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Chester v. Mutual of Omaha Insurance Co.

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

August 31, 2017

LISA CHESTER, Plaintiff,
v.
MUTUAL OF OMAHA INSURANCE CO., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 9] and DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 10]

          Denise Page Hood, Chief Judge, United States District Court

         I. INTRODUCTION

         Plaintiff brought this action seeking continued long-term disability (“LTD”) benefits under a policy issued by Defendant to Plaintiff's employer, Great Lakes Transportation Ventures (“Policyholder”). Plaintiff's claim, brought pursuant to 29 U.S.C. § 1132(a)(1)(B) (§502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), stems from Defendant's decision to terminate payment of LTD benefits to Plaintiff in November 2014 because she “was able to return to work at any Gainful Occupation [defined below] from November 16, 2014 and ongoing.”

         On October 24, 2016, the parties filed cross-motions for summary judgment. Dkt. Nos. 9 and 10. Both motions have been briefed. A hearing on the motions is scheduled for January 18, 2017. For the reasons that follow, the Court grants Defendant's Motion for Judgment, denies Plaintiff's Motion for Summary Judgment, and dismisses Plaintiff's cause of action.

         II. BACKGROUND

         In her Complaint, Plaintiff alleged that she has a “rotator cuff tear, adhesive capsulitis [that] made it impossible for her to work.” Dkt. No. 1, Paragraph 6. On August 16, 2012, Plaintiff presented to Matthew P. Steffes, MD (“Dr. Steffes”) with a chief complaint of right shoulder pain. The MRI of the right shoulder revealed significant partial-thickness tearing of the supraspinatus, questionable full-thickness tear. Plaintiff was not interested in an injection and was given a prescription for Mobic. On September 13, 2012, Plaintiff saw Dr. Steffes with a chief complaint of a partial right supraspinatus tear. On September 26, 2012, Plaintiff underwent an MRI of her right shoulder, which showed: (1) minimally retracted full-thickness rotator cuff tear, (2) mild AC joint osteoarthritis. On October 1, 2012, Plaintiff presented to Dr. Steffes with an MRI of her right shoulder that showeda full-thickness tear of her right supraspinatus, and she was given injections of 1 cc 40 mg Depo-Medrol and 2 cc of 1% lidocaine. On October 30, 2012, Plaintiff saw Dr. Steffes for follow-up, with the same complaints. Dr. Steffes discussed rotator cuff repair with acromioplasty and placed Plaintiff off work for the next month.

         The Physician's Statement (“Statement”) portion of Plaintiff's claim for LTD benefits was prepared and submitted by Dr. Steffes on November 20, 2012. The Statement noted a diagnosis of rotator cuff tear, with shoulder pain and limited range of motion. That Physician Statement further noted that Plaintiff's condition was not work-related. That Physician Statement went on to indicate a restriction on use of the right shoulder/upper extremity, a limitation on commercial vehicle driving, a prognosis for recovery saying “improved with surgery, ” and the observation that plaintiff had not achieved maximum medical improvement.”

         Regarding an eight-hour workday, Dr. Steffes indicated that plaintiff could sit for eight hours, stand for eight hours, and walk for eight hours. He also indicated restrictions regarding driving/operating a motor vehicle, right-arm lifting/carrying, use of right hand in repetitive actions, and reaching above right shoulder level. Plaintiff had no restrictions on the use of her feet in repetitive movements, or on bending, squatting, crawling, or climbing. Regarding his expectation as to plaintiff's return to prior level of functioning, Dr. Steffes wrote “pending surgery.”

         On November 27, 2012, Defendant informed Plaintiff that it had received her LTD claim application, and on December 4, 2012, Defendant approved Plaintiff's claim for LTD benefits. Defendant indicated that Plaintiff became disabled on August 18, 2012 and that her elimination period extended from August 18, 2012 to November 16, 2012. On December 4, 2012, Defendant informed the Policyholder that Defendant was approving Plaintiff's claim for LTD benefits based on the medical information Defendant received.

         On February 4, 2013, Plaintiff presented to The Guidance Center for a Comprehensive Biopsychosocial Assessment. Plaintiff reported episodes of nervous shaking and fluttering in the previous 14 years since her father passed away, and that since the summer of 2012, the shaking had been more consistent and severe. On February 26, 2013, Plaintiff presented to The Guidance Center for a Psychiatric Evaluation. Plaintiff's main concern was that she had a nervous feeling that ran through her chest and arms and “cannot shake it awake” and gets these feelings every day and lasts on and off all day. Plaintiff was diagnosed with: (1) MDD recurrent moderate panic disorder with agoraphobia, (2) NIDDM, (3) hypercholesterol, (4) rotator cuff injury, and (5) poor relationship with peers. She was instructed to continue Prozac, Trazodone and Xanax.

         On March 31, 2013 and November 18, 2013, Plaintiff saw Dr. Steffes with the continued complaint of right full thickness supraspinatus tear. She was given another injection at the first appointment and prescribed Norco and instructed to do exercises on her own at the second appointment. On March 21, 2014, Plaintiff returned to The Guidance Center with major depressive disorder, panic disorder without agoraphobia, and generalized anxiety disorder.

         On June 4, 2014, Defendant informed Plaintiff that Defendant was reviewing Plaintiff's claim to determine if she met the policy definition of Disability based on her inability to perform all of the Material Duties of any Gainful Occupation beyond November 16, 2014. “Gainful Occupation means an occupation, for which [Plaintiff is] reasonably fitted by training, education or experience, is or can be expected to provide [Plaintiff] with Current Earnings at least equal to 60% of Basic Monthly Earnings within 12 months of [Plaintiff's] return to work.” “Material Duties means the essential tasks, functions, and operations relating to an occupation that cannot be reasonably omitted or modified. In no event will [Defendant] consider working an average of more than 40 hours per week in itself to be a part of material duties. One of the material duties of [Plaintiff's] Regular Occupation is the ability to work for an employer on a full-time basis.”

         On July 9, 2014, Plaintiff consulted with orthopedic surgeon Lawrence G. Morawa, M.D. (“Dr. Morawa”), seeking an evaluation of her right shoulder. Dr. Morawa's physical examination of Plaintiff indicated limited range of motion because issues other than range of motion. Dr. Morawa's assessment was tendonitis of the right shoulder. In connection with his July 9, 2014 evaluation, Dr. Morawa filled out a general information form. The first page of the form repeated his diagnosis of right shoulder tendonitis, his finding of limited range of motion, and stated his conclusion that there were no secondary conditions contributing to the disability. On the first page, Dr. Morawa also noted: (1) his opinion that Plaintiff has not achieved maximum medical improvement; (2) his expectation of fundamental changes in Plaintiff's medical condition within 1-2 months; (3) his opinion that Plaintiff should be restricted from lifting anything over 10 lbs, restricted to limited use of right arm, and restricted from overhead reaching; and (4) his willingness to release Plaintiff to pursue vocational rehabilitation. On page two of the form, Dr. Morawa recommended: (a) a return-to-work date of July 28, 2014; (b) modified job responsibilities of no heavy lifting; (c) no overhead work for one-month period; and (d) rehabilitation services consisting of physical therapy.

         On August 18, 2014, Plaintiff presented to The Guidance Center for a Comprehensive Biopsychosocial Assessment. Plaintiff complained of increased anxiety, depression, panic attacks, racing thoughts and insomnia and reported experiencing episodes of nervous shaking and fluttering in the previous few years since the death of her father. On September 9, 2014, Plaintiff underwent an MRI of her brain at Oakwood Imaging Center, which showed: (1) no acute or new intracranial process; and (2) previously described microadenoma not well appreciated, no definite pituitary nodule seen. On September 22, 2014, Douglas Palmer, MS, performed a transferable skills assessment of the Plaintiff at the Defendant's request.

         On October 20, 2014, an MRI of Plaintiff's shoulder performed by Dr. Rob A. Reed, MD showed: (1) redemonstration of a full-thickness tear of the supraspinatus tendon with retraction, (2) full-thickness tear involving the long head of the biceps tendon with associated retraction, findings unchanged from prior examination, (3) trace glenohumeral effusion, and (4) mild acromioclavicular osteoarthrosis. On November 20, 2014, Defendant wrote to Plaintiff's doctor, Dr. Morawa, requesting that he agree with the Defendant's determination that Plaintiff was capable of performing light to medium work that did not require her to perform right arm heavy lifting or overhead work.

         On November 25, 2014, Plaintiff presented to Carlos Shelton, NP, with a sudden onset of back pain which had been occurring in a consistent pattern for 10 days, described as a dull ache and was located in the lower to mid back. On November 29, 2014, Plaintiff presented to Dr. John T. McCracken, MD (“Dr. McCracken”) with a complaint ...


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