Weske v. Hartford Life and Accident Insurance Company

Filing 34

AMENDED ORDER denying 16 Motion for Summary Judgment; granting in part and denying in part 17 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 2/12/15. (JRC) Modified text on 2/12/2015 (LEG).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-3554(DSD/JJK)
Karyn K. Weske,
Plaintiff,
v.

AMENDED ORDER

Hartford Life and Accident
Insurance Company,
Defendant.
Jacob J. Jagdfeld, Esq. and Johnson Becker, PLLC, 33
South Sixth Street, Suite 4530, Minneapolis, MN 55402,
counsel for plaintiff.
Eric N. Linsk, Esq. and Lockridge Grindal Nauen, PLLP,
100 Washington Ave. S., Suite 2200, Minneapolis, MN
55401, counsel for defendant.
This matter is before the court upon the cross-motions for
summary judgment by plaintiff Karyn K. Weske and defendant Hartford
Life and Accident Insurance Company (Hartford).

Based on a review

of the file, record, and proceedings herein, and for the following
reasons,

the

court

grants

Weske’s

motion

in

part

and

denies

Hartford’s motion.

BACKGROUND
This insurance benefit dispute arises out of Hartford’s denial
of long-term disability benefits to Weske.

Weske had disability

insurance under an employee-welfare benefit plan (Plan) sponsored
by her former employer, Medtronic, Inc., and insured by Hartford.

See HART000001-47.1

The Policy expressly grants Hartford “full

discretion and authority to determine eligibility for benefits and
to construe and interpret all terms and provisions of The Policy.”
Id. at 000018.
In April 2012, Weske fell off her roof and sustained multiple
serious orthopaedic injuries to her back, feet, ankles, and left
wrist.

See id. at 355-56, 419, 422.

Weske has undergone numerous

surgeries to repair her injuries, including follow-up surgeries to
remove hardware placed during surgeries immediately following the
accident.

Id. at 311-14.

Weske’s most recent surgery was on April

23, 2013, during which Dr. Paul Cammack removed hardware from her
left ankle and applied a corticosteroid injection to her left foot,
and Dr. Mark Fisher removed hardware from her left wrist.

Id.

At the time of her accident, Weske was a Senior Customer
Service Representative for Medtronic.

According to a Physical

Demands Analysis (PDA) completed by Medtronic, Weske’s position
required her to use a computer, telephone, calculator, and head set
for eight hours per day, five days per week.

Id. at 106-07.

Her

schedule included one hour for lunch and two fifteen minute breaks.
Id.

A typical workday required Weske to sit for five hours, stand

1

Specific pages of the administrative record will be
referenced by the Bates-stamp numbers. The administrative record
submitted by Hartford contains a large stamp in the middle of each
page identifying the record as confidential.
The stamp is
unnecessary and makes it more difficult for the court to read the
record.
The court asks that Hartford refrain from using such
stamps in future submissions.
2

for three hours, and walk for .5 hours.

Id.

The PDA indicates that Weske was permitted to sit or stand as
needed.

Id.

After the accident, Weske was unable to work.

She received

short-term salary continuance benefits until the fall of 2012. Id.
at 186.

Thereafter, Weske filed a claim for long-term disability

benefits
effective

under

the

October

Policy,

17,

2012.

and

Hartford

Id.

at

186,

approved

her

379-84.

claim

Hartford

explained that benefits would continue for the first twelve months
as long as Weske remained unable to perform one or more of the
“Essential Duties of Your Occupation.”2

Id. at 186-87.

“Essential

Duty” is defined as a duty that “1) is substantial, not incidental;
2) is fundamental or inherent to the occupation; and 3) cannot be
reasonably omitted or changed.” Id. at 19, 187. “Your Occupation”
is defined as “Your Occupation as it is recognized in the general
workplace.”

Id. at 22; 187.

The Policy expressly states that

“Your Occupation does not mean the specific job You are performing
for a specific employer or at a specific location.”

Id.

Hartford

concluded that Weske’s occupation was sedentary, involving sitting
most of the time, occasional walking or standing for brief periods,
and occasional lifting.

Id. at 136, 182.

2

Hartford further

After twelve months, Weske would be deemed disabled if she
could not perform one or more of the Essential Duties of “Any
Occupation.” See id. Because Hartford terminated Weske’s benefits
within the first twelve-month period, the court need not address
the “Any Occupation” standard.
3

explained that Weske would be required to periodically provide
continued proof of disability.

Id. at 188.

In a letter dated March 25, 2013, Hartford notified Weske that
her disability benefits were terminated effective March 1, 2013.3
Id. at 180.

Hartford explained that based on communications with

Fischer and Cammack, the PDA, and an occupational analysis, Weske
no longer met the definition of disabled under the Policy.

Id. at

181-82. Hartford specifically noted that on March 1, 2013, Fisher,
who treated Weske’s left wrist, indicated occasional ability to
lift more than twenty pounds bilaterally and “frequent ability to
reach at all levels and finger/handle.”

Id. at 182, 372.

As to

Cammack, who treated Weske’s ankle and foot, Hartford noted that
although Cammack had not released Weske to return to work, he also
did not indicate any restrictions or limitations in his notes. Id.
at 182, 297.

That information was conveyed in a voicemail from

Cammack’s office assistant on March 14.
evidence

in

the

record

information from Cammack.

that

Hartford

See id.
requested

There is no
additional

Based on the information gathered,

Hartford concluded that Weske could return to work in “Your
Occupation.”

Id. at 182.

In doing so, Hartford failed to note

Weske’s documented scheduled surgery on April 23, 2013, to remove
hardware from her ankle and wrist.

3

See id. at 180-82, 297, 371.

Weske claims that the letter was postmarked March 29 and
that she received it April 11, two weeks before her scheduled
surgery. Id. at 364.
4

Weske appealed the denial on April 15, 2013.

Id. at 364.

Weske argued that she remained disabled due to pain in her back and
feet, which was not well-managed through pain medication. Id. She
explained that she had upcoming surgery to alleviate her ankle and
foot pain and that she anticipated back surgery in approximately
one year.4

Id.

Weske also provided an April 11, 2013, letter from

Cammack, which supported her claim of disability before the April
surgery:
It’s my opinion that this surgery is medically necessary.
She is unable to stand and walk due to trouble she is
having with her feet. She is having a difficult time
being mobile enough to maintain any kind of gainful
employment. In the interim between her two surgeries,
she has really not been able to look for meaningful work,
as she has had a second surgery upcoming .... Again, it’s
my opinion that this surgery is medically necessary in
order to allow her to have sufficient mobility to perform
activities of daily living, as well as employment
activities.
Id. at 365.
On April 23, 2013, Cammack performed the surgery, removing
hardware from Weske’s left ankle and administering a corticosteroid
injection into her right subtalar joint.

Id. at 311.

Under the

same anaesthesia, Fischer removed hardware from her left wrist.
Id. at 312-13. Two weeks later, Weske reported that her right foot
was “great,” she was without pain, and she felt as though she was
walking for a normal gait.

Id. at 301.

4

Weske also reported that

Weske’s treating physician for her back, Dr. Gregg Dyste,
did not limit her ability to work. Id. at 123, 291.
5

her left foot was “about 75% better with her hardware out” but
still stiff.

Id.

On May 21, 2013, Cammack responded to a Physical Capacities
Evaluation Form (PCE) provided by Hartford, stating “No work 6
months due to continued pain.” Id. at 299-300. Cammack also noted
that Weske could sit for eight hours at a time, stand for one hour
per day, and walk for one hour per day.

Id. at 299.

Cammack also

placed restrictions on Weske’s ability to drive, climb, stoop,
crouch, crawl, or reach until June 6, 2013.

Id. at 299-300.

Hartford’s claim file ignores the content of the PCE, simply noting
that “Dr. Cammack has completed a PCE based upon the 1/28/13 office
visit.”5

Id. at 120.

During the appeal process, Hartford requested an external file
review by Dr. David Trotter, a board certified orthopaedic surgeon.
Id. at 121-22.

Hartford specifically requested that Trotter

determine Weske’s restrictions and limitations as of March 1, 2013,
and whether those restrictions and/or limitations improved or
worsened since March 1, 2013.

Id. at 294.

Trotter reviewed “all

information, records and data provided ... by [Hartford.]”
268.

Id. at

In his report, Trotter referenced Cammack’s April 11 letter,

5

The PCE form is confusing in that it references an
assessment date of January 28, 2013, while directly discussing
limitations following the April 23, 2013, surgery. See id. at 299300. Hartford explains that it sent the PCE to Cammack to assess
Weske’s functionality before March 1, 2013. Id. at 122. Instead,
Cammack assessed Weske’s post-surgery functionality. Id. at 299300.
6

but he failed to note the letter’s key aspects, namely, that
Weske’s surgery was medically necessary and that she was unable to
walk, stand, or work before the surgery.

See id. at 267, 365.

Trotter also noted three other post-termination records: (1) the
April 23, 2013, operative report; (2) an April 30, 2013, physical
therapy report indicating Weske’s post-operative complaints of pain
and stiffness, range of motion flexion to 35 degrees and extension
to 55 degrees, and a plan for continued physical therapy; and (3)
notes from the May 9, 2013, office visit during which Weske
reported that her foot was 75% better.

Id. at 267.

Trotter

reported that he made several attempts to contact Cammack and
Fischer without success. Id. at 268-69. There is no evidence that
Trotter considered - or was provided - the PCE.
Trotter noted that Weske’s post March 1, 2013, symptoms were
“supported by the medical evidence available.”

Id. at 270.

Trotter further determined that Weske had physical restrictions
and/or limitations after March 1 as follows: (1) from March 1,
2013, to April 23, 2013, “walking or standing are restricted to no
more than 30 minutes at a time for a combined total of two hours in
an eight hour day.... Sitting, lifting, carrying are unrestricted”;
(2) following surgery Weske would need “four weeks off from work to
recover”; and (3) from May 23, 2013, to June 23, 2013, “walking or
standing are restricted to no more than 30 minutes at a time for a
combined total of two hours in an eight hour day.”

7

Id.

Trotter

determined that there would be no restrictions after June 23, 2013.
Id. Trotter ultimately concluded that Weske “could have maintained
a full-time work schedule within the supported restrictions and
limitations between 03/01/2013 through present.”

Id.

After

completing his initial report, Trotter received a response from
Cammack indicating that as of March 1, 2013, Weske was “unable to
stand or walk for more than 15 min at a time.”
Cammack

also

stated

that

there

were

limitations after March 1, 2013.

Id.

no

changes

July

12,

2013,

Hartford

upholding the denial of benefits.

to

Weske’s

Trotter concluded that

Cammack’s response did not change his opinion.
On

Id. at 275.

notified

Id. at 272.

Weske

Id. at 157.

that

it

was

On October 30,

2013, Weske filed suit in state court, alleging that Hartford
wrongfully terminated her benefits, and Hartford timely removed.
Both parties now move for summary judgment.

DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
8

(1986).

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.

Celotex, 477

A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of
materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A).

If a

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
II.

Celotex, 477 U.S. at 322-23.

Denial of Benefits
Under ERISA, a plan participant may bring a civil action to

“recover benefits due to [her] under the terms of [her] plan.”
U.S.C. § 1132(a)(1)(B).

29

Because the Plan gave Hartford discretion

to construe the terms of the Plan, its decision is reviewed under
the abuse of discretion standard.

Ortlieb v. United HealthCare

Choice Plans, 387 F.3d 778, 781 (8th Cir. 2004).

Under the abuse

of discretion standard, the court will uphold Hartford’s decision
if it was supported by substantial evidence.

9

McGee v. Reliance

Standard Life Ins. Co., 360 F.3d 921, 924 (8th Cir. 2004).
“Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
(citation and internal quotation marks omitted).

Id.

The court will

not disturb a decision supported by substantial evidence even if a
different, reasonable decision could have been made.
reviewing

a

denial

of

benefits

by

an

Id.

administrator

“When

who

has

discretion under an ERISA-regulated plan, a reviewing court must
focus on the evidence available to the plan administrators at the
time of their decision and may not admit new evidence or consider
post hoc rationales.”

King v. Hartford Life & Accident Ins. Co.,

414 F.3d 994, 999 (8th Cir. 2005) (citation and internal quotation
marks omitted).
The first issue to resolve is the correct standard for
determining whether Weske was disabled from March 1, 2013, forward.
The Policy provides that a claimant is no longer disabled if,
within twelve months of coverage, he or she is able to return to
“Your Occupation.”

Weske argues that “Your Occupation” refers to

her specific position at Medtronic.

She notes that the PDA

completed by Medtronic states that her position required her to
stand for three hours per day, and that the undisputed medical
evidence shows that she was restricted from doing so at all times
relevant to this matter.

HART000106-07.

Hartford responds that

the Policy expressly defines the term “Your Occupation” as it is

10

“recognized in the general workplace” rather than the specific
requirements of the claimaint’s position.
court agrees.

Id. at 22; 187.

The

The Policy expressly states that “Your Occupation

does not mean the specific job You are performing for a specific
employer or at a specific location.” Id. at 22; 187. Accordingly,
Hartford appropriately considered whether Weske could work in a
sedentary position in the general workplace, which involves sitting
most of the time, occasional walking or standing for brief periods,
and occasional lifting.
Even applying that standard, however, Hartford’s decision was
not supported by substantial evidence.

The parties agree that

Weske was disabled under the Policy from October 17, 2012, to
February 28, 2013, and for the four weeks following her surgery on
April 23, 2013.
disabled

from

The point of contention is whether Weske was

March

1

to

April

23.6

The

court

finds

that

Hartford’s finding of no disability during that period was not
supported by substantial evidence.

In retroactively determining

that Weske was not disabled, Hartford relied on Fischer’s report
that her wrist did not preclude Weske from performing keyboard
functions, and the voicemail from Cammack’s office reporting no

6

Weske seeks full reinstatement of her long-term disability
benefits, but provides no basis for the court to conclude that she
is currently disabled - nearly two years after the surgery - or
that her disability extended beyond the six-month post-PCE period.
For that reason, the court is constrained to consider the period
from March 1, 2013 to November 21, 2013.
11

restrictions

or

limitations

in

Cammack’s

notes.

Hartford

acknowledges, however, that Cammack did not clear Weske to return
to work.

Hartford appears to have done nothing to follow up with

Cammack between March 14, and the date of the denial letter, March
25, to actually determine Weske’s restrictions and limitations and
her ability to work. Indeed, had Hartford done so, it likely would
have received information similar to that contained in Cammack’s
April 11 letter, which unequivocally states that Weske is unable to
stand or walk, and cannot return to work before the April surgery.
Id. at 365.

There is no medical or other evidence in the record to

the contrary.

Hartford did not even seek an independent medical

review until after it made the decision to terminate Weske’s
benefits and after Weske appealed that decision.
failed

to

do

the

proper

due

diligence

in

Hartford simply

assessing

Weske’s

disability status before the surgery.
Further,

Hartford’s

decision

to

retroactively

terminate

benefits effective March 1, 2013, appears to have been arbitrary.
Although Fisher’s March 1 report could support a conclusion that
Weske’s wrist injury did not inhibit certain work activities, the
phone call - even if adequate to trigger termination - with
Cammack’s office did not occur until March 14.

Thus, there is no

evidence in the record supporting Hartford’s determination that
Weske was not disabled - at least as to her foot and ankle injuries

12

- on March 1.7
The appeal process did not repair the flaws in Hartford’s
initial denial.

Trotter does not appear to have considered

Cammack’s opinion in the April 11 letter or the PCE, both of which
are crucial to the issue of Weske’s disability status.

Although

opinions of treating physicians are not automatically entitled to
greater weight than those of reviewing physicians, a reviewing
physician’s contrary opinion must be supported by the record.
Midgett v. Wash. Grp. Int’l Long Term Disability Plan, 561 F.3d
887, 897 (8th Cir. 2009).

Because Trotter failed to adequately

consider Cammack’s letter and the PCE, his opinion is significantly
undermined. Trotter did nothing to discredit Cammack’s opinion, he
ignored it.

As a result, Hartford’s reliance on Trotter’s opinion

was misplaced.
Hartford also independently failed to review all relevant
evidence in upholding its denial.

Most notably, there is no

indication that Hartford considered the PCE.

And to the extent

Hartford considered the April 11 letter, it did so only summarily.
See HART000156 (“Although Dr. Cammack stated in his April 11, 2013
letter that in the interim between your two surgeries you were not
able to look for meaningful work, this is not a compelling argument

7

Hartford cited Cammack’s estimate that Weske would need
eight weeks to recovery from her December 12, 2012, surgery, as
justification for the March 1 termination date. See HART000154.
Cammack’s pre-surgery estimate of Weske’s recovery period is
insufficient to support the benefits termination.
13

to

support

you

occupation.”).

were

physically

unable

to

work

your

own

Hartford’s failure to fully consider this key

evidence was an abuse of discretion.
The court is also troubled by the timing of Hartford’s
decision to terminate benefits.

Hartford was aware of the surgery

scheduled for April 23, and acknowledges that the surgery would
render Weske disabled again for at least four weeks.

Hartford’s

haste to terminate benefits just before the surgery evinces a
desire to avoid coverage for the post-surgery period.

Perhaps

sensitive to this concern, Hartford argued at the hearing that
Weske

could

have

taken

advantage

of

the

Policy’s

recurrent

disability provision if she had just returned to work before the
surgery.

If applicable, the provision would have allowed Weske to

trigger her disability coverage post-surgery provided she was
employed before the surgery.

See HART000012 (“[I]f You return to

work as an Active Employee and then become Disabled and such
Disability is:

1) due to the same cause; or 2) due to a related

cause; and 3) within 6 month(s) of the return to work; ... The
Policy remains in force.”).

The recurrent disability provision

does not appear to apply, however, because coverage is dependent on
the

claimant’s

Medtronic.

return

to

work

with

the

policyholder,

here,

See HART000018-19 (defining “Active Employee” as “an

employee who works for the Employer” and “Employer” as “the
Policyholder”).

There is no evidence that there was a position

14

available for Weske at Medtronic at all, let alone one that fit her
undisputed pre-surgery restrictions and limitations.

Under these

circumstances, Weske would not have been able to secure coverage
under the recurrent disability provision, and Hartford’s argument
is disingenuous.
Having

concluded

that

Hartford

abused

its

discretion

in

terminating Weske’s benefits effective March 1, 2013, the court
holds that Weske’s benefits shall be reinstated for the period of
March 1, 2013, to November 21, 2013.

The end-date is consistent

with Cammack’s un-rebutted opinion that Weske could not work for
the six months following the PCE, i.e., until November 21, 2013.
Based on the record, the court is unable to determine whether Weske
was disabled after November 21, 2013, and will not consider that
issue.

The court will allow the parties to separately brief the

matter of attorneys’ fees, costs, and prejudgment interest.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion for summary judgment by defendant [ECF No. 16]

is denied; and

15

2.

The motion for summary judgment by plaintiff [ECF No. 17]

is granted in part as set forth above.

Dated:

February 12, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

16