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Gordon v. Life Ins. Co. of North America: US District Court : ERISA - plan administrator abused discretion, distorted evidence; summary judgment for limited claimant + attorney fees

1Some of the documents in the administrative record refer to LINA as Cigna. For
simplicitys sake, the Court consistently refers to defendant as LINA.
Although the complaint names Northwest Airlines, Inc. Long-Term Disability Income
Plan as a defendant, no such entity has entered an appearance in the case. The Court follows
the parties lead in treating LINA as the only real defendant.
NORTH AMERICA, a Cigna Company,
Case No. 07-CV-4172 (PJS/RLE)
Katherine L. MacKinnon, MACKINNON LAW OFFICE, for plaintiff.
Scott R. Carlson, HINSHAW & CULBERTSON LLP, for defendants.
Plaintiff Dale W. Gordon worked for Northwest Airlines as a machinist for about five
years. Gordon was covered under a long-term disability insurance policy issued to Northwest
Airlines by defendant Life Insurance Company of North America (LINA).1 LINA also
administered the policy.
Gordon began experiencing serious knee problems in 2002 and, as a result of those
problems, stopped working in February 2003. LINA granted Gordon long-term disability
benefits from May 2003 through May 2006, when the applicable definition of disability changed.
LINA decided that Gordon was not disabled under the new definition and discontinued his
benefits in June 2006.
2The parties jointly submitted a well-organized copy of the administrative record.
Parties Stip. Admin. Record [Docket No. 32]. The record was divided into tabbed sections, and
each document in the record has a Bates number made up of Dale Gordon Lina followed by a
five-digit page number. Citations to the record in this opinion take the form Tab # at #. The
page number represents the numeric portion of the Bates number, without leading zeros. The
Court is grateful to the parties for their care in assembling and organizing the record.
3The amount of the benefit is adjusted annually for inflation. See Tab 56 at 235 (defining
Indexed Covered Earnings).
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Gordon now sues for benefits under 29 U.S.C. 1132(a)(1)(b), the section of the
Employee Retirement Income Security Act (ERISA) that authorizes such suits. LINA and
Gordon cross-move for summary judgment. For the reasons that follow, the Court grants
Gordons motion and denies LINAs.
A. Policy Terms
Under the long-term disability insurance policy at issue in this case, if an insured such as
Gordon becomes Disabled for purposes of the policy, LINA must pay the insured a Disability
Benefit. Tab 56 at 215.2 The benefit equals two-thirds of the employees pre-disability
earnings, less other benefits received by the employee (such as Social Security Disability
Insurance (SSDI) benefits), and less a portion of the employees post-disability earnings (if
any).3 Id. at 215-16, 226-27.
The policy defines Disability in two ways. Id. at 215. The first definition, which
applies during the first thirty-six months that an employee receives benefits, covers what is
known as own-occupation disability. The second definition, which applies after an employee
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has received benefits for thirty-six months, covers what is known as any-occupation disability.
Own-occupation disability is defined this way:
An Employee is Disabled if, because of Injury or Sickness, . . . he
or she is unable to perform all the material duties of his or her
regular occupation . . . .
Id. Any-occupation disability is defined this way:
An Employee is Disabled if, because of Injury or Sickness, . . . he
or she is unable to perform all the material duties of any
occupation for which he or she may reasonably become qualified
based on education, training or experience.
The any-occupation definition of disability is thus more restrictive than the ownoccupation
definition. If an employee cannot do his own occupation, he is entitled to disability
benefits for thirty-six months. But he is not entitled to benefits after that thirty-six-month period
unless he cannot do any occupation for which he . . . may reasonably become qualified based on
education, training or experience. Id.
The policy also includes a Work Incentive Benefit that allows an employee to work
while he is receiving disability benefits and to retain a portion of his earnings. Put differently,
the Work Incentive Benefit gives the employee an incentive to work by not reducing the
disability benefit by one dollar for every dollar the employee earns. In its generally applicable
provisions, the policy provides:
If an Employee is covered for Work Incentive Benefits, he or she
may return to work while Disabled and Disability Benefits will
continue. The conditions under which an Employee may return to
work and the amount of this benefit are shown in the Schedule of
- 4 -
Id. at 226 (emphasis added). And in the specific Schedule of Benefits applicable to workers
such as Gordon, a provision titled Work Incentive Benefits says:
For the first 36 months the Employee is eligible for a Disability
Benefit, the Disability Benefit is as figured above [i.e., it is 2/3 of
the employees salary, less certain offsets]. If for any month
during this period, the sum of the Employees Disability Benefit,
current earnings and any additional Other Income Benefits exceeds
100% of his or her Indexed Covered Earnings, the Disability
Benefit will be reduced by the excess amount.
After the first 36 months, the Disability benefit is as figured above,
reduced by 50% of his or her current earnings received during any
month he or she returns to work. If the sum of the Employees
Disability Benefit, current earnings and any additional Other
Income Benefits exceeds 80% of his or her monthly Indexed
Covered Earnings, the Disability Benefit will be reduced by the
excess amount figured above.
Current Earnings include any wage or salary for work performed
while Disability Benefits are payable. . . .
Id. at 216.
Translated into plain (or at least plainer) English, the work-incentive benefit provision
operates as follows: During the own-occupation period (i.e., the first thirty-six months), if a
disabled employee works at some other job and earns under one-third of his pre-disability
earnings, he can keep all of his earnings. But anything he earns over that amount will not
increase his overall income, because his disability benefit will be reduced dollar-for-dollar by
4For example, assume that an employee earned ,000 per month as a machinist before
becoming disabled. His disability benefit is therefore 7 per month (assuming no offsets).
Assume further that the employee earns 3 per month as a house sitter during the ownoccupation
period. His income will be ,000 (the 7 benefit plus all of his 3 in housesitting
income). If his house-sitting income increases to 0, his total income will still be
,000, because his benefit will be reduced by 7 (leaving him with a 0 benefit plus 0
in house-sitting income).
5Some examples may clarify how the work-incentive-benefit provision operates in the
any-occupation period. Suppose, again, that the employee earned ,000 per month as a
machinist before he became disabled and thus receives a basic benefit of 7. Now suppose
that the employee earns 6 per month working as a house-sitter. His income will be 0,
made up of a benefit of 4 his basic benefit (7) minus half of his house-sitting income
(3) plus his 6 in house-sitting income.
If the employees house-sitting income doubles to 2, his income will still be 0, but
the benefit calculation is more complicated. To keep the employees income capped at 0, his
benefit must be reduced by more than half of his house-sitting income. His income of 0 will
- 5 -
any earnings that exceed one-third of his pre-disability earnings.4 His overall income (benefits
plus earnings) is thus capped at the total amount of his pre-disability income.
In the any-occupation period (i.e., the thirty-seventh month on), the calculations become
slightly more complicated because no matter how little the employee earns, his earnings reduce
his benefit payment. The employee may keep half of a portion of his earnings specifically,
the portion up to 26 percent of his pre-disability income. But the employee may keep none of
the remainder; any earnings over 26 percent of his pre-disability income reduce his disability
benefit dollar-for-dollar. So for every that the employee earns, or less of it goes in his
pocket. Further, the employees total income is capped at 80 percent of his pre-disability
income. As a result, if the employee earns 80 percent of his pre-disability income, his disability
benefit completely disappears. Thus, the mathematics of the work-incentive benefit provision
effectively render the employee non-disabled that is, not entitled to disability benefits
when he earns 80 percent of his pre-disability income.5
be made up of 2 in house-sitting income and a benefit of 8 his basic benefit (7)
less half of his first 6 of house-sitting income (3) less another 6. This additional
reduction of 6 equals the amount by which the employees income would exceed 0 if he
were allowed to keep his house-sitting income without further reducing his benefit: The 2 in
house-sitting income plus a 4 benefit (i.e., the basic benefit less half of the first 6 of
house-sitting income) would be 66, which is 6 more than 0. And if the employees
house-sitting income reaches 0, his benefit will be reduced to zero, since his benefit plus his
earnings cannot exceed 80 percent of his pre-disability earnings.
Another way of looking at this is to consider the benefit amount (roughly 67 percent of
pre-disability earnings) and the employees earnings cap (80 percent of pre-disability earnings).
The difference between the benefit amount and the earnings cap is 13 percent. Because the
employee can keep half of his earnings as long as half of his earnings plus his benefit is less than
the 80-percent earnings cap, if the employee earns 26 percent or less of his previous income, he
keeps half of his earnings. (Half of 26 percent is 13 percent, so the 13 percent kept by the
employee plus the 67 percent benefit amount equals the 80 percent earnings cap.) He keeps
nothing of whatever he earns beyond 26 percent of his previous income, because those extra
earnings reduce his benefit amount dollar-for-dollar. So, for instance, if he earns 52 percent of
his previous income, his benefit must be reduced by 39 percent (half of the first 26 percent 13
percent plus all of the second 26 percent). His benefit will thus be 28 percent of earnings (67
percent less 39 percent), which, when added to the post-disability earnings of 52 percent, yields
income equal to 80 percent of his pre-disability income.
- 6 -
Finally, the policy provides that disability benefits will end on the earliest of the
following four dates:
1. The date an Employee earns more than the percentage of
his or her Indexed Covered Earnings which [is use]d to
determine if an Employee is Disabled
2. The date the Insurance Company determines an Employee
is not Disabled
3. The end of the Maximum Benefit Period
4. The date an Employee dies
Id. at 225.
The meniscus is a C-shaped piece 6 of cartilage in the knee that serves as a
shock-absorption system, assists in lubricating the joint, and limits the ability to flex and extend
the joint. Natl Library of Medicine & NIH, Medline Plus Encyclopedia, Meniscus tears,
http://www.nlm.nih.gov/medlineplus/ency/article/001071.htm (last visited Feb. 25, 2009).
- 7 -
B. Facts
The facts are essentially undisputed. Gordon began working as a machinist for
Northwest Airlines in 1998, when he was forty-nine years old. See Tab 105 at 530. Before then,
he worked for over twenty years as a machinist and mechanic at a company that made nuclear
submarines. Id. Gordon has a high-school education. Tab 114 at 658.
Gordons left knee began to give him significant trouble in the fall of 2002. In response
to Gordons complaints of pain, swelling, and stiffness, his orthopedist, Dr. Joseph T. Teynor,
ordered an MRI. Tab 118 at 797-98. The MRI showed a tear in the meniscus and degenerative
changes.6 Id. at 795. During an office visit in late October, Teynor drew fluid off of Gordons
knee and injected the knee with a corticosteroid. In his notes about the visit, Teynor described
Gordon as majorly symptomatic. Id. Teynor and Gordon discussed surgical options. Id.
A few weeks later, in early November 2002, Teynor did arthroscopic surgery on
Gordons knee. He removed part of the medial meniscus, abraded bone surfaces in the knee, and
removed cartilaginous debris. Tab 119 at 801. At a followup visit about ten days later,
Gordons range of motion was improved, but he reported significant pain after a long walk. Tab
118 at 794. Because of some swelling in the knee or leg, Teynor ordered an ultrasound to rule
out the possibility of deep-vein thrombosis or DVT (clotting in the veins of the leg). Id. at
792. The ultrasound showed no signs of DVT. Id. at 793.
The next week, on November 27, Teynor injected Gordons knee with a corticosteroid to
treat inflammation. Id. at 790. The injection helped, and as of December 2, 2002, a nurse
- 8 -
treating Gordon expected him to be able to go back to work with restrictions about a week later.
Id. at 791. Gordon saw Teynor on December 10 for followup, and Teynor noted that Gordon
was doing well. Id. at 789. Teynor also noted, however, that he expected Gordon to have
further problems because of significant arthritis in his knee. Id. Gordon apparently returned
to work some time thereafter.
Gordon saw a family-practice doctor on February 28, 2003, because his knee had been
growing increasingly painful for three days. Tab 120 at 702. The doctor found that the back of
Gordons knee was [e]xquisitely tender and referred him to Teynor. Id. Later that day,
Teynor administered an injection to Gordons knee and prescribed medication; he also noted that
Gordon might end up needing some major invasive procedure sooner. Tab 118 at 788.
In mid-March 2003, Gordon again went to his family-practice clinic because of knee
pain. A doctor prescribed Percocet for the pain and referred Gordon to Teynor. The doctor also
gave Gordon a referral for possible gastric-bypass surgery to treat his obesity. Tab 120 at 701.
Gordon saw Teynor the next day, March 18, 2003. Teynor described Gordon as having
incapacitating pain in the left knee. Tab 118 at 787. X-rays showed serious joint damage, and
Teynor suggested doing knee-replacement surgery. Teynor recommended that Gordon take
disability leave, noting that [i]f he cant live without taking pain pills, he is not safe to work.
Gordon filed a claim for disability benefits soon thereafter. Tab 83. By that time,
Gordon had not been at work since February 26. Id. at 561. Leon Kuhni, the LINA employee
assigned to handle Gordons claim, talked to Gordon about his claim and advised him to apply
for SSDI benefits. Tab 39 at 148. In early April, Kuhni engaged an outside consulting firm,
Advantage 2000, to assist Gordon in applying for SSDI benefits. Tab 87 at 813.
Records from this hospitalization are not in the record. Records 7 from Gordons familypractice
clinic dated October 2003 refer to Gordon as having had a pulmonary embolus and
DVT left leg in April 2003. Tab 120 at 614-15. A pulmonary embolus is a clot in an artery that
supplies the lungs; DVT is the most common cause of a pulmonary embolus. Natl Library of
Medicine & NIH, Medline Plus Encyclopedia, Pulmonary embolus,
http://www.nlm.nih.gov/medlineplus/ency/article/000132.htm (last visited Feb. 20, 2009).
It is not clear whether Gordons DVT caused a pulmonary embolus, which is a lifethreatening
condition. The administrative record does not include records of Gordons treatment
for pulmonary embolus as such. A note by a LINA claims representative, however, says that
Gordon had DVT and pulmonary embolus. Tab 48 at 175.
8Coumadin is a brand name of warfarin, a blood thinner that is used to treat or prevent
venous thrombosis (swelling and blood clot in a vein) and pulmonary embolism (a blood clot in
the lung). Natl Library of Medicine & NIH, Medline Plus Drug Information, Warfarin,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682277.html(last visited Feb. 25, 2009).
Lovenox is a brand name of enoxaparin and is used in combination with warfarin to
treat blood clots in the leg. Natl Library of Medicine & NIH, Medline Plus Drug
Information, Enoxaparin injection,
- 9 -
Gordon underwent knee-replacement surgery on April 7, 2003, and the procedure seemed
to go well. Tab 119 at 799-800. But a week later, Gordon went to the emergency room because
of pain in his left leg. Id. at 380-81. The hospital ordered an ultrasound to see if Gordon had
DVT. Although the ultrasound showed no evidence of DVT, Gordon was admitted to the
hospital and given a blood-thinning medication (heparin) as a precaution. Tab 119 at 381.
In May 2003, Gordon went to his family practitioner, Dr. John Canfield, complaining of
swelling, pain, and decreased range of motion in his left knee. Tab 120 at 621. Canfield was
concerned about possible DVT and ordered an ultrasound. Id. The ultrasound revealed that
Gordon did in fact have DVT, and Gordon was hospitalized some time between May 15 and
May 19.7 See id. Gordon was also prescribed a blood thinner (Coumadin) and was assigned a
nurse to come to his home and to check the level of clotting factor in his blood and administer
injections of Lovenox, a drug used specifically to treat DVT.8 Id.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601210.html (last visited Feb. 25, 2009).
9Lasix is a brand name of furosemide and is used to reduce the swelling and fluid
retention caused by various medical problems . . . . Natl Library of Medicine & NIH, Medline
Plus Drug Information, Furosemide,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682858.html (last visited Feb. 25, 2009).
- 10 -
Gordon went to the emergency room on May 21, 2003, just a few days after his initial
hospitalization for DVT, complaining of pain and swelling in his left leg. Tab 119 at 328. An
ultrasound showed that he still had DVT, and it had possibly gotten worse. Id. at 329. Gordon
was admitted to the hospital and discharged four days later. Tab 120 at 699. Gordon was told
on May 28 by his family-practice clinic to avoid prolonged walking and prolonged sitting.
Tab 120 at 622.
A few weeks later, on June 5, 2003, Gordon called his family-practice clinic to again
complain of swelling in his left leg. Tab 120 at 620. The clinic sent him to the emergency room
where an ultrasound of his leg showed DVT remained in two arteries (the superficial femoral
and popliteal). Tab 119 at 377. This was essentially what the previous ultrasounds had shown.
Id. ([T]here is no change from previous study.). Gordon was sent home with instructions to
increase his medications, elevate his leg, and follow up with Canfield. Id.
Gordon saw both Teynor and Canfield on June 9. Teynor found Gordon to have limited
range of motion in his left knee and referred him for physical therapy. Tab 118 at 762. Teynor
wrote in his notes: I think he is going to need to be disabled from his work for at least a few
more months. After that it is going to be hard to figure out where we can help him. Id.
Canfield found swelling in Gordons left leg and increased his prescription for Lasix (a
diuretic).9 Tab 120 at 620.
- 11 -
In late June 2003, LINA approved Gordons claim for disability benefits, retroactive to
May 28. Tab 78 at 782-83. Gordon continued to work with Advantage 2000 (LINAs
consultant) to pursue SSDI benefits. Tab 44 at 156.
By late July 2003, Gordon still had only limited range of motion in his left knee.
Tab 118 at 689; Tab 120 at 619. At a follow-up visit, Teynor described Gordons condition this
way: Arthrofibrosis secondary to pain management issues and the inability to push himself but
also now it is certainly markedly complicated by his history of DVT. Canfield referred Gordon
back to Teynor to consider examining Gordons knee under anesthesia. Tab 120 at 619.
In late August 2003, Gordon was seen at his family-practice clinic for swelling in both
legs (in the left more than the right), but he was not in significant pain. Tab 120 at 618. The
clinician reported profound swelling in his legs, ordered an ultrasound, and increased
Gordons Coumadin prescription. The ultrasound showed that his DVT was stable. Tab 120 at
617. Gordon was seen at the clinic again a few days later to discuss further treatment options.
Id. The clinic referred him to a vascular surgeon for a consultation about the DVT. Id.
Gordon saw Teynor again on September 29, 2003. In a letter to Canfield documenting
the visit, Teynor reported that Gordons knee did not move well after the knee-replacement
surgery because Gordon has no pain tolerances . . . . Tab 118 at 687. Teynor said that the key
to Gordons successful recovery would be his ability to work through the pain, the normal pain
of rehab. Id. Teynor scheduled Gordon for surgical manipulation of his left knee to treat
Gordons postoperative knee pain and limited range of motion. Id.; Tab 120 at 615-16.
The surgical manipulation took place on October 9, 2003. Tab 118 at 684. A few days
later, a physical therapist found decreased strength, decreased range of motion, and significant
10See Ultramed, Inc. v. Beiersdorf-Jobst, Inc., 98 F. Supp. 2d 609, 610 (M.D. Pa. 1998)
(Jobst manufactured lymphedema pumps which are mechanical devices that are attached to a
persons extremity in order to massage and push extra fluid from the extremity back into the
- 12 -
gait deviations . . . . Id. The therapist recommended various stretching and strengthening
exercises. Id.
In late October 2003, Gordon again went to his family-practice clinic because of swelling
in his legs. On October 27, a clinician ordered a repeat ultrasound of his left leg and a CT scan
of his chest and again prescribed Coumadin. Tab 120 at 615. The ultrasound showed persistent
non occlusive DVT in the left popliteal vein, but the clinician found no evidence of
progressive DVT. Tab 120 at 614. On October 31, the clinician discontinued Gordons
Coumadin prescription. Id.
Gordon continued to go to physical therapy in November 2003. Tab 120 at 613. His
range of motion was still limited, and Teynor continued to believe that Gordon needed to push
himself to recover. Tab 118 at 683.
Some time in January 2004, Gordon underwent gastric-bypass surgery. See Tab 121 at
720 (pre-operative evaluation on January 2, 2004); Tab 120 at 611. Over the next several
months, Gordon lost almost seventy pounds. Tab 120 at 611.
In mid-May 2004, Gordon again saw Canfield for swelling in his left leg. Id. The
swelling persisted despite Gordons use of a so-called Jobst pump a pump used with
inflatable stockings designed to treat swelling in the legs.10 Id. Canfield prescribed a diuretic
and referred Gordon to a clinic that specialized in swelling. Id.
In late June and mid-July 2004, Gordon was seen at his family-practice clinic for back
pain, neck pain, pain and numbness in his right arm, and weakness of his right hand. Tab 120 at
11Trigger points are discrete, focal, hyperirritable spots located in a taut band of skeletal
muscle. The spots are painful on compression and can produce referred pain, referred
tenderness, motor dysfunction, and autonomic phenomena. David J. Alvarez, D.O. & Pamela
G. Rockwell, D.O., Trigger Points: Diagnosis and Management, 65 Am. Family Physician 653,
653 (Feb. 15, 2002), available at http://www.aafp.org/afp/20020215/653.html.
12Ulnar neuropathy is a problem with the nerve that travels from the wrist to the
shoulder. Natl Library of Medicine & NIH, Medline Plus Encyclopedia, Ulnar nerve
dysfunction, http://www.nlm.nih.gov/medlineplus/ency/article/000789.htm (last visited Feb. 20,
2009). Symptoms may include: abnormal sensations in the [fourth] or [fifth] fingers[;
n]umbness, decreased sensation[; t]ingling, burning sensation[; p]ain[; and w]eakness of the
hand . . . . Id.
13U.S. Natl Library of Medicine & NIH, Medline Plus Encyclopedia,
Electromyography, http://www.nlm.nih.gov/medlineplus/ency/article/003929.htm (last visited
Feb. 25, 2009).
- 13 -
607-08. His physical exam showed a trigger point in the muscles along the top of his spine.11
The clinic ordered an MRI of his cervical spine, which was basically normal. Tab 120 at 607;
Tab 121 at 717.
Gordon saw Canfield on July 30, 2004, with further complaints of numbness in his right
arm, which Canfield diagnosed as ulnar neuropathy.12 Tab 120 at 605. Canfield discussed the
recent MRI with Gordon and noted that it did not explain the neuropathy. To further assess the
problems with Gordons right arm, Canfield ordered an electromyogram (EMG), a test that
measures electrical activity in the muscles and can reveal nerve damage.13 Id.
At the same visit, Canfield filled out a Physical Abilities Assessment form (or PAA)
for LINA the first of three PAAs that Canfield would ultimately submit. Tab 127 at 332-33;
Tab 120 at 605. Along its left margin, the PAA lists several activities, such as sitting, standing,
walking, reaching, lifting, and carrying. Following each of those activities appears a horizontal
row of five check boxes. The first check box allows the doctor to indicate that the activity is
not applicable to the diagnosis. Presumably, a doctor would check this box if, for example,
14This appears to be how an occupational therapist filled out a PAA in March 2005. Tab
125. On that form, the boxes for lifting and carrying are filled out in such a way that Gordons
reported ability decreases as the activity gets harder. For instance, for lifting 10 pounds,
continuously is checked; for lifting 11-20 pounds, frequently is checked; for lifting 21-50
pounds, occasionally is checked; and for lifting 51-100 and 100+ pounds, only the box for
supported by objective findings is checked. The most logical way to read this form is as
indicating that Gordon is totally unable to lift over 50 pounds.
- 14 -
the activity was reaching, and the diagnosis was an arthritic toe. The next three check boxes are
for indicating whether, in an eight-hour workday, the person being assessed can do the particular
activity (a) continuously, (b) frequently, or (c) occasionally. For some reason, never is not
given as an option. The final check box allows the doctor to indicate whether objective
findings supported the assessment regarding the particular activity.
Canfield indicated on the PAA that he completed in July 2004 that Gordon could do
several activities continuously: sitting, reaching, fine manipulation, simple grasping, firm
grasping, lifting up to fifty pounds, and carrying up to twenty pounds. Tab 127 at 332. With
respect to the activities of standing, walking, lifting over fifty pounds, and carrying over twenty
pounds, Canfield checked only the boxes for supported by objective findings. Canfield
neglected to check any of the three boxes that would indicate what was supported by objective
findings. Id.
As noted, the form contains no column for never, and logically such a column would
appear to the right of the occasional column the same place that the objective findings
column appears. Perhaps by leaving the three frequency-related boxes blank but checking the
objective findings box, Canfield meant that Gordon could never do the particular activity.14
But it would be strange for Canfield to say that Gordon could never stand or walk, given that he
was not bedridden. Canfields meaning is simply not clear.
- 15 -
Canfield did indicate on the PAA that Gordon could only occasionally climb ladders and
stairs, balance, and stoop. Id. at 333. With respect to climbing, Canfield wrote, leg gives out
in the objective findings column. Id. And Canfield wrote unable in the objective findings
column with respect to the activities of kneeling, crouching, and crawling. Id.
In the comment section of the PAA, Canfield wrote: Left total knee arthroplasty [with]
weakness/stiffness limits physical functions. Id. In his clinic notes from the July 30 visit,
Canfield wrote: Walking causes severe interscapular pain . . . . The bottom line is he cant
stand due to back pain. He cant walk due to knee pain. He cant lift due to his back. He cant
carry things due to weakness and muscle balance loss. Tab 120 at 605.
Gordon himself completed a claim form for LINA in early August 2004. Tab 76 at 596-
98. He said that he could not work at his own or any occupation because he was unable to have
full range of motion in left knee and because after standing or walking I develop[] back pain.
Id. at 596. He indicated that he used handrails, an elevated toilet seat, and pneumatic
compression boots three times a week to control swelling in his legs. Id. He also indicated that
he took hydrocodone, a narcotic painkiller, as needed. Id. at 598.
In mid-August 2004, Canfield completed a second PAA for LINA. Tab 126 at 646-47.
Like the earlier PAA, this one was far from clear. Canfield checked no boxes with respect to
standing and walking, and again checked only the supported by objective findings boxes with
respect to lifting over fifty pounds and carrying over twenty pounds. Id. at 646. With respect to
climbing stairs and ladders and balancing, this PAA said that Gordon could do those activities
continuously, flatly contradicting the earlier PAA and, it must be noted, contradicting all of
the evidence in the record. Id. at 647. (It is inconceivable, based on the evidence in the record,
that Gordon could continuously climb stairs or ladders.) With respect to stooping, kneeling,
- 16 -
crouching, and crawling, Canfield checked only the supported by objective findings box, not
any of the other boxes. Id. On the previous PAA, by contrast, Canfield had written unable in
the objective findings box for three of these activities (kneeling, crouching, and crawling) and
had checked occasionally for the activity of stooping. Tab 127 at 333. Again, it is impossible
to know what Canfield intended to say on these two PAAs about Gordons abilities to stand,
walk, climb, balance, stoop, kneel, crouch, or crawl.
In late August 2004, Gordon went to the emergency room with severe pain and swelling
in his groin. Tab 119 at 372. He had a hernia. Emergency-room personnel treated the hernia
and recommended to Gordon that he have outpatient surgery to repair the hernia more
permanently. Id. at 373. Gordon followed the recommendation and had hernia-repair surgery on
August 30, 2004. Id. at 370-71.
Also in late August 2004, LINA decided to provide services to Gordon to help him find
work. Tab 52 at 187-88. Internal LINA notes express the view that it is doubtful that Gordon
could return to a medium-duty occupation. Tab 75 at 698. In October 2004, a vocationalrehabilitation
counselor at LINA, Christine Kampi, began working with Gordon. Tab 51 at 186.
Kampi and Gordon discussed training him for sales or insurance work. Id. Gordon expressed
interest in being trained for hospital-equipment repair, but Kampi said that the job would involve
some walking/standing, and that LINA would not train him for a job that he might not be
physically capable of doing. Tab 49 at 184.
In October 2004, LINA also referred Gordon to a company called Intracorp for additional
vocational assistance. Tab 53 at 190. A screening questionnaire prepared by Sandra Schimizzi,
an Intracorp employee, describes Gordon as having sedentary restrictions and says that
Gordon has no transferable skills that transfer to the labor market that match his physical
- 17 -
limitations. Tab 114 at 660. Schimizzi also noted that she needed clarification of Canfields
mid-August PAA. Id. When Kampi followed up with Canfield about the PAA, Canfield
responded that Gordon would need to make an appointment so that Canfield could fill out a new
form. Tab 48 at 175.
Throughout November and December 2004, Gordon worked with Kampi, Intracorp, and
Wedl Placement, a job-placement consultant. Gordon took some insurance courses and took
exams to become licensed to sell insurance. He passed the exam with respect to life and health
insurance, but failed the exam with respect to property and casualty insurance. Tab 36 at 122;
Tab 47 at 173; Tab 112 at 633. Gordon expressed interest in computer training in early
December; Kampi told Gordon on December 10 that, although LINA would test Gordons
existing computer skills, it would not provide any more computer training at that time. Tab 33
at 113; Tab 32 at 111. A few days later, John Wedl of Wedl Placement suggested to Kampi that
he try to place Gordon in a quality-assurance position. Tab 31 at 110. But Kampi did not think
Gordon would be physically able to do such work; Kampi also did not think that insurance sales
would be a good fit. Id. She suggested claims administration, and Wedl agreed to follow up.
Wedl also agreed to test Gordons computer skills. Id.
In late December 2004, Kampi asked a nurse case manager to follow up with Canfield to
clarify the PAA he filled out in mid-August. Tab 30 at 107. Canfield declined to comment
further on Gordons limitations and restrictions until he saw Gordon again, and he directed
LINA to put its request for more information in writing. Tab 29 at 103.
In early January 2005, tests showed that Gordons computer skills were poor. Tab 24
at 82; Tab 106 at 531-40. Wedl told Kampi he was trying to place Gordon as a parts runner or a
counter person in a parts shop, but Kampi told Wedl to stop his efforts because there was no
15A functional-capacity evaluation or FCE is a test generally administered by a physical
- 18 -
evidence [Gordon] can perform this work . . . . Tab 28 at 98. In late January, Wedl reported to
LINA the results of an informational interview about working in sales that he had arranged for
Gordon. Tab 104 at 527. According to Wedl, the interviewer said that Gordon would be
unsuitable for even the easiest phone-sales position because he was very unpolished. Id.
Wedl identified two possible job leads for sitting assembly. Id. at 527-28. But on January 28,
Kampi told Wedl to stop trying to place Gordon in any position outside of the insurance
industry, pending more information about Gordons physical restrictions. Tab 27 at 95.
By mid-February 2005, Wedl had contacted over thirty possible employers in the
insurance business, and Gordon had participated in an informational interview at State Farm.
Tab 100 at 557-58. State Farm reported that Gordon was not a candidate for a sales position
because he was unpolished and lacked experience. Tab 100 at 558. After conducting a labormarket
survey with respect to clerical and claims-representative positions in the insurance
industry in the Twin Cities, Wedl concluded that Gordon was not eligible for a position as a
claims representative because he needed at least a year of customer-service or office experience.
Tab 101 at 566. Wedl suggested that Gordon might be able to get office skills by working with a
temp agency. Id. Wedl also noted that Gordons certification with respect to life and health
insurance would not be helpful unless Gordon wanted to pursue a sales position. Id.
Based on the report from Wedl, Kampi concluded on February 22, 2005 that vocationalrehabilitation
efforts would need to focus on past skill base [versus] development in new area.
Tab 24 at 82. In light of the lack of further information from Canfield about Gordons physical
limitations, LINA had scheduled a functional-capacity evaluation or FCE.15 Tab 24 at 82;
or occupational therapist to objectively measure[] the evaluees current level of function,
primarily within the context of the demands of competitive employment, activities of daily living
or leisure activities. Am. Physical Therapy Assn, Guidelines: Occ. Health Physical Therapy:
Evaluating Functional Capacity,
TEMPLATE=/CM/ContentDisplay.cfm (last visited Feb. 25, 2009), archived at
- 19 -
Tab 97 at 435-59. Kampi noted that, once it got the results of the FCE, LINA would need to
consider whether it could develop a feasible rehabilitation plan within [Gordons] skills through
past work history as a Machinist. Tab 24 at 82.
Gordon underwent an FCE on February 22, 2005. Tab 97 at 435-59. The evaluator
found that Gordon gave a reliable effort, and that his reported symptoms were consistent with his
medical diagnosis and objective findings. Id. at 435-36 The evaluator concluded that Gordon
was unable to work as an aircraft mechanic. Id. at 435. Specifically, the evaluator found:
Mr. Gordon requires the use of a stable object to lower and raise
himself into/out of a kneeling position as well as the use of hand
rails to ascend and descend stairs. . . .
In order to return to work, Mr. Gordon would need to sit for 66%
of the day and have the assistance of a coworker or mechanical
device to lift more than 40 lbs. (30 lbs. if it is above shoulder
height). He would also need assistance with low level work as
well as with reaching.
Id. at 435-46.
A few days after the FCE, an occupational therapist, Mary Ann Caesar, completed a PAA
with respect to Gordon. Tab 125 at 330-31. In this PAA, Caesar indicated that Gordon could sit
frequently (2.5 to 5.5 hours a day) but stand and walk only occasionally (under 2.5 hours a
day). Id. at 330. Caeasar also indicated that Gordon could do several activities only
occasionally: reaching, grasping firmly with his right hand, lifting 21-50 pounds, carrying 21-50
- 20 -
pounds, climbing stairs, balancing, stooping, and kneeling. Id. at 330-31. Caesar identified only
two activities Gordon could do continuously (over 5.5 hours a day): lifting ten pounds or less,
and carrying ten pounds or less. Id. at 330.
In late March 2005, having reviewed the FCE, Kampi determined that Gordon would not
be able to work in a quality-assurance position (a suggestion raised by Wedl in December 2004).
Tab 20 at 73. Kampi noted that Gordon had limited communication skills, was unpolished,
lacked sales experience, and showed no aptitude for customer service. Id. Importantly, Kampi
also noted that wages may not reach replacement. Id.
Also in late March 2005, the Social Security Administration decided that Gordon was
entitled to SSDI benefits. Tab 91 at 336-44. The administrative-law judge (ALJ) assigned to
Gordons case found his subjective complaints to be generally credible. Id. at 342. The
ALJ also found that Gordon retain[ed] a residual functional capacity for unskilled sedentary
work, defined to mean work lifting 10 pounds frequently, standing and walking 2 of 8 hours,
and sitting 6 of 8 hours. Id. (citing 20 C.F.R. 404.1567, 416.967).
This finding of a capacity for sedentary work did not defeat Gordons SSDI claim,
however, because federal regulations direct[] a finding of disabled when considering the
claimant limited to sedentary work at age 55 with a high school education and previous skilled
work experience but no transferable skills. Id. at 343 (citing Rule 201.02 in Appendix 2 to
Subpart P of 20 C.F.R. part 404). Thus, the ALJ held that [c]onsidering his age, education, past
work history and residual functional capacity, [Gordon cannot] perform work that exists in
significant numbers in the regional and national economy. Id. at 344. The ALJ held that
Gordon had been disabled since November 1, 2003. Id.
16The note reads: Dan @ 80% 0 occs @ 60% 1 occ service dispatcher DH 04-26-
06. Tab 55. On the same page (a printout from a database of the average estimated wage in
2003 for dispatchers in Minneapolis-St. Paul), an even-more-cryptic note says Urgent. TSA
wage. DS tab has wage.
- 21 -
In April 2005, Kampi closed Gordons rehabilitation claim. Tab 19 at 69. She observed
that Gordon had participated in training for insurance sales, but lacks the aptitude to succeed
in the insurance industry. She further remarked: No transferable skills noted. Id. At around
the same time, a LINA employee noted in Gordons file that the any-occupation period would
begin on May 28, 2006 and suggested updating the medical information before then. Tab 17
at 66.
For the next several months, LINA paid benefits to Gordon, but otherwise took no action
on his claim. In December 2005, a LINA claims manager named Dan Hissong wrote Gordon to
say that LINA was again reviewing his claim because the any-occupation period would begin
soon. Tab 73 at 399-400. Hissong enclosed a questionnaire for Gordon to give to his doctor. Id.
In mid-April 2006, Canfield gave Gordon a comprehensive physical examination.
Tab 120 at 325-27. Canfield noted that Gordons extremities show normal range of motion and
normal muscle strength and that Gordon had no swelling in his feet. Id. at 326. Hissong called
Canfields office seeking updated medical information, but the office would not provide
anything without a renewed authorization form from Gordon. Tab 16 at 44.
In late April 2006, someone at LINA (possibly Hissong) appears to have run a
Transferable Skills Analysis or TSA to identify possible jobs for Gordon. Tab 55 at 204.
No jobs were identified that would pay eighty percent of his earnings; only one job, service
dispatcher, was identified that would pay sixty percent of his earnings.16 Id. There is no
evidence in the record of how this analysis was conducted or what information went into it.
- 22 -
In late May 2006, Hissong instructed a nurse case manager, Charleen Deneen, to refer
Gordon for an independent medical examination. Tab 15 at 42. But Hissong then apparently
decided that LINA needed updated medical records first. Tab 14 at 41. Ultimately, LINA never
arranged an independent medical examination (although, as discussed below, Gordon secured
one on his own initiative).
On May 26, 2006, Canfield submitted a third PAA to LINA, along with a form titled
Physicians Statement of Disability. Tab 124 at 319-23. Canfield wrote that continuous pain
left knee limits standing, walking, bending, kneeling. Id. at 319. He noted that Gordon took
Coumadin as needed (depending on his clotting-factor levels) and pain medications. Id. On the
PAA, Canfield indicated that Gordon could sit, stand, and walk only occasionally (less than 2.5
hours a day). Id. at 321. Canfield also indicated that Gordon could not lift or carry more than
fifty pounds; could not climb ladders, stoop, kneel, crouch, or crawl; and could not work around
machinery, work overtime, or use foot controls. Id. at 321-22. Canfield identified only four
activities that Gordon could do continuously: fine manipulation, simple grasping, lifting under
ten pounds, and carrying under ten pounds. Id. Canfield did not provide any restrictions on
reaching; he checked the not applicable to diagnosis box. Id. at 321.
A few days after receiving the PAA, Hissong asked a vocational rehabilitation counselor,
Vincent Engel, to conduct a TSA based on the restrictions and limitations found in the PAA.
Tab 13 at 39. The referral form directed Engel to use an earnings threshold of sixty percent.
Tab 72 at 355. Engel performed the TSA and reported to Hissong that he identified transferable
occupations based on [Gordons] work history, education, wage requirements and limitations
and restrictions. Tab 12 at 38.
The TSA describes Gordons restrictions as follows:
17The four sedentary jobs identified were: maintenance scheduler; service clerk; service
dispatcher; and repair-order clerk. The two light-duty jobs identified were hardware-supplies
sales representative and post-office clerk. Tab 71 at 354.
18LINA assessed Gordons functional capacity as light duty. Tab 11 at 37. LINA
characterized Canfields May 2006 PAA as showing that Gordon is lifting in the light to
medium level of physical demand and is limited to occasional sitting, standing, and walking.
- 23 -
[Gordon] is lifting in the light to medium level of physical
demand. He is limited to only occasional sitting, standing and
walking and would need a job where change of position was
available. He has good use of his upper extremities for reaching,
fine manipulation, and simple grasping. For firm grasping he is
limited to occasional use of the [right upper extremity] due to
weakness. He is unable to climb ladders, stoop, kneel, crouch or
Tab 71 at 354. The TSA describes Gordons transferable skills as including:
Knowledge of tools, machines, materials, and methods used in
trade or craft specialty; reading scale drawings or blueprints to
visualize objects; using shop math to calculate object dimensions,
material amounts needed, and material costs; coordinating eyes,
hands and fingers to use hand tools or machines in constructing,
making, or repairing objects; and adhering to object specifications
or standards.
Id. The TSA then identifies six jobs that Gordon can perform, four classified as sedentary
jobs according to the Dictionary of Occupational Titles (DOT), and two classified as light
jobs.17 Id. The TSA says, in summary, that [s]uitable positions were identified that meet
Mr. Gordons skills, education, work history and wage replacement requirements. Id.
Based entirely on this TSA and the May 2006 PAA from Canfield, LINA determined that
Gordon was not disabled under the any-occupation definition of disability and therefore denied
his claim. Tab 3 at 3; Tab 11 at 37.18 Hissong sent a letter to Gordon on June 2, 2006, informing
him that LINA no longer considered him disabled and would stop paying him benefits as of
19The copy of Odeens letter in the record does not include attachments, and she did not
itemize them very specifically. A note in LINAs files says that Odeen also submitted office
notes dated April 13, 2006 and September 5, 2006 as well as the May 2006 PAA. Tab 9 at 24.
The April 13, 2006 office note is presumably the report of the comprehensive physical exam
discussed above.
The September 5 note documents a visit by Gordon to his family-practice clinic for
swelling in his left leg caused by walking. Tab 120 at 301. Gordon saw a physician assistant,
who recommended that he wear compression stockings when walking and prescribed a diuretic.
Id. at 302. It seems likely that the note for the September 5 visit was sent separately from
Odeens letter, which is dated a few weeks earlier.
- 24 -
June 1. Tab 70 at 348-50. Hissong listed the six jobs identified in the TSA and said that because
Gordon would be able to perform them, he was not disabled. Id. at 349.
Gordon retained counsel, and his lawyer, Diane Odeen, wrote LINA in mid-August to
protest the denial of his claim. Tab 69 at 315-17. Odeen argued that because of his physical
limitations, as reflected in all three of the PAAs prepared by Canfield, Gordon could not do any
of the six jobs identified by LINA. Id. at 316. Odeen submitted medical records and documents
related to Gordons SSDI award and to his classification by Minnesota as a disabled person for
hunting purposes. Id. at 317.19
After receiving Odeens letter, Hissong forwarded Gordons file to a nurse case manager
for review. Tab 68 at 312. Hissong asked for an opinion on whether medical evidence sent in
on appeal support[s restrictions and limitations] past [any-occupation] date. Id. The nurse case
managers response reads in full:
57 [year-old] male airline mech[anic] appeal
* No new clinical documentation to support [restrictions and
limitations] of no work[.]
PAA Dr. Canfield [primary-care physician] outlines sedentary
to light capacity.
TSA [identified] 4 sedentary [and] 2 light[.]
- 25 -
Tab 68 at 313.
LINA then asked a medical director, Dr. R. Norton Hall, to review Gordons file some
time in November. Tab 9 at 24. Hall was told that on June 1, 2006, medical documentation
received from [Canfield] indicated that [Gordon] could function within a sedentary to light
demand level. Tab 67 at 295. Hall was asked to [d]etermine if medical documentation on file
supports limitations imposed. Halls response reads in full:
Medical record review fails to reveal significant documented
clinical findings to support a status of no work. The [claimants
attending physician] indicates a functionality that negates a no
work status. Finally the [last office visit] of 9/5/06 indicates only
1+ edema of [lower left leg].
Tab 67 at 296.
Based on this opinion from Hall, LINA denied Gordons appeal. Tab 66 at 292-94. In
the denial letter, dated November 16, 2006 and addressed to Gordons counsel, LINA said that
its medical director reviewed Mr. Gordons entire medical chart and concluded that the medical
records fail to reveal significant documented clinical findings to support a status of no work.
Id. at 293. LINA told Gordon that its decision was based on information from Canfield, saying:
Dr. Canfield, who is Mr. Gordons treating provider, has already
indicated that he would be able to sustain full time sedentary
employment within the noted restrictions. Dr. Canfield has not
retracted his earlier functional assessment or provided us with a
letter explaining how Mr. Gordons condition would prevent him
from performing the occupations identified.
Gordon then underwent two more evaluations, one in December 2006 and one in
February 2007, before again challenging LINAs denial of his claim. Gordon saw a physical
- 26 -
therapist, Kari Prestholdt, in December 2006. Prestholdt filled out a PAA form as well as a
narrative evaluation. Tab 123 at 257-59 (PAA); Tab 116 at 260-62 (narrative evaluation).
With respect to the activities of sitting, standing, and walking, Prestholdt did not check
any of the boxes to indicate how frequently Gordon could do those activities, nor did she check
the not applicable box. Tab 123 at 257. Instead, she wrote Please see initial evaluation for
objective findings on the lines for standing and walking. Id. (Presumably she meant this
notation to refer to sitting as well, which is on the line above standing.) Prestholdt also only
partially completed a portion of the PAA titled Physical Limitations that had checkboxes to
indicate whether, in an eight-hour day, Gordon could do specified activities for 0 hours, up to 2.5
hours, up to 5.5 hours, or more than 5.5 hours. Id. at 259. She indicated that he could not climb,
kneel, or crawl at all, but she checked no boxes for the activities of balancing, stooping,
reaching, walking, sitting, and standing. Id. Elsewhere in the PAA, however, Prestholdt
indicated that Gordon was unable to stoop, kneel, crouch, crawl, or climb a ladder, and she
described his balance as poor. Id. at 258. She also indicated that his ability to lift or carry over
ten pounds was limited. Id. at 257.
Prestholdts narrative evaluation (the initial evaluation referred to in her PAA) does not
include much information about sitting, apart from indicating that Gordons seated balance was
normal. Tab 116 at 261. With respect to walking, Prestholdt wrote that Gordon ambulates with
very slight limp . . . Id. at 260. In the assessment portion of the form, she wrote: [Gordon]
demonstrates [left] knee [decreased range of motion] and strength limiting ability to squat and
ambulate [up/down] stairs reciprocally [without] having use of railing. Id.
Gordons next evaluation, in February 2007, was an independent medical examination
(IME) by Dr. Anil K. Agarwal, an orthopedic surgeon. Tab 115 at 268-79. Agarwal reviewed
20To recap, Canfield completed three PAAs, one in July 2004, one in August 2004, and
one in May 2006. An occupational therapist, Caesar, completed a PAA in March 2005, and
Presthold completed one in December 2006. Agarwal reviewed all of these PAAs except the
August 2004 PAA by Canfield.
- 27 -
four of the five PAA forms that had been done up to that time and examined Gordon.20 Id. at
269-70. Agarwal was aware of Gordons history of surgeries and hospitalizations, though he
apparently did not review records for them. Id. at 275.
On physical examination, Gordons left knee showed [c]onsiderable swelling, almost
1.5 times normal, and exhibited tenderness, crepitus (i.e., crackling), patellofemoral-joint
disease, and limited range of motion. Id. at 274. Agarwal also found swelling and diminished
range of motion in Gordons right ankle, as well as numbness in the ring and pinky fingers of
Gordons right hand caused by a pinched ulnar nerve. Id. at 274-75.
Agarwal concluded that he favor[ed] total disability for Gordon based on five
conditions: (1) his knee, (2) his gastric-bypass surgery, (3) his pinched ulnar nerve, (4) his
possibly arthritic right ankle, and (5) his recurrent DVT in his left leg. Id. at 275-76. With
respect to Gordons knee, Agarwal described Gordons knee-replacement surgery was
unsuccessful because Gordon was in pain, had [c]onsiderable swelling, and had limited range
of motion. Id. at 275. Agarwal described Gordon as having considerable lower extremity
distress. Id.
In March 2007, Odeen wrote to LINA to request that it reconsider its denial of his claim
in light of the IME and other records. Tab 64 at 253-54. She enclosed a letter from Gordon in
which he wrote, It is difficult very for me to sit at a desk for any longer than one hour my leg
gets severe cramps. Tab 65 at 285. Gordon also said that he was scheduled for a third hernia
surgery. Id.
- 28 -
Odeen also included a copy of Agarwals IME report, Prestholdts PAA from December
2006, some medical records, and evidence that Minnesota had classified Gordon as disabled for
homestead purposes. See Tab 64 at 253. Odeen said that Gordons inability to stand or sit for
any length of time without pain, and his total inability to stoop or kneel severely limits his ability
to perform any occupation. Id. at 254. She asked LINA to reconsider its denial in light of
Minnesota law and the findings of various government agencies that Gordon was disabled. Id.
A claims manager at LINA, Diana Accetta, reviewed Gordons claim with a second
medical director, Dr. Seiferth, on June 25, 2007. Tab 60 at 246-48. (LINA sent Gordon letters
in April and May saying that they were working on his appeal, but the record contains no
evidence of any action by LINA before June 25. See Tabs 61-63.) Accetta asked Seiferth,
Does med[ical] support reopen of voluntary appeal? Tab 60 at 246. Seiferths response reads
in full:
[Claimant] with osteoarthritis [status post left] knee [total knee
replacement] on appeal of previous findings of sedentary
capacity[.] Claimant submitted IME whose opinion is knee
swelling [and] reduced [range of motion] (-15 80E) precludes
[return to work]. No [provision?] of functional loss to preclude
sedentary capacity is submitted. Medical does not support
continued [out-of-work] restriction.
Tab 60 at 247.
The day Seiferth gave this opinion, Accetta wrote to Odeen to inform her that LINA
again upheld its denial of benefits. Tab 59 at 254-55. After saying that Gordons entire
medical record file was reviewed with a Medical Director, Odeen explained LINAs denial of
benefits as follows:
[I]t was noted that the medical information does not support his
inability to perform sedentary work. It was felt that although he
may have knee pain, the occupations that were identified at the
- 29 -
sedentary level would allow [him] to stand up and change position
to get comfortable. Sedentary occupations do not require him to
use ladders and crawl as [he] has been restricted from doing so.
While there has been additional information submitted that
supports Mr. Gordons inability to perform his own occupation at
the medium level due to a [sic] knee pain, there is no medical
information that would support his impairment to perform any
occupation at the sedentary level.
Tab 59 at 245. LINA informed Gordon that his appeal rights were exhausted and that he could
sue LINA if he wanted to. Id.
Gordon brought this action in October 2007.
A. Standard of Review
Gordon challenges LINAs decision, as an ERISA plan administrator, to deny his claim
for disability benefits. The parties cross-move for summary judgment. Accordingly, two
interlocking standards of review apply in this case: the general summary-judgment standard and
the specific standard that applies to federal-court review of decisions by ERISA plan
1. Summary Judgment
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.
- 30 -
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.
When an ERISA plan authorizes the plan administrator to determine eligibility for
benefits, courts review the administrators determinations for abuse of discretion. Pralutsky v.
Metro. Life Ins. Co., 435 F.3d 833, 837 (8th Cir. 2006). The insurance policy in this case
provides that LINA shall have the authority, in its discretion, to interpret the terms of the Plan
documents, to decide questions of eligibility for coverage or benefits under the Plan, and to make
related findings of fact. Tab 56 at 231. On its face, this provision seems to grant LINA
sufficient discretion to entitle it to the deferential, abuse-of-discretion standard of review. But
Gordon asks the Court to disregard the provision and review his claim de novo. Pl. Mem. Opp.
Def. Mot. S.J. (Pl. SJ Opp.) at 21-23 [Docket No. 44]. According to Gordon, although the
insurance policy gives LINA the authority to determine eligibility for benefits, some document,
apart from the insurance policy itself, must actually effectuate[] the delegation of this authority
from the plan sponsor (Northwest Airlines) to LINA. Id. at 23. No such document exists in this
Gordon is mistaken. In the very case on which Gordon bases his argument, McKeehan v.
Cigna Life Insurance Co., the Eighth Circuit said, we require explicit discretion-granting
language in the policy or in other plan documents to trigger the ERISA deferential standard of
review. 344 F.3d 789, 793 (8th Cir. 2003) (emphasis added; quotation omitted). And in
Rittenhouse v. UnitedHealth Group Long Term Disability Insurance Plan, the Eighth Circuit
- 31 -
held that discretion-granting language in an insurance policy was sufficient to trigger abuse-ofdiscretion
review. 476 F.3d 626, 629 (8th Cir. 2007). As these cases make plain, discretiongranting
language that appears in an insurance policy such as the language that appears in the
policy issued by LINA to Northwest Airlines entitles an insurer to abuse-of-discretion review
under ERISA. The Court therefore reviews LINAs decision to deny benefits to Gordon for
abuse of discretion.
With respect to questions of policy interpretation i.e., questions about the meaning of
terms in a policy an ERISA plan administrators interpretation will be upheld on review for
abuse of discretion if the interpretation is reasonable under 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 fiduciarys 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 fiduciary 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).
With respect to questions of policy application i.e., questions that depend on factual
conclusions the abuse-of-discretion standard likewise requires the Court to review for
reasonableness. Such review, though deferential, is not tantamount to rubber-stamping the
result. Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 680 (8th Cir. 2005). Rather, an
ERISA plan administrators decision must be supported by substantial evidence that is assessed
by its quantity and quality. Id.
- 32 -
Further, when the plan administrator is also the insurer (as is LINA), 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 insurer's 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
claims-assessment 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.
The Court will not, however, weigh[] the conflict heavily as Gordon asks. Pl. SJ Opp.
at 27. The Court disagrees with Gordon about the significance of the various factors that he
contends support such an approach. For instance, the fact that LINA did not pay Gordon his
benefits is not an additional factor that favors weighing a conflict heavily; such nonpayment is
the basis of any suit for benefits. The Court also does not agree that LINA provided incorrect
information about Gordons capacity to the TSA analysis. Id. This is not to say that the TSA
was flawless. Indeed, as explained below, the Court finds that LINAs reliance on it was
unreasonable. But the person who performed the TSA was aware of Gordons restrictions and
- 33 -
limitations. In short, LINAs conflict is entitled to some weight in this case, but it is not
B. Benefits Claim
LINA concluded in its May 2006 TSA that Gordon could do six jobs, four of which were
sedentary and two of which were light duty. Tab 71 at 354. This TSA was, and remains,
LINAs primary basis for concluding that Gordon is not disabled under the any-occupation
definition of disability. Gordon disputes the TSAs conclusion on two grounds. First, he
contends that he is not, in fact, capable of doing any of the six jobs identified in the TSA. Pl.
Mem. Supp. Mot. S.J. (Pl. SJ Mem.) at 41, 45-46 [Docket No. 35]. Second, he contends that
the jobs do not satisfy a wage threshold that is implicit in the policy. Id. at 46-47. The Court
considers each argument in turn.
1. Gordons Capacity to Work
According to LINA, Canfields May 2006 PAA the most recent of the three PAAs
submitted by Canfield showed that Gordon could perform the tasks required with sedentary
or light occupation. Def. Mem. Supp. Mot. S.J. (Def. SJ Mem.) at 12 [Docket No. 33]. This
is manifestly false. Because LINA based its decision on an obvious misinterpretation of the May
2006 PAA, LINA abused its discretion in denying Gordon benefits on the basis that he could do
sedentary work.
It is important to note that there is no evidence in the record that LINA disagreed with the
substance of Canfields May 2006 PAA. LINA attempts to cast doubt on the PAA in this
litigation, by asserting that the May 2006 PAA unexplainably drops [Gordons] ability to sit
from continuously to occasionally. Def. Resp. Mem. Opp. Pl. Mot. S.J. (Def. SJ Opp.) at 7
21This is not the first case in which LINA has mischaracterized medical records and
erroneously asserted that a claimants doctor supported the claimants ability to do sedentary
work. See Juszynski v. Life Ins. Co. of N. Am., No. 06-CV-5503, 2008 U.S. Dist. LEXIS 24928,
at *19 (N.D. Ill. Mar. 28, 2008) (holding that LINAs contention that [the claimants doctor]
certified that Plaintiff was capable of performing the duties of a sedentary occupation is not
corroborated by the record and reversing LINAs denial of disability benefits).
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[Docket No. 43]. But there is no evidence in the record that LINA doubted the substance of the
PAA at the time that it made its decision. Instead, LINA simply mischaracterized it.21
The mischaracterization began in August 2006, when a nurse case manager wrote that
Canfields PAA outlines sedentary to light capacity. Tab 68 at 313. And in referring
Gordons claim to Hall for review, the case manager told Hall that medical documentation
received from [Canfield] indicated that [Gordon] could function within a sedentary to light
demand level. Tab 67 at 295. In his cursory note about Gordons claim, Hall said that Canfield
indicates a functionality that negates a no work status. Id. at 297.
Seiferths equally cursory note suggests that he accepted uncritically the statements in
LINAs file that Gordon had already been found to have sedentary capacity. Specifically,
Seiferth characterized Gordon as appealing previous findings of sedentary capacity . . . .
Tab 60 at 247 (emphasis added). Seiferth mentioned only Agarwals IME, and asserted, without
analysis, that No [provision?] of functional loss to preclude sedentary capacity is submitted.
Medical does not support continued [out-of-work] restriction. Id. And in explaining LINAs
final rejection of Gordons claim, Accetta said, All four of the reviewed Physical Ability
Assessment forms are well beyond the requirements of sedentary work. Tab 59 at 245. Accetta
therefore asserted that there is no medical information that would support his impairment to
perform any occupation at the sedentary level. Id.
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It is true that Canfield used the word sedentary in the May 2006 PAA: With respect to
the activities of lifting, carrying, pushing, and pulling, Canfield wrote that Gordons capacity
was sedentary for all. Tab 124 at 323. But Canfield also checked boxes, in two separate
locations on the form, to indicate that Gordon could walk, sit, and stand only occasionally
that is, less than 2.5 hours in a regular workday. Id. at 321, 323. And in the narrative
accompanying the form, Canfield wrote that continuous pain left knee limits standing, walking,
bending, kneeling. Id. at 319.
Contrary to the assertions made by LINA in this lawsuit, in its internal notes, and in its
claim-denial letters, the May 2006 PAA does not show that Gordon had the capacity for
sedentary work. The PAA says that Gordon can perform four specific activities lifting,
carrying, pushing, and pulling to the extent consistent with sedentary work. But the PAA also
says that Gordon cannot walk, sit, or stand more than 2.5 hours per day. Common sense dictates
that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary
LINAs assertions defy not only common sense. The term sedentary is a term of art in
the occupational context. Social Security regulations define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. 404.1567(a). Further, the Social Security Administration has explained that in
sedentary work, [s]itting would generally total about 6 hours of an 8-hour workday. Social
Security Ruling No. 96-9p, 1996 SSR LEXIS 6, at *9 (SSA July 2, 1996). While rulings by the
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Social Security Administration are not directly applicable under ERISA, the guiding principles
developed in [Social Security disability] cases may be instructive in ERISA cases. Halpin v.
W.W. Grainger, Inc., 962 F.2d 685, 695 n.11 (7th Cir. 1992) (quotation omitted). Based on the
Social Security Administrations definition of sedentary work, and based on common sense, the
Court finds that someone who cannot sit more than 2.5 hours per day is not capable of doing
sedentary work. Thus, Canfields May 2006 PAA which reported that Gordon could not sit
more than 2.5 hours per day certainly did not support LINAs conclusion that Gordon could
perform sedentary work. Tab 124 at 321, 323.
Moreover, the TSA that is at the core of LINAs decision to reject Gordons claim for
benefits does not, properly read, support LINAs conclusion that Gordon was physically capable
of doing the jobs identified in the TSA. Specifically, the TSA accurately summarizes the May
2006 PAA as limiting Gordon to only occasional sitting, standing and walking . . . . Tab 71 at
354. The TSA then lists six occupations, four sedentary and two light duty, that Gordon
ostensibly can perform.
But the TSA does not explain how Gordon can do sedentary or light-duty work if he is
limited to occasional sitting, standing, and walking. In fact, it is apparent that Engel, who
completed the TSA, did not consider whether Gordon was physically capable of the six jobs
identified in the TSA. In the Summary section of the TSA, Engel wrote: Suitable positions
were identified that meet Mr. Gordons skills, education, work history, and wage replacement
requirements. Id. Gordons physical restrictions are notably absent from this list of criteria met
by the positions identified by Engel.
This absence may explain Engels otherwise inexplicable conclusion that Gordon could
do sedentary and light-duty jobs despite his inability, acknowledged in the narrative portion of
LINAs counsel asserted at oral argument t 22 hat when Engel did the TSA, he directed his
computer program to return only jobs that required 2.5 hours or less of sitting per day. S.J. Hrg
Tr. at 44. But assertions by counsel are not evidence, and there is no record evidence to support
this assertion.
Having reviewed the TSA, the Court does not find counsels assertion to be credible.
The six occupations identified by Engel are all identified by their number in the Dictionary of
Occupational Titles and are listed as requiring sedentary or light strength. Tab 71 at 354. With
respect to sitting requirements, the Dictionary of Occupational Titles classifies jobs only by
gross strength levels (i.e., sedentary, light, medium, heavy, and very heavy), not by how many
hours of sitting per day they require, and there is no evidence on the TSA that Engel was able to
classify jobs more finely than they are classified in the Dictionary of Occupational Titles.
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the TSA, to sit more than 2.5 hours per day. Engel considered only whether the identified jobs
were compatible with Gordons skills, education, work history, and wage replacement
requirements and whether they were sedentary or light duty. Engel did not consider whether
the jobs were compatible with Gordons specific physical restrictions.22
LINA abused its discretion in relying on the TSA for another reason: LINA did not
attempt to square Engels assessment of Gordons transferable skills with evidence that he had
no such skills. Specifically, LINAs outside vocational consultant found, in 2004, that Gordon
had no transferable skills that transfer to the labor market that match his physical limitations.
Tab 114 at 660 (emphasis added). Kampi, LINAs own vocational rehabilitation counselor,
agreed with this assessment. She remarked, when she discontinued rehabilitation efforts in April
2005, No transferable skills noted. Tab 19 at 69.
LINA was not necessarily bound by these findings, but LINA was not free to act as if
they did not exist. The outside consultant and Kampi both worked for LINA, not Gordon, and
they were therefore presumably unbiased (or, if anything, biased in favor of LINA). In relying
on the assertion by Engel who never met Gordon that Gordon had a long list of
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transferable skills without considering (much less explaining) how that assertion squared with
the earlier contrary findings, LINA acted arbitrarily.
2. The Wage Threshold
Under the policy at issue in this case, an insured meets the own-occupation definition of
disability if he or she cannot perform all of the material duties of his or her regular occupation,
and an insured meets the any-occupation definition of disability if he or she cannot perform all
the material duties of any occupation for which he or she may reasonably become qualified
based on education, training, or experience. Tab 56 at 215. Although some disability-insurance
policies provide coverage either when an employee is unable to work, or when the employee is
able to work but is not able to earn more than a certain percentage (such as eighty percent) of his
pre-disability income, the policy in this case includes no such wage-threshold provision.
Nonetheless, the June 2006 TSA that formed the basis of LINAs denial of Gordons
claim referred to his wage replacement requirements and identified only jobs that paid more
than a monthly wage requirement of ,101.74. Tab 71 at 354. This amount equals sixty
percent of Gordons monthly pre-disability earnings (adjusted for inflation). Id.
Gordon contends that LINA used the wrong wage threshold and should have used eighty
percent instead of sixty percent. Pl. SJ Mem. at 46. LINA counters that it was not required to
use any wage threshold. LINA points out that the policy does not define disability in terms of a
wage threshold and that LINA never referred to a wage threshold in its letters to Gordon. Def.
SJ Opp. at 10-11. LINAs counsel explained at oral argument that LINA chooses, as a matter of
internal policy, to apply a sixty percent wage threshold when conducting a TSA (unless the
policy provides for a higher wage threshold), but he denied that LINA was required to apply a
sixty percent threshold or any other threshold in this case. S.J. Hrg Tr. at 56-57.
23Gordon relies on the work-incentive benefit provision to support his argument that an
eighty percent wage threshold applies in this case. Pl. SJ Mem. at 46.
24Indeed, the Court encountered a work-incentive-benefit provision virtually identical to
the one at issue in this case in a LINA policy at issue in another case before the Court, MacNally
v. Life Insurance Company of North America, No. 07-CV-4432 (D. Minn.). But under that other
policy, in the any-occupation period, an insured is disabled either if the insured cannot perform
any occupation, or if the insured is unable to earn more than 80% of his or her Indexed Covered
Earnings. MacNally, Docket No. 40, Admin. Record at 700. The work-incentive benefit
- 39 -
If the only relevant policy language were the policys definitions of disability, the Court
would agree with LINA that the policy does not include any wage threshold, let alone the eighty
percent threshold claimed by Gordon. But the policy is internally contradictory. True, the
disability definitions do not incorporate an explicit wage threshold, but LINA effectively
promises to provide disability benefits to claimants who cannot earn more than eighty percent of
their pre-disability income through the work incentive benefit provision.23 As noted above,
work-incentive-benefit provision sets out a formula for how outside earnings will reduce an
employees disability benefit during the any-occupation period. Tab 56 at 216. But if an
employee has earnings from some occupation during the any-occupation period, how can the
employee be disabled under the any-occupation definition of disability? Put differently, if, as
LINA claims, an employee is not entitled to any disability benefit if he can earn any amount of
money from any occupation, then what is the point of the work-incentive benefit? There is an
irreconcilable conflict between the work-incentive-benefit provision and the any-occupation
definition of disability.
It seems likely that this conflict is the result of sloppy drafting on LINAs part. The
work-incentive benefit would make perfect sense in a policy whose definition of disability
includes an eighty percent wage threshold.24 But the benefit makes no sense in a policy that does
provision at issue both in MacNally and in this case, a provision that allows an insured to keep a
portion of his benefits until he earns eighty percent of his pre-disability earnings, fits perfectly
with the definition of disability in the MacNally policy.
Another provision of the policy in this case provides further evidence that the drafter did
not attempt to reconcile the policys definitions of disability with its other provisions: The
policy provides that coverage ends when an insured earns more than the percentage of his or her
Indexed Covered Earnings which [is use]d to determine if an Employee is Disabled . . . .
Tab 56 at 225. Yet the policy does not define disability in terms of a percentage of an insureds
Indexed Covered Earnings.
- 40 -
not incorporate a wage threshold. When asked about the work-incentive-benefit provision at the
summary-judgment hearing, LINAs counsel had no explanation for how it could be reconciled
with the any-occupation definition of disability. S.J. Hrg at 54-55. This reflected not a
shortcoming on the part of LINAs counsel, but the fact that the two provisions are simply not
LINAs reliance on one aspect of the policy the any-occupation definition of disability
to the exclusion of another the work-incentive-benefit provision is a matter of policy
interpretation. The Court holds that LINAs interpretation of the policy as not including a wage
threshold is not reasonable under the five-factor test set forth in Finley v. Special Agents Mutual
Benefit Association, Inc., 957 F.2d 617 (8th Cir. 1992). Most important, LINAs interpretation is
contrary to the plain language of the work-incentive-benefit provision and renders that provision
meaningless with respect to the any-occupation period. Further, the interpretation conflicts with
the goal of the plan to provide the insured an incentive to work if he can. And to the extent that
LINA applied a sixty percent wage threshold internally, LINA did not consistently apply the
literal language of the any-occupation definition of disability, which does not include any wage
threshold. Only one of the five Finley factors does not weigh against LINA: LINAs
interpretation does not conflict with ERISAs procedural or substantive requirements. Under
- 41 -
these circumstances, especially in light of LINAs conflict of interest in this case, the Court finds
LINAs interpretation of the work-incentive-benefit provision to be unreasonable.
Accordingly, LINA abused its discretion in failing to apply an eighty percent wage
threshold in determining whether Gordon was disabled during the any-occupation period of
disability. The work-incentive benefit effectively promises employees such as Gordon that they
may work during the any-occupation period and still receive benefits as long as they earn under
eighty percent of their pre-disability earnings. For that reason, the Court agrees with Gordon
that LINA erroneously used a sixty percent wage threshold in this case.
None of the six jobs identified in the June 2006 TSA paid eighty percent of Gordons
indexed pre-disability earnings. Accordingly, even if Gordon were physically capable of doing
those jobs, the TSA would not justify the denial of his claim for benefits. This is a second,
independent reason supporting the Courts finding that LINA abused its discretion when it
denied Gordons claim.
C. Prejudgment Interest
Gordon requests prejudgment interest at the Minnesota state interest rate . . . . Pl. Mot.
S.J. at 1 [Docket No. 34]. Prejudgment interest is available in ERISA cases if it is necessary to
ensure that a plaintiff obtains appropriate equitable relief. Dependahl v. Falstaff Brewing Corp.,
653 F.2d 1208, 1219 (8th Cir. 1981). Indeed, the Eighth Circuit has held that prejudgment
interest should generally be granted unless exceptional circumstances render such an award
inequitable. Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 752 (8th Cir. 1986); see
also Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1331 (8th Cir. 1995) (holding, in an ERISA
case, that there are no exceptional circumstances that would make the award of prejudgment
- 42 -
interest inequitable). But the interest rate is not set by state law; rather, it is determined in
accordance with 28 U.S.C. 1961. See Mansker, 54 F.3d at 1331.
The Court finds that an award of prejudgment interest is necessary in this case to provide
appropriate relief to Gordon. Because the parties have not briefed the question of what interest
rate applies, the Court defers consideration of that question. The Court encourages the parties to
attempt to agree on how to calculate prejudgment interest, as well as on how to calculate the
amount of benefits that LINA owes to Gordon under this Order.
D. Attorneys Fees
Gordon seeks an award of attorneys fees. Whether to make such an award is within a
district courts discretion. Mansker, 54 F.3d at 1329. The Eighth Circuit has identified five
factors that courts should consider in deciding whether to award attorneys fees in an ERISA
(1) the degree of culpability or bad faith which can be assigned to
the opposing party, (2) its ability to pay, (3) the potential for
deterring others in similar circumstances, (4) whether the moving
party sought to benefit all plan participants or beneficiaries or to
resolve a significant legal question regarding ERISA, and (5) the
relative merits of the parties positions.
Id. The Court finds that, on balance, these factors favor Gordon, and the Court therefore directs
LINA to pay his attorneys fees.
LINAs behavior toward Gordon in this case was not that of a fiduciary acting in his
interests and the interests of plan participants. Rather, LINA acted like a company that first
decided to deny Gordons claim and then went looking for evidence to justify that decision.
Notably, although LINA considered seeking an independent medical examination in May 2006,
it did not do so once it received the May 2006 PAA from Canfield. See Tab 15 at 42. LINA
- 43 -
then egregiously mischaracterized the PAA, both internally and to Gordon, to support its
conclusion that Gordon could do sedentary work.
Further, the analyses of Gordons medical records by LINAs nurse case manager and its
medical directors were so cursory as to amount to mere rubber stamping. The Court agrees with
Gardner v. Bear Creek Corp., which labeled an opinion by Hall like the one in this case an
analytic nullity. No. C 06-02822 MHP, 2007 U.S. Dist. LEXIS 58615, at *51 (N.D. Cal. Aug.
6, 2007). And the Courts holding is consistent with Juszynski v. Life Insurance Company of
North America, in which the court found that LINA took a selective view of the available
evidence and reversed LINAs denial of benefits. No. 06-CV-5503, 2008 U.S. Dist. LEXIS
24928, at *39 (N.D. Ill. Mar. 28, 2008).
The evidence in the record is overwhelming that Gordon is incapable of earning a living.
Rather than view the record through the eyes of a fiduciary, LINA bent over backwards to find
an excuse any excuse to deny benefits to Gordon. There is, for example, no evidence that
LINA gave a moments consideration to the findings of its own vocational counselors and
outside consultants that Gordon was unemployable. Instead, LINA relied on a purely
hypothetical TSA to conclude that Gordon could work. LINA acted not as a fiduciary, but as an
adversary. The Court awards Gordon his attorneys fees.
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
1. LINAs motion for summary judgment [Docket No. 30] is DENIED.
2. Gordons motion for summary judgment [Docket No. 34] is GRANTED as
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a. LINA is ORDERED to pay long-term disability benefits to Gordon for the
period from June 1, 2006 to the date of judgment, in accordance with the
terms of the plan, in an amount to be determined.
b. LINA is ORDERED to pay long-term disability benefits to Gordon going
forward, unless a termination of benefits is consistent with the policy as
interpreted by this Order and justified either by a change in Gordons
condition or by new information about Gordons condition.
c. LINA must pay attorneys fees and costs in an amount to be determined.
i. No later than thirty days from the date of this order, Gordon must
serve and file an affidavit documenting the attorneys fees and
costs he seeks to recover.
ii. No later than fifteen days after Gordon serves and files the abovereferenced
affidavit, LINA may serve and file a response of no
more than 4,000 words.
d. LINA must pay prejudgment interest at the rate provided for under 28
U.S.C. 1961.
e. If the parties agree on the amount of benefits owed and the interest
calculations, the parties must submit a proposed form of judgment no later
than thirty days from the date of this order.
f. If the parties disagree on the amount of benefits owed and the interest
calculations, they must do as follows:
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i. No later than thirty days from the date of this order, LINA must
serve and file an affidavit documenting its calculation of the
benefits and interest owed to Gordon under this order.
ii. No later than fifteen days after LINA serves and files the abovereferenced
affidavit, Gordon may serve and file a response of no
more than 4,000 words.
Dated: March 18, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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