Karul v. SC Johnson & Son Inc Long Term Disability Plan et al

Filing 45

ORDER signed by Judge Rudolph T. Randa on 3/10/2015. 22 Plaintiff's MOTION for Summary Judgment GRANTED; Karul's benefits reinstated retroactively for the period beginning 4/1/2012, with prejudgment interest at prime rate compunded annual ly; parties to engage in good faith effort to agree to amount of retroactive benefits, prejudgment interest, attorney fees and costs, and file stipulation and proposed order by 3/27/2015; if unable to reach stipulation parties to file statements sett ing forth respective positions with supporting documents by 4/10/2015, any responses thereto to be filed by 4/16/2015. 40 42 Defendants' MOTIONS to Strike DENIED. 27 Defendants' Joint MOTION for Summary Judgment DENIED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGINA KARUL,
Plaintiff,
-vs-

Case No. 13-C-900

S.C. JOHNSON & SON LONG
TERM DISABILITY PLAN, and
METROPOLITAN LIFE
INSURANCE COMPANY,
Defendants.

DECISION AND ORDER
Plaintiff Virginia Karul (“Karul”) alleges that the Defendants, S.C.
Johnson & Son Long Term Disability Plan (the “Plan”) and Metropolitan
Life Insurance Company (“MetLife”) (collectively the “Defendants”) violated
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1001 et seq., because they did not give her a full and fair review of
her claim and denied disability benefits under the Plan. The Court has
subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Venue is proper in the Eastern District of Wisconsin pursuant to 29 U.S.C.
§ 1132(e)(2) and 28 U.S.C. § 1391(b).
This matter is before the Court on Karul’s summary judgment
motion (ECF No. 22) and the Defendants’ motions to strike and joint

motion for relief under Rule 52(a)1 of the Federal Rules of Civil Procedure
or, in the alternative for summary judgment pursuant to Rule 56. (ECF
Nos. 27, 40, 42.)
MOTIONS TO STRIKE
The Defendants seek orders striking Karul’s additional proposed
findings of fact (“PFOF”) in opposition to their summary judgment motion,
and exhibit one to the declaration of William E. Parsons — the Linked-In
profile of Dr. Jennifer Rooke (“Rooke”) and the information contained in the
exhibit, or alternatively, they wish to be granted leave to file a response to
those additional materials.
Motions to strike are disfavored, see Civil L.R. 56(b)(9) (E.D. Wis.).
With respect to Rooke’s Linked-In profile, which states that she has been a
MetLife medical consultant from 2011 to the present, such information
could be relevant to a possible conflict of interest, see Holmstrom v. Metro.
Life Ins. Co., 615 F.3d 758, 767 (7th Cir. 2010) (citing Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 116 (2008), and is properly before the Court.
Furthermore, the parties proposed the abbreviated schedule that did
not provide for any reply, and that schedule was adopted by the Court.

1 Karul agrees that Rule 52(a) is an appropriate alternative for determining a
claim for disability benefits under ERISA. (Pl. Mem. Opp’n Mot. Rule 52 J./Summ. J.
(“Pl. Opp’n Mem.”) 1. ) (ECF No. 32.)

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(ECF Nos. 19, 20.) The additional proposed findings of fact are permissible
under Civil L.R. 56(b)(2)(B)(ii) (E.D. Wis.) In addition, the parties have
exhaustively discussed the facts and the Court has examined the record in
detail. No further response is needed. Therefore, the Defendants’ motions
to strike, or in the alternative for leave to respond are denied.
RULE 52(a) MOTIONS
Although the action involves review of the record, many of the
proposed findings of fact are disputed. Therefore, the Court sets forth its
findings of fact and conclusions of law pursuant to Rule 52(a). The factual
findings are based on the stipulated facts, the Defendants’ proposed
PFOF, Karul’s PFOF, Karul’s additional PFOF, and the underlying
factual materials. Undisputed facts have been accepted as true. The Court
has resolved factual disputes by reviewing the record.
Given a record spanning over 2,700 pages and the many facts
relevant to this action, the Court begins by summarizing them.

S.C.

Johnson & Son, Inc. (“SCJ”) employed Karul at its Racine, Wisconsin
facility, and she was an eligible employee under the Plan.

The Plan

provides 24 months of disability benefits for an eligible employee who is
unable to work in her usual occupation.

After 24 months, the Plan

provides disability benefits coverage for an eligible employee who is unable
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to perform any reasonable work activity.
Karul applied for and, as of November 2009, received 24 months of
Plan disability benefits due to respiratory and skin problems exacerbated
by a March 2009 workplace incident. Based upon a February 2012 medical
evaluation of Karul performed at MetLife’s request, Dr. Aubrey Swartz,
M.D., (“Swartz”), concluded that Karul was able to perform sedentary
work. In March 2012 MetLife informed Karul that she did not qualify for
further disability benefits under the Plan.
Karul appealed, asserting that she remained disabled due to various
conditions including, but not limited to, back, knee and chest pain; sciatica;
migraines; visual impairment; nausea; and wheezing. She also relied upon
her continuing receipt of social security disability insurance benefits. At
MetLife’s request, board-certified occupational medicine physician Rooke
reviewed Karul’s medical records and contacted her medical providers for
information. Rooke concluded that Karul was not disabled. Thereafter,
the Committee issued a decision finding that Karul was not disabled.
Findings of Fact
Karul is a participant in the Plan, which is an employee benefit plan
subject to ERISA. MetLife is the Claims Administrator contracted by SCJ
to administer claims for benefits arising under the Plan. Karul exhausted
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her administrative remedies as a condition precedent to filing this action.
The Plan
The Plan’s purpose is to financially aid Plan Participants in the
event of Total Disability. The Plan defines “Total Disability” as follows:
A Participant will be considered “Totally Disabled”
or to have a “Total Disability” at any time that he
or she is unable to work as provided below and is
under the Regular Care of a Physician:
(a) During the first twenty-four (24) months that a
Participant is absent from work due to Injury or
Disease, the Participant will be considered unable
to work if he or she is unable, solely because of
such Injury or Disease, to perform the Material
Duties of his or her Own Occupation or any other
Reasonable Job offered by the Employer.
(b) After the first twenty-four (24) months that a
Participant is absent from work due to Injury or
Disease, the Participant will be considered unable
to work if he or she is unable, solely because of
such Injury of Disease, to work at any Reasonable
Occupation.
A Participant will not be considered to be Totally
Disabled more than thirty-one (31) days before the
Participant has first been seen and treated by a
Physician for the injury or illness causing the
Total Disability.
(R. at ML_1617.)2

The Plan defines “Reasonable Occupation” as “any

2 The record (R.) is located at ECF Nos. 28-1 through 28-18 and 29-1. Page
distribution is as follows: ML_0001-0149 (No. 28-1); 0150-0345 (28-2); 0346-0534 (28-3);
0535-0752 (28-4); 0753-0957 (28-5); 0958-1170 (28-6); 1171-1389 (28-7); 1390-1642 (288); 1643-1825 (28-9); 1826-1980 (28-10); 1981-256 (28-11); 2057-2146 (28-12); 2147-2228

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gainful activity for which an Eligible Employee is fitted by education,
training or experience, or for which the Eligible Employee could reasonably
become fitted, and which pays the Eligible Employee at least sixty percent
(60%) of the Eligible Employee’s Monthly Rate of Basic Earnings.” (R. at
ML_1616.)

The Plan Participant’s initial claim for long-term disability

insurance (“LTD”) benefits is determined by the Claims Administrator. (R.
at ML_1623-24.)
If the claim is approved, the Plan Participant’s monthly LTD benefit
will be reduced by the amount of any benefits received under the Social
Security Act during the same time period. (R. at ML_1619-20.) The Claim
Administrator has the right to require that the Plan Participant apply for
all other benefits for which he or she may be eligible, including Social
Security Disability Income (“SSDI”), and appeal any initial denial of such
benefits. (R. at ML_1624.) If the claim is denied in whole or in part by the
Claim Administrator, the Plan Participant may appeal the decision to the
Committee. (R. at ML_1613,1625-26.)
The Plan affords the Committee “[t]he discretion and authority to
interpret the Plan, its interpretation thereof in good faith [is] to be final
and conclusive on all persons claiming benefits under the Plan;” and “[t]he
(28-13); 2229-2321 (28-14); 2322-2411 (28-15); 2412-2499 (28-16); 2500-2582 (28-17);
2583-2610 (28-18); 2611-2762 (29-1).

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discretion and authority to decide all questions concerning the Plan, the
eligibility of any person to participate in the Plan, and the amount of any
benefits to which a Participant may be entitled.” (R. at ML_1629.) The
Plan also states that the Committee shall “provide for a review that does
not afford deference to the initial adverse benefit determination and that is
conducted by the Committee, which is neither the individual who made the
adverse benefit determination that is the subject of the appeal, nor the
subordinate of such individual.” (R. at ML_1626.)
The Plan is self-insured by SCJ and participating Employers.
Benefits are funded by contributions made by SCJ and participating
Employers and by Eligible Employees.

(R. at ML_1630.)

At all times

material to this case, the Plan has remained in full force and effect.
Procedural History Related to Karul’s First 24 Months of Disability
Karul is 59; she has a bachelor’s degree in biology and a chemistry
minor, and she has worked primarily in the chemical research engineering
field. At SCJ, Karul’s title was Research Scientist Engineer.
Karul filed her claim for LTD benefits under the Plan on October 27,
2009.

(R. at ML_1955-56, 1976.)

During her initial interview, Karul

described a long history of occupational asthma that had worsened over
time.

(R. at ML_1974.)

In 2004, her symptoms increased when SCJ
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transferred her to the Air Care Division in Racine. (R. at ML_1975.) In
2005, Karul developed coughing and wheezing and was unable to sniff
fragrances.

(Id.)

In 2006, Karul developed increasing itchiness on her

arms. (Id.) In 2008, Karul was off of work for a time and her symptoms
improved; however, when she returned to work her itchiness was worse
than before. (R. at ML_1975-76.) By mid-January 2009, Karul developed
nausea and vomiting and was getting sick at work. (R. at ML_1976.)
In March 2009, Karul got hot, broke out in a sweat, her face became
blotchy and red, and she felt faint. (Id.) Karul believed her symptoms
were caused by an SCJ product sprayed near her. (Id.) The following day
Karul was wheezing, coughing and had blurry vision. (Id.) She attempted
to return to work, but she was advised to avoid chemicals by both SCJ’s
occupational physician and her allergist, Dr. Jordan Fink (“Fink”). (R. at
ML_1976-77.) As of October 2009, Karul was 5’8” and weighed about 223
pounds. (R. at ML_1731.)
In November 2009 Karul informed MetLife that she was on an
extended visit to California, where she was raised, and that when she was
in California, “she ha[d] no problems.” (R. at ML_1977.) Karul stated that
“there [wa]sn’t anything special about being in California, [it was] just out
of the area where she work[ed] in Racine.” (Id.) Karul stated that Fink
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was planning on a laryngoscopy “to help determine what [was] causing her
symptoms.”

(R. at ML_1977-78.)

Karul indicated to MetLife that she

hoped SCJ would transfer her to a different division in a different state and
that she wanted to return to work. (R. at ML_1978; 1985.)
MetLife determined that Karul was unable to perform the duties of
her own occupation as of November 25, 2009, and approved her application
for LTD benefits following the requisite elimination period under the Plan.
(R. at ML_1811.)
As required by the Plan, Karul applied to the Social Security
Administration (“SSA”) for SSDI benefits in April 2010, identifying her
disabling condition as chemical exposure. (R. at ML_0729-50.) The SSA
denied Karul’s claim. (R. at ML_2726.) After an appeal by Karul, the SSA
determined that she became disabled as of May 19, 2010, and awarded her
SSDI benefits in the amount of $2,254 per month beginning in November
2010. (R. at ML_0565.)
During 2010 and 2011, MetLife periodically reviewed Karul’s
eligibility for benefits and determined that she remained totally disabled
from her own occupation as defined by the Plan. (R. at ML_1418-19, 1639,
2061-62, 2085, 2167-69.)
After receiving LTD benefits for 24 months, the standard of
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disability applicable to Karul’s claim changed from the inability to perform
her “own occupation” to the inability to perform “any reasonable
occupation,” meaning any occupation for which she could “reasonably
become fitted” and which would pay her at least 60% of her pre-disability
earnings.
In November 2011, MetLife notified Karul that pursuant to the
terms of the Plan it was reviewing her eligibility for benefits beyond
November 25, 2011, under the “any reasonable occupation” standard of
disability.

(R. at ML_1249.)

In March 2012, MetLife explained its

determination that Karul was no longer “totally disabled” as defined by the
Plan and that her benefits would end effective April 1, 2012.
ML_1097-1100.)

(R. at

In February 2013, Karul appealed the Defendants’

adverse benefits determination. (R. at ML_0532.)
Karul’s Claims Related to Chemical Sensitivity
Karul’s medical record reflects treatment for chemical sensitivity as
early as March 2009, continuing throughout 2009 (R. at ML_1894-95, 0497500, 0503-04, 1726) and from April 2010 through January 2011 (R. at
ML_0689, 0890, 1695-97, 1709).

Karul’s symptoms related to chemical

sensitivity include chest congestion, cough, asthma, blurred vision, sore
throat, wheezing, headaches, shortness of breath, skin rash, fatigue, and
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shakiness. (R. at ML_0422, 0543-44, 0594, 0598, 0604, 0689, 0890, 1709.)
Karul’s doctors during this period were Fink, Dr. Thuthuy Phamle
(Phamle), and Dr. Monica Vasudev, M.D. (R. at ML_0688-91, 0890, 169597, 1709, 1726.)
On two occasions, in October and December 2009, Karul reported
that her symptoms “improved” when she went to California.
ML_1690, 1726.)

(R. at

Additionally, in October 2010, Fink explained to Dr.

Jennifer J. Brittig that Karul was “relieved” of her asthma symptoms while
in California. (R. at ML_1709.)
Karul’s most recent visit to the emergency room due to “chronic lung
disease exacerbation” and “chronic sinusitis” occurred in January 2011. (R.
at ML_0422.) However, Karul continued to receive consistent treatment
with prescription medication — including Triamcinolone, Singulair and
Clarinex — for her allergic and chemical induced asthma well after
January 2011. (R. at ML_0262, 0309, 0394, 0401, 1462.)
Karul had an office visit with Phamle in February 2011 for
treatment related to acute sinusitis and acute bronchitis, and for follow-up
regarding a January 2011 emergency room visit due to wheezing and
difficulty breathing. (R. at ML_1462-65, 0422.)
In April 2011 allergic reactions to nine chemicals were reported. (R.
- 11 -

at ML_0179.)
Karul visited Phamle in September 2011 for nasal congestion but
was found to have clear lungs and non-labored respirations.
ML_0413-416.)

(R. at

Phamle prescribed over the counter medications. (Id.)

After physically examining Karul, Phamle listed “acute bacterial sinusitis”
among her diagnoses. (Id.)
In December 2011, Karul saw Dr. Adric Huynh (“Huynh”), a family
medicine physician in the same medical group as Phamle, for medication
refills and referrals.

(R. at ML_0387.)

Karul reported chronic fatigue

syndrome and chronic pain syndrome, chemically induced respiratory
sensitivity, and chronic migraines. Huynh documented Karul’s reports of
weakness and fatigue and his finding of muscle pain upon examination.
Absent were nasal congestion, sore throat, shortness of breath, cough,
hemoptysis, wheezing, nausea, vomiting, diarrhea, back or
rash, and any pruritus.

(See R. at ML_0387-88.)

neck pain,

In addition, Huynh

documented the absence of any reactions by Karul to four chemical
allergens. (R. at ML_0388.) Huynh prescribed a number of medications,
including acetaminophen-oxycodone and oxycodone. (Id.) He also set up
an appointment for Karul with Dr. David Chow (“Chow”), a pain
management/spine specialist.
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In January 2013, Fink completed a Residual Functional Capacity
Questionnaire, reporting that Karul’s “allergic and chemical induced
asthma” condition was “static,” and “good with medication and avoidance.”
(R. at ML_0594.)
Karul’s Claims Related To Back Pain
In June 2010, Karul was seen by Dr. Thomas Stauss (“Stauss”),
M.D., of Advance Pain Management in Racine, Wisconsin, for complaints
of lower back pain and bilateral sciatica. A computed tomography (“CT”)
was performed which disclosed disc disease, including loss of disc height,
shallow disc protrusions, mild central stenosis, and lower lumber
arthopathy. (Id. at ML_1449.)
In August 2010, Stauss proceeded with a repeat epidural steroid
injection for low back pain, lumbar radiculopathy, lumbar/lumbosacral
disc degeneration, and lumbosacral facet joint pain.

Stauss noted as

follows:
Virginia Karul is a 55-year-old white female with
a history of lumbar diskopathy and spondylopathy
with chronic low back and left greater than right
lower extremity pain. She has had 75-80%
residual benefit from the second lumbar epidural
steroid injection at the L5-S1 level performed on
07/23/2010. The patient is planning on a long trip
to California and wishes to proceed with a third
injection. There are no complications from the
- 13 -

previous injection. There is no change in her pain
location. A recently performed EMG reveals
evidence of a bilateral L5 radiculopathy, likely
chronic.
(R. at ML_1455.) Stauss rated Karul as 38 out of 60 on the oswestry
scale,3 indicating “severe functional impairment.”

He also noted that

Karul had benefitted from using a fentanyl patch for headaches and he
found it reasonable to continue with the fentanyl patch with oxycodone for
breakthrough pain. (Id.)
In April 2011, Karul saw Sabahat Ali (“Ali”), PA-C, under the
supervision of/or collaboration with Stauss, regarding low back pain,
lumbar

radiculopathy,

lumbar/lumbosacral

disc

degeneration,

and

lumbosacral facet joint pain. Ali’s report indicates,
Patient describes her low back pain as burning,
tingling, numbness, pressure, aching. Patient
reports that the pain score at best is 6/10, at worst
is 10/10 and currently is 8/10. Pain is aggravated
by walking, sitting. Pain gets better by lying
down, ice. She has numbness in her bilateral feet
and RLE. . . . The pain interferes with sleep, daily
activities. The pain makes the patient feel
frustrated, angry.
Since the last visit, the initial pain has not
changed. Patient denies any new type of pain
The Oswestry Disability Index (also known as the Oswestry Low Back Pain
Disability Questionnaire) is a tool that researchers and disability evaluators use to
measure a patient’s permanent functional disability.
3

See https://www.workcover.com/ (last visited Dec. 29, 2014.)

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since the last visit. . . . With current medication,
she denies any improvement in activities of daily
living.
(R. at ML_0178.) Ali rated Karul as 48 out of 60 on the oswestry scale,
indicating “severe functional impairment.” (R. at ML_0180.)
Upon a physical examination of the lumbar spine Ali noted,
“Tenderness in bilateral sacroiliac joint. Range of motion is moderately
reduced. Pain with extension.” (R. at ML_0179.) Ali’s “Assessment,” was
as follows:
Patient w/chronic cervicalgia and associated
[headaches] as well as intermittent, debilitating
[lower back] and [lower extremity] pain. . . . The
patient presents today after a 6 month absence.
She reports that she has moved back from
California due to issues surrounding her social
security disability. She reports that she now has a
lawyer and will be appealing the denial. . . . She
reports that since her last LESI (lumbar epidural
steroid injection) her radicular pain has been
doing well, but she has increased low back pain
that radiates to the hips. She will be scheduled for
[bilateral] SI joint injections.
(R. at ML_0180.)
Later in 2011, Karul received treatment at the Racine pain
management clinic on April 25, May 6, May 24, June 9, June 28, July 26,
and August 9 (R. at ML_0170, 0174, 0182, 0184, 0186, 0188, 0190) and she
was seen by Stauss on five of those occasions.
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On August 9, Stauss

treated Karul for chronic neck pain by administering radiofrequency
neurolysis. (R. at ML_0182, 0192.) Between August and December 2011,
Karul also received consistent treatment for chronic back pain with
prescription medications. (R. at ML_0400-03, 0414-16, 1291.)
About once a month from January through July 2012, Karul saw
Chow for complaints relating to back pain and for refills of pain
medications, including Percocet and Valium. (R. at ML_0262-80.)

As of

March 2012, Karul was 5’7” and weighed 225 pounds. (R. at ML_0273.)
By July 2012, she weighed 217 pounds. (R. at ML_0273.)
Karul’s Claims Related To Headaches
As of October 2008, Karul began receiving treatment for headaches
(R. at ML_1300.) At an office visit with Dr. Lawrence Tolson, M.D., in
April 2009, Karul reported a 30-year history of headaches, including
occasional migraines.

(R. at ML_1894.)

She stated that she had daily

headaches of varying intensity for several years which had become “more
difficult to control” following her occupational chemical exposures. (R. at
ML_1894-95.)
In November 2009, Karul was treated in urgent care for a migraine
headache, localized behind both eyes with nausea, photophobia, and blurry
vision, that had lasted over five days. (R. at ML_0709-10.) Dr. Theresa
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Mantolo, M.D,. diagnosed a classic migraine and provided her with pain
medication. (R. at ML_0711.)
In January 2010, Phamle saw Karul regarding her chronic migraine
condition, and noted: “The course is worsening and poor response to
treatment. The effect on daily activities is change in activity level and
change in in sleeping patterns. Migraines treated with oxycodone for last 78 years . . . [t]he patient presents with photophobia, nausea and dizziness.”
(R. at ML_0703.) Phamle recommended that Karul continue treating her
migraines with oxycodone and referred her to her primary care provider for
ongoing migraine management. (R at ML_0704.) In April 2010, Phamle
saw Karul for her chronic migraine condition and “chemical induced
respiratory distress” and refilled her oxycodone prescription.
ML_0688-90.)

(R. at

In January 2011, Karul had another office visit with

Phamle for complaints of nasal congestion, hoarseness and wheezing.
Phamle also noted “Chronic Migraine without Aura” as a diagnosis and
refilled her oxycodone prescription. (R. at ML_0428-31.)
Dr. Tal Moskowitz (“Moskowitz”), a neurologist, saw Karul in July
and August 2011 for complaints of headaches and blurred vision. (R. at
ML_1291-93.) In July, Moskowitz’s impression included “[m]igraines and
sinusitis history” and “[v]isual disturbance.”
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(R. at ML_1295.)

His

treatment plan included various laboratory tests. (Id.) At Karul’s August
office visit, Moskowitz reviewed Karul’s lab results. Moskowtiz’s clinical
impression included “[d]aily classic migraines ongoing.” (R. at ML_129192.) Moskowitz noted low B12 levels and recommended the following as
part of Karul’s treatment plan:
Continue receiving monthly B12 injections
Gastrointestinal testing to rule out certain causes
of low B12
Magnesium supplement tablets (slow-mag 65 mg)
Keep a headache diary “to monitor any response to
this gentle combination of migraine prophylaxis
agent.”
Recommended a
December 2011.

follow-up

appointment

in

(R. at ML_1292.)
Karul received radiofrequency ablation (“RFA”) treatment for her
migraine headaches in early 2011, and as of July was being scheduled for
a repeat procedure. (R. at ML_0172.) Karul began to treat her migraines
with oxycodone in approximately 2002, and continued treatment with this
medication as of July 2011. (R. at ML_0703, 0173.)
Karul was referred to Dr. Timothy Wei (“Wei”) in December 2011 for
her migraine headaches. (R. at ML_0833-35.) Wei saw Karul in March

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2012 and again in May 2012, after Karul had received notice that her
claim for continuing LTD benefits was being reviewed. (R. at ML_016064.)
Karul’s Claims Related To Knee Pain
Orthopedic surgeon Dr. Anath Shenoy’s (“Shenoy”) December 2011
medical records indicate that Karul reported left knee pain symptoms as of
August 2011. (R. at ML_1176-79.) An x-ray of Karul’s left knee revealed
patellofemoral osteoarthritis and some irregularity of the posterior surface
of the patella. (R. at ML_1178.) Shenoy opined that Karul’s left knee pain
was due to inflammation of the left knee joint “secondary to osteoarthritis
and trauma.” (R. at ML_1179.) As of December 2011, Karul weighed 225
pounds. (R. at ML_1177.)
The Plan’s Review of Karul’s Claim for Benefits Under the Any
Reasonable Occupation Standard
Initial Review
Because Karul’s initial 24 months of LTD benefits were due to
expire, MetLife informed her that her eligibility for benefits would be
reviewed as of November 25, 2011, under the any reasonable occupation
standard as required by the Plan.

(R. at ML_1249.) Her LTD benefits

continued while her eligibility was under review.

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As a part of the review, Swartz conducted an “independent” medical
evaluation of Karul in February 2012.

(R. at ML_1151-60.)

Swartz

performed an in-person physical examination of Karul, reviewed her
medical records, and concluded that she was capable of performing
sedentary work. Swartz reported that Karul was 5’6¼” and weighed 227
pounds. (R. at ML_1156.)
Swartz’s report includes the following grounds for his conclusion:
With respect to diagnoses by her treating
physician, I find no evidence of lumbar
radiculopathy and no evidence of cervical
radiculopathy or brachial radiculitis.
There is no evidence of any nerve root or spinal
cord compression, either in the cervical or lumbar
spines.
With respect to the recommendations by Dr.
Stauss, who stated she could not perform
sedentary work, I would disagree.
With respect to Dr. Stauss’ recommendations that
there would be no bending, twisting or squatting, I
do not agree with that. With respect to reaching
for only 15 minutes over two hours, I do not agree
with those recommendations.
With respect to her restrictions I would note that I
found a normal range of motion of the cervical and
lumbar spines. I did not find any objective
neurologic findings, I found no tenderness or
spasm in the cervical spine and there was only
mild tenderness in most of the cervical spine and
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without any spasm.
I found she squatted well with both knees and she
walked well without a limp and could stand well
on her toes and heels. Basically her exam was
unremarkable.
(R. at ML_1159.)
Swartz’s report further states:
With respect to her current restrictions, and her
physical capacity, I would find that Ms. Karul
during an eight hour work day, and [sic] is able to
sit up to two hours at a time and up to eight hours
during the course of a day. I find she is capable of
standing up to one and [a] half hours at a time, for
a total of up to five and a half hours during the
course of a day. I find she is capable of walking up
to 20 minutes at a time and up to four hours
during the course of a day.
I find she is capable of lifting and carrying
continuously up to five pounds; she can frequently
lift and carry up to 10 pounds and occasionally can
lift and carry up to 25 pounds.
....
I find she can occasionally bend/squat/kneel/climb/
and frequently reach above shoulder level. She
should avoid crawling.
She should avoid unprotected heights or being
around moving machinery. She should avoid
marked exposure to marked changes of
temperature and humidity. With respect to
exposure to dust, fumes and gases, this appears to
be her major complaints; however, I will defer this
- 21 -

issue to the appropriate specialist.
(R. at ML_1159-60.)
In late February 2012, a nurse consultant acting on behalf of
MetLife forwarded Swartz’s report to Chow for review and comment. (R. at
ML_1126-27.) MetLife did not receive a response from Chow.
In March 2012, vocational rehabilitation consultant James Merline
(“Merline”) conducted an employability assessment and labor market
analysis (“LMA)” relating to Karul’s benefits eligibility.

He found that

based on her training, education, and experience, she had transferable
skills for other occupations and the ability to work at the sedentary level of
physical exertion with restrictions and limitations as stated in the medical
history section of the assessment.

He identified three reasonable

occupations in Antioch, California, where Karul was residing at the time,
for which she was qualified.

(R. at ML_1113-15.)

The pay for some

positions Merline identified far exceeded 60% of Karul’s pre-disability
income.
In March 2012, MetLife notified Karul that it had determined she
was no longer “totally disabled” under the terms of the Plan.

(R. at

ML_1097-1100.) MetLife’s letter stated that the medical evidence did not
support a finding that she was unable to perform any reasonable
- 22 -

occupation; and it discussed the medical documentation contained in her
claim file, Swartz’s report, and Merline’s assessment — including the
employment alternatives qualifying as “reasonable occupations” under the
Plan.

The letter noted “there [was] no current medical information

explaining the severity of [Karul’s] migraines” (R. at ML_1098) and
indicated that it had considered Karul’s eligibility for SSDI benefits,
although MetLife “[did] not know what SSA based their determination on,”
and that the SSA’s determination was not binding on it. (R. at ML_1099).
The letter included information regarding the administrative appeals
process.
Karul’s Appeal
In September 2012, Karul’s attorney informed MetLife that Karul
would appeal, requested information from MetLife’s file, and sought a 90day extension to file the appeal. (R. at ML_1084.) In November, MetLife
provided Karul with a complete copy of her claim file, including Swartz’s
report and curriculum vitae; informed Karul that she could obtain the Plan
documents from SCJ; and extended the time to appeal as requested. (R. at
ML_1057-58.)
In February 2013, the Defendants received Karul’s appeal, which
included information relating to her education, training, and experience;
- 23 -

new medical records; and her SSA file. (R. at ML_0003, 0532-39.) The
medical records and notes submitted by Karul related primarily to March
through September 2012 and were from various providers, including Wei,
Chow, Phamle, Stauss/Nancy Spangler (“Spangler”) PA-C and Dr. Diana
Marar (“Marar”).
On appeal, Karul identified various conditions as grounds for her

benefits eligibility, including back, knee and chest pain; sciatica;
migraines; visual impairment; and nausea and wheezing.

(R. at

ML_0537.) She also relied upon her receipt of SSDI benefits.
Karul’s claim file was referred to Rooke who reviewed and
summarized Karul’s medical records, including those submitted on appeal,
contacted and attempted to obtain information from Karul’s treatment
providers, and prepared a report. (R. at ML_0042-51.)
Phamle told Rooke that she had not seen Karul for over a year and
was not aware of Karul’s current status. (R. at ML_0043.) Phamle related
that when she saw Karul she had migraines; she also had chest pain and
stents placed, so she would have had cardiac limitations at that time; and
she was being treated for a knee injury. (Id.)
Marar related that Karul reported back and neck pain and had
recently received a cervical spinal stimulator adjustment. (Id.) Rooke
- 24 -

asked whether Karul’s main problem was back and neck pain; Marar said
that she had only seen Karul three times and was trying to get a handle
on Karul’s problems and help her to cut down on her pain medications
because she did not like to give too much pain medication. Marar also
related that Karul had migraine headaches and wore sunglasses
constantly, including in the exam room, and that Karul seemed willing to
work with Marar to get better. Because she had only seen Karul three
times, Marar declined to provide an opinion regarding Karul’s ability to sit
at a desk and work. However, Marar stated that Karul’s pain seemed
genuine because she moved slowly and complained of pain when moving
from the chair to the exam table. According to Marar, Karul complied
with treatment. (R. at ML_0043-44.)
Wei told Rooke that he did not have a clear diagnosis for Karul and
had not seen her for almost a year. (R. at ML_0044.) Chow stated that he
could not speak about Karul as he had not seen her since July 2012. (Id.)
Stauss told Rooke that a recent CT scan of Karul’s cervical and
lumbar spine showed that Karul had very severe multi-level facet joint
arthropathy

and

severe

multi-level

neuroforaminal

stenosis,

thus

providing objective findings to support her complaints of pain.

(Id.)

Stauss stated that Karul could not lift or carry more than required by a
- 25 -

sedentary job, could not lift more than about 10 pounds on a consistent
basis, and could not sit for very long without changing positions. Stauss
indicated that Karul might be able to work four hours a day, but not eighthour days.

Rooke asked if the only source of Karul’s pain was facet

arthropathy because there was no documentation of nerve compression.
Stauss said a CT scan is the best way to determine foraminal stenosis, and
the scan showed bony encroachment on the nerves, so Karul did have
nerve compression and some radiculopathy. He also said that ablation
therapy was not a cure and should be repeated once a year.
considering an intrathecal pump to manage her pain.

He was

Rooke asked if

Karul was compliant with treatment, and Stauss said that she was a good
patient. (R. at ML_0044-45.)
In their conversations with Rooke, none of Karul’s treating
physicians identified any side effects or limitations as a result of her
medications. (Id.)
Based on her review of the records and the information she obtained
from Karul’s treating physicians, Rooke found that the medical
information supported some physical functional limitations beyond March
31, 2012. (R. at ML_0046.) Rooke’s report states:
[Karul] has documented facet arthropathy and
- 26 -

should not lift more than 25 pounds occasionally
and 10 pounds frequently. She can sit for an 8
hour day with breaks to change positions or stand
and stretch at will. She was diagnosed with
chemical induced occupational asthma but there
was no documentation of respiratory impairment
or decreased pulmonary function or reaction to
any specific chemicals. She complained of
headaches triggered by multiple chemical
sensitivities which she continued to have almost 4
years after she stopped working. There is no
justification for limitations or restrictions related
to chemical exposures at work because [Karul]
continued to have the same symptoms outside the
workplace.
(Id.)
Rooke’s report and opinion also contained the following information
regarding Karul’s conditions and treatment:
On 4/18/12 [Karul] had a follow-up visit with Pain
Management/Spine Specialist . . . Chow at the
California Spine Center for evaluation of bilateral
neck pain, low back pain, and thoracic back pain. .
. . The impression/differential diagnosis was:
cervical disc protrusion, grade 1 spondylolisthesis
at C2 on C3, C3 on C4 and C4 on C5, cervical
degenerative radiculopathy, cervical degenerative
disc disease at C2 to C6, cervical stenosis, cervical
facet joint arthropathy, cervical radiculopathy,
metallic artifact from implanted spinal cord
stimulator at C2-C3 and C3-C4 levels, lumbar
disc protrusion, lumbar stenosis, disc protrusion,
lumbar stenosis, lumbar facet joint arthropathy,
bilateral upper extremity and lower extremity
peripheral neuropathy, hypertension, Barrett’s
esophagus,
chronic
headaches,
migraine
- 27 -

headaches and bilateral TMS. . . . The only
significant clinical difference in the visits was
improved blood pressure control at the last 2 visits
and prescription for a Flector patch. There was
no medical documentation of an impairment that
would prevent [Karul] from sitting for an 8 hour
period with freedom to change her position as
needed and take breaks to stand and stretch as
needed, and a lifting limit of 25 pounds
occasionally and 10 pounds frequently.
(R. at ML_0047.)
On 5/18/12 [Karul] had cardiac catheterization
which found severe but focal 3-vessel disease
involving the left anterior descending artery, mid
right coronary artery and proximal obtuse
marginal branch. She had percutaneous balloon
angioplasty and stenting with 2 stents placed in
the mid left anterior descending artery with
decreased blockage from 80% to 0%. On 5/21/12
catheterization was repeated and a single stent
was place [sic] in the [] right coronary artery that
resolved blockage from 80% to 0%. She was
discharged in stable condition. . . . There was
actually no documentation of physical functional
limitations during this hospital stay. The only
rash noted was a small lesion on her arm. There
was no documentation of breathing difficulty or
any toxic reactions in a hospital setting where
multiple chemicals are used. She was able to
exercise for 6 minutes and 15 seconds and achieve
7 METS of exercise before the test was stopped for
chest and left arm pain as well as fatigue. Postcatheterization and stenting with increased blood
flow to her heart, exercise tolerance without chest
pain would be expected to improve.
(R. at ML_0048.)

- 28 -

On 5/29/12 [Karul] saw . . . Phamle for hospital
visit follow-up. . . . On physical examination no
height or weight was documented and no
abnormalities were noted. The diagnoses were
atherosclerotic heart disease with angina pectoris,
essential hypertension, chronic migraines without
aura, essential hyperglyceridemia and subjective
visual disturbance. Labs were ordered and
mediations adjusted. There was no documentation
of impairment or physical functional limitations.
(Id.)
On 9/27/12 [Karul] had a follow-up visit with. . .
Stauss/ . . . Spangler for evaluation of low back
pain. . . . On physical exam it was noted that
[Karul] “sits comfortably in chair,” rises slowly to
stand, and walks with an antalgic gait. . . . It was
noted that [Karul] sat comfortably; there was no
documentation of an impairment that would
prevent her from sitting at a desk with freedom to
change positions and move about at will as needed
to reli[e]ve discomfort.
(R. at ML_0048-49.)
On 1/22/13 . . . Fink completed a Residual
Functional Capacity Questionnaire. . . . He stated
that there was no pain and the only objective
finding noted was discomfort when sitting. Review
of his notes indicated that the discomfort was due
to sciatic pain not respiratory distress or
wheezing. He stated that [Karul’s] ability to work
depended on her environment and respiratory
status. There was no documentation of observed
respiratory distress or decreased pulmonary
function in any of her medical records.
(R. at ML_0049.)
- 29 -

Rooke noted that although many of Karul’s complaints were obesity
related, there was no mention of obesity in the records nor any medical
advice related to obesity. (R. at ML_0050.)
MetLife provided copies of Rooke’s report to Karul and her treating
physicians. (R. at ML_0082-137.) MetLife informed the physicians that if
they did not agree with the information contained in the report they
should submit clinical evidence to support their own conclusions. Marar
indicated that she would be sending Karul to a specialist before
submitting any response, but MetLife never received any additional
information from Marar or any of Karul’s other treating physicians. (R. at
ML_0007.)
At MetLife’s request, Rooke provided an addendum to her report in
which she opined:
Permanent removal from a workplace is only
justified if there is a specific documented exposure
in the workplace and the worker’s condition
significantly improves after removal. This is not
the case with [Karul]; she continues to report
environmental chemical sensitivity that is
unrelated to the workplace. There is no
justification for permanent removal from any
workplace on the basis of possible exposure to nonspecific irritant chemicals.
(ML_0038.)

- 30 -

The addendum also responded to a number of explicit follow-up
inquiries from MetLife regarding Karul’s chemical sensitivity complaints:
.2. Regardless of whether any exposure to irritant
chemicals would occur at work, at home or
otherwise, please opine as to whether the
information supports any functional restrictions or
limitations (and the extent of those restrictions
and limitations) for the period from on or around
3/31/2012 forward. Functional limitations include
any reduction in ability to work full time.
“No, the medical documentation reviewed does not
support functional limitations or work restrictions
due to [Karul’s] symptoms and complaints of
chemical sensitivity.”
(Id.)
3. If the information supports functional
limitations, please specify the types and scope of
the limitations [Karul] would have. Describe the
specific, clinical finding/data or other medical
information noted in the records in support of
functional limitations. Please list each document
referred to above including provider’s name,
specialty, date of visit, clinical finding.
“The medical documentation does not support
functional limitations due to chemical sensitivity.”
(R. at ML_0038-0039.)
4. If the information does not support functional
limitations, please describe using the format set
forth in #3 above.
In answer to question 4, Rooke summarized the medical records from May
11, April 18, May 16, May 29 and September 27, 2012, and January 22,
- 31 -

2013. Each summary notes no clinical evidence or medical documentation
of impairment from chemical sensitivity. (R. at ML_0039-40.)
5. With respect to [Karul’s] chemical sensitivityrelated conditions, was [Karul] receiving
appropriate care and treatment for such
conditions for the time period specified?
“Yes, there were no chemical sensitivity-related
conditions documented in the medical records
reviewed. There were no signs of respiratory
distress due to chemical exposure such as
dyspnea, coryza or wheezing. [Karul] reported a
rash but there [was] no documented [] dermatitis
or any skin lesions that would cause impairment.
[Karul’s] headaches were documented as migraine
headaches and photophobia was attributed to
migraines not chemical sensitivity.”
(R. at ML_0040.)

Rooke’s addendum contains her summary of Karul’s

medical records and states that she reviewed Karul’s medical records and
her SSA file. (R. at ML_0039; 0042.)
MetLife noted that the SSA file included medical records, and it
asked Rooke to confirm whether, as part of her review of the records, she
reviewed the SSA file. Rooke responded:
[A]ll of the medical records provided were
reviewed several times and repeat review does not
change my prior opinion. In her application for
SSDI benefits [Karul] stated that the condition
that limited her ability to work was chemicalinduced respiratory illness, sciatica, migraines
and blurry vision. On 3/12/10 [Karul] had a CT
scan of the maxillofacial bones and mandible with
- 32 -

contrast which showed previous sinus surgery,
mild paranasal sinus mucosal disease and a
possible nasal polyp.
On 8/12/10 Medical
Consultant, E. Christian M.D. completed a
Physical
Residual
Functional
Capacity
Assessment for SSA in which the primary
diagnosis was “other diseases of the respiratory
system”, migraine and “HNP.” There were no
external limitations, Dr. Christian stated that
[Karul] could frequently climb ramps/stairs but
never ladder/rope or scaffolds. She could balance,
stoop, kneel, and crouch but never crawl. There
were no manipulative, visual or communicative
limitations but there were restrictions on even
moderate exposure to fumes, odors, dusts, gases,
and poor ventilation. [Karul] was advised to avoid
concentrated exposure to hazards such as
machinery or heights. Regarding the symptoms
alleged by [Karul], Dr. Christian stated that:
Essentially all physical exams were normal and
the category he chose was: The severity and
duration of the symptoms, in his judgment, was
disproportionate to the expected severity or
expected duration on the basis of the [Karul’s]
medically determinable impairment. On 8/13/10
the SSDI claim was denied based on medical
records that included notes from Allergist .Dr.
Jordan Fink. This decision was appealed, and on
10/29/11 SSDI benefits were awarded effective
from 11/2010. This was prior to the current
review period after 3/31/12. There was no medical
documentation
of
respiratory
disease
or
impairment from a chemical-induced “disorder of
the respiratory system” or other chemical
sensitivity in the medical records available from
review from 3/31/2012 to the present.

- 33 -

(R. at ML_0042.) The addendum confirmed Rooke’s original report finding
that Karul did not have functional limitations preventing her from
working in any occupation. (Id.)
At MetLife’s request, a second labor market survey was completed
by Rehabilitation Consultant Renee Lange, MS, CRC.

This survey

described and evaluated multiple potential employment opportunities for
Karul and stated, “[v]arious employers were identified in the Antioch, CA
area for research associate, research assistant, research and development
director, consultant and related positions.

It would appear that the

research associate positions would meet with . . . Karul’s restrictions and
wage level.” (R. at ML_0058.)
After Karul moved to Council Bluffs, Iowa, a separate employability
assessment was conducted by Vocational Rehabilitation Consultant Faith
Rossworn (“Rossworn”), MS, CRC. (R. at ML_0031-32.) As part of this
assessment, Rossworn identified the position of Research Assistant II,
with a median annual wage position of $106,360, as one for which Karul
was qualified and which could be performed within her restrictions and
limitations. Rossworn’s assessment states:
Karul has the ability to work within the
restrictions and limitations as stated above in the
Medical History section. An EA and Labor Market
- 34 -

Analysis (LMA) were performed which identified
alternate occupations for which she is qualified
and are found to exist in her local economy at
commensurate wage of $55,556.80 per year.
(R. at ML_0032.)
The Committee conducted an independent review of Karul’s claim
for LTD benefits under the any reasonable occupation standard.

In

conducting its review, Karul’s entire claim file, including her medical
records, SSA file, and the submissions of her attorney, was available to the
Committee. (R. at ML_2611, 2616.)
The Committee’s condensed summary of the record materials
contains notes throughout the margins.

(R. at ML_2613-17, ML_2637,

ML_2641-42, ML_266, ML_2729-31.) The minutes from the Committee’s
review meeting note that it “reviewed and discussed the documentation
supplied for this case and agree[d] that medical findings [were] not
sufficient to indicate [Karul] could not perform a sedentary position with
restrictions.” (R. at ML_2762.)
On July 23, 2013, the Committee unanimously determined that
Karul was not disabled as defined by the Plan after March 31, 2012 (R. at
ML_0002) and sent a letter to Karul which stated, in part:
We acknowledge and considered Ms. Karul’s

continued symptoms and complaints. While we do
- 35 -

not discount that she may continue to experience
symptoms, complaints and some restrictions and
limitations, we are without sufficient clinical
evidence supporting that her symptoms prevented
Ms. Karul from performing work at any
reasonable occupation for which she was
reasonably qualified taking into account her
training, education and experience from April 1,
2012 forward. While some restrictions and
limitations were supported, alternate gainful
occupations were identified that she could
perform.
Although there may have been a limited period of
time during which additional restrictions and
limitations were supported based on Ms. Karul’s
cardiac condition, resulting in her May 2012
hospitalization, she was discharged in stable
condition and it was noted that the blockage at
issue improved from 80% to 0% with the
placement of the stent on May 18, 2012, with the
same outcome from the additional stent that was
placed on May 21, 2012. Ms. Karul was
hemodynamically stable after the second
procedure and was discharged the next day in
stable condition. While we acknowledge that Ms.
Karul would not have been able to work during
her May 2012 hospitalization, we are without
sufficient clinical evidence supporting that she
remained
impaired
after
her
discharge.
Additionally, there was insufficient medical
evidence to support that she required restrictions
and limitations in regards to her cardiac condition
prior to her May 2012 hospitalization.
(R. at ML_0007.)
The letter addressed the SSA’s grant of SSDI benefits, which Karul
raised in her appeal, noting that the SSA had initially denied Karul’s
- 36 -

request on the grounds that her “condition [was] not severe enough to
keep [her] from working.” (R. at ML_0008.)

The Committee further

explained that Rooke was unable to locate any information to provide a
medical basis for the SSA’s decision to reverse itself on appeal, that the
standard applicable to the SSA’s determination regarding benefits is
based upon the evaluation of different factors than the analysis required
under the Plan, and that the SSA’s determination is not binding on the
Plan.
The Committee concluded that the available medical information
failed to support a finding of disability so as to preclude Karul from
performing any reasonable occupation from April 1, 2012 forward. (R. at
ML_0008-9.) The Committee stated that Karul “did not meet the Plan’s
definition of disability after March 31, 2012, and that the decision to
terminate her Plan benefits as of April 1, 2012 was appropriate.” (R. at
ML_0009.)
Analysis
The

Defendants

contend

that

substantial

evidence

in

the

administrative record supports the determination that Karul is not “totally
disabled” as defined by the Plan, is able to perform the duties of “any
reasonable occupation,” and that conclusion was not arbitrary and
- 37 -

capricious and should be upheld by this Court. (Defs. Jt. Br. Mot. Rule 52
or, alternatively, Rule 56, 2.) (ECF No. 30.)
Karul contends that the Defendants’ decision to terminate disability
benefits was arbitrary and capricious because they failed to understand the
basic facts underlying her appeal, procured opinions from biased medical
consultants, and ignored crucial evidence that she provided.

She also

maintains that the Defendants failed to adequately consider the favorable
disability determination from the SSA. (Pl. Opp’n Mem. 25-26.) (ECF No.
32.)
Where, as here, the plan grants the administrator the discretion to
determine eligibility and construe the plan terms, the Court reviews the
administrator’s decision under an arbitrary and capricious standard.
Wetzler v. Ill. CPA Soc’y & Found. Ret. Income Plan, 586 F.3d 1053, 1057
(7th Cir. 2009). Under this standard “an administrator’s interpretation is
given great deference and will not be disturbed if it is based on a
reasonable interpretation of the plan's language.”

Id.

In evaluating

whether the administrator's decision was arbitrary and capricious the
Court may consider, among other factors, the administrator’s structural
conflict of interest and the process afforded the parties.

Chalmers v.

Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995); see also Majeski v.
- 38 -

Metro. Life Ins. Co., 590 F.3d 478, 482 (7th Cir. 2009) (the gravity of the
administrator’s conflict of interest may be “inferred from the circumstances
of the case, including the reasonableness of the procedures by which the
plan administrator decided the claim”).
Review under this deferential standard is not “a rubber stamp,”
however, and upon review a termination will not be upheld if “there is an
absence of reasoning in the record to support it,” Hackett v. Xerox Corp.
Long–Term Disability Income Plan, 315 F.3d 771, 774-75 (7th Cir. 2003).
ERISA also requires that “specific reasons for denial be communicated to
[Karul] and that [Karul] be afforded an opportunity for full and fair review
by the administrator.”

Tate v. Long Term Disability Plan for Salaried

Employees of Champion Int’l Corp. No. 506, 545 F.3d 555, 559 (7th Cir.
2008),(internal quotations omitted), abrogated on other grounds by Hardt
v. Reliance Standard Life Ins. Co., 560 U.S. 242, 250 n.2 (2010).
An administrator’s conflict of interest is a key consideration under
this deferential standard. “In conducting this review, [the Court] remain[s]
cognizant of the conflict of interest that exists when the administrator has
both the discretionary authority to determine eligibility for benefits and
the obligation to pay benefits when due.”

Holmstrom, 615 F.3d at 766

(Citations omitted). In such cases the conflict of interest is “weighed as a
- 39 -

factor in determining whether there is an abuse of discretion.” Id. at 767,
(citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008)).
In challenging the non-disability determination, Karul relies on
Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1011 (9th
Cir. 2004), which identified Swartz as a biased Independent Medical
Examiner (“IME”).

In Hangarter, the plaintiff purchased an “own

occupation” disability policy from Paul Revere Insurance Company (“Paul
Revere”).

Benefits were paid on the policy for 11 months and then

terminated based on the determination that the plaintiff was not “totally
disabled.” Id. at 1003. After the jury found in favor of the plaintiff on her
state law claim for breach of the implied covenant of good faith and fair
dealing based on the long-term disability plan administrator’s biased
investigation into the claim, the district court judge denied a motion by the
insurer for a judgment as a matter of law on that claim. The appeals court
upheld the denial, in part based on evidence that the plan administrator
had “exhibited bias in selecting and retaining Swartz as the IME.” Id. at
1011. Paul Revere used Swartz as an IME 19 times from 1995 to 2000, and
the evidence included expert testimony that when an insurer uses the
same IME on a continual basis the examiner becomes biased due to a loss
of independence.

Id.

The appeals court also cited evidence that “in
- 40 -

thirteen out of thirteen cases involving claims for total disability Dr.
Swartz rejected the insured’s claim that he or she was totally disabled.” Id.
Although Swartz was involved in this case, Paul Revere is not. The
record does not include any evidence regarding the number of times
MetLife retained Swartz, or the outcome of any total disability claims he
reviewed for them.

Thus, this case does not include evidence that the

choice of Swartz was improper or that Swartz was biased in his review of
Karul’s claim. In addition, Karul’s claim was assessed by Rooke on the
administrative appeal. Thus, Hangarter findings with respect to Swartz
are of minimal significance.
However, having reviewed the entire record, the Court concludes
that the Defendants’ non-disability determination was arbitrary and
capricious. A key issue is Karul’s pain and its impact on her ability to lift
or carry, and sit, and to work on a sustained basis. When reviewing a
claim for disability benefits, a plan administrator is required to weigh the
evidence for and against the insured’s eligibility for benefits and, within
reasonable limits, the reasons for rejecting evidence must be articulated.
Hackett, 315 F.3d at 775.
A plan administrator is entitled to disagree with a treating
physician, or to discount some reports in favor of other evidence it finds
- 41 -

more credible — so long as it explains and supports its decision to do so.
Speciale v. Blue Cross & Blue Shield Ass'n, 538 F.3d 615, 623-24 (7th Cir.
2008).

A plan administrator may also rely on the opinions of record

reviewing physicians in assessing disability.

See Black v. Long Term

Disability Ins., 582 F.3d 738, 745 (7th Cir. 2009). While it may be natural
to suspect that a doctor hired by an administrator to render an expert
opinion might be biased toward the source of his or her pay, any such tilt is
likely to be offset by the tendency of treating physicians to “advocate” on
behalf of their patients.

See Hawkins v. First Union Corp. Long–Term

Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003).
Stauss, Karul’s treating physician, stated that Karul could not lift or
carry more than required by a sedentary job, could not lift more than about
ten pounds on a consistent basis, and could not sit for very long without
changing positions. Stauss indicated Karul might be able to work four
hours a day, but not eight-hour days. Swartz’s statement that he disagrees
with Stauss does not articulate a reasoned basis for that position. Swartz
has not explained why he disagrees with Stauss.
Reviewing physician Rooke opined that Karul had no restrictions
with respect to standing and walking, and that Karul was capable of
sitting for an eight-hour day provided that she take breaks to stand and
- 42 -

stretch. However, Rooke’s summary of the information provided by Stauss
is a version stripped of the relevant adjectives used by the treating
physician. For example, Stauss told Rooke that a recent CT scan of Karul’s
cervical and lumbar spine showed Karul had “very severe multi-level
facet joint arthropathy and severe multi-level neuroforaminal
stenosis” thus providing objective findings to support her complaints of
pain. (R. at ML_0044.) (Emphasis added.) Rooke reported that Karul has
documented facet arthropathy. (R. at ML_0046.) (Emphasis added.)
Rooke did not indicate that Stauss’ interpretation of the CT scan was
incorrect or whether she disagreed. While the arbitrary and capricious
standard is deferential, there is an absence of reasoning in the record and
therefore the non-disability determination cannot be sustained. See Leger
v. Tribune Co. Long Term Disability Ben. Plan, 557 F.3d 823, 832 (7th Cir.
2009).
Rooke noted that although many of Karul’s complaints were obesity
related, there was no mention of obesity in the records nor any medical
advice related to obesity.

To the contrary, after Karul began seeking

treatment for severe knee pain at the end of 2011, treating physician
Shenoy recommended “[c]onservative treatment with strong urgency of
losing weight, with Weight Watcher’s advised.”
- 43 -

(R. at ML_1179.)

In

February 2013, Marar also identified obesity as a problem, recording
Karul’s weight as 213.4 pounds and a body mass index (“BMI”) 4 of 33.42.
(R. at ML_00152-53.)
Karul’s weight was 222.67 pounds in October 2009 with a BMI of
34.8, 225 pounds in December 2009, 227 pounds in February 2011 with a
BMI of 36.6, 217 pounds in July 2011, and 213.4 pounds in February 2012,
with a BMI of 33.42.

In other words, Karul was obese when her 24

months of LTD benefits began, and remained obese during the time the
Defendants were reevaluating her disability under the any occupation
standard.

The reliance on obesity --

a condition that was relatively

constant during the entire time of Karul’s claimed disability -- as a basis
for subsequently finding her not disabled also calls into question the
purported reasonableness of the Defendants’ determination.

The Court

concludes that the Defendants’ determination that Karul was not disabled
for all reasonable occupations was arbitrary and capricious.
The fact that the SSA determined Karul was disabled is additional
reinforcement for the conclusion that Karul submitted proof of a
continuing disability to the Defendants.

Although determinations and

4 See http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm (last
visited March 3, 2015). A BMI of 30 or greater is classified as obese.

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decisions made by the SSA are not binding in ERISA actions, see, e.g.,
Anderson v. Operative Plasterers’ & Cement Masons' Int'l. Assoc., 991 F.2d
356, 358 (7th Cir. 1993) (Social Security determination of disability not
dispositive of disability under pension plan), a determination of disability
under the Social Security Act can be considered when applicable, see Ladd
v. ITT Corp., 148 F.3d 753, 755-56 (7th Cir. 1998) (considering grant of
social security benefits when determining whether insured's denial was
arbitrary and capricious under ERISA). The social security determination
of disability is made under a different standard: to receive benefits under
social security regulations, the claimant must have a “general” disability.
However, this difference does not mean that the social security
determination should be afforded no weight. Although the social security
determination of disability is not binding on this Court, it corroborates the
conclusion that Karul is disabled from any reasonable occupation.
Having found a violation of ERISA, the Court must determine the
appropriate remedy by focusing on the “claimant’s benefit status” before
the wrongful denial. Holmstrom, 615 F.3d at 778 (citation omitted). The
goal is to restore the status quo prior to the defective proceedings.” See
Hackett, 315 F.3d at 776.

In cases involving wrongfully terminated

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benefits, the status quo prior to the defective procedure is the continuation
of benefits,” making “a reinstatement of benefits” the proper remedy. Id.
The Defendants terminated Karul’s benefits as April 1, 2012. In
order to return Karul to the status quo existing prior to that termination,
the Court will retroactively reinstate Karul’s LTDI benefits as of April 1,
2012, and declares that she continues to be eligible for those benefits.
Karul also seeks prejudgment interest on her award of benefits and
attorney’s fees.

Whether to award an ERISA plaintiff pre-judgment

interest is “a question of fairness, lying within the court’s sound discretion,
to be answered by balancing the equities.” Fritcher v. Health Care Serv.
Corp., 301 F.3d 811, 820 (7th Cir. 2002). There is a presumption in favor
of prejudgment interest awards in ERISA cases. Id. Without such an
award, compensation of the plaintiff is incomplete and the defendant has
an incentive to delay. Id. Here, such an award is appropriate in order to
make Karul whole.

The appropriate rate for prejudgment interest in

ERISA cases is the prime rate. Id. The Court further concludes that the
prejudgment interest should be compounded annually.
Karul also requests an award of attorney fees. ERISA permits the
Court to award a reasonable attorneys’ fee to either party, see 29 U.S.C. §
1132(g)(1); Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 592 (7th Cir.
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2000). A fees claimant must show “some degree of success on the merits”
before a court may award attorney’s fees under § 1132(g)(1). Hardt, 560
U.S. at 255 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)).
A claimant does not satisfy that requirement by achieving “trivial success
on the merits” or a “purely procedural victor[y],” but does satisfy it if the
court can fairly call the outcome of the litigation some success on the
merits without conducting a “lengthy inquir[y] into the question whether a
particular party's success was ‘substantial’ or occurred on a ‘central
issue.’” Id. (citations omitted).
A party meeting this standard is “eligible for fees,” and then the
Court “must determine whether fees are appropriate.”

Kolbe & Kolbe

Health & Welfare Benefit Plan v. Med. Coll. of Wis., 657 F.3d 496, 505 (7th
Cir. 2011); see Pakovich v. Verizon LTD Plan, 653 F.3d 488, 494 (7th Cir.
2011). There are “two tests for analyzing whether attorney fees should be
awarded to a party in an ERISA case.” Kolbe & Kolbe, 657 F.3d at 505.
The Seventh Circuit summarized the two tests as follows:
The first test looks at the following five factors: 1)
the degree of the offending parties’ culpability or
bad faith; 2) the degree of the ability of the
offending parties to satisfy personally an award of
attorney's fees; 3) whether or not an award of
attorney’s fees against the offending parties would
deter other persons acting under similar
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circumstances; 4) the amount of benefit conferred
on members of the pension plan as a whole; and 5)
the relative merits of the parties' positions. The
second test looks to whether or not the losing
party's position was substantially justified. In any
event, both tests essentially ask the same
question: was the losing party’s position
substantially justified and taken in good faith, or
was that party simply out to harass its opponent?
In determining whether the losing party's position
was ‘substantially justified,’ the Supreme Court
has stated that a party’s position is justified to a
degree that could satisfy a reasonable person.
Id. at 505-06 (citations and quotation marks omitted).

The Seventh

Circuit has “affirmed the use of both tests post-Hardt.” Temme v. Bemis
Co., Inc., 762 F.3d 544, 550 (7th Cir. 2014) (citing Leimkuehler v. Am.
United Life Ins. Co., 713 F.3d 905, 915 (7th Cir. 2013); Raybourne v. Cigna
Life Ins. Co. of New York, 700 F.3d 1076, 1090-91 (7th Cir. 2012)).
Karul has achieved “some success on the merits.” Hardt, 560 U.S.
at 255. Therefore, Karul is “eligible for fees” under § 1132(a). Kolbe &
Kolbe, 657 F.3d at 505, and the Court must address next whether an
award of attorneys' fees is appropriate. The Court finds that, as shown
above, the Defendants' position was not substantially justified and was not
taken in good faith. Therefore, Karul is entitled to reasonable attorney's
fees and costs.

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The parties are directed to engage in a good faith effort to agree to
the amount of retroactive benefits, prejudgment interest compounded
annually, and reasonable attorney fees and costs, and to file a stipulation
and proposed order by March 27, 2015.
If the parties are unable to reach a stipulation, they are to file
statements setting forth their respective positions, together with
supporting documentation, on or before April 10, 2015. If the amount of
attorney fees/costs are disputed, Karul’s filing must include an itemized
claim presented in a format that includes the hourly rates of the
attorney(s) who worked on the case and provides a sufficient factual basis
for the Court to determine the reasonableness of those rates and the time
they devoted to the case. Any responses must be filed on or before April
16, 2015. Thereafter, the Court will resolve the issue(s) and direct the
entry of final judgment in favor of Karul and against the Defendants.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Karul’s motion for judgment in her favor (ECF No. 22) finding that
the Defendants are liable for terminating her claim LTD benefits as of
April 1, 2012, in violation of 29 U.S.C. § 1132(a)(1)(B) of ERISA is
GRANTED; Karul’s benefits are reinstated retroactively for the period
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beginning April 1, 2012, with prejudgment interest at the prime rate
compounded annually, and Karul is awarded costs and attorney fees
pursuant to 29 U.S.C. § 1132(g);
The parties must engage in a good faith effort to agree to the amount of
retroactive benefits, prejudgment interest at the prime rate compounded

annually, attorney fees and costs consistent with this Decision and Order,
and to file a stipulation and proposed order by March 27, 2015;
If the parties are unable to reach a stipulation, they must file
statements

setting

forth

their

respective

positions,

together

with

supporting documentation, on or before April 10, 2015. Any responses
must be filed on or before April 16, 2015.
The Defendants’ motions to strike (ECF Nos. 40, 42) are DENIED;
The Defendants’ joint motion for relief under Rule 52(a) or in the
alternative for summary judgment pursuant to Rule 56 (ECF No. 27) is
DENIED.
Dated at Milwaukee, Wisconsin, this 10th day of March, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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