MINNEAPOLIS PERSONAL INJURY ATTORNEY  
attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
   
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
   
 > Contact Us
   :: Contact Us
 

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

Darvell v. Life Ins. Co. of N.A.: US District Court : ERISA - generic v. claim-specific analysis of inability to do regular occupation's material duties

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JERRY B. DARVELL,
Plaintiff,
v.
LIFE INSURANCE COMPANY OF
NORTH AMERICA,
Defendant.
Case No. 07-CV-2113 (PJS/RLE)
ORDER GRANTING DEFENDANTS
MOTION FOR SUMMARY JUDGMENT
James W. Balmer and Stephanie M. Balmer, FALSANI, BALMER, PETERSON,
QUINN & BEYER, for plaintiff.
Scott R. Carlson, HINSHAW & CULBERTSON LLP, for defendant.
Plaintiff Jerry Darvell participated in a long-term disability plan (the Plan) that was
sponsored by his former employer, Yellow Book USA, Inc. (Yellow Book) and established
pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq.
Defendant Life Insurance Company of North America (LINA) insured the Plan and also
served as the claims administrator. Darvell brought this action to seek review of LINAs
decision to deny his claim for long-term disability benefits.
This matter is before the Court on LINAs motion for summary judgment. For the
reasons set forth below, the motion is granted, and Darvells complaint is dismissed with
prejudice.
I. BACKGROUND
A. Darvells Health and Work History
From May 2003 to March 2005, Darvell worked as an account representative for Yellow
Book, selling advertising space in phone books. Administrative Record (AR) 84, 598. Darvell
1RSD, also known as complex regional pain syndrome (CRPS), is a chronic and
progressive neurological condition that is characterized by various degrees of burning pain,
excessive sweating, swelling, and sensitivity to touch. AR 196, 200-01. Characteristic signs of
the disorder that may appear in the affected area include shiny, thin skin; warmer or cooler skin;
mottled skin; an increase or decrease in hair; and brittle, thickened nails. AR 200. Although the
condition is most often triggered by an injury or other trauma to the affected area, the cause
remains unknown. AR 200.
2The stellate ganglion is an aggregation of nerve cells in the neck. Stedmans Medical
Dictionary 785, 787, 351 (28th ed. 2006) (definitions of ganglion and related terms). A
stellate-ganglion block is an injection of local anesthetic around this group of nerves. Id. at 230
(definition of nerve block). Stellate-ganglion blocks have generally been successful in
reducing Darvells overall pain level for six to twelve months at a time, although more recently
they have not been as effective. See AR 317.
-2-
stopped working in March 2005, when LINA approved his application for short-term disability
benefits. AR 653-54. After his short-term benefits expired, Darvell sought long-term benefits
under the Plan. The medical records in Darvells administrative file reveal the following:
Darvell has a history of shoulder, arm, and hand pain stemming from injuries he suffered
in a 1980 car accident. AR 231, 316. Darvell is primarily under the care of Dr. Douglas
Johnson, a family practitioner; Dr. Raymond Hausch, a rheumatologist; and Dr. Thomas Kaiser,
an orthopedic surgeon. These doctors have diagnosed Darvell with three conditions: reflex
sympathetic dystrophy (RSD),1 osteoarthritis in both shoulders, and depression. AR 231, 242,
246-47. In the late 1990s, Dr. Kaiser performed surgery on both of Darvells shoulders.
AR 271. The surgeries enabled Darvell to go back to work; he had apparently been unemployed
for some time before the surgeries. AR 246.
Darvells condition has long been managed through pain medication, regular
administration of stellate-ganglion blocks,2 and injections of anesthetic and cortisone into his
shoulders. Over the years, Darvells symptoms have waxed and waned, and his doctors have
-3-
adjusted his medication regimen numerous times, both in an effort to improve his treatment and
in response to problems with Darvells prescription-drug coverage or the withdrawal of certain
medications from the market.
In October 2004, Darvells symptoms took a turn for the worse. He went to see both
Dr. Hausch and Dr. Kaiser complaining of significantly increased pain. AR 242, 246. Darvell
was emotionally upset and reported that the increased pain was preventing him from doing his
job. AR 246. Darvell was having trouble with pushing, pulling, and lifting, and could no longer
lift his right arm above shoulder level. AR 246. He also experienced crepitus (grinding and
crackling) with the movement of his shoulders. AR 242; Stedmans Medical Dictionary, supra
at 457 (defining crepitus and related terms). X-rays revealed progressive osteoarthritis in both
shoulders, with his right shoulder significantly worse than his left, as well as osteophyte
formation in his right shoulder joint. AR 247. Dr. Hausch administered cortisone/anesthetic
injections in both shoulders. AR 242-43.
Both Dr. Kaiser and Dr. Hausch restricted Darvell to sedentary work, which could
include lifting up to ten pounds and occasional walking and standing. AR 245, 247-48.
Somewhat inconsistently, Dr. Hausch also stated that I do not see any way [Darvell] can
continue to do any work or sustain gainful employment given the amount of arthritis in his
shoulder and also his reflex sympathetic dystrophy. . . . I do believe this patient is disabled and is
unable to sustain gainful employment. AR 242. Dr. Kaiser also noted that Darvell had a
major problem right now with depression and anxiety. AR 247.
3A labrum is a lip of cartilage around the concave portion of some joints, including the
shoulder joint. Stedmans Medical Dictionary, supra at 1038.
-4-
A few days later, Darvell saw Dr. Johnson, who opined that depression was becoming a
greater and greater part of his disability and that Darvell should be on disability due to
depression. AR 249. Dr. Johnson prescribed an antidepressant. AR 249.
For the next four months (through February 2005), Darvells doctors continued to restrict
him to sedentary work, and Darvells symptoms continued to wax and wane. At times, his
range of motion was found to be markedly restricted, AR 260, 258, and he was in significant
pain, AR 253, but these symptoms improved somewhat after treatment (in particular, after
cortisone/anesthetic injections in his shoulders in January), AR 253-254. In January, an MRI
that was performed on Darvells right shoulder revealed minimal thinning of the labrum3 and
some irregularity of the humeral head that was suggestive of mild degenerative change. AR 252.
Overall, Darvells doctors did not seem to consider these findings particularly significant.
AR 234 (noting that the mininal degenerative change in the glenohumeral area is probably not
the thing that is initiating all of his problems at this time); AR 274 (noting minimal evidence
of disease on imaging studies).
On February 9, Dr. Johnson authored a letter opining that each one of Darvells
conditions (RSD, osteoarthritis, and depression) was in and of itself disabling i.e., that each
condition alone precluded Darvell from gainful employment of any kind. AR 256-57.
Dr. Johnson further opined that he did not think Darvell would be able to return to work as an
account executive in the future. AR 257. Dr. Johnson also noted that antidepressants had
improved Darvells symptoms of depression and alleviated any need to see a psychiatrist.
-5-
AR 256-57. About a week later, after a clinic visit, Dr. Johnson again noted that Darvells
symptoms of depression were improving. AR 258.
On March 4, Dr. Johnson noted that Darvells right shoulder was jelling much more
and that he had a limited range of motion at his right shoulder and increased pain with any type
of movement. AR 259. At this point, Dr. Johnson decided to order Darvell to stop working
altogether. AR 259. Apparently in support of this decision, Dr. Johnson authored a second letter
on March 30 a letter that was essentially identical to the February 9 letter again opining
that each one of Darvells three conditions was disabling, that Darvell was unable to work as a
result of each condition, and that Dr. Johnson did not believe that Darvell would ever be able to
return to work as an account executive. AR 231-32. Darvells other doctors agreed that he was
disabled and should not be working. AR 236, 241, 321.
Darvells last day of work was March 3, 2005. AR 84. As noted, Darvell applied for and
received short-term disability benefits. Over the next nine months (which is as far as the medical
records in the administrative record go), Darvells symptoms continued to wax and wane, and his
doctors continued to make various adjustments to his pain medications. There was some
discussion of shoulder-replacement surgery, but Darvells doctors ultimately decided against it.
Darvell continued to receive regular stellate-ganglion blocks and shoulder injections. At times,
his range of motion was very restricted, and he was in pain much of the time, AR 233, 235, 236,
261, 318, 357, although the records do reflect some improvement with treatment, AR 216, 217,
220, 221, 222, 226, 227, 233, 235, 269, 358. At one point (in May 2005), Dr. Kaiser noted that
Darvell really just cannot use the arms at all at this point, but this limitation was apparently
4Radiculopathy is a disorder of the spinal nerve roots. Stedmans Medical Dictionary,
supra at 1622.
-6-
due solely to pain, as Dr. Kaiser also noted that Darvell had excellent motion in both of his
shoulders . . . . AR 233.
Also in May, Darvell began seeing Dr. Edward Martinson, a physical-medicine and
rehabilitation specialist. Dr. Martinson performed nerve-conduction studies, which indicated
some abnormalities that suggested radiculopathy.4 AR 352. Because the findings did not meet
strict diagnostic criteria, Dr. Martinson indicated that clinical correlation would be necessary.
AR 352. In June, Dr. Kaiser noted that Darvell was showing signs of radiculopathy, and a neck
x-ray showed significant degenerative change in one area of his C6-7 vertebrae. AR 216-17.
Later, however, Dr. Hausch noted that the x-ray appeared normal, AR 239, and in July and
October Dr. Martinson noted, respectively, that there were not significant radicular type
features to his pain and that there was [n]o clinical evidence at this time to suggest a cervical
myelopathy/radiculopathy. AR 318, 269.
Also in July, Dr. Martinson noted that Darvell reported constant pain. AR 318. On a
scale of zero to ten, Darvell described the pain as usually between six and eight, but he also said
that he experienced level-ten pain three to four times per week for twelve to fifteen hours at a
time, and that this increased pain usually followed a period of increased activity. AR 318.
Generally, after receiving a stellate-ganglion block, his pain receded to level three to five,
AR 318, although his more recent blocks gave him pain relief of shorter duration (only two to
three months, rather than the more typical six to twelve months), AR 317.
5Central-cord syndrome is a weakness in all four extremities that primarily affects the
upper extremities and is usually caused by compression of the central part of the cervical spinal
cord or artery. Stedmans Medical Dictionary, supra at 1893.
6There are scattered references in the record to Darvells legal battles over workers
compensation; apparently these stem from his 1980 car accident, which was work-related.
-7-
Dr. Martinson agreed that Darvell should remain off work, AR 321, and instructed him in
a series of therapeutic stretches, AR 320. Finally, Dr. Martinson advised Darvell that it might be
more effective to take his pain medications on a regular schedule rather than on an as-needed
basis. AR 320. Darvell later reported that this was helpful. AR 222. Another stellate-ganglion
block and shoulder injection later that month also resulted in significant improvement in his right
shoulder and arm. AR 226-27.
In October, Darvell was evaluated by Dr. Cassandra Schamber, a doctor in his clinics
pain program. Dr. Schamber disagreed with the RSD diagnosis and instead diagnosed Darvell
with central-cord syndrome.5 AR 274, 275. Darvell saw Dr. Schamber for a followup visit, but
after discussing the issue with Dr. Martinson, Darvell stopped participating in the pain program
because of the risk that the inconsistent diagnoses could cause problems for him in his ongoing
legal battle over workers compensation.6 AR 287.
Also in October, Dr. Johnson filled out a physical ability assessment form indicating
that, during an eight-hour work day, Darvell could continuously lift up to ten pounds;
frequently lift, carry, push, or pull up to 20 pounds; occasionally lift and carry over
100 pounds; frequently sit, balance, stoop, kneel, crouch, and crawl; frequently work around
machinery; occasionally stand, reach, perform fine manipulations and simple and firm
grasping; occasionally withstand exposure to temperature extremes, wet conditions, and
-8-
vibrations; and occasionally work overtime. AR 283-84. On the form, continuously is
defined as more than 5.5 hours each day, frequently as 2.5 to 5.5 hours, and occasionally as
less than 2.5 hours. AR 283-84.
At times, Darvell suffered from bouts of depression, AR 318, 357, but generally
Dr. Johnson seemed satisfied that Darvells symptoms were being treated adequately with
medication, AR 256-57, 231-32, 264. Darvell did not see a mental-health professional of any
type until October 2005, when a psychologist saw Darvell as part of his evaluation for the pain
program. AR 271, 275. There are no records from this psychologist in the administrative
record, and although Darvell later told Dr. Schamber that he would like to continue seeing the
psychologist, AR 281, there is no indication that he did so.
B. LINAs Review of Darvells Claim for Long-Term Benefits
After his short-term disability benefits expired in September 2005, Darvell sought longterm
disability benefits under the Plan. In support of his claim, Darvell submitted a sampling of
his medical records from January through July 2005. AR 171. By letter dated October 19, 2005,
LINA denied Darvells claim. AR 170-74. LINAs letter includes a two-page summary of
information gleaned from Darvells medical records. AR 171-73. Based on its review of
Darvells medical records, LINA found that Darvell had been experiencing similar symptoms for
many years and that there was no documentation of a significant physical limitation, such as loss
of range of motion or strength in either shoulder. AR 172. As a result, LINA concluded that the
medical data did not support Darvells claim that he was unable to perform the material duties of
7The DOT was created by the Employment and Training Administration of the United
States Department of Labor. Jones v. Mountaire Corp. Long Term Disability Plan, 542 F.3d
234, 235 n.2 (8th Cir. 2008).
8This letter is mistakenly dated 2005. See AR 155.
-9-
his regular occupation. AR 173. LINA relied on the Dictionary of Occupational Titles
(DOT)7 to define the material duties of Darvells job. AR 172.
Darvell appealed and submitted more medical records, as well as the physical-ability
assessment that Dr. Johnson had completed in October 2005. See AR 184-95. LINA affirmed
the denial of benefits by letter dated April 11, 2006.8 AR 157. In the letter, LINA advised
Darvell that he could request another review of his claim. AR 158. Darvell did not do so;
instead, he filed this action in April 2007.
C. The Disability Plan
The Plan defines disabled, in relevant part, as follows:
An Employee is Disabled if, because of Injury or Sickness,
1. he or she is unable to perform all the material duties of his
or her regular occupation, and solely due to Injury or
Sickness, he or she is unable to earn more than 80% of his
or her Indexed Covered Earnings from working in his or
her regular occupation . . . .
AR 122. The Plan gives LINA the discretion to interpret the Plans provisions and to administer
benefits. Specifically, the Plan provides as follows:
For plans subject to the Employee Retirement Income Security Act
(ERISA), the Plan Administrator of the Employers employee
welfare benefit plan (the Plan) has appointed the Insurance
Company as the Plan fiduciary under federal law for the review of
claims for benefits provided by this Policy and for deciding
appeals of denied claims. In this role the Insurance Company shall
have the authority, in its discretion, to interpret the terms of the
-10-
Plan documents, to decide questions of eligibility for coverage or
benefits under the Plan, and to make any related findings of fact.
All decisions made by the Insurance Company in this capacity
shall be final and binding on Participants and Beneficiaries of The
Plan to the full extent permitted by law.
AR 133.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute
over a fact is material only if its resolution might affect the outcome of the suit under the
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a fact is genuine only if the evidence is such that a reasonable jury could return a
verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir.
2006). In considering a motion for summary judgment, a court must view the evidence and the
inferences that may be reasonably drawn from the evidence in the light most favorable to the
non-moving party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.
2004).
B. Failure to Exhaust
As noted, in its letter denying Darvells appeal, LINA advised Darvell that he could seek
a second review of the denial. LINA argues that Darvell failed to exhaust his administrative
remedies because he declined to avail himself of this second level of review.
-11-
Under ERISA, every plan must establish and maintain reasonable claims procedures,
which must include at least one level of administrative review of an adverse benefit
determination. 29 C.F.R. 2560.503-1(h)(1). Before seeking review in court, a claimant must
exhaust this review procedure. See Wert v. Liberty Life Assurance Co. of Boston, 447 F.3d 1060,
1063 (8th Cir. 2006) (claimants must exhaust contractual remedies when the ERISA plan
includes contractual review procedures that comply with 29 U.S.C. 1133 and 29 C.F.R.
2560.503-1(f) and (g)).
ERISA regulations also permit but do not require plans to establish a second
mandatory level of administrative review. 29 C.F.R. 2560.503-1(c)(2), (d). If the plan
includes a second mandatory level of review, a claimant must pursue that second level in order
to exhaust his remedies. See Price v. Xerox Corp., 445 F.3d 1054, 1057 (8th Cir. 2006)
(affirming dismissal of claim where plaintiff failed to pursue a mandatory second level of
review).
ERISA regulations also state, however, that a claimant will be deemed to have exhausted
all administrative remedies available under a plan if the plan fails to establish or follow
reasonable claims procedures. 29 C.F.R. 2560.503-1(l). To be considered reasonable,
claims procedures must include, among other things, the provision of a summary plan
description (SPD) that includes a description of all claims procedures including all levels of
administrative review as well as the applicable time frames. 29 C.F.R. 2560.503-1(b)(2),
(d).
It is undisputed that the SPD for the Plan does not mention a second level of
administrative review or any time periods that apply to such a level of review. Carlson Aff.
9The July 30, 2008 affidavit of Scott Carlson describes the attached exhibit as the Group
Disability Insurance Certificate. After this affidavit was filed, Darvells attorney filed an
affidavit stating that the document attached to the Carlson affidavit is not the same plan that
appears in the administrative record. Docket No. 29. At oral argument, LINA clarified that the
document attached to the Carlson affidavit is the SPD for the Plan.
10The Court notes that, after it raised this issue at oral argument, it gave LINA the
opportunity to file a supplemental brief. LINA submitted a letter brief, a copy of which is being
filed contemporaneously with this order.
-12-
Ex. A at 18-19, July 30, 2008.9 LINA argues that the SPD does not clearly preclude a second
level of review and that LINA is therefore authorized to require two levels. Whether or not
LINA is authorized to require two levels of review is not the issue, however; the issue is whether
LINA complied with the requirement that the SPD include a description of the second level of
review. It clearly did not. Under 2560.503-1(b)(2), (d), therefore, the Plans claims
procedures are not reasonable, and Darvell is deemed to have exhausted his administrative
remedies.10 29 C.F.R. 2560.503-1(l). The Court therefore denies LINAs motion to the extent
that it seeks dismissal on the basis of failure to exhaust.
B. Darvells Claim for Benefits
1. Standard of Review
When an ERISA plan authorizes the claims administrator to determine eligibility for
benefits, courts review the administrators eligibility determinations for abuse of discretion.
Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 837 (8th Cir. 2006). Under that standard, an
administrators decision will be upheld if it was reasonable, and an administrators decision will
be deemed reasonable if the decision is supported by substantial evidence. Wakkinen v. UNUM
Life Ins. Co. of Am., 531 F.3d 575, 583 (8th Cir. 2008). Substantial evidence means more than
a scintilla but less than a preponderance. Id. (quoting Woo v. Deluxe Corp., 144 F.3d 1157,
-13-
1162 (8th Cir. 1998)). Even if the court would have made a different decision as an initial
matter, the administrators decision will be upheld if a reasonable person could have reached a
similar decision. Id.
When the administrator is also the insurer, however, the administrator has a conflict of
interest that must be weighed in determining whether the administrator abused its discretion.
Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2346 (2008). The amount of weight given to the
conflict depends on the circumstances of the particular case. Id. at 2351. For example, where an
insurer has a history of biased claims administration, the presence of a conflict may be given
substantial weight. Id. But where the record indicates that the insurer has taken steps to reduce
the risk that the conflict will affect eligibility determinations, the conflict should be given much
less weight. Id.
In Glenn, the record contained little evidence about the insurers efforts to ensure
accurate claims assessment. Id. The Supreme Court found that, in light of the absence of such
evidence, the court of appeals properly gave the conflict weight to some degree without
making it determinative. Id. at 2351-52. Like the record in Glenn, the record in this case does
not indicate, one way or the other, whether LINA has taken steps to protect the claimsassessment
process from being influenced by the conflict. Thus, as did the court of appeals in
Glenn, this Court will give the conflict some, but not determinative, weight.
Darvell argues that, in addition to the conflict of interest, the presence of serious
procedural irregularities requires the application of a less deferential standard of review. Under
pre-Glenn Eighth Circuit law, the presence of either a conflict of interest or a serious procedural
irregularity could trigger a sliding scale standard of review, in which the amount of deference
-14-
given to the administrators decision decreases in proportion to the seriousness of the conflict or
procedural irregularity. Woo, 144 F.3d at 1161.
Obviously, after Glenn, Woo is no longer controlling with respect to the standard of
review applicable when a conflict of interest is present. Woo held that the presence of a conflict
could change the standard of review from abuse of discretion to a less deferential standard
even to de novo review. Glenn made clear that, no matter how severe the conflict, the standard
of review remains abuse of discretion. Glenn, 128 S. Ct. at 2350. In reviewing for abuse of
discretion, a court will give more or less weight to the conflict, depending on the severity of the
conflict and the other considerations described in Glenn. But the ultimate question remains
whether the administrator abused its discretion.
It is possible to read Glenn to hold that a procedural irregularity likewise cannot alter the
standard of review, but instead is simply a factor to be weighed under the abuse-of-discretion
standard. See Glenn, 128 S. Ct. at 2347, 2351-52 (approving of the court of appeals review,
which applied a deferential standard and took into account both the financial conflict and various
procedural irregularities). But the Eighth Circuit has rejected this reading of Glenn, holding that,
when a serious procedural irregularity is found to exist, Woo continues to apply. Wakkinen, 531
F.3d at 582 (We continue to examine this claim [of procedural irregularity] under Woo). The
Court will therefore examine whether there is a serious procedural irregularity that would dictate
a more stringent standard of review under Woo.
Darvell alleges that there were a number of procedural irregularities similar to those
present in Woo. Specifically, Darvell argues that LINA failed to obtain an independent medical
-15-
review, failed to thoroughly investigate and examine his claim, and failed to use proper
judgment.
Darvell points to nothing in the Plan that required LINA to obtain an independent
medical review, and the law does not require such a review in every case. Torres v. UNUM Life
Ins. Co. of Am., 405 F.3d 670, 678 (8th Cir. 2005). In Woo, the plaintiff did not receive a proper
diagnosis until after she had already left her job; her doctors were thus able to determine that she
was disabled only in retrospect. Under those circumstances, an independent medical review by a
specialist was necessary because the claimants contemporaneous medical records did not clearly
indicate the nature of her condition, and it was not possible to tell, based only on those records,
whether she had been disabled during her employment. In this case, though, the nature of
Darvells conditions are thoroughly documented in his medical records, and LINA does not
dispute Darvells diagnoses. Under these circumstances, LINA was not required to conduct an
independent medical review in order to make its decision.
Nor does the record support Darvells contention that LINA failed to investigate or
examine his claim or failed to use proper judgment. LINAs initial denial letter demonstrates
that LINA reviewed the medical evidence that Darvell submitted. It is true, as Darvell argues,
that LINAs explanation for the denial can be read to discount certain evidence regarding
Darvells functional limitations. But the mere fact that an administrator, in denying a claim,
discounts some of the evidence submitted by the claimant is not itself a procedural irregularity.
If it were, a procedural irregularity would be present in virtually every case in which a claim is
denied, and abuse-of-discretion review would be the exception rather than the norm. The record
in an ERISA denial-of-benefits case typically contains conflicting or inconsistent evidence, and
11In Torres, the Eighth Circuit held that the claimant had failed to show that a financial
conflict of interest had a sufficient connection to the decision reached because the claimant
presented no evidence that [the insurer] denied his claim because it was financially
advantageous for it to do so. Torres, 405 F.3d at 679.
-16-
thus the administrator has no choice but to discount something. Whether the discounting of
evidence by the administrator qualifies as a procedural irregularity depends on how and why the
evidence is discounted. If the administrator adequately explains its decision, and its decision is
based on the strengths and weaknesses of the evidence (rather than simply on the desire to deny
the claim), then there is nothing irregular about discounting some of the evidence.
Even if LINAs discounting of some of Darvells evidence qualified as a serious
procedural irregularity, the presence of such an irregularity is not sufficient to trigger a less
deferential standard of review. Darvell must also show that the irregularity had some connection
to the substantive decision to deny benefits; in fact, Darvell must introduce evidence that, but for
the irregularity, LINA would have approved his claim. Torres, 405 F.3d at 679.11 This presents
a considerable hurdle for a claimant a hurdle that claimants leap only rarely. Id. at 680. In
this case, as discussed below, there is evidence in the record from Darvells own primary-care
physician concerning Darvells functional capacities that Darvell does not dispute and that fully
supports LINAs decision to deny benefits. Hence the fact that LINA may have de-emphasized
some aspects of Darvells medical records cannot be said to have a connection to its decision to
deny benefits. The Court will therefore apply the abuse-of-discretion standard, taking LINAs
financial conflict of interest into consideration.
12According to LINAs letter denying Darvells appeal, the benefit waiting period
that is, the time period during which Darvell must have been disabled in order to be eligible for
benefits was from March 4, 2005 through August 30, 2005. AR 158. But as part of the
administrative process, Darvell submitted medical and other evidence pertaining to his condition
and abilities after August 30, 2005, including the October 2005 physical-ability assessment.
Neither party has argued that this evidence is not relevant to determining Darvells abilities
during the benefit waiting period.
-17-
2. Whether Darvell is Disabled
The Plan provides benefits when a claimant is unable to perform all the material duties
of his . . . regular occupation . . . . AR 122. Whether Darvell is disabled depends on both the
extent of his functional limitations and the meaning of the phrase material duties of his . . .
regular occupation.
a. Darvells Physical Limitations
Darvell argues that the medical evidence in the administrative record demonstrates that
he had ongoing and persistent functional deficits, and emphasizes that all three of his main
doctors Dr. Johnson, Dr. Kaiser, and Dr. Hausch found him to be disabled from work. The
Court agrees that there is ample evidence to support Darvells contention that he suffered
significant pain and functional limitations in his shoulders, arms, and hands. But there is also
evidence that Darvells symptoms improved with treatment, and it is difficult to tell, from
Darvells medical records alone, to what extent his conditions limited his ability to perform his
job. The only evidence in the record that attempts to quantify Darvells capabilities in a work
setting is the October 2005 physical-ability assessment completed by Dr. Johnson, Darvells
primary-care doctor.12
Darvell does not argue that the physical-ability assessment is an inaccurate representation
of his abilities, that it is outweighed by other evidence in the record, or that LINA should not
13As discussed below, the evidence that Darvells depression was disabling either by
itself or in combination with Darvells physical limitations is virtually nonexistent.
14The DOT defines the occupation of advertising sales representative as light work.
1 Employment & Training Admin., U.S. Dept of Labor, Dictionary of Occupational Titles 222
(4th ed. rev. 1991). The administrative record contains a description of the physical
requirements of that occupation that is apparently based on the DOTs definition of light work
but is more detailed. Compare AR 454 with 2 Employment & Training Admin., U.S. Dept of
Labor, supra at 1013. For ease of reference, the Court generally follows the parties practice in
referring to the description in the record as that of the DOT; Darvell does not contend that there
is any inconsistency between the two, and the Court can find none.
The Court also notes that Darvell does not fault LINA for relying on the DOT rather than
on the O*Net, a database of occupational requirements that has replaced the DOT. See Jones,
542 F.3d at 235 n.2. Nor does Darvell contend that his occupation should be classified under the
DOT as something other than advertising sales representative.
-18-
have relied on it in determining the extent of his functional capacity. In short, Darvell does not
dispute that he could do everything that the physical-ability assessment said he could do during
the relevant time period. For that reason, if Darvells capabilities, as documented in the
physical-ability assessment, enabled him to perform all of the material duties of his regular
occupation, then LINAs decision should be upheld.13 The fact that LINA was operating under
a conflict of interest would not provide sufficient reason to overturn LINAs decision.
The only real question, then, is what are the material duties of Darvells regular
occupation? LINA concluded that Darvell was fully capable of performing the duties of an
advertising sales representative as defined in the Dictionary of Occupational Titles (DOT).14
Darvell contends that LINA erred by using the DOT. Instead, according to Darvell, LINA
should have considered the duties that he actually performed for Yellow Book duties that
included extensive driving and overtime to determine whether he was disabled.
-19-
b. Regular Occupation
As noted, the Plan gives LINA the discretion to interpret the terms of Plan documents.
When an ERISA plan gives the administrator such discretion, courts review the administrators
interpretation of the plan only for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). Under this standard, the Court must defer to LINAs interpretation of
the Plan as long as it is reasonable, even if the Court would interpret the language differently
as an original matter. King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-99 (8th Cir.
2005) (en banc). To determine whether an administrators interpretation is reasonable, courts
apply the five-factor test set forth in Finley v. Special Agents Mutual Benefit Association, Inc.,
957 F.2d 617 (8th Cir. 1992). The Finley factors are: (1) whether the administrators
interpretation is contrary to the clear language of the plan; (2) whether the interpretation
conflicts with the substantive or procedural requirements of ERISA; (3) whether the
interpretation renders any language in the plan meaningless or internally inconsistent;
(4) whether the interpretation is consistent with the goals of the plan; and (5) whether the
administrator has consistently followed the interpretation. Id. at 621. The Eighth Circuit has
directed district courts to examine all five Finley factors. Lickteig v. Bus. Mens Assurance Co.
of Am., 61 F.3d 579, 584 (8th Cir. 1995).
i. Contrary to Clear Plan Language
Darvell is not entitled to long-term disability benefits under the Plan unless he . . . is
unable to perform all the material duties of his . . . regular occupation. AR 122. The phrase
material duties of his . . . regular occupation can be interpreted in one of two ways: claimantspecific
or generic. The claimant-specific approach examines what duties the specific claimant
-20-
actually performed for his specific employer, while the generic approach examines the duties
that are commonly performed by those who hold the same occupation. To illustrate: Suppose
that the claimant was an attorney who represented migrant agricultural workers, spent very little
time in his office, spent a great deal of time driving from site to site, and often had to trudge
through farm fields to meet with clients under the broiling sun. Under the claimant-specific
approach, the claimant would be found disabled if he was no longer able to drive many hours
every day or walk through difficult terrain in hot weather. Under the generic approach, however,
the same claimant would not be found disabled, assuming that attorneys generally do not have to
do much driving or much walking through difficult terrain in hot weather.
The Plan does not define regular occupation or give any guidance on whether, in
determining if a claimant is unable to perform all the material duties of his . . . regular
occupation, the claims administrator should take a claimant-specific or generic approach. And
courts have split on the question whether regular occupation and similar phrases focus on the
claimants actual duties or instead focus more broadly on the duties generally associated with the
occupation. Compare House v. Am. United Life Ins. Co., 499 F.3d 443, 453-54 (5th Cir. 2007)
(attorneys regular occupation was the general occupation of attorney, rather than the
attorneys previous job as a litigator with a uniquely stressful practice), cert. denied, 128 S.Ct.
1309 (2008), Schmidlkofer v. Directory Distrib. Assocs., Inc., 107 Fed. Appx. 631, 633-34 (6th
Cir. 2004) (insurers interpretation of regular occupation to mean the insureds occupation as it
is performed in a typical work setting in the general economy was reasonable), and Gallagher v.
Reliance Standard Life Ins. Co., 305 F.3d 264, 270-73 (4th Cir. 2002) (insurers reliance on
DOT description was permissible, even though it did not include a travel requirement) with
-21-
Bishop v. Long Term Disability Income Plan of SAP Am., Inc., 232 Fed. Appx. 792, 794-95 (10th
Cir. 2007) (insurer was required to consider claimants actual job duties in determining the
essential duties of his occupation), Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381,
385-86 (3d Cir. 2003) (unambiguous meaning of regular occupation is the usual work that the
employee is actually performing immediately before the onset of disability), and Kinstler v. First
Reliance Standard Life Ins. Co., 181 F.3d 243, 252-53 (2d Cir. 1999) (although the term regular
occupation is not limited to the claimants particular job, it should include consideration of the
nature of the institution where the claimant was employed). The Eighth Circuit does not appear
to have addressed this issue directly (although it recently suggested, in dicta, that a district court
could consider remanding a case in which there was a dispute over the proper job description).
See Jones, 542 F.3d at 239.
If the Court were to interpret the Plan as an original manner without deferring to
LINA the Court might agree with Darvell that, in referring to Darvells ability to perform all
the material duties of his . . . regular occupation, the Plan is referring to the duties that Darvell
actually performed, and not to the duties that are typically performed by advertising sales
representatives. But the Court recognizes that it is common for the term occupation to be used
to denote a class of jobs rather than a particular job for a particular employer. The phrase
material duties of his . . . regular occupation is therefore ambiguous, and LINAs interpretation
that it refers generally to the material duties performed by advertising sales representatives,
and not specifically to the material duties performed by Darvell for Yellow Book is certainly
reasonable. The fact that there are judicial decisions on both sides of this question only bolsters
the Courts conclusion that, although it is not necessarily the interpretation that the Court would
-22-
adopt, LINAs interpretation is not contrary to the clear language of the Plan. Cf. King, 414 F.3d
at 999 (an administrator with discretion to interpret uncertain terms is not bound by judicial
interpretations of that term so long as the administrators interpretation is reasonable).
ii. Conflicts with ERISA
Darvell has not identified, and the Court is not aware of, any ERISA provision that
conflicts with LINAs interpretation of the Plan.
iii. Other Plan Language
Darvell does not contend that LINAs interpretation renders any other Plan language
meaningless or internally inconsistent.
iv. Goals of the Plan
Darvells interpretation of the Plan would likely result in greater coverage, and therefore
one could argue that LINAs narrower interpretation is inconsistent with the goal of the Plan to
provide coverage for disabled employees. But it cannot be the case that any interpretation that
narrows coverage is inconsistent with a plans goals, for the goal of any plan is to provide
coverage consistent with its terms.
Although LINAs interpretation is narrower than Darvells, it does not unreasonably limit
the scope of coverage. Under the LINA interpretation, Darvell would not be considered disabled
if he could perform the material duties commonly performed by advertising sales representatives
the field in which he most recently worked and has considerable experience. To deny longterm
disability benefits to Darvell on the grounds that he can perform all of the duties performed
by most advertising sales representatives even if he cannot perform the duties of his specific
position with Yellow Book does not seem unreasonable and certainly does not render the
-23-
long-term disability policy useless. Moreover, LINA did not arbitrarily invent a set of duties
wholly unconnected to Darvells occupation. LINA based its determination on an objective
description of Darvells occupation that was created by the United States Department of Labor.
Under these circumstances, LINAs interpretation is not inconsistent with the goals of the Plan.
v. Consistency
The final consideration is whether LINA has consistently followed the interpretation.
There is no dispute that LINA has consistently used the DOT description of advertising sales
representative to determine the material duties of Darvells occupation.
The Finley factors all indicate that LINAs interpretation of the material duties of
[Darvells] . . . regular occupation is reasonable. Accordingly, LINAs denial of benefits must
be upheld if the duties generally performed by an advertising sales representative, as described in
the DOT, are within Darvells functional capabilities.
c. Comparing Darvells Limitations to the DOT
According to the DOT, the occupation of advertising sales representative requires the
ability to lift, carry, push, or pull up to 20 pounds occasionally, up to ten pounds frequently, or a
negligible amount constantly. The occupation also requires occasional reaching, handling, and
fingering. Finally, the occupation can require frequent walking or standing or pushing or pulling
of arm or leg controls. Like the physical-ability assessment, the DOT defines occasionally to
mean up to one-third of the time and frequently to mean between one- and two-thirds of the
time. 2 Employment & Training Admin., U.S. Dept of Labor, supra at 1013.
It is apparent that most of these duties are well within Darvells limitations as stated in
the physical-ability assessment completed by Dr. Johnson. As noted earlier, the physical-ability
15The physical-ability assessment does not indicate the extent of Darvells walking
capability; Dr. Johnson left that section blank. The assessment does state, though, that Darvell
can frequently carry up to twenty pounds. The DOT defines carrying as [t]ransporting an
object, usually holding it in the hands or arms, or on the shoulder. 2 Employment & Training
Admin., U.S. Dept of Labor, supra at 1012. Similarly, the most relevant dictionary definition of
carry is [t]o hold or support while moving; bear . . . . American Heritage Dictionary of the
English Language 285 (4th ed. 2000). Under either definition, the ability to carry frequently
presupposes the ability to walk frequently.
-24-
assessment indicates that Darvell could continuously lift up to ten pounds; frequently lift,
carry, push or pull up to 20 pounds, and occasionally lift and carry over 100 pounds;
frequently sit, balance, stoop, kneel, crouch, and crawl; frequently work around machinery;
occasionally stand, reach, and perform fine manipulations and simple and firm grasping; and
occasionally withstand exposure to temperature extremes, wet conditions, and vibrations.15
AR 283-84.
Darvell points out that the DOT states that frequent standing may be required, whereas
Dr. Johnson found him capable of standing only occasionally (that is, less than 2.5 hours per
day). But the DOT description only states that the occupation can include frequent standing; the
definition of light work in the DOT makes clear that an occupation can be light work either
because it involves exerting a specified amount of force or because it involves walking or
standing to a significant degree. 2 Employment & Training Admin., U.S. Dept of Labor,
supra at 1013. Darvell does not point to any evidence in the record establishing that standing
more than 2.5 hours per day is a material duty of his regular occupation, and it was not an abuse
of discretion for LINA to ignore that duty in considering his claim.
LINA did not abuse its discretion in using the DOT description of Darvells job duties,
and there is uncontroverted evidence in the record from Darvells own primary-care doctor that
-25-
Darvell was capable of performing all of those duties. Under these circumstances, LINAs
denial of Darvells claim was not an abuse of discretion.
d. Darvells Depression
As noted earlier, Dr. Johnson found Darvell disabled not only because of his physical
condition, but also because of his depression. But the evidence supporting Dr. Johnsons finding
of disabling depression is remarkably thin. Dr. Johnson diagnosed Darvell with depression
depression so severe and resistant to treatment that it alone rendered Darvell disabled after a
single twenty-minute discussion with Darvell. AR 249. Dr. Johnson is a family practitioner; he
is neither a psychiatrist nor a psychologist, and the record does not show that he has any special
training or experience in diagnosing or treating depression. Dr. Johnson found Darvell disabled
by depression without the benefit of any psychiatric evaluation or testing, and despite the fact
that antidepressants were effective in treating Darvells depression. Indeed, Dr. Johnson stated
that the antidepressants precluded the need for referral to a psychiatrist. AR 256-57. Other than
one evaluation by a psychologist in the pain program (the results of which do not appear in the
record), there is no indication that Darvell ever saw a mental-health specialist of any kind.
Given the near-complete lack of evidence supporting Dr. Johnsons conclusion that Darvell is
disabled by depression, LINAs finding that Darvells depression was not disabling even in
combination with his physical condition was not an abuse of discretion.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants motion for summary judgment [Docket No. 18] is GRANTED.
-26-
2. Plaintiffs complaint [Docket No. 1] is DISMISSED WITH PREJUDICE AND
ON THE MERITS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 3 , 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

  What day were you injured?

  / /


  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall
Other:


  How have your injuries affected

  your life?

 


  What kinds of medical care
  professionals have you seen?

 


  What has your treatment cost?

 

  Is Insurance Involved?
My insurance may cover
        this.

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement
        offer.

I accepted a settlement
        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
 
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.