BARBARA B. CRABB, District Judge.
In this civil suit for monetary relief, plaintiff James Dahlka contends that defendant Unum Life Insurance Company of America's determination that he did not satisfy the elimination period with respect to his claim for long-term disability benefits was arbitrary and capricious, in violation of his rights under the Employment Retirement Income and Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B). Before the court are the parties' cross motions for summary judgement. Dkt. #12 and #16.
Plaintiff asserts that Unum acted arbitrarily and capriciously in denying benefits by: (1) issuing multiple denials that amounted to a "moving target"; (2) using an erroneous vocational standard for light work and not the actual job requirements provided by plaintiff's employer; (3) failing to consider plaintiff's failed work attempts after he underwent surgery; and (4) not considering plaintiff's treating provider evaluations. He also seeks attorney fees and costs under 29 U.S.C. § 1132(g)(1) on the ground that defendants' position is not substantially justified. Defendants argue that: (1) defendant Unum is entitled to summary judgment because it reviewed plaintiff's claim fully and fairly and had a rational basis for denying it; (2) plaintiff has no independent basis for asserting a claim against defendant Illinois Tool Works; and (3) even if defendant Unum acted arbitrarily and capriciously, plaintiff's benefits are subject to an offset for plaintiff's estimated Social Security Disability Insurance benefits.
For the reasons stated below, I find that defendant Unum did not act arbitrarily and capriciously in denying plaintiff benefits. Accordingly, I am granting defendants' motion for summary judgment and denying plaintiff's motion for summary judgment with respect to Unum's denial of plaintiff's claim for long-term disability benefits. Because plaintiff does not contest defendants' contention that he does not have an independent basis for asserting a claim against defendant Illinois Tool Works, I also am dismissing plaintiff's claims against his employer.
From the parties' proposed findings of fact and the administrative record (AR), I find the following facts to be undisputed.
Plaintiff James Dahlka is a resident of Chippewa County, Wisconsin, and was employed as a manufacturing general technician by defendant Illinois Tool Works, Inc. at its plant in Chippewa Falls, Wisconsin. Defendant Unum Life Insurance Company of America is an insurance company authorized to conduct business in Wisconsin.
On March 7, 2011, plaintiff signed a copy of a job description for the position of manufacturing general technician at Illinois Tool Works. The brief description focused on the particular tasks involved with monitoring molding machines and equipment to maintain production demands and parts quality and did not include any exertional requirements. AR 39.
Around February 1, 1985, Unum issued a group long-term disability insurance policy to Illinois Tool Works for the benefit of its eligible employees. AR 76. The policy terminated on July 1, 2013. Under the policy, Unum had the "discretionary authority" to determine an employee's eligibility and to construe the terms of the policy.
AR 85.
In 2011, plaintiff reported having severe foot and ankle pain in his right leg. On June 12, 2013, plaintiff's podiatrist, Dr. Mark Schumaker, restricted plaintiff from work because of the pain. AR 573. On June 18, 2013, Dr. Schumaker diagnosed calcaneal navicular coalition, ankle instability, a torn anterior and posterior talofibul ligament and a partial tear of the anterior tibial fibular ligament.
On July 17, 2013, plaintiff filed a short-term disability claim with Aetna Life Insurance Company and received benefits under that plan until approximately May 22, 2014. Plaintiff's short-term disability benefits were supposed to terminate on January 1, 2014, but because of a processing error by Aetna, the benefits continued longer than they should have. AR 309.
On July 24, 2013, Dr. Schumaker performed calcaneal and navicular coalition resection surgery on plaintiff's right foot and ankle and restricted plaintiff from working until September 16, 2013 so that he could recover from the surgery. AR 283, 340, 526. On September 18, 2013, plaintiff attempted to return to work without restrictions, but he worked for only two shifts.
On November 1, 2013, plaintiff saw Dr. Patrick Roberts for a second opinion, at Dr. Schumaker's request. AR 586-87. Dr. Roberts's examination of plaintiff revealed normal findings, including no pain or crepitus (grinding) with range of motion, good strength and no obvious edema. In Dr. Roberts's opinion, plaintiff's symptoms were the result of impingement in an unidentified location. He recommended orthotics and Celebrex and suggested an injection if the medication did not relieve plaintiff's pain.
During the 31 days between December 6, 2013 and January 7, 2014, plaintiff attempted working but worked reduced hours, using vacation, funeral and sick leave. AR 424-26. Plaintiff worked four consecutive days at the end of December 2013, but he was in pain and worked only two additional days the following week before stopping work altogether on January 3, 2014.
On January 7, 2014, Dr. Schumaker signed a form stating that plaintiff would be off work until January 14, 2014. AR 384. At the request of Dr. Schumaker, plaintiff saw Dr. Mark Herr on January 13, 2014, for a second opinion about his ongoing pain.
On January 29, 2014, plaintiff saw Dr. Floren, who limited plaintiff to no walking or standing more than four hours per shift and no climbing ladders over six feet tall.
Plaintiff did not seek care from Dr. Floren again until October 20, 2014, after his disability claim had been denied (see below). At that visit, Dr. Floren noted that plaintiff wanted to seek legal action and that plaintiff had been told that Dr. Floren's paperwork was not properly filled out or thoroughly complete. Plaintiff reported that he had no pain while at rest but had severe pain in his right ankle after standing for more than three hours. Plaintiff was taking Aleve a couple of times a week and wearing an ankle brace. AR 430. Dr. Floren observed that plaintiff's surgical incision was well-healed with no swelling or tenderness, plaintiff had full range of motion in the ankle and "there was little to suggest significant pathology."
After receiving a medical certification dated April 6, 2015, in which Dr. Floren noted his standing and walking restrictions for plaintiff, Illinois Tool Works sent Dr. Floren an "Essential Job Function Analysis" for plaintiff's regular job as a general technician. The document listed "operate 14-15 injection molding machines for production cell on 12 hour work shift — walking/standing/squatting — 98% required" and "other tasks and duties as assigned, may include ladder climbing — 5% required" as two of the primary responsibilities. AR 433. Under "position skills and experience requirements, the document listed "ability to lift up to 55 lbs. — 50% required."
Around May 18, 2015, plaintiff filed a claim for long-term disability benefits with Aetna, which had become Illinois Tool Works's insurance carrier in July 2013. Dr. Floren completed an attending physician statement on May 26, 2015, in which he stated that plaintiff should not be standing or walking more than fours hours during a shift and not climbing ladders over six feet tall. Dr. Floren also wrote that he first saw plaintiff on January 29, 2014 and that he had advised plaintiff to stop working on October 20, 2014. AR 58.
After it was determined that Unum was the appropriate insurance carrier, plaintiff filed a claim with Unum, which received it on June 19, 2015.
Plaintiff filed an appeal on January 5, 2016, claiming that he had returned to full-duty work for only two shifts beginning on September 18, 2013 and that the two-day work attempt was less than the 30 days allowed by the policy. AR 306-07. On January 11, 2016, Unum contacted Illinois Tool Works for additional information and learned that plaintiff had returned to work for only two days in September 2013.
On March 18, 2016, Unum denied plaintiff's claim for a second time on the ground that plaintiff had not satisfied the elimination period because he had returned to work without restrictions for a period of 31 days from December 6, 2013 to January 7, 2014. AR 403-05. Plaintiff filed an appeal on August 23, 2016, arguing that he had worked only four full shifts during those 31 days and took vacation, bereavement and sick leave to make up for his reduced work hours.
In a September 23, 2016 response to a questionnaire from Unum, Dr. Schumaker wrote that he had not provided any restrictions for plaintiff between December 6, 2013 and January 7, 2014. AR 468. On November 7, 2016, plaintiff supplemented his appeal with an October 27, 2016 report from Dr. Andrew Floren, who stated that "had he seen" plaintiff on January 5, 2014, he would have issued the same work restrictions (no standing more than four hours per shift) that he issued when he saw plaintiff for the first time on January 29, 2014.
On November 15, 2016, Unum's senior vocational rehabilitation consultant reviewed the job description for the position of manufacturing general technician, plaintiff's restrictions, the United States Department of Labor's
AR 502-03.
Unum's consulting orthopedic surgeon, Dr. Wade Penny, reviewed plaintiff's medical records and agreed with the restrictions and limitations assessed for plaintiff from the date of his surgery (July 24, 2013) to September 27, 2013, when plaintiff reported that he could not resume consistent lifting during a full 12-hour shift. AR 619-24. However, Dr. Penny determined that the medical evidence showed that plaintiff was able to perform sustained, full-time, light-level work beginning 12 weeks after his surgery, or around October 10, 2013.
In support of his opinion, Dr. Penny noted that the findings of Dr. Schumaker, Dr. Roberts, Dr. Herr and Dr. Floren were "basically normal" and did not show significant pathology. He also found that the restrictions provided by plaintiff's physicians in late 2013 and 2014 were varied and based exclusively on plaintiff's self-reports, that plaintiff did not have any swelling after July 24, 2013, that no further reconstructive procedures were recommended and that plaintiff treated his pain with over-the-counter medication (Aleve) after he was last prescribed Celebrex on November 1, 2013. AR 620-24.
Relying on Dr. Penny's opinion and the fact that Dr. Schumaker had not issued plaintiff any restrictions during the disputed 31-day time period, Unum denied plaintiff's claim a third time on January 29, 2017. Unum noted that plaintiff's treating physicians (in particular, Schumaker and Floren) did not issue contemporaneous restrictions or limitations precluding plaintiff from performing sustained, full-time, light-level activity in his own occupation throughout the 180-day elimination period (June 11, 2013 to January 7, 2014) and that the restrictions assessed by Dr. Floren after the 180-day period reflected plaintiff's self-reported symptoms rather than any medical findings. AR 626, 629-30.
Under ERISA, a plan participant or beneficiary may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). When a court reviews a denial of benefits under an insurance policy governed by ERISA, the denial must be reviewed under the de novo standard unless the plan has given the plan administrator or fiduciary discretionary authority to determine benefits or construe the terms of the plan.
The "arbitrary and capricious standard is the least demanding form of judicial review of administrative action, and any questions of judgment are left to the administrator of the plan."
In addition to these substantive requirements, ERISA requires that, in denying a claim, the claims administrator communicate the "specific reasons" for the denial to the claimant and afford the claimant an opportunity for a "full and fair review." 29 U.S.C. § 1133;
Plaintiff argues that Unum acted arbitrarily and capriciously in denying his claim for long-term disability benefits because Unum issued multiple denials that resulted in a "moving target" and failed to consider the actual requirements of plaintiff's job, plaintiff's failed work attempts during the disputed 31-day period and the evaluations of plaintiff's treating providers. I will address these issues separately below.
Plaintiff argues that Unum tried repeatedly to find ways to justify a finding that plaintiff did not satisfy the elimination period, and changed its reasoning each time plaintiff refuted the finding or provided new information. He also accuses Unum of "moving the target" by not telling him sooner that it found his medical evidence insufficient because it was based on his self-reported symptoms.
Contrary to plaintiff's contentions, he was asked to satisfy the 180-day elimination period, which is a condition that plaintiff must satisfy before otherwise qualifying or receiving benefits under the policy. Unum requested plaintiff's work history from his employer and learned that he had returned to work on September 18, 2013, which was only 90 days after his alleged disability began, and last worked on January 3, 2014. After receiving information from plaintiff that his employer's responses were not entirely accurate because they did not make it clear that plaintiff returned to work for only two days in September 2013, Unum agreed to reconsider its denial and seek further information. Illinois Tool Works then stated that plaintiff was released to work on December 6, 2013 and worked full shifts on January 2 and 3, 2014. When plaintiff again objected that his employer's information was not correct and that he had not worked regular shifts during that period, Unum reviewed plaintiff's paystubs, timesheets and medical record. At that point, Unum determined that plaintiff did not have any contemporaneous restrictions or limitations precluding him from performing sustained, full-time, light-level activity between December 6, 2013 and January 7, 2014, and that the restrictions later assessed by Dr. Floren on January 29, 2014 reflected only plaintiff's self-reported symptoms rather than any medical findings.
The fact that Unum requested additional information and proof that plaintiff satisfied the elimination period after relying on information provided by plaintiff's employer does not qualify as a moving target. Unum acted reasonably and rationally in relying on the information provided by Illinois Tool Works and revisiting its decisions when plaintiff provided further evidence showing that his employer had not accurately or fully described his work attempts. Unum also did not move the target by then analyzing plaintiff's medical records and work restrictions after finally receiving a more complete description of plaintiff's work history. Up until that point, Unum was under the impression that plaintiff had returned to work during the elimination period and had no reason to analyze whether he had any limitations and whether his work restrictions were justified. Unum's rejection of Dr. Floren's retrospective restrictions because it was based on plaintiff's self-reports of pain did not involve a "new" expectation or requirement. Unum's review of plaintiff's claim had not required it to analyze plaintiff's medical record before that point because plaintiff first had to show he had not actually worked during the elimination period.
In the policy applicable in this case, disability is defined for the first 24 months as "because of injury or sickness . . . the insured cannot perform each of the material duties of his regular occupation." AR 85 (emphasis added). The policy does not define "regular occupation" but authorizes Unum, as the plan administrator, to construe or interpret the terms of the policy. Although Unum's interpretation is entitled to deference under the arbitrary and capricious standard, the interpretation must have rational support in the record.
Plaintiff faults Unum and its reviewing physician, Dr. Penny, for using a general definition of "light work" to describe the demands of his position, rather than the job description provided by Illinois Tool Works. Plaintiff's objection is based on the following discrepancies between the two definitions: (1) the light work definition limits exertion to 20 pounds occasionally, 10 pounds frequently and a negligible amount constantly, whereas the Illinois Tool Works job description for manufacturing general technician lists the ability to lift up to 55 pounds for 50 percent of the time as an essential duty; and (2) plaintiff's job description required 12-hour shifts and not eight-hour workdays. Defendants argue that Unum's senior vocational rehabilitation consultant reasonably relied on the
Although the Court of Appeals for the Seventh Circuit has held that ERISA demands "a `reasonable inquiry' into a claimant's medical condition and his vocational skills and potential,"
In
The record shows that Unum's consultant reviewed the manufacturing general technician job description, plaintiff's restrictions, the
As the cases above hold, Unum acted well within its discretion under the policy in construing the term "regular occupation" to mean a category of work rather than a job description drafted by a particular employer. Without more, plaintiff cannot show that Unum ignored or failed to consider the essential duties generally understood to be part of his "regular occupation." Therefore, I conclude that Unum's decision to identify plaintiff's regular occupation as light-level work as a plastic press molder is reasonable and has rational support in the record.
Plaintiff contends that Unum "cherry picked" the evidence that favored its denial of benefits by ignoring the importance of his failed work attempts, not addressing his treating providers' repeated notes about the correlation between his pain and a low activity level and not requesting an independent medical examination. In support, he cites
As an initial matter, I note that plaintiff seems to assume that Unum and the reviewing physician owed deference to the opinions of his treating providers. However, under ERISA, a treating physician's opinion is not entitled to more deference than the opinion of a reviewing physician hired by the plan. "[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation."
"[T]he deferential standard of review requires that we accept `[the administrator's] choice between competing medical opinions so long as it is rationally supported by record evidence.'"
In his report, Dr. Penny focused on the lack of objective medical findings supporting plaintiff's complaints and the restrictive functional limitations imposed by Drs. Schumaker and Floren. In particular, Dr. Penny noted plaintiff's normal physical examinations (including a lack of swelling, a good range of motion and no obvious pathology), the lack of further surgical procedures and the fact that plaintiff was treating his pain with over-the-counter medication after November 1, 2013. A review of the medical records confirms these facts. Plaintiff argues that Unum's analysis focuses on what treatment was not offered instead of what treatment occurred. However, the only specific treatment that plaintiff says that Unum ignored was his use of "braces," but plaintiff fails to point to any evidence in the record that Dr. Penny ignored with respect to such devices.
In sum, although plaintiff's treating providers may have reached a different conclusion from that of Unum's reviewing physician about plaintiff's need for restrictions and his ability to work, under an arbitrary and capricious review, I do not have the authority to make a determination between competing expert opinions.
IT IS ORDERED that
1. The motion for summary judgment filed by defendants Unum Life Insurance Company of America and Illinois Tool Works, Inc., dkt. #16, is GRANTED with respect to plaintiff's claim that defendants violated 29 U.S.C. § 1132(a)(1)(B).
2. Plaintiff James Dahlka's motion for summary judgment, dkt. #12, is DENIED.
3. The clerk of court is directed to enter judgment in favor of defendants and close this case.
