Kennedy v. Sun Life Assurance Company of Canada

Filing 24

MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on June 16, 2011. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JOHN D. KENNEDY
v.

PLAINTIFF
Case No. 08-CV-1034

SUN LIFE ASSURANCE COMPANY OF CANADA

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to the provisions of the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1001 et seq., alleging Defendant wrongly denied his claim
for long term disability benefits and waiver of life insurance
premiums under the El Dorado Chemical Company Employee Group
Benefits Plan issued by Defendant.

Before the Court are the

Administrative Record (Doc. 6), Plaintiff’s Brief (Doc. 16), and
Defendant’s Brief (Doc. 22).

For the reasons stated herein, the

Court finds that Defendant’s decision to deny benefits was not
supported by substantial evidence.

Therefore, Plaintiff’s claims

for long term disability benefits and a waiver of premiums on life
insurance benefits are GRANTED. Plaintiff’s claim for attorney’s
fees and costs is also GRANTED.
I. Background
A.

Plaintiff’s Stroke

Plaintiff was employed by the El Dorado Chemical Company as a
Chemical Facility Maintenance Supervisor.
Plaintiff suffered an apparent stroke.

On August 22, 2005,
Plaintiff was at home

washing his car when he began to feel nauseated and tired.
into his house to rest.

SL 0189.

He went

The following day, Plaintiff

reported for work in the morning and shared a morning beverage with
his co-workers.

At that point, a co-worker asked Plaintiff what

was wrong and pointed out that Plaintiff was spilling his drink.
Plaintiff realized that the right side of his face was numb.

He

was taken to the emergency room of the Medical Center of South
Arkansas in El Dorado.

Id.

When Plaintiff presented at the

hospital, he complained of numbness of the right arm and leg,
dysphagia

(trouble

swallowing),

hypertension (high blood pressure).

vertigo

(dizziness),

SL 0152.

and

The attending

physician at the hospital, Dr. Richard Davis, noted Plaintiff
displayed “numbness with lack of temperature sensation in the right
arm and leg,” and that Plaintiff had received a cardiac stent in
the past due to unstable angina and a history of hypertension.

SL

0153.
Plaintiff

was

admitted

hypertension and stroke.
revealed no hemorrhage.

to

the

hospital

and

treated

for

The CT scan administered to Plaintiff
He was administered the drugs Plavix and

aspirin and underwent an MRI and an MRA, which showed a “very small
lacunar infarct.”1

SL 0154.

The MRI and MRA results showed a

1

According to http://en.wikipedia.org/wiki/Lacunar_stroke,
a lacunar infarct “is a type of stroke that results from occlusion
of one of the penetrating arteries that provides blood to the
brain’s deep structures.”
2

“mild to moderate frontal and convexity cortical cerebral atrophy,”
as well as ”...a 1 cm sphere of bright signal” and “...[s]mall
bright T2...in the left frontal white matter.”

SL 0163.

While in

the hospital, on August 25, 2005, Plaintiff underwent a swallowing
test, which concluded that Plaintiff had “[m]arked weakness of that
part of the swallowing that entails elevation of the larynx.

The

proximal esophagus remained opened through this study as evidence
of weakness of the sphincter.”

SL 0159.

Plaintiff saw a neurologist during his stay in the hospital,
Dr. Ghulam Khaleel, who noted decreased sensory modalities in the
right upper extremity and an unsteady gait due to right lower
extremity weakness.

Dr. Khaleel noted the MRI and MRA looked

essentially normal, except for a small right frontal lacunar
infarct.

Dr. Khaleel concluded Plaintiff had reversible ischemic

neurological deficit (RIND), which is a type of infarction (stroke)
of

limited

duration,

usually

24-72

hours.

See

http://en.wikipedia.org/wiki/Transient_ischemic_attack.
When Plaintiff was discharged from the hospital on August 25,
2005, Dr. Davis diagnosed him as having had a “cerebrovascular
accident” or CVA (stroke).

SL 0169.

Plaintiff was advised by Dr.

Davis not to return to work “at present.”
discharge,

Dr.

Davis

noted

that

Id.

Plaintiff

At the time of
still

had

“mild

dysphagia” and “persistent numbness” in his right arm or right leg,
but otherwise “no neurological deficits.”

3

SL 0154.

The administrative record in this case reflects that Plaintiff
returned to Dr. Davis for follow-up examinations approximately
every

two

weeks

following

February 14, 2006.
March 28, 2006.

discharge

SL 0142-0151.

SL 0217.

from

the

hospital

until

Thereafter, he saw Dr. Davis on

Plaintiff was also seen in follow-up by

Dr. Khaleel “on a regular basis, at least two times a month,”
according to a letter Dr. Khaleel wrote on September 1, 2006. SL
0025.

The record contains notes from Dr. Khaleel’s physical

examinations of Plaintiff on September 28, 2005 and July 10, 2006.
SL 0284.
B.

Medical Reports by Dr. Davis

A cursory examination of the follow-up reports of Plaintiff’s
treating physician, Dr. Davis, reveals that Plaintiff continued to
be treated for essentially the same symptoms he had while in the
hospital.
symptoms

There is no evidence in the record that Plaintiff’s
normalized

or

disappeared

during

the

year

following

Plaintiff’s stroke.
During Plaintiff’s examination by Dr. Davis on August 31,
2005, Dr. Davis wrote on the chart “dysphagia” and “dizziness”; on
September 14, 2005, a follow-up examination with Dr. Davis for “HTN
[hypertension] + CVA [stroke]” revealed that Plaintiff’s blood
pressure was 150/96, which is in the hypertensive range; during
Plaintiff’s check-up on September 24, 2005, the diagnosis continued
to be “CVA”; on October 25, 2005, Dr. Davis noted Plaintiff’s blood

4

pressure was 162/108 and that Plaintiff was “still numb R[ight]
hand and leg”; in November, Plaintiff had another “follow up CVA”
and continued to have uncontrolled high blood pressure of 150/100,
despite taking prescribed medications; the examination on December
14, 2005, revealed continuing “HTN [hypertension]” “fingers + nails
split on ends” and “dizziness”; Plaintiff’s symptoms were no better
on December 27, 2005, with continued high blood pressure readings
of 180/120 and “dizziness”; on January 10, 2006, Plaintiff’s blood
pressure was 160/102, and under the “neurological” section of the
chart,

Dr.

Davis

noted

“no

change”;

on

January

24,

2006,

Plaintiff’s hypertension was still uncontrolled at 150/100, but Dr.
Davis noted nothing further on the chart; finally, on February 14,
2006, Dr. Davis wrote down the names of the various medications
prescribed for Plaintiff’s hypertension, high cholesterol, and
depression, and recorded his blood pressure at 134/80, which is the
lowest it had been since the stroke.

SL 0145-0151.

The last physical examination of Plaintiff by Dr. Davis in the
record occurred on March 28, 2006, when Dr. Davis noted a normal
blood pressure standing of 110/70, and a pre-hypertensive pressure
lying down of 130/802.

SL 0217.

Dr. Davis wrote on the chart that

2

The National Heart Lung and Blood Pressure Institute of
the National Institutes of Health reports the following ranges for
normal and high blood pressure readings in adults: normal is less
than 120/80; pre-hypertension range is 120-139/80-89; stage 1
hypertension range is 140-159/90-99; and stage 2 hypertension is
greater than 160/100.
http://www.nhlbi.nih.gov/hbp/detect/categ.htm.
5

Plaintiff was still “dizzy a lot” and jotted down the words
“dizziness” “CVA” and “hypertension.”

Id.

In a June 7, 2006 letter addressed to “To Whom It May Concern”
and considered by Defendant in evaluating Plaintiff’s claim for
benefits, Dr. Davis opined:
“[Plaintiff’s]

rehabilitation

from

the

stroke

has

been

complicated by recurrent vertigo and disequilibrium. This has
been a significant problem with quick head movements and quick
changes of position of his body.

At times, he has had

episodic periods of a disequilibrium to where he has felt as
if he was going to fall.

He has actually had some episodes of

falling since the stroke.
not improved.”

This has been recurrent.

It has

SL 0051.

As detailed above, Dr. Davis reported on Plaintiff’s continued
complaints of dizziness during the six-month follow-up period after
Plaintiff’s initial hospitalization for stroke.

In the June 7

letter, Dr. Davis concluded:
“[Dizziness] keeps [Plaintiff] from being able to safely
operate dangerous equipment.

It keeps him from being able to

climb, and it keeps him from being able to drive at times.
For this reason, I feel that he should not work in an area
where dangerous equipment or dangerous materials exist.

He

should not work in an area where he would be required to
climb.”

Id.

6

Dr. Davis also determined that, due to Plaintiff’s continued
symptoms of weakness in his lower extremity, “the maximum distance
that he can walk is approximately 200 feet.”
C.

Id.

Medical Reports by Dr. Khaleel

Dr. Khaleel is the neurologist who examined Plaintiff in the
hospital after his stroke in August of 2005.

Dr. Khaleel’s notes

from his examination on August 24, 2005, stated that an “old
infarct in the R[ight] Frontal Lobe area has been consulted for
tingling,

numbness

&

weakness

on

RUE/RLE

[Right

Upper

Extremity/Right Lower Extremity] that seems to have now stabilized
after initial progression over the last several days.”

SL 0285.

He

balancing

also

noted

that

Plaintiff

“had

especially in the R[ight] foot.”

difficulty

in

Dr. Khaleel found that Plaintiff

complained of “food choking & swallowing difficulty.” He evaluated
the Plaintiff’s right and left upper and lower extremities as to
range of motion, and scored them “5/5”; however, in the next line
of the chart, the doctor noted Plaintiff’s “[u]nsteady gait due to
RLE [Right Lower Extremity] weakness” and that Plaintiff “had some
difficulty

in

performing

tandem

gait,

9

modalities on RUE [Right Upper Extremity].”

[decreased]

sensory

Id.

Dr. Khaleel’s diagnosis in the hospital was that Plaintiff
suffered a stroke, in particular, a Reversible Ischemic Neuro

7

Deficit (RIND).3

Id.

In his follow-up examination with Dr.

Khaleel on September 28, 2005, Plaintiff’s neurological functions
were described as “stable,” but Dr. Khaleel noted that Plaintiff
still had difficulty with “swallowing and R[ight] sided sensory
symptoms...”
2006,

nearly

SL 0284
ten

These symptoms had not disappeared in July

months

later,

as

Dr.

Khaleel

noted

again

Plaintiff’s “R[ight] sided weakness” and “9 [decreased] sensory
modalities in a glove distribution on RUE [Right Upper Extremity].”
Dr. Khaleel wrote a letter on September 1, 2006, summarizing
his observations of Plaintiff’s neurological condition.

SL 0025.

Dr. Khaleel stated that Plaintiff had an MRI on August 9, 2006,
which “continued to show right frontal deep white matter that could
have infarcted along with mild central and moderate cortical
atrophy in a symmetric cerebral involvement.”

He also noted that

Plaintiff “could not retain his balance and this makes him very
upset and nervous...”

SL 0025.

3

An ischemic stroke, like the one Plaintiff had, occurs
when an artery that supplies oxygen-rich blood to the brain becomes
blocked. “Ischemia” is defined by Dorland’s Illustrated Medical
Dictionary 681 (26th ed. 1985), as a “deficiency of blood in a
part, due to functional constriction or actual obstruction of a
blood vessel.” High blood pressure is generally not the cause of
an ischemic stroke; rather, high blood pressure is often the cause
of a hemorrhagic stroke, which occurs when an artery in the brain
leaks blood or ruptures.
http://www.nhlbi.nih.gov/health/dci/Diseases/stroke/stroke_treatm
ents.html. Plaintiff’s CT scan was negative for hemorrhaging. SL
0154.
8

C.

Plaintiff’s Claim for Disbility Benefits

On or around January 22, 2006, Plaintiff submitted a claim to
Defendant for Long Term Disability benefits.

SL 0103-0117.

Plaintiff’s claim was denied on April 26, 2006, based on a review
of the medical file and a telephone interview with Plaintiff
conducted by Senior Benefit Analyst Jacqueline Heintz, who has no
medical training or qualifications.

SL 0246-0249.

The denial

letter notes that Plaintiff’s file was “referred to our medical
department for review;” however, the record indicates that only a
registered nurse, Ms. Loretta Dionne, reviewed the file.4
Dionne’s
supporting

review

acknowledges

Plaintiff’s

much

stroke

of
and

the

medical

resulting

Nurse

evidence
swallowing

difficulties, decreased strength and numbness in the right hand and
leg, lack of temperature sensation in the right arm and leg, and
vertigo.

But remarkably, her sole conclusion after her review of

the medical record is that Plaintiff had high blood pressure which
in her view “began to normalize around 1/24/2006.”5

SL 0063.

Based on Nurse Dionne’s opinion and Ms. Heintz’s assessment,
Plaintiff received disability benefits only for the period of
4

At no time in the claims or appeals process did Defendant
direct Plaintiff to undergo an independent examination by a doctor
selected
by
Defendant.
Defendant’s
consulting
medical
professionals only reviewed the paper file and never personally
examined Plaintiff.
5

Plaintiff’s blood pressure on this date was 150/100,
which is not normal. SL 0143.
9

November 21, 2005, through January 24, 2006, in the amount of
$197.01.

SL 0248.

On April 26, 2006, also based on Nurse Dionne’s report,
Defendant determined that Plaintiff was ineligible for a waiver of
premium benefits under his group life insurance policy, because he
was not deemed “Totally Disabled” as defined by the policy.

SL

0251.
Plaintiff appealed Defendant’s decision to deny long term
disability benefits and a waiver of group life premium benefits on
May 4, 2006.

SL 0056.

Defendant then contracted with Dr. Burt W.

Hall, in internal medicine specialist, to review Plaintiff’s claims
for benefits. Dr. Hall submitted his medical opinion, based on his
review of the record, in a letter dated July 25, 2006.

SL 0041.

Dr. Hall’s five-page letter reviews the medical evidence and
provides conclusions that are different from those presented by
Plaintiff’s treating physicians.

First, it is apparent that,

despite Dr. Davis and Dr. Khaleel’s opinions to the contrary, Dr.
Hall disputes that Plaintiff had a stroke in August 2005. Dr. Hall
notes that he reviewed the hospital records, imaging studies and
laboratory tests, and follow-up reports from Plaintiff’s doctors.
Id.

Yet, Dr. Hall states, “it is not entirely clear to this

reviewer how the diagnosis of CVA [stroke] was established insofar
as

imaging

accident.”

studies

failed

to

Id.

10

reveal

a

new

cerebrovascular

Dr. Hall concedes that in the hospital Dr. Davis diagnosed
Plaintiff with a CVA (stroke); however, Dr. Hall disputes this
diagnosis and states: “there is no evidence based upon the imaging
studies that were performed during the claimant’s hospitalization
that he actually had a new CVA.”

Id.

Dr. Hall incorrectly states

that the next six months of follow-up examinations with Dr. Davis
“were primarily for evaluation and follow-up of the hypertension
alone.”

SL 0042.

Dr. Hall disregards Dr. Davis’s notes on

Plaintiff’s right-sided weakness and dizziness and focuses instead
on Dr. Davis’s handwriting, which Dr. Hall complains is “most
difficult to decipher.”

Id.

Dr. Hall observes that Dr. Khaleel “noted some decreased
sensory

modalities

involving

the

right

upper

extremity”

and

Plaintiff’s “[g]ait was noted to be somewhat unsteady due to some
right lower extremity weakness.” However, Dr. Hall summarizes that
by September 28, 2005, “the neurological status was stable.”

Id.

Though Dr. Hall is not a neurologist and never examined
Plaintiff, he opines that if Plaintiff did have a stroke, “it would
have involved the left middle cerebral artery territory in order to
give him right-sided symptoms.”

SL 0043.

Dr. Hall cannot provide

an explanation for Plaintiff’s complaints of right-sided weakness,
dizziness, and inability to grasp, climb, push, pull, balance, or
crawl. Instead, Dr. Hall disregards the evidence of these symptoms
and repeatedly states he is “unclear” as to why Plaintiff has such

11

limitations.

In Dr. Hall’s opinion, Plaintiff has “no motor

neurological deficit” and “no motor impairment involving the right
side.” Id. He concludes that Plaintiff should be capable of light
work “based upon the lack of any documentation on imaging studies
that the claimant, in fact, did have a CVA back in August 2005.”
Id.
Dr. Hall’s opinion that: “neither Dr. Davis nor Dr. Khaleel
has provided any findings on physical examination that there are
any neurological deficits involving the right side” is clearly
contrary to the evidence in the record.

He then concludes that

“[e]ven at the time of the initial hospitalization, the only
deficit that was found was some numbness involving the right side,”
which ignores the Plaintiff’s doctors’ observations and objective
testing of

Plaintiff’s

difficulties

with

swallowing,

vertigo,

weakness, and lack of temperature sensation on the right side of
his body.

SL 0044.

Plaintiff’s consistent complaints about episodic vertigo and
disequilibrium, which has been confirmed on follow-up examinations
by Dr. Davis, are seemingly ignored by Dr. Hall.

Dr. Hall

apparently thinks that since “[g]enerally, strokes that involve the
left hemisphere are not usually associated with recurrent vertigo
and disequilibrium,” this means that Plaintiff’s complaints of
vertigo are a fiction.

Id.

Dr. Davis describes Plaintiff’s

disequilibrium since the stroke as “recurrent” and that Plaintiff

12

“has actually had some episodes of falling since the stroke.”
0051.

Yet

Dr.

Hall

summarily

finds

“no

basis...for

restrictions and limitations imposed by Dr. Davis.”

SL
the

SL 0044.

Dr. Khaleel’s observations of “diminished sensory modalities
in a glove-like distribution involving the right upper extremity”
are dismissed by Dr. Hall as “difficult to explain,” as are “the
claimant’s ongoing complaints of right-sided weakness.”

Id.

Dr.

Hall states wrongly that “[t]here certainly was not any evidence of
right-sided weakness other than numbness on initial presentation
back in August and certainly not during follow-up evaluations by
Dr. Khaleel,” when the evidence from Dr. Khaleel’s notes in August
2005

and

in

unsteady gait,

follow-up

examinations

shows

Plaintiff

exhibited

difficulty balancing, and lack of sensation in his

right hand. Regarding Dr. Davis’s view that Plaintiff is unable to
walk more than “approximately 200 feet,” (SL 0051) Dr. Hall states,
“[i]t is not clear where this significant weakness of the lower
extremities is actually coming from” but concludes decisively that
Plaintiff “does not have any neurological motor deficits as a
result of his TIA [mini-stroke] that occurred on 8/23/05.”

SL

0045.
In summary, Dr. Hall’s medical expertise in the area of
strokes leads him to conclude that “at best...the claimant suffered
a TIA, which was probably brought on by a hypertensive crisis,”
(Id.) even though the medical evidence indicates no rupture or

13

hemorrhage in the brain due to hypertensive crisis, but rather a
lacunar infarct due to blockage in one of the brain’s arteries.

SL

0154. In the last paragraph of Dr. Hall’s opinion, he does concede
that perhaps Plaintiff suffered a mini-stroke, but that “[ministrokes] by definition resolve spontaneously and completely within
a couple of days.”

SL 0045.

Therefore, because Plaintiff’s

symptoms should have resolved due to the limitations imposed by Dr.
Hall’s own diagnosis, Dr. Hall claims they must have resolved in
fact, and therefore “claimant really has not had any change in his
functionality from September 2005 through the present time.”
D.

Id.

Plaintiff’s Mental Health

Because some of Plaintiff’s medical records indicated that he
had complained of and taken medication for anxiety and depression,
Defendant sent Plaintiff’s file to Dr. Ronald Pies, a psychiatrist,
for review.

SL 0340-0341.

Although Dr. Pies noted that Plaintiff

suffered from a number of underlying medical conditions that could
predispose

him

to

depression,

there

was

“rather

meager

documentation of any significant depressive symptoms in the record
as a whole, for the index period of 8/05 to the present.”

No

comprehensive mental status examination was conducted by any of
Plaintiff’s doctors, nor was Plaintiff ever seen by a psychiatrist.
Dr. Khaleel observed that Plaintiff had “decreased energy, lack of
motivation and signs of depression,” which Dr. Khaleel treated with
the drug Paxil.

SL 0025.

Dr. Davis found that Plaintiff had

14

“recurrent difficulties with depression with associated symptoms of
insomnia, anxiety, and melancholy,” which “caused withdrawal and
extreme inability to handle stress.”

SL 0051.

While Dr. Pies noted that the medical records showed Plaintiff
may have suffered from depression as early as December 2005, “it is
not possible to determine if the degree of depression reaches the
level of an incapacitating psychiatric disorder” or whether it was
continuous from December 2005 through June 2006 based on the
information in the file.
E.

SL 0341.

Plaintiff’s Vision Problems

Plaintiff also submitted notes from his ophthalmologist, Dr.
Parnell, dated January 18, 2006 (SL 0255), showing that Plaintiff
had a cataract; however, Plaintiff failed to provide further
medical support for any eye problems post-dating his stroke or
otherwise caused by his stroke.

The rest of Dr. Parnell’s medical

reports pre-date the August 2005 stroke, and thus may describe preexisting, disqualified conditions.

SL 0277-0282.

Moreover, Dr.

Parnell did not comment on whether Plaintiff’s eye condition would
affect his ability to work.
Dr.

Khaleel

noted

in

a

September

1,

2006,

letter

that

Plaintiff saw Dr. Ivory Kinslow for “an isolated left fifth nerve
palsy, Keratitis Sicca in the left eye and minimal cataracts in
both eyes.”

SL 0025.

However, there are no medical reports in the

record from Dr. Kinslow.
15

II. Standard of Review
A denial of benefits claim under ERISA is reviewed for an
abuse

of

discretion

discretionary

power

when
to

“a

plan

construe

gives

the

uncertain

administrator

terms

or

to

make

eligibility determinations.” King v. Hartford Life & Accident Ins.
Co., 414 F.3d 994, 998-99 (8th Cir. 1997)(en banc)(citing Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)).

If a plan

confers discretionary authority, then the Court must defer to the
determination made by the administrator or fiduciary unless such
determination is arbitrary and capricious.
115.

“[R]eview

for

an

‘abuse

of

Firestone, 489 U.S.

discretion’

or

for

being

‘arbitrary and capricious’ is a distinction without a difference”
because the terms are generally interchangeable.

Jackson v.

Prudential Ins. Co. of Am., 530 F.3d 696, 701 (8th Cir. 2008),
citing Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 946 n.4
(8th Cir. 2000).
The parties agree that abuse of discretion is the proper
standard of review in this case.

Therefore, the decision of the

administrator may only be overturned if it was not “reasonable,
i.e., supported by substantial evidence.”
F.3d 894, 899 (8th Cir. 1996).

Donaho v. FMC Corp., 74

The administrator’s decision will

be deemed reasonable if “a reasonable person could have reached a
similar decision,

given

the

evidence

before

him, not

reasonable person would have reached that decision.
16

Id.

that

a

If the

decision is supported by a reasonable explanation, it should not be
disturbed, even though a different reasonable interpretation could
have been made.

Cash v. Wal-Mart Group Health Plan, 107 F.3d 637,

(8thCCir. 1997), citing Donaho, 74 F.3d at 899.
The Court must examine the basis behind the administrator’s
decision in order to determine if it is supported by substantial
evidence.

The evidence must be assessed by its quantity and

quality, and this review, “though deferential, is not tantamount to
rubber-stamping the result.”

Torres v. Unum Life Ins. Co. of Am.,

405 F.3d 670, 680 (8th Cir. 2005).
There are five factors the Court must analyze in order to
determine whether an administrator’s decision was reasonable:
(1) whether the administrator’s interpretation is consistent
with the goals of the Plan; (2) whether the interpretation
renders any language in the Plan meaningless or internally
inconsistent; (3) whether the administrator’s interpretation
conflicts with the substantive or procedural requirements of
the

ERISA

statute;

(4)

whether

the

administrator

has

interpreted the relevant terms consistently; and (5) whether
the interpretation is contrary to the clear language of the
Plan.
Id., citing Shelton v. ContiGroup Cos., Inc., 285 F.3d 640,
643 (8th Cir. 2002).
In addition to analyzing these five factors, the Court must

17

also consider that a conflict of interest may exist in this case,
as Defendant both determines whether an enrollee is eligible for
benefits and also pays the benefits out of its own pocket.
Plaintiff contends the conflict of interest should be considered as
a factor in determining whether there was an abuse of discretion.
See Hackett v. Standard Ins. Co., 559 F.3d 825, 830 (8th Cir.
2009)(citing Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343
(2008)). The Supreme Court has stated that a reviewing court is to
give importance to this conflict of interest depending upon how
closely the other factors are balanced.

Glenn, 128 S. Ct. at 2351.

Accordingly, the Court will review the denial of benefits for an
abuse of discretion, taking into account relevant factors to
include the potential conflict of interest.6
III. Discussion
In determining whether Defendant’s denial of benefits was
reasonable and supported by substantial evidence, the Court must
review the quantity and quality of the medical evidence provided in
the administrative record, as well as the relevant provisions of

6

The Court’s will not give deference to the Social
Security Administration’s decision to award Plaintiff disability
benefits. ERISA determinations of disability benefits are not
subject to the same requirements as Social Security disability
determinations.
Coker v. Metropolitan Life Ins. Co., 281 F.3d
793, 798 (8th Cir. 2002), citing Ciulla v. Usable Life, 864
F.Supp. 883, 888 (W.D.Ark. 1994)(“ERISA plans are not bound by
Social Security determinations, and this court owes no deference
to findings made under the Social Security Act.”).
18

the benefit plan (“Plan”).

The Court will apply the deferential

standard and the five-factor test of reasonability to determine
whether there was an abuse of discretion.

Shelton v. ContiGroup

Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002)
A.

The Plan

The Plan states that a participant is eligible for disability
benefits if he is “Totally...Disabled due to an Injury or Sickness;
and under the regular and continuing care of a Physician that
provides appropriate treatment and regular examination and testing
in accordance with your disabling condition.”

SL 0356.

Under the

Plan, a claimant is “Totally Disabled” due to “Injury or Sickness”
if during the elimination period and the next 24 months a claimant
is “unable to perform the Material and Substantial Duties of [his]
Own Occupation.”

SL 0469.

The term “Own Occupation” is “the usual

and customary employment, business, trade, profession or vocation
that the Employee performed as it is generally recognized in the
national economy immediately prior to the first date Total or
Partial Disability began.” SL 0468.

To receive long term benefits

longer than 24 months, an employee must be disabled from “any
Gainful Occupation” in order to continue to receive benefits. Id.
A “Gainful Occupation” is “employment that is or can be expected to
provide an Employee with an income of at least 60% of his Indexed
Total Monthly Earnings.”

SL 0466.

If an employee is disabled

under the Plan before the age of 60, as is the case here, the

19

employee’s life insurance premiums are waived.
B.

SL 0509.

Five-Factor Test of Reasonability

Defendant

determined

that

Plaintiff

was

not

entitled

to

disability benefits except for the period of November 21, 2005
through January 24, 2006, which is approximately a two-month
period.

SL 0248.

The Plaintiff’s stroke and hospitalization,

which led to his persistent symptoms of right-sided numbness and
weakness, vertigo, and difficulty walking, among other problems,
began in August 2005.

SL 0145-0151.

Under the Eighth Circuit’s holding in Shelton v. ContiGroup
Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002), the first factor to
consider in evaluating the reasonability of a Plan administrator’s
denial

of

ERISA

benefits

is

whether

the

administrator’s

interpretation is consistent with the goals of the Plan.

The

Plan’s goal or intent is to provide disability benefits to an
employee who is “Totally...Disabled due to an Injury or Sickness;
and under the regular and continuing care of a Physician that
provides appropriate treatment and regular examination and testing
in accordance with your disabling condition.”

SL 0356.

Here, the administrator’s decision to deny Plaintiff benefits
was inconsistent with the goals of the Plan.
records,

objective

tests,

and

follow-up

Plaintiff’s hospital
examinations

by

his

treating primary doctor, Dr. Davis, and his neurologist, Dr.
Khaleel, demonstrate that Plaintiff suffered a stroke in August

20

2005 and continued to suffer multiple disabling symptoms related to
that incident for the following months.
the

record

reviewing

to

support

doctor,

that

the

opinion

Plaintiff

of

did

There is no evidence in
Dr.
not

Hall,
suffer

Defendant’s
a

stroke.

Moreover, there is no evidence to support Dr. Hall’s assertion that
the only medical issue that Plaintiff’s doctors monitored in
follow-up examinations was Plaintiff’s high blood pressure. On the
contrary, there is evidence in the form of both objective testing
and subjective evaluation, documented by two treating physicians
over a period of months, that Plaintiff’s stroke caused him rightsided weakness, dizziness, numbness in the right hand, inability to
balance, inability to walk for great distances, and inability to
operate machinery.
Even assuming Dr. Hall is correct and Plaintiff did not suffer
a stroke, the medical evidence is overwhelming that Plaintiff was
disabled after his hospitalization in August of 2005. Defendant
abused its discretion in relying on Dr. Hall’s opinion as reviewing
physician that Plaintiff’s sole disabling condition post-August
2005 was hypertension.

Regardless of the cause of Plaintiff’s

impairments, the fact that he is actually impaired is obvious in
light of the medical evidence in the record.
The

second

factor

in

assessing

the

reasonability

of

Defendant’s decision is whether the interpretation renders any
language in the Plan meaningless or internally inconsistent.

21

Shelton, 285 F.3d at 643. Since the medical evidence only supports
a

determination

that

Plaintiff

has

episodic

vertigo,

trouble

balancing, right-sided weakness, and numbness in his right hand,
Defendant had the obligation under the Plan to assess whether or
not Plaintiff could perform “the Material and Substantial Duties of
[his] Own Occupation.”

SL 0469.

Defendant’s occupation at the time of disability onset was
Chemical

Facility

Maintenance

Supervisor.

Plaintiff’s

description was provided to Defendant at SL 0100-0102.
generally

a

hands-on

maintenance

position

with

job

The job is
supervisory

functions. Some of the supervisory tasks listed in the written job
description are: “order parts and materials as necessary for
repairs; coordinate repairs to limit excessive down time and
overtime;” and “plan and issue work schedules to ensure continual
safe and efficient operation of the plant.”
supervisory,

essentially

maintenance

obviously not sedentary in nature.
are:

“provide

or

coordinate

Id.

tasks,

But the non-

are

varied

and

Some of these hands-on tasks

Maintenance

Technician

training

including formal training, on the job training, and feedback
through performance reviews and disciplinary actions; respond to
job call back after working hours and/or on weekends and holidays;
inspect completed jobs for quality assurance; respond to unplanned
operational or maintenance events; direct the daily work activity
for

maintenance

needs

on

a

plant-wide

22

basis”

and

“diagnose

operational problems and recommend corrective action.”

Id.

Under the “Required Knowledge, Skills and Abilities” section
of Plaintiff’s job description, a person employed in maintenance
like Plaintiff is required to know how to operate tools and
equipment used at the plant, work with chemicals, travel across
“rough, uneven,

or

rocky

surfaces”

at

the

facility,

and

“be

physically capable of operating the vehicles safely.” All of these
are non-sedentary tasks.

Id.

Defendant abused its discretion in failing to perform any
meaningful assessment of Plaintiff’s job functions in light of his
medical complaints.
received

from

The denial of benefits letter Plaintiff

Defendant

wrongly

stated

that

“[t]here

is

no

documentation to support the extent of weakness in your extremities
or problems with dizziness.”

SL 0248.

There was no discussion in

the letter about Plaintiff’s job description or analysis of whether
his medical restrictions would impact his ability to perform any
aspect of his job.
Nurse

Loretta

Dionne,

who

initially

reviewed

Plaintiff’s

medical records for Defendant made no mention of Plaintiff’s job
description and did not analyze the medical evidence presented in
light of Plaintiff’s occupation.

SL 0062-0063.

She notes that

Plaintiff is “capable of sedentary activities,” yet does not
explain

how

Plaintiff’s

occupation

was

a

sedentary

one.

Strikingly, Nurse Dionne copies word-for-word in her report the

23

medical notes in the file from Dr. Davis and Dr. Khaleel, detailing
Plaintiff’s “decreased strength with numbness in right hand and
leg” and “dizziness;” yet she concludes, contrary to the medical
evidence

transcribed

in

her

own

report,

that

“[t]he

above

limitations and restrictions are not supported by the medical
documentation.” She does not elaborate further to support her
conclusion. Id.
Dr.

Burt

Hall,

who

examined

Plaintiff’s

non-psychiatric

medical claims, demonstrates a predisposition to find against the
Plaintiff.

This is a factor that weighs in favor of the Court

finding a conflict of interest, where as here, “circumstances
suggest

a

higher

likelihood

that

it

decision...” Glenn, 128 S.Ct. at 2351.

affected

the

benefits

Throughout his written

opinion, Dr. Hall alternates between conceding that Plaintiff’s
treating physicians produced medical evidence substantiating his
physical

problems

after

the

August

2005

stroke,

and

either

disagreeing that the problems actually existed or disagreeing about
the root cause of the problems.

Dr. Hall’s stubborn adherence to

his conclusion that Plaintiff is perfectly fine is mystifying, even
to Dr. Hall, who qualifies many of his unsubstantiated conclusions
with the words “it is difficult to explain...” or “it is not
clear...” SL 0043.
Dr. Hall states: “[i]t is also not clear why the claimant is
not able to drive, as the neurological examination has shown no

24

motor impairment involving the right side and, at best, shows a
mild sensory impairment.”

SL 0043.

But later on in the opinion,

Dr. Hall records that Plaintiff’s neurologist, Dr. Khaleel, saw
Plaintiff “for follow-up of his right-sided weakness” and did a
physical examination on Plaintiff that revealed “decreased sensory
modalities in a glove distribution in the right upper extremity.”
Id.
In examining the remaining three of the five factors announced
in Shelton, this Court must assess the following in determining
whether

an

abuse

administrator’s

of

discretion

decision

to

deny

occurred:

(1)

whether

benefits

conflicts

with

the
the

substantive or procedural requirements of the ERISA statute; (2)
whether the administrator has interpreted the words at issue
consistently; and (3) whether the administrator’s interpretation is
contrary to the clear language of the Plan.

These factors can all

be addressed by examining the meaning of the terms in the Plan’s
definitions section.
Dr.

Hall

See SL 0466-0469.

assesses

Plaintiff’s

ability

to

perform

his

“Occupation” without analyzing what is required for Plaintiff’s
Occupation.

This is an abuse of discretion.

Defendant did not

hire an vocational expert to opine about Plaintiff’s ability to do
his job.

Neither did Benefit Analyst Jacqueline Heintz discuss in

her denial of benefits letter the physical demands of Plaintiff’s
maintenance job in relation to any of his treating physician’s

25

observations of his medical condition.

Defendant, pursuant to its

own Plan language, was required to assess whether Plaintiff could
continue to do “the usual and customary employment, business,
trade, profession or vocation that the Employee performed as it is
generally recognized in the national economy immediately prior to
the first date Total or Partial Disability began.”

SL 0468.

Instead, Defendant relied on Dr. Hall, who minimized the medical
evidence (“the only deficit that was found was some numbness
involving the right side...” SL 0043), misstated the medical
evidence (“it is not clear on what this restriction is based since
the claimant has no motor neurological deficit to account for any
impairment in use of the hands” Id.), and ignored the medical
evidence (“Clearly, if the claimant did have a stroke as Dr. Davis
claims, there would only be weakness in one extremity.
even that does not seem to be the case.”

However,

Id.).

Defendant correctly observes that insurance companies are not
required to give more weight to the opinions of doctors who treat
the patient, as opposed to those who merely review the patient’s
file.
(2003).

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834
However, the Supreme Court’s holding in Black & Decker

does not mean that insurance companies and courts are forbidden
from giving more weight to treating doctors’ opinions rather than
the opinions of doctors who review the record alone.

See Jobe v.

Medical Life Ins. Co., 2010 WL 3732227 (W.D. Mo. Sept. 17, 2010) at

26

*7.

The

Court

in

Black

&

Decker

expressly

stated:

“Plan

administrators, of course, may not arbitrarily refuse to credit a
claimant’s reliable evidence, including the opinions of a treating
physician.”

Black & Decker, 538 U.S. at 834.

In the instant case, Plaintiff’s treating physicians, Dr.
Davis and Dr. Khaleel, documented Plaintiff’s physical disabilities
over a period of follow-up examinations for the duration of nearly
a year.

Defendant’s reviewing physician, Dr. Hall, evidenced bias

in conducting his review in that he disregarded evidence, minimized
evidence, substituted his own unfounded conclusions for those of
Plaintiff’s treating physicians, and failed to assess Plaintiff’s
occupational demands in light of the medical evidence.

It is

reasonable for an administrator to deny benefits based on a lack of
objective evidence.

Coker, 281 F.3d at 799.

But here, we have

overwhelming evidence, including objective evidence, that Plaintiff
is disabled.
To receive long term benefits longer than 24 months, an
employee must be disabled from “any Gainful Occupation.” SL 0466.
“Gainful Occupation” is “employment that is or can be expected to
provide an Employee with an income of at least 60% of his Indexed
Total Monthly Earnings.”

SL 0466.

Defendant failed to undertake

even the most cursory of assessments regarding whether Plaintiff
could perform any Gainful Employment in light of the uncontroverted
evidence of his physical limitations since August 2005.

27

It is not

appropriate to conclude that Plaintiff’s job is merely sedentary.
The

evidence

in

the

record

supports

Plaintiff’s

treating

physicians’ opinion that Plaintiff suffers from a Class 4 Physical
Impairment, which according to the Plan is “moderate limitation of
functional capacity capable of clerical/administrative (sedentary)
activity.”

SL

Plaintiff’s

job

0115.

According

description,

the

to

the

tasks

plain

involved

language
in

being

of
a

maintenance worker are physical in nature, though there are some
clerical tasks involved in being the maintenance supervisor.
0100-0102.

SL

Accordingly, it is the opinion of the Court that

Defendant’s denial of disability benefits in this case based on
Plaintiff’s physical complaints was not reasonable and was not
supported

by

substantial

evidence.7

Since

Plaintiff

became

disabled before the age of 60, according to the Plan, Plaintiff is

7

Regarding Plaintiff’s mental impairment and vision
claims, Defendant’s decision to deny benefits based on these
impairments is reasonable and supported by substantial evidence.
It is noted that Plaintiff failed to submit a medical evaluation
for his mental health problems from a qualified psychiatrist.
Moreover, Plaintiff failed to submit medical documentation
regarding any eye impairment except for cataracts. In reviewing
the record, the Court finds that Defendant’s determination that
Plaintiff’s mental impairment and eye impairment did not qualify
for disability benefits is affirmed. However, it is the judgment
of the Court that Plaintiff is entitled to receive long term
disability benefits due to his demonstrated physical impairments
proceeding from the August 2005 stroke, including episodic vertigo,
trouble balancing, inability to walk more than 200 feet, rightsided weakness, and right-hand numbness.
Defendant abused its
discretion in denying Plaintiff benefits based on these physical
disabilities.
28

entitled to have life insurance premiums waived.
C.

See SL 0509.

Attorney’s Fees

Plaintiff has made a claim for reasonable attorney’s fees and
costs. In determining whether to award attorney’s fees in an ERISA
case, the Court will utilize the five-factor test that the Eighth
Circuit announced in Lawrence v. Westerhaus, 749 F.2d 494, 496
(8thC Cir. 1984)(per curiam).

They are: (1) the degree of the

opposing parties’ culpability or bad faith; (2) the ability of the
opposing parties to satisfy an award of attorneys’ fees; (3)
whether an award of attorneys’ fees against the opposing parties
could deter other persons acting under similar circumstances; (4)
whether the parties requesting attorneys’ fees sought to benefit
all participants and beneficiaries of an ERISA plan or to resolve
a significant legal [question] regarding ERISA itself; and (5) the
relative merits of the parties’ positions.
Defendant relied on the opinions of a nurse and a doctor in
deciding to deny benefits.

Neither the nurse nor the doctor

examined Plaintiff, but instead reviewed the medical evidence
supplied by two treating physicians over a span of nearly a year.
The medical evidence also included objective testing, including a
CT scan, two MRIs, an MRA, a swallowing test, and other tests.
Defendant’s reviewing physician, Dr. Hall, littered his opinion
with

misstatements

and

grossly

mis-characterized

evidence, to the Plaintiff’s detriment.

29

the

medical

It is difficult to read

Dr. Hall’s opinion without considering that he intended to deny
benefits to the Plaintiff regardless of what the medical evidence
showed.
In light of these facts evidencing Defendant’s lack of care
and rigor in its claims review process, and its total reliance on
Dr. Hall’s opinion, the Court finds that the first, third, and
fifth Westerhaus factors have been met.

The Court finds that

Defendant is an insurance company that has the ability to pay
Plaintiff’s attorney’s fees, so the second factor is also met.

As

for the fourth factor, this favors Defendant, as Plaintiff’s suit
will only benefit his own application for benefits.

Nevertheless,

in considering the weight of the other four factors that have been
met, and considering that the five factors “are by no means
exclusive or to be mechanically applied,” Martin v. Ark. Blue Cross
& Blue Shield, 299 F.3d 966, 972 (8th Cir. 2002), the Court finds
that Plaintiff is entitled to attorney’s fees and costs in this
matter.
IV. Conclusion
Plaintiff’s claim for long-term disability benefits due to
physical impairment is GRANTED. Plaintiff’s claim for a waiver of
premiums on life insurance benefits due to his total disability is
also GRANTED.
Defendant is ordered to pay Plaintiff benefits as of the date
his benefits were wrongfully terminated, January 24, 2006, less any
30

offset for Social Security Disability payments received, up until
the date of judgment.

Thereafter, Defendant is to pay Plaintiff

disability benefits monthly, less an offset for Social Security
Disability payments.
Defendant is further ordered to pay Plaintiff’s life insurance
premiums from January 24, 2006, until Plaintiff’s death, according
to the Plan’s requirements.
Plaintiff’s

request

that

Defendant

pay

his

reasonable

attorney’s fees and costs is also GRANTED. Plaintiff’s attorney is
directed to submit a petition for fees and costs to the Court
within fourteen (14) days from the date of this Order.

Defendant

shall have fourteen (14) days thereafter to file a response.
IT IS SO ORDERED this 16th day of June, 2011.

/s/ Robert T. Dawson
HONORABLE ROBERT T. DAWSON
UNITED STATES DISTRICT JUDGE

31