Leirer v. The Proctor and Gamble Company, et al
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Plaintiff's motion for summary judgment is DENIED. (ECF No. 54 .) IT IS FURTHER ORDERED that the Defendants' motion for summary judgment is GRANTED. (ECF No. 51 .) A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/29/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THE PROCTOR & GAMBLE
DISABILITY BENEFIT PLAN, et al.,
Case No. 4:15CV00122 AGF
MEMORANDUM AND ORDER
This is an action under Section 502(a)(1)(B) of the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for disability benefits under an
employer sponsored disability benefit plan. The matter is before the Court on the cross
motions for summary judgment filed by Plaintiff Gary Leirer, and by Defendants The
Proctor & Gamble Disability Benefit Plan and related entities. For the reasons set forth
below, Plaintiff’s motion for summary judgment will be denied, and Defendants’ motion
for summary judgment will be granted.
Plaintiff, who was born on August 3, 1955, was employed by The Proctor &
Gamble Company, beginning on May 30, 1989, as a line operator and was a member of its
Disability Benefit Plan (“DBP”), Long-Term Disability Allowance Policy Plan (“LTDP”),
and Optional Disability Insurance Plan (”ODIP”). The DBP (effective January 1, 2008),
defines “Total Disability” as follows:
[A] mental or physical condition resulting from an illness or injury which is
generally considered totally disabling by the medical profession and for
which the Participant is receiving regular recognized treatment by a qualified
medical professional. Usually, Total Disability involves a condition of such
severity as to require care in a hospital or restriction to the immediate
confines of the home. The Trustees reserve the right to determine what is
considered as “regular” and “recognized treatment.”
ECF No. 52-22 at 43.
“Partial Disability” is defined as:
[A] mental or physical condition resulting from an illness or injury because
of which the Participant is receiving medical treatment and cannot perform
the regular duties of his or her job but can perform other roles at the same site
or other jobs outside the Company. Thus, a condition of Partial Disability
does not necessarily prevent that Participant from performing useful tasks,
utilizing public or private transportation, or taking part in social or business
activities outside the home.
Id. at 42. Partial Disability payments are limited to 52 weeks.
Determination of eligibility is vested with the relevant Trustees under all three
Plans. The DBP states:
[The] Trustees have the discretionary authority to interpret the terms of this
Plan, to determine the facts underlying any benefits claims, and to determine
eligibility for and entitlement to Plan benefits in accordance with the terms of
the Plan. Determination by the Trustees as to the interpretations and
application of this Plan in any particular case shall be conclusive on all
interested parties and their action shall not be subject to any review.
ECF No. 52-23 at 3. The ODIP (effective January 1, 2009) states:
The Trustees of the Plan, in carrying out their responsibilities under the Plan,
shall have discretionary authority to interpret the Plan and to determine
eligibility for and entitlement to any Plan benefits in accordance with the
terms of the Plan. Any interpretation or determination made pursuant to
such discretionary authority shall be given full force and effect.
ECF 52-23 at 48. And the 2012 Summary Plan Description (“SPD”) for the LTDP
The Board of Trustees for The Proctor & Gamble Disability Benefit Plan is
responsible for and has full and complete discretionary authority to interpret
and construe the Plan’s terms, including, but not limited to, the Plan’s
eligibility requirements and whether and to what extent the Plan provides
ECF No. 52-25 at 41.
Plaintiff stopped working on June 7, 2012, and on June 11, 2012, underwent
gallbladder removal surgery for gallbladder cancer. On June 18, 2012, Plaintiff was
approved for total disability benefits and began receiving benefits as of that date. In April
2013, Michael Freeman, M.D., Plaintiff’s treating physician, did not “feel [Plaintiff could]
handle light duty [and was] totally disabled.” ECF No. 52-5 at 6. In May, June, and July
of 2013, Dr. Freeman described Plaintiff’s condition as “same as before.” ECF No. 52-4
Meanwhile, on April 24, 2013, at Defendants’ request, Plaintiff underwent an
independent medical evaluation (“IME”) performed by Thomas Marsh, M.D. Dr. Marsh
noted that the medical records submitted indicated Plaintiff suffered from numerous
medical issues, many of which were either stable or had resolved. Dr. Marsh noted that
although Plaintiff was described as totally disabled by Dr. Freeman, Plaintiff could drive,
mow his grass with a riding lawn mower, grocery shop, carry grocery bags, and lift a gallon
of milk. Dr. Marsh concluded that Plaintiff was not totally disabled, but rather was
partially disabled, based on Plaintiff’s presentation at the examination and ability to drive a
car, perform activities around the house, and mow his grass. Dr. Marsh stated, based on
his examination, that Plaintiff was not functionally precluded from performing light duty
or administrative tasks in the workplace. ECF No. 15-6 at 41-49.
Dr. Marsh recommended a Functional Capacity Evaluation (“FCE”), which
Plaintiff underwent on May 16, 2013. The FCE concluded that Plaintiff was unable to
perform the required tasks for his line tech position, but could perform medium demand
level work on a full-time basis, with the limitations of, inter alia, lifting 30 pounds,
walking, and climbing occasionally. By letter to Plaintiff dated September 3, 2013, the
Trustees of the DBP informed Plaintiff that, based on the FCE, they determined that he
could perform some medium work. The letter stated that Plaintiff’s department did not
have work available to accommodate his work restrictions, and hence, he would receive
Partial Disability payments commencing July 10, 2013, and ending 52 weeks thereafter.
Lastly, the letter informed Plaintiff of his right to appeal the Trustees’ decision, and set
forth the procedures for doing so. ECF No. 52-10 at 2-3.
On February 26, 2014, Plaintiff administratively appealed the Partial Disability
decision. He stated that he was permanently and totally disabled, asserted that the FCE
was incomplete because he had “additional problems” that were not noted therein, and
asserted that his condition had gotten progressively worse since the FCE. Plaintiff stated
that he would supplement his appeal with records to be forthcoming from the Mayo Clinic.
Plaintiff further asserted that he had sleep apnea and narcolepsy; that he could not work at
his former line operator position; and that his medical conditions and treatments precluded
him from work in any occupation. ECF 52-10 at 5-12.
Plaintiff included with his appeal a January 15, 2014 vocational rehabilitation
evaluation by licensed psychologist Vincent F. Stock. M.A. Scott stated that his opinion
was based on then-current information (consisting of a review of medical records and an
interview with Plaintiff). Scott opined that Plaintiff “may” be permanently restricted from
work as a line operator or any other full-time or part-time positions, and stated that once
Plaintiff’s physicians made recommendations concerning his physical restrictions a further
statement of Plaintiff’s vocational possibilities would be considered. ECF No. 52-10 at
13-22. Plaintiff also submitted extensive examination and laboratory records.
On May 27, 2014, an independent medical review was conducted by Sunil Sheth,
M.D., at the request of the Trustees. Dr. Sheth found, based upon a review of the medical
record, that although Plaintiff suffered from various medical conditions both before and
after his gallbladder surgery, there was no objective medical evidence “to substantiate an
inability to work in any capacity” from July 10, 2013, onward. ECF No. 52-19 at 44-49.
By letter dated June 17, 2014, the Trustees informed Plaintiff that the decision to
terminate Plaintiff’s total disability benefits was upheld. The letter cited the applicable
definition of Total Disability as providing that “[u]sually, Total Disability involves a
condition of such severity as to require care in a hospital or restriction to the immediate
confines of the home.” The letter stated that the decision was based on the May 16, 2013
FCE, Dr. Marsh’s April 24, 2013 IME, and a review of all the information provided to
them in support of Plaintiff’s claim for deniability benefits entitlement. ECF. No. 52-19
On June 23, 2015, Plaintiff filed this suit, claiming that he was improperly denied
continuing Total Disability benefits. He seeks recovery of benefits due plus prejudgment
interest (Count I) and a penalty of $110 per day from March 28, 2014, based on
Defendants’ failure to provide a copy of a 2012 DBP he believes governs his claim (Count
ARGUMENTS OF THE PARTIES
Plaintiff’s Motion for Summary Judgment
In support of his motion for summary judgment (ECF No. 55), Plaintiff first argues
that the proper standard of review for Defendants’ denial of benefits is de novo. Plaintiff
asserts that the 2012 SPDs for the LTDP Plan and the ODIP do not contain any
discretionary language that would trigger review under an abuse of discretion standard.
Plaintiff alternatively posits that de novo review should be applied due to alleged
“procedural irregularities,” including (1) relying on the “outdated” May 16, 2013 FCE and
April 24, 2013 IME, as opposed to relying on the January 15, 2014 vocational evaluation
report, and unspecified medical reports he submitted in connection with his appeal; (2) not
providing a full and fair review; (3) operating under a conflict of interest in that Defendants
both decided his claim and are responsible for paying his benefits; and (4) not timely
producing Plan documents.
Plaintiff argues that regardless of the standard of review, he is entitled to summary
judgment because Defendants abused their discretion, in light of the “procedural
irregularities” noted above, and the “flawed interpretation” of Total Disability. Plaintiff
asks for either summary judgment or remand to Defendants for a new review, with all prior
and current evidence considered. Plaintiff also argues that he is entitled to the penalty he
seeks due to Defendants’ failure to produce a 2012 DBP that must have been the Plan
controlling his claim.
Defendants respond (ECF No. 65) that the abuse of discretion standard of review
applies because of the language granting broad discretionary authority to the Trustees in all
relevant Plans and/or SPDs. Defendants contest the “procedural irregularities” cited by
Plaintiff and argue that they do not warrant application of the de novo standard of review.
Defendants argue that the decision to deny Total Disability benefits after July 10, 2013,
was not an abuse of discretion; the review and analysis conducted by Defendants
conformed to the applicable ERISA standards; Defendants produced the requested
documents to Plaintiff in conformity with ERISA’s requirements; and Defendants’
construction of “Total Disability” was a matter within their discretion. Defendants argue
that remand is not warranted because Plaintiff showed no objective evidence to establish
that he satisfied the applicable definition of Total Disability. Lastly, Defendants assert
that Plaintiff is not entitled to penalties because any failure to provide Plaintiff with a copy
of a 2012 DBP was not a result of bad faith and did not prejudice Plaintiff.
Plaintiff replies (ECF No. 70) that Defendants’ failure to provide a 2012 DBP
prejudiced his ability to effectively appeal the cessation of Total Disability benefits.
Plaintiff further asserts that Defendants’ failure to provide the controlling 2012 Plan should
lead to penalties to deter Defendants from treating other participants in a similar fashion.
Additionally, Plaintiff again questions the fullness and fairness of the review conducted by
Defendants, and argues that Defendants did not fairly consider Stock’s findings and other
information, and never adequately specified why Plaintiff’s evidence was insufficient.
Defendants’ Motion for Summary Judgment
In support of their own motion for summary judgment (ECF No. 53), Defendants
first argue that the abuse of discretion standard of review applies based on the language of
the Plans in force that granted broad discretionary authority to the Trustees. Defendants
next assert that the Trustees’ decision to deny additional benefits was clearly reasonable
and not an abuse of discretion. Defendants point to reports and facts in the record
supporting the finding of Partial Disability, and argue that Plaintiff never showed any
objective evidence of total disability precluding him from returning to work.
Plaintiff responds (ECF No. 62) that the relevant Plan documents do not grant the
Trustees discretionary authority, and so de novo review applies. Plaintiff disputes
Defendants’ assertions regarding the lack of objective evidence of Plaintiff’s total
disability, contests that such evidence should be expected in this case, and moves to strike
Dr. Sheth’s May 7, 2014 report because Plaintiff did not have a chance to respond to it
before his administrative appeal was denied. Plaintiff also posits that Defendants’ failure
to produce the 2012 DBP constituted a breach of their fiduciary duties, and warrants an
award of penalties under ERISA.
In reply (ECF No. 68), Defendants contest Plaintiff’s construction of the 2012 SPD,
and maintain that its language grants the Trustees discretion. Defendants also describe
their allegedly appropriate responses to Plaintiff’s requests for documents, and
Defendants’ general compliance with applicable procedural and ERISA requirements.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment
shall be entered “if the movant shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
On a motion for summary judgment, facts and all reasonable inferences must be construed
in favor of the nonmoving party; however, “facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citation
omitted). “The nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe v. County of St. Louis, Mo., 690
F.3d 1004, 1011 (8th Cir. 2012) (citations omitted). The movant is entitled to summary
judgment when the nonmovant has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Standard of Review
“In general, a claim administrator’s denial of benefits is subject to de novo review
by the district court. Where the plan grants the administrator or fiduciary ‘discretionary
authority’ to determine eligibility for benefits, however, the standard of review is relaxed,
and abuse of discretion becomes the appropriate benchmark.” Cooper v. Metro. Life Ins.
Co., 862 F.3d 654, 660 (8th Cir. 2017). “To determine whether the benefit plan gives the
administrator or fiduciary discretionary authority, courts must look for explicit
discretion-granting language in the policy or in other plan documents.” McKeehan v.
Cigna Life Ins. Co., 344 F.3d 789, 793 (8th Cir. 2003) (citations omitted). Here, the
language quoted above with regard to the Trustees’ discretionary authority is sufficient to
trigger the abuse-of-discretion standard. See Cooper, 862 F.3d at 660. Plaintiff’s
contentions of an inherent conflict of interest and “procedural irregularities” which led to a
breach of Defendants’ fiduciary duties, are unavailing. The Eighth Circuit “has
consistently rejected the notion that the mere presence of a potential conflict of interest is
sufficient to warrant a less deferential standard.” Id. at 660-61; see also Whitley v.
Standard Ins. Co., 815 F.3d 1134, 1140 (8th Cir. 2016). This inherent conflict of interest,
however, must be weighed as a factor in a court’s overall review, with the weight
dependent on evidence that the review process was “tainted by bias;” that the medical
professionals who reviewed the claim were employed by the insurer; that the medical
professionals’ compensation was tied to their findings; and that the insurer acted as “little
more than a rubberstamp for favorable medical opinions.” Cooper, 862 F.3d at 661.
Here, Plaintiff claims a conflict of interest because Defendants both decided
Plaintiff’s claim and are responsible for paying his benefits. However, Plaintiff does not
point to any additional factors, such as those identified above, that would compel the Court
to weigh heavily any conflict of interest present here.
Furthermore, Plaintiff’s argument regarding Defendants’ reliance on outdated
evaluations and failing to evaluate and credit Plaintiff’s vocational evidence and later
medical records also fail to justify lowering the Court’s standard of review. Rather this
argument goes to the merits of Defendants’ decision to deny continuing total disability
Under the abuse of discretion standard, the Court will uphold a claim
administrator’s decision so long as it is reasonable and supported by substantial evidence.
Hampton v. Reliance Standard Life Ins. Co., 769 F.3d 597, 600 (8th Cir. 2014). “A
decision is reasonable if a reasonable person could have reached a similar decision, given
the evidence before him, not that a reasonable person would have reached that decision.”
Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d
628, 634 (8th Cir. 2016) (citation omitted). The court must not substitute its own
weighing of the evidence for that of the decision-maker. Gerhardt v. Liberty Life Assur.
Co. of Boston, 736 F.3d 777, 780 (8th Cir. 2013).
Here the Court concludes that Defendants’ decision is reasonable and supported by
substantial evidence, namely, Dr. Marsh’s April 24, 2013 assessment that Plaintiff could
perform light duty or administrative tasks in the workplace; the May 16, 2013 FCE finding
that Plaintiff was able to perform medium level work with certain limitations; and Dr.
Stith’s May 27, 2014 independent medical review that found that there was no objective
medical evidence to support that Plaintiff was unable to perform any work from July 10,
2013, onward. See id. (holding that an ERISA plan administrator did not abuse its
discretion in terminating disability benefits where treating physician opined that plaintiff
was disabled, but functional capacity exam and independent medical exam showed
plaintiff could perform sedentary work); Midgett v. Wash. Grp. Int’l Long Term Disability
Plan, 561 F.3d 887, 897 (8th Cir.2009) (holding that plan administrator had the “discretion
to deny benefits based upon its acceptance of the opinions of reviewing physicians over the
conflicting opinions of the claimant’s treating physicians”). The Court reaches the same
decision even without consideration of Dr. Stith’s report.
The applicable definition of Total Disability, stating that it usually requires that one
be hospitalized or confined to the home, is rather strict, but this is the bargained-for
coverage. See Nichols v. Procter & Gamble Long Term Disability Allowance Policy, No.
4:12-CV-00232-KGB, 2013 WL 5467191, at *11 (E.D. Ark. Sept. 30, 2013) (finding that
ERISA plan trustees did not abuse their discretion in finding that the plaintiff was only
“partially disabled,” rather than “totally disabled,” under applicable definitions of those
terms, identical to the definitions in the present case). Even under a less stringent
definition of what would constitute total disability, for example, the inability to perform
any job at the company or elsewhere, the evidence supports a decision that Plaintiff was not
totally disabled after July 10, 2013. Lastly, even accepting that Defendants did not
provide Plaintiff with a copy of the 2012 DBP (one does not appear in the record), Plaintiff
has not persuaded the Court that he was in any way prejudiced thereby, and he has not cited
any case law suggesting that this failure, in and of itself, warrants the relief Plaintiff seeks.
In sum, upon the examination of the administrative record and consideration of
Plaintiff’s and Defendants’ arguments, the Court finds that Defendants’ conclusion that
Plaintiff did not suffer from a “Total Disability” from July 10, 2013, forward is reasonable
and supported by substantial evidence.
IT IS HEREBY ORDERED that the Plaintiff’s motion for summary judgment is
DENIED. (ECF No. 54.)
IT IS FURTHER ORDERED that the Defendants’ motion for summary judgment
is GRANTED. (ECF No. 51.)
A separate Judgment shall accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2017.
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