Gwendolyn Whitley v. Standard Insurance Company

Filing

OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Steven M. Colloton AUTHORING JUDGE:James B. Loken (PUBLISHED) [4374257] [15-1524]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1524
___________________________
Gwendolyn Whitley
lllllllllllllllllllll Plaintiff - Appellee
v.
Standard Insurance Company
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 21, 2015
Filed: March 4, 2016
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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LOKEN, Circuit Judge.
In February 2011, Dr. Gwendolyn Whitley was involved in a roll-over car
accident, suffering a serious head injury. Board certified in family medicine, Dr.
Whitley had worked as an emergency room physician at Lake Region Hospital (“Lake
Region”) in Fergus Falls, Minnesota, in the twenty-four months preceding the
accident. She returned to work full-time from March 16 through March 24, but

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fatigue and short-term memory issues forced her to stop. On June 28, she filed a
claim for long-term disability (“LTD”) benefits under Lake Region’s Group Long
Term Disability Insurance Policy issued by Standard Insurance Company
(“Standard”). Standard, serving as administrator of the Policy, approved Whitley’s
claim and paid LTD benefits beginning May 22, 2011.
In August 2012, Standard determined that Whitley was no longer disabled,
discontinued benefits effective July 31, 2012, and rejected Whitley’s internal appeal
of that decision. She then commenced this action in state court, asserting various
claims against Standard and Lake Region. After Standard removed the case to federal
court, Whitley filed an amended complaint asserting, as relevant here, a claim under
ERISA that Standard’s denial of continuing disability benefits was contrary to the
terms of its Policy. See 29 U.S.C. § 1132(a)(1)(B). The district court granted
summary judgment for Whitley, concluding that Standard abused its discretion in
discontinuing LTD benefits. Standard appeals. Reviewing the grant of summary
judgment de novo and Standard’s decision for abuse of discretion, we reverse. See
Manning v. Am. Republic Ins. Co., 604 F.3d 1030, 1038 (8th Cir.), cert. denied, 562
U.S. 1062 (2010) (standard of review).
I. Background.
For physician members of the insured group, such as the 57-year-old Whitley,
the Policy provided “Own Occupation” disability benefits up to retirement age, if the
disability persisted:
[Y]ou are required to be Disabled only from your Own Occupation.
You are Disabled from your Own Occupation if, as a result of Physical
Disease, Injury, Pregnancy or Mental Disorder:

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1. You are unable to perform with reasonable continuity the
Material Duties of your Own Occupation; and
2. You suffer a loss of at least 20% in your Indexed Predisability
Earnings when working in your Own Occupation.
*

*

*

*

*

Material Duties means the essential tasks, functions and operations, and
the skills, abilities, knowledge, training and experience, generally
required by employers from those engaged in a particular occupation that
cannot be reasonably modified or omitted.
Whitley’s June 2011 claim stated that she was unable to perform her Own
Occupation due to post-concussive syndrome, C5 disc rupture, back pain, headaches,
and memory problems. She submitted an Attending Physician Statement from her
primary care physician, Dr. Patricia Lindholm, who diagnosed Whitley with “postconcussive syndrome.” Dr. Lindholm noted Whitley’s failed attempt to return to
work, and recommended that she not return to work until cleared by treating
neuropsychologist Dr. Paula Bergloff. In an April 7 neuropsychological evaluation,
Dr. Bergloff concluded that Whitley suffered from “[m]ild traumatic brain injury with
persistent postconcussion symptoms.” Dr. James Andrews examined Whitley on
April 26 and concluded that Whitley should not be working because her
postconcussive syndrome was “significantly affecting her memory.”
In August 2011, Whitley submitted Attending Physician Statements from Dr.
Bergloff and Dr. Tanya Harlow. Dr. Bergloff recommended that Whitley not be
working and opined that she would need a “reduction in work hours” when able to
return to work. Dr. Harlow diagnosed Whitley as suffering from postconcussive
syndrome and noted she was “gradually improving” but unable to work because of
“cognitive difficulties.” Dr. Harlow opined that Whitley was likely to improve in
three to six months and might be ready for a trial return to work within two months.
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In September, Dr. Andrews took MRIs of Whitley’s spine, found no significant
problems, and noted “excellent gains from a postconcussive standpoint.”
Psychologist Dr. Elaine Greif, an independent consultant, reviewed the claim
at Standard’s request and agreed that Whitley was disabled due to her “mild traumatic
brain injury with persistent postconcussive symptoms and a history of multiple
concussions.” Dr. Greif predicted that Whitley would be able to return to work within
three to six months and recommended that work restrictions be lifted based on future
neuropsychological re-evaluations. On September 27, Standard approved Whitley’s
claim effective May 22 (the end of the Policy’s ninety-day waiting period). The letter
advised that Standard would require Attending Physician Statements “to monitor and
document your continued eligibility for LTD Benefits,” and asked Whitley to notify
Standard “of any change in your medical or employment status.”
On August 30, 2011, Whitley told Dr. Harlow that “she is ready to go back to
work in the next month.” In January 2012, Whitley told Dr. Lindholm she was “doing
well” and was “currently asymptomatic.” That month, Dr. Bergloff concluded
Whitley was doing “fairly well” and recommended a part-time return to work. In a
February 2012 letter to Lake Region, Whitley stated that she was ready to return to
“perform the full scope of emergency medicine duties.” She reported that her
“medical team has approved my return to work in the Emergency Department” and
requested that she be allowed to return “for two 4 hour shifts a week with double
coverage for the first weeks.” Lake Region responded that it could not accommodate
that request but was open to alternative work possibilities.
After a March neuropsychological re-evaluation, Dr. Bergloff found that
Whitley was “performing within the high average range for overall intellectual
abilities . . . [with] no cognitive impairments in any area.” Dr. Bergloff recommended
return to work on a part-time basis with hours gradually increasing. In April, Whitley
told Dr. Lindholm she felt “back to normal,” did not have headaches or attention span
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problems, had completed eighty hours of Continuing Medical Education (CME), and
was “very eager to get back to work and have some purpose in her life.” In June
2012, Whitley provided Standard an Attending Physician Statement in which Dr.
Lindholm noted Whitley’s improved condition, stated no further treatment was
planned, and recommended “a transitional return to work starting with [a] 4 hours/day
limitation.” Dr. Lindholm wrote to Lake Region that Whitley had “no physical
limitations or restrictions in regard to work.”
In July 2012, Standard asked Dr. Bradley Fancher, an independent consultant,
to review Whitley’s medical records. Evaluating Whitley’s ability to return to work
as a family practice physician, her board certified specialty, Dr. Fancher determined
she could return to work, concluding that a gradual return to work was not “an
imperative requirement.” Standard advised Whitley it was discontinuing benefits
effective July 31. In the lengthy August 5 letter, Standard explained that Lake Region
“was not able to provide record of your professional service codes” documenting that
sixty percent of Whitley’s income was earned in an emergency medicine subspecialty, and therefore her Own Occupation as defined in the Policy was “as broad
as the scope of your [family] medicine license.” The letter reviewed the medical
records and opinions in some detail and concluded, “the records do not support that
you have residual physical or cognitive limitations and restrictions that would
preclude you from working with reasonable continuity in your Own Occupation at this
time.”
On August 23, Whitley appealed Standard’s decision. She wrote: “I am
improved; I am happy to be better. I do want to return to full-time work as an
emergency medicine physician. I am not ready to return to work full-time yet.” In
support, Whitley submitted letters from Drs. Lindholm and Bergloff and speechlanguage pathologist Nan Kennelly opining that Whitley should not initially return to
work full-time. Kennelly noted that Whitley could have “difficulty executing with
[the] distraction, time pressure, interruptions and multi-tasking” of an emergency
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room. Dr. Bergloff reported that sustained activity increased Whitley’s “pain
symptoms.” Dr. Lindholm suggested a trial return to work, but noted that Whitley
“has no physical limitations” and “[h]er cognitive abilities are back to baseline.”
In considering Whitley’s appeal, Standard consulted Dr. Thomas Morgan, a
neurologist. He reviewed all of Whitley’s records and found that she “does not have
any restrictions or limitations with respect to her work as a family practice physician
in an emergency room setting . . . based on the nature of her mild concussion postconcussion syndrome and the normalization of her neuropsychological testing.” Mark
Williams, Ph.D., conducted an independent neuropsychological review of the claim
at Standard’s request. In preparing an extensive report, Dr. Williams considered
Whitley’s medical records, spoke to Dr. Bergloff, and reviewed “actual raw test data”
from Whitley’s cognitive tests. Explicitly considering “the unique demands of
emergency room practice” as described by a vocational consultant, Dr. Williams
found no “objective or even compelling subjective” indication that Whitley’s “mental
endurance” was not “intact,” especially considering her 80 hours of continuing
medical education and ability to read for four to five hours in a sitting. Dr. Williams
concluded, “based on my consideration of the full set of information that has been
provided to me, it is my opinion that Dr. Bergloff’s recommendations [of a gradual
return to work] are overly restrictive.” Drs. Morgan and Williams agreed that Whitley
was able to work on a full-time basis as of July 31, 2012. Dr. Greif again reviewed
Whitley’s claim at Standard’s request. She noted that Whitley’s history of head
injuries suggested “a return-to-work plan that involves monitoring adequacy of her
work” but agreed that while a “gradual return would be ideal . . . it is reasonable to try
a full-time return.”
Whitley underwent left knee arthroscopy in November 2012 and right total knee
arthroplasty the following month due to a fall that aggravated degenerative joint
disease that pre-dated the auto accident. Following the surgeries, Whitley markedly
changed her disability claim. In a December 4 letter to Standard, Whitley wrote that,
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due to physical problems and constant pain, “I have begun to despair that I will ever
be able to return to work and support myself again.” In a January 16, 2013, letter to
Standard, Dr. Lindholm wrote that Whitley’s “disability is multifactorial and is a
result of pre-existing spine and joint disease and the traumatic brain injury sustained
in March 2011,” and opined that Whitley “is permanently disabled and not able to
pursue gainful employment.” On January 26, Whitley wrote Standard explaining why
extensive medical records supported her claim that she is disabled by “chronic pain.”
In response, Standard asked Dr. Morgan to consider whether these additional
reports affected his prior opinion that Whitley had the “ability to return to work as a
Board Certified Family Practice Physician working in the Emergency Room setting.”
On February 19, Dr. Morgan submitted an Addendum report. He found Whitley’s
claim of pain and fatigue to be “complaints . . . of tolerance.” Addressing Dr.
Lindholm’s January opinion, Dr. Morgan wrote: “It is understandable that Dr.
Lindholm wants to advocate for her patient . . . based on pain tolerance but this does
not restrict or limit her ability to work . . . . Whitley had a minor concussion at best,
these conditions heal within days to weeks.” Standard also asked Dr. Donald Lambe,
an independent orthopedic surgeon, to consider Whitley’s disability claim. In a
lengthy report dated February 28, 2013, Dr. Lambe opined that Whitley “was able to
work on a full-time basis from 7/31/12, up until the time of her left knee arthroscopy
of 10/22/12, and her subsequent total knee of 12/11/12, and she will again be able to
work full-time after her recuperation from the total knee arthroplasty as of 3/11/13,
and beyond.” He wrote: “From an orthopedic viewpoint her bilateral hip and knee
conditions do not preclude the standing and walking required of an ER physician, nor
does her degenerative disc disease preclude the other light physical demands of that
profession.”
On March 28, Standard affirmed its decision to discontinue Whitley’s benefits.
In a twenty-two-page letter to Whitley’s counsel, Standard concluded:

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- “[B]ecause we were unsure whether Dr. Whitley would be able to provide
[CPT code information showing her Own Occupation was emergency medicine]
during the independent review process, we conducted our review to include the
physical demands and Material Duties of an[] Emergency Room Physician as well [as
Family Practitioner].”
- When Whitley originally requested a review of the decision to close her claim,
she stated she wanted to return to full time work but was not ready to do so. As the
review process continued, Whitley indicated she may be unable to return to work, and
Dr. Lindholm “stated she is totally disabled,” in contradiction to Dr. Lindholm’s
statements before the claim was closed.
- “No specific ongoing cognitive deficits have been identified that would affect
her ability to safely perform all of the Material Duties of her Own Occupation of
Family Practitioner (or even an Emergency Room Physician . . .), either on a part time
or on a full time basis.”
- No “physical limitations or restrictions from her motor vehicle accident . . .
would have precluded her from working on a full time basis with reasonable
continuity as of July 31, 2012.” While Whitley has ongoing complaints of pain from
her orthopedic conditions, “our review of the medical records available and the
opinions of the Physician Consultants does not find that her chronic pain or orthopedic
conditions are significant enough to preclude work activities.”
- “Because Dr. Whitley’s limitations and restrictions prior to the claim closure
on July 31, 2012, were not related to her knees, but instead due to her cognitive
inefficiencies,” any impairment due to knee surgeries after the claim was closed is not
covered under the terms of the Policy.
This lawsuit followed. Whitley claims that Standard abused its discretion in
determining that her Own Occupation was family medicine, rather than emergency
medicine, and in discontinuing her long term disability benefits. The district court
granted Whitley summary judgment, agreeing with both contentions. The court
granted disability benefits from August 1, 2012, “to the present” and until Whitley is

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no longer disabled from her Own Occupation as emergency medicine physician, and
awarded her attorney’s fees and costs in a stipulated amount.
II. Discussion.
A. If an ERISA plan expressly grants discretionary authority to the plan
administrator, as in this case, we review the administrator’s benefits determination for
abuse of discretion. Waldoch v. Medtronic, Inc., 757 F.3d 822, 829 (8th Cir. 2014).
“Under the abuse of discretion standard of review, we must uphold a plan
administrator’s decision so long as it is based on a reasonable interpretation of the
Plan and is supported by substantial evidence. A decision is reasonable if a reasonable
person could have reached a similar decision, given the evidence before him, not that
a reasonable person would have reached that decision. We review [the] final claims
decision, not the initial denial letter, to ensure development of a complete record.”
Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., No.
14-3589, slip op. at 9, --- F.3d ---- (8th Cir. Jan. 29, 2016) (citations and quotations
omitted).
When the plan administrator is an insurer that is responsible for paying benefit
claims, such as Standard, it has a financial conflict of interest that a reviewing court
must take into account in determining whether the administrator, “substantively or
procedurally, has abused [its] discretion.” Metro. Life Ins. Co. v. Glenn, 554 U.S.
105, 115 (2008). Citing nothing more than Standard’s “pecuniary interest in denying
claims,” Whitley urges us to “conduct a more searching review of Standard’s decision
to terminate Whitley’s claim.” But altering the standard of review solely for this
reason would be contrary to the case-specific test adopted in Glenn. An insurer’s
structural conflict of interest “should prove less important (perhaps to the vanishing
point) where the administrator has taken active steps to reduce potential bias and to
promote accuracy.” Id. at 117, and at 126 (Kennedy, J., concurring). Here, Whitley
presented no evidence that Standard’s thorough claims review process was biased, and
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the record established that the medical professionals who peer reviewed Whitley’s
claim at Standard’s request were independent consultants, not Standard employees,
and that their compensation was not based on their findings. See Carrow v. Standard
Ins. Co., 664 F.3d 1254, 1259 (8th Cir. 2012). In these circumstances, the financial
conflict factor was reduced “to the vanishing point.”
B. Standard’s decision to discontinue LTD benefits effective July 31, 2012 -the only decision here at issue -- was based on its determination that the disabling
cognitive impairments suffered by Whitley in the February 2011 car accident had
improved to the point that she could return full-time to her Own Occupation. The
district court first ruled that Standard abused its discretion in determining that
Whitley’s Own Occupation was family medicine, not emergency medicine. Though
the parties argue this point at length on appeal, we conclude it is almost entirely a
straw man. Standard’s initial decision was based in part on a determination that
Whitley’s Own Occupation was her board-certified specialty as a family medicine
physician. But the final decision expressly stated that Standard “conducted our review
to include the physical demands and Material Duties of an[] Emergency Room
Physician as well [as Family Practitioner].” Because exhaustion of an ERISA plan’s
appeal procedures serves many important purposes, “the reviewing court reviews the
claim administrator’s final decision to deny a claim, rather than the initial denial that
was reconsidered during the internal appeal.” Galman v. Prudential Ins. Co. of Am.,
254 F.3d 768, 770-71 (8th Cir. 2001).
Although it failed to acknowledge this principle, the district court went on to
conclude that “Standard’s consulting physician reports contain only unsupported and
conclusory assertions regarding Whitley’s ability to generally perform work in an
emergency setting.” That issue is part of the judicial review of Standard’s final
decision, but the district court’s conclusion is inconsistent with abuse of discretion
review. During the appeal process, all of Standard’s consulting physicians addressed
this issue. Dr. Morgan found that Whitley “does not have any restrictions or
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limitations with respect to her work as a family practice physician in an emergency
room setting . . . based on the nature of her mild concussion post-concussion
syndrome and the normalization of her neuropsychological testing.” Dr. Williams
considered “the unique demands of emergency room practice” as described by a
vocational consultant and opined that a gradual return to work was “overly
restrictive.” Dr. Greif noted that Whitley would need to be monitored when first
working in an emergency room but opined that “it is reasonable to try a full-time
return [to work].” Dr. Fancher was consulted again and noted “that in emergency
medicine more than other disciplines, one’s work is more closely scrutinized.” Dr.
Lambe opined that Whitley’s hip, knee, and degenerative disc disease “do not
preclude the standing and walking required of an ER physician,” nor the other light
physical demands of that profession. The administrative record more than adequately
supports the manner in which Standard addressed the Own Occupation issue in its
final decision.
C. Turning to the main issue, the district court concluded that Standard abused
its discretion in discontinuing benefits because its “consulting physicians totally
dismiss, without support, the recommendation of Whitley’s treating physicians that
she should return to work on a part-time basis, with supervision, to determine whether
or not she can perform her job duties.” That is the pivotal issue, and it is not free from
doubt. When she appealed Standard’s adverse initial decision, Whitley wanted to
return to work and felt she had recovered the cognitive ability to perform her work as
an emergency room physician, but wished to return to Lake Region on a part-time
basis. Her treating physicians all agreed she had recovered her cognitive and other
abilities but opined that she should initially return to work on a part-time basis.
Standard’s independent medical experts agreed that Whitley had regained the ability
to perform the material duties of her Own Occupation but disagreed that a part-time
return to work was necessary. Lake Region brought this issue to the forefront when
it could not (or would not) accommodate a part-time return to work on the terms
Whitley requested.
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On this record, we conclude that substantial evidence supported Standard’s
decision to discontinue benefits because Whitley had recovered the ability to return
to her Own Occupation on a full-time basis. Standard provided Whitley the “full and
fair review” ERISA required before denying her appeal from the initial decision to
discontinue LTD benefits. See Prezioso v. Prudential Ins. Co. of Am., 748 F.3d 797,
805-06 (8th Cir. 2014). At the end of this process, Standard was faced with
conflicting expert opinions on an issue the objective medical evidence could not
definitively resolve -- whether Whitley had recovered from the car accident
sufficiently to work on a full-time basis, or only on a part-time basis. In resolving this
conflict, Standard was not required to give special deference to the opinions of
Whitley’s treating physicians. Black & Decker Disability Plan v. Nord, 538 U.S. 822,
825 (2003).
Both the treating physicians and the consulting physicians agreed that Whitley
could return to work on July 31, 2012, but disagreed whether she was able to return
on a full-time basis initially. The clinical neuropsychologist, Dr. Williams, reviewed
Whitley’s medical records, spoke with Dr. Bergloff, and reviewed “actual raw test
data” from her cognitive tests. The neurologist, Dr. Morgan, concluded that Whitley’s
complaints of pain and mental fatigue were “complaints . . . of tolerance,” not
objective evidence. The orthopedic surgeon, Dr. Lambe, considered the effects of
knee surgeries and degenerative disc disease and found that Whitley could withstand
the “light physical demands” of work as an emergency room physician. Dr. Greif
recommended a gradual return to work but agreed “it is reasonable to try a full-time
return.” All the independent consultants expressly considered the contrary
recommendations of Whitley’s treating physicians and opined that Whitley was able
to go back to work full-time, even in the somewhat more demanding emergency room
environment.
“When there is a conflict of opinion between a claimant’s treating physicians
and the plan administrator’s reviewing physicians, the plan administrator has
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discretion to deny benefits unless the record does not support denial.” Johnson v.
Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006); see also Carrow, 664 F.3d at
1259; Bolling v. Eli Lilly & Co., 990 F.2d 1028, 1029-30 (8th Cir. 1993). Only when
the evidence relied on is “overwhelmed by contrary evidence” may the court find an
abuse of discretion. Coker v. Metro. Life Ins. Co., 281 F.3d 793, 799 (8th Cir. 2002)
(quotation omitted). In view of the conflicting opinions contained in the voluminous
administrative record, Standard’s decision to deny Whitley’s claim based on the
opinions of its independent consultants was not an abuse of discretion. Hunt v. Metro.
Life Ins. Co., 425 F.3d 489, 490-91 (8th Cir. 2005) (per curiam).
III. Conclusion.
Paragraphs 1-4 and 7-8 of the district court’s Amended Judgment in a Civil
Case dated February 27, 2015, are reversed and the case is remanded for entry of an
amended final judgment consistent with this opinion. See Johnson v. United of
Omaha Life Ins. Co., 775 F.3d 983, 989 (8th Cir. 2014).
______________________________

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