United States District Court, W.D. Michigan, Southern Division
S. CARMODY United States Magistrate Judge
matter is before the Court on Plaintiff's challenge to
Defendant's decision denying his application for
disability benefits pursuant to a group long term disability
policy. The parties have consented to proceed in this Court
for all further proceedings, including trial and an order of
final judgment. 28 U.S.C. § 636(c)(1). By Order of
Reference, the Honorable Janet T. Neff referred this case to
the undersigned. The Court has determined that oral argument
is unnecessary in this matter. For the reasons discussed
herein, Plaintiff's appeal is denied and
this matter terminated.
detailed herein, in January 2012, Plaintiff began to
implement a plan to gradually, over the course of no more
than twelve months, completely discontinue his medical
practice and transition into other related employment. In
July 2012, prior to the completion of this transition plan,
Plaintiff underwent a surgical procedure subsequent to which
he experienced complications which Plaintiff asserts rendered
him disabled from practicing medicine.
January 3, 2013, Plaintiff submitted disability claims
pursuant to several individual disability policies.
Plaintiff's claims were denied after which Plaintiff
initiated legal action. Plaintiff subsequently settled these
claims and the action was dismissed. Davis v.
Northwestern Mutual Life Ins. Co., 1:14-cv-912 (W.D.
Mich.). On February 5, 2015, Plaintiff submitted a disability
claim pursuant to a group long term disability policy
obtained through his employer, Michigan Pain Consultants,
P.C., and administered by Defendant Northwestern Mutual
(hereinafter, “the Policy”). (ECF No. 17-2 at
PageID.425-28). Plaintiff's claim was denied, (ECF No.
1-3 at PageID.47-56; ECF No. 1-4 at PageID.58-67), prompting
the present action.
parties have stipulated that the de novo standard of review
applies in this matter, pursuant to which the Court's
role “is to determine whether the administrator. .
.made a correct decision.” Ross v. Reliance
Standard Life Ins. Co., 112 F.Supp.3d 620, 622 (W.D.
Mich. 2015) (citations omitted). The Court's review is
limited to the record that was before the administrator whose
decision is accorded neither deference nor presumption of
correctness. In sum, the Court “must determine whether
the administrator properly interpreted the plan and whether
the insured was entitled to benefits under the plan.”
Ibid (citations omitted).
Relevant Policy Language
respect to the definition of disability, the Policy provides,
in relevant part, that “[y]ou are Disabled if you meet
one of the following definitions during the period it
applies”: (1) Own Occupation Definition of Disability;
(2) Any Occupation Definition of Disability; or (3) Partial
Disability Definition. (ECF No. 1-2 at PageID.22). Plaintiff
argues that he satisfied the Own Occupation Definition of
Disability. Before addressing the parties' dispute over
the meaning of the term Own Occupation, certain other
relevant portions of the Policy must be noted.
discussed below, Plaintiff terminated his employment with
Michigan Pain Consultants on September 9, 2012. (ECF No. 17-7
at PageID.1726, 2017). The Policy provides that
Plaintiff's insurance under the Policy ended on that
date. (ECF No. 1-2 at PageID.30). Thus, to be covered by the
Policy's disability provisions, Plaintiff must
demonstrate that his disability began prior to September 9,
2012. Plaintiff must further establish that he was disabled
continuously through his benefit Beginning Date, which is
defined as the “181st day of Disability in the first
210 days after the date you became Disabled.” (ECF No.
1-2 at PageID.15).
Policy also requires that Plaintiff have been under the care
of a physician or practitioner during the time period of any
alleged period of disability. (ECF No. 1-2 at PageID.30).
Specifically, the Policy states, “[n]o benefits will be
paid for any period of Disability when you are not under the
ongoing care of a Physician or Practitioner.” (ECF No.
1-2 at PageID.30). In sum, to be covered by the Policy's
disability provisions, Plaintiff must demonstrate that he was
unable to perform his Own Occupation prior to September 9,
2012, and that such disability continued for 180 days.
Plaintiff must also have been under the ongoing care of a
physician or practitioner during any claimed period of
argues that he is disabled because he was rendered unable to
perform his Own Occupation. The parties dispute how
Plaintiff's occupation is properly defined for purposes
of his disability claim. The relevant Policy language
provides as follows:
Own Occupation Definition of Disability.
During the period preceding your Beginning Date and during
the Own Occupation Period you are required to be Disabled only
from your Own Occupation.
You are Disabled from your Own Occupation if, as a result of
Sickness, Injury, or Pregnancy, you are unable to perform
with reasonable continuity the Material Duties of your Own
You may meet the Own Occupation Definition of Disability
while working in another occupation.
(ECF No. 1-2 at PageID.22).
The Policy defines Own Occupation and Material Duties as
Own Occupation. This is any employment, business, trade,
profession, calling or vocation that involves Material Duties
of the same general character as your regular and ordinary
employment with your Employer. Your Own Occupation is not
limited to your specific job with your Employer or to your
specific area of specialization, interest or expertise within
the general occupation.
Material Duties. These are the essential tasks, functions and
operations and the skills, abilities, knowledge, training and
experience, generally required by employers from those
engaged in a particular occupation.
(ECF No. 1-2 at PageID.23).
there is no dispute that Plaintiff is a medical doctor
licensed as an anesthesiologist, the parties nevertheless
cannot agree as to the proper characterization of
Plaintiff's Own Occupation. The parties' dispute can
be generalized thusly: Plaintiff seeks a characterization
which focuses on the actual job duties he performed for
Michigan Pain Consultants whereas Defendant seeks to
characterize Plaintiff's occupation by reference to
generic definitions of anesthesiologist. Despite being
presented with information regarding Plaintiff's actual
job duties, Defendant nevertheless defined Plaintiff's
occupation by reference to two generalized definitions of
anesthesiologist, one provided by the American Medical Group
Association Compensation and Financial Survey and the other
articulated by the United States Department of Labor. (ECF
No. 1-3 at PageID.48-50; ECF No. 1-4 at PageID.61-62).
there appears to be significant overlap between the
parties' competing definitions, the fundamental
shortcoming of Defendant's interpretation is that, by
apparently disregarding the Material Duties that Plaintiff
actually performed, Defendant largely ignores the first
sentence of the definition of Own Occupation. Granted,
Defendant's position is not completely unjustifiable in
light of the relevant Policy language; however,
Plaintiff's interpretation enjoys at least equal support
in the Policy language. In the Court's estimation, the
relevant language is ambiguous and confusing in which case
such is construed in Plaintiff's favor. See English
v. Blue Cross Blue Shield of Michigan, 688 N.W.2d 523
537 (Mich. Ct. App. 2004) (an insurance policy is a
contract); Auto Club Ins. Assoc. v. DeLaGarza, 444
N.W.2d 803, 805-06 (Mich. 1989) (ambiguous contract terms are
interpreted against the drafter).
the Court finds that the better reading of the relevant
Policy language is that Plaintiff's Own Occupation is
defined by reference to the Material Duties of
Plaintiff's employment with Michigan Pain Consultants as
of the date of Plaintiff's alleged disability, to the
extent such are not inconsistent with or incompatible with
the tasks an anesthesiologist might generally perform. This
does not terminate the inquiry, however, as there exists a
legitimate question as to the precise nature of
Plaintiff's job duties as of July 2012.
Mark Gostine, President of Michigan Pain Consultants,
submitted a letter in which he articulated the job
description of an interventional pain management physician
working for Michigan Pain Consultants. (ECF No. 17-2 at
PageID.578). According to Gostine, an interventional pain
management physician treats patients experiencing chronic
pain by performing various interventional procedures and also
participates in medical group governance, professional
advocacy, and various teaching and continuing education
activities. (ECF No. 17-2 at PageID.578). Dr. Gostine
described the physical and mental activity requirements of
this position as: (1) the ability to treat an average of
twenty-two (22) patients daily; (2) the ability to work 9-10
hours daily, five days weekly; and (3) the ability to daily
perform twenty (20) highly technical interventional
procedures all while standing and frequently wearing a ten
pound x-ray resistant apron. (ECF No. 17-2 at PageID.578).
Court notes, however, that Dr. Gostine did not describe
Plaintiff's actual job duties, but instead
described the general requirements of the position which
Plaintiff held. Generally, this distinction would be without
significance as, absent evidence to the contrary, it is not
unreasonable to conclude that an employee performs duties
consistent with the employer's job description. Here,
however, there is compelling evidence, from Plaintiff
himself, that his job duties, as of July 2012, were not
nearly as extensive and demanding as Dr. Gostine suggests.
15, 2011, Plaintiff moved in state court for a reduction of
his court ordered spousal support obligations. (ECF No. 17-7
at PageID.2024). On February 10, 2012, the state court
conducted an evidentiary hearing on the matter. (ECF No. 17-7
at PageID.2022-88). At this hearing, Plaintiff testified,
under oath to the following. Plaintiff described his medical
practice as performing nerve block procedures. (ECF No. 17-7
at PageID.2078-79). Plaintiff reported that he previously
performed “about” 22 such procedures daily. (ECF
No. 17-7 at PageID.2078-79). Plaintiff further reported,
however, that he had “substantially reduced [his]
clinical activities” and was “working in a
different capacity now.” (ECF No. 17-7 at PageID.2058).
then aged 62, testified that he wanted to retire from the
practice of medicine, but because “there is no
replacement for me in my practice, ” he had “to
take a strategy of gradually reducing my patient care by
attrition so that the patients are not abandoned.” (ECF
No. 17-7 at PageID.2058-59, 2062). Plaintiff reported that
beginning on January 1, 2012, he officially began his
transition to retirement from the practice of medicine. (ECF
No. 17-7 at PageID.2062-65). Specifically, Plaintiff
testified that he was presently working “about 12 days
a month, ” down from “16 to 18 a month” the
previous year. (ECF No. 17-7 at PageID.2065). According to
Plaintiff, working 18 days monthly was considered full-time.
(ECF No. 17-7 at PageID.2067). Plaintiff continued that his
plan going forward was to locate a physician to whom he could
immediately transfer his practice. (ECF No. 17-7 at
PageID.2065-66). However, in the event no such replacement
could be located, Plaintiff would nonetheless “fully
retire” from the practice of medicine no later than
December 31, 2012. (ECF No. 17-7 at PageID.2066).
Court cannot discern from Plaintiff's testimony or
anything else in the record the precise nature of
Plaintiff's job duties as of July 2012. However, it is
clear from Plaintiff's state court testimony that as of
February 2012, he was working significantly fewer days each
month. Specifically, Plaintiff testified that he was working
twelve days monthly or approximately three days each week.
There is nothing in the record to suggest that between
February 2012 and July 2012, Plaintiff increased his
workload. Thus, the Court finds that Plaintiff's Own
Occupation consists of the general duties described by Dr.
Gostine, except that Plaintiff was not working full-time, but
instead was working only three (3) days weekly.
III. Examination of the Relevant Medical Evidence
16, 2012, Plaintiff underwent a laser surgical procedure to
treat: (1) obstructive benign prostatic hypertrophy [BPH]
with a very large prostate, and (2) left renal calculus. (ECF
No. 32-1 at PageID.2756-58). While this procedure “went
smoothly and quickly, ” Plaintiff experienced
“significant continued bleeding following the
procedure.” (ECF No. 32-1 at PageID.2781-82). Plaintiff
thereafter underwent a procedure which confirmed “a
clot present in the prostatic fossa and bladder.” (ECF
No. 32-1 at PageID.2781-82). The clot was removed and the
area coagulated with a laser. (ECF No. 32-1 at
PageID.2781-82). Plaintiff was subsequently diagnosed as
having experienced an episode of disseminated intravascular
coagulation (DIC). (ECF No. 32-1 at PageID.2829-40).
notes dated July 18, 2012, indicate that Plaintiff's
condition was “much improved.” (ECF No. 32-1 at
PageID.2876). It was determined, based upon clinical
assessment and laboratory testing, that the most likely cause
of Plaintiff's DIC episode was that such was simply a
side effect of his prostate surgery rather than some other
underlying pathology or cause. (ECF No. 32-1 at
PageID.2904-06). Treatment notes dated July 19, 2012,
indicate that ...