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Brenda Counts v. United of Omaha Life Insurance Co.

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

December 17, 2019

Brenda Counts, Plaintiff,
United of Omaha Life Insurance Company, Defendant.

          Mona K. Majzoub Mag. Judge




         Plaintiff Brenda Counts brings this action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B) and § 1132(a)(3), against Defendant United of Omaha Life Insurance Company for denying Plaintiff's applications for short-term and long-term disability benefits.

         Plaintiff, a flower sales specialist, worked for Denver Wholesale Florist-Flint for twenty-seven years and has been covered under Defendant's disability insurance policy since January 1, 2016. After battling lower back pain since 2013, and attempting an increasingly severe regimen of pain medications, physical therapy, steroid injections, and a spine surgery, Plaintiff's physicians concluded in 2017 that Plaintiff's spine had deteriorated to the point that Plaintiff was “totally medically disabled.” Plaintiff applied for both short-term and long-term disability benefits in 2017, and Defendant denied both claims in 2018. Plaintiff sued Defendant for the benefits on July 24, 2018.

         This issue is before the Court on cross motions for summary judgment on the administrative record. For the foregoing reasons, the Court finds that Plaintiff was entitled to both short-term and long-term disability benefits under Defendant's disability benefits policy. Accordingly, Plaintiff's motion for judgment on the administrative record is GRANTED, and Defendant's motion to affirm denial of benefits is DENIED. The case is REMANDED to the administrator to determine the benefits award in accordance with this Order. The parties may submit supplemental briefing on attorney fees.


         A. The Benefits Plan and Plaintiff's Work History

         Plaintiff worked for Denver Wholesale Florist-Flint (“DWF”) from August 28, 1989 to May 10, 2017, as an “Inside Sales Associate.” (ECF No. 29-1, PageID.304.) As an “Inside Sales Associate, ” Plaintiff was responsible for cutting, organizing, and selling flowers. (ECF No. 29-9, PageID.141.) This position also required “[m]aking sales calls, pulling product[, ] and packing.” (ECF No. 29-9, PageID.135.)

         Plaintiff became insured under the ERISA-governed United of Omaha Life Insurance Company Benefits Plan (“United” and “the Plan”) on January 1, 2016. (ECF No. 1-2, PageID.22-23.) Plaintiff filed two claims under this Plan. Plaintiff's first claim requested short-term disability benefits in June 2017. (See ECF No. 29-9, PageID.1990.) Plaintiff later additionally filed for long-term disability benefits after she became eligible in August 2017. (See ECF No. 29-14, PageID.2932.) For purposes of both short-term and long-term disability benefits, the Plan defines “disability” 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, as a result of which:
a) during the Elimination Period, You are prevented from performing at least one of the Material Duties of Your Regular Job (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 Job (on a part-time or full-time basis); and
2. unable to generate Current Earnings which exceed 99% of Your Basic Weekly Earnings due to that same Injury or Sickness.

(ECF No. 29-1, PageID.287.) The Plan defines “sickness” as “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.” (Id. at PageID.289.) The Plan defines “material duties” as “the essential tasks, functions, and operations relating to Your Regular Job that cannot be reasonably omitted or modified.” (Id.) The Plan does not define “significant change.”

         The Plan's short-term benefits policy provides beneficiaries with weekly pay that is 60% of a beneficiary's gross weekly earnings, and the long-term benefits policy provides beneficiaries with monthly pay that is 60% of the beneficiary's gross monthly earnings. (Id. at PageID.271-272, ECF No. 8-3, PaegID.136.) Both plans exclude the following income sources in their calculations: commissions, bonuses, overtime, contributions to deferred compensation plans, and extra compensation. (ECF No. 29-1, PageID.271-272; ECF No. 8-3, PageID.135.) Short-term benefits last up to eleven weeks, with an elimination period (the number of days of continuous disability which must be satisfied before beneficiaries could receive benefits) of fourteen days. (ECF No. 29-1, PageID.271, 278.) Both benefit programs require beneficiaries to “apply for and pursue” other income sources for which they are eligible, including Social Security. (ECF No. 29-1, PageID.274; ECF No. 8-3, PageID.137-138.)

         United categorized Plaintiff's occupation as a “light strength job.” (ECF No. 29-1, PageID.297.) United's description of a light strength job is as follows:

A light strength job require[s] exerting up to 20 pounds of force occasionally [], and/or up to 10 pounds of force frequently [], and/or negligible amount of force constantly [] to move objects.[1]
Even though the weight lifted may be only a negligible amount, an occupation should be rated Light work (1) when it requires walking or standing to a significant degree; or
(2) when it requires sitting most of the time, but entails pushing/pulling of arm or leg controls; and/or
(3) when the occupation requires working at a production rate pace entailing the constant pushing/pulling of materials even though the weight of those materials is negligible.
Note: industrial setting can be and is physically demanding of a worker even though the amount of force exerted is negligible.

(See Id. at PageID.297-298.)

         B. Plaintiff's medical history

         In early 2014, Plaintiff began seeking medical help for back pain. (See, e.g., ECF No. 29-10, PageID.2230, 2232, 2234.) In May 2014, Dr. Kazem Hak diagnosed Plaintiff with herniated disc syndrome after Plaintiff complained of low back pain that shot down to her buttocks and legs. (ECF No. 29-10, PageID.170.) After conducting an MRI, Dr. Hak identified the herniated disc as “L4” and noted that Plaintiff additionally had a “right side[] compromise and moderate spinal stenosis.” (Id.) Dr. Hak prescribed pain medications and scheduled a series of follow-up appointments. (Id.)

         Beginning in November 2014 and continuing through May 2015, Plaintiff received regular lumbar epidural steroid injections into her lower back. (ECF No. 29-3, PageID.684, 686, 688, 690, 692, 694.) These injections were intended for pain relief, and after each injection the physician report noted that Plaintiff “left the office in stable satisfactory condition.” (Id.) Plaintiff also participated in physical therapy from November to December 2014. (ECF No. 29-8, PageID.1828.)

         Though the injections and therapy provided Plaintiff with temporary relief, by July 2015, Plaintiff's pain was “getting worse.” (ECF No. 29-8, PageID.1828.) Plaintiff reported to Dr. David Fernandez, of OrthoMichigan, complaining of increasing pain that was “sharp, achy, cramping and burning.” (Id.) Dr. Fernandez noted that Plaintiff's pain “affect[ed] her sleep, ” that the pain was “[a]ggravated by sitting, standing, walking, lifting, [and] going up or down stairs, ” and that Plaintiff reportedly “c[ould] only walk two to three blocks.” (Id.) Dr. Fernandez also noted that Plaintiff was “working in sales and was doing heavy lifting.” (Id.)

         After performing a physical examination and finding “[n]o pain [] with range of motion, ” Dr. Fernandez ordered x-rays of Plaintiff's lumbar spine. (Id. at PageID.1829.) After reviewing the x-rays, Dr. Fernandez diagnosed Plaintiff with “lumbar spondylosis, ” “lumbar degenerative disc disease, ” “L4-5 stenosis from ligamentum flavum hypertrophy and facet anthropathy and diffuse disc bulge, ” “low back pain, ” “neurogenic claudication, ” and “bilateral lower extremity radiculopathy.” (Id. at PageID.1829.) Noting that Plaintiff had “already exhausted nonoperative options [] includ[ing] physical therapy, epidural steroid injections and medications including narcotics, ” Dr. Fernandez recommended a bilateral L4-5 decompression surgery. (Id. at PageID.1829-1830.) Dr. Fernandez also noted that he was “very clear [he] could not guarantee results and [Plaintiff] could be the same, better[, ] or worse.” (Id. at PageID.1830.) Dr. Fernandez warned Plaintiff that she “may always have some back pain from the degenerative changes [to her spine].” (Id.) Nevertheless, Plaintiff elected to proceed with the surgery. (Id.)

         On July 29, 2015, Dr. Fernandez performed a bilateral decompressive L4-L5 laminotomy and partial medial facetectomy on Plaintiff. (ECF No. 29-8, PageID.1837.) At this point, Plaintiff had been taking Norco-an opioid pain reliever-for “over a year and a half.” (Id. at PageID.1827.) Plaintiff's two-week post-surgery appointment notes reveal that Plaintiff recovered well, and Plaintiff's doctors were hopeful about weaning Plaintiff off her pain medications. (Id.) Eight weeks after the surgery, in October 2015, Plaintiff “blew [her] back out” and had some mild swelling and fluid collection around her surgery incision, but was otherwise able to walk a mile a day and doing well. (Id. at PageID.1825.) However, Dr. Fernandez's February 2016 follow-up notes state that Plaintiff continued to recover “until she went back to work” in November 2015. (Id. at PageID.1823.) Dr. Fernandez noted that Plaintiff “does a lot of heavy lifting” at work and that she “began having pain that started in the left lower buttock and radiated down the left lower extremity posteriorly to her foot . . . [i]t is affecting her ability to do activities. She is on her feet all day long.” (Id.) Dr. Fernandez recommended another MRI of Plaintiff's lumbar spine. (Id. at PageID.1822.)

         Based on the MRI, Dr. Fernandez found in May 2016 that Plaintiff's spine had undergone “postoperative changes” that included “a large amount of” scarring and a “large heterogeneous peripheral enhancing fluid collection.” (Id.) Dr. Fernandez discussed next steps with Plaintiff, which included possible use of a “spinal cord stimulator.” (Id.) Finally, in response to Plaintiff's complaints of wrist pain, Dr. Fernandez noted that Plaintiff may additionally “have carpal tunnel syndrome” and prescribed an EMG and NCV with Dr. Hettle. (Id.)

         In June 2016, Dr. Hettle performed the EMG of Plaintiff's wrist and diagnosed Plaintiff with “very severe, acute median neuropathy at the left wrist.” (Id. at PageID.1818.) Dr. Fernandez noted that he was “concerned about possible space occupying [the wrist] lesion per the EMG” and additionally referenced Plaintiff's “chronic low back pain.” (Id.)

         In December 2016, Plaintiff went to the emergency room after experiencing a “pop” in her lower back while squatting. (ECF No. 29-11, PageID.2236.) Plaintiff rated her pain as a nine out of ten. (Id.) The hospital performed a CT scan and noted the following observations: moderate T11-T12 disc space narrowing, a Schmorl's node on T11 with adjacent sclerotic change, minimal disc bulge around L2-L3, a broad disc bulge around L3-L4, and postoperative decompression at ¶ 4-L5 with moderate facet arthropathy and mild stenosis. (Id.) The hospital's formal diagnosis was: “postoperative changes L4-L5 with mild stenosis, ” “disc material” exiting the right L3 nerve root, and “posterolateral disc protrusion at ¶ 3-L4.” (Id. at PageID.2337.) The hospital noted that there had been “no acute fracture or subluxation” of the spine. (Id.)

         In February 2017, Plaintiff went back to Dr. Fernandez for an MRI of her left wrist. (ECF No. 36, PageID.3156.) Plaintiff complained of numbness in her thumb and first two fingers along with intermittent swelling. (Id.) After reviewing the MRI, Dr. Fernandez noted a ganglion cyst near the carpal tunnel, as well as a “relatively large tear” and “advanced degenerative changes of the first [] metacarpal joint and moderate degenerative changes throughout the carpus.” (Id.)

         Also in February 2017, Plaintiff began consulting with Dr. Kavitha Reddy at Great Lakes Interventional Pain Management for her lower back pain. (ECF No. 36, PageID.3158.) Dr. Reddy affirmed Plaintiff's diagnosis of chronic low back pain and advised that Plaintiff continue with her pain medications. (Id. at PageID.3159.) Dr. Reddy also affirmed that the February 2016 MRI showed postsurgical changes to Plaintiff's spine. (Id.) Dr. Reddy noted that Plaintiff now had an “antalgic and limping” gait, that Plaintiff experienced pain when walking on her heels, and that Plaintiff's range of motion in her lumbar area was “limited.” (Id.) Finally, Dr. Reddy proposed additional therapeutic injections and surgical options to Plaintiff. (Id.) Plaintiff consulted Dr. Reddy again for pain in March 2017. (Id. at PageID.3161.)

         In April 2017, Plaintiff visited Dr. Dass, an orthopedic surgeon, for her wrist numbness and pain. (Id. at PageID.3164.) Dr. Dass recommended “surgical decompression of the median nerve” because “conservative, non-operative options ha[d] failed.” (Id. at PageID.3167.) Dr. Dass intended to schedule the surgery “as soon as possible.” (Id.)

         On May 4, 2017, the McLaren Regional Medical Center performed a CT scan of Plaintiff's lumbar spine after Plaintiff rated her pain at a ten out of ten. (ECF No. 29-11, PageID.2312.) The attending physician noted that Plaintiff had “lumbar spondylosis and degenerative disc disease, ” but that the diseases had “not significantly changed” from an unspecified previous time. (Id. at PageID.3170.)

         May 9, 2017 was Plaintiff's last full day of work. (ECF No. 29-8, PageID.1812.) Plaintiff attested that, while her pain increased after returning to work in November 2015, she had attempted to “perform [her] job into May of 2017.”[2] (ECF No. 29-8, PageID.1811.) Despite Plaintiff's efforts, on May 9, 2017, her back “simply gave out” during an “unexpected family emergency.” (Id. at PageID.1811-1812.) Plaintiff took a week of medical leave following this event before her manager suggested that she use the rest of her vacation time for the year. (Id. at PageID.1812.) After exhausting her final two weeks of vacation time, Plaintiff realized “that [her] condition was not improving and [she] was unable to return to work, on either a full or part-time basis.” (Id.) Plaintiff notified DWF that she would not be returning to work, and May 9, 2017 became Plaintiff's last official day at DWF. (Id.)

         On June 12, 2017, Dr. Hak signed an affidavit attesting that Plaintiff would be unable to work, even with modifications, unless her condition improved. (ECF No. 29-9, PageID.1999.) Dr. Hak attested that Plaintiff would be restarting her epidural injections. (Id.) Dr. Hak also attested that Plaintiff was unable to lift or carry anything above ten pounds, that Plaintiff should only occasionally attempt to lift anything under ten pounds, that Plaintiff was unable to sit for more than an hour at a time, that Plaintiff was unable to stand or walk for more than a half hour at a time, that Plaintiff could not bend at all, and that Plaintiff could not spend more than a half hour to an hour on her feet at a time. (Id. at PageID.1998.)

         C. Administrative Proceedings

         1. Initial Applications and Denial

         In June 2017, Plaintiff filed a claim with Defendant requesting short-term disability benefits beginning May 11, 2017. (See ECF No. 29-9, PageID.1990.) After requesting and receiving Plaintiffs medical records, (id. at PageID.1988, 1990), Defendant denied Plaintiffs claim on August 10, 2017 (“August Denial”). (ECF No. 29-9, ...

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