Moar v. Cigna Corporation

Filing 41

OPINION and ORDER Granting Plaintiff's 33 Motion for Judgment; Denying Defendants' 34 Motion for Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LANI KYLE MOAR,
Plaintiff,

Case No. 2:17-cv-10142

v.

HONORABLE STEPHEN J. MURPHY, III

CIGNA CORPORATION, et al.,
Defendants.
______________________________/
OPINION AND ORDER GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [33] AND
DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [34]
Lani Moar alleged that she is totally disabled and filed claims under ERISA to
challenge her insurers' final determinations that she does not qualify for benefits. Both
sides have filed cross-motions for summary judgment and the Court held a hearing. For
the reasons below, the Court will grant Plaintiff's motion and deny Defendants' motion.
BACKGROUND
I.

The United Airline Policies
United Airlines (United) offers its flight attendants a bundle of benefits that they

may choose to enroll in. In the case of insurance benefits, United purchases policies
from insurance companies, explains the terms of the policies to its flight attendants, and
gives them the opportunity to enroll if they wish. During the 1980s, United Airlines
(United) secured two policies ("the Policies") relevant here: In 1980, Defendant Life
Insurance Company of North America (LINA) issued United a Long-Term Disability
Policy (LTD); in 1988, the Connecticut General Life Insurance Company (CGLIC) issued

United a group life insurance policy. Part of the life insurance policy includes a waiver of
premium (WOP) benefit. When Plaintiff Lani Moar joined United in 1989, she enrolled in
the Policies.
At the outset, the Court finds that while LINA and CGLIC—along with their
policies—are distinct, they are both subsidiaries of Cigna. Accordingly, the letterhead,
email addresses, and logos within the administrative record principally refer to Cigna.
Most relevant correspondence from the two insurers are mirror images, though when
applicable, LINA and CGLIC are identified as relevant underwriters and points of
contact, and a recurring, fine-print footnote discloses that "[p]roducts and services are
provided by these insurance company subsidiaries and not by CIGNA Corporation."
See, e.g., ECF 30-1, PgID 9212, 9216, 9223. At the hearing, however, both parties
generally referred to Defendants collectively as Cigna and the records themselves
sometimes blur the lines between the two entities. See, e.g., ECF 30-1, PgID 9232 (the
heading of a letter rejecting Moar's appeal refers solely to LINA and its policy, but
functionally addresses the CGLIC policy and WOP benefits as well). For clarity, the
Court will hew to the distinction between the two.
Both policies allow United employees like Moar to receive benefits if they
become disabled. Under the LINA policy, an employee is initially considered "totally
disabled" if an injury or illness renders her "unable to perform all the essential duties of
[her] occupation." ECF 30-5, PgID 9742. After 24 months, however, the employee is
considered totally disabled only if she is "unable to perform all the essential duties of
any occupation for which [s]he is or may reasonably become qualified based on [her]
education, training or experience." Id. (emphasis added). The CGLIC policy uses a

2

similar definition, but it does not distinguish between disability in one's field and
disability from any occupation. Under the CGLIC policy, an employee has a "Permanent
Total Disability" if an injury or sickness completely and continuously prevents her "from
performing any work or from engaging in any occupation or employment for wage or
profit for which [s]he is qualified, or may reasonably become qualified, based on [her]
training, education or experience, and [s]he presumably will continue to be so disabled
for the remainder of [her] life." ECF 24-13, PgID 4325 (filed under seal).
II.

Moar's First Set of Appeals
During the 1990s, Moar developed lupus and congestive heart failure.1 As a

result of the conditions, she ceased working on December 27, 1999 and submitted
claims of total disability under both Policies. ECF 30-1, PgID 9217. CGLIC and LINA
approved the claims, so Moar's WOP benefits commenced on June 27, 2000 and her
LTD benefits commenced on September 22, 2000. ECF 32-1, PgID 9210; ECF 30, PgID
9095 (noting an initial 270-day waiting period for LTD benefits). After the initial 24
months, Moar continued to receive LTD benefits.
From time to time, LINA and CGLIC would try to verify the extent of Moar's
disability. When they did so, they drew from various sources. For instance, they would
request medical records from her treating physicians, ask those physicians to complete
forms and questionnaires, and in some cases have them verify the conclusions that
LINA's and CGLIC's reviewers had reached. LINA and CGLIC would also ask Moar to
fill out forms and questionnaires.

1

In a letter to Cigna, she stated that she was diagnosed with the disease in 1991. ECF
30-1, PgID 9220.
3

In 2011, LINA and CGLIC began to investigate Moar's disability and asked
Moar's primary care physician, Dr. Crandall, to fill out a Physical Ability Assessment—a
checklist of common physical movements that allowed Crandall to explain what Moar
was and was not capable of. In the assessment, Crandall reported that Moar could lift a
maximum of two and a half pounds, could occasionally climb stairs but could perform no
repetitive movements, and noted that Moar's foot control limited her to only occasional,
short driving trips. ECF 24-2, PgID 1323 (under seal).
LINA sent the same assessment form to Moar's cardiologist, Dr. Bowers, but his
conclusions were somewhat different. He concluded that Moar could lift ten pounds
"constantly" or more than five and a half hours a day and that she could occasionally lift
up to fifty pounds. ECF 24-2, PgID 1282 (under seal). Bowers believed Moar could sit
constantly throughout the day and stand, non-consecutively, for five and a half hours a
day. Id. at 1281. In his concluding notes, Bowers stated that Moar was, "stable from [a]
cardiovascular standpoint" and that her limitations were "due mostly to medical issues."
Id. at 1282.
LINA asked Dr. Thompson (Moar's neurologist) to fill out an assessment, too. He
did not fill out the assessment, but instead sent a brief letter that detailed why he had
performed surgery on Moar in the past and her neurological health to date. He
concluded only that she was "quite stable neurologically and from an imaging
standpoint." ECF 24-2, PgID 1279.
LINA contends that based on the inconsistencies of these reports, it commenced
a clandestine surveillance of Moar. ECF 34, PgID 9839. Over the course of three days,
investigators recorded her as she went about her daily routine, summarized what they

4

saw, and concluded that Moar was "capable of returning to work in a sedentary
occupation." ECF 30-1, PgID 9213. LINA and CGLIC sent a copy of the DVD, along with
their written conclusions, to Moar's doctors with a request: review the DVD and our
report and if you do not agree with our conclusion, "submit medical documentation that
would be contrary to these findings." Id.
Response from the doctors was limited. Dr. Crandall sent a letter explaining that
she had "no additional clinical documentation beyond what had previously been
provided." Id. Dr. Bowers sent a note from Moar's recent office visit that was limited in
scope. Dr. Thompson sent nothing, but his office called to say that he "is not involved in
[the] patients' disability status." Id. at 9214.
Based on the records before it, the surveillance it conducted, and Moar's doctors'
responses, LINA sent Moar a letter dated February 10, 2012 and informed Moar that
after completing its review of her claim, it was "unable to continue paying [LTD] benefits
beyond February 9, 2012," though to "prevent financial hardship," benefits would be
paid through March 10. Id. at 9212. CGLIC sent a similar letter a month later, on March
13, 2012. It stated that after a "review of your claim, we are unable to continue your
claim for waiver of premium of life insurance coverage beyond February 16, 2012." Id.
at 9216. Both letters summarized how the decisions were reached and upon what
information they were based.
Moar appealed the decisions. Initially, she did so pro se and without
supplementing the record. Id. at 9220–23, 9226. LINA and CGLIC2 rejected the initial

2

Although the letter refers only to LINA and the Life policy, the body of the letter
mentions the WOP benefit, too. See ECF 30-1, PgID 9232; see also ECF 34, PgID
5

appeals on June 5, 2012, id. at 9232, and then Moar "re-appealed" the decisions,
through counsel, id. at 9237, 9257. In the second effort, Moar submitted additional
records and letters from doctors who had treated her: a rheumatologist, a neurologist, a
cardiologist, a gastroenterologist, an ophthalmologist, and additional records from Dr.
Crandall. Id. at 9237–38. LINA then retained two doctors to review the new materials
and to state whether they agreed with Moar's physicians. The doctors were Dr.
Fishman, a cardiologist, and Dr. Almaraz, a neurologist.
The two independently and thoroughly summarized Moar's medical history, but
arrived at different conclusions in their respective disciplines. Fishman concluded "I
have no disagreements with the claimant's physicians. The limitations and restrictions
that are attributed to her various medical illnesses and diagnoses are severe and
extremely limiting and lead to great restrictions and complete disability." Id. at 9254.
Almaraz, on the other hand, concluded
From a neurological point of view, I disagree with the attending providers'
restrictions and limitations in this case. The only restriction that I see, from
a neurological perspective, is that the claimant should [be] precluded from
engaging in heavy labor category of work. Otherwise, I see no objective
neurological basis to impose any restrictions or limitations.
ECF 24-3, PgID 2026. Almaraz conceded, however, that Moar's records "document a
suspected autoimmune disorder and a cardiac condition, but these are outside of my
area of expertise." Id.
With these reports in hand, along with the documents Moar submitted, LINA and
CGLIC reversed their decisions and reinstated Moar's benefits. Id. at 9256, 9266.

9841 n.7 (explaining that "the letter clearly addresses both Plaintiff's LTD and WOP
appeals").
6

III.

Moar's Second Set of Appeals
In 2015, a second process began. LINA sent Dr. Crandall another assessment

form to complete, along with a medical request form. In that assessment, Crandall
stated that Moar could stand, walk, or sit for one third of the day and could occasionally
lift ten pounds, although she could "rarely" climb stairs. ECF 24-2, PgID 1118. Crandall
also indicated3 that, unlike before, Moar could not even occasionally use her lower
extremities for foot control. Id. Yet in the portion of the medical request form that asked,
"What are the specific restrictions that you have placed on your patient?" Crandall wrote
"See previous form – no change." Id. at 1116. Crandall also noted that no
accommodations would allow Moar to return to work in her current condition and in a
portion that asked when Crandall thought Moar could return to work without restrictions,
Crandall wrote, "never."4 Id.
Still, in light of Dr. Crandall's new assessment, CGLIC5 again denied Moar
benefits through a letter dated September 4, 2015. ECF 30, PgID 9277. According to
the letter, CGLIC requested current medical records from all of Moar's providers to
"ensure a complete review of [her] Waiver of Premium claim," and "all information on file
was considered." Id. The only records specifically mentioned, however, were office
notes from Drs. Bowers and Crandall (both dated July 21, 2015) and the assessment
and medical request forms that Crandall filled out. The denial letter explained that

3

Crandall left the boxes for "Constantly," Frequently," and "Occasionally" unchecked,
but did check the box did that confirmed her findings were supported by clinical findings.
4
She left the box labeled "with restrictions" blank.
5
The letter actually lists LINA as the insurer, but the body of the letter discusses WOP
benefits, rather than the LTD benefits provided by LINA.
7

Crandall's assessment suggested Moar was capable of working as an "Information
Clerk," and was therefore not totally disabled. Id. at 9278.
Moar appealed the determination through her attorney in January 2016. And she
supplemented her file with documents from treating physicians who specialized in
cardiology, urology, nephrology, rheumatology, and neurology. ECF 30-1, PgID 9288,
9292, 9294. The appeal letter also detailed Moar's medical history and suggested that
the repeated denials were arbitrary and capricious, in violation of ERISA.
Moar's appeal prompted CGLIC to retain several doctors with different specialties
to review Moar's case and render opinions:


Dr. Pietruszka, who is board certified in occupational medicine, pathology, and
forensic toxicology. Id. at 9296;



Dr. Johnson, who is board certified in cardiovascular disease. Id. at 9303; and



Dr. Warner, who is board certified in occupational and environmental medicine.
Id. at 9312.

Their conclusions are further discussed below, but in sum, none concluded that Moar
was totally disabled.
Accordingly, CGLIC affirmed its decision to deny further benefits on August 30,
2016, and rendered the decision final. ECF 30-2, PgID 9326. Moar filed the instant suit
in state court thereafter and Defendants removed it on January 17, 2017.
While the case was underway, LINA sent Moar a letter on April 18, 2017. The
letter explained that LINA no longer considered Moar eligible for LTD benefits beyond
April 17, 2017, but to prevent financial hardship, benefits would continue through May
16, 2017. Id. at 9339. In the letter, LINA explained that it took into account the WOP
denial, although it also reviewed Moar's complete file, including additional information
she and her doctors submitted. Id. at 9340.
8

The April 2017 letter described how LINA reached its decision, but this time it
was longer and more detailed. First, it discussed how it had retained Dr. Warner to
review Moar's records and to perform an independent medical examination (IME) on
her. The letter summarized Warner's conclusions as to the tasks Moar could perform.
Id. Next, the letter summarized a questionnaire that Moar had filled out which explained
the daily tasks she could and did perform. Id. Then the letter summarized what Moar's
treating physicians had said about her capabilities. And finally, the letter stated that with
all of the records in hand, LINA referred Moar's file to a rehabilitation counselor, who
matched Moar's limitations to two jobs she could perform: a sedentary Reservations
Agent and a sedentary Repair-Order Clerk. Id. at 9342. LINA concluded that because
Moar could perform those jobs, she was not disabled.
Another appeal followed. Along with her appeal letter, Moar submitted additional
records from her treating physicians. Specifically, she sent records from Bowers (the
cardiologist), Eilender (the neurologist), Skender (the rheumatologist) and Crandall (the
primary care doctor). ECF 30-2, PgID 9345–51. LINA referred the appeal to an
occupational medicine doctor, who reviewed Moar's records and, along with Cigna's
vocational rehabilitation department, concluded that Moar could work as a
"Documentation Billing Clerk" or "Gate Agent" and thus was not disabled. ECF 30-2,
PgID 9391–92. LINA's denial therefore became final on September 19, 2017, id. at
9390, and Moar accordingly then amended her complaint, ECF 15. The denial of both
Moar's LTD benefits and her WOP benefits are now at issue in the case.

9

STANDARD OF REVIEW
The Court reviews a plan administrator's denial of ERISA benefits de novo
"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). If there has been a clear grant of
discretion to determine benefits or interpret the plan, then the Court looks only to
whether the denial was arbitrary and capricious. Wulf v. Quantum Chem. Corp., 26 F.3d
1368, 1373 (6th Cir. 1994).
DISCUSSION
I.

The Appropriate Standard of Review
The parties disagree over the standard of review. Moar contends that the Court

should apply de novo review, while Defendants insist that the arbitrary and capricious
standard is appropriate. The disagreement arises, in part, based on the differences
between two documents: the Consolidated Welfare Benefit Plan ("the Plan") and the
Summary Plan Description ("the Summary").
As its name suggests, the Plan consolidated several existing benefit plans for
United employees and went into effect in 2012. ECF 30, PgID 8881. It has been
amended from time to time since then. See id. at 8960–69. The Plan defines, among
other things, benefit coverage, the process for enrollment and appeals, and the Plan's
administrator. Each of the benefit programs that make up the Plan has its own separate
"Program Document." The Plan defines these as:
[T]he written materials setting forth the terms of each separate Benefit
Program, which consist of all formally adopted and executed program
documents. Insurance Company contracts or certificates, summary plan
descriptions (including any summaries of material modifications),
10

enrollment materials, correspondence and other memoranda from the
Company that describe in whole or in part a Participant's rights, benefits,
limitations and obligations under a Benefit Program.
Id. at 8891. Sometimes the terms of a Separate Program Document differ from the
Plan's terms. The Plan resolves potential conflicts in the following way:
Separate Program Documents which describe the specific benefits
provided by each Benefit Program, the individuals covered by each
Benefit Program, and the other terms and conditions of each Benefit
Program, including any contract with an Insurance Company maintained in
connection with a Benefit Program, as amended from time to time, shall
be attached hereto and incorporated herein by this reference. The Plan
supersedes and replaces any Program Document defining the terms of or
describing a Benefit Program which is not incorporated and made part of
the Plan. If the Benefit Program is insured and there is a conflict between
the specific terms of a Program Document and the terms of the Plan, the
Program Document shall control. For all other Benefit Programs, if there is
a conflict between the specific terms of a Program Document and the
terms of the Plan, the Plan shall control (unless contrary to applicable
law), except that any terms exclusively applicable to a Benefit Program
shall be set forth in the applicable Program Document.
Id. at 8881–82.
The Summary, on the other hand, merely explains the scope and nature of the
benefits established by the Plan. Although the Summary itself goes into great detail, it
includes the following proviso:
This handbook is designed to summarize each benefit covering eligible
participants in the Welfare Benefit Plan as simply and understandably as
possible. Each of the benefits described in this handbook is based on a
legal document or contract. If this handbook and the Plan documents
conflict, the official documents will govern your benefits under the Plan.
Id. at 8978.
Both the Plan and the Summary discuss who administers the Plan. Section 10.6
of the Plan states that, "The Plan Administrator has sole discretionary authority to grant
or deny benefits under this Plan." Id. at 8940. And the Summary makes a similar
statement: "The Plan Administrator has the final and binding authority to determine who
11

is eligible for the Plan, what benefits they are entitled to under the terms of the Plan,
what the terms of the Plan mean, and any other claims under the Plan." Id. at 8988. But
the Plan Administer can also delegate its authority and responsibilities to a Claims
Administrator, and if it does so, "[a]ny reference to the Plan Administrator in this Section
10.6 shall mean the applicable Claims Administrator[.]" Id. at 8940.
CGLIC and LINA denied Moar's claims and she contends that they lacked the
authority to do so. In support, she refers to a portion of the Summary that states that the
"Administrator of the Plan is a committee appointed by United's Board of Directors
called the Pension and Welfare Plans Administration Committee (PAWPAC)." Id. at
8982. She points out that PAWPAC did not deny her claims, but rather, Cigna (or LINA
and CGLIC) did. Moar concludes that Cigna was not clearly granted sole discretion to
deny her claim and thus de novo review should apply.
The Plan unambiguously grants discretion to determine benefits or interpret the
plan to the Plan Administrator and permits the Administrator to delegate the authority to
make claim decisions to a Claims Administrator. Id. at 8938–40. Section 10.6's clear
grant of discretion extends to any delegated Claims Administrator because "[a]ny
reference to the Plan Administrator in this Section 10.6 shall mean the applicable
Claims Administrator[.]" Id. at 8940. Although the Summary identifies PAWPAC as the
Plan Administrator, the copy of the Summary given to the Court is dated July 1993—
some 19 years before Moar's relevant claim was denied. The Plan was issued in the
interim and Moar's Amended Complaint flatly states that at all relevant times, CGLIC
and LINA "under the service mark 'CIGNA Group Insurance'" were administrators of the
Plan and fiduciaries of it "within the meaning of ERISA § 3(21), 29 U.S.C. § 1002(21)"

12

and both CGLIC and LINA acted as claims fiduciaries who administered claims for
benefits under the Plan. ECF 17, PgID 189, ¶¶ 17–18. At the hearing, Moar's attorneys
stated that PAWPAC is and was the Plan Administrator, but noted that it delegated
claims-administrative authority to LINA and CGLIC.
Accordingly, the Plan clearly granted LINA and CGLIC the sole, discretionary
authority to grant or deny benefits under the Plan. The Court must therefore review the
denials under the arbitrary and capricious standard.
II.

The Denial of Benefits
In some respects, the case turns almost entirely on which doctors' opinions

should be privileged. Moar argues that the medical records do not support Defendants'
conclusions that she is not disabled. She contrasts the thorough records of her treating
physicians to purportedly sparse considerations by Defendants' hired consultants
whom, she alleges, lacked the necessary qualifications to determine the extent of her
disability. Defendants counter that they gave due consideration to Moar's physician's
opinions and aver that the denials "were the result of deliberate, principled reasoning
processes and are supported by substantial evidence[.]" ECF 34, PgID 9833.
To begin, there is nothing amiss about insurers requiring a claimant to provide
objective medical evidence of disability when the plan permits such requests. See
Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 166 (6th Cir. 2007). And an insurer may
change a disability determination based on those records, even if the claimant has
received benefits for a long time. See Rabuck v. Hartford Life & Acc. Ins. Co., 522 F.
Supp. 2d 844, 872 (W.D. Mich. 2007). But there must be a reason for the change:
We are not suggesting that paying benefits operates forever as an
estoppel so that an insurer can never change its mind; but unless
information available to an insurer alters in some significant way, the
13

previous payment of benefits is a circumstance that must weigh against
the propriety of an insurer's decision to discontinue those payments.
McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 589 (8th Cir. 2002). The Sixth
Circuit has said much the same thing. See Morris v. Am. Elec. Power Long-Term
Disability Plan, 399 F. App'x 978, 984 (6th Cir. 2010) ("Surely it is reasonable to require
a plan administrator who determines that a participant meets the definition of 'disabled,'
then reverses course and declares that same participant 'not disabled' to have a reason
for the change; to do otherwise would be the very definition of "arbitrary and
capricious."). Here, Cigna discontinued Moar's benefits after paying them for many
years, so the denials must therefore be viewed in that light.
In any event, because the Court is applying the arbitrary-and-capricious
standard, it must affirm the denial of Moar's benefits if those decisions were "the result
of a deliberate, principled reasoning process and . . . supported by substantial
evidence." Glenn v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006), aff'd 554 U.S. 105
(2008) (quoting Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d
1140, 1144 (6th Cir. 1991)). The Court may overturn the denials "only upon a showing
of internal inconsistency, bad faith, or some similar ground." Racknor v. First Allmerica
Fin. Life Ins. Co., 71 F. Supp. 2d 723, 729 (E.D. Mich. 1999) (citing Davis v. Kentucky
Fin. Cos. Ret. Plan, 887 F.2d 689, 695 (6th Cir. 1989)). The highly deferential standard,
however, is not a rubber stamp: courts are to give particular attention to arrangements
in which there is an evident conflict of interest—namely, when the entity that determines
which claims are covered is also the payor of those claims. Calvert v. Firstar Fin., Inc.,
409 F.3d 286, 292 (6th Cir. 2005). Nevertheless, if the plan administrator's decision is

14

"rational in light of the plan's provisions and reasonable with no abuse of discretion,
then it must be upheld." Racknor, 71 F. Supp. 2d at 729.
The Court will therefore look to Cigna's denials with two particular details in mind;
the first is that Cigna denied Moar's benefits after providing them for many years. That
detail does not mean that the insurers bear a burden to prove that Moar is not disabled,
but it does require a showing that something changed—be it new information, an
inadequate response to a request, or something else. Defendants contend that it is
"settled Sixth Circuit precedent" that the insured person bears the burden of providing
proof that she is disabled, ECF 34, PgID 9857, but the Court considers that argument
overstated: an insured person carries the burden when the Plan says she does. See
Calvert, 409 F.3d at 289 (stating that the insured person "bears the burden of proving
his or her continuing 'disability'" in the context of describing a plan's specific provisions).
Although Defendants contend that the Plan imposed on Moar an ongoing burden to
provide proof of her disability, the document they point to does not support that
proposition. The cited portion of the document addresses only the commencement of
benefits and does not speak to any continuing obligation of Moar. See ECF 30-5, PgID
9752. The succeeding portion addresses "Duration of Benefits" but states only that the
insurance company will stop paying monthly benefits on "the date the Employee ceases
to be Totally Disabled" or when she turns 65. Id.
Nevertheless, Moar was at least aware that some continuing proof was expected
because when she first began receiving benefits, she received a letter from Cigna that
stated, "We will request proof of continuing disability on an annual basis, which means

15

you need [to] be under the care of [a] licensed physician." ECF 30-1, PgID 9210. And
when CGLIC affirmed her first appeal, it sent her a letter that stated:
Future medical updates on your continuing disability status will be required
on an annual or as needed basis. We will provide form(s) for you and your
attending physician to complete and it is your responsibility to return them
in a timely manner. The continuation of your coverage for Waiver of
Premium will depend on this ongoing medical evaluation, as well as
confirmation that you continue to satisfy all applicable contract provisions.
ECF 30-1, PgID 9267. There is no dispute that Moar submitted voluminous records and
questionnaires over the course of her appeals, so the posture before the Court is
whether Defendants arbitrarily or capriciously discontinued Moar's benefits in spite of
those records.
The second detail for the Court to consider is Cigna's inherent conflict of interest.
Cigna was both the determiner of benefits and the payor. Although the arrangement
does not change the Court's standard of review, the conflict is a "relevant factor" in the
Court's review. See Glenn, 461 F.3d at 666.
With those details in mind, the Court will review the two denials in turn.
A.

Denial of WOP Benefits

As noted above, CGLIC based its denial specifically on recent records from Drs.
Bowers and Crandall. But when Moar appealed and submitted more documents, CGLIC
retained three more doctors to review the case. CGLIC based its denial of the appeal on
the reports of those doctors and so their conclusions are particularly germane to the
Court's review of the WOP denial.
Of the three doctors, Dr. Warner was the only one to actually perform an inperson IME. Warner is board certified in occupational and environmental medicine and
he specifically evaluated Moar's physical capabilities. Based on both Moar's records
16

and Warner's own measurements with a dynamometer, he concluded that Moar could
frequently lift 10 pounds and could occasionally lift up to 50 pounds. ECF 30-1, PgID
9319. He further concluded that Moar could sit frequently, stand and walk occasionally,
and "do fine manipulation and simple grasping constantly." Id. Importantly, however,
Warner ended his observations with the following paragraph:
Please note that environmental conditions may change her medical
conditions and exacerbate her medical complaints. This would include
Raynaud syndrome in cold weather, and her functional abilities would
fluctuate based on the claimant's medical conditions and any exacerbation
she may have with her pain. This major source of fluctuation would be
based on her systemic lupus erythematosus.
Id.
Dr. Johnson only reviewed Moar's records and his conclusions were limited
because his expertise is limited to cardiology. Indeed, he did not even consider seven of
Moar's conditions in his analysis because they were outside of his expertise. See id. at
9301–02. Accordingly, when asked "Is the customer functionally limited and to what
degree?" he answered "From a cardiovascular standpoint, I would opine that there is no
evidence of impairment supported in the medical record[.]" Id. at 9302 (emphasis
added). His only other conclusion was also cardiovascular-specific. The form asked,
"[d]oes the customer require medically necessary work activity restrictions and if so
describe the restrictions." Id. Johnson answered:
There is no evidence presented to support a requirement for medically
necessary work activity restrictions. The claimant has no evidence of
myocardial ischemia, cardiac arrhythmia, and has had no hospitalization
or treatment for congestive heart failure beyond diuretics therapy. She
describes palpitations and tachycardia and is on beta blocker for this, but
monitoring has been negative (3/2015). Cardiac restrictions and limitations
are not supported.

17

Id. Although this answer did not begin with the same limiting phrase ("from a
cardiovascular standpoint"), it nevertheless exclusively addressed cardiovascular
health. In sum, Johnson's contribution was the narrow conclusion that Moar's
cardiovascular health did not render her entirely disabled.
Dr. Pietruszka's conclusions were more definitive. He is board certified in
occupational medicine, pathology, and forensic toxicology, though he attested that none
of Moar's conditions was beyond his expertise. Id. at 9294–95. Initially, he reviewed only
some lab results from October 2015 along with three chart notes written around that
time.6 Id. at 9294. From them, Pietruszka accurately pointed out that Moar's doctors had
not found her to be cardiologically disabled. But he also arrived at the broader
conclusion—based on the notes of Moar's last neurologist appointment—that "[n]o
documentation or diagnostic testing has been presented to substantiate the necessity of
disability" and that "the submitted documentation does not reflect any current labor
limiting functional disability secondary musculoskeletal symptoms." Id. at 9295. The
conclusion may not be surprising: no physical exam was performed during the office
visit described in the notes and the reason Moar was seeing her neurologist was
because of the severe migraines she had been suffering from, as well as cavernous

6

Admittedly, the document begins with the statement,
All available medical and/or vocational evidence bearing on Disability
and/or functional capacity and its impact on the whole person has been
considered in order to provide an accurate representation of the medical
and/or vocational facts of the claim file.

ECF 30-1, PgID 9294. But that appears to be mere boilerplate language; Dr. Johnson's
report begins with the same statement, verbatim. Cf. id. at 9299. Pietruszka only
discussed the listed documents.
18

angiomas of the brain. See id.; see also ECF 24-4, PgID 2591–95 (the actual notes of
the office visit, filed under seal).
In addition to the record review, Pietruszka placed a few phone calls to Moar's
other doctors, though in all but one case he simply left messages with them. ECF 30-1,
PgID 9295. He did manage to connect with Moar's rheumatologist, who informed
Pietruszka that Moar was on medication for lupus and suffered from fibromyalgia. The
rheumatologist, however, was unaware that Moar was functionally disabled and had no
notes regarding disability. Id. Pietruszka did not elaborate further on the matter.
Thus, based on a handful of recent office visits, none of which involved physical
diagnostic testing, Pietruszka reached a plain conclusion: Moar was neither functionally
limited nor did she require necessary work restrictions because there was no "current
objective evidence," "no specific test performed," and "no current evidence of
customer's functional limitation." Id. After Pietruszka's review, however, he was soon
presented with 82 more records, dating from 2000 to 2015. When asked whether any of
this additional information changed his prior opinions, Pietruszka answered no. But his
only explanation was a brief reference to Dr. Almaraz's 2013 report that he
characterized as "disagree[ing] with the restrictions and limitations placed on [Moar.]" Id.
at 9297–98. Pietruszka thus concluded that there was a "lack of indication, per the
records, that [Moar] has functional deficits to support changing the previous
determination." Id.
In sum, none of the reviewing doctors considered the debilitative scope of Moar's
principal affliction: lupus. Johnson explicitly avoided opining on it because it was outside
his expertise. Warner noted that the lupus would cause major fluctuations in Moar's

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functional abilities, thus limiting the value of his conclusions. Pietruszka's sole reference
to the condition stemmed from a phone call to Moar's rheumatologist who had no notes
on Moar's disability. The lack of consideration for Moar's lupus suggests the denial was
arbitrary.
CGLIC's denial was also capricious. Back in 2012, CGLIC commissioned and
reviewed two reports: Dr. Almaraz's and Dr. Fishman's. The reports were commissioned
for the same reason and written within days of each other. Based on them, CGLIC
determined that Moar was indeed disabled. Yet years later, when CGLIC commissioned
Pietruszka, his much shorter report made no mention or recognition of Fishman's report,
yet relied in part on Almaraz's report. And that time CGLIC concluded that she was
disabled after all. Notably, Almaraz's report was also narrowly limited to Moar's
neurologic health and disclaimed the ability to opine on the effect her lupus had on her
abilities. ECF 24-3, PgID 2026 (under seal). There was very little basis on which to
justify CGLIC's new determination that Moar was not disabled.
All of those facts, paired with the CGLIC's inherent incentive to deny benefits,
lead the Court to conclude that CGLIC's denial was arbitrary and capricious.
B.

Denial of LTD Benefits

When LINA denied Moar's LTD benefits and her subsequent appeal, it relied on
the same record used in the WOP determination, with a few additions. The additions
included more Physical Ability Assessments from Moar's treating physicians and
reviews from two more occupational medicine doctors: Dr. Jacobson (retained for the
initial denial process) and Dr. Sethi (retained for the appeal). LINA did not commission
another IME, but instead relied upon Dr. Warner's prior findings.

20

After reviewing the files, Jacobson did not agree with Moar's treating physicians
regarding her limitations, in part because they contradicted one another. ECF 24-9,
PgID 3735 (under seal). Their findings can be summarized as follows:
Crandall*

Eilender

Bowers

Skender

Sitting

Occasionally

Constantly

Occasionally

Constantly

Standing

Occasionally

Occasionally

Occasionally

Occasionally

Walking

Occasionally

Occasionally

Occasionally

Frequently

Reaching (High)

Never

Occasionally

Frequently

Frequently

Reaching (Low)

Never

Constantly

Frequently

Frequently

Simple Grasping

Occasionally

Constantly

N/A

Occasionally

- 10 lbs.

Occasionally

Frequently

Frequently

Frequently

- 11-20 lbs.

Never

Frequently

Occasionally

Frequently

- 21-50 lbs.

Never

Never

Never

Occasionally

Lifting

* Crandall was the only physician to affirm that her findings were supported by clinical findings

ECF 24-3, PgID 1797; ECF 24-4, PgID 2481–82; 2385–86, 2392–93. In light of the
contradictions, Jacobson deferred to Warner's IME and concluded that Moar was not
disabled.
As explained above, however, Warner conceded that Moar's lupus would cause
her symptoms and limitations to fluctuate. Thus, even though he performed clinical tests
as to her physical abilities and concluded that she could perform certain tasks with
regularity, his report did nothing to shake CGLIC's and LINA's prior determinations that
she was functionally disabled.
When Dr. Sethi reviewed the files, he also concluded that Moar was not disabled.
ECF 24-3, PgID 1567–82. But the foundations of his conclusions are tenuous. Sethi
determined that the medical records of Dr. Saluja, a rheumatologist, were "sufficient to
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indicate that [Moar] is quite medically functional and there are no examination findings
to require any medically necessary restrictions" despite the fact that the most recent
records Sethi had from Saluja were six years old. Id. at 1581. Sethi separately stated
that "[b]ased on the February 23, 2017 evaluation by neurologist Dr. Lawrence Eilender
I believe [Moar] is medically functionally stable and the medical record review does not
support any functional impairment or medically necessary restrictions." Id. Sethi's
review of Eilender's notes, however, seems to have been somewhat perfunctory.
Although Sethi stated that as of February 2017, Moar's migraines were "stabilized and
no further intervention was planned," ECF 24-3, PgID 1580, Eilender notes actually
reveal that Moar was consistently suffering from headaches that lasted "around 4 days,"
that Eilender was still working with Moar in June 2017 to find a combination of
medications that would work, and that Eilender planned to send her to a rheumatologist
for further treatment, ECF 24-3, PgID 1677–78, 1680–81 (under seal).
LINA ultimately and finally denied Moar's LTD benefits on the basis of
Jacobson's and Sethi's reports. Although each doctor's report includes a lengthy
recitation of Moar's medical history and the records provided for review, the stated
bases of the doctors' conclusions are very limited and rest on a few, select records. The
doctors and LINA relied on a fraction of the relevant medical evidence and failed to
acknowledge the fluctuations that Moar's lupus created. For those reasons, the denial
was arbitrary and capricious.
III.

Remedies
For the foregoing reasons, the Court will grant Moar's motion and enter judgment

in her favor. Moar seeks several forms of relief, namely: (1) a declaratory judgment that
she is entitled to certain benefits, (2) permanent injunctions to keep Defendant from
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limiting her benefits in the future, (3) a full accounting of her benefits, (4) payment of her
past-due benefits, and (5) attorney fees and costs. ECF 33, PgID 9794. She is entitled
only her past-due benefits and fees and costs.
ERISA creates the cause of action for improper benefit denials and lists the
permissible types of relief a plaintiff may seek. In cases like this one, she may recover
benefits due to her under the terms of the plan or enforce or clarify her rights under the
terms of the plan. 29 U.S.C. § 1132(a)(1)(B). Moar relies on subsection (a)(3) to request
injunctions, but that type of equitable relief is unavailable to plaintiffs who can be made
whole by receiving their benefits, attorney's fees, and in some cases, prejudgment
interest. See Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 371 (6th Cir. 2015) (en
banc). And Moar points to no section of the statute to support her request for an
accounting.
Moar's requests for injunctions and a declaratory judgment fail for another
reason: the Court's ruling does not confirm that Moar is or was disabled under the
policies. Rather, the Court finds only that the decisions to deny Moar's benefits were
arbitrarily and capriciously made. It may be that after further review, LINA and CGLIC
lawfully conclude that Moar is no longer entitled to benefits under the Plan. Accordingly,
neither an injunction nor a declaratory judgment would be an appropriate remedy, even
if they were available under the statute.
ORDER
WHEREFORE, it is hereby ORDERED that Plaintiff's Motion for Summary
Judgment [33] is GRANTED.

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IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment [34]
is DENIED.
IT IS FURTHER ORDERED that Defendants shall pay Plaintiff any past-due
benefits and commence paying the quarterly waiver of premium benefit and the monthly
LTD benefit.
IT IS FURTHER ORDERED that pursuant to 29 USC § 1132(g)(1), Plaintiff is
entitled to an award of reasonable attorney fees and costs, upon timely motion.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: June 8, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 8, 2018, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

24