Guthery v. SBC Umbrella Benefit Plan No. 1 et al

Filing 15

MEMORANDUM OPINION. Signed by Honorable Jimm Larry Hendren on August 26, 2013. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CHARLENE GUTHERY
v.

PLAINTIFF
Civil No. 12-5025

AT&T UMBRELLA BENEFIT PLAN NO. 1

DEFENDANT

MEMORANDUM OPINION
Plaintiff Charlene Guthery brought suit to obtain judicial
review of administrative denial of short term and long term
disability benefits under an ERISA benefits plan provided by her
employer.
1.

The matter is fully briefed and ripe for decision.
Guthery is an employee of AT&T, Inc., and a participant

in the AT&T Umbrella Benefit Plan No. 1 (the “Plan”), defendant
herein. Guthery became disabled on October 19, 2008, and received
short term disability benefits (“STD Benefits”) pursuant to the
Plan through December 11, 2008.

The Plan thereafter refused to

afford Guthery further STD Benefits, a decision which she here
claims was in error. The parties agree that Guthery has exhausted
her administrative remedies with respect to her claim for STD
Benefits, and that it is ripe for decision.
Guthery

also

claims

that

she

is entitled

to

long term

disability benefits (“LTD Benefits”) under the Plan, but as a
result of the denial of STD Benefits after December 11, 2008, the
Plan never reached consideration of whether Guthery was entitled
to LTD Benefits. As to this claim, the Plan contends that Guthery

has not exhausted administrative remedies.
2.

The

standard

by

which

the

Court

reviews

an

ERISA

benefits decision is dictated by the terms of the ERISA plan in
question.

Denial of ERISA benefits is “reviewed on a de novo

standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.”
Rubber

Co.

v.

administrator

Bruch,
has

489

U.S.

discretionary

101,

115

authority,

Firestone Tire &

(1989).
its

If

the

eligibility

decisions are reviewed for abuse of that discretion. Groves v.
Metropolitan Life Insurance Co., 438 F.3d 872 (8th Cir. 2006).
The Administrative Record (“AR”) does not contain a copy of
the Summary Plan Description (“SPD”), but the Plan has provided
one as an Exhibit to the Declaration of Crystal T. Miller, an
employee of AT&T Services, Inc., who oversees third party claims
administration of the Plan.
The SPD, effective February, 2008, sets out the details of
the Plan necessary to a determination of the other issues before
the Court, and does not constitute new factual information that
was not available to the parties at the time of the disability
determination.

Accordingly,

the

Court

will

consider

it

in

resolving this case.
3.

The Plan gives full discretion to determine benefits

claims and appeals to AT&T, Inc. (the Plan Sponsor); the Plan
-2-

Administrator; and “each person to whom review authority has been
delegated.”

The

SPD

further

states

that

AT&T

has

delegated

authority to determine whether a claimant is entitled to benefits
to a Claims Administrator. Under these circumstances, the Court’s
review of the benefits decision is deferential, rather than de
novo, review.
4.

The deferential, or abuse of discretion, standard of

review in ERISA cases has been explained as follows:
Under an abuse-of-discretion standard of review, a plan
administrator’s decision to deny or terminate benefits
must stand if it is reasonable, that is, if it is
supported by “substantial evidence.”
Substantial
evidence “means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
So long as the plan administrator’s “findings are
reasonable, they may not be displaced on review even if
the court might have reached a different result had the
matter been before it de novo.”
Delta Family-Care Disability and Survivorship Plan v. Marshall,
258 F.3d 834, 841 (8th Cir. 2001) (internal citations omitted).
“Substantial evidence” means “more than a scintilla but less
than a preponderance.”

Govrik v. Unum Life Insurance Co. of

America, 702 F.3d 1103, 1109 (8th Cir. 2013).
5.

Other provisions in the SPD that will be relevant in

this Memorandum Opinion are the following:
*

STD Benefits provide “some income replacement if an

Eligible Employee cannot work, with or without accommodations,
because of an approved Total Disability and/or Partial Disability
that results from either illness or injury.”
-3-

*

LTD Benefits continue that income replacement if an

employee is totally disabled “beyond the Maximum Duration” of STD
Benefits.
*

It appears that in Guthery’s job classification, STD

Benefits may continue for up to 52 weeks.
*

Total Disability for STD Benefits means that because of

illness or injury, an employee is unable to perform all of the
essential functions of her job, or of another job assigned to her.
*

In order to be considered for STD Benefits, an employee

must be under the care of a physician and “follow his or her
recommended treatment plan.”
*

Benefits end when the participant no longer meets the

requirements for disability; fails to comply with one or more
“terms of the Program”; is not under the care of a physician; does
not follow the physician’s recommended treatment plan; or fails to
provide medical documentation or other information reasonably
required by the Claims Administrator.
6.
the

Guthery contends that the AR should be supplemented by

inclusion

of

documents

that

were

not

before

the

claims

administrator at the time her STD Benefits were terminated.

She

argues that the Court should include in its review pages 135-329
of the AR, which were submitted to the Plan after February 12,
2009, the date her appeal was denied, and pages 330-425, which
pertain to a “relapse claim” which was made in 2010.

-4-

The

Plan

considered.

objects

that

these

materials

should

not

be

It contends that pages 135-329 were not before the

claims administrator when it terminated STD Benefits, and that
Guthery has not here asserted any rights under the relapse claim,
nor has she exhausted her administrative remedies as to that
claim.
When courts review administrative decisions under ERISA, “the
record that was before the administrator furnishes the primary
basis for review.” Trustees of Electricians’ Salary Deferral Plan
v. Wright, 688 F.3d 922, 925 (8th Cir. 2012) (citation and
quotation marks omitted).
The Court may consider evidence not in the AR only if good
cause is shown for its omission, i.e., reasons why it could not
have been timely provided. Rittenhouse v. UnitedHealth Group Long
Term Disability Insurance Plan, 476 F.3d 626, 630 (8th Cir. 2007).
Moreover, where there is sufficient evidence to rule on the issues
presented,
evidence.

there

is

little

basis

for

accepting

additional

Id. at 631.

As explained in Brown v. Seitz Foods, Inc., Disability
Benefits Plan, 140 F.3d 1198 (8th Cir. 1998),
[s]uch additional evidence gathering is ruled out on
deferential review, and discouraged on de novo review to
ensure expeditious judicial review of ERISA benefit
decisions and to keep district courts from becoming
substitute plan administrators.
140 F.3d at 1201 (internal citations and quotation marks omitted).
-5-

In the case at bar, because the standard of review is
deferential, and because there is sufficient evidence in the AR to
rule on the issues presented, the Court has not considered the two
categories of medical records to which defendant objects.1
7.

The facts relevant to Guthery’s STD Benefits claim, as

disclosed by the undisputed portion of the AR, are as follows:
*

Guthery had worked in an AT&T call center for 15 years

when she was “surplused” and re-assigned to work as a Premises
Technician.

Her new job description included lifting up to 80

pounds, climbing ladders and working aloft with hand tools, and
performing work “involving bending, kneeling, stooping, crouching,
crawling or other uncomfortable positions.”
*

Shortly after starting the new position, on October 11,

2008, Guthery fell from a step ladder while working, injuring her
back, shoulder and head.

She did not seek medical attention that

day, but went to the Emergency Room the following day.

An x-ray

showed “calcification projected anterior to the superior aspect of
L5 and L4,” “loss of the normal lordotic curve,” and “joint space
narrowing at C5-C6 and C6-C7" with “uncinate spurring,” but no
evidence of “acute bone injury.”
*

On October 15, 2008, Guthery saw Dr. Young at Mediserve

Walk-In Clinic (“Mediserve”) in Fayetteville, Arkansas. The Notes

1
This is not to say that good cause for the omission of documents in the
challenged portion of the AR has not been shown. Indeed, as can be seen from the tenor
of this Memorandum Opinion, if required to make a ruling on that issue, it is likely the
Court would find good cause.

-6-

kept by employees of the AT&T Integrated Disability Service Center
(“IDSC”),

the

claims

administrator

for

AT&T

disability

and

workers’ compensation claims, indicate that Guthery was referred
to this provider by IDSC.
Dr.

Young

diagnosed

a

swollen

right

knee

crepitus,” and multiple contusions and abrasions.

with

‘much

He prescribed

a Medrol Dosepak2, Flexeril3, and analgesics, and scheduled Guthery
to return on October 22, 2008.

He instructed Guthery to do no

kneeling, and limited squatting, standing, and climbing.
*

Also on October 15, 2008, IDSC generated a letter to

Guthery, informing her that she needed to take steps to have
medical information submitted to IDSC by October 28, 2008, in
order to be considered for disability benefits.

The letter

instructed Guthery to sign an Authorization to Release Medical
Information (“Medical Authorization”) and give it to her treating
physician along with a document entitled Instructions to the
Physician (“Instructions”). The letter further instructed Guthery
that

she

would

not

qualify

for

benefits

unless

her medical

documentation contained “information that establishes that your
condition prevents you from performing the duties of your job with
or without reasonable accommodations.”

2
A formulation of methylprednisolone, an adrenocortical steroid, used to treat,
among other things, arthritic conditions. Physicians’ Desk Reference, 49th Ed.

3
“[I]ndicated as an adjunct to rest and physical therapy for relief of muscle
spasm associated with acute, painful musculoskeletal conditions.” Physicians’ Desk
Reference, 49th Ed.

-7-

The Medical Authorization authorized health information to be
made available to IDSC “upon request.” It also authorized IDSC to
release that information to “any person or facility that . . .
impacts

determination

of

my

eligibility

for

.

.

.

workers’

compensation and/or disability benefits . . . to the extent all or
any of such health information is considered by AT&T IDSC or its
representative to be relevant to the determination of my claim.”
An

enclosure

entitled

“Instructions

to

the

Physician”

constituted a request from IDSC to Guthery’s physician to submit
medical records by October 28, 2008.
An

enclosure

entitled

“Instructions

to

the

Employee”

instructed Guthery to give her treating physician a copy of the
Medical

Authorization,

and

to

send

a

copy

of

the

Medical

Authorization with an original signature to IDSC.
*

The AR contains a document with the heading:
AT&T INTEGRATED DISABILITY SERVICE CENTER (IDSC)
WORKERS’ COMPENSATION VS. SHORT-TERM DISABILITY
FREQUENTLY ASKED QUESTIONS

These FAQs state that both workers’ compensation claims and
disability claims are reported to IDSC.

IDSC then sets up a

workers compensation claim (“WC Claim”) and a disability claim
(“DS Claim”).

The FAQs explain that each type of claim is

“managed” by several individuals.

WC Claims are managed by a WC

Examiner, a Telephonic Case Manager, and a Utilization Review
Nurse

(“WC

Team”).

DS

Claims

-8-

are

managed

by

a

Disability

Specialist with input from a Physician Advisor as needed (“DS
Team”).
One FAQ is “[w]ho provides medical information for my claim?”
The answer is:
It is the responsibility of your Treatment Provider to
prepare medical documentation.
It is ultimately the
employee’s responsibility in getting the medical
information submitted, however, the AT&T IDSC WC
Examiner and Disability Specialist will assist the
employee in obtaining medical information.
*

On October 17, 2008, Guthery signed and returned the

Medical Authorization requested by IDSC.
*

On October 22, 2008, Dr. Young saw Guthery, who noted

that she “[d]enies any improvement.”

Medications were continued,

and Guthery was referred to Dr. Weilert for pain management.

She

was allowed to return to work with no squatting or climbing, and
partial

capacity

for

standing.

The

chart

notes

“Patient

Discharged - Disability status to be determined by specialist.”
*

AT&T had no positions available that could accommodate

these restrictions.
*

On October 27, 2008, when Guthery had not improved on a

regimen of Flexiril, hydrocodone, and ibuprofen, a Mediserve
physician charted “To Dr. Weilert for pain management - Restricted
duty.”
That same date, Mediserve faxed a request to a Selma Mallot,
stating “[w]e need approval from WCC to send this pt to pain

-9-

management.
*

Thank you.”4

On October 29, 2008, Disability Specialist Richelle

Cabrales of IDSC wrote Guthery, informing her that she had been
approved for benefits from October 19, 2008, through November 11,
2008.

This

sufficiently

letter

notified

recovered

to

Guthery

return

to

that

if

she

was

not

work

by

November

11,

additional medical documentation would be needed, and that it was
her responsibility to provide it.
*

On October 31, 2008, Guthery contacted IDSC to find out

if authorization had been given for her to see the pain management
specialist.

She was advised that her case manager would contact

her.
*

On November 5, 2008, Guthery called IDSC again to

inquire about authorization to see the pain management specialist.
*

On

November

6,

2008,

Guthery

saw

Dr.

McCray

at

Mediserve. He diagnosed lumbar strain, and noted that Guthery was
worse, with increased radiculitis5 to her left leg in the past
week.

He also noted that she had been referred to Dr. Weilert,

who was out until November 17, 2008.

His plan was to obtain an

open MRI, and he noted that Guthery was “[u]nable to return to
work until after Re-Evaluation on 1-2-09.”
4
While the AR does not indicate who Mallot is, the language of this note indicates
that approval was being sought from the workers’ compensation carrier to refer Guthery
for pain management, and IDSC was handling the WC Claim. Thus it is reasonable to infer
that Mallot was part of the WC Team.

5

According to Steadman’s Medical Dictionary, 28th Ed., radiculitis is a disorder
of the spinal nerve roots.

-10-

That same day Mediserve faxed “Rachelle”6 at the IDSC fax
number, stating “we need approval for MRI (open) due to today’s
visit.”
*

On November 12, 2008, Cabrales again wrote Guthery,

informing her that she had been approved for benefits through
November

25,

2008,

and

repeating

the

information

about

her

responsibility to provide additional medical information if such
were needed.
That same day, Cabrales created a Note summarizing the
Mediserve chart note of November 6, 2008, to the effect that
Guthery was worse, and had “been referred to Dr. Wielert who is
out until 11/17/08.”
*

On November 20, 2008, Cabrales spoke with Dr. Weilert’s

office and was informed that Guthery did not keep her appointment
with him.
*

On November 25, 2008, Guthery was seen at Mediserve, and

the examiner noted that she was “[u]nable to return to work until
after Re-Evaluation on [sic] by Dr. Weilert 12/2.”

The Mediserve

physician (whose signature is illegible) discharged Guthery with
the

notation

“Patient

Discharged

-

Disability

status

to

be

determined by a specialist.”
Guthery called IDSC that same day, to check on the status of
her STD Claim.

6

Cabrales advised her of the need for updated

Probably Richelle Cabrales.

-11-

medical information by November 25, 2008.
*
her

On November 26, 2008, Cabrales called Guthery to advise

that

her

STD

Benefits

had

been

terminated

“due

to

no

medicals.”
*

On December 2, 2008, Guthery was seen by Brent Weilert,

M.D., a specialist in pain management.
“some

dull

occasional

ache

as

well

electrical

as

some

sensations

Guthery presented with

sharp,
and

shooting

numbness

and

pains

and

tingling

sensations starting across her back and occasionally going down
her legs,” made worse with activity and helped only minimally by
medications.
Dr. Weilert reviewed an MRI showing “mild canal stenosis at
L1-2,

L2-3 and

L3-4

with

degeneration,”

and “a

broad based

annular7 disk bulge with extension of disk material into the
neural exit foramen8, more prominent on the left than on the
right”

at

L4-5.

The

MRI

also

showed

“multilevel

facet

hypertrophy.”
Dr. Weilert concluded that Guthery “may benefit from a trial
of epidural steroid injections versus facet joint injections,” and
planned to seek permission from “Workers’ Compensation” to conduct
this trial.
*

7

On December 3, 2008, Cabrales wrote Guthery, informing

“Annular” refers to a ring shape.

Steadman’s Medical Dictionary, 28th Ed.

8

A “foramen” is an “aperture or perforation thruogh a bone or a membranous
structure.” Steadman’s Medical Dictionary, 28th Ed.

-12-

her that further benefits on her claim were denied from November
26, 2008 through her return to work date.

The explanation for

denial was that IDSC had “not received any medical documentation
to substantiate your time away from work.”

IDSC had received

medical information from Mediserve on November 6, 2008, but
nothing since then.

Mediserve had been contacted, and informed

IDSC that Guthery had been referred to Dr. Weilert. Dr. Weilert’s
office had been contacted, and informed IDSC that Guthery had not
kept her scheduled appointment and had no further appointments
scheduled.
The letter went on to state:
In order for your claim to qualify for disability
benefits, we would need clear documentation from your
treating physician that supports why you are not able to
perform the essential duties of your occupation. They
would need to document your functional impairments as
they relate to your diagnosis. They need to provide a
treatment plan for returning you to work and reasonable
restrictions with a reasonable duration.
Cabrales’ letter included information on how to appeal this
decision,

including

the

statement

“[y[ou

may

also

submit

additional medical or vocational information, and any facts, data,
questions or comments you deem appropriate for us to give your
appeal proper consideration.”
Appeal

Procedures

included

A set of printed instructions on
detailed

information

about

what

additional medical information could and should be submitted.
That same day Guthery called IDSC checking to see if her
medical information had arrived.
-13-

*

On December 8, 2008, Guthery completed an IDSC Quality

Review Unit Appeal Form.

She set forth the following reasons why

she was requesting an appeal of the benefits decision:
Mediserve did not fax medical information on time (Nov.
25th).
I was referred to Dr. Willert [sic] office but missed my
appt. due to illness and rescheduled for December 2nd at
which time I saw Dr. Willert and he was going to request
that I be approved for epidural steroid injections. His
office will contact me as soon as he receives approval
to schedule an appointment.
Also on December 8, 2008, Guthery called IDSC, checking yet
again

to see

if her

medical

information

had

been

received.

According to the Notes, she was told that “no med info has been
recvd under this claim but under the WC claim, there new med info
that came in.”

Guthery asked to speak with her Case Manager, who

was not available.
*

On December 9, 2008, Cabrale returned Guthery’s call,

and “[a]dvised [her] of what is needed to overturn denial.”
*

On December 30, 2008, IDSC received Guthery’s appeal

request.
*

On January 5, 2009, Jose Perez of IDSC wrote Guthery,

informing her that her request for appeal had been received, and
that she would receive a written response by February 12, 2009.
This letter instructed Guthery that “[m]edical records including
chart notes, diagnostic tests, and hospital summaries, relevant to
this absence should be submitted regardless of the length of the

-14-

disability.”
*

On

January

6,

2009,

Jennie

Ringo,

IDSC

Appeal

Specialist, called Guthery, to review the appeal process. Guthery
told Ringo that additional medical information would be submitted
for review.
*

On January 9, 2009, Guthery called IDSC and spoke with

Ringo, informing her that Dr. Weilert was still waiting for
approval to start treatment on her back.

Ringo did not at this

time have the medical records that had been furnished to the WC
Team, and told Guthery that the only way she could review that
medical information was for Guthery to ask the WC adjuster to copy
the medical information to the DS file.
*

On January 12, 2009, Guthery again called IDSC to see if

her medical information had been received.

She was advised that

Dr. Weilert’s chart was received on January 9, 2009.

This was

before any treatment for Guthery’s condition had been authorized,
a fact which IDSC knew because of Guthery’s call to Ringo three
days earlier.
*

On January 13, 2009, Guthery again called IDSC to check

on receipt of her medical records.

Ringo told her that a 12/2/08

note had been received from Dr. Weilert. Guthery told

Ringo that

she had had a CT scan and an MRI, and an office visit at Mediserve
on 11/25/08.

Ringo “[a]dvised she may want to follow up with her

[Workers’ Compensation case manager] to get the notes faxed over

-15-

to the disability claim.”
*

On January 14, 2009, Ringo reviewed Dr. Weilert’s chart

note of December 2, 2008, and summarized it in the file.

She left

out the part about Dr. Weilert’s recommendation of “epidural
steroid injections versus facet joint injections” and the fact
that he had to get permission from “Workers’ Compensation” to
conduct this trial.
*

On January 15, 2009, Ringo called Guthery to advise that

she had received Dr. Weilert’s December 2, 2008, chart note but
not the CAT scan or MRI report.

Guthery told Ringo that the WC

adjuster had these documents and that she would like to have them
copied to her disability file.

Ringo said she would send an e-

mail to the WC adjuster asking that these two reports be copied to
the disability file.
*

On January 20, 2009, Ringo again called Guthery, leaving

a voice mail message that she had not received the CAT scan or
MRI. She advised Guthery that Guthery could request extra time if
needed to “submit medical.”

She further advised that the Appeal

Specialist would need to hear from Guthery by close of business on
January 22, 2009, or she would “have to move forward with appeal
process.”
*

On January 23, 2009, Guthery’s file was forwarded to two

medical reviewers, Michael Gross, M.D., a specialist in internal
medicine and nephrology, and Jamie Lee Lewis, M.D., a specialist

-16-

in physical medicine and rehabilitation, and pain medicine.
*

On January 30, 2009, IDSC received the report of Dr.

Gross, who had evaluated Guthery’s medical records and talked with
a Dr. Price at Mediserve by telephone.
that

Guthery

standpoint,”

was
but

not
he

disabled

was

careful

It was Dr. Gross’ opinion

“from
to

an
note

internal
that

medicine9

Guthery

“has

significant back pain,” and that all her clinical findings “are
related to her back.”
*

Also on January 30, 2009, IDSC received the report of

Dr. Lewis, who evaluated Guthery’s medical records and placed a
call to Dr. Weilert, leaving a message on his answering machine.
When no return call had been received in 24 hours, Dr. Lewis
conducted the rest of the evaluation with no input from Dr.
Weilert.
Dr. Lewis noted the existence of “an MRI documenting a disc
extrusion at the L4-5 level into the foramen,” and stated that
“[p]rolonged stooping, bending, or twisting, or lifting heavy
objects

would

be

difficult

after

acute

disc

extrusion

or

herniation with active radiculopathy10 and would place the claimant
at increased risk of harm or injury until recovery is made and she
has initiated rehabilitative process.”

9
According to Steadman’s Medical Dictionary, 28th Ed., internal medicine is “the
branch of m[edicine] concerned with nonsurgical diseases in adults, but not including
diseases limited to the skin or to the nervous system.”

10

According to Steadman’s Medical Dictionary, 28th Ed., radiculopathy is synonymous
with radiculitis.

-17-

Dr. Lewis opined that Guthery was disabled until December 11,
2008, but found “no clinical information to support disability as
of 12/12/08 to the present,” although he did state that from
11/26/08 to the present, “[m]edical documentation suggests that
squatting, stooping, climbing, and kneeling would be limited on an
occasional basis.”
Dr.

Lewis

based

his

conclusions

on

his

opinion

that

“generally” for injuries such as Guthery had sustained, the
appropriate length of disability “would be at least 8 weeks.”

He

stated that “[f]urther documentation after initiation of treatment
proposed by Dr. Weilert would be needed to extend functional
limitations beyond eight weeks.”
*

On February 12, 2009, Ringo notified Guthery by letter

that IDSC was “partially upholding” the denial of Guthery’s STD
Benefits.

STD Benefits were approved through December 11, 2008,

but terminated thereafter.

Ringo stated that

[a]lthough some findings are referenced, none are
documented to be so severe as to prevent you from
performing the duties of your job as Premises Technician
with or without reasonable accommodation from December
12, 2008 through the present.
*

On

March

4,

2009,

the

Notes

reflect

a

call

from

Guthery’s union representative, wanting to know why her STD claim
was denied when Workers’ Compensation had not released her to
return to work.
*

On November 23, 2010, Guthery was released to return to

-18-

work.
*

On November 24, 2010, Guthery reported to work.

*

On November 27, 2010, Guthery was again injured at work.

8.

Based on the circumstances of this case, the Court finds

that the Plan abused its discretion in terminating Guthery’s STD
Benefits. The AR as summarized above reflects that termination of
Guthery’s STD Benefits was not supported substantial evidence.
The Court has reference to the following:
*

Guthery had objective evidence of a significant back

injury, an MRI showing a bulging disk.

She followed IDSC’s

recommendation about whom to consult (Mediserve), and saw the
doctors there on October 15, 22, 27, and November 6 and 25, 2008.
Her Mediserve physicians took Guthery off work and prescribed
various

medications.

In

spite

of

this

medication, Guthery did not improve.
by a pain specialist was recommended.

regimen

of

rest

and

She worsened, and treatment
No physician at Mediserve

ever released Guthery to return to work without restrictions, and
AT&T was unable to accommodate the restrictions.
*

Guthery had not even seen Dr. Weilert when IDSC decided

to terminate her STD Benefits for lack of medical documentation,
in spite of her five visits to Mediserve.

By the time she saw Dr.

Weilert,

pains

electrical

Guthery

had

sensations

“sharp
and

shooting

numbness

and

and

occasional

tingling

sensations

starting across her back and occasionally going down her legs,”

-19-

made worse by activity.

Dr. Weilert planned to obtain approval

from workers’ compensation to try epidural steroid injections.
*

There is no evidence that any delay in seeing Dr.

Weilert or beginning his proposed plan of treatment was the result
of fault on the part of Guthery.
Weilert’s unavailability.

Some delay was occasioned by Dr.

There was a short delay -- a few days

-- caused by Guthery’s illness.

Once she saw Dr. Weilert on

December 2, 2008, the remaining delay -- before treatment could
commence -- was caused by the need to obtain approval from the
IDSC WC Team to begin that treatment. The IDSC Appeals Specialist
knew that Guthery was awaiting approval for treatment from the WC
Team, and that supporting medical records would not be forthcoming
until treatment began.
*

The opinions of IDSC’s medical reviewers do not support

termination of benefits.

Dr. Gross’ opinion offers no support

whatsoever, relating, as it did, to internal medicine.

Guthery’s

physical problem was not an internal medicine problem.
Nor does Dr. Lewis’ opinion support termination of benefits.
It was based on a generalization -- that the minimum length of
disability for the type of injury Guthery had sustained was two
weeks -- and on the assumption that Guthery had recovered.
Lewis had no evidence that Guthery had recovered.

Dr.

Indeed, the

records he reviewed showed that Mediserve physicians had taken
Guthery off work; that conservative treatment had failed; that she

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had

never

been

released

her

to

return

to

work

without

restrictions; and that she had been referred her to a pain
specialist.
Dr. Lewis also had Dr. Weilert’s initial chart note, showing
that

he

proposed

a

course

of

treatment

--

epidural steroid

injections -- but had to get workers’ compensation approval first.
Thus, Dr. Lewis had no evidence of treatment -- other than the
unsuccessful rest and medication regimen -- on which to base his
opinion.11
Moreover, Dr. Lewis was of the opinion that existing medical
documentation “suggests that squatting, stooping, climbing, and
kneeling would be limited on an occasional basis,” and Guthery’s
job description included stooping, climbing, and kneeling.

AT&T

could not accommodate the limitations noted by Dr. Lewis.

Thus,

to the extent Dr. Lewis’s report is probative, it is evidence that
Guthery remained disabled as defined in the Plan , i.e., unable to
perform all of the essential functions of her job, or of another
job assigned to her.
9.

The Plan’s main contention for affirmance is that

Guthery failed to document her medical condition.

This argument

is sufficiently countered by evidence that IDSC informed Guthery

11
While Dr. Lewis indicated that treatment began on December 2, 2008, this is not
accurate. That was the date Guthery first saw Dr. Weilert, and he recommended a course
of steroid injections, but these could not commence until approval had been obtained
from the IDSC WC Team.
The AR contains no evidence that such approval was ever
received, or that treatment was ever begun.

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in

the

FAQs

that

it

would

assist

her

in

obtaining

medical

documentation, and that it had the ability to obtain medical
records both directly from the provider, and indirectly from the
IDSC WC Team.

Guthery called IDSC repeatedly to inquire whether

her medical records had been received, and was obviously having
difficulty obtaining them.
In spite of this, there was no effort by the DS Team to
assist Guthery in obtaining her medical records, nor any sharing
of medical information between the DS Team and the WC Team.

On

December 8, 2008, Guthery’s DS Team told her that the WC Team had
“new med info,” but the DS Team did not have it.

On January 9,

2009, Ringo told Guthery that the only way she could review
medical information in the hands of the WC Team was for Guthery to
ask the WC adjuster to copy the information to the disability
file.

This misinformation was repeated on January 13, 2009.

On

January 15, 2009, Ringo said she would send an e-mail to the WC
adjuster asking for the CAT scan and the MRI, but she still did
not have these documents on January 20, 2009.
Based on the foregoing, it is clear that this is not a case
where the claimant was lackadaisical about obtaining medical
treatment or records of that treatment. She was having difficulty
obtaining both.

Knowing that additional medical records existed,

and that IDSC did not have them, Ringo made no effort to assist
Guthery in obtaining them, but went forward with the reviews by

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Dr. Gross and Dr. Lewis.

Knowing that Dr. Weilert had not even

begun treatment of Guthery’s injury because he was waiting on
workers’ compensation approval, IDSC went ahead with the review
and termination of benefits.
10.

For the foregoing reasons, the Court finds that there is

no evidence to support the Plan’s decision that Guthery was able
to perform all of the essential functions of her job as of
December 11, 2008; that reasonable persons could not have reached
that conclusion on the evidence before the Plan; and it was an
abuse of discretion for the Plan to terminate Guthery’s benefits.
Indeed, the Court concludes that the only reasonable result
that could have been reached on the AR before IDSC was that
Guthery continued to be totally disabled until November 23, 2009,
the date on which she was finally released by the IDSC WC Team to
return to work.

As the IDSC WC Team refused to release Guthery to

return to work, she could not go to work and therefore remained
unable to perform all of the essential functions of her job, or of
another job assigned to her.

That is the definition of total

disability for STD Benefits under the Plan.
The Court will, therefore, reverse the decision of the Plan
to terminate Guthery’s STD Benefits, and will direct that the
parties meet and confer, and file a document of record -- within
28 days of the file date of this Order -- setting forth the amount
of unpaid STD Benefits that Guthery would have received through

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October 18, 2009, if AT&T had not terminated her STD Benefits as
of December 11, 2008.

Judgment for that amount, plus interest,

will thereafter be entered.
The Court will further direct the parties to file of record
-- also within 28 days of the file date of this Order -- any
agreement they may be able to reach on the amount of interest due
on the unpaid STD Benefits.

Failing such agreement, the parties

will be directed -- on that same date -- to file briefs on the
issue of what interest rate is appropriate.
11.

The Court agrees with the Plan that Guthery has not

exhausted her claim for LTD Benefits, because the point at which
such benefits would have been claimed was never reached.

Because

that point should have been reached -- since Guthery was not
released by the WC Team to return to work for over 52 weeks from
her injury -- as part of the remedy herein provided the Court will
remand Guthery’s potential LTD Benefits claim to the Plan, with
instructions to treat as timely any LTD Benefits claim that
Guthery chooses to assert within 28 days of the file date of this
Memorandum Opinion.
IT IS THEREFORE ORDERED that the Plan’s decision to terminate
Guthery’s STD Benefits as of December 11, 2008, is reversed, and
the Court will award Guthery judgment for the unpaid STD Benefits
that she would have received through October 18, 2009, with
interest thereon.

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IT IS FURTHER ORDERED that the parties meet and confer, and
file a document of record -- within 28 days of the file date of
this Memorandum Opinion -- setting out the amount of unpaid STD
Benefits that Guthery would have received through October 18,
2009, if AT&T had not terminated her STD Benefits as of December
11, 2008.
IT

IS

possible,

FURTHER
file

a

ORDERED

document

that

the

setting

parties

out the

confer,

agreed

and if

amount of

interest due on Guthery’s unpaid STD Benefits. Failing agreement,
each party is to brief for the Court the issue of what interest
rate is appropriate, within 28 days of the file date of this
Memorandum Opinion.
IT IS FURTHER ORDERED that Guthery’s potential LTD Benefits
claim is remanded to AT&T, with instructions that AT&T treat as
timely any LTD Benefits claim that Guthery chooses to assert
within 28 days of the file date of this Memorandum Opinion.
IT IS FURTHER ORDERED that any motion for attorney’s fees is
due within 28 days of the file date of this Memorandum Opinion,
with response to be filed within 14 days thereafter.
IT IS SO ORDERED, this 26th day of August, 2013.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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