GAYER v. United of Omaha Life Insurance Company

Filing 24

ORDER Granting Defendant's 19 Motion for Judgment and Denying Plaintiff's 18 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Lukas Gayer
Plaintiff,
Case No.15-11202
Hon. Denise Page Hood

v.
United of Omaha Life Insurance Co.,
Defendant.
________________________________/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (DOC. # 19) AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (DOC. # 18)
I.

INTRODUCTION
Plaintiff filed a summary judgment motion seeking to reverse a denial of

ERISA benefits by the plan administrator. (Doc. # 18). Defendant responded and
filed its own summary judgment motion seeking to affirm the plan administrator’s
decision. (Doc. # 19).
II.

BACKGROUND
United of Omaha Life Insurance Company (“United”) provided a long term

disability policy to Michigan Seamless Tube covering eligible hourly and salary
employees. Under the policy, an insured claiming long term disability (“LTD”)
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benefits must also apply for other benefits to which the insured may be entitled,
such as social security benefits. If applying for social security benefits, the insured
must appeal denials to a level that is satisfactory to United and provide United with
written proof of the appeals.
Lukas Gayer (Gayer) worked for Michigan Seamless Tube as a crane
operator. As a result of his employment, he was covered under the LTD policy
Michigan Seamless Tube had with United. As a crane operator, Gayer operated an
overhead electric traveling crane to transport materials and equipment. He assisted
in the maintenance and repairs of the crane. According to United, Gayer’s job
“required light physical exertion,” requiring an the crane operator to climb a ladder
or stairs to reach the cab of the crane in which the operator sits and operates the
controls of the crane. (Doc. #19 at 9).
In November 2006, while he was at work, Gayer injured his back after
falling 15 feet into a hole. As a result of his fall, Gayer suffered from back pain. On
October 6, 2010, Gayer visited Dr. Glenn J. Minister about his back. He told Dr.
Minister that after his back injury he went to physical therapy and underwent
steroid shots; however, his pain was still rated as an eight out of ten. An X-ray and
MRI revealed Gayer had a degenerated herniated L4-L5. Gayer and Dr. Minister
discussed a lumbar decompression and fusion at the L4-L5 level.
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On November 9, 2010, Dr. Minister performed on Gayer a laminectomy and
fusion of L4-L5 and L5-SI. From November 9, 2010 - March 11, 2011, Gayer was
on short term disability approved by United. During this time, Gayer presented
United with medical documentation of his condition.
On April 23, United disputed his claim for disability, claiming that medical
proof did not justify extending Gayer’s disability leave. Therefore, United would
not cover Gayer’s disability from March 10, 2011, going forward. Gayer provided
more medical documentation and on June 20, 2011, United reversed itself and
stated it would cover Gayer’s disability going forward from March 10, 2011. Gayer
remained on disability to January 4, 2012. On January 20, 2012, United sent
Michigan Seamless Tube notice that it was approving Gayer’s claim for long term
disability benefits effective November 9, 2010. Gayer filed applications for social
security benefits which were denied. Gayer is currently in the process of appealing
those denials. On April 26, 2013, United requested from Gayer’s primary care
physician Dr. Oostendorp permission for United to obtain a functional capacity
evaluation (“FCE”). On June 20, 2013, Gayer participated in the FCE. The FCE
results are summarized as follows:
The results of this evaluation indicate that Lukas Gayer demonstrated an
ability to function in the Sedentary Physical Demand Level according to the
U.S. Department of Labor Standards for a 4 hour work day. It is likely that
Mr. Gayer is capable of higher functional abilities than what was
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demonstrated during testing today since he voluntarily terminated testing
prior to completion. Abilities above were determined off of incomplete
data.
Lukas Gayer demonstrated the ability to occasionally lift up to 10 lbs Floor
to Waist, 15 lbs Waist to Shoulder, carry up to N/A lbs, push 40 pounds of
force, and pull 40 pounds of force. Lukas Gayer demonstrated Constant
sitting, Occasional standing, Occasional walking, not Tested stair climbing,
Occasional reaching at desk level, Occasional reach at overhead level,
Occasional reach floor level, Occasional balancing, Not Tested stooping,
Not Tested kneeling, Not Tested crouching, Not Tested crawling, Frequent
object handling, Frequent fingering, Frequent simple hand grasp, Frequent
firm hand grasp, Frequent fine/gross hand manipulation. Lukas Gayer
completed a single stage treadmill test at 2 mph and 5% grade. This was
sufficient to predict Lukas Gayer’s functional aerobic capacity at 3.56
METS for an 8 hour time period.
Deficits identified during testing include lumbar range of motion and lower
quarter strength.
Lukas Gayer demonstrated consistent performance on performance
consistency testing, however he demonstrated self limiting behaviors
throughout material handling and positional tolerance testing. With
termination of many functional tests, physiological responses (heart rate and
respiratory rate) and movement and muscle recruitment patterns did not
match the complaints of severe pain and maximal effort. Also, Mr. Gayer
refused several activities due to reports of pain or potential pain and
terminated testing prior to completion due to reports of pain. Based on these
factors, the results of this evaluation can be considered to be a minimal
representation of Lukas Gayer’s functional abilities.

(Doc. # 11-3 at Pg. ID 326).
On September 20, 2013, Dr. Jospeh Salama, Diplomate American Board of
Orthapedic Surgery issued a report regarding his Independent Medical
Examination (“IME”) of Gayer. It noted Gayer worked for Inland waters for two
years rescuing people. This job required climbing, bending twisting, and lifting. It
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is unclear exactly when he worked for Inland Waters. In other medical
documentation, it stated that Gayer’s job with Inland Waters involved dispatching
and supervising and not anything physical. Prior to working for Inland Waters,
Gayer worked as a crane operator. The report stated a crane operator requires light
physical exertion. An occupational analysis detailing the physical demands of
Gayer’s job indicated light work, which is exerting up to 20 pounds of force
occasionally, 10 pounds of force frequently, and a negligible amount of force
constantly to move objects and that the physical demand requirements are in excess
of those for sedentary work and that light work requires walking or standing to a
significant degree.
The IME noted various medical records indicating Gayer’s back pain. It
noted his back surgery in 2010, and progress in March 2011, the time he began
physical therapy and rehabilitation. The report noted that “a failure to improve post
ten months after the fusion surgery and the L4-5 did not form a solid fusion.”
Gayer began steroid injections in his back. Through 2012, the report noted that
Gayer complained of back pain. Dr. Salama noted the FCE and Gayer’s alleged
“self-limiting” behaviors. Dr. Salama noticed Gayer’s muscular tone and opined
that he must engage in strenuous physical exercise, which is something
inconsistent with being totally disabled. The report stated that Dr. Salama found
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Gayer exhibited signs of lack of effort in performing tests. Gayer had a “fairly
good range of motion” and undressed and walked across the room without
difficulty. The IME recommended Gayer should be restricted from lifting more
than 15 pounds repetitively or 25 pounds at one time. He should also avoid
repetitive bending and twisting. (Doc. # 11-2 at Pg. ID 268-77).
On October 18, 2013, Douglas Palmer, an independent vocational
rehabilitation consultant, issued a transferable skill assessment for Gayer. The
transferable skill assessment was based on Gayer’s reported restrictions identified
in the IME. It stated Gayer qualified for light work employment in other
occupations, such as maintenance dispatcher, order caller, shipping checker, or
industrial order clerk. (Doc. # 11-2 at Pg. ID 249-52). The report noted that the
suggested positions would unlikely provide wages meeting or exceeding his wages
as a crane operator.
On January 13, 2014, United informed Gayer that it determined that he
possessed a functional work capacity and had the transferable skills necessary to
perform a job at the light or sedentary level. (Doc. # 11-2 at Pg. ID 223-230).
United stated that under the “Maximum Capacity” provision of the policy, Gayer
needed to attempt to find work within his functional abilities and notify United of
any attempts he made to find work. (Doc. # 11-2 at Pg. ID 229-230 ). United
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based its decision on medical records from Dr. Oostendorp for the period of May 9,
2011 to November 27, 2012; medical records from Dr. Minster dating from
January 4, 2012 to February 29, 2012; prescription records from Oakwood
Pharmacy; Dr. Oostendorp’s January 31, 2013, attending physician statement; the
FCE; the IME; and the Transferable Skills Assessment. (Doc. # 11-2 at Pg. ID
224).
Gayer did not send any information regarding attempts to find work. Instead,
on February 4, 2014, he sent United a letter from Dr. Oostendorp noting that Gayer
was not fit for work and none of the work restrictions had been removed. The note
restricted Gayer from sitting for more 15 minutes, overhead activity, only standing
or moving as needed, no squatting, no lifting of more than 10 pounds from the
floor or below the waist, limited standing and walking, no pushing, pulling,
climbing, or repeated bending. The letter indicated that Gayer still suffered from
severe back pain.
United replied stating that it would take time to review its decision. It even
consulted Dr. Reeder, who opined based on Gayer’s medical records that he was
able to work. On August 13, 2014, United informed Gayer that it was standing by
its decision and he could appeal its denial of long term disability benefits. Gayer
filed suit seeking to reverse the decision of the administrator claiming that his
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medical records indicate he is still unable to work. United responds that the
medical reports support the administrator’s finding that he is able to work.
III.

STANDARD OF REVIEW
A district court conducts a de novo review of the plan administrator's denial

of ERISA benefits, unless the benefit plan gives the plan administrator
discretionary authority to determine eligibility for benefits or to construe the terms
of the plan. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.
1998). In this case, the plan administrator does not have discretionary authority to
determine eligibility for benefits or to construe the terms of the plan, therefore the
Court will use the de novo standard of review.
The de novo standard of review applies to the factual determinations as well
as the legal conclusions of the plan administrator. Id. Under a de novo review, “the
role of the court reviewing a denial of benefits is to determine whether the plan
administrator made the correct decision.” Hoover v. Provident Life and Acc. Ins.,
290 F.3d 801, 808 (6th Cir.2002) (internal quotations omitted). First, the Court
must decide whether the administrator properly interpreted the Plan. Id. at 809.
Applying general principles of contract law, the Court must read the Plan
provisions “according to their plain meaning in an ordinary and popular sense” and
construe any ambiguities in the plan against the drafter. Williams v. Int'l Paper Co.,
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227 F.3d 706, 710 (6th Cir.2000). Second, “[T]he administrator's decision is
accorded no deference or presumption of correctness,”instead, relying only on the
record before the plan administrator at the time of its decision, the Court must
decide whether the insured was entitled to benefits under the proper interpretation
of the Plan provisions. Hoover, 290 F.3d at 809. To succeed on a disability claim
benefits under ERISA, a plaintiff must prove by a preponderance of the evidence
that he or she was “disabled,” as that term is defined in the Plan. Tracy v.
Pharmacia & Upjohn Absence Payment Plan, 195 Fed. Appx. 511, 516 (6th
Cir.2006). The court must first look to the nature of the plaintiff's job, then to the
medical evidence, applying the evidence to the occupational standard. Elliott v.
Metropolitan Life Ins. Co., 473 F.3d 613, 618 (6th Cir.2006).
IV.

DISCUSSION
The parties claim to dispute whether Gayer has work capabilities that fit

under the “maximum capacity” provision of the plan, which states:
Maximum Capacity: means, based on Your medical restrictions and
limitations: (a) during the first 24 months of Disability payments, the
greatest extent of work You are able to do in Your Regular Occupation; and
(b) after 24 months of Disability payments, the greatest extent of work You
are able to do in any occupation that is reasonably available and for which
You are reasonably fitted by education training or experience.

(Doc. 11-1 at Pg. ID 67-68). In other words, after looking at Gayer’s medical
records is he capable of performing work with his restrictions.
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After reviewing the medical record, the plan administrator was correct in
denying Gayer LTD benefits. The administrative record supports a finding that
Gayer is capable of light or sedentary work. Under 20 C.F.R. § 404.1567, which
has the same definitions as the Dictionary of Occupational Titles, published by the
Department of Labor, sedentary work involves:
lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria
are met.

Cole v. Comm'r of Soc. Sec., No. 2:13-CV-250, 2014 WL 3809794, at *5 (S.D.
Ohio Aug. 1, 2014). Regarding physical exertion, the Dictionary of Occupational
Titles defines sedentary as:
[e]xerting up to 10 pounds of force occasionally (Occasionally: activity or
condition exists up to 1/3 of the time) and/or a negligible amount of force
frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the
time) to lift, carry, push, pull, or otherwise move objects, including the
human body. Sedentary work involves sitting most of the time, but may
involve walking or standing for brief periods of time. Jobs are sedentary if
walking and standing are required only occasionally and all other sedentary
criteria are met.

Id. (citing Department of Labor, Dictionary of Occupational Titles, Appendix C
(4th ed. rev.1991), available at
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.

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Gayer’s FCE report, at least for the tests he completed, demonstrated he
could push and pull up to 40 pounds of force, occasionally lift up to10 lbs from the
floor to his waist and 15 lbs from his waist to his shoulder, constantly sit,
occasionally stand, walk, reach at desk and overhead level and complete frequent
fine/gross hand manipulation. These actions are consistent with sedentary work
requirements, which means that Gayer is capable of functioning in the Sedentary
Physical Demand Level for a four hour work day.
Gayer challenges the FCE noting that it stated it was a “minimal
representation of Lukas Gayer’s functional abilities.” However, the FCE noted that
Gayer exhibited “self limiting behaviors throughout material handling and
positional tolerance testing.”(Doc. # 11-3 at Pg. ID 326). Consequently, it was
appropriate for United to rely on the FCE to gauge Gayer’s functional capabilities
In regards to Dr. Oostendorp’s medical records, they do not appear to restrict
Gayer’s ability to work. Dr. Oostendorp’s evaluation forms stated “check if system
is queried” and “circle abnormals.” See e.g. (Doc. 11-3 at Pg. ID 399).
In February 2012, Dr. Oostendorp did not indicate any irregularities in Gayer’s
orthopedics; rather, the record indicated normal “gait and station, muscle tone and
strength.” In June and July of 2012, Dr. Oostendorp noted abnormal gait and
station, muscle tone and strength under the orthopedic category, and noted that
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Gayer had joint pain and stiffness, presumably in his back. But, in August, and
twice in November Dr. Oostendorp’s forms do not list any abnormalities with
Gayer’s orthopedic system. Instead, the records indicate once again he had normal
gait and station, muscle tone and strength. None of Dr. Oostendorp’s records from
2012 discuss limiting Gayer’s ability to work.(Doc. # 11-3 at Pg. ID 400-416).
Dr. Oostendorp’s records did not reveal material abnormalities or
deformities in Gayer’s back, for instance, Dr. Oostendorp reported a normal MRI
for Gayer’s back. In fact, none of the treating physicians have reported any
significant malformations in Gayer’s back that could be the cause of his alleged
increasing back pain.
There are inconsistencies in Gayer’s medical records that suggest Gayer is
downplaying his capabilities. During the FCE in June 2013, Gayer claimed that as
a result of his back pain he needed help dressing, putting on socks, and
undergarments. Yet, at the IME in September 2013, Gayer was able to dress and
undress without difficulty, and walk across the examination room without
difficulty. These inconsistencies, combined with Gayer’s alleged self-limiting
behavior during the FCE, suggest Gayer’s is physically capable of performing
more activities. Accordingly, the Court finds that Gayer is not entitled to long term
benefits.
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V.

CONCLUSION
Plaintiff’s Motion for Summary Judgment is (Doc. # 18) is DENIED.

Defendant’s Motion for Summary Judgment (Doc. # 19) is GRANTED.
IT IS ORDERED.
s/Denise P. Hood

Honorable Denise Page Hood
United States District, Chief Judge
Dated: September 6, 2016

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, September 6, 2016, by electronic and/or ordinary mail.
s/Keisha Jackson
for Case Manager L. Saulsberry

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