United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION
Plaintiff,
Bobby Johns Wiley, was employed by non-party Camber
Corporation as a “Senior Business Systems Analyst,
” a position that required him to provide software
analysis, design, and programming support to the United
States military and other departments and agencies of
national government. While so employed, plaintiff was a
beneficiary of group short-term and long-term disability
policies issued to Camber Corporation, and administered on
behalf of that corporation by defendant, United of Omaha Life
Insurance Company (“defendant”). The denial of
plaintiff's claim for long-term disability benefits led
to this suit under the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. § 1001
et seq., “to recover benefits [allegedly] due
to [plaintiff] under the terms of the plan.”
Id. § 1132(a)(1)(B) (alterations
supplied).[1] The action is before the court for
decision on the parties' cross-motions for summary
judgment.[2] Upon consideration of those motions, the
materials available to defendant when the decision to deny
plaintiff's claim was made, [3] the parties' briefs,
[4] and
oral arguments of counsel, the court enters the following
memorandum of opinion.
I.
SUMMARY JUDGMENT STANDARDS
Courts
may grant summary judgment when the moving party shows that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). An issue of fact is
“genuine” if there is sufficient evidence for a
reasonable fact finder to return a verdict in favor of the
non-moving party, and it is “material” if
resolving the issue might change the suit's outcome under
the governing law. See, e.g., Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
motion for summary judgment should be granted only when no
rational fact-finder could return a verdict in favor of the
non-moving party. See, e.g., Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (holding that
summary judgment is proper “after adequate time for
discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial”). “In
making this determination, the court must review all evidence
and make all reasonable inferences in favor of the party
opposing summary judgment.” Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en
banc) (quoting Haves v. City of Miami, 52 F.3d
918, 921 (11th Cir. 1995)).[5]
The
standards for reviewing cross-motions for summary judgment do
not differ from those applied when only one party files such
a motion, but simply require a determination of whether
either party is entitled to judgment as a matter of law on
the basis of material facts that are not genuinely disputed.
See, e.g., American Bankers
Insurance Group v. United States, 408 F.3d 1328,
1331 (11th Cir. 2005). The court must consider each motion on
its own merits, resolving all reasonable inferences against
the party whose motion is under consideration.
Id.[6] “Cross-motions for summary judgment
will not, in themselves, warrant the court in granting
summary judgment unless one of the parties is entitled to
judgment as a matter of law on facts that are not genuinely
disputed.” United States v. Oakley, 744 F.2d
1553, 1555 (11th Cir. 1984). “Cross-motions may,
however, be probative of the absence of a factual dispute
where they reflect general agreement by the parties as to the
controlling legal theories and material facts.”
Id. at 1555-56.
II.
STANDARDS FOR REVIEWING AN ERISA PLAN ADMINISTRATOR'S
DENIAL OF BENEFITS
The
Employee Retirement Income Security Act does not provide a
standard for courts reviewing the benefit decisions of plan
administrators. See, e.g.,
Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 108-09 (1989). As a result, the Eleventh
Circuit established the following, multi-step framework to
guide reviewing courts:
(1) Apply the de novo standard to determine whether
the claim administrator's benefits-denial decision is
“wrong” (i.e., the court disagrees with
the administrator's decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator's decision in fact is
“de novo wrong, ” then determine whether
he was vested with discretion in reviewing claims; if not,
end judicial inquiry and reverse the decision.
(3) If the administrator's decision is “de
novo wrong” and he was vested with discretion in
reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review
his decision under the more deferential arbitrary and
capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and
reverse the administrator's decision; [on the other
hand, ] if reasonable grounds do exist, then determine
if [the administrator] operated under a conflict of
interest.
(5) If there is no conflict, then end the inquiry and affirm
the decision.
(6) If there is a conflict, the conflict should merely be a
factor for the court to take into account when determining
whether an administrator's decision was arbitrary and
capricious.
Blankenship v. Metropolitan Life Insurance Co., 644
F.3d 1350, 1355 (11th Cir. 2011) (alterations supplied)
(citing Capone v. Aetna Life Insurance Co., 592 F.3d
1189, 1195 (11th Cir. 2010)); see also,
e.g., Metropolitan Life Insurance Co. v.
Glenn, 554 U.S. 105, 115-19 (2008); Williams v.
BellSouth Telecommunications, Inc., 373 F.3d 1132,
1137-38 (11th Cir. 2004), overruled on other grounds by
Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d
1352, 1359-60 (11th Cir. 2008).
It is
important to note that a court's review of an ERISA plan
administrator's benefit-eligibility decision “is
limited to consideration of the material available to the
administrator at the time it made its decision.”
Blankenship, 644 F.3d at 1354 (citing Jett v.
Blue Cross & Blue Shield of Alabama, Inc., 890 F.2d
1137, 1140 (11th Cir. 1989)). In that regard, the
Administrative Record available to defendant when considering
plaintiff's claim for long-term disability benefits was
stipulated by the parties, and filed under seal as document
number 25.[7] Review of those materials proved
difficult, however, due to the manner in which they had been
compiled. The documents were not grouped in a logical order
(e.g., by date of preparation or examination, name
of physician or generating entity, etc.). Numerous
repetitions were scattered throughout. Many pages were not
clearly legible, and the text of some was obliterated on the
right margin due to the manner in which the pages had been
misplaced on a copy machine screen.
Accordingly,
this court reviewed each of the 1, 545 pages of the
Administrative Record, and identified those portions that
appeared most relevant and material to defendant's
decision, and then organized them in chronological order. The
product of that work was provided to counsel in advance of
oral arguments, and is reproduced in the
“APPENDIX” to this opinion. Counsel were
directed, in advance of oral arguments, to compare the
materials summarized in the appendix to the administrative
record, and to determine whether this court had overlooked
any portions that counsel believed relevant and material to
defendant's decision (and, if so, to identify the
additional portions by page numbers). The additional
materials referenced by plaintiff's counsel were filed as
doc. nos. 39 and 41, and those identified by defendant's
attorneys were filed as doc. no. 38.
III.
DISCUSSION
The
Group Long-Term Disability policy issued to Camber
Corporation and administered on behalf of that entity by
defendant provided that: “If You become Disabled due to
an Injury or Sickness, while insured under the Policy, We
will pay the Monthly Benefit shown in the Schedule in
accordance with the terms of the Policy. Benefits will begin
after You satisfy the Elimination Period shown in the
Schedule.”[8] The policy defined
“disability” and “disabled” as
follows:
Disability and Disabled mean that[, ]
because of an Injury or Sickness, a significant change in
Your mental or physical functional capacity has occurred in
which:
a) during the Elimination Period, [9]You are prevented from
performing at least one of the Material Duties of Your
Regular Occupation on a part-time or full-time basis; and b)
after the Elimination Period, You are:
1. prevented from performing at least one of the Material
Duties of Your Regular Occupation on a part-time or full-time
basis; and
2. unable to generate Current Earnings which exceed 99% of
Your Basic Monthly Earnings due to that same Injury or
Sickness.
After a Monthly Benefit has been paid for 2 years,
Disability and Disabled mean You are unable to
perform all of the Material Duties of any Gainful Occupation.
Disability is determined relative to Your ability or
inability to work. It is not determined by the availability
of a suitable position with the Policyholder.
Doc. no. 25, at 370 (italics in original, alteration and
footnote supplied).
“Injury”
was defined as meaning “an accidental bodily injury
that requires treatment by a Physician. It must result in
loss independently of Sickness and other causes. Disability
resulting from an injury must occur while You are insured
under the Policy.” Id. In contrast,
Sickness means a disease, disorder or condition,
including pregnancy, that requires treatment by a Physician.
Disability resulting from a sickness must occur while you are
insured under the Policy. Sickness does not include elective
or cosmetic surgery or procedures, or resulting
complications. Sickness includes the donation of an organ in
a non-experimental organ transplant procedure.
Id. at 372 (italics in original).
Two
other policy terms, “Material Duties” and
“Regular Occupation, ” were defined as follows:
Material Duties means the essential tasks,
functions, and operations relating to an occupation that
cannot be reasonably omitted or modified. In no event will We
consider working an average of more than the required
Full-Time hours per week in itself to be a part of material
duties. One of the material duties of Your Regular Occupation
is the ability to work for an employer on a full-time basis.
Id. at 371 (italics in original).
Regular Occupation means the occupation You are
routinely performing when Your Disability begins. Your
regular occupation is not limited to Your specific position
held with the Policyholder, but will instead be considered to
be a similar position or activity based on job descriptions
included in the most current edition of the U.S. Department
of Labor Dictionary of Occupational Titles (DOT). We have the
right to substitute or replace the DOT with another service
or other information that We determine to be of comparable
purpose, with or without pay. To determine Your regular
occupation, We will look at Your occupation as it is normally
performed in the national economy, instead of how work tasks
are performed for a specific employer, at a specific
location, or in a specific area or region.
Id. at 372 (italics in original).
A.
Application of Circuit Framework to Administrative
Record
1.“Apply
the de novo standard to determine whether the
claim administrator's benefits-denial decision
is ‘wrong' (i.e., the court
disagrees with the administrator's decision); if
it is not, then end the inquiry and affirm the
decision.”[10]
Following
review of the evidence contained in those portions of the
administrative record referenced in the Appendix and doc.
nos. 38, 39, and 41, this court finds that plaintiff suffered
from a number of medically determinable physical impairments
that limited his ability to perform most of the material
duties of his regular occupation as a Senior Business Systems
Analyst with Camber Corporation, and to maintain the
attention and concentration required to perform repetitive
analytical tasks on a sustained basis, which were essential
functions of his position.
Accordingly,
defendant's decision that plaintiff could perform all of
the essential functions of his job, and that he was not
entitled to long-term disability benefits, was
“wrong.”
2.“If
the administrator's decision in fact is ‘de
novo wrong,' then determine whether
he was vested with discretion in reviewing claims; if not,
end judicial inquiry and reverse the
decision.”[11]
Camber
Corporation's long-term disability policy affirmed that
defendant possessed discretion to review claims and determine
eligibility for benefits.
By purchasing the Policy, the Policyholder [Camber
Corporation] grants Us [defendant, United of Omaha
Life Insurance Company] the discretion and the final
authority to construe and interpret the Policy. This means
that We have the authority to decide all questions of
eligibility and all questions regarding the amount and
payment of any Policy benefits within the terms of the Policy
as interpreted by Us. Benefits under the Policy will be paid
only if We decide, in Our discretion, that a person is
entitled to them.
Doc. no. 25, at 365 (alterations supplied); see also
doc. no. 22 (“Joint ERISA Report of [the]
Parties”), ¶ 7 (stipulating that “the
applicable policy delegates discretionary authority to United
of Omaha to determine eligibility for benefits and interpret
the provisions of the policy”).[12]
3.
“If the administrator's decision is
‘de novo wrong' and he was vested
with discretion in reviewing claims, then determine
whether ‘reasonable' grounds supported it
(hence, review his decision under the more deferential
arbitrary and capricious standard).”[13]
Defendant's
vocational consultant classified plaintiff's position of
Senior Business Systems Analyst as “Sedentary, ”
which means that it involved “sitting most of the time,
but may involve walking or standing for brief periods of
time. Jobs are sedentary if walking and standing are required
only occasionally and all other sedentary criteria are
met.” Doc. no. 25, at 905 (citing U.S. Department of
Labor's Dictionary of Occupational
Titles).[14]
Defendant's
medical consultant found that plaintiff could “sit up
to six hours in an eight-hour workday; and stand and walk up
to six hours in an eight-hour workday.” Id. at
984.
Both of
the foregoing findings were contradicted by claimant's
treating physicians.
Plaintiff's
neurologist, Dr. Christopher LaGanke, diagnosed
plaintiff's primary medical condition as demyelinating
disease, [15] which caused parethesia, [16] pain,
fatigue, and weakness, and which had been objectively
confirmed by electromyography
(“EMG”)[17] and electroencephalogram
(“EEG”) studies, [18] magnetic resonance imaging
(“MRI”) scans, [19] laboratory work, and physical
and neurological examinations.[20] In addition, Dr. LaGanke
diagnosed plaintiff as suffering from fibromyalgia,
[21]
peripheral neuropathy, [22] lumbar radiculopathy, [23] cervical
stenosis, [24]myelopathy, [25] arthritis, migraine
headaches, and IgG deficiency.[26]
As a
result of the foregoing conditions, and following surgeries
on plaintiff's lumbar and cervical spine during December
of 2014, [27] Dr. LaGanke restricted plaintiff to
sitting for not more than four hours during an eight-hour
workday. See doc. no. 25, at 413. Four hours is
half, not “most, ” of an eight-hour workday. Dr.
LaGanke also limited plaintiff to standing for not more than
one to two hours, and walking for one to
two hours during the remaining four hours of a normal
workday. Id.[28] Obviously, as defendant's
attorney acknowledged during oral argument, if
plaintiff's conditions limited him to standing for only
one hour and walking for only one hour, in addition to four
hours of sitting, he would not be able to complete a full,
eight-hour workday. Further, during the six hours that
plaintiff could work, Dr. LaGanke directed him to
alternate between sitting, standing, and walking
every ten to fifteen minutes. Id.
at 414. There is no evidence in the administrative record
indicating that plaintiff could perform the material duties
of his regular occupation with such frequent changes in
position - especially in view of the additional restriction
noted by Dr. LaGanke on plaintiff's “Use of
[his] hands in repetitive actions”
(e.g., typing on a keyboard ). Id.
at 413 (alteration supplied).[29]
The
restrictions imposed by Dr. David Francis, plaintiff's
primary care physician, were even more restrictive than those
of Dr. LaGanke. Dr. Francis diagnosed plaintiff as suffering
from back pain and weakness due to disc disease and
peripheral neuropathy that had been objectively confirmed by
MRI scans and nerve conduction studies, and limited him to a
total of only three hours of sedentary work during any given
workday: specifically, one hour of sitting; one hour of
standing; and one hour of walking. See doc. no. 25,
at 431.[30] Dr. Francis also concluded that
plaintiff was not able to: “Perform repetitive, or
short cycle work”; “Perform at a constant
pace”; or “Work alone or apart in physical
isolation from others.” Id.[31] He concluded
that plaintiff could do “no work, ” and that he
“never” would be able to return to his prior
level of functioning. Id. at 432; see also
id. at 1363 (same).
It is
true that neither of plaintiff's treating physicians
responded to the letters mailed by defendant, requesting each
to agree with defendant's contrary conclusions about
plaintiff's functional abilities. While the doctors'
non-responsiveness was (to say the least) not helpful to
their patient, the court finds that their failure is entitled
to little weight in evaluating the reasonableness of
defendant's decisions. Indeed, the failure of treating
physicians to respond to a follow-up request for additional
information is no reason to disregard medical diagnoses that
have been well documented by extensive records of physical
examinations, supporting tests, and actual treatments
conducted over a period of years. Ignoring the breadth and
depth of such objective evidence allows insurance companies
to subvert meritorious claims by simply increasing the
paperwork burden on a claimant's physicians.
In
summary, defendant lacked reasonable grounds to support its
conclusion that plaintiff was able to perform all of the
material duties of his regular occupation on a full-time
basis. Based upon the assessments of both of
plaintiff's treating physicians, plaintiff is unable to
sit for most of an eight-hour workday, and he is unable to
perform any combination of work functions on a full-time
basis. Because there were no reasonable grounds for
defendant's decision to deny plaintiffs long-term
disability benefits, that decision was arbitrary and
capricious, and due to be overturned.
4.
“If no reasonable grounds exist, then end the
inquiry and reverse the administrator's decision;
[on the other hand, ] if reasonable grounds do exist,
then determine if he operated under a conflict of
interest.”[32]
This
court concludes that defendant lacked reasonable grounds to
deny plaintiffs claim for long-term disability benefits.
Consequently, the administrator's decision will be
reversed by separate order[33]
DONE.
APPENDIX
SUMMARY
OF MATERIAL FACTS CONTAINED IN THE ADMINISTRATIVE RECORD
(Document No. 25)
A.
Medical Evaluations Prior to May 20, 2013
1.
October 8, 2010: neurological evaluation -
the initial examination of plaintiff by Cullman, Alabama
neurologist Dr. Christopher LaGanke occurred on Friday,
October 8, 2010, after which Dr. LaGanke dictated the
following information for plaintiff's medical records:
HPI [i.e., History of the Present Illness]:
Mr. Wiley is a 41 YORHM [presumably, a 41
Year-Old, Right-Handed Male] seen in consultation
from Dr. Francis [i.e., Dr. David A. Francis,
plaintiff's Decatur, Alabama primary care physician]
for pain and ataxia.[34] The patient states that he started
having significant pain about 10 months ago. The hips and
knees bilaterally are most affected. He states that he has a
hard time getting up on stage without crutches. He hobbles on
flat ground and is quite unsteady on his feet. He has been
diagnosed with RA [Rheumatoid Arthritis] and OA
[Osteoarthritis] and there has been a suspicion of
fibromyalgia. This past month he has had 2 episodes of sleep
paralysis.[35] He has had periods of numbness from his
neck distal.[36] Since age 23 he has had a constant
headache with occasional superimposed migraine. Pt
[Patient] denies any diplopia, [37] dysphagia,
[38]
and dysarthria.[39] Pt denies any bowel or bladder
dysfunction.
Doc. no. 25, at 849 (alterations and footnotes
supplied).[40]
Dr.
LaGanke's initial impression of plaintiff's
presenting complaints was that he suffered from
“Myelopathy”[41] and a “Mixed headache
disorder.”[42] Id. at 851. Dr. LaGanke
recommended that plaintiff's primary care physician
prescribe “CK, ”[43]“aldolase,
”[44] and “Consider
Decadron.”[45] Id. In addition, because
plaintiff had never been subjected to a magnetic resonance
imaging (“MRI”) scan, [46] Dr. LaGanke ordered that
one be performed of his cervical spine.
(a)
Cervical spine scan.
The
scan occurred at the Heritage Diagnostic Center in Cullman,
Alabama on Monday, October 11, 2010.[47] Dr. LaGanke's
evaluation of the images were stated as follows: HISTORY:
Spinal stenosis.[48]
TECHNIQUE: Sagittal and axial images[49] are obtained throughout
the cervical spine without the administration of Gadolinium
[i.e., an MRI contrast
substance[50].
FINDINGS: On T2 weighted imaging, [51] there are two
hyperintensive areas at the ventral [i.e.,
front] portion of C2 which are felt to likely
represent artifact. At ¶ 4-5, there is a mild central
disc protrusion with thecal impingement[52] but no
significant stenosis. At ¶ 5-6, there is a broad based
central disc protrusion with no significant stenosis. At
¶ 6-7, there is a broad based central disc protrusion
without significant stenosis. Opposite the C6 vertebral body,
there is bilateral uncovertebral spurring.[53]
Id. at 853 (alterations and footnotes
supplied).[54] Based upon those findings, Dr. LaGanke
revised his diagnosis of plaintiff's condition, stating
that he suffered from “Mild to moderate multilevel
degenerative cervical disc disease.”
Id.[55]
2.
January 7, 2011: neurological evaluation.
Plaintiff was again examined by Dr. LaGanke three months
later, on Friday, January 7, 2011. The record of that
examination noted that plaintiff had “been diagnosed
with fibromyalgia since his last visit.” Id.
at 854. Dr. LaGanke dictated the following notes at the
conclusion of his examination:
HPI: Mr. Wiley presents in F/U [follow-up] of his
myelopathy and mixed headache disorder. He states that he
continues to hurt all over. He has been diagnosed with
fibromyalgia since his last visit. He was given
Lortab[56] but stopped it after 4 days because it
didn't seem to help. He continues to have periodic limb
numbness that can last up to 5 hours and some weakness. He
still hobbles because of pain. He believes that he hurts more
with weather changes. Pt denies any diplopia, dysphagia, or
dysarthria. Pt denies any bowel or bladder dysfunction. Since
his last visit his muscle enzymes returned [to] normal
and his C-spine MRI scan revealed cervical stenosis.
His headaches are stable.
Doc. no. 25, at 854 (alterations and emphasis supplied). Dr.
LaGanke's revised diagnostic impression was that
plaintiff suffered from: fibromyalgia;[57] cervical
stenosis;[58] arthritis; and, a “Mixed headache
disorder.” Id. at 855. He recommended that
plaintiff's primary care physician continue his
previously-prescribed medications and start him on
“Savella” to better manage the pain associated
with fibromyalgia.[59] Id.
3.
October 25, 2011: Rheumatology Consultation at
Vanderbilt. Plaintiff's primary care physician, Dr.
David A. Francis, referred plaintiff to Dr. Kevin J. Myers at
the Vanderbilt University Medical Center in Nashville,
Tennessee, for a rheumatology consultation and evaluation of
his leg pain. The examination occurred on Tuesday, October
25, 2011. Plaintiff then was 42 years of age. Dr. Myers
dictated the following notes for file:
Present illness: Mr. Wiley has been in fair general health.
The current problem started about 8 years ago. He was having
pain in the low back, and his chiropractor told him that he
had some arthritis in the spine. A few years later, both legs
started to swell and hurt persistently. Support hose and
lasix[60] were used, and he believes that restless
legs syndrome might have been diagnosed. The pain worsened if
he was on his feet a lot, and also worsened if he was off his
feet for long. He largely took no medication for this. By
2010, he would have days when he could not move anything from
the neck down for a few minutes on arising. This seemed to
worsen, and in May 2010, he had a spell of bad chest pain. MI
[myocardial infarction - a heart
attack[61] was excluded, and he was eventually told
that this was due to “arthritis.” He was sent to
neurology to see if he might have MS [Multiple
Sclerosis].
He states that bulging disks were noted in the neck, and it
was suggested that these disks might be the source of his
intermittent paralysis. It is not clear what the brain MRI
showed - likely nothing.
In January he fell due to loss of balance, and since then he
walks with a cane. He feels as though his “spine is
being torn apart with a knife.” He takes toradol
chronically[62] and Ultram, [63] and a little hydrocodone.
He was told a few years ago that he might have Fibromyalgia.
Savella was tried, and helped, but he could not urinate while
on it. He was then given Cymbalta[64] (in combination with
Savella), and got hives.
He is very inactive - he does some walking at work, but with
a cane. His right leg is numb off and on. He does continue to
go to a chiropractor.
A few years ago he was traveling, and had to do a lot of
walking at Disneyland. He feels that the problem started
then.
He has a lot of nausea in recent months, and just had
endoscopy for this.
His appetite is good, and weight stable.
He has not had trouble with infections in the past year.
Id. at 932 (footnotes and alterations supplied).
Dr.
Myers dictated the following opinions following a physical
examination, X-Rays, laboratory tests, and review of
plaintiff's past medical records:
Assessment and Plan: Mr. Wiley presents with severe pain
through the upper and lower back, with spells of weakness.
His examination is fairly normal other than revealing
tenderness. His laboratory studies are also normal. I do not
think that he has any form of primary rheumatologic disorder.
I cannot address the question of multiple sclerosis here, but
it is obvious that his syndrome would be quite atypical for
it, and discussion with him suggests that an MRI of the brain
was entirely normal. He does have follow up on this issue.
I think it is far more likely that his problem is in the
category of fibromyalgia. Fibromyalgia would often
give rise to diffuse severe upper and lower back pain, which
cannot be explained through the finding of disk abnormalities
on MRI scans.
He did considerably better while on treatment with Savella.
It is possible that a different form of agent directed at
anxiety would be helpful to him, without causing the same
urinary side effect. I suggested a trial of zoloft at 50 mg
daily.[65]
I would consider raising the doses if he tolerates the drug
well.
I do not think that Toradol is the best agent for chronic
use, particularly in an individual who is having significant
gastrointestinal problems. He should try changing to an
anti-inflammatory that causes less gastrointestinal upset.
He will switch to relafen, [66]1000 mg daily, and decide after
a week or two if this is similarly effective for pain
control.
I do think that he should make an effort to exercise some.
I do not have any major form of treatment to recommend other
than this.
He is going to continue follow-up with his primary care
provider, and I will be available to him on an as needed
basis.
Id. at 933-34 (emphasis and footnotes supplied).
4.
March 30, 2012: neurological evaluation and MRI
scans. The next neurological examination by Dr. LaGanke
occurred on Friday, March 30, 2012. His report of that
evaluation states:
HPI: Mr. Wiley presents in follow up of his
fibromyalgia and arthritis. He states that he still has
muscle aches which have been worse in the cold weather. He
has had bilateral lower extremity muscle spasms that were
acutely worse in-between Thanksgiving and Christmas for two
weeks and two other periods of time since his last visit. He
has occasional urinary incontinence. He states that his
headaches have been fairly well controlled except for
periodic migraines. He was unable to tolerate the Savella
or the Cymbalta for his fibromyalgia. He states that his
headache was worse after he applied the last Butrans
patch.[67]He has been to a rheumatologist at
Vanderbilt and was told that he had no active rheumatoid
arthritis. He denies any diplopia, dysphagia or dysarthria.
Id. at 856 (emphasis and footnote
supplied).[68] Dr. LaGanke revised his opinion of
plaintiff's conditions and diagnosed him as suffering
from “myelopathy/ demyelinating disease, ”
migraine headaches, and fibromyalgia. Doc. no. 25, at 858.
Myelopathy is a “general term for a disorder
in which the tissue of the spinal cord is compressed and this
leads to spinal cord dysfunction.”[69] A
demyelinating disease is any condition that results
in damage to the protective covering (“myelin
sheath”) that surrounds nerve fibers in a person's
spinal cord.[70] When the myelin sheath is
damaged, nerve impulses slow or even stop, causing
neurological problems.
Multiple sclerosis (MS) is the most common demyelinating
disease of the central nervous system. In this disorder, [a
patient's] immune system attacks the myelin sheath or the
cells that produce and maintain it. This causes inflammation
and injury to the sheath and ultimately to the nerve fibers
that it surrounds. The process can result in multiple areas
of scarring (sclerosis).[71]
Dr.
LaGanke increased plaintiff's prescription for
“Butrans” to 10 mcg (i.e., micrograms),
[72]
and recommended that he submit to MRI scans of his cranium
(brain) and cervical and thoracic spines. Id. The
MRI scans were performed later that same day, and the
radiological evaluation of each was recorded as follows.
(a)
Brain scan
HISTORY: Demyelinating disease.
TECHNIQUE: Sagittal, axial and coronal images[73] are obtained
throughout the cerebrum without the administration of
Gadolinium.
FINDINGS: On FLAIR imaging, [74] there are a couple of deep
subcortical frontal hyperintense lesions in the superior
portion. On T1 weighted imaging, there are no abnormal
hypointense lesions. Within the inferior portion of the
maxillary sinus cavity there is an increased signal on FLAIR
imaging as there is mucoperiosteal thickening in the
ethmoidal and frontal sinus cavities. On diffusion weighted
imaging, there are no abnormal areas of restricted diffusion.
The craniocervical junction is normal.
IMPRESSION:
1. Scant areas of cerebral white matter change[75] most
consistent with microangiopathic change.[76]
2. Mild sinus inflammatory disease.
Id. at 859 (footnotes supplied).[77]
(b)
Cervical spine scan-
HISTORY: Myelopathy.
TECHNIQUE: Sagittal, axial images are obtained throughout the
cervical spine prior to and after the administration of
gadolinium.
FINDINGS: At ¶ 4-5, there is a central disc profusion
with thecal impingement but no significant stenosis. There is
mild bilateral neural foraminal narrowing[78] at this
level. At ¶ 5-6, there is a broad-based central disc
protrusion with annular tear but no significant stenosis. At
¶ 6-7, there is a minimal central disc protrusion
without significant stenosis. There is left facet
arthropathy[79] at this level and mild left neural
foraminal narrowing. The intrinsic qualities of the cervical
spinal cord appear normal. The craniocervical
junction[80] is normal.
IMPRESSION: Mild cervical degenerative disc
disease.[81]
Id. at 860 (footnotes supplied).
(c)
Thoracic spine scan-
HISTORY: Myelopathy.
TECHNIQUE: Sagittal and axial images are obtained throughout
the thoracic spine without the administration of gadolinium.
FINDINGS: At ¶ 3-4, there is a mild central disc
protrusion. From T4-6, there is a central area of increased
signal on T2 weighted imaging consistent with a syrinx. This
is quite small in size but does appear to be different than a
remnant notochord.[82]
IMPRESSION:
1. Apparent small thoracic syrinx[83] from T4-5.
2. Mild thoracic degenerative disc disease.
Id. at 861.[84]
5.
August 17, 2012: neurological evaluation.
Dr. LaGanke's next neurological evaluation of plaintiff
occurred four-and-a-half months later, on Friday, August 17,
2012. He dictated the following notes following his
examination:
HPI: Mr. Wiley presents in follow up of his fibromyalgia
and demyelinating disease. He states that his balance
continues to be off. He stumbles alot [sic] but has
not fallen. He had jaw surgery in June and developed a
secondary infection and his immune system became weakened. He
had numerous upper respiratory infections. He has taken alot
[sic] of antibiotics since his last visit. He states
that his migraines have improved. His emotions vary to not
being able to control them to not having any crying
outbursts. He has had a thoracic MRI scan which revealed a
syrinx. He denies any diplopia, dysphagia or dysarthria.
Id. at 862 (emphasis and alterations
supplied).[85] Dr. LaGanke again revised his diagnosis
of plaintiff's conditions following this examination, and
recorded that he suffered from: frequent infections; periodic
PSA;[86] fibromyalgia; migraine
headaches; demyelineating disease; and
syringomyelia of the thoracic spine. Doc. no. 25, at
864. Syringomyelia refers to the development of a
fluid-filled cyst (“syrinx”) within a
person's spinal cord.[87] Over time, the cyst may
enlarge, damaging the spinal cord and causing pain, weakness,
and stiffness, among other symptoms.
Syringomyelia has several possible causes, though the
majority of cases are associated with a condition in which
brain tissue protrudes into [a patient's] spinal canal
(Chiari malformation). Other causes of syringomyelia include
spinal cord tumors, spinal cord injuries and damage caused by
inflammation around [a patient's] spinal
cord.[88]
Dr.
LaGanke recommended that plaintiff return in three months for
a battery of thoracic and cranial MRI scans. Id.
6.
December 21, 2012 MRI scans and neurological
evaluation. Plaintiff's next neurological
evaluation did not occur until four months later, however.
Prior to his physical examination on Friday, December 21,
2012, plaintiff was subjected to two MRI scans. The
radiological evaluation of each reads as follows:
(a)
Brain scan
HISTORY: Demyelinating disease
TECHNIQUE: Sagittal, axial and coronal images are obtained
throughout the cerebrum without the administration of
Gadolinium.
FINDINGS: On FLAIR imaging, there are a few bilateral deep
subcortical frontal white matter hyperintense lesions. On T1
weighted imaging, there are no abnormal hypointense lesions.
In comparison with MRI scan from 3-30-12, there are no
additional lesions noted.
IMPRESSION:
A few areas of white matter change most consistent with
microangiopathy.89 Clinical correlation is recommended. These
findings are stable over the past[89]months.
Id. at 869 (footnote supplied).[90]
(b)
Thoracic spine scan
HISTORY: Thoracic syrinx
TECHNIQUE: Sagittal and axial images are obtained throughout
the thoracic spine with the administration of Gadolinium.
FINDINGS: BetweenT4 and T7, there is a central area of
increased signal on T2 weighted imaging. A similar central
area of increased signal is noted between T10 and T12. The
intervertebral disc space and vertebral bodies appear normal.
IMPRESSION:
Probable stable thoracic syrinx versus central notochord.
Id. at 870.[91]
(c)
Evaluation notes. Following his physical
examination of plaintiff, Dr. LaGanke dictated the following
notes:
HPI: Mr. Wiley presents in follow up of his demyelinating
disease and fibromyalgia. He states that since his last
visit he was involved in a motor vehicle accident on
9/20/2012. He states that numerous bones on the left side of
his body were broken. He had a crushed diaphragm and a
collapsed lung.[92]With the pelvic fractures he has had more
difficulty controlling his bladder. He states that he is
having more bladder loss with standing or sitting. He has had
more tremor. His cranial MRI scan from earlier today was
reviewed in the clinic and revealed no new or enhancing
lesions. He had a few stable white matter lesions. His
thoracic spine MRI scan revealed a probable thoracic syrinx
versus notochord.
Id. at 866 (emphasis and footnote
supplied).[93] Dr. LaGanke's revised diagnoses of
plaintiff's conditions following this examination and
review of the foregoing MRI scans were recorded as follows:
fibromyalgia; “S/P MVA”
[presumably, Status/Post Motor Vehicle
Accident]; thoracic syrinx; and, demyelinating
disease. Id. at 867. He recommended that
plaintiff continue his previously-prescribed medications and
return for a follow-up examination in four months. Doc. no.
25, at 867.
7.
April 26, 2013 neurological evaluation. Plaintiff
reported as instructed for neurological evaluation four
months later, on Friday, April 26, 2013. The report dictated
by Dr. LaGanke provided that:
HPI: Mr. Wiley presents in follow up of his
fibromyalgia and demyelinating disease. He
states he still has not healed from the motor vehicle
accident he had on 9/12. He states he has permanent lung
damage from the motor vehicle accident. He is also going to
have left shoulder surgery soon for a torn rotator cuff. He
has constant pain in the shoulder. His fibromyalgia pain
is worse and definitely worse in the colder weather.
For the past couple of days the pain has been more
intense. He states that he has intermittent left leg
numbness and pain. He has had a couple of near syncopal
episodes. He states that his migraines have been well
controlled. He is tolerating his IVIG therapy [i.e.,
intravenous immunoglobulin therapy] well though it
usually induces headaches and pain for a couple of days after
he completes the treatment.
Id. at 871 (emphasis supplied).[94] Intravenous
immunoglobulin (“IVIG”) therapy assists patients
with weakened immune systems or other diseases to fight off
infections.[95]
Dr.
LaGanke again revised his diagnoses of plaintiff's
conditions as follows: “729.1 FIBROMYALGIA was
added”;[96] “IgG
deficiency”;[97] and “Left shoulder pain.”
Id. at 873. He recommended that plaintiff continue
his IVIG therapy, take 10 mg of Decadron[98] when
finishing his IVIG therapy, lower his dosage of Savella, and
return for a follow-up evaluation in four months.
Id.
B.
May 20, 2013: Plaintiff's first claim for
short-term disability benefits
Plaintiff
lodged two claims for short-term disability benefits prior to
the long-term disability claim that is the subject of this
appeal. The first was submitted on May 20, 2013, and claimed
benefits for injuries sustained in a work-related motor
vehicle accident that occurred on Thursday, September 20,
2012. See id. at 328 (“Accident occurred
9/20/2012 while working for Jacobs Technology. Camber
Corporation took over contract in Dec. 2012. Doctors
determined in Mar 2013 that more surgery is required to fix
damaged shoulder.”).[99]
Defendant
denied that claim on June 4, 2013, stating as a reason for
doing so that plaintiff had applied for and received
workers' compensation benefits for the injuries to his
left shoulder. See id. at 316-19. The policy
language on which the denial was based provided that benefits
would not be paid “for any Disability which . . .
arises out of or in the course of employment with the
Policyholder for which You are entitled to benefits under any
workers' compensation or occupational disease law, or
receives [sic] any settlement from the workers'
compensation carrier . . . .” Doc. no. 25, at 20.
C.
Medical Evaluations After April 26, 2013, But Before December
3, 2014
1.
August 30, 2013: neurological evaluation.
As
instructed, plaintiff returned to Dr. LaGanke's office
four months after his previous visit, on Friday, August 30,
2013. He was not examined on that occasion by Dr. LaGanke,
however, but by another physician in the professional
corporation, Pamela Quinn, M.D.[100] Dr. Quinn dictated the
following report of her evaluation:
HPI: Mr. Wiley is here for follow up for demyleinating
disorder, migraines, fibromyalgia and weakness.
STATES, STOPPED SAVELLA, BLADDER WOULDN'T EMPTY.
STILL SOME PAIN FROM MVA.
Ambulating with cane.
Fibromyalgia was great until bladder would not empty.
Does not want to ever try lyrica.[101]
Cannot tolerate cymbalta - hives.
Taking ultram tid [three times a day].[102]
Taking toradol prn[103]
Has been taking tons of Tylenol - sometimes 6 extra strength
Tylenol in 4 hour span.
Last MRI: 12/2012
Id. at 874 (all caps in original, emphasis,
alteration, and footnotes supplied).[104] Dr.
Quinn
issued a prescription for ninety 300 mg Neurontin capsules,
[105] to be taken three times a day (with
the possibility of up to four refills), and instructed
plaintiff to return in two weeks when he was scheduled for
another “infusion” (presumably, another
IVIG therapy). See id. at 876.
2.
September 13, 2013: neurological
evaluation. Plaintiff was re-examined by Dr. Quinn two
weeks later, on Friday, September 13, 2013. Her notes
included the following information:
HPI: Mr. Wiley is here for follow up for demyelinating
disease.
The pain is the same as it was.
Neurontin us [sic] helping. Initially caused
dizzines [sic].
He initially missed a day of work because of the dizziness.
He is now able to tolerate it tid. He did notice some
dizziness last night.
Continues on tramadol.[106]
He is getting an infusion today.
HA [presumably, headaches] have been
stable.
STATES NEURONTIN NOT HELPING THE PAIN, CAUSING DIZZINESS AND
NAUSEA.
Id. at 877 (alterations and footnote supplied, all
caps in original).[107] Dr. Quinn concluded her examination by
directing plaintiff to increase his dosage of Neurontin to
two 300 mg capsules three times each day, and to return for a
follow-up examination in four weeks. See id. at 879.
3.
October 11, 2013 neurological evaluation. Plaintiff
reported as instructed four weeks later, on Friday, October
11, 2013, and Dr. Quinn dictated the following notes
following her examination:
HPI: Mr. Wiley is here for revisit for HA
[headaches], Demyelination,
Fibromyalgia, muscle weakness and cervical
myelopathy He says that he has had some falls recently.
His legs just got weak and he sank to the floor.
The dizziness has improved.
He seems to be having increased numbness in his legs.
His feet feel cold to him but not to the touch.
Neurontin has helped with the pain.
STATES: FOLLOW UP. BILATERAL LEG NUMBNESS GETTING WORSE.
COLDNESS IN FEET. FELL AT WALMART TWO WEEKS AGO.
Id. at 880 (alteration and emphasis supplied, all
caps in original).[108] Dr. Quinn recommended: that plaintiff
continue his IVIG therapy, his prescribed dosage of
Neurontin, and his use of a cane when walking; that Dr.
LaGanke schedule additional MRI scans of plaintiff's
brain and lumbar spine; and, that plaintiff return for
re-evaluation following the MRI scans. Doc. no. 25, at 882.
4.
October 21, 2013 MRI scans. The scans of
plaintiff's brain and lumbar spine recommended by Dr.
Quinn were conducted ten days later, on Monday, October 21,
2013. The radiological reports read as follows.
(a)
Brain scan
HISTORY: Demyelinating disease.
TECHNIQUE: Sagittal, axial and coronal images are obtained
throughout the cerebrum prior to the administration of
Gadolinium. Axial and coronal images are obtained after
administration of Gadolinium.
FINDINGS: On FLAIR imaging, there are a couple of 1 mm
hyperintense lesions in the deep subcortical frontal white
matter. On T1 weighted imaging, there are no abnormal areas
of hypointensity. After the administration of Gadolinium,
there are no abnormal areas of enhancement. The
craniocervical junction is normal. On diffusion weighted
imaging, there are no abnormal areas of restricted diffusion.
IMPRESSION:
Minimal microangiopathic change.
Id. at 884.[109]
(b)
Lumbar spine scan
HISTORY: LS [i.e., lumbrosacral]
radiculopathy
TECHNIQUE: Sagittal and axial images are obtained throughout
the lumbar spine and without the administration of
Gadolinium.
FINDINGS: At ¶ 4-5, there is a disc protrusion eccentric
to the left and bilateral facet arthropathy resulting in
moderate bilateral neural foraminal narrowing. At ¶
5-S1, there is a left sided disc protrusion with moderate
left neural foraminal narrowing. Within each lumbar vertebral
body and the sacral bodies there are hyperintense circular
areas on both T1 and T2 weighted imaging consistent with
hemanglomata. After the administration of Gadolinium, there
are no abnormal areas of enhancement.
IMPRESSION:
1. Lumbosacral degenerative disc disease most prominent at
¶ 4-5 and L5-S1.
2. Multiple vertebral body hemanglomata.
Id. at 883 (alteration supplied).[110]
5.
November 22, 2013: neurological evaluation.
The next neurological evaluation occurred on this date, one
month after the foregoing MRI scans of plaintiff's brain
and lumbar spine. The examination was again conducted by Dr.
Quinn, who dictated the following notes for plaintiff's
records.
HPI: Mr. Wiley is here for follow up for back pain and
demyelination.
He is still having lots of back pain.
Continues having bladder issues.
His MRI of the lumbar spine showed some bugling
[sic] disc.
He was not stable [sic] to start PT because of his
insurance.
He is doing decompression at the chiropractor.
BP [i.e., blood pressure] is elevated
today.
MRI of the brain stable.
Fibromyalgia stable.
HA stable.
Taking tramadol prn [i.e., as needed for]
pain. Continues on gabapentin.[111]
STATES, HAVING SOME INCONTINENCE OF URINE, WORSE OVER THE
LAST 2-3 WEEKS AND SINCE THE CAR ACCIDENT, NEURONTIN NOT
HELPING. WAS TAKEN OFF METROPROLOL PER WORKMANS COMP, AND
BLOOD PRESSURES HAVE SHOT UP.
Id. at 886 (footnotes supplied, all caps in
original).[112] Dr. Quinn increased plaintiff's
prescribed dosage of Neurontin to 600 mg capsules four times
daily; continued his prescription for tramadol
(Ultram®); recommended that he resume use of
Metoprolol;[113] consult his primary care physician
about bladder issues; and return for a follow-up neurological
examination in twelve weeks. Id. at 888.
6.
February 14, 2014: neurological evaluation.
Plaintiff returned for his follow-up neurological evaluation
precisely twelve weeks later, on Friday, February 14, 2014.
He was again examined by Dr. Quinn, who dictated the
following notes for his medical records.
HPI: Mr. Wiley is here for follow up.
Still having lots of back pain.
He got some ultram from his family doctor which helps a bit.
His BP is stable.
Fibromyalgia stable.
HA stable.
Id. at 889.[114] Dr. Quinn's notes reflect that
she scheduled plaintiff for an epidural injection and ordered
a “DDS-500 belt for him.” Doc. no. 25, at 891. A
DDS-500 spinal decompression belt is a “Spinal-Air
Decompression Brace LSO [i.e., lumbar
sacral orthosis] with Anterior and Posterior Rigid
Panels” that is designed (according to the manufacturer
of the patented technology) to decrease
axial loading while increasing intervertebral disc space by
anchoring underneath the rib cage pushing upwards and against
the pelvic girdle pushing downwards. This action gently
stretches the torso vertically and displaces stress away from
the affected disc and nerve. Pressure and pain levels, within
the lumbar spine region, is significantly reduced which can
assist active-rehabilitation.[115]
7.
February 21, 2014 examination by primary care
physician. Dr. David Francis dictated the following
notes at the conclusion of his February 21, 2014 examination
of plaintiff:
Complaint:
Mr. Wiley is here for his health maintenance visit.
Patient is here for follow up of hyperlipidemia.
Condition is well controlled with treatment regimen. He is
currently asymptomatic.
He is here for follow up of gastroesophageal reflux
disease. He denies dyspepsia or dysphagia and says
symptoms controlled with current treatment regimen.
Patient is here for follow up of chronic back pain.
The condition is reported as controlled on current medical
regimen and no progression or worsening of the same. In with
Dr. Leganke [sic] still and looking at eipdurals
[sic] in next month. Still contemplating surgery
for same.
Patient is here for follow up of a migraine
headache. Condition is well controlled with treatment
regimen. He is currently asymptomatic.
He is in today for follow up of pre-diabetes. He
states that condition is well controlled with current
treatment regimen. At present, he is asymptomatic.
Id. at 1383 (emphasis and alterations supplied).
8.
April 11, 2014 neurological evaluation. Plaintiff
returned to the office of Dr. LaGanke on Friday, April 11,
2014, and was again examined by Dr. Quinn. She ...