United States District Court, E.D. Michigan, Northern Division
KIMBERLY J. GUEST-MARCOTTE, Plaintiff,
LIFE INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants.
Patricia T. Morris Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR ATTORNEY
FEES AND COSTS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
Kimberly J. Guest-Marcotte filed her complaint on February
27, 2015 asserting a claim for short term disability
(“STD”) benefits under the Employee Retirement
Income Security Act of 1974 (“ERISA”), as well as
a claim for disability discrimination under the Michigan
Persons with Disability Civil Rights Act (PWDCRA), MCL
37.1101, et seq., against her former employer, Metaldyne
Powertrain Co., and her former employer's ERISA Plan
administrator, Life Insurance Co. of North America
(“LINA”). ECF No. 1. On April 1, 2015, all
pretrial matters were referred to Magistrate Judge Morris.
ECF No. 9. Defendants filed a motion to dismiss, an answer,
and a counterclaim on April 24, 2015. ECF Nos. 11, 12.
Plaintiff then filed an answer to Defendants'
counterclaim on May 13, 2015. ECF No. 17. On June 22, 2015,
Magistrate Judge Morris issued a report recommending that the
Court grant Defendants' motion to dismiss, to which
Plaintiff filed objections on July 2, 2015. ECF No. 20, 21.
The court ultimately issued an order overruling
Plaintiff's objections, adopting the Magistrate
Judge's report, and dismissing Plaintiff's PWDCRA
claim. ECF No. 28.
supplemental briefing, Plaintiff filed a motion for leave to
file a first amended complaint on November 20, 2015. ECF No.
35. The Magistrate Judge issued a report, ECF No. 40, which
the Court adopted, granting Plaintiff's motion to amend
in part and confirming the standard of review as arbitrary
and capricious. ECF No. 42. Plaintiff then filed an amended
complaint on April 19, 2016. ECF No. 44. After filing of the
administrative record and pertinent plan documents (ECF Nos.
49, 50), Plaintiff moved for judgment on August 5, 2016. ECF
No. 54. Defendants moved for dismissal of Plaintiff's
case and judgment on the counterclaim. ECF No. 55. On
December 1, 2016, Magistrate Judge Morris issued a report
recommending that the court deny Plaintiff's motion and
grant Defendants' motion, noting that “[t]ime and
again, this Circuit has held that “it is entirely
reasonable for an insurer to request objective evidence of a
claimant's functional capacity.'” Rep. &
Rec. at 25, ECF No. 63 (quoting Rose v. Hartford
Financial Services Group, Inc., 268 Fed.Appx. 444, 453
(6th Cir. 2008)). On January 6, 2017, the Magistrate
Judge's report was adopted, and Plaintiff's claims
were dismissed with prejudice. ECF No. 67. Plaintiff timely
appealed the decision. ECF No. 75. The Court of Appeals for
the Sixth Circuit issued its opinion on March 30, 2018,
reversing the dismissal of Plaintiff's claims and
remanding the matter for a full and fair review of
Plaintiff's condition and her application for STD
benefits. ECF No. 81. Judgment was entered in favor of
Plaintiff on April 27, 2018. ECF No. 84. On May 21, 2018,
Plaintiff filed a motion for attorney fees and costs. ECF No.
85. For the following reasons, that motion will be denied.
undisputed that Plaintiff has been diagnosed with and suffers
from Ehlers-Danlos Syndrome Type III (“EDS”), a
hereditary disease characterized by loose connective tissue
and frequent joint dislocations. It is medically known that
EDS can cause chronic pain. On the recommendation of her
primary care physician, Dr. Kadaj, and an expert in EDS, Dr.
Tinkle, Plaintiff sought a disability leave of absence in
June 2013. Adm. Record at 102-03, ECF No. 49-1. Soon
thereafter, Plaintiff applied for short-term disability
benefits through Defendant Life Insurance Company of North
America (“LINA”). In support of her application,
Dr. Kadaj submitted a medical request form, in which he
concluded that Plaintiff should not return to work, even if
significant accommodations were made. Dr. Tinkle also
submitted a medical request form. Dr. Tinkle concluded that
Plaintiff could return to work if she did not lift objects
heavier than five pounds, did not engage in any repetitive
motions, and took frequent breaks. Id. at 59.
Plaintiff was initially denied benefits in August 2013.
Id. The denial was based on a review of the notes
from Plaintiff's office visits, medical request forms
from both Dr. Kadaj and Dr. Tinkle, and a clarification
request from Dr. Tinkle. Id. Before making its
determination, LINA followed up with both treating doctors
and Plaintiff on several occasions. Adm. Record at 154, 162,
ECF No. 49-2; Adm. Record at 49, ECF No. 49-5. The medical
evidence was reviewed by Nurse Case Manager Sarah Drudy and
Dr. Paul Seiferth. Adm. Record at 74, ECF No. 49-6. LINA
denied the claim for the reasons explained in Judge
Ultimately, July 3, 2013 commentary from a physician
reviewer, Paul D. Seiferth, M.D., notes that Dr. Tinkle's
findings, which explicitly indicate Ehlers-Danlos Syndrome
with joint pain and laxity, “are remarkable for TMJ
[temporomandibular joint] crepitation, normal extremity range
of motion, and strength, hyper-mobility of joints on the
Beighton scale 5/9.” (Doc. 49-6 at 74). He continued to
note that imaging showed “central cervical spine
stenosis at ¶ 4-5 with no clinically correlated signs,
” and no signs that Plaintiff's condition
“worsened at incur” as she was “functional
at a sedentary demand level” since her original
diagnosis in 2005. (Id.). Later, on July 22, 2013,
an updated review of medical evidence submitted by Dr. Kadaj
failed to support Plaintiff's inability “to perform
prolonged sitting, standing, [or] lifting greater than 10
pounds or pushing/pulling activities” with
“diagnostic testing results indicating [the] nature and
presence of functional loss.” (Doc. 49-6 at 67). Her
initial claim was denied on these grounds, and indicated that
while LICNA/CIGNA was “in no way stating [that
Plaintiff's] symptoms do not exist, . . . there [was] no
documentation or a functional deficit” and “no
diagnostic testing on file to support [Plaintiff's]
diagnosis.” (Doc. 49-1 at 60).
Rep. & Rec. at 13.
appealed the denial of benefits in September 2013.
Id. at 95-96. Her appeal contained supplemental
medical information, including notes from additional office
visits; letters from Dr. Kadaj, Dr. Tinkle, Sheila
Isles-Truax (Plaintiff's physical therapist), Dr.
Wilkinson (Plaintiff's acupuncturist), and Dr. Deitrick
(Plaintiff's therapist); x-ray results; lab work results;
and notes from physical therapy sessions. Id. Before
making a determination on Plaintiff's appeal, LINA
requested follow-up information several times. Adm. Record at
14, ECF No. 49-3. Plaintiff's appeal, and all included
medical information, was reviewed this time by an additional
physician, Dr. Nick Ghaphery. Adm. Record at 34, ECF No.
49-6. In November 2013, LINA rejected Plaintiff's appeal
and affirmed the denial of benefits on the same grounds. Adm.
Record at 96, ECF No. 49-1. Gena Morton, writing for LINA,
provided an explanation which was summarized in Judge
She observed that “the medical information on file did
not identify any significant clinical findings to demonstrate
a functional impairment.” (Doc. 49-6 at 34). She noted
that lab results revealed no “significant abnormalities
that would preclude functional demands, ” and that
despite office notes from Dr. Kadaj indicating “limited
right shoulder motion in abduction, and abnormal joint
palpitation, there are no quantified measurable strength or
functional deficits documented” to support these
alleged limitations. (Id.). Plaintiff's EMG, for
instance, did not “demonstrate evidence of
radiculopathym myopathy, or peripheral neuropathy, ”
and her MRI- which did reveal “moderate central canal
stenosis at ¶ 4- C5”-nevertheless “would not
preclude functional demands.” (Id.)
filed her final internal appeal in July 2014, which included
the following additional medical information: statements from
Dr. Kadaj and Dr. Tinkle; Dr. Tinkle's curriculum vitae;
office notes from a Dr. Bergeon; a healthcare provider
questionnaire; letters from Dr. Deitrick, Dr. Kadaj, Dr.
Wilkinson, and Dr. Tinkle; results from a nerve conduction
study; physical therapy notes; x-ray of Plaintiff's
shoulder and lumbar spine; MRI of Plaintiff's cervical
spine; sleep study results; and medical request forms. Adm.
Record at 4-5, ECF No. 49-5. Plaintiff's second appeal,
and all medical information, was reviewed by a third
physician, Dr. Shadrach Jones. Adm. Record at 15, ECF No.
49-6. Plaintiff's final appeal was denied in October
2014, for the reasons explained in Judge Morris's report:
consultation with reviewing physician Shadrach H. Jones, IV,
M.D., Appeal Assignee Elizabeth Palmer noted that “the
current objective or quantifiable clinical examination,
clinical diagnostic testing, or imaging documentations do not
support a significant ongoing physical functional impairment
which would preclude [Plaintiff] from performing her own
occupational duties on a full time basis.” (Doc. 49-6
at 15) (emphasis added). She observed that Dr. Tinkle's
medical genetics analysis “did not document any
specific physical findings or impairments that would preclude
the required occupational functional abilities, ” that
his suggested limitations were “not supported by
documented impairment, ” that Dr. Kadaj's physical
examination was “normal” and presented no
musculoskeletal or neurologic exam findings, that Dr.
Bergeon's notes found “no focal weakness or other
neurological abnormalit[ies], ” and that Dr. Bergeon
did not suggest any work limitations, though he
“encouraged active independent exercise.”
(Id.) (emphasis added).
commenced this action on February 27, 2015.
seeks attorney fees and costs, contending that she has had
success on the merits and that the King factors
weigh in favor of such an award. Sec'y of Dep't
of Labor v. King, 775 F.2d 666, 669 (6th Cir.
1985). Specifically, Plaintiff argues that the
Sixth Circuit's finding that LINA's conduct in
denying her benefits was arbitrary and capricious and the
Court's order remanding the case for a full and fair
review establish the propriety of a fee award. Mot. at 1-2,
ECF No. 85. Plaintiff also argues that Defendants are
financially capable of satisfying a fee award, that such an
award would deter similarly-situated plan administrators from
behaving arbitrarily in addressing applications for benefits,
and that Plaintiff's success confers a common benefit for
other participants in the ERISA plan. Id. at 9-11.
argue that a fee award is not supported by the King
factors in this case. Specifically, they argue that a finding
of “arbitrary and capricious” is not the same as
a finding of culpability or bad faith, and that they are not
culpable. Resp. at 5, ECF No. 86. Defendants do not contest
that they are financially capable of satisfying an award, but
they do argue that the conduct that resulted in the denial of
Plaintiff's claims was not rooted in bad faith; instead,
Defendants contend that the denial was rooted at most in an
honest mistake concerning the necessity of a physical
examination of the Plaintiff, and that a fee award will not
have a deterrent effect. Id. at 8. Additionally,
Defendants argue that Plaintiff's action sought a private
benefit, and that it will not- nor was it ...