Marzette v. Lincoln National Insurance Company

Filing 30

ORDER granting 27 Motion for Judgment on the Administrative Record. Signed by Judge Samuel H. Mays, Jr on 11-29-2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

SHELTON SHERROD MARZETTE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
Defendant.

No. 2:16-cv-02498-SHM

ORDER

Plaintiff

Shelton

Sherrod

Marzette

brings

this

action

against Defendant The Lincoln National Life Insurance Company
(“Lincoln National”), challenging the denial of insurance benefits.
Before the Court is Lincoln National’s Motion for Judgment
on the Administrative Record, dated March 27, 2017.
27; cf. ECF No. 27-1.)
(ECF No. 28.)

(ECF No.

Marzette responded on April 19, 2017.

Lincoln National replied on April 25, 2017.

(ECF

No. 29.)
For the reasons below, the Motion for Judgment on the Administrative Record is GRANTED.
I.

Background
Plaintiff

was

employed

by

Pat

Salmon

(“Salmon”) as a tractor trailer truck driver.

and

Sons,

Inc.

(ECF No. 22-6 at

869.)1
death

Plaintiff participated in a group voluntary accidental
and

dismemberment

Salmon employees.

insurance

plan

(“Plan”)

(ECF No. 22-2 at 58-60.)

available

to

Defendant provided

the Plan benefits.
Under the Plan, insured persons like Plaintiff are entitled
to benefits if they “sustain[ed] a covered accidental bodily injury while insured” that caused, among other things, a “Loss of
Hearing in One Ear.”

(Id. at 84.)

The Plan defines loss of

hearing as “permanent and total deafness in [one] ear” that
“cannot be corrected to any functional degree by any aid or device.”

(Id. at 85.)

The loss of hearing “must result directly

from the injury and from no other causes.”

(Id. at 84.)

Defendant has the authority to “manage this Policy and administer claims under it” and to “interpret the provisions and
resolve questions arising under this Policy.”

(Id. at 100.)

Defendant’s decisions are “conclusive and binding,” subject to
the insured person’s right to sue.

(Id.)

Plaintiff represents that, on July 31, 2014, while driving
to Denver, Colorado for Salmon, he became dizzy and began experiencing pain in his left ear.

(ECF No. 22-6 at 870.)

On Au-

gust 1, 2014, Plaintiff visited the Emergency Department at the

1

Unless otherwise noted, all pin cites for record citations are
to the “PageID” page number.

2

Veterans Administration Hospital to consult a doctor about his
condition.

(Id. at 819.)

Hospital records from that visit show

that Plaintiff said he had felt “dizzy since [July 31] when he
woke up and thought it would go away.”

(Id. at 818.)

also

was

told

doctors

that

his

left

ear

Plaintiff

stopped-up.

(Id.)

Plaintiff was diagnosed with vertigo, given a prescription, and
discharged from the hospital.

(Id.)

Plaintiff returned to the doctor on August 3, 2014, and
complained that he felt dizzy and that his left ear was stoppedup.

(Id. at 813-14.)

go and discharged.

Plaintiff was again diagnosed with verti-

(Id. at 811.)

Plaintiff returned to the doctor on August 5, 2014, and
complained that his vertigo continued.

(Id. at 807.)

Plaintiff

told doctors that a virus might be causing his condition.
Plaintiff was given a work excuse and discharged.

(Id.)

(Id.)

On August 7, 2014, Plaintiff went to the doctor for an audiology consultation.

(Id. at 804.)

Plaintiff complained of

“sudden left ear hearing loss and dizziness (nausea, vomiting,
unsteadiness, ‘drunk feeling’) which first started last week.”
(Id. at 803.)

Plaintiff was given an audiology exam, which re-

vealed some hearing loss in the left ear.

(Id. at 806.)

The

hearing loss was described as “a precipitous high-frequency deficit at 4khz to 8khz.”

(Id.)

had

through

“[n]ormal

hearing

The exam revealed that Plaintiff

3

speech

frequencies.”

(Id.)

Plaintiff was told to return in a week for another exam and
reevaluation.

(Id.)

Plaintiff returned to the doctor on August 14, 2014.
at 802.)

(Id.

Plaintiff reported that “his vertigo/imbalance seems

to have improved some,” but complained of hearing loss in his
left ear.

(Id. at 800.)

On September 22, 2014, Plaintiff received another hearing
evaluation.

(Id. at 793.)

The evaluation

“revealed normal

hearing sensitivity” and “excellent” speech recognition for both
ears.

(Id.)

Plaintiff asked the doctor for hearing aids, but

the doctor said that hearing aids were “not warranted at this
time since there is normal hearing sensitivity through the frequency range that hearing aids reach.”
Plaintiff
2014.

had

another

(Id. at 787.)

Plaintiff

reported

hearing

(Id.)

evaluation

on

October

17,

Notes from this evaluation show that

moderate

to

severe

dizziness,

but

that

“[s]ubjective findings are not consistent with functional assessment.”

(Id.)

The notes also state that Plaintiff “had nor-

mal [lower extremity] strength” and “demonstrated normal dynamic
balance” “[without] ambulatory aid.”

(Id.)

On October 22, 2014, Plaintiff had a kinesiotherapy consultation.
Plaintiff

(Id. at 784.)
was

Notes from the consultation show that

“ambulatory

[without]

an

assistive

device

and

demonstrate[d] good static and dynamic balance in spite of sub-

4

jective [complaints of] [moderate to severe] dizziness.”
at 784.)

(Id.

The doctor concluded that Plaintiff “is safe to ambu-

late [without] an assistive device and has no findings that suggest

Vestibular

Rehab

is

warranted.

Findings

revealed

that

subjective [complaints of] vertigo/dizziness are not consistent
with classical findings of functional assessment.”

(Id.)

On January 8, 2015, Plaintiff underwent a neurology evaluation.

(Id. at 750.)

The notes from that evaluation state that,

although Plaintiff “had severe sensory-neural hearing loss on
the left [ear] for higher frequencies 4000 - 8000,” that “did
not affect his ability to hear human conversation and did not
qualify him for a hearing aid.”

(Id.)

The notes also state

that “[t]he left hearing loss . . . could have arisen from either
(Id.)

a

left

labyrinthitis

or

a

left

AICA

ischemic

stroke.”

The doctor believed that, based on Plaintiff’s medical

history, a “small AICA ischemic stroke may have occurred but
there was no confirmation of this on MRI.”

(Id. at 751.)

On November 13, 2014, Plaintiff submitted a claim to Defendant for benefits under the Plan.

(Id. at 674.)

As part of

his claim, Plaintiff submitted an Attending Physician Statement
(“September 4 Statement”), dated September 26, 2014.
676-77.)

(Id. at

The September 4 Statement, signed by Dr. Joseph S.

Mook, M.D., diagnosed Plaintiff with “peripheral vertigo secondary to viral labrynthis” and “HEARING LOSS TO LEFT EAR.”

5

(Id.

at 677.)

“HEARING LOSS TO LEFT EAR” appears darker than the

other text in the Statement and is written in capital letters.
“[P]eripheral vertigo secondary to viral labrynthis” is written
in lower case letters.

(Id.)

The Statement classifies Plain-

tiff’s physical impairment as Class 5, meaning “[s]evere limitation

of

classifies

functional
Plaintiff’s

capacity,
mental

incapable

impairment

of
as

minimum,”

Class

2,

and

meaning

“[p]atient is able to function in most stress situation & engage
in most interpersonal relations.”

(Id.)

Plaintiff also submitted a Statement from Dr. Joanna FranzStepniakowska, dated November 6, 2014 (“November 6 Statement”).
(Id. at 667-68.)

The November 6 Statement diagnosed Plaintiff

with vertigo and hearing loss.

(Id. at 667.)

Like the Septem-

ber 4 Statement, “HEARING LOSS” is written in all capital letters

and

appears

significantly

darker

than

“vertigo.”

The

November 6 Statement also states that “VERY HIGH ALTITUDE IN
DENVER, CO. CAUSE HEARING TO BE BLOWN OUT.”

(Id. at 668.)

That

text is significantly darker than the other text in the November
6 Statement and is written in all capital letters.
In a letter dated June 16, 2015, Defendant notified Plaintiff’s counsel that Plaintiff was not entitled to benefits under
the Plan.

(ECF No. 22-5 at 497-99.)

Defendant justified its

decision by explaining that “Plaintiff did not lose his hearing
due to an accident” and “the hearing loss that occurred was not

6

permanent and did not result in total deafness.”

(Id. at 498.)

Thus, Plaintiff was not entitled to benefits under the Plan.
(Id.)
On August 27, 2015, Plaintiff, through his attorney, filed
a first level appeal in accordance with Plan procedures.
at 487-94.)

(Id.

Defendant asked Dr. Alden J. Pearl to perform an

independent review of Plaintiff’s medical records and claims.
(Id. at 465.)

Dr. Pearl concluded that, “[b]ased on the sup-

plied medical record,” Plaintiff “likely experienced a sudden
sensorineural hearing loss (SSNHL) of the left ear.”
467.)

(Id. at

The medical record “did not reveal any definitive cause

or etiology for [Plaintiff’s] sudden hearing loss.”

(Id.)

Dr.

Pearl noted that “[t]he most popular theory for SSNHL when no
obvious cause is identified (such as in this case) include[s]
viral and circulatory origins with smoking often considered as a
contributing factor,” and added that Plaintiff “was evaluated
and treated for a cough on July 14, 2014[,] approximately 2
weeks prior to his SSNHL, and that he was a tobacco user.”
(Id.)

Dr. Pearl also stated that Plaintiff had “a moderate to

severe sensorineural hearing loss (SNHL) from 4000 to 8000 Hz”
in his left ear.

(Id. at 468.)

“Since the hearing loss is iso-

lated to the left ear and only involves the high frequencies (48 kHz), it cannot be defined as a total deafness.”

7

(Id.)

In

a

letter

dated

October

9,

2015,

Defendant

informed

Plaintiff’s counsel that, after reviewing Plaintiff’s first level appeal, Defendant would not approve benefits under the Plan.
(Id. at 457-60.)

Defendant’s letter reiterated that Plaintiff

was not entitled to benefits because there was no evidence to
suggest that Plaintiff’s disability resulted from an accident,
and no evidence that Plaintiff’s hearing loss was total and permanent.

(Id. at 459.)

Plaintiff’s counsel submitted a second level appeal on behalf

of

Plaintiff

on

November

11,

2015.

(Id.

at

447-49.)

Plaintiff argued that, “[b]ecause SS[N]HL is idiopathic in nature, any attempt to assign a causative origin would necessarily
be

‘pure

speculation.’”

(Id.

at

447

(emphasis

removed).)

Plaintiff also argued that Plaintiff’s hearing loss was total
and permanent because “15% of people who experience SS[n]HL [do]
not recover.”
In

a

(Id. at 448 (emphasis removed).)

letter

dated

December

7,

2015,

Defendant

notified

Plaintiff, through his attorney, that it remained unable to approve Plaintiff’s request for benefits.

(Id. at 438.)

On June 23, 2016, Plaintiff filed his pro se Complaint.
(ECF No. 1.)
tract.

The Complaint alleges bad faith and breach of con-

(Id. at 2.)

On December 5, 2016, United States District

Judge James D. Todd entered an Order reassigning the case to
this Court.

(ECF No. 25.)

8

On March 27, 2017, Defendant filed a Motion for Judgment on
the Administrative Record.

(ECF No. 27; cf. ECF No. 27-1.)

Plaintiff responded on April 19, 2017.
replied on April 25, 2017.
II.

(ECF No. 28.)

Defendant

(ECF No. 29.)

Standard of Review

A district court reviewing a decision about benefits under
ERISA shall “conduct a . . . review based solely upon the administrative record, and render findings of fact and conclusions of
law accordingly.”

Wilkins v. Baptist Healthcare Systems, Inc.,

150 F.3d 609, 619 (6th Cir. 1998).

A denial of benefits is sub-

ject to the arbitrary and capricious standard of review if the
benefit plan accords discretionary authority to the claims administrator 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).

“When it is possible to offer

a reasoned explanation, based on the evidence, for a particular
outcome, that outcome is not arbitrary or capricious.” Williams
v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000)
(internal quotations omitted).
In applying the arbitrary and capricious standard, a court
will weigh as a factor whether a conflict of interest existed on
the part of the decision-maker in determining whether there was
an abuse of discretion.

Metropolitan Life Ins. Co. v. Glenn,

554 U.S. 105, 115 (2008); Bennett v. Kemper Nat'l Servs., Inc.,

9

514 F.3d 547, 552-53 (6th Cir. 2008).

However, “mere allega-

tions of the existence of a structural conflict of interest are
not enough to show that the denial of a claim was arbitrary.”
Peruzzi

v.

Summa

Medical

Plan,

137

F.3d

431,

433

(6th

Cir.

1998).

A plaintiff is required “not only to show the purported

existence of a conflict of interest, but also to provide ‘significant evidence’ that the conflict actually affected or motivated the decision at issue.”

Cooper v. Life ins. Co. of N.

Am., 486 F.3d 157, 165 (6th Cir. 2007) (quoting Peruzzi, 137
F.3d at 433).
III. Analysis
The Plan vests Defendant with discretion to make benefit
determinations.

(ECF No. 22-2 at 100.)

The Court, therefore,

reviews Defendant’s denial of benefits under the arbitrary and
capricious standard.
Plaintiff argues that Defendant’s decision to deny benefits
was arbitrary and capricious because Plaintiff’s hearing loss
was the result of an accident and because the hearing loss is
permanent and cannot be corrected.

(ECF No. 28 at 915-23.)

In finding that Plaintiff’s hearing loss did not constitute
permanent and total deafness, Defendant relied on evidence from
Plaintiff’s visits to several doctors.

Plaintiff sought treat-

ment for his condition on: (1) August 1, 2014; (2) August 3,
2014; (3) August 5, 2014; (4) August 7, 2014; (5) August 14,

10

2014; (6) September 22, 2014; (7) October 22, 2014; and (7) January 8, 2015.

See supra at 2-5.

None of the doctors concluded

that Plaintiff suffered permanent and total hearing loss.

In-

stead, their notes reveal that Plaintiff’s “[s]peech recognition
score was excellent for both ears,” that Plaintiff was “ambulatory [without] an assistive device and demonstre[d] good static
and dynamic balance,” and that Plaintiff’s condition “did not
affect his ability to hear human conversation and did not qualify him for a hearing aid.”

(ECF No. 22-6 at 793; Id. at 784;

Id. at 750.)
Plaintiff argues that “[an] administrator also has a duty
to perform his own medical evaluation . . . to bolster the denial of benefits.”

(ECF No. 28 at 920.)

Defendant did that.

De-

fendant hired Dr. Pearl to perform an independent evaluation
after Plaintiff’s first level appeal.

(ECF No. 22-5 at 465.)

Dr. Pearl also concluded that Plaintiff’s “hearing loss is isolated to the left ear and only involves the high frequencies.”
(Id. at 467.)
This evidence offers “a reasoned explanation” for Defendant’s decision to deny Plaintiff benefits under the Plan.

Wil-

liams, 227 F.3d at 712; see also Whitaker v. Hartford Life and
Acc. Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005) (“The administrator's decision must be upheld if ‘it is the result of a deliberate, principled reasoning process and if it is supported by

11

substantial

evidence.’”

(internal

quotations

omitted)).

The

overwhelming majority of physicians who examined Plaintiff concluded that the hearing loss in his left ear was not complete.
The hearing loss Plaintiff sustained does not affect his ability
to hear everyday conversation, and thus does not constitute total deafness.
The only contrary evidence is the two Statements Plaintiff
submitted with his claim for benefits.
Id. at 667-78.)
(Id.)

(ECF No. 22-6 at 676-77;

Both diagnose Plaintiff with hearing loss.

Neither Statement, however, explains why Plaintiff’s con-

dition constitutes permanent and total deafness.

Indeed, both

Statements answer “Yes” to the question of whether “a fundamental or marked change in the future” could be expected.
676; Id. at 667.)

(Id. at

Thus, the physicians did not believe that

Plaintiff’s hearing loss was permanent.

Neither Statement de-

scribes Plaintiff’s hearing loss as total or complete.

The por-

tion of each Statement that mentions hearing loss appears darker
and in a different font from the rest of the Statement.

It was

reasonable for Defendant to conclude, based on the totality of
the evidence, that Plaintiff’s hearing loss was not total and
permanent.
The Court need not reach the question of whether it was
reasonable for Defendant to conclude that Plaintiff’s hearing
loss was caused by an accident.

12

Under the terms of the Plan,

Defendant can deny benefits if Plaintiff’s hearing loss was not
total and complete.

Defendant’s denial of benefits was neither

arbitrary nor capricious.
IV.

Conclusion

For the foregoing reasons, Defendants’ Motion for Judgment
on the Administrative Record is GRANTED.

So ordered this 29th day of November, 2017.

/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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