Kennedy v. Sun Life Assurance Company of Canada
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
Case No. 08-CV-1034
SUN LIFE ASSURANCE COMPANY OF CANADA
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.
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.
The following day, Plaintiff
reported for work in the morning and shared a morning beverage with
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.
was taken to the emergency room of the Medical Center of South
Arkansas in El Dorado.
When Plaintiff presented at the
hospital, he complained of numbness of the right arm and leg,
hypertension (high blood pressure).
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.
hypertension and stroke.
revealed no hemorrhage.
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
The MRI and MRA results showed a
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.”
“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.”
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.
proximal esophagus remained opened through this study as evidence
of weakness of the sphincter.”
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
Dr. Khaleel noted the MRI and MRA looked
essentially normal, except for a small right frontal lacunar
Dr. Khaleel concluded Plaintiff had reversible ischemic
neurological deficit (RIND), which is a type of infarction (stroke)
When Plaintiff was discharged from the hospital on August 25,
2005, Dr. Davis diagnosed him as having had a “cerebrovascular
accident” or CVA (stroke).
Plaintiff was advised by Dr.
Davis not to return to work “at present.”
At the time of
dysphagia” and “persistent numbness” in his right arm or right leg,
but otherwise “no neurological deficits.”
The administrative record in this case reflects that Plaintiff
returned to Dr. Davis for follow-up examinations approximately
February 14, 2006.
March 28, 2006.
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
The record contains notes from Dr. Khaleel’s physical
examinations of Plaintiff on September 28, 2005 and July 10, 2006.
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
There is no evidence in the record that Plaintiff’s
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
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
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.
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.
Dr. Davis wrote on the chart that
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.
Plaintiff was still “dizzy a lot” and jotted down the words
“dizziness” “CVA” and “hypertension.”
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:
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.
This has been recurrent.
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.
should not work in an area where he would be required to
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.”
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
Extremity/Right Lower Extremity] that seems to have now stabilized
after initial progression over the last several days.”
especially in the R[ight] foot.”
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
modalities on RUE [Right Upper Extremity].”
Dr. Khaleel’s diagnosis in the hospital was that Plaintiff
suffered a stroke, in particular, a Reversible Ischemic Neuro
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
These symptoms had not disappeared in July
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.
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...”
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.
ents.html. Plaintiff’s CT scan was negative for hemorrhaging. SL
Plaintiff’s Claim for Disbility Benefits
On or around January 22, 2006, Plaintiff submitted a claim to
Defendant for Long Term Disability benefits.
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.
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
difficulties, decreased strength and numbness in the right hand and
leg, lack of temperature sensation in the right arm and leg, and
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
Based on Nurse Dionne’s opinion and Ms. Heintz’s assessment,
Plaintiff received disability benefits only for the period of
At no time in the claims or appeals process did Defendant
direct Plaintiff to undergo an independent examination by a doctor
professionals only reviewed the paper file and never personally
Plaintiff’s blood pressure on this date was 150/100,
which is not normal. SL 0143.
November 21, 2005, through January 24, 2006, in the amount of
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.
Plaintiff appealed Defendant’s decision to deny long term
disability benefits and a waiver of group life premium benefits on
May 4, 2006.
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.
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.
Yet, Dr. Hall states, “it is not entirely clear to this
reviewer how the diagnosis of CVA [stroke] was established insofar
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.”
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
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.”
Dr. Hall observes that Dr. Khaleel “noted some decreased
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.”
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.”
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
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.”
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
weakness, and lack of temperature sensation on the right side of
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.
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.
Dr. Davis describes Plaintiff’s
disequilibrium since the stroke as “recurrent” and that Plaintiff
“has actually had some episodes of falling since the stroke.”
restrictions and limitations imposed by Dr. Davis.”
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.”
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
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.”
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
hemorrhage in the brain due to hypertensive crisis, but rather a
lacunar infarct due to blockage in one of the brain’s arteries.
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.”
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.”
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,
Although Dr. Pies noted that Plaintiff
suffered from a number of underlying medical conditions that could
documentation of any significant depressive symptoms in the record
as a whole, for the index period of 8/05 to the present.”
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.
Dr. Davis found that Plaintiff had
“recurrent difficulties with depression with associated symptoms of
insomnia, anxiety, and melancholy,” which “caused withdrawal and
extreme inability to handle stress.”
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.
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.
Parnell did not comment on whether Plaintiff’s eye condition would
affect his ability to work.
Plaintiff saw Dr. Ivory Kinslow for “an isolated left fifth nerve
palsy, Keratitis Sicca in the left eye and minimal cataracts in
However, there are no medical reports in the
record from Dr. Kinslow.
II. Standard of Review
A denial of benefits claim under ERISA is reviewed for an
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.
Firestone, 489 U.S.
‘arbitrary and capricious’ is a distinction without a difference”
because the terms are generally interchangeable.
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
reasonable person would have reached that decision.
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
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
interpreted the relevant terms consistently; and (5) whether
the interpretation is contrary to the clear language of the
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
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
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
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
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.”).
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)
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.”
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]
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.”
If an employee is disabled
under the Plan before the age of 60, as is the case here, the
employee’s life insurance premiums are waived.
Five-Factor Test of Reasonability
disability benefits except for the period of November 21, 2005
through January 24, 2006, which is approximately a two-month
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.
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
interpretation is consistent with the goals of the Plan.
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.”
Here, the administrator’s decision to deny Plaintiff benefits
was inconsistent with the goals of the Plan.
treating primary doctor, Dr. Davis, and his neurologist, Dr.
Khaleel, demonstrate that Plaintiff suffered a stroke in August
2005 and continued to suffer multiple disabling symptoms related to
that incident for the following months.
There is no evidence in
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
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.
Defendant’s decision is whether the interpretation renders any
language in the Plan meaningless or internally inconsistent.
Shelton, 285 F.3d at 643. Since the medical evidence only supports
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.”
Defendant’s occupation at the time of disability onset was
description was provided to Defendant at SL 0100-0102.
The job is
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.”
obviously not sedentary in nature.
But the non-
Some of these hands-on tasks
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
operational problems and recommend corrective action.”
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
physically capable of operating the vehicles safely.” All of these
are non-sedentary tasks.
Defendant abused its discretion in failing to perform any
meaningful assessment of Plaintiff’s job functions in light of his
The denial of benefits letter Plaintiff
documentation to support the extent of weakness in your extremities
or problems with dizziness.”
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.
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.
She notes that
Plaintiff is “capable of sedentary activities,” yet does not
Strikingly, Nurse Dionne copies word-for-word in her report the
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
limitations and restrictions are not supported by the medical
documentation.” She does not elaborate further to support her
medical claims, demonstrates a predisposition to find against the
This is a factor that weighs in favor of the Court
finding a conflict of interest, where as here, “circumstances
decision...” Glenn, 128 S.Ct. at 2351.
Throughout his written
opinion, Dr. Hall alternates between conceding that Plaintiff’s
treating physicians produced medical evidence substantiating his
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
motor impairment involving the right side and, at best, shows a
mild sensory impairment.”
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.”
In examining the remaining three of the five factors announced
in Shelton, this Court must assess the following in determining
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
See SL 0466-0469.
“Occupation” without analyzing what is required for Plaintiff’s
This is an abuse of discretion.
Defendant did not
hire an vocational expert to opine about Plaintiff’s ability to do
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
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.”
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.”
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
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
administrators, of course, may not arbitrarily refuse to credit a
claimant’s reliable evidence, including the opinions of a treating
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
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.
reasonable for an administrator to deny benefits based on a lack of
Coker, 281 F.3d at 799.
But here, we have
overwhelming evidence, including objective evidence, that Plaintiff
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.”
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.
It is not
appropriate to conclude that Plaintiff’s job is merely sedentary.
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)
maintenance worker are physical in nature, though there are some
clerical tasks involved in being the maintenance supervisor.
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
disabled before the age of 60, according to the Plan, Plaintiff is
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
entitled to have life insurance premiums waived.
See SL 0509.
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
evidence, to the Plaintiff’s detriment.
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
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.
for the fourth factor, this favors Defendant, as Plaintiff’s suit
will only benefit his own application for benefits.
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
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
Defendant is ordered to pay Plaintiff benefits as of the date
his benefits were wrongfully terminated, January 24, 2006, less any
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
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.
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.
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
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