Price v. Tyson Foods, Inc., Plan Administrator
OPINION AND ORDER; Plaintiff's claim is DENIED,and this case is DISMISSED WITH PREJUDICE. Judgment will be entered accordingly, with each party to bear its own costs and fees. Signed by Honorable P. K. Holmes, III on August 17, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
WESLEY W. PRICE
Case No. 5:16-CV-05075
TYSON LONG-TERM DISABILITY PLAN;
and UNUM LIFE INSURANCE COMPANY
OF AMERICA, PLAN ADMINISTRATOR
OPINION AND ORDER
Before the Court is an action under the Employee Retirement Income Security Act of 1974
(“ERISA”), as set out in Plaintiff Wesley W. Price’s amended complaint (Doc. 8). Defendants
Tyson Long-Term Disability Plan (the “Plan”) and Unum Life Insurance Company of America
(“Unum”) filed an answer (Doc. 10), and the parties submitted a stipulated administrative record
(Docs. 11, 12). 1 Having considered the parties’ respective briefs on Mr. Price’s entitlement to
disability benefits (Docs. 16, 17), the Court finds that Mr. Price’s claim should be dismissed for
the reasons set forth below.
Mr. Price was hired by Tyson Foods, Inc. as a long-haul truck driver on November 17,
2011. (Doc. 12-1, p. 46). He became eligible for coverage under the Plan on December 1, 2012.
(Id.). His last day worked was January 25, 2013. (Id.). Plaintiff’s claim for long-term disability
payments was filed on May 24, 2013, and listed the medical conditions resulting in his disability
as “herniated disks in neck and lower back, pinched nerves, [and] no feeling on right arm/hand.”
Tyson Foods, Inc. delegated to Unum control of the plan’s administration by giving Unum
the authority to determine Mr. Price’s eligibility for benefits. Layes v. Mead Corp., 132 F.3d 1246,
1249 (8th Cir. 1998) (quoting Garren v. John Hancock Mut. Life. Ins. Co., 114 F.3d 186, 187 (11th
Cir. 1997) (“The proper party defendant in an action concerning ERISA benefits is the party that
controls administration of the plan.”)).
(Id., pp. 38, 41). As part of his claim, Mr. Price also included an attending physician’s statement
from Dr. Ronald Bertram, his primary care physician, who found that Mr. Price suffered from
cervical radiculopathy, a herniated disc, foraminal narrowing, and lumbar radiculopathy. (Id.,
p. 39). Mr. Price’s claim, supporting documents, and medical records were sent to Unum for an
On July 23, 2013, Unum notified Mr. Price that it had approved his request for long-term
disability benefits based on his inability to complete his own job. (Doc. 12-2, pp. 173-176). The
Plan defined “disability” as the inability to perform “the material and substantial duties of your
own job due to your sickness or injury.” (Doc. 12-1, p. 80). While Unum found Mr. Price’s
lumbar spine complaints to be pre-existing conditions and excluded from coverage as having been
treated during the Plan’s lookback period, 2 his claim was approved based on his cervical
radiculopathy and herniated disc. (Doc. 12-2, p. 174). Unum found that “based on his use of
oxycodone he is precluded from driving per [Department of Transportation] regulations.”
(Doc. 12-2, p. 152).
Unum stopped sending payments after 12 months, pursuant to a provision of the Plan that
excluded benefits “after 12 months of payments, when you are able to work in any gainful
occupation on a part-time basis but you do not.” (Doc. 12-1, p. 86). In effect, Unum defined
“disability” during the first 12 months based on the claimant’s inability to perform his “own job,”
but after this period the claimant’s disability was based on his inability to perform “any gainful
occupation.” The Plan defines “gainful occupation” as “an occupation that is or can be expected
The Plan does not cover pre-existing conditions, which are defined as those conditions
for which the claimant “received medical treatment, consultation, care or services including
diagnostic measures, or took prescribed drugs or medicines in the 12 months just prior to your
effective date of coverage.” (Doc. 12-1, p. 87).
to provide you with an income within 12 months of your return to work, that exceeds: 80% of your
indexed monthly earnings, if you are working; or 60% of your indexed monthly earnings, if you
are not working.” (Id., p. 93). Gainful employment is based upon occupations for which the
claimant is “reasonably fitted by education, training or experience.” (Id., p. 80).
By letter dated August 7, 2013, Unum notified Mr. Price of the different definition of
disability under the Plan after 12 months. (Doc. 12-2, p. 219). During a telephone call that same
day, Mr. Price told Unum that he was also seeking Social Security Disability Insurance. (Id.,
p. 256). By letter dated October 3, 2013, Mr. Price received his second denial notice for Social
Security disability benefits. (Id., pp. 271-272).
In reviewing Mr. Price’s claim under the “any gainful occupation” standard, Unum sent
updated disability reports to Dr. Bertram, who concluded that the claimant remained incapable of
any work, including sedentary and light work. 3 (Doc. 12-3, pp. 40-41). At Unum’s request, Dr.
Bertram’s medical opinion was reviewed by Dr. Tammy Lovette, also a doctor of family medicine.
(Doc. 13-1, pp. 13-15). Focusing on the reported neck pain, Dr. Lovette did “not agree with Dr.
Bertram that Mr. Price ha[d] no work capacity,” finding that “he would be able to perform some
level of work.” (Id., p. 14). Dr. Lovette noted that Mr. Price did not have surgery, injections, or
seek any “aggressive treatment for his reported pain.” (Id.). For restrictions and limitations, Dr.
Lovette opined that Mr. Price was not precluded from occupations that involved “[e]xerting up to
20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible
Dr. Bertram previously referred Mr. Price to Dr. Larry Armstrong, a neurosurgeon. Mr.
Price only saw Dr. Armstrong on one occasion. Dr. Armstrong’s physician assistant, Candace
Harper, informed Unum that Dr. Armstrong would not give an opinion on Mr. Price’s restrictions
and limitations because he had not undergone surgery. (Doc. 13-1, p. 5). Ms. Harper referred
Unum back to the treating physician, Dr. Bertram, for all issues regarding Mr. Price’s restrictions
and limitations. (Id.). As a result, Dr. Bertram is the only medical doctor who offered an opinion
on Mr. Price’s behalf.
amount of force constantly … to move objects. Based on his cervical spine, no restrictions related
to sitting, standing and walking would be necessary.” (Id., p. 15). This evaluation was reviewed
by Dr. Suzanne Benson, Unum’s designated medical officer. (Id., pp. 17-19). With regards to Dr.
Lovette’s restrictions and limitations, Dr. Benson concluded that “it is medically reasonable that
the claimant restrict overhead activity to occasional and avoid prolonged awkward head positions
…. I recognize the claimant’s report of low activity level, but findings and intensity of
investigation and treatment failed to support conditions that would preclude the activity level
outlined by [Dr. Lovette].” (Id., p. 18).
A certified rehabilitation consultant, Marian Pearman, then provided Unum with a
vocational assessment of Mr. Price. (Doc. 13-1, pp. 22-27). Ms. Pearman’s assessment included
the restrictions and limitations offered by Dr. Lovette and Dr. Benson. Ms. Pearman considered
Mr. Price’s prior work experience as a truck driver, forklift operator, and landscape supervisor.
She also considered Mr. Price’s skills, his eleventh grade education, occupations that met the
required wage level, 4 and his geographic location in Springdale, Arkansas. The labor market
survey identified five occupations for which Mr. Price was qualified: an order clerk, production
clerk, routing clerk, final inspector, and chauffeur. (Id., p. 25).
By letter dated April 18, 2014, Unum informed Mr. Price of its decision to terminate his
long-term disability benefits. (Doc. 13-1, pp. 36-41). Unum “determined you are able to perform
the duties of other gainful occupations.” (Id., p. 37). According to Unum, Mr. Price’s medical
data did not support restrictions or limitations precluding him from: “[e]xerting up to 20 pounds
of force occasionally, and/or up to 10 pounds of force frequently, and/a negligible amount of force
An hourly rate of $11.82 represents 60% of Mr. Price’s salary when he was placed on
disability. (Doc. 12-3, p. 92).
constantly … to move objects … [with] no restrictions related to sitting, standing and walking”
and jobs that “restrict overhead activity to occasional and avoid prolonged awkward head positions
such as may be required of a car mechanic.” (Id.). Unum relied upon the five jobs identified by
Ms. Pearman in her vocational assessment in concluding that Mr. Price would be able to hold
gainful occupation. 5 (Id., p. 38). Unum’s decision was administratively appealed by the claimant
(Doc. 13-2, p. 81), but the decision was upheld. (Doc. 13-3, p. 44).
Once a plaintiff in an ERISA action has exhausted his administrative remedies under a
benefits plan, a reviewing court’s function is to examine the record that was before the
administrator of the plan at the time the claim was denied. Farfalla v. Mut. of Omaha Ins. Co.,
324 F.3d 971, 974-75 (8th Cir. 2003); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). A denial of benefits claim under ERISA is reviewed for an abuse of discretion when “a
plan gives the administrator discretionary power to construe uncertain terms or to make eligibility
determinations.” King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-99 (8th Cir. 1997)
(en banc) (citing Firestone, 489 U.S. at 111). When a plan confers discretionary authority, as is
the case here, 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. 115. “[R]eview for an
‘abuse of discretion’ or for being ‘arbitrary and capricious’ is a distinction without a difference”
because the terms are generally interchangeable. Jackson v. Prudential Ins. Co. of Am., 530 F.3d
The administrative record reflects that Mr. Price went bowling during the weeks of
September 20, 2013 (Doc. 13-1, pp. 96-99); January 31, 2014 (Id., p. 92); and February 15, 2014
(Id., p. 107). Unum relied on Mr. Price’s participation in this recreational activity in determining
Dr. Bertram’s medical opinion to be less credible than that of Dr. Lovette and Dr. Benson.
(Doc. 13-2, p. 58; Doc. 13-3, p. 38).
696, 701 (8th Cir. 2008), citing Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 946 n.4 (8th
Plaintiff disputes that abuse of discretion is the proper standard of review, and instead
advocates for a de novo review based on Ark. Admin. Code 054.00.101 (“Rule 101”). Under Rule
101, “[n]o policy… for disability income protection coverage may contain a provision purporting
to reserve discretion to the insurer to interpret the terms of the contract…” Ark. Admin. Code
054.00.101-4. This Rule applies to “all disability income policies issued in this State which are
issued or renewed on and after March 1, 2013.” Ark. Admin. Code 054.00.101-7; see also Davis
v. Unum Life Ins. Co. of Am., 2016 WL 1118258, at *3 (E.D. Ark. Mar. 22, 2016). Plaintiff argues
that the Plan was renewed on January 1, 2014 because it lists January 1 as the “Policy Anniversary
Date.” 6 (Doc. 12-1, p. 66). Plaintiff contends that the Plan is “renewed every year on that date.”
(Doc. 16, p. 2). The Court disagrees. As Unum correctly points out, the anniversary date of a
policy is not a renewal within the meaning of Rule 101. See Owens v. Liberty Life Assurance Co.
of Boston, 184 F. Supp. 3d 580, 585 (W.D. Ky. 2016) (finding that a policy’s “anniversary date”
did not constitute a renewal under Arkansas’s Rule 101); Rogers v. Reliance Standard Life Ins.
Co., 2015 WL 2148406, at *7 (N.D. Ill. May 6, 2015) (A policy does not renew annually “simply
because the Policy mentions an ‘Anniversary Date.’”).
The Plan was issued with an effective date of January 1, 2002, and Amendment No. 19
gave the Plan an effective date of change of September 1, 2011. (Doc. 12-1, p. 65). The policy’s
Plaintiff additionally argues that this “renewal can be specifically found in Amendment
No. 20, which was not included in the Administrative Record, even though Amendment No. 19
was included.” While the Court finds that Amendment No. 19 would have been subject to Rule
101 had it been issued subsequent to March 1, 2013, the Court cannot consider Plaintiff’s argument
with regard to Amendment No. 20 because no evidence of this Amendment has been produced by
“plan year” is “October 1, 2002 to January 1, 2003 and each following January 1 to January 1.”
(Id., p. 68). The annual enrollment period occurs before the beginning of each plan year. (Id.,
p. 93). The Court finds that the Plan’s anniversary date exists for purposes of designating each
plan year’s annual enrollment period and does not equate to an annual renewal of the policy.
Because the policy was issued prior to March 1, 2013 and was not thereafter renewed, the Plan’s
grant of discretionary authority is valid and an abuse of discretion standard applies.
The law is clear that the decision of a plan administrator may only be overturned if it is not
“reasonable, i.e., supported by substantial evidence.” Donaho v. FMC Corp., 74 F.3d 894, 899
(8th Cir. 1996). An administrator’s decision will be deemed reasonable if “a reasonable person
could have reached a similar decision, given the evidence before him, not that a reasonable person
would have reached that decision.” Id. (emphasis in original). If a 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, (8th
Cir. 1997), citing Donaho, 74 F.3d at 899. There are five factors the Court will consider in
determining whether the decision was supported by a reasonable explanation or was instead an
abuse of discretion:
(1) whether the administrator’s interpretation is consistent with the goals of the
(2) whether the interpretation renders any language in the plan meaningless or
(3) whether the administrator’s interpretation conflicts with the substantive or
procedural requirements of the ERISA statute;
(4) whether the administrator interpreted the relevant terms consistently; and
(5) whether the interpretation is contrary to the clear language of the Plan.
Shelton v. ContiGroup Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002). The 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).
In determining whether Unum’s denial of benefits after 12 months was reasonable and
supported by substantial evidence, the Court reviews the quantity and quality of the medical
evidence provided in the administrative record, as well as the relevant provisions of the Plan.
Under the Eighth Circuit’s holding in Shelton, the first factor the Court must consider in
evaluating the reasonability of a Plan administrator’s denial of ERISA benefits is whether the
administrator’s interpretation is consistent with the goals of the Plan. The Plan’s goal or intent is
to “provide coverage for a payable claim which occurs while you are covered under the policy or
plan.” (Doc. 12-1, p. 78). A payable claim is one for which Defendant is liable under the terms
of the policy, which is triggered by a finding of disability. As discussed above, a claimant is
disabled after 12 months when, due to the same sickness or injury, he is “unable to perform the
duties of any gainful occupation for which [he is] reasonably fitted by education, training or
experience.” (Id., p. 80).
Here, Unum’s decision to deny Mr. Price benefits after 12 months was consistent with the
goals of the Plan. In determining that Mr. Price was not disabled from performing any gainful
occupation, Unum relied upon the findings of Dr. Lovette, Dr. Benson’s review, and Ms.
Pearman’s vocational assessment. The reviewing physicians considered the entire medical record
now before the Court. The only physician who found Mr. Price to be unable to obtain any gainful
employment was Dr. Bertram. Both Dr. Lovette and Dr. Benson disagreed with Dr. Bertram’s
opinion and found that Mr. Price was not precluded from gainful occupation within the appropriate
restrictions and limitations. See Johnson v. Metro Life Ins. Co., 437 F.3d 809, 814 (8th Cir.
2008) (“When there is a conflict of opinion between a claimant’s treating physicians and the plan
administrator’s reviewing physicians, the plan administrator has discretion to deny benefits unless
the record does not support denial.”); Delta Family-Care Disability & Survivorship Plan v.
Marshall, 258 F.3d 834, 843 (8th Cir. 2001) (“Where the record reflects conflicting medical
opinions, the plan administrator does not abuse its discretion in finding the employee not to be
Plaintiff argues that Unum abused its discretion in finding Mr. Price could obtain gainful
occupation by relying on a vocational assessment that did not comply with the restrictions and
limitations provided by Unum’s reviewing physicians. “A plan administrator abuses its discretion
when it ignores relevant evidence.” Wilcox v. Liberty Life Assur. Co. of Boston, 552 F.3d 693, 701
(8th Cir. 2009). In arguing that no gainful occupations existed for which Mr. Price was reasonably
fitted, Plaintiff attacks the vocational assessment submitted by Ms. Pearman, Unum’s vocational
rehabilitation consultant. Ms. Pearman identified five sedentary jobs available in the Springdale,
Arkansas area for which Mr. Price was qualified. These occupations were “consistent with
claimant’s prior work history, skills, education/training, demonstrated General Educational
Development levels, and restrictions and limitations provided.” (Doc. 13-1, p. 26). However,
Plaintiff contends that none of the occupations identified actually complied with the restriction
provided by Dr. Lovette and Dr. Benson requiring no more than occasional overhead activity.
Equating the restriction on overhead activity with overhead reaching, Plaintiff argues that there is
no distinction between overhead reaching and reaching, and that four of the five occupations
submitted 7 are unreasonable because their Dictionary of Occupational Titles (“DOT”) job
descriptions require frequent or constant reaching.
The fifth occupation—final inspector—is not listed in the DOT, even though Ms.
Pearman listed it as such.
Plaintiff improperly conflates “reaching” and “overhead reaching” in an attempt to equate
the DOT job descriptions’ restriction on reaching with his own medical restrictions on no more
than occasional overhead activity. It is of course true that “[o]verhead reaching is a limitation to
the direction of reaching.” Potts v. Colvin, 2015 WL 3547058, at *8 (W.D. Ark. June 8, 2015).
However, the restrictions by Dr. Lovette and Dr. Benson only prohibited more than occasional
overhead activity, which “provides strong evidence that Plaintiff’s reaching restriction is limited
to overhead reaching rather than a complete prohibition from all reaching.” Banks v. Astrue, 2009
WL 2059899, at *6 (S.D. Ala. July 8, 2009); see also Smith v. Astrue, 2014 WL 1092761, at *7
(N.D. Ala. Mar. 19, 2014) (even if there had been a “limitation on overhead activities, this would
not be a significant limitation on all reaching as to significantly reduce the sedentary occupational
base.”); Lee v. Astrue, 2013 WL 1296071, at *11 (D. Or. Mar. 28, 2013) (where the DOT job
description did not specify overhead activities, there was no direct conflict between a vocational
expert’s findings based on a limitation of no overhead reaching and the DOT). Mr. Price was not
precluded from occupations that require frequent or constant reaching simply because he had a
restriction on overhead activity. He did not have any restrictions on reaching.
Furthermore, “the broad definition of ‘reaching,’ which may include overhead reaching,
does not mean the jobs necessarily require any overhead reaching.” Alcott v. Colvin, 2014 WL
4660364, at *8 (W.D. Mo. Sept. 17, 2014); see also Segovia v. Astrue, 226 Fed. Appx. 801, 804
(10th Cir. 2007) (“[DOT companion publication 8] does not separately classify overhead
reaching. Thus, under the [DOT companion publication], even a job requiring frequent reaching
does not necessarily require more than occasional overhead reaching.”); Seaman v. Astrue, 364
Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles (1993).
Fed. Appx. 243, 249 (7th Cir. 2010); Neeley v. Colvin, 2015 WL 3454100, at *3 (E.D. Ark. May
29, 2015) (“Skilltran[‘s Job Browser Pro] identifies frequent reaching as a physical demand for
both identified jobs, but its job descriptions implicate no overhead reaching. No conflict exists if
a job requires no overhead reaching.”). Even though Ms. Pearman’s vocational assessment
determined that Mr. Price could obtain gainful employment in four occupations which involved
frequent or constant reaching, the plan administrator did not abuse its discretion because those job
descriptions did not specifically implicate overhead activities.
Plaintiff also points out that he was approved for social security benefits on August 5, 2015.
However, this occurred after Mr. Price’s claim was denied, and the Court can “consider only the
evidence that was before the administrator when the claim was denied.” Farley v. Arkansas Blue
Cross & Blue Shield, 147 F.3d 774, 777 (8th Cir. 1998). As a result, the first Shelton factor does
not indicate an abuse of discretion because Unum’s decision to deny Mr. Price disability benefits
after 12 months was consistent with the goals of the Plan.
The second factor requires the Court to evaluate whether Unum’s interpretation of the Plan
with respect to Mr. Price’s claim rendered any language in the Plan meaningless or internally
inconsistent. Shelton, 285 F.3d at 643. While the Plan changes the definition of disability after
12 months from a claimant’s inability to perform his “own job” to his inability to perform “any
gainful occupation,” this adjustment is clearly set forth in the Plan and was properly communicated
to Mr. Price. Unum relied upon the medical reviews of Dr. Lovette and Dr. Benson, including the
restrictions and limitations they placed on his ability to obtain gainful occupation. Additionally,
Unum’s decision was based upon the opinion of Ms. Pearman, a vocational expert, who identified
several gainful occupations that Mr. Price could perform within the confines set by Dr. Lovette
and Dr. Benson. Ms. Pearman’s vocational assessment also considered each of the detailed
characteristics of “gainful employment,” as defined by the Plan. Thus, Unum’s decision did not
render any plan language meaningless or internally inconsistent.
The remaining factors announced in Shelton are: (1) whether the administrator’s decision
to deny benefits conflicts with the substantive or procedural requirements of the ERISA statute;
(2) whether the administrator interpreted the relevant terms at issue consistently; and (3) whether
the administrator’s interpretation was contrary to the clear language of the Plan. It does not appear
from Plaintiff’s briefing that these factors are in dispute. In considering these factors, the Court
finds that Unum acted appropriately in evaluating Mr. Price’s claim in light of the Plan’s terms.
Mr. Price was afforded a full and fair review of both the denial of his claim after 12 months and
the appeal of that denial.
Finally, there is no evidence in the record to indicate that a conflict of interest influenced
Unum’s decision. The Court finds that Unum did not abuse its discretion in denying Plaintiff’s
claim and that Unum’s decision was supported by substantial evidence on the record.
IT IS THEREFORE ORDERED that Defendants’ decision to deny benefits is AFFIRMED,
Plaintiff’s claim is DENIED, and this case is DISMISSED WITH PREJUDICE.
Judgement will be entered accordingly, with each party to bear its own costs and fees.
IT IS SO ORDERED this 17th day of August, 2017.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?