Mendez v. FedEx Express

Filing 28

OPINION and ORDER Granting Plaintiff's 17 MOTION for Summary Judgment , Denying Defendants' 20 MOTION for Summary Judgment . ( Response due by 9/30/2016.) Signed by District Judge Judith E. Levy. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Miguel Mendez,
Plaintiff,
v.

Case No. 15-cv-12301
Judith E. Levy
United States District Judge

FedEx Express and AETNA,
Mag. Judge Anthony P. Patti
Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT [17], DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [20], AND ORDERING
ADDITIONAL BRIEFING
Miguel Mendez sued FedEx Express and Aetna, alleging that they
denied his claim for long-term disability benefits in violation of the
Employee Retirement Income Security Act of 1974. Because Mendez
was denied benefits to which he is clearly entitled, Mendez’s motion for
summary judgment is granted, FedEx Express’s and Aetna’s motion for
summary judgment is denied, and additional briefing is ordered
regarding back-due benefits, applicable interest, and any other costs
and fees that are appropriate.

I.

Background
Plaintiff Miguel Mendez worked as a delivery driver for defendant

FedEx Express for approximately twenty-eight years until an autoaccident in July 2012. Mendez was covered by FedEx Express’s longterm disability plan, which is governed by ERISA. Defendant Aetna
was the claims paying administrator of FedEx Express’s plan, which
provided Aetna with “sole and exclusive discretion . . . with respect to
all matters . . . relating to the eligibility of a claimant for benefits under
the Plan.” (Dkt. 19-5 at 4-5.)
On July 14, 2012, Mendez collided with an oncoming truck while
riding a motorcycle, causing severe orthopedic injuries (for example, a
crushed comminuted fracture, or splintering, of his pelvis) and mild
traumatic brain injury (“TBI”).

(See Dkt. 19-3 at 327.)

Aetna paid

Mendez short-term disability benefits from July 23, 2012, to January
20, 2013, when he began receiving long-term disability benefits under
the Plan’s Occupational Disability definition, based on his inability to
work in his previous position. (See Dkt. 19-2 at 2.) Aetna paid Mendez
long-term Occupational Disability benefits for the full available time
period, two years, from January 21, 2013, to January 20, 2015. (See id.)
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During that time, the Plan also required Mendez to apply for Social
Security Disability Income (“SSDI”). (See Dkt. 19-4 at 103.) Mendez
applied, and in May 2013, the Social Security Administration
determined that Mendez was totally disabled and awarded him SSDI.
(Dkt. 19-3 at 124.)
In July 2014, Aetna informed Mendez that “in order to receive
more than [the] 24 months of LTD benefits” available for an
Occupational Disability, he was required to “meet the definition of Total
Disability.” (See Dkt. 19-2 at 4.) Under the Plan, a Total Disability is
“the complete inability . . . , because of a medically-determinable
physical or functional impairment (other than an impairment caused by
a mental or nervous condition or a Chemical Dependency), to engage in
any compensable employment for twenty-five hours per week.” (Dkt.
19-5 at 42; see Dkt. 19-1 at 2.)
Mendez submitted medical records regarding the treatment he
received shortly after his accident, when he underwent two significant
orthopedic surgeries in a matter of days. On July 16, 2012, Dr. Alfred
Faulkner, D.O., performed the following procedures for Mendez’s
multiple comminuted fractures: “[c]losed reduction and application of
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distal femoral traction pin to the right femur,” “[c]losed reduction of
bilateral superior and inferior pubic rami fractures with application of
anterior pelvic external fixator,” “[i]liosacral screw fixation of right
vertical shear pelvic injury,” and “[l]eft iliosacral screw placement for
____ posterior left pelvis.” (Dkt. 19-2 at 120-21.) On July 19, 2012, Dr.
Faulkner performed the following additional procedures on Mendez:
“[o]pen reduction and internal fixation of right anterior column
acetabulum fracture,” “[o]pen reduction and internal fixation of pubic
symphyseal disruption,” and “[o]pen reduction and internal fixation of
left superior and inferior pubic rami fracture.” (Id. at 132-33.)
Mendez also submitted medical records regarding his longer-term
treatment at the TBI unit at Oakwood Heritage in Taylor, where he
was in residential rehabilitation from July 23, 2012, until August 15,
2012, (see id. at 134-35), when he was transferred to Special Tree,
another nursing and rehabilitation center.

(See id. at 154-84.)

On

December 12, 2012, Dr. Adam Pourch, D.O., and Dr. Jay Methaler,
M.D., diagnosed Mendez with a TBI. (Id. at 182-84; see also id. at 201
(“University Physician Group 2/6/2013 . . . .

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TBI injury with poly

trauma.”).)

He was released from rehabilitation at Special Tree on

December 15, 2012.
Aetna submitted only some of Mendez’s medical records to Dr.
Martin Mendelssohn, a retired orthopedic surgeon, for a file review.
(See Dkt. 19-3 at 105-07.)

Aetna did not request an in-person

examination of Mendez. Dr. Mendelssohn concluded that there were
insufficient objective findings that Mendez could not work at least
twenty-five hours per week (id. at 107), so Aetna denied Mendez’s longterm Total Disability claim. (Dkt. 19-2 at 4.) Aetna did not address the
Social Security Administration’s decision to grant Mendez disability
benefits, even though Aetna had been offsetting Mendez’s Occupational
Disability benefits since he had begun receiving SSDI.
Mendez appealed the decision to the Aetna Appeal Review
Committee. Aetna again submitted Mendez’s medical and other records
to physicians for a file review, but still did not request an in-person
examination. (Dkt. 19-3 at 108-17.) Dr. James Wallquist, an orthopedic
surgeon, concluded that there was insufficient objective medical
evidence to show that Mendez could not work at least twenty-five hours
per week. (Id. at 110-12.) Dr. John P. Shallcross, a neuropsychologist,
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concluded the same, finding that there was no documentation of
Mendez’s “mental and nervous condition from 5/3/13 forward,” and “no
assessment of [Mendez]’s psychiatric state sufficient to diagnose an
Adjustment Disorder.”

(Id. at 115-17.)

Thus, in March 2015, the

Review Committee upheld the denial of Mendez’s Total Disability claim.
(Dkt. 19-1 at 2-4.)
The

Review

Committee

addressed

the

Social

Security

Administration’s award of SSDI as follows:
The Committee noted your client has received a disability
determination from the Social Security Administration.
However, the criteria utilized by the Social Security
Administration for the determination of Social Security
disability awards are different from the definition for Total
Disability set forth in the Plan, and that [sic] the Committee
has a duty to follow the terms of the Plan.
It is recognized your client was awarded Social Security
Disability Benefits in May 2013; however Aetna has received
more recent documentation from your client’s providers
which we have taken into consideration in making our
determination.
(Id. at 4.)

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II.

Standard
Summary judgment in an ERISA case requires the Court to

conduct “a de novo review based solely upon the administrative record,
and render findings of fact and conclusions of law accordingly.” Wilkins
v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998)
(“Because this court’s precedents preclude an ERISA action from being
heard by the district court as a regular bench trial, it makes little sense
to deal with such an action by engaging a procedure designed solely to
determine whether there is a genuine issue for trial.”). Here, however,
the review is whether the plan administrator’s decision was arbitrary
and capricious, because the administrator had “discretionary authority
to determine eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Under the arbitrary and capricious standard, this Court upholds
the administrator’s decision “if it is the result of a deliberate, principled
reasoning process and if it is supported by substantial evidence.” Glenn
v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006) (internal quotation marks
omitted). The Court considers the quality and quantity of the medical
evidence; the existence of any conflicts of interest; whether the
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administrator considered any disability finding by the Social Security
Administration; and whether the administrator contracted with
physicians to conduct a file review as opposed to a physical examination
of the claimant. Bennett v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 55253 (6th Cir. 2008); see Fura v. Fed. Express Corp. Long Term Disability
Plan, 534 F. App’x 340, 342 (6th Cir. 2013).
III.

Analysis
The Aetna Appeal Review Committee affirmed the initial decision

to deny Mendez’s claim for long-term disability benefits under the Total
Disability definition of the Plan.

Several issues during the process

show that Aetna’s decision was arbitrary and capricious.
First, Aetna conducted no in-person evaluation at any level,
instead relying on file reviews. “[T]here is nothing inherently improper
with relying on a file review, even one that disagrees with
the conclusions of a treating physician.” Calvert v. Firstar Fin. Inc., 409
F.3d 286, 297 n.6 (6th Cir. 2005). But the Sixth Circuit has held that
“the failure to conduct a physical examination, whe[n] the Plan
document gave the plan administrator the right to do so, ‘raise[s]
questions about the thoroughness and accuracy of the benefits
8

determination.’” Shaw v. AT&T Umbrella Benefit Plan No. 1, 795 F.3d
538, 550 (6th Cir. 2015) (quoting Helfman v. GE Grp. Life Assurance
Co., 573 F.3d 383, 393 (6th Cir. 2009)). This is especially troubling
given that the physicians Aetna hired to conduct a file review here
noted and then disregarded the extensive complaints of severe pain
recognized by Mendez’s treating physicians. (Dkt. 19-3 at 106, 111-12);
see Shaw, 795 F.3d at 550 (quoting Judge v. Metro. Life Ins. Co., 710
F.3d 651, 663 (6th Cir. 2013)).
This included evidence from a September 11, 2014 visit with
Natasha Smith in physical medicine and rehabilitation at Wayne State
University Physician Group, when Mendez “reported chronic daily pain
in the pelvis, right leg[,] and shoulders”; “numbness over the left lateral
femoral cutaneous and . . . continued . . . pain in the right and left
groin”; “tenderness to palpation over the bilateral sacroiliac (SI) joints
and right acromioclavicular (AC) joint”; and “decreased sensation in
both lower extremities at L5-S1 and in bilateral lateral femoral
cutaneous nerves.” (Dkt. 19-1 at 3.) And at a December 18, 2014 visit
with Dr. Jay Maythaler, for “follow up of traumatic brain injury, neck
pain, back pain, headaches, leg pain[,] and pelvic pain,” Mendez
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reported “increased chronic daily pain in the pelvis, right leg[,] and
shoulders,” “frequent muscle spasms in his back that lasted for several
days,” and “burning pain in his left thigh.” (Id.)
Remarkably, without having conducted an in-person medical
evaluation, the Review Committee notes the objective medical evidence
that Mendez “has sustained a fractured pelvis, acetabular fractures, is
status post open reduction and internal fixation, has a diagnosis of
traumatic brain injury and late effects of traumatic brain injury, right
AC joint separation, left first rib fracture, neuropathic pain of the
bilateral lower extremities, chronic back pain and insomnia,” yet
concludes that “there are no significant objective findings to support an
inability to perform a sedentary job for a minimum of twenty five hours
per week.” (Id. at 4; see, e.g., Dkt. 19-3 at 111(Dr. Wallquist noting an
MRI that “apparently revealed the L5 area was ‘compromised’”)).
And in any case, Aetna could not ignore Mendez’s extensive
complaints of pain, even if they were “subjective.” “Complaints of pain
necessarily are subjective as they are specific to the patient and are
reported by the patient.” James v. Liberty Life Assurance Co., 582 F.
App’x 581, 589 (6th Cir. 2014).

Implicit in the Review Committee’s
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decision is a determination that Mendez’s subjective complaints of
severe pain lacked credibility. But “without ever examining [Mendez],
the Plan should not have made a credibility determination about [hi]s
continuous reports of pain.”

See Shaw, 795 F.3d at 550; see, e.g.,

Godmar v. Hewlett-Packard Co., 631 F. App’x 397, 407 (6th Cir. 2015)
(“[The administrator] decided that [plaintiff]’s pain was subjective
without examining him, and that failure weighs in favor of a
determination that the denial of his claim was arbitrary and
capricious.”).
Second, and relatedly, Aetna’s reviewing physicians were repeat
players that have a material, if not necessarily disabling, conflict of
interest. “[P]hysicians repeatedly retained by benefits plans may have
an incentive to make a finding of ‘not disabled’ in order to save their
employers money and to preserve their own consulting arrangement.”
Shaw, 795 F.3d at 550-51 (quoting Elliott v. Metro. Life Ins. Co., 473
F.3d 613, 620 (6th Cir. 2006)). Dr. Martin Mendelssohn,1 Dr. James

See, e.g., Mendelblatt v. Aetna Life Ins. Co., No. 14-cv-12140, 2016 U.S. Dist.
LEXIS 21400, at *24-25 (E.D. Mich. Feb. 22, 2016); Morris v. Am. Elec. Power Sys.
Long-Term Disability Plan, No. 2:07-cv-183, 2008 U.S. Dist. LEXIS 82829, at *30-31
(S.D. Ohio Sep. 30, 2008); Cox v. UPS Health & Welfare Package, No. 1:06-cv-401,
2007 U.S. Dist. LEXIS 69316, at *5-6 (S.D. Ohio Sep. 19, 2007); Davis v. Broadspire
Servs., No. 04-CV-74792-DT, 2006 U.S. Dist. LEXIS 72018, at *21-23 (E.D. Mich.
1

11

Wallquist,2 and Dr. John P. Shallcross3 are all repeat players among
ERISA benefit plan administrators. This does not automatically render
Aetna’s decision arbitrary and capricious, but it is a factor that weighs
against Aetna. See Bennett, 514 F.3d at 552-53.
Third, Aetna did not adequately explain why the Social Security
Administration’s decision to award Mendez SSDI benefits should be
distinguished. As noted above, the first-level reviewer did not mention
the Social Security Administration’s decision.

And when it was

addressed by the Review Committee on appeal, Aetna provided only
conclusory observations that “the criteria utilized by the Social Security
Administration for the determination of Social Security disability
Mar. 23, 2006); Stano v. Lumbermens Mut. Cas. Co., No. 06-CV-10842-DT, 2007
U.S. Dist. LEXIS 3535, at *9 (E.D. Mich. Jan. 18, 2007); Jones-Stott v. Kemper
Lumbermans Mut. Cas. Co., No. 04-CV-40263-FL, 2007 U.S. Dist. LEXIS 15294, at
*11-12 (E.D. Mich. Jan. 12, 2007).
2 See, e.g., Fura v. Fed. Express Corp. Long Term Disability Plan, 534 F. App’x 340,
341 (6th Cir. 2013) (holding that reliance on Dr. Wallquist file review, among
others, arbitrary and capricious in light of records from treating physicians);
Shedrick v. Marriott Int’l, Inc., No. 11-820, 2012 U.S. Dist. LEXIS 22635, at *13-14
(E.D. La. Feb. 22, 2012; Wooden v. Alcoa, Inc., No. 3:11 CV 525, 2012 U.S. Dist.
LEXIS 11407, at *5 (N.D. Ohio Jan. 31, 2012); Harper v. Aetna Life Ins. Co., No. 101459, 2011 U.S. Dist. LEXIS 34848, at *7 (E.D. Pa. Mar. 31, 2011); Farler v. Henry
Ford Health Sys., No. 04-74368, 2005 U.S. Dist. LEXIS 13313, at *20 n.10 (E.D.
Mich. July 5, 2005); Hufford v. Harris Corp., 322 F. Supp. 2d 1345, 1351-52 (M.D.
Fla. 2004).
3 See, e.g., Gardner v. Metro. Life Ins. Co., 8 F. Supp. 3d 677, 683 (E.D. Pa. 2014);
Kushner v. Lehigh Cement Co., 572 F. Supp. 2d 1182, 1186 (C.D. Cal. 2008); Moore
v. Can. Life Assur. Co., No. 1:02-cv-102, 2003 U.S. Dist. LEXIS 14069, at *4-5 (E.D.
Tenn. May 16, 2003); Gough v. Metro. Life Ins. Co., No. 3:03-0158, 2003 U.S. Dist.
LEXIS 25252, at *18-19 (M.D. Tenn. Nov. 21, 2003).

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awards are different from the definition for Total Disability set forth in
the Plan,” and “more recent documentation from [Mendez]’s providers
[were] taken into consideration.”
Aetna’s discussion of the Social Security Administration decision
is not sufficient to meet the requirement that the administrator’s
decision be supported by substantial evidence and “the result of a
deliberate, principled reasoning process.” Glenn, 461 F.3d at 666. The
Review

Committee

should

have

explained

why

a

different

determination should result from the difference in the disability
definitions or the “more recent” documentation. Bennett, 514 F.3d at
554 (“[I]f the plan administrator (1) encourages the applicant to apply
for Social Security disability payments; (2) financially benefits from the
applicant’s receipt of Social Security; and then (3) fails to explain why it
is taking a position different from the SSA on the question of disability,
the reviewing court should weigh this in favor of a finding that the
decision was arbitrary or capricious.”) (emphasis added).
“A casual mention of a disability determination is insufficient to
constitute an ‘explanation’ in accordance with Bennett.”

Wooden v.

Alcoa, Inc., 511 F. App’x 477, 484 (6th Cir. 2013) (noting there, like
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here, the Plan required LTD applicants to apply for SSDI and benefited
financially because of the offset).

Aetna’s “cavalier treatment of

[Mendez]’s SSA determination weighs in favor of finding [Aetna]’s
denial of benefits to be arbitrary and capricious.” See id. at 485.
The Aetna Appeal Review Committee did not conduct an in-person
medical examination of Mendez. Rather, the Review Committee relied
on

file

reviewers

who

are

repeat

hires

among

ERISA

plan

administrators to discount extensive medical documentation of chronic
pain, among other ailments, from Mendez’s treating physicians. And
the Review Committee did not explain why the difference in the
disability definitions or the “more recent” medical documentation
should result in different disability determinations. For these reasons,
the Review Committee’s decision to deny Mendez’s claim for long-term
disability benefits under the Total Disability definition was arbitrary
and capricious.
When “the problem is with the integrity of the plan’s decisionmaking process, rather than that a claimant was denied benefits to
which he was clearly entitled, the appropriate remedy generally is
remand to the plan administrator.” Shaw, 795 F.3d at 551. But when
14

remand “would be a useless formality,” i.e., when the objective medical
evidence clearly establishes that the claimant “was denied benefits to
which he is entitled,” the Court may “award[] benefits without
remanding.” Id. at 551-52.
As noted by the Review Committee, Mendez was treated as late as
December 2014 for “traumatic brain injury, neck pain, back pain,
headaches, leg pain[,] and pelvic pain.” (Dkt. 19-1 at 3.) An “MRI of his
back” had revealed that his “L5 is ‘compromised.’” (Dkt. 19-2 at 170;
Dkt. 19-3 at 111.) His treating physician noted that he “clearly cannot
stand for more than [thirty] minutes or sit more than [one] hour,” “had
severe derangement of the pelvic musculature, hip joints[,] and sacral
iliac joints,” suffers from a “TBI,” has “balance problems, walks with
assistive devices,” and “has limited ambulation endurance.” (Dkt. 19-2
at 212; see Dkt. 19-1 at 3.)

He is on Percocet for “frequent muscle

spasms in his back that last for several days.” (Dkt. 19-2 at 210; see
Dkt. 19-1 at 3.) He is on gabapentin for “burning pain in his left thigh.”
(Dkt. 19-2 at 210; see Dkt. 19-1 at 3.) He has “[h]ip arthritis,” and
suffers from “[i]njury of lumbar, sacral[,] and pelvic sympathetic
nerves.” (Dkt. 19-2 at 210.)
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In addition to the Percocet and gabapentin noted above, he is also
on Prilosec, Neurontin, Maxalt, and Ibuprofen for his pain and Robaxim
for his muscle spasms.

(Id. at 212.)

The Review Committee itself

summarizes the objective medical evidence by noting that Mendez “has
sustained a fractured pelvis, acetabular fractures, is status post open
reduction and internal fixation, has a diagnosis of traumatic brain
injury and late effects of traumatic brain injury, right AC joint
separation, left first rib fracture, neuropathic pain of the bilateral lower
extremities, chronic back pain[,] and insomnia.” (Dkt. 19-1 at 3.); see
Koning v. United of Omaha Life Ins. Co., 627 F. App’x 425, 437-38 (6th
Cir. 2015) (noting that “MRIs, records of [] physical examinations, chart
notes, lab and other test results, and physician diagnoses, all . . . qualify
as objective medical evidence”).
Mendez was denied benefits to which he is clearly entitled. Thus,
rather than remanding, Aetna is ordered to pay Mendez the long-term
disability benefits for which he is qualified under the Total Disability
definition of the Plan. See, e.g., Shaw, 795 F.3d at 551-52 (ordering
award of benefits rather than remanding when claimant could not sit or
stand for more than thirty minutes and suffered from back and neck
16

spasms and limited range of motion, among other things) (citing Caesar
v. Hartford Life & Accident Ins. Co., 464 F. App’x 431, 436 (6th Cir.
2012); Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 171 (6th Cir.
2007); Brooking v. Hartford Life & Accident Ins. Co., 167 F. App’x 544,
550 (6th Cir. 2006); Kalish v. Liberty Mut./Liberty Life Assurance Co.,
419 F.3d 501, 512-13 (6th Cir. 2005)).
IV.

Conclusion
Plaintiff Mendez’s motion for summary judgment (Dkt. 17) is

GRANTED.

Defendants FedEx Express’s and Aetna’s motion for

summary judgment (Dkt. 20) is DENIED.
Plaintiff must submit briefing regarding back-due benefits,
applicable interest, and any other costs and fees that are appropriate by
September 30, 2016. Defendants may respond within two weeks after
plaintiff files such brief, and plaintiff may reply to defendants’ response
within one week if defendants file such response.
IT IS SO ORDERED.
Dated: August 22, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 22, 2016.

s/Kelly Winslow for
FELICIA M. MOSES
Case Manager

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