Moberg v. Phillips Electronics North America Corporation Group Welfare Benefit Plan et al
MEMORANDUM OPINION affirming the decision of the Plan. Signed by Honorable Jimm Larry Hendren on November 15, 2013. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 12-5081
PHILLIPS ELECTRONICS NORTH AMERICA
CORPORATION GROUP WELFARE BENEFIT
PLAN and PHILLIPS ELECTRONICS NORTH
consideration plaintiff Kelly Moberg’s appeal of the denial of
long term disability benefits under an employee welfare benefits
plan sponsored by her employer Philips1 Electronics North America
administrative remedies, and that jurisdiction and venue are
proper in this Court.
While employed by Philips, Moberg was a participant in
the Philips Long Term Disability Plan (the “Plan”).
placed on short term disability (“STD”) in September, 2007.
Eventually Moberg transitioned from STD benefits to long term
disability (“LTD”) benefits, and LTD benefits were paid from March
11, 2008, until March 10, 2010.
However, because the Plan covers
neuro-musculoskeletal disorders only for 24 months -- subject to
The Court will identify this defendant by the spelling of its name that it
indicates is correct in its Brief.
certain exceptions -- and because Moberg was considered disabled
due to “degeneration, lumbar intervertebral disc,” Moberg’s LTD
benefits were terminated as of March 10, 2010.
Moberg exhausted administrative appeals of the decision to
terminate her LTD benefits.
The decision was upheld, and this
judicial appeal followed.
Judicial review of an administrative denial of ERISA
benefits utilizes “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
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
If the administrator has discretionary authority, its
eligibility decisions are reviewed for abuse of that discretion.
Groves v. Metropolitan Life Ins. Co., 438 F.3d 872 (8th Cir.
Moberg contends that de novo review is appropriate, while
defendants claim that discretionary review is appropriate.
The Administrative Record (“AR”) contains a Certificate
of Insurance (the “Certificate”) setting out the terms under which
Certificate provides that “the Plan, the Plan administrator and
other Plan fiduciaries shall have discretionary authority to
interpret the terms of the Plan and to determine eligibility for
an entitlement to Plan benefits in accordance with the terms of
The AR also contains a Summary Plan Description (“SPD”),
which provides that Philips is responsible for operation of the
Committee as the named fiduciary of the Plan; and that the ERISA
Administration Committee has designated MetLife Disability Unit
(“MetLife”) as claims administrator to handle payment of claims.
The SPD, which is a part of ERISA “plan documents,” Jobe v.
Medical Life Ins. Co., 598 F.3d 478, 481 (8th Cir. 2010), gives
MetLife “absolute discretion . . . to determine eligibility for
and entitlement to plan benefits. . . .”
administrative decision in this case is subject to review for
abuse of discretion.
The abuse of discretion standard for ERISA review has
been described as follows:
In applying an abuse of discretion standard, we must
affirm if a reasonable person could have reached a
similar decision, given the evidence before him, not
that a reasonable person would have reached that
A reasonable decision is fact based and
supported by substantial evidence. We may consider both
the quantity and quality of evidence before a plan
administrator. And we should be hesitant to interfere
with the administration of an ERISA plan.
Groves, 438 F.3d 872, 875 (internal citations and quotation marks
“Substantial evidence” is “more than a scintilla but less
Disability Income Plan, 341 F.3d 696, 701 (8th Cir. 2003).
Although abuse of discretion review puts a heavy burden on a
participant whose benefits have been terminated, it does not
amount to “rubber-stamping the result.”
A termination decision
must be reasonable, i.e., “supported by substantial evidence that
is assessed by its quantity and quality.”
Torres v. UNUM Life
Ins. Co. of America, 405 F.3d 670, 680 (8th Cir. 2005).
Moberg’s appeal was denied by a letter from Christine
Dewey, dated 9/28/10, not because of improvement in the condition
which had resulted in her being considered disabled, but due to a
limitation in the Plan.
After 24 months of benefits, the Plan
excludes disability relating to:
Neuromusculoskeletal and soft tissue disorder including,
but not limited to, any disease or disorder of the spine
or extremities and their surrounding soft tissue;
including sprains and strains of joints and adjacent
muscles, unless the Disability has objective evidence
spinal tumors, malignancy, or vascular
traumatic spinal cord necrosis; or
The Certificate defines these conditions as follows:
“Spinal” refers to “[c]omponents of the bony spine or
“Tumors” are “[a]bnormal growths which may be malignant
“Vascular Malformations” means “[a]bnormal development
of blood vessels.”
“Radiculopathies” means “[d]isease of the peripheral
nerve roots supported by objective clinical findings of nerve
“[d]isease of the
“Musculopathies” means “[d]isease of muscle fibers,
supported by pathological findings on biopsy or electromyography
Dewey’s letter informed Moberg that while “[t]here had been
radiculopathy, . . . there were no examination findings consistent
with lumbar or cervical radiculopathy.”
Moberg’s appeal was
Moberg then retained an attorney, who again appealed the
termination of her LTD benefits.
On August 3, 2011, Evelyn
Murphy, MetLife Appeals Specialist, wrote to Moberg’s attorney,
stating that “[t]he medical documentation does not support that
Ms. Moberg has objective evidence of any of the exclusions to the
limited benefit condition, such as seropositive arthritis, spinal
tumors, malignancy, or vascular malformation, radiculopathies,
myelopathies, traumatic spinal cord necrosis and musculopathies
beyong March 10, 2011 and continuing.”
limitation does not apply to her at all, but that if it does, her
medical records contain objective evidence of spinal tumors,
vascular malformations, radiculopathies, and musculopathies.
The Plan disputes all these contentions.
Moberg’s contention that the 24-month limitation does
not apply at all is without merit.
She contends that the
limitation applies only to soft tissue conditions, not conditions
affecting the spine itself, but the limitation clearly states that
it does apply to “any disease or disorder of the spine.”
The only support that might exist for Moberg’s argument is
that the limitation is stated somewhat differently in the SPD, as
it does not include the phrase “any disease or disorder of the
It reads as follows:
LTD benefits for disabilities resulting from neuromusculoskeletal and soft tissue disorder are payable for
up to a combined lifetime maximum of 24 months during
all disability periods, unless the disability has
Spinal tumors, malignancy, or vascular malformation
Traumatic spinal cord necrosis
None of the listed terms is defined in the SPD, nor is the
dictionary in its library, Stedman’s Medical Dictionary, 28th Ed.
While Stedman’s does not define “neuro-musculoskeletal, it does
define “neuromuscular” and “musculoskeletal.” “Neuromuscular” is
defined as “[r]eferring to the relationship between nerve and
muscle, in particular to the motor innervation of skeletal muscles
and its pathology.”
“Musculoskeletal” is defined as “[r]elating
to muscles and to the skeleton.”
Stedman’s also indicates that “neur” and its forms “neuri”
and “neuro” -- meaning “[n]erve, nerve tissue, the nervous system”
-- are “building blocks of medical language,” i.e., “prefixes,
suffixes, and combining forms that make up 90 to 95 percent of
musculoskeletal” refers to not only nerves and muscles but also
the skeleton, and that, of course, includes the spine.
Moberg’s contentions with regard to myelopathies, spinal
tumors, and vascular malformations are likewise without merit.
“Myelopathies” is defined in the Certificate as “[d]isease of
the spinal cord supported by objective clinical findings of spinal
The Court’s review of the AR reflects no
diagnosis of myelopathy, nor anything shown by the evidence to be
considered “objective clinical findings of spinal cord pathology.”
Moberg’s argument on this issue appears to conflate “spinal cord”2
with “spinal column” or, more generally, “spine.”
Nothing in the
AR suggests that a herniated or ruptured intervertebral disc
amounts to a disease of the spinal cord itself.
“Tumors” are defined as “[a]bnormal growths which may be
malignant or benign.”
Moberg contends that a diagnosis of
possible osseous hemangiomas3 on an MRI done 9/3/09 would bring
her within this exception. She also contends that bone spurs are
abnormal growths; that she has been diagnosed with spondylosis;
and that spondylosis can manifest itself as “abnormal growths or
‘spurs’ on the spine.”
“Vascular Malformations” are “[a]bnormal development of blood
vessels,” and Moberg contends that suspected Tarlov cysts4 found
during the 9/3/09 MRI would bring her within this exception.
These arguments are all based on speculation -- either about
whether the condition exists or about whether it is causing
symptoms -- and as such are without merit.
The real issue is Moberg’s contention that she suffers
from radiculopathies that take her case out of the 24-month
As defined in www.medilexicon.com, the spinal cord is “the elongated cylindric
portion of the cerebrospinal axis, or central nervous system, which is contained in the
spinal or vertebral canal.”
A benign tumor of the spine, according to the American Academy of Orthopedic
Surgeons, cited at AR 936.
A “perineural cyst found in the proximal radicles of the lower spinal cord.”
Stedman’s Medical Dictionary, 28th Ed.
repeatedly diagnosed her as suffering from radiculopathies, but
the issue on appeal is whether there are “objective clinical
findings of nerve root pathology” to support that diagnosis.
“Objective” means “open to observation by oneself and by others,”
as opposed to a symptom such as pain which can be observed only by
the patient and is, therefore, considered “subjective.” Stedman’s
Medical Dictionary, 28th Ed. (Emphasis added.)
Unfortunately, neither party has set out in any clear fashion
interpreting similar limitations in other MetLife ERISA plans for
guidance on this issue.
This is important because Moberg’s
physicians were tasked with diagnosing Moberg’s problems, not with
couching that diagnosis in the terminology of the Certificate.
In Brien v. Metropolitan Life Ins. Co., 2012 WL 4370677
(D.Mass. 2012), the witnesses discussed electrodiagnostic testing,
such as nerve conduction studies, as a means of objectively
documenting the existence of radiculopathy. Physical findings of
radiculopathy that might be made by a physician on examination
included muscle atrophy, loss of muscle tone or strength, abnormal
motor or sensory findings, and abnormal reflexes.
Moberg offered MetLife data from the American Academy of Orthopedic Surgeons as
to causes of radiculopathy, including an explanation as to how degenerative disc disease
and bone spurs might contribute (AR 928, 930, 937), but causes are not the same as
clinical findings. It is possible that one might have degenerative disc disease without
Metropolitan Life Ins. Co., 2012 WL 2020931, *5 (D.N.D., 2012), it
appears that an MRI study constitutes objective evidence of
radiculopathy if it shows neural foraminal encroachment or nerve
The Court has examined the medical records in the AR to
determine what evidence exists in the aforementioned categories of
objective evidence of radiculopathy.
Because such evidence must
have existed on or about the date benefits were terminated to be
relevant, the Court has elected to review records from one year
before and one year after the termination date of March 10, 2010.
The Court does not here summarize those records in their entirety,
but only those portions relating to electrodiagnostic testing;
physical findings of muscle atrophy, loss of muscle tone or
reflexes; and MRI studies as they relate to neural foraminal
encroachment or nerve root compression.
treating orthopedists, examined Moberg and reported “a little bit
of weakness in her left upper extremity [and] in her ulnar 2
digits as well,” and “slight decrease in sensation of her ulnar 2
digits in the ulnar nerve distribution,” but “no thenar6 or
“Term applied to any structure in relation with the base of the thumb or its
underlying collective components.” Stedman’s Medical Dictionary, 28th Ed.
hypothenar wasting of her left arm.” He found “intact light touch
sensation T-12 to S-2,” and “5/5 muscle strength in all major
muscle groups bilateral lower extremities.
He reported normal
On 7/20/09, Moberg had an EMG8 of the left arm which was
reported as “[n]ormal electrodiagnostic study of the left upper
extremity and corresponding cervical paraspinal musculature.” Dr.
“unrevealing for any neurologic compromise of the peripheral
nervous system,” and that Moberg’s history “suggests possible
radicular involvement, which may be purely sensory in nature
accounting for the negative study.”
On 9/3/09, a cervical MRI showed “[p]robable small focal
central disc protrusion at C4-5 compressing the thecal9 sac and
slightly to the left of midline” and “[m]inimal diffuse disc
bulging at C5-6 and C6-7 but minimal if any central canal stenosis
or neural foraminal10 encroachment results.”
A Babinski sign is “extension of the great toe and abduction of the other toes
instead of the normal flexion reflex to plantar stimulation, considered indicative of
corticospinal tract involvement (‘positive’ Babinski).” Stedman’s Medical Dictionary,
An electromyelogram, a “graphic representation of the electric
associated with muscular action.” Stedman’s Medical Dictionary, 28th Ed.
“Thecal” refers to a sheath, “especially a tendon sheath.”
Dictionary, 28th Ed.
A foramen is “[a]n aperture or perforation through a bone or a membranous
structure.” Stedman’s Medical Dictionary, 28th Ed.
Lumbar MRI this date showed “[d]isc degeneration at multiple
lumbar levels with minimal diffuse disc bulging throughout all
lumbar levels but minimal if any central canal stenosis or neural
foraminal encroachment identified . . . .”
On 10/20/09 Dr. Randolph noted that Moberg’s recent MRI
showed “mild left C-6-7 neuroforaminal impingement,” and that
“[a]t the left at C-4-5 she’s got neuroforaminal impingement as
well from a small disc herniation.”
On 10/29/09, Dr. Randolph assessed Moberg with left leg
radiculopathy. This diagnosis appears to be based on Moberg’s
report of “back pain that radiates down her left side occasionally
essentially in the S-1 dermatomal distribution.”11
normal strength in her legs; a “downgoing” Babinski; could heel
and toe walk; had normal gait; and had “a negative Romberg.”12
On 4/23/10 Dr. Brock Schnebel, another of Moberg’s
treating orthopedists, noted that Moberg had normal strength and
symmetric reflexes, no hyperreflexia13 or clonus14, and a negative
A dermatome is “[t]he area of skin supplied by cutaneous branches of a single
cranial or spinal nerve.” Stedman’s Medical Dictionary, 28th Ed.
A positive sign would indicate “proprioception loss.” Proprioception is “[a]
sense or perception, usually at a subconscious level, of the movements and position of
the body and especially its limbs, independent of vision;
this sense is gained
primarily from input from sensory nerve terminals in muscles and tendons (muscle
spindles) and the fibrous capsule of joints combined with input from the vestibular
apparatus.” Stedman’s Medical Dictionary, 28th Ed.
“Exaggeration of the deep tendon reflexes.”
Stedman’s Medical Dictionary, 28th
“A form of movement marked by contractions and relaxations of a muscle, occurring
in rapid succession.” Stedman’s Medical Dictionary, 28th Ed.
On 5/7/10, Physical Therapist Dave Hill noted “lower
extremity strength 4/5.”
6/3/10 visit, Dr. Schnebel noted “I cannot pick up
reflex or motor deficits upper or lower extremities.
and Hoffmann’s15 is negative.”
treatment of pain, reported that Moberg had “dermatomal tactile
changes consistent with L5 and S1 radiculitis.”
and function in both legs was “appropriate.”
On 10/28/10, a cervical MRI showed a midline disc
protrusion at C4-C5 with “minimal spondylosis with no significant
neural impingement or AP narrowing of the canal,” and no neural
foraminal narrowing or significant neural impingement at any
On 11/2/10, a lumbar MRI showed degenerative changes,
scoliosis, and several cysts, but no disc herniations or neural
foraminal narrowing at L4-L5 or L5-S1.
Moberg saw Dr. James
Blankenship, a neurosurgeon, this date, complaining of right
shoulder, arm, back, and leg pain.
He noted that there was no
evidence of significant neural impingement on her MRIs.
On 1/4/11, Moberg saw Dr. Michael Morse, a neurologist,
“[F]lexion of the terminal phalanx of the thumb and of the second and third
phalanges of one or more of the fingers when the volar surface of the terminal phalanx
of the fingers is flicked.” Stedman’s Medical Dictionary, 28th Ed.
who noted that he had reviewed her cervical MRI, which showed
He also reviewed the lumbar MRI, which
showed “some degenerative changes without focal neural element
compromise.” Nerve conduction velocity tests done by Dr. Morse on
Moberg’s right arm this date were normal.
On 1/18/11, Moberg saw Dr. Randolph, who stated that she
neuroforaminal narrowing.” He found “intact light touch sensation
C-2 to T-2,” and negative Babinski and Romberg signs.
On 1/28/11, a cervical x-ray showed “no evidence of
significant neuroforaminal encroachment with the exception on the
left at what is defined as 5-6, and this being only mild.”
On 2/23/11, Dr. Luke Knox, an orthopedist, diagnosed
both cervical and lumbar radiculopathy, with a positive Spurling’s
maneuver16 in the left arm.
All other tests that might have
produced objective evidence of nerve pathology were negative.
On 3/8/11, Moberg saw Dr. Morse.
She had had another
cervical MRI that showed degenerative changes, but Dr. Morse did
not note any evidence of radiculopathy.
When the Court weighs the foregoing evidence, it finds
The Spurling test is “evaluation for cervical nerve root impingement in which
the patient extends the neck and rotates and laterally bends the head toward the
symptomatic side; an axial compression force is then applied by the examiner through the
top of the patient’s head; the test is considered positive when the maneuver elicits the
typical radicular arm pain.” (www.medilexicon.com.)
that there is some objective evidence of radiculopathy, but not
very much. The amount might fairly be characterized as “more than
a scintilla but less than a preponderance.”
Thus, were the issue
whether the Plan was justified in relying on this evidence to find
radiculopathy, existing case law would dictate a decision to that
Here, however, the issue is whether Moberg can overturn the
Plan’s decision based on that quantum of evidence. The Court does
not believe that the case law will support such a result.
evidence on the other side of the equation is too heavy:
The “little bit of weakness” in the left arm and hand
found by Dr. Randolph on 7/14/09 and the probable compression of
the spinal cord found on 9/3/09 MRI are outweighed by the fact
that there was no muscle wasting in the left arm, and that the EMG
on 7/20/09 was normal.
The neuroforaminal impingement at C4-C5 and C6-C7 found
by Dr. Randolph on 10/20/09 is outweighed by Dr. Schnebel’s report
of no reflex or motor deficits in the arms on 6/3/10 and the
10/28/10 MRI showing no significant foraminal narrowing or neural
impingement at any level.
The “mild to moderate neuroforaminal narrowing” found by
Dr. Randolph on 1/18/11 was described as “only mild” on 1/28/11.
The positive Spurling test of 2/23/11 is outweighed by
The tactile sensations in the left leg found by Dr.
Randolph on 10/29/09 and 8/10/10 are outweighed by findings of
normal leg strength, and by the fact that on 6/3/10, Dr. Schnebel
could not “pick up reflex or motor deficits” in the legs.
On balance, when all the evidence in the AR is considered,
the Court finds that more than a scintilla of evidence exists to
support the decision to terminate Moberg’s LTD benefits, and that
a reasonable person could have reached the same decision as the
This is especially so when one considers that the Plan
consulted two physicians who supported its decision17, and that
none of Moberg’s treating physicians contradicted those consultant
physicians when offered the opportunity to do so.
All this is not to downplay Moberg’s very real physical
The Court does not disagree with Moberg’s assertions
that she “has serious medical issues in her neck and back with
radicular symptoms that affect her ability to work.” But the Plan
has not contracted to cover this condition beyond 24 months unless
In the first appeal, the Plan relied on Dr. J. Collins, a specialist in
occupational and environmental medicine, who opined that “there are no exam findings
consistent with lumbar or cervical radiculopathy” (emphasis in original).
In the second appeal, MetLife relied on Dr. Ira Weisberg, also a specialist in
occupational medicine, who stated that “[t]he diagnosis of radiculopathy is symptombased only.” Dr. Weisberg noted that Moberg’s treating physicians “had essentially
normal or near normal objective findings on their physical exams, such as deep tendon
reflexes muscle strength except the some [sic] sensory exam which were self-reported as
being less than normal.”
insufficient to overcome the deference due to the Plan on appeal,
its decision will be affirmed.
IT IS THEREFORE ORDERED that the decision of the Plan to
terminate LTD benefits to Kelly Moberg as of March 10, 2010, is
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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