinstein prepared a report and noted no abnormalities in Brown’s record. [R. 10-5 at 282] In
the report, she recounted a conversation she had had with Dr. Wallace:
[Dr. Wallace] indicated that [Brown] was insistent that something was wrong with
her but he noted a thorough evaluation had been done and there was no
documentation of an underlying diagnosis other than her depression and increased
emotionality . . . . He indicated that all of the studies he checked were normal and
he had no explanation for her symptoms. He noted that she told him that one of
the specialists had indicated she had Hashimoto’s thyroiditis. However, Dr.
Wallace said he had checked her TSH and free T4 and they were normal and he
had no indication that this was a real diagnosis.
[Id. at 283] Dr. Weinstein further reported Dr. Wallace’s saying that “he gave the claimant time
off work based on her request and her concerns that there was really something wrong with her
other than depression and fibromyalgia.”

[Id.]

Based on this information, Dr. Weinstein

concluded:
The presented clinical information fails to support functional impairments from
the claimant’s sedentary occupation from 2/8/12 forward. The claimant has had
multiple evaluations by multiple providers for subjective complaints. However,
the records have not documented specific physical examination abnormalities or
underlying abnormal diagnostic studies that would support functional
impairments from sedentary work.
[Id.]. She recommended that Aetna deny Brown’s claim. [Id.]

-3-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 4

No. 14-5777
Brown v. FedEx

On April 13, 2012, Brown visited Dr. Callaghan in order to be tested for Lyme disease.
[R. 10-2 at 82] The test came back negative under all standards. [Id. at 82-83] That being said,
Dr. Callaghan wrote on Brown’s test results: “Although a negative test, having 2 positive and 3
indeterminate bands plus your multitude of symptoms causes me to diagnose you with ‘clinical
lyme disease.’” [Id. at 82] Further, because of a different test which revealed high thyroglobulin
levels, Dr. Callaghan also diagnosed Brown with Hashimoto’s thyroiditis which, in his words,
could, “on any given day,” cause “hypo or hyperthyroid symptoms [including] sick like fatigue,
memory loss and muscle aches.” [R. 10-4 at 263] A few days later, he wrote a letter to Aetna,
which was still reviewing Brown’s case. In it, he noted that “Shelley Brown has come to me
with multiple complaints including extreme fatigue, multiple joint pains…frequent nausea,
tremors, heart palpitations, severe headaches and insomnia.” [R. 10-2 at 92] After seeing her on
April 13, he wrote, he had determined “she also has autoimmune thyroiditis and is very likely to
have lyme disease based on my clinical impressions.” [Id.] He concluded that he has found
“this patient to be quite ill and unable to work due to all of the above issues.” [Id.]
Brown submitted to Aetna the information about her visit with Dr. Callaghan, as well as
the test results. [R. 10-5 at 285] Dr. Weinstein reviewed all of the relevant additional material
and supplemented her initial report with an addendum on May 14, 2012. [Id. at 286] As to
Brown’s supposed thyroiditis, Dr. Weinstein noted:
The claimant’s laboratory studies have documented normal thyroid-stimulating
hormone levels with no indication of hyperthyroidism or hypothyroidism.
Additional testing noted an increased thyroglobulin level and the physician wrote
on the note that the claimant had Hashimoto thyroiditis which could cause her
altering symptoms of being hyperthyroid or hypothyroid and it was noted she
could have symptoms of fatigue, memory loss, and muscle aches related to these
findings. Next to claimant’s cortisol result, the provider wrote, “You must be
exhausted.” Once again, this is reference to the claimant’s subjective complaint
which the physician assumed she would have based on this laboratory finding.

-4-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 5

No. 14-5777
Brown v. FedEx

[Id. at 286-87] As to Brown’s supposed Lyme disease, Dr. Weinstein stated that “[a] note next
to the claimant’s Lyme titers stated that although she had a negative test, the findings would
cause her to have a diagnosis of ‘clinical Lyme disease.’” [Id. at 287] Rejecting this diagnosis,
Dr. Weinstein concluded that the records “do not document physical examination abnormalities
and the submitted laboratory studies do not document significant findings that would support
functional impairments from the claimant’s sedentary occupation as well.” [Id.]
On May 24, 2012, based on Dr. Weinstein’s report and an independent review of the
various documents, Aetna denied Brown short-term disability benefits. [R. 10-2 at 56] The
denial letter specifically noted that “Dr. Callahan [sic] submitted a letter that indicates you are
incapable of working related to possible autoimmune thyroiditis and most likely Lyme disease,
however, no abnormal examinations or neurological or musculoskeletal findings were
documented or submitted.” [Id. at 57]
Upon hearing this news, Brown returned to Dr. Callaghan on May 26, 2012, for another
round of testing for Lyme disease. [Id. at 96] This test also returned negative results. [Id.] On
the results, however, Dr. Callaghan again noted: “Your tests are negative but again having
several lyme bands positive and intermediate raises the suspicion of lyme. With your clinical
picture I still consider you have probable ‘clinical lyme disease.’” [Id.]
On June 28, 2012, Brown visited Dr. Crist in order to be tested for Lyme disease one
more time. [R. 10-3 at 157] This time, one of the tests came back positive. [Id.] This particular
Lyme test examines both the IgM and IgG antibody blots. [Id. at 157-58] Each blot returns a
result under the standards of both IGeneX (the company that produces the test) and the Centers
for Disease Control and Prevention (“CDC”). [Id.] Brown’s results yielded a positive IGeneX

-5-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 6

No. 14-5777
Brown v. FedEx

IgM result, but a negative result under the other three standards (the CDC IgM standard and both
IgG standards).
Armed with the new test results and opinion letters from Drs. Callaghan and Crist, Brown
appealed Aetna’s decision on November 19, 2012. [R. 10-2 at 59] Aetna referred the appeal to
Dr. Steven Swersie for peer review.

[R. 10-5 at 289]

Dr. Swersie reviewed all the

documentation, including the new lab results, the opinion letters, and Dr. Weinstein’s reports.
Noting that Brown had complained of a vast array of symptoms, he concluded: “I will not
attempt to list those [symptoms] indicated and will limit my review to those notations made by
her providers, as well as the results of objective diagnostic tests.” [Id. at 291] Dr. Swersie’s
ultimate conclusion was that Brown’s case “is characterized by multiple subjective complaints
from the claimant with minimal objective findings. Unfortunately, she also had a multitude of
laboratory tests performed, several with obvious misinterpretations by her providers with this
misinterpretation conveyed to the claimant, only reinforcing her subjective symptoms.” [Id. at
294] He specifically rejected both the thyroiditis and Lyme disease diagnoses. As to thyroiditis,
he stated:
[H]er provider indicated the elevated thyroglobulin level indicated chronic
thyroiditis when this result may be seen with any type of thyroid enlargement or
even in some normal circumstances. Her anti-peroxidase antibody level, on the
other hand, was not elevated and significant elevation of this test is used to
diagnose chronic thyroiditis or Hashimoto’s thyroiditis in the absence of an actual
thyroid biopsy. There is therefore, based on the laboratory tests reported, no
evidence to support a diagnosis of Hashimoto’s thyroiditis in this claimant.
[Id.] As to Lyme disease, he noted that “[t]he diagnosis of Lyme disease, either in the past or
recently, was not documented by the laboratory tests I reviewed with antibodies to both IgG and
IgM being negative.” [Id.]

-6-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 7

No. 14-5777
Brown v. FedEx

Based on Dr. Swersie’s report and an independent review of the documentation, Aetna
upheld the denial of short-term disability benefits on February 8, 2013. [R. 10-1 at 48] The
letter concluded that the committee “considered all submitted documentation, noted the
conclusions of peer physicians, and determined there are no significant objective findings to
substantiate that a functional impairment exists that would render your client unable to perform
her sedentary job duties.” [Id. at 50] Specific to Lyme disease, the letter from Aetna noted:
Although your client has reported back and leg pain, fatigue and abdominal pain
and her providers are of the opinion she has clinical Lyme disease, there are no
objective findings that support a functional impairment such as diagnostic sensory
testing revealing neurological deficits or formal cognitive testing that reveals
impairment in concentration or thinking.
[Id.] This concluded the appeals process for Brown’s claim.
In June 2013, Brown filed a complaint in federal district court against FedEx, the FedEx
Short Term Disability Plan, and the FedEx Long Term Disability Plan.1 [R. 1]. She sought a
remedy under ERISA, specifically 29 U.S.C. § 1132(a)(1)(B), which allows a civil action to be
brought “to recover benefits due to [a beneficiary] under the terms of his plan.” On February 18,
2014, the defendants filed a motion for summary judgment. [R. 20] The district court granted
the motion for summary judgment on May 28, 2014. [R. 25] Brown timely appealed to this
court.

1

Although the Long Term Disability Plan is technically a party in this appeal, Brown has waived any arguments
against it. As a preliminary matter, Brown was not even eligible for long-term benefits. The STD Plan provides
benefits from the point of proof of disability for a maximum of twenty-six weeks. [R. 10-5 at 295-96] The Long
Term Disability Plan, on the other hand, commences “following the conclusion of all benefits payable to the
Disabled Covered Employee pursuant to the Federal Express Corporation STD Plan on account of the same
condition.” [Id. at 296] Because Brown never received short-term benefits, she would not have been eligible for
long-term benefits. Either way, the district court explicitly held that the denial of long-term benefits was not
arbitrary and capricious. As FedEx points out, there is only a passing reference to Brown’s long-term benefits claim
in her statement of facts, but no actual argument about the district court’s decision in that regard. Any argument
about the long-term plan, therefore, is waived because, as we have frequently observed, “[a]n appellant waives an
issue when he fails to present it in his initial briefs.” Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th
Cir. 2003).

-7-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 8

No. 14-5777
Brown v. FedEx

II.
We review de novo denials of benefits challenged under 29 U.S.C. § 1132(a)(1)(B)
unless, as here [see R. 10-8 at 657], “the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”
McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1063 (6th Cir. 2014) (quoting Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). “If a plan affords such discretion to an
administrator or fiduciary, we review the denial of benefits only to determine if it was ‘arbitrary
and capricious.’” Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 456 (6th Cir. 2003). Put
another way, on appeal, “we review de novo the district court’s finding that the administrator’s
denial was not arbitrary and capricious.” McClain, 740 F.3d at 1064.
The “arbitrary and capricious” standard “is the least demanding form of judicial review
of administrative action . . . . When it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary and capricious.” Perry v. United
Food & Commercial Workers Distrib. Unions 405 & 422, 64 F.3d 238, 242 (6th Cir. 1995)
(citations and internal quotation marks omitted). The standard requires that the decision “be
upheld if it is the result of a deliberate, principled reasoning process and if it is supported by
substantial evidence.” Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d
1140, 1144 (6th Cir. 1991). Although this extremely deferential standard is “not without some
teeth, it is not all teeth. An ‘extremely deferential review,’ to be true to its purpose, must
actually honor an ‘extreme’ level of ‘deference’ to the administrative decision.”
740 F.3d at 1064.

-8-

McClain,

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 9

No. 14-5777
Brown v. FedEx

A.
Brown’s first contention is that FedEx acted arbitrarily and capriciously by rejecting the
opinions of three treating sources as to her disability. The district court held that “[b]ecause her
physicians’ diagnoses were based on the combination of Plaintiff’s subjective reporting of her
symptoms, two negative lab tests, and one positive but questionable lab test, the Court finds that
Aetna’s conclusion that this evidence failed to adequately substantiate Plaintiff’s alleged
disability was not arbitrary and capricious.”

[R. 25 at 1110].

We find no error in this

determination.
The STD plan conditions benefits on “significant objective findings” substantiating the
claimed disability. The plan defines “significant objective findings” as “signs which are noted
on a test or medical exam and which are considered significant anatomical, physiological or
psychological abnormalities which can be observed apart from the individual’s symptoms.” [R.
10-8 at 631-32] The plan does not say what makes a finding or a physiological abnormality
“significant”; it gives the administrator discretion to interpret “significant” and all other terms in
the plan. [Id. at 657] This court, therefore, must defer to Aetna’s interpretation of the STD plan
so long as that interpretation is neither arbitrary nor capricious. Jones v. Metro. Life Ins. Co.,
385 F.3d 654, 660 (6th Cir. 2004).
Turning first to her alleged Lyme disease, Brown contends that three different doctors
considered her disabled and so Aetna was arbitrary and capricious by denying her benefits.
Aetna, however, did not act arbitrarily and capriciously in concluding that the opinions of Dr.
Wallace, Dr. Callaghan, and Dr. Crist did not establish—or were not based on—“significant
objective findings.” With respect to Dr. Wallace, none of the objective evaluative measures
employed by him revealed any abnormalities. [R. 10-5 at 282-83] Dr. Wallace even told Dr.

-9-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 10

No. 14-5777
Brown v. FedEx

Weinstein that he had no diagnosis to explain Brown’s subjective complaints and had only given
her “time off work based on her request and her concerns that there was really something wrong
with her other than depression and fibromyalgia.” [Id. at 283] His opinion, therefore, was in no
way supported by “significant objective findings.”
With respect to Dr. Callaghan, his diagnosis also did not rest on “significant objective
findings.” As he explained to Brown, his diagnosis was predicated on two considerations:
(1) Brown’s “multitude of symptoms”; and (2) the indeterminacy of the results of Brown’s blood
tests. [R. 10-2 at 82] Aetna was not obligated to credit the first consideration, since the STD
plan clearly states that observable symptoms may not be the basis for a finding of disability. As
to the second consideration, Aetna could rationally conclude that indeterminate results are not
the same thing as “significant objective findings.”

It may be true, as Brown argues, that

irregularities in her blood test results indicated some “physiological abnormalities.”

But

coverage under the STD plan requires “significant physiological abnormalities.” The fact that
both sets of Brown’s test results were uniformly negative for Lyme disease might reasonably be
understood to mean that the test results were not significant.
With respect to Dr. Crist, his diagnosis was apparently based on the results of the blood
test he ordered for Brown in June 2012. Dr. Crist ordered that Brown’s blood be tested for Lyme
disease using two methods: the IgG Western Blot test and the IgM Western Blot test. The lab
that conducted the testing, in turn, provided results under each of two standards: the CDC
standard and the lab’s standard. The IgG Western Blot test came back negative under both the
CDC standard and the testing lab’s standard. [R. 10-3 at 158] The IgM Western Blot test also
came back negative under the CDC standard, but came back positive under the testing lab’s
standard. [Id. at 157] Aetna could reasonably determine that those mixed results did not

-10-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 11

No. 14-5777
Brown v. FedEx

constitute “significant objective findings.” Under three of the four measures, including both
CDC measures, Brown was negative for Lyme disease—results consistent with every one of the
tests ordered by Dr. Callaghan.2 Against that evidence, just a single measure indicated that
Brown had Lyme disease. The weight of the evidence, then, pointed decisively against Brown’s
having Lyme disease, and militated against giving too much credence to the lone result
suggesting otherwise. Thus, Aetna could reasonably conclude that the results of the test ordered
by Dr. Crist were not “significant objective findings.”
Further, FedEx was not arbitrary and capricious in relying on the opinions of Drs.
Weinstein and Swersie—who did not examine Brown—over her examining doctors. Although
the Plan allowed FedEx to require its employee to submit to a physical examination, it did not
mandate that a physical examination be performed.

“[T]he failure to conduct a physical

examination—especially where the right to do so is specifically reserved in the plan—may, in
some cases, raise questions about the thoroughness and accuracy of the benefits determination.”
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). But “reliance on a file review
does not, standing alone, require the conclusion that [a plan administrator] acted improperly.”
Id. “[W]hen a plan administrator chooses to rely upon the medical opinion of one doctor over
that of another in determining whether a claimant is entitled to ERISA benefits,” this decision
“cannot be said to have been arbitrary and capricious because it would be possible to offer a
reasoned explanation, based upon the evidence, for the plan administrator’s decision.”
McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 169 (6th Cir. 2003). It does not
matter that this choice is between a non-treating and a treating physician. See Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (holding that “plan administrators are not

2

Brown contends that use of the CDC standards is inappropriate because the CDC standards were not entered into
the administrative record. But Brown’s results under the CDC standards are indeed in the record.

-11-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 12

No. 14-5777
Brown v. FedEx

obliged to accord special deference to the opinions of treating physicians”). FedEx was not
arbitrary and capricious, therefore, in according more weight to Aetna’s peer-review physicians.
As for Brown’s alleged Hashimoto’s thyroiditis, the only objective evidence that she had
this disorder was from Dr. Callaghan, who diagnosed her with the disease after a test revealed
high thyroglobulin levels. [R. 10-4 at 263] Dr. Wallace, however, tested Brown for thyroiditis
because she had told him that another specialist had diagnosed her with the disease, and he found
that her levels were “normal and he had no indication that this was a real diagnosis.” [R. 10-5 at
283] Further, Dr. Swersie criticized Dr. Callaghan’s methodology. He noted that although
Brown had high thyroglobulin levels, that can happen with “any type of thyroid enlargement or
even in some normal circumstances.” [Id. at 294] In fact, he noted that the more relevant
measurement level for determining thyroiditis was “not elevated.” [Id.] Given the legitimate
criticism of Dr. Callaghan’s scientific methodology, it was not arbitrary and capricious for
FedEx to determine that Brown was not disabled with thyroiditis. Even if it were, however,
there is an uncontroverted statement from Dr. Weinstein in the record that a diagnosis of
thyroiditis “in and of itself would not preclude the claimant from performing her sedentary
occupation.” [Id. at 284] Because FedEx’s decision to deny benefits because of a lack of
objective evidence of Lyme disease was not arbitrary and capricious, even a diagnosis of
thyroiditis would not entitle Brown to benefits.
B.
Brown’s second contention on appeal is that FedEx acted arbitrarily by “denying her
disability benefits while refusing to allow her to bring her prescribed intravenous antibiotics into
the workplace.” [Brown Br. 17] Sometime around May 2012, Dr. Callaghan placed Brown on
an intravenous antibiotic regimen to treat what he had diagnosed as Lyme disease. [See R. 10-1

-12-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 13

No. 14-5777
Brown v. FedEx

at 49] According to Brown, this regimen involved infusing intravenous antibiotics three times a
day. [R. 10-2 at 72] Brown submitted into the administrative record an unsworn statement
detailing FedEx’s alleged treatment of her as she attempted to return to work following her
diagnosis. According to this statement, she received a letter from FedEx notifying her of the
denial of benefits and mandating that she return to work on June 4, 2012. [Id.] Not wanting to
lose her job, she enlisted the aid of her fiancé to help her bring her medical supplies into the
office. [Id.] She informed her supervisor via text message that she was coming into work with
her medical supplies. [Id. at 73] When she arrived, her supervisor was blocking the entrance to
her cubical and demanded that Brown follow her to the supervisor’s office. [Id.] During a
subsequent meeting, Brown alleges that various FedEx employees told her that, according to
FedEx policy, she could not bring any medical supplies to work and so she had to leave the
premises.

[Id.]

She left the premises and was eventually terminated.

[Id. at 74]

She

characterized the entire experience as “intensely dehumanizing and considerably humiliating.”
[Id.] Her fiancé also submitted into the administrative record an unsworn statement which
corroborated all the major details of Brown’s story. [See id. at 75]
Other than noting that Dr. Callaghan prescribed intravenous antibiotics for Brown, there
is scant mention of the antibiotics in the administrative record. The only mention of it in the
final Aetna report is the terse statement that “[w]hile it is recognized your client was prescribed
I.V. antibiotics to be self-administered three times a day, there is nothing in the submitted
documentation that indicates the schedule of administration could not be done around a work
schedule so this would not interfere with your client’s ability to work.” [R. 10-1 at 50] Brown
contends that this statement is “entirely contrary” to her own testimony, and thus arbitrary and
capricious. [Brown Br. 18]

-13-

Case: 14-5777

Document: 21-1

Filed: 05/05/2015

Page: 14

No. 14-5777
Brown v. FedEx

As an initial matter, “the ultimate issue in an ERISA denial of benefits case is not
whether discrete acts by the plan administrator are arbitrary and capricious but whether its
ultimate decision denying benefits was arbitrary and capricious.” McClain, 740 F.3d at 1066
(quoting Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002)). The
argument as formulated by Brown—that FedEx acted arbitrarily and capriciously by denying
Brown disability benefits while refusing to allow her to bring her antibiotics into the
workplace—is thus a red herring. FedEx had already denied Brown disability benefits by the
time the events alleged in Brown’s statement occurred. Even if unsworn statements from the
allegedly disabled employee could establish objective evidence of disability, Brown’s statements
document an event that took place after the denial of benefits. Her allegations might have been
better suited for an Americans with Disabilities Act claim, which she did not bring here.
Brown’s argument might be styled as one contending that FedEx acted arbitrarily and
capriciously by denying her benefits because the intravenous antibiotic program by itself was
objective evidence of disability. This, however, improperly shifts the burden of proof to FedEx.
Brown, as the claimant, had the burden of proving disability through the entire claim process.
She submitted into the record no objective evidence that would contradict Aetna’s conclusion
that the regimen could be compatible with her work schedule. Because she did not meet her
burden of proof, therefore, FedEx’s decision to deny benefits despite the intravenous antibiotic
regime was not arbitrary and capricious.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

-14-