Popov v. University Physicians & Surgeons, Inc. Long Term Disability Plan et al
Filing
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MEMORANDUM OPINION AND ORDER granting Defendants' 13 MOTION for Summary Judgment; denying Plaintiff's 12 MOTION for Summary Judgment; removing this action from the Court's docket. Signed by Judge Robert C. Chambers on 3/27/2019. (cc: counsel of record; any unrepresented parties) (hkl)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
GENKA POPOV, an individual,
Plaintiff,
v.
CIVIL ACTION NO. 3:18-0296
UNIVERSITY PHYSICIANS & SURGEONS, INC.,
LONG TERM DISABILITY PLAN, an employee Welfare Benefit Plan;
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin Corporation; and
DOES 1 through 5, inclusive,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are the Motions for Summary Judgment submitted by Defendants
University Physicians & Surgeons, Inc., Long Term Disability Plan (the “Plan”) and Northwestern
Mutual Life Insurance Company (“Northwestern”), 1 and Plaintiff Genka Popov. 2 Plaintiff
alleges, in her complaint, claims against Defendants under only one cause of action: violation of §
502 (a)(1)(B) 3 of the Employee Retirement Income Security Act (“ERISA”). See Compl., ECF
No. 1, at 6.
Defendants now move for summary judgment on the single count Plaintiff has asserted
against them, arguing that Northwestern’s decision to deny Plaintiff’s claim for benefits is entitled
to deference, and its findings should not be disturbed because of the reasonableness of its
investigation. See Mem. in Supp. of Defs.’ Mot. for Summ. J., ECF No. 14, at 18–24. Plaintiff also
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ECF No. 13.
ECF No. 12.
The mirror civil enforcement provision is 29 U.S.C. § 1132 (a)(1)(B).
moves for summary judgment on its single count, arguing that Defendant Northwestern is biased,
failed to consider some of her injuries, and was incorrect in determining that she is not entitled to
benefits. See Mem. in Supp. of Pl.’s Mot. for Summ. J., ECF No. 12, at 8–17.
The parties have fully briefed the issues and the motions are now ripe for adjudication. As
explained below, the Court GRANTS Defendants’ Motion for Summary Judgment, and DENIES
Plaintiff’s Motion for Summary Judgment.
I. Background
Plaintiff worked for Marshall Health as a pathology technician, preparing tissue slides. See
ECF No. 11-2, at 186, 192–93. She ceased work on April 18, 2016, and sought disability benefits
under the Plan based on complaints of carpal tunnel syndrome, neck pain, and back pain. See id.
at 166, 180, 184. Defendant Northwestern evaluated her medical records, consulted with a
physician, and determined that the medical testing and clinical examination findings failed to
support that Plaintiff satisfied the Plan’s definition of a “Disability.” See id. at 160–63.
On February 2, 2017, Plaintiff, through counsel, timely submitted an administrative appeal
of Defendant Northwestern’s denial of her claim. See id. at 147. In her appeal, for the first time,
Plaintiff also claimed to be disabled from a broken arm and other injuries sustained in a fall during
European travel on July 29, 2016, more than three months after she stopped working for Marshall
Health. See id. at 147–151. Defendant Northwestern upheld its decision to deny her claim for
multiple reasons. See id. at 126–135. Most relevant, Defendant Northwestern found that, under the
terms of the Plan, Plaintiff’s coverage terminated when she stopped working and ceased to be a
participating member, and thus her injuries from the July 29, 2016, incident were irrelevant. See
id. at 133.
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On May 2, 2017, more than one month after Defendant Northwestern’s appellate
determination, Plaintiff faxed to Defendant Northwestern a letter from Marshall Health, dated
April 6, 2017. See id. at 122. In the letter, Marshall Health stated that Plaintiff’s employment
terminated August 1, 2016, and that her “employer paid Long Term Disability benefit, through
North Western Mutual, ended as of 08/31/2016.” See id. at 123. Plaintiff did not request further
administrative review of her claim, and filed a complaint the following day, May 3, 2017, in the
Southern District of West Virginia Case. See Compl., at 5.
Defendant Northwestern then initiated and agreed to further administrative review of
Plaintiff’s ongoing eligibility for coverage under the Plan at the time of her fall on July 29, 2016.
See Compl., at 5; ECF No. 1-4. Plaintiff then dismissed her initial lawsuit and Defendant
Northwestern proceeded with a second administrative review, limited to evaluating whether
Plaintiff’s Plan coverage remained in force at the time of her fall on July 29, 2016. See ECF No.
1-6. On September 28, 2017, Defendant Northwestern advised Plaintiff that it was upholding the
determination that she was no longer covered under the Plan at the time of her fall on July 29,
2016. See id. Plaintiff then re-filed her lawsuit on February 12, 2018, and all parties filed their
motions for summary judgment on June 12, 2018. See Compl.; ECF Nos. 12, 13.
II. Standard of Review
A. Motion for Summary Judgment
To obtain summary judgment, the moving party must show that no genuine issue as to any
material fact remains and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, a court will not “weigh the evidence
and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, a court will draw any permissible inference from the underlying facts in the light most
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favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587–88 (1986). Any inference, however, “must fall within the range of reasonable probability
and not be so tenuous as to amount to speculation or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citation omitted). Therefore, summary judgment
will not be granted if a reasonable jury could return a verdict for the non-moving party on the
evidence presented. See Anderson, 477 U.S. at 247–48.
B. Administrator’s Decision
Under ERISA, courts must review an administrator’s decision to deny pension plan
benefits de novo, unless the plan itself confers discretionary authority upon the administrator “to
determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire and Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989). When an administrator possesses such discretion, courts
may review the eligibility determination only for an abuse of discretion. See id; Barron v. UNUM
Life Ins. Co. of Am., 260 F.3d 310, 315 (4th Cir. 2001). In considering whether an administrator
abused its discretion, the Fourth Circuit identified, in Booth v. Wal-Mart Stores, Inc. Assoc. Health
& Welfare Plan, 201 F.3d 335 (4th Cir. 2000), multiple non-exclusive factors that a court may
consider:
(1) the language of the plan; (2) the purposes and goals of the plan;
(3) the adequacy of the materials considered to make the decision
and the degree to which they support it; (4) whether the fiduciary's
interpretation was consistent with other provisions in the plan and
with earlier interpretations of the plan; (5) whether the
decisionmaking process was reasoned and principled; (6) whether
the decision was consistent with the procedural and substantive
requirements of ERISA; (7) any external standard relevant to the
exercise of discretion; and (8) the fiduciary's motives and any
conflict of interest it may have.
201 F.3d at 342-43.
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III. Discussion
A. Standard of Review Dispute
In support of her motion for summary judgment, Plaintiff acknowledges that the Plan itself
confers discretionary authority upon Defendant Northwestern, but nonetheless argues that this
Court should not review Defendant Northwestern’s eligibility determination under an “abuse of
discretion” standard. See Mem. in Supp. of Pl.’s Mot. for Summ. J., at 9. Rather, Plaintiff asserts,
this Court should “adjust” the level of deference it gives to Defendant Northwestern’s decision
because a conflict of interest exists. See id. at 10. The Court disagrees, as Plaintiff’s position is
based on overturned caselaw.
In 2000, the Fourth Circuit held that “[a] fiduciary's conflict of interest, in addition to
serving as a factor in the reasonableness inquiry, may operate to reduce the deference given to a
discretionary decision of that fiduciary.” Booth v. Wal-Mart Stores, 201 F.3d 335, 343 n.2 (4th
Cir. 2000) (emphasis added). This reduction of deference was done to “neutralize any untoward
influence resulting from that conflict.” Id. (internal quotations omitted).
However, the Fourth Circuit—based upon the Supreme Court’s decision in Metropolitan
Life Insurance Co. v. Glenn 4—later denounced this “reduction of deference” in ERISA conflict of
interest situations, and ruled that a conflict of interest is merely “one factor among many in
determining the reasonableness of the administrator's decision exercising discretionary authority.”
See Carden v. Aetna Life Ins. Co., 559 F.3d 256, 260–61 (4th Cir. 2009) (emphasis added) (internal
quotations omitted). Thus, the Court rejects Plaintiff’s assertion that this Court should “adjust” its
level of deference because of Defendant Northwestern’s conflict of interest, as it is an outdated
understanding of the law. Instead, Defendant Northwestern’s conflict of interest will be just one
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554 U.S. 105 (2008).
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of the many non-exclusive factors laid out in Booth that this Court will consider in deciding
whether it abused its discretion.
B. Whether Defendant Northwestern’s Decision was an Abuse of Discretion
Because the Court has established that Defendant Northwestern is entitled to a deferential
standard of review, the only question now before this Court is whether Defendant Northwestern’s
decision to deny Plaintiff her benefits was reasonable, or if it was an abuse of discretion.
1. Failure to Consider Evidence from July 2016
In support of her motion for summary judgment, Plaintiff first argues that Defendant
Northwestern abused its discretion when it failed to consider “injuries sustained by [Plaintiff] on
July 29, 2016,” when Plaintiff fell and further injured herself while on vacation. See Mem. in Supp.
of Pl.’s Mot. for Summ. J., at 16. Defendants argue that Defendant Northwestern could not consider
injuries sustained from her fall on July 29, 2016, because the Plan did not cover her at that time.
See Mem. in Opp. to Pl.’s Mot. for Summ. J., ECF No. 13, at 9–16. The Court agrees with
Defendants.
Section 6 of the Plan includes a provision explaining when an employee’s insurance ends,
and the provision states that insurance terminates “automatically on the earliest of” any one of four
different events: (1) non-payment of contributory premium payments, (2) termination of the
policy, (3) termination of employment, and (4) the date you cease to be a member. See ECF No.
11-1, at 29. Relevant to this case is the fourth possible event: the date you cease to be a member.
The Plan makes clear that a special exception exists for this fourth event, specifically stating:
[I]f you cease to be a Member because you are not working the
required minimum number of hours, your insurance will be
continued during the following periods, unless it ends on one of the
dates shown above:
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(1) While you are receiving from your Employer at least the amount
of Predisability Earnings in effect immediately before you ceased to
be a Member;
(2) While you are Disabled before the Beginning Date and while
benefits are payable;
(3) During a leave of absence if continuation of your insurance
under the Policy is required by the state mandated family or medical
leave act or law;
(4) During any other leave of absence approved by your Employer
in advance and in writing and scheduled to last the period shown in
the Specifications; or
(5) During an involuntary layoff for up to 18 months while you are
paying the entire premium for your insurance to your Employer.
Id. at 29–30 (emphasis added).
It is not disputed that Plaintiff ceased to be a member on April 18, 2016, because she was
not working the required minimum number of hours. Thus, Plaintiff argues that exception number
three above applies. See Mem. in Opp. to Defs.’ Mot. for Summ. J., ECF No. 16, at 7–8. Plaintiff
asserts that this exception applies to her because: (1) she was on FMLA during her fall on July 29,
2016; and (2) West Virginia Code Section 21-5D-6(b), known as the Parental Leave Act (“PLA”),
is such a state mandated family medical leave act. See Mem. in Supp. of Pl.’s Mot. for Summ. J.,
at 12–13.
While the Court agrees that Plaintiff has met the first element of exception three, she has
not met the second element. The PLA, which Plaintiff alleges requires continuation of her
insurance, does not actually apply to her. The PLA defines an “Employer” as “any department,
division, board, bureau, agency, commission or other unit of state government and any county
board of education in the state,” and states that an “Employee” does not include “[i]ndividuals
employed by persons who are not ‘employers’ as defined by this article.” W. Va. Code § 21-5D2(d); § 21-5D-2 (c)(2)(A). Thus, because a private employer is not encompassed by the statute’s
definition of an “employer,” the PLA will not apply to Plaintiff if her former employer—
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University Physicians & Surgeons, Inc. d/b/a Marshall Health—is a private employer.
Unfortunately for Plaintiff, it is. See Yoak v. Marshall University Bd. of Governors, 672 S.E.2d
191, 193 (W.Va. 2008) (holding that University Physicians & Surgeons, Inc. “is a private West
Virginia corporation.”). Thus, the third exception does not apply to Plaintiff, 5 and Defendant
Northwestern acted appropriately in not considering injuries sustained from Plaintiff’s fall on July
29, 2016, because the Plan did not cover her at that time.
2. General Abuse of Discretion
Plaintiff next argues, in support of her motion for summary judgment, that Defendant
Northwestern generally abused its discretion because it reached an unreasonable conclusion to
deny her benefits based on her carpel tunnel syndrome, neck pain, and back pain. See Mem. in
Supp. of Pl.’s Mot. for Summ. J., at 14–17. Defendants, on the other hand, argue that they are
entitled to summary judgment because Defendant Northwestern reached a reasonable conclusion.
See Mem. in Supp. of Defs.’ Mot. for Summ. J., at 18–24. The Court agrees with Defendants.
Defendant Northwestern did not abuse its discretion in declining to award Plaintiff benefits,
as it evaluated various pieces of medical evidence and relied on the medical opinions of two
doctors in concluding that Plaintiff had the functional capacity to work as a pathology technician
as of April 2016. Specifically, Defendant Northwestern evaluated the following medical records:
(1) documents which demonstrate that Plaintiff had no more than mild non-symptomatic carpal
tunnel and no radiculopathy; 6 (2) MRI evidence of no acute changes or progression of Plaintiff’s
Plaintiff never disputes this in her reply brief. See ECF No. 20.
See ECF No. 11-2, at 94, 96 (a February 9, 2016, nerve conduction study of Plaintiff’s left upper extremity
that demonstrated only mild carpal tunnel and “no evidence of left cervical radiculopathy.”); ECF No. 11-2, at 94, 97,
100 (a May 12, 2015, nerve conduction study of Plaintiff’s right upper extremity that showed only “mild residual right
carpal tunnel”.); ECF No. 11-1, at 138–41 (a January 4, 2017, bilateral electromyography and nerve conduction study
that concluded “[t]here is electrophysiologic evidence of very early mild median mononeuropathy across the wrist
(carpal tunnel syndrome) bilaterally, without evidence of active denervation on right. There is no electrophysiologic
evidence for right radial neuropathy.”).
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age-related stable degenerative disk disease with which she had worked for years; 7 (3) clinical
exam findings of full strength and range of motion; 8 (4) the absence of any specialized treatment
for her alleged disabling cervical, lumbar and hand conditions; 9 and (5) the lack of any prescribed
pain medication. 10 Additionally, Defendant Northwestern consulted two physicians, Dr. Hart and
Dr. Boodin, who analyzed the medical evidence, including MRI and NCS testing and clinical
findings, and concluded that Plaintiff did not have any functional limitations that would preclude
her from working. See ECF No. 11-1, at 58, 153. Moreover, the conclusions reached by Dr. Hart
and Dr. Boodin were consistent with the opinion of Dr. Stoll, who physically examined Plaintiff
and concluded that she was able to perform repetitive actions with both hands, including grasping,
and was able to sit, stand and walk up to 8 hours during a workday. See ECF No. 11-2, at 78.
Plaintiff essentially argues that, despite the above facts, Defendant Northwestern abused
its discretion when it denied her benefits because there is some conflicting evidence which
demonstrates that she was disabled. See Mem. in Opp. to Defs.’ Mot. for Summ. J., at 2–11. For
example, Plaintiff asserts that her treating physician, Dr. Lee, concluded that she would have to be
out of work indefinitely. See id. at 3. Plaintiff argues that this contradiction exists because one
doctor is a “paid physician” and the other is a “treating physician.” Id. However, Plaintiff ignores
the fact that Dr. Lee’s determination came as a result of the injuries Plaintiff suffered in her July
2016 fall, which the Court already concluded was appropriate for Defendant Northwestern to
ignore. See ECF No. 11-1, at 145.
Additionally, Plaintiff alleges that Dr. Hart and Dr. Boodin did not “reference an MRI
dated October 6, 2006,” which concluded that there was “mild to moderate central canal narrowing
See ECF No. 11-2, at 53.
See ECF No. 11-1, at 76, 124, 135.
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See ECF No. 11-1, at 135; ECF No. 11-2, at 81
10
See ECF No. 11-2, at 66, 102–03.
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at L4-5 secondary to disc bulge, facet degenerative change, and spondylolisthesis.” See Mem. in
Opp. to Defs.’ Mot. for Summ. J., at 9. However, given that Plaintiff first claimed a disability
almost a decade after this 2006 MRI, it stands to reason that more recent MRIs, which Defendant
Northwestern did review, 11 would be more relevant in deciding whether Plaintiff was now
disabled and unable to work. As to Plaintiff’s assertion that this missing MRI is evidence that Dr.
Hart and Dr. Boodin may have “ignored” other evidence, the Court finds this unpersuasive. Given
the medical evidence that Defendant Northwestern, Dr. Hart, and Dr. Boodin indisputably
reviewed, this Court cannot hold that Defendant Northwestern’s decision was unreasonable merely
because there are other records, not even identified to this Court, that they may have ignored. 12
Finally, Plaintiff argues that Defendant Northwestern’s conflict of interest should result in
a finding that it abused its discretion and reached an unreasonable conclusion. See Mem. in Opp.
to Defs.’ Mot. for Summ. J., at 11. The Court disagrees. Even if Defendant Northwestern did have
a conflict of interest, as the Fourth Circuit clarified, a conflict of interest is only one factor among
many in determining the reasonableness of the administrator's decision. The Court finds that
Defendant Northwestern based its decision on various medical records, and the content of those
medical records could result in a reasonable determination that Plaintiff was not disabled.
Additionally, Defendant Northwestern relied on not one, but two doctors’ opinions. While those
opinions were from doctors who did not treat Plaintiff, it is certainly appropriate to rely on the
opinion of non-treating physicians in ERISA cases. See Black & Decker Disability Plan v. Nord,
538 U.S. 822, 832 (2003) (holding that it is appropriate to rely on a consulting physician, and that
both consulting and treating physicians have biases). Additionally, there is no evidence that
See, e.g., ECF No. 11-2, at 53.
The Court also notes that a failure to reference a single medical record that is nearly a decade old does not
establish that either Defendant Northwestern, or the doctors it relied on, “ignored” evidence.
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Defendant Northwestern violated any of the procedural requirements of ERISA. In fact, it
voluntarily conducted an additional review of Plaintiff’s claim, after a lawsuit was filed, in order
to ensure that its decision was sound. Thus, despite Defendant Northwestern’s conflict of interest,
the Court finds that it did not even reach an improper conclusion in determining that Plaintiff was
not entitled to benefits, let alone abuse its discretion.
IV. Conclusion
Based upon the analysis provided above, the Court GRANTS Defendants’ Motion for
Summary Judgment (ECF No. 13), DENIES Plaintiff’s Motion for Summary Judgment (ECF No.
12), and REMOVES this action from the Court’s docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:
March 27, 2019
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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