Thomas v. Aetna Life Insurance Company et al

Filing 27

ORDER signed by District Judge John A. Mendez on 8/15/16 DENYING 16 Motion for Summary Judgment and DENYING 20 Cross-Motion for Summary Judgment. (Washington, S)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

LASHAUN THOMAS,

13
14
15
16

No.

2:15-cv-01112-JAM-KJN

Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
a corporation; FEDEX GROUND,
a corporation; DOES 1 through
10, inclusive,

ORDER DENYING PLAINTIFF’S AND
DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT

17
Defendants.
18
19

Plaintiff Lashaun Thomas (“Thomas”) alleges that she was

20

entitled to short-term disability (“STD”) benefits under the

21

Employee Retirement Income Security Act (“ERISA”)-governed self-

22

funded disability plan (the “Plan”) put in place by her employer

23

defendant FedEx Ground (“FedEx”).

24

Company (“Aetna”), which was designated as the Plan

25

Administrator, denied her request for STD benefits.

26

now before this Court because ERISA permits an insured to sue “to

27

recover benefits due to him under the terms of his plan.”

28

U.S.C. § 1132(a).

Defendant Aetna Life Insurance

The case is

29

Both parties seek summary judgment in their
1

1

favor.

2

motions for summary judgment and finds that there is a genuine

3

issue of material fact as to whether Thomas adequately

4

demonstrated that she was entitled to STD benefits.

For the reasons stated below, the Court denies both

5
6

I.

7

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On September 19, 2012, Thomas was traveling for work with

8

her boss when their car was rear-ended.

Defendants’ Response to

9

Plaintiff’s Statement of Undisputed Facts (“P SUF”) (Doc. #20-1)

10

#1.

11

Grove”) and complained of back pain caused by the accident.

12

#2.

13

tenderness of the paraspinal muscles and prescribed pain

14

medication.

15

Elk Grove that revealed no fracture and that her disc spaces

16

appeared normal.

17

of Undisputed Facts (“D SUF”) (Doc. #22-1) #13.

18

2012, Thomas was reevaluated at Elk Grove and was diagnosed with

19

a back strain that was worse with movement.

20

February 4 and February 7, 2013, Thomas again went to Elk Grove

21

and it was noted that there were no neurological deficits.

22

#15.

23

Two days later, Thomas went to Elk Grove urgent care (“Elk
Id.

Thomas saw Dr. Allen Lin Do, who observed spasm and

Id.

On October 8, 2012, Thomas received an x-ray at

Plaintiff’s Response to Defendants’ Statement
On November 3,

D SUF #14.

Thomas was referred to physical therapy.

On

D SUF

Id.

On February 21, 2013, Thomas began receiving physical

24

therapy treatment at Laguna Physical Therapy.

P SUF ## 4-5.

25

received this treatment until April 10, 2013.

Id.

26

physical therapist noted that Thomas had tenderness in her right

27

shoulder girdle and her cervical paraspinal region.

28

pain was rated as between 5 and 7 out of 10 and was aggravated by
2

She

Thomas’

Id. #4.

Her

1

driving, prolonged sitting, and various other activities.

2

Id.

On June 18, 2013, Thomas underwent two MRIs: a lumbar spine

3

MRI and a cervical spine MRI.

4

broad based disc bulges with osteophytic spurring at C4-5, C5-6,

5

and C6-7.

6

protrusion/herniation with right foraminal encroachment on the

7

C5-6 level and a C6 root compression.

8

that on the C6-7 level there was a central protrusion or

9

herniation with flattening of the ventral thecal sac.

Id.

Id. #6.

The MRIs showed she had

The MRIs also showed that she had a disc

Id.

The MRIs also showed

Id.

In

10

the MRI, the craniocervical junction appeared unremarkable; the

11

spinal cord was not enlarged; no bony destructive lesion or

12

cervical soft tissue mass was seen; and the anterior and

13

posterior ligament groups appeared intact.

14

lumbar spine MRI revealed no neural compression, unlike the

15

cervical MRI.

16

D SUF #16.

The

Id. #17.

On August 25, 2013, Dr. Truong at Elk Grove excused Thomas

17

from work from August 26, 2013 through August 30, 2013.

P SUF

18

#7.

19

September 16, 2013.

20

for 45 days on September 18, 2013.

21

2013, Thomas contacted Aetna to open a claim for short-term

22

disability benefits.

23

filled out an Attending Physician Statement (APS) stating that

24

Thomas was disabled from work from August 24, 2013 through

25

October 16, 2013, and that after October 16, 2013, Thomas could

26

return to work only on modified duty with occasional sitting,

27

driving, computer use, hand grasping and reaching, and no

28

lifting, pushing, pulling, bending, or stooping.

Dr. Truong again excused Thomas from work for 30 days on
Id. #8.

Id. #10.

Dr. Truong excused Thomas from work
Id. #9.

On September 26,

On October 1, 2013, Dr. Truong

3

Id. #11.

1

On October 4, 2013, Aetna informed Thomas that FedEx

2

retained it to administer the STD Plan and that a clinical review

3

of the appropriateness of her work absence was required.

4

#19.

5

that Thomas should remain off work from October 16, 2013 through

6

November 29, 2013.

7

D SUF

Dr. Truong wrote another note on October 9, 2013, stating

Id. #20.

On November 6, 2013, Aetna informed Thomas that it concluded

8

she did not meet the definition of disabled and explained why.

9

D SUF #21; Administrative Record (“AR”) 324-325.

The letter

10

explained that Thomas could appeal the decision and provided a

11

list of items she could provide that may help prove her claim.

12

Id. #22.

13

December 16, 2013, the Aetna Appeals Specialist evaluating

14

Thomas’s appeal conducted a telephone interview with Thomas in

15

which Thomas stated that Dr. Truong had released her back to work

16

but that her employer was unable to accommodate her because of

17

the medications she was taking.

18

also explained the reason for denying the claim and the type of

19

information Thomas could provide to assist the review.

20

The Appeals Specialist reduced the conversation to writing and

21

confirmed that Thomas’s current condition was displacement of

22

lumbar invertebral disc without myelopathy.

23

Thomas later appealed the denial.

Id. #25.

Id. #23-24.

On

The Appeals Specialist

Id. #26.

Id. #27.

Aetna then requested a peer review from Dr. Martin

24

Mendelssohn, who specializes in orthopedic surgery.

D SUF #28.

25

Dr. Mendelssohn attempted a peer-to-peer consultation with Dr.

26

Heune and Dr. Truong but was unable to get in touch with them.

27

Id. ##29-30.

28

Wilson, who said Thomas was in a car accident and could not work

Dr. Mendelssohn conducted a consultation with Dr.

4

1

because of her symptoms, but admitted that he had only seen

2

Thomas once and could not provide any evidence of any functional

3

or neurological deficits.

4

that “a comprehensive history and physical examination supporting

5

diagnostic studies that would indicate a functional impairment

6

from her regular occupation as a field contractor REL specialist,

7

which is sedentary from 8/26/13 through 1/6/14 cannot be

8

substantiated.”

9

able to return to her position without restrictions from August

10

Id. #32.

Id. #31.

Dr. Mendelssohn opined that Thomas was

26, 2013 through January 6, 2014.

11

Dr. Mendelssohn reported

Id. #33.

On January 15, 2014, Aetna again tried to contact Dr. Truong

12

and Dr. Heune, but was unable to reach them.

13

day, Aetna wrote to Thomas explaining that the appeal review

14

needed more time because Aetna could not reach the two doctors.

15

Id. #35.

16

Id. #34.

That same

On January 30, 2014, Thomas was seen by Dr. Thomas J.

17

O’Laughlin, who performed an examination on Thomas.

P SUF #13.

18

Dr. O’Laughlin’s initial evaluation is presented in AR pages 513-

19

517.

20

cervical spine disclosed a broad-based disc bulge at C5 with

21

osteophytic spurring and right paracentral disc osteophyte with

22

mild neuroforaminal narrowing and that the lumbar spine MRI was

23

unremarkable.

24

Thomas had evidence of some underlying cervical degenerative disc

25

disease of varying degrees at C5-C6, C4-C5, and C5-C6.

26

He stated that Thomas “seems to have aggravated her underlying

27

degenerative cervical changes and appears to have some

28

superimposed disc protrusion that is continuing to promote

Dr. O’Laughlin noted that the June 18, 2013 MRI of the

D SUF #36.

Dr. O’Laughlin also reported that

5

Id. #37.

1

intractable cervicscapular myofascial pain and chronic

2

cervicogenic headache.”

3

work because the stressors of work and the psychosocial pressures

4

would prevent her from improving.

5

Id.

He agreed with keeping Thomas off

Id. #39.

The following day, Dr. O’Laughlin performed trigger-point

6

injections.

P SUF #14.

Dr. O’Laughlin saw Thomas five other

7

times between February 2014 and May 2014.

8

2014, Dr. O’Laughlin wrote Aetna a letter on behalf of Thomas

9

stating that “after reviewing the medical records of Lashaun

Id. #15.

On April 21,

10

Thomas, as well as performing a face-to-face medical examination,

11

it is my opinion that Ms. Thomas has been disabled and unable to

12

work since her accident on 9/19/2012.”

13

P SUF # 16; D SUF #43.

Aetna then hired Dr. Priya Swamy to complete a peer review.

14

D SUF #46.

The scope of what Dr. Swamy reviewed is under

15

dispute, but the parties agree that Dr. Swamy reviewed some

16

records from between August 26, 2013 through March 24, 2014, the

17

MRIs from June 18, 2013, and records from July 31, 2013 and

18

August 19, 2013.

19

O’Laughlin’s records Dr. Swamy reviewed.

20

Swamy also attempted a peer-to-peer consultation with Dr.

21

O’Laughlin but was unable to reach him.

22

concluded that Thomas had no functional impairments from August

23

26, 2013 through March 24, 2014.

Id. #47.

The parties dispute how much of Dr.
Id. ## 48-50.

Id. #51.

Dr.

Dr. Swamy

Id. #52; AR 584-586.

24

Aetna wrote to Thomas on June 6, 2014, informing her that it

25

completed the appeal review of the denial of her STD benefits and

26

upheld the original decision to deny STD benefits effective

27

August 26, 2013.

28

Id. #53; AR 581.

Thomas filed the complaint in this case, alleging that she
6

1

“was entitled to short-term disability, as well as other benefits

2

under the Plan.”

3

Defendants “arbitrarily and in bad faith refused to make payments

4

to [her] as required by the Disability Plan.”

5

seeks the past and future benefits allegedly owed to her under

6

the LTD Plan and “a declaration by this court . . . that all

7

benefits provided to Plan participants while they are disabled

8

under the Plan . . . be reinstated retroactive to the date her

9

LTD benefits were terminated.”

Compl. ¶ 4 (Doc. #1).

Thomas alleges that

Id. at 3.

Id. ¶ 6.

Thomas

Thomas then filed a

10

motion for summary judgment (Doc. #16).

Defendants opposed the

11

motion and filed a cross motion for summary judgment (Doc. #20).

12

Thomas opposed Defendants’ cross motion (Doc. #22).

13

heard argument on the cross motions for summary judgment on

14

August 9, 2016.

The Court

15
16

II.

OPINION

17

A.

Legal Standard

18

The preliminary issue the Court must decide is whether it

19

should review Aetna’s determination that Thomas did not qualify

20

for STD benefits under a de novo standard of review or an abuse

21

of discretion standard of review.

22

de novo review, while Aetna argues that abuse of discretion is

23

the appropriate standard.

24
25

1.

Thomas asks the Court to apply

Proper Delegation

Thomas argues that the abuse of discretion standard would be

26

inappropriate here because Aetna was never unambiguously granted

27

discretion by the Benefits Committee.

28

Thomas concedes that the Benefits Committee was granted
7

P Reply (Doc. #22) at 1.

1

discretion for its determination of whether Thomas was disabled

2

but contends that “there is no language in the Plan granting

3

Aetna discretion and Defendants have not cited anything

4

evidencing that the Benefits Committee expressly delegated its

5

discretion to Aetna.”

6

section 5.1(d) of the Plan, which permits the Plan Administrator

7

to delegate its discretionary authority to a third party.

8

Reply at 2 (Doc. #25) (citing AR 060).

9

questioning from the Court during the August 9, hearing on the

Id.

In response, Defendants point to

D

In response to

10

cross motions, Defendants further noted that section 2.4 of the

11

Plan states that “Claims Paying Administrator” means Aetna and

12

that section 4.5(a) of the Plan states that the Claims Paying

13

Administrator is charged with “determin[ing] pursuant to the

14

terms of the STD Plan that a Total Disability exists.”

15

On this issue, the Court agrees with Defendants.

The Plan

16

clearly states that Aetna, as the Claims Paying Administrator,

17

was charged with deciding whether Thomas was disabled under the

18

terms of the Plan.

19

provides the Plan Administrator with “the discretion and

20

authority to interpret and construe the provisions of the STD

21

plan . . . [and] decide any dispute which may arise with regard

22

to the rights of Participants entitled to benefits.”

23

Read as a whole, the Plan sufficiently delegates the Plan

24

Administrator’s discretionary authority to Aetna.

25

not apply de novo review on the basis of Thomas’s argument that

26

Aetna was not properly delegated discretion.

27

///

28

///

The Plan contains a discretionary clause that

8

AR 060.

The Court will

1
2

2.

ERISA Preemption of Section 10110.6

The crux of the dispute over the proper standard of review

3

is whether ERISA preempts the application of California Insurance

4

Code section 10110.6 (“section 10110.6”) to self-funded plans,

5

such as the one at issue in this case.

6

ERISA preempts section 10110.6 because section 10110.6 “has an

7

impermissible connection with a key facet of ERISA plan

8

administration.”

9

courts that have ruled on this issue have determined that ERISA

Opp. at 15.

Defendants argue that

Thomas argues that all previous

10

does not preempt section 10110.6, whether or not the plan is

11

self-funded.

P Reply at 2.

12

ERISA permits a benefits plan participant to bring a civil

13

case in federal court to recover benefits allegedly owed to him

14

under a benefits plan.

15

is then charged with reviewing the plan administrator’s decision

16

denying benefits to the participant.

17

review in such cases is de novo.

18

584 F.3d 837, 846 (9th Cir. 2009) (“[D]e novo review is the

19

default standard of review in an ERISA case.”).

20

an insurance contract has a discretionary clause, the decisions

21

of the insurance company are reviewed under an abuse of

22

discretion standard.”

23

Bruch, 489 U.S. 101, 115 (1989) (“a denial of benefits challenged

24

under § 1132(a)(1)(B) is to be reviewed under a de novo standard

25

unless the benefit plan gives the administrator or fiduciary

26

discretionary authority to determine eligibility for benefits or

27

to construe the terms of the plan”).

28

29 U.S.C. § 1132(a)(1).

A district court

The default standard of

Standard Ins. Co. v. Morrison,

However, “[i]f

Id. at 840; Firestone Tire & Rubber Co. v.

Here, the Plan contains a discretionary clause: “[t]he Plan
9

1

Administrator shall have the discretion and authority to

2

interpret and construe the provisions of the STD plan, determine

3

the entitlement of any Participant to benefits hereunder, and

4

decide any dispute which may arise with regard to the rights of

5

Participants entitled to benefits.”

6

on the presence of this discretionary clause, the Court would

7

have to apply an abuse of discretion standard.

8
9
10
11
12
13
14
15

AR 060.

Thus, based solely

However, California law renders such discretionary clauses
void and unenforceable.

Section 10110.6 states that

[i]f a policy, contract, certificate, or agreement
offered, issued, delivered, or renewed, whether or not
in California, that provides or funds life insurance
or disability insurance coverage for any California
resident contains a provision that reserves
discretionary authority to the insurer, or an agent of
the insurer, to determine eligibility for benefits or
coverage, to interpret the terms of the policy,
contract, certificate, or agreement, or to provide
standards of interpretation or review that are
inconsistent with the laws of this state, that
provision is void and unenforceable.

16
17

If section 10110.6 applies in this case, then the discretionary

18

clause in the Plan is void, and the default de novo standard of

19

review would apply.

20

Defendants argue that section 10110.6 cannot apply in this

21

case because ERISA preempts its application.

ERISA is meant to

22

“supersede any and all State laws insofar as they . . . relate to

23

any employee benefit plan.”

24

so-called “Savings Clause” states that ERISA “shall not be

25

construed to exempt or relieve any person from any law of any

26

State which regulates insurance, banking, or securities.”

27

U.S.C. § 1144(b)(2)(A).

28

states that an “an employee benefit plan described in section

29 U.S.C. § 1144(a).

However, the

29

The so-called “Deemer Clause” then

10

1

1003(a) of this title, which is not exempt under section 1003(b)

2

of this title . . . shall [not] be deemed to be an insurance

3

company . . . or to be engaged in the business of insurance or

4

banking for purposes of any law of any State purporting to

5

regulate insurance companies, insurance contracts, banks, trust

6

companies, or investment companies.”

7

29 U.S.C. § 1144(b)(2)(B).

The United States Supreme Court recently summarized ERISA

8

preemption by stating that ERISA preempts two categories of state

9

laws.

ERISA preemption exists (1) where a state’s law acts

10

immediately and exclusively upon ERISA plans and (2) where a

11

state law has an “impermissible connection” with ERISA plans.

12

Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016).

13

An “impermissible connection” “mean[s] a state law that ‘governs

14

a central matter of plan administration or ‘interferes with

15

nationally uniform plan administration.’”

16

Id. at 943.

Defendants argue that section 10110.6 is preempted under the

17

second category of state law identified in Gobeille.

18

Gobeille, Defendants argue that section 10110.6 “has an

19

impermissible connection with a key facet of ERISA plan

20

administration” because “[v]oiding language conferring

21

discretionary authority to plan administrators disrupts the

22

uniform administration of plans and forces administrators to

23

master the laws of all 50 states.”

24

Citing

Opp. at 14.

Defendants’ citation to Gobeille in support of their pre-

25

emption argument is unavailing.

Gobeille considered a Vermont

26

disclosure statute that required health insurers to report

27

payments relating to health care claims to a state agency that

28

would compile the payments in a database.
11

Under the statutory

1

scheme at issue in Gobeille, entities covered by the Vermont

2

statute that failed to comply with the reporting requirements

3

would be fined.

4

a new requirement for administrators of benefits plans, thereby

5

creating a whole new cause of action.

6

different than cases involving state laws, such as section

7

10110.6, that simply void discretionary clauses and therefore

8

only impact the procedures by which a party can challenge a plan

9

administrator’s determination in a federal district court.

10

Thus, Gobeille considered a state law that added

That case is significantly

In fact, the Ninth Circuit has concluded that state laws

11

that bar discretionary clauses (such as section 10110.6) are not

12

preempted by ERISA because they do not “authorize any form of

13

relief in state courts nor serve as an alternative enforcement

14

mechanism outside of ERISA’s civil enforcement provisions.”

15

Standard Ins. Co., 584 F.3d at 846 (rejecting claim that ERISA

16

preempted a policy implemented by the Montana insurance

17

commissioner of disapproving any insurance contract containing a

18

discretionary clause).

19

that these policies “merely force[] ERISA suits to proceed with

20

their default standard of review,” which is de novo, and

21

therefore do not “duplicate, supplement, or supplant the ERISA

22

remedy.”

23

policies at issue in cases such as Gobeille that involve a

24

state’s attempt “to meld a new remedy to the ERISA framework.”

25

Id.

26

that section 10110.6 is not preempted by ERISA.

27

Polnicky v. Liberty Life Assurance Co. of Bos., 999 F. Supp. 2d

28

1144, 1150 (N.D. Cal. 2013); Gonda v. Permanente Med. Grp., Inc.,

Id.

In Standard Ins. Co., the court reasoned

The court distinguished these policies from

Multiple California district courts have similarly concluded

12

See, e.g.,

1

10 F.Supp.3d 1091, 1094 (C.D. Cal. 2014).

2

not provide this Court with any case in which a California

3

district court has concluded that section 10110.6 is preempted

4

and unenforceable.

Defendants also could

5

Defendants attempt to distinguish this case from the

6

overwhelming weight of authority in this Circuit that has

7

concluded that section 10110.6 is not preempted by arguing that

8

self-funded plans should be treated differently.

9

argued at the hearing that the Deemer Clause prevents courts from

Defendants

10

applying section 10110.6 to self-funded plans.

11

believe that section 10110.6 treats self-funded plans as if they

12

are insurance.

13

And Defendants

During the hearing, however, Defendants conceded that the

14

only court that has directly addressed the issue of whether the

15

application of section 10110.6 to self-funded plans is preempted

16

by ERISA concluded that there is no preemption.

17

Life Insurance Company, 2015 WL 5145499, *5 (C.D. Cal. Aug. 31,

18

2015). 1

19

in this case “that the insurance code does not apply because (1)

20

the STD benefits are self-funded . . . and (2) Aetna is granted

21

discretion by the Plan, which is not an insurance policy, and

22

thus, not regulated by the insurance code.”

23

Williby court rejected this argument.

24

Williby v. AETNA

The defendant in Williby argued just as Defendants argue

Id. at *5.

The

By its plain language, section 10110.6 applies to contracts.

25

Cal. Ins. Code § 10110.6(a) (“If a policy, contract, [or]

26

1

27
28

Defendants argue that Williby was incorrectly decided and note
that the case has been or will be appealed. Until the Ninth
Circuit takes up this issue, however, this Court is free to agree
with Williby.
13

1

certificate . . . that provides or funds life insurance or

2

disability insurance coverage for any California resident

3

contains a provision that reserves discretionary authority . . .

4

to determine eligibility for benefits or coverage . . . that

5

provision is void and unenforceable.”) (emphasis added).

6

ERISA plan is a contract.”

7

F.3d 1233, 1240 (9th Cir. 2015), cert. denied, 136 S. Ct. 1448,

8

194 L. Ed. 2d 549 (2016).

9

a plain reading of section 10110.6 demonstrates that it applies

“An

LeGras v. AETNA Life Ins. Co., 786

Thus, as the Williby court concluded,

10

to contracts such as self-funded ERISA plans.

11

accords with the purpose behind section 10110.6.

12

in Williby, the legislative history of section 10110.6

13

demonstrates that the California legislature was concerned over

14

how a discretionary clause, even in a self-funded plan, “deprives

15

California insureds of the benefits for which they bargained,

16

access to the protections of the Insurance Code[,] and other

17

protections in California law.”

This reading
As pointed out

Id. at *5.

18

Defendants’ concern that discretionary clauses “force[]

19

administrators to master the laws of all 50 states” is misplaced.

20

As pointed out above, the Ninth Circuit has already rejected this

21

argument.

22

laws that bar discretionary clauses merely enforce the

23

application of the default standard of review and do not

24

“duplicate, supplement, or supplant” ERISA).

25

argument is the recognition that the initial decision made by a

26

plan administrator to deny or grant disability benefits is a

27

technical medical decision based on the evidence before the

28

administrator.

Standard Ins. Co., 584 F.3d at 846 (finding that state

Implicit in this

Whether that decision will be subject to de novo
14

1

or discretionary review should not impact the administrator’s

2

decision.

3

the standard of review will “force[] administrators to master the

4

laws of all 50 states.”

5

10110.6, whether applied to self-funded plans or not, do not

6

“govern[] a central matter of plan administration or interfere

7

with nationally uniform plan administration.”

8

Ct. at 943.

9

courts [or] serve as an alternative enforcement mechanism outside

And so it’s not clear how state laws that only impact

Plainly, state laws such as section

Gobeille, 136. S.

Nor do they “authorize any form of relief in state

10

of ERISA’s civil enforcement provisions.”

11

F.3d at 846.

12

enforce the default de novo standard of review, and therefore are

13

not preempted by ERISA under Gobeille.

14

Standard Ins. Co., 584

Section 10110.6 and similar state laws simply

Discretionary clauses are controversial.

“The use of

15

discretionary clauses, according to National Association of

16

Insurance Commissioners, may result in insurers engaging in

17

inappropriate claim practices and relying on the discretionary

18

clause as a shield.”

19

same time, “insurers . . . argue [discretionary clauses] keep

20

insurance costs manageable . . . and that the wide ranging nature

21

of de novo review will lead to increased per-case costs.”

22

841.

23

application of state laws that bar discretionary clauses.

24

further direction from the Ninth Circuit, the Court is reluctant

25

to forge a new path through case law that has unanimously

26

concluded that the application of section 10110.6 to disability

27

plans, whether insured or self-funded, is not preempted by ERISA.

28

Standard Ins. Co., 584 F.3d at 840.

At the

Id. at

The Court recognizes the competing interests in the
Absent

For these reasons, the Court concludes that section 10110.6
15

1

applies to self-funded plans in the same way it applies to

2

insured plans and effectively bars the Court from applying the

3

abuse of discretion standard of review.

4

review Aetna’s decision on a de novo basis.

The Court will therefore

5

B.

Analysis

6

To resolve the summary judgment motion, the Court must

7

determine whether there is a genuine issue of material fact as to

8

whether Thomas was disabled under the Plan.

9

applies de novo review, the Court may not defer to Aetna’s

10
11

Since the Court

determination that Thomas was not entitled to STD benefits.
Under the Plan, disability is defined as “the inability of a

12

Participant, because of a medically-determinable physical

13

impairment or mental impairment, to perform the duties of his

14

regular occupation.”

15

not considered disabled “unless he is, during the entire period

16

of Disability Absence, under the direct care and treatment of a

17

Physician and such disability is substantiated by significant

18

objective findings which are defined as signs which are noted on

19

a test or medical exam and which are considered significant

20

anatomical, physiological, or psychological abnormalities which

21

can be observed apart from the individual’s symptoms.”

22

AR 051.

Additionally, the Participant is

AR 051.

Here, Thomas was employed by FedEx as a Contractor Relations

23

Specialist.

Thomas’ job duties included ensuring contractors

24

complied with FedEx’s business models and operation agreements,

25

providing guidance to independent contractors regarding FedEx’s

26

operating agreements, investigating disputes between FedEx and

27

contractors, implementing business strategies, building business

28

relationships, recommending improvements for FedEx programs,
16

1

educating field operators about FedEx’s business model,

2

performing temporary staffing audits, verifying business

3

documentation and compliance, and documenting communications

4

between contractors and FedEx.

5

not list any physical demands as essential functions, but it does

6

state that standing is required 25%-50% of the time, sitting is

7

required 50%-75% of the time, and walking is required 25%-50% of

8

the time.

9

carrying, pushing, and pulling are not essential functions and

AR 437.

AR 436.

Bending, stooping, reaching, lifting,

10

are never required.

11

is required 50%-75% of the time.

12

The job description does

AR 438.

Travel is an essential function and
Id.

Under the Plan, Thomas has the burden to prove with

13

sufficient objective evidence that she was disabled because she

14

was unable to perform her regular occupation.

15

v. ADT Sec. Servs. Pension Plan, 820 F.3d 1060, 1065 (9th Cir.

16

2016) (“[A] claimant may bear the burden of proving entitlement

17

to ERISA benefits” when “the claimant has better – or at least

18

equal – access to the evidence needed to prove entitlement.”).

19

Thomas argues that she provided sufficient objective evidence,

20

Mot. at 11-13, while Defendants argue that her evidence was

21

faulty and that she did not meet her burden, Opp. at 16-18.

Estate of Barton

22

Taking into consideration the parties’ arguments and

23

evidence, the Court concludes that there is a genuine issue of

24

material fact as to whether Thomas proved with objective evidence

25

that she was disabled.

26

Thomas was disabled and two doctors have concluded that Thomas

27

was not disabled.

28

evidence because they are “signs which are noted on a test or

First, two doctors have concluded that

Also, the MRI results count as objective

17

1

medical exam.”

2

in conjunction with other evidence to conclude that Thomas had

3

“significant anatomical, physiological, or psychological

4

abnormalities.”

5

O’Laughlin’s opinion was at least partly based on his

6

observations “apart from [Thomas’] symptoms.”

7

Defendants even admit that there are some pieces of objective

8

evidence.

9

records providing objective, measurable evidence.”).

AR 051.

Id.

At least one doctor considered the MRI

Consideration of the MRI means that Dr.

AR 051.

D Reply at 5 (“there are extremely limited medical
The mere

10

existence of such limited evidence means that summary judgment in

11

favor of Defendants would be inappropriate at this point.

12

this evidence, along with other evidence, was enough for several

13

doctors to conclude that Thomas was unable to perform her regular

14

tasks.

And

15

On the other hand, Defendants provide multiple reasons why

16

this limited evidence is not sufficient to conclude that Thomas

17

was disabled.

18

exact opposite conclusion as Dr. O’Laughlin and opined that

19

Thomas was not disabled.

20

MRI report was “very sparse.” AR 511.

21

there was no clinical evidence of any motor or sensory loss,

22

weakness, or gait dysfunction.

23

2012 x-ray revealed no fracture and normal disc spaces and facet

24

joints.

25

degenerative disc disease, the lumbar spine MRI revealed no

26

neural compression.

27
28

Their two records reviewer doctors reached the

AR 340-345.

Dr. O’Laughlin himself opined that the
And Dr. Swamy found that

AR 586. Moreover, the October 8,

Though the cervical spine MRI demonstrated

AR 379.

At the summary judgment stage, the Court simply analyzes
whether there is a genuine issue of material fact that should be
18

1

reserved for trial.

2

that Thomas was disabled and there is some evidence that Thomas

3

was not disabled.

4

reserved for a trier of fact.

Here, there is some evidence to conclude

Resolution of the competing facts should be

5
6
7
8

III.

ORDER

For the reasons set forth above, the Court DENIES Thomas’s
and Defendants’ motions for summary judgment.

9

IT IS SO ORDERED.

10

Dated: August 15, 2016

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19