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Rouleau v. Liberty Life Assurance Company of Boston

United States District Court, W.D. Michigan, Southern Division

January 25, 2017

MICHELLE R. ROULEAU, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         Michelle R. Rouleau brings this action for long-term disability benefits against Defendant Liberty Life Assurance Company of Boston (“Liberty”) under 29 U.S.C. § 1132(a)(1)(B), a civil enforcement provision of the Employee Retirement Security Act (“ERISA”). The parties have filed cross-motions for entry of judgment on the record. (ECF No. 18, ECF No. 19.)[1] The motions are fully briefed, and the Court has heard oral argument on the motions. This is the decision of the Court.

         BACKGROUND

         Ms. Rouleau worked for Sparrow Hospital as a registered nurse caring directly for patients from approximately 2009 until her last day of work in June 2012. (ECF No. 17, PageID.589). As a full-time hourly employee at Sparrow, Ms. Rouleau participated in a group disability insurance policy that Liberty issued and administered (the “Policy”). With respect to long-term disability benefits, the Policy defines “disability” or “disabled” to mean that “during the Elimination Period and the next 24 months of Disability the Covered Person, as a result of Injury or Sickness, is unable to perform the Material and Substantial duties of [her] Own Occupation.” (Id., PageID.64.) The Policy further provides that after the 24 month period ends, “disability” or “disabled” means that “the Covered Person is unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation.” (Id.)

         A. Medical History - Pattern of Relief and Recurrence

         Ms. Rouleau has a history of intractable lower back pain dating back at least as early as 2006. (Id., PageID.269.) The record reveals a pattern of her repeatedly seeking treatment, enjoying temporary relief, and then experiencing more pain. In 2007, she had a lumbar facet rhizotomy for lumbar spine pain, with good results. (Id., PageID.200.) But eventually her back pain recurred. Ms. Rouleau received treatment for back pain throughout 2011. On February 14, 2011, on referral by her primary care physician, Dr. Mark Schaar, Ms. Rouleau consulted with Dr. Gundamraj and Nurse Spindler (M.S.N., R.N., C.S.) at the Sparrow Pain Management Center. (Id.) They noted that Ms. Rouleau “has had increasing thoracic spine pain over the past few months . . . Her pain increases with sitting, standing, walking, lifting, carrying, housework, yard work, bending, and driving. The pain decreases with cold and medications). (Id.) Dr. Gundamraj and Nurse Spindler assessed her condition as including thoracolumbar spine pain, thoracic disc displacement, thoracic spondylosis, lumbar spondylosis, and myofascial pain. (Id., PageID.201.) They observed that Ms. Rouleau “has failed conservative treatment of her pain with reduction in activities of daily living.” (Id.) They recommended that Ms. Rouleau have a series of four bilateral facet block procedures to occur approximately one to two weeks apart, and right and left thoracic epidural steroid injections. (Id.)

         Ms. Rouleau had a series of appointments at the Pain Management Center, on February 17 and 25, 2011, and March 10, 18, and 25, 2011. (Id., PageID.248- 256.) On February 17, she reported a pain level of seven out of ten, and on February 25, a pain level of seven or eight out of ten. (PageID.254-256.) Treatment notes from her visit of March 10 reflect that her thoracic pain was “beginning to respond well to injection therapy, ” with a 40 - 50% reduction in her pain, and that Ms. Rouleau was “encouraged by her progress.” (Id., PageID.252.) On March 18, she reported a pain score of six out of ten. (Id., PageID.250.) At her visit on March 25, Ms. Rouleau reported a 75 - 80% improvement in her pain level and noted that she had been able to tolerate increased activity. (Id., PageID.248.) Her pain score was three to four out of ten. (Id.) She described her residual pain as tolerable with medication. (Id.) The medical team noted that Ms. Rouleau “responded well to interventional management” but that further intervention “may be needed in the future.” Id.

         Just a few months later, in July 2011, Ms. Rouleau returned to the Pain Management Center “with chief complaint of low back pain and left lower extremity pain.” (Id., PageID.246.) Treatment notes comment that Ms. Rouleau has a history of pain that has “progressively worsened.” (Id.) Ms. Rouleau's thoracic spine pain remained at “a tolerable level, ” but her lower back pain interfered with activities of daily living. (Id.) Dr. Michael Winkelpleck recommended “interventional treatment for the low back and lower extremity pain.” (Id.) Ms. Rouleau's pain level was nine out of ten. (Id.) She reported that on her best days, her pain level was four out of ten, and at worst, a ten out of ten. (Id.) Ms. Rouleau had a series of epidural injections and bilateral facet blocks. (Id.) These treatments appeared to help. On July 18, Ms. Rouleau reported a pain score of eight out of ten; on July 25, six out of ten; on August 1, four out of ten; on August 8, three out of ten. (Id., PageID.238-247.) But on August 23, she presented with a pain score of ten out of ten. (Id., PageID.236.) Dr. Gundamraj recommended “radiofrequency rhizotomy . . . to provide longer relief and improve functioning of the patient.” (Id.) Ms. Rouleau had the procedure the same day. (Id., PageID.236-237.)

         Eight days later, Ms. Rouleau reported a pain score of eight out of ten. (Id., PageID.234.) The examining physician determined that she had post-rhizotomy neuritis and performed a left transforaminal epidural steroid injection. (Id., PageID.234-235.) At her next appointment, on September 13, 2011, Ms. Rouleau reported a pain score of six out of ten. (Id., Page ID.232.) Dr. Gundamraj performed a right lumbar facet medial branch radiofrequency rhizotomy. (Id., PageID.232-233.) Ms. Rouleau returned on October 11. (Id., PageID.230.) She reported relief on the right side of her lower back but pain on the left side “lower into the back and buttock.” (Id.) She stated that her leg had given out and that she had fallen twice that week. (Id.) She described the pain as “a constant burning sharp pain of severe intensity which increases with sitting, standing, walking, lifting, carrying, house work, yard work, bending or transferring positions, and driving.” (Id.) The pain prevent[ed] her from falling asleep at night and . . . awaken[s] her at night.” (Id.) She noted that her pain ranged from two out of ten at best and nine out of ten at worst. (Id.) Ms. Rouleau returned to the Pain Management Center on November 21 for a left dorsosacral transforaminal epidural steroid injection. (Id., PageID.228.) She had a pain score of five out of ten that day. (Id.) At her next appointment, in December 2011, she reported that the injection “provided phenomenal relief” and that her pain score was two out of ten. (Id.)

         B. Medical History - More Aggressive Treatment

         Ms. Rouleau's pain soon returned. In June 2012, Dr. Winkelpleck evaluated Ms. Rouleau for “left lower extremity pain and intractable lower back pain” and noted that conservative measures had failed. (Id., PageId.641.) He recommended lumbar fusion surgery. (Id., PageID.636.) Ms. Rouleau took a short-term disability leave to have this surgery and planned to return to work within ten weeks.[2] (Id., PageID.134.) Ms. Rouleau had the surgery on June 8, 2012. She experienced temporary relief: a week after the procedure, Ms. Rouleau reported that her pain was an eight to ten before surgery and had decreased to a four or five after surgery. (Id., PageID.635.) But at her appointment on July 11, 2012, she reported that she had experienced “low back pain for the last week that has increased and gone down to her left buttock and down to the foot region.” (Id., PageID.625.) She stated that “after surgery she was doing great and even improving and not really having any problems or difficulties, until about a week ago.” (Id.) She could “walk about 100 yards daily . . . [and] was doing it twice daily until about a week ago . . . [but] she needed to decrease this at this point.” (Id.) On August 14, 2012, her pain level was eight out of ten. (Id., PageID.536.) In September, her back pain had improved again, but she continued to have “a lot of left leg pain, ” which limited her walking. (Id., PageID.533, PageID.529.) Ms. Rouleau was not able to return to work, and she became eligible for long-term disability benefits effective September 4, 2012. (Id., PageID.611.)

         Ms. Rouleau continued to seek treatment for her pain. On October 22, 2012, Dr. Andary reported the results of an electrodiagnostic evaluation of Ms. Rouleau. (Id., PageID.552-553.) He noted that Ms, Rouleau had undergone epidural steroid injections without lasting success and a back surgery with fusion. Ms. Rouleau reported no pain in her right leg after surgery, but pain in her lower back and left leg had persisted. (Id.) She described the pain as a five to six out of ten. (Id.) She noted that she “stumbles sometimes because she catches her left toe and foot when she is walking as it does fatigue.” (Id.) Dr. Andary found no electrodiagnostic evidence for certain conditions that could have explained her symptoms. (Id., PageID.553.) He suspected that nerve root irritation caused her symptoms. (Id.)

         Ms. Rouleau saw Dr. Winkelpleck again on October 30, 2012, after having an injection for left total knee pain. (Id., PageID.556.) She told him that she still had some numbness in her toes but that the pain in her left leg now extended only to her knee instead of all the way to her foot. (Id.) Her back pain was minimal. (Id.) Again the relief did not last. In December 2012, Ms. Rouleau returned to Dr. Winkelpleck for an evaluation after having injection therapy for her continued lower left extremity pain following lumbar fusion and decompression. (Id., PageID.559.) She stated that the injection provided no relief. (Id.) She complained principally of “left gluteal and lateral thigh pain on the left side.” (Id.) Her back pain was still “there but nothing compared to the left lower extremity radicular component.” (Id.) Ms. Rouleau was “frustrated and wants to know what to do next as far as alleviating her pain.” (Id.)

         C. Medical History - Spinal Cord Stimulation

         Ms. Rouleau saw Dr. Winkelpleck again on February 12, 2013. (Id., PageID.505.) His notes state that she “continues to have left lower extremity and gluteal pain. Her back pain is not significant at this point. It is more of an annoyance. The foot pain that was present and just burning all the time has resolved and now the pain is more proximal in the gluteal region . . . .” (Id.) Dr. Winkelpleck found that “at this point it's reasonable to proceed with a spinal cord stimulator trial in the pain clinic.” (Id., PageID.507.) He commented that Ms. Rouleau “has not returned to work but will consider returning to work as long as there is a sit stand option that does not require a lot of bending and lifting which is reasonable.” (Id.) He planned to see her again after a spinal cord stimulator trial. (Id.)

         Ms. Rouleau returned to the Pain Management Center in February 2013 for evaluation for spinal cord stimulation. (Id., PageID.216.) It was noted that Ms. Rouleau had received epidural steroid injections over the course of months, most recently in October and November of 2012; that she had lumbar fusion surgery in June 2012; and that she was not a candidate for another surgery. (Id.) After evaluation, Dr. Gundamraj and Nurse Simons (R.N., M.S.O.S.), sent Ms. Rouleau's case to “case conference with multi-disciplinary meeting of physicians, case managers, pain psychology, nurse practitioners, and physical therapy to further determine plan of care.” (Id., PageID.217.) Dr. Gundamraj and Nurse Simons noted that Ms. Rouleau “suffers from severe pain, which has been present for more than one year . . . [and] has failed to achieve satisfactory pain relief with all modalities of multidisciplinary pain management, including interventional techniques, cognitive-behavioral psychotherapy, medication management, and rehabilitation.” (Id.) They commented that Ms. Rouleau's “pain remains significant, limits activities of daily living, and severely diminishes [her] quality of life.” (Id.)

         Dr. Winkelpleck evaluated Ms. Rouleau on February 12, 2013. (Id., PageID.505.) He noted that she “continue[d] to have left lower extremity and gluteal pain” and that “her back pain is not significant at this point.” (Id.) He commented that foot pain “that was present and just burning all the time has resolved and now the pain is more proximal in the gluteal region[;]” and that “[s]he does have difficulty sleeping on the left side.” (Id.) He determined that “[a]t this point it's reasonable to proceed with a spinal cord stimulator trial [at] the plain clinic.” (Id., PageID.507.) He stated that Ms. Rouleau “has not returned to work but will consider returning to work as long as there is a sit stand option that does not require a lot of bending and lifting which is reasonable.” (Id.) He added that he would see her again after the spinal cord stimulator trial at the pain clinic. (Id.) A note from Dr. Winkelpleck dated February 12, 2013, is addressed “to whom it may concern” and states that Ms. Rouleau will remain off work through March 22, 2013, for ongoing treatment for back pain, and that it remained to be determined when she would return. (Id., PageID.504.) A note from Dr. Winkelpleck dated February 12, 2013, ...


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