United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
case comes before the Court following Defendant Liberty Life
Assurance Company of Boston's ("Liberty Life")
decision to terminate Plaintiff Damon Zaeske's long-term
disability benefits. The dispute arises under the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C.
§§1001 et seq., which gives participants
in an employee welfare benefit plan a cause of action
"to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of
the plan." 29 U.S.C. § 1132(a)(1)(B).
the Court are the Administrative Record (Doc. 12), Plaintiffs
Brief (Doc. 13), and Defendant's Brief and Affidavit
(Docs. 18, 18-1). The Court also received a letter from Mr.
Zaeske, (Doc. 19), on April 19, 2017, after the
Administrative Record had been submitted and the parties'
had submitted their briefs. Because the letter came directly
from Mr. Zaeske, rather than his attorney, and was not part
of the Administrative Record on appeal, the Court gave it no
consideration. For the reasons explained herein, the Court
finds that Liberty Life's decision to deny long-term
benefits to Mr. Zaeske is REVERSED and the
claim REMANDED to Liberty Life for the
correct calculation of past-due benefits.
time counsel briefed this ERISA appeal, Mr. Zaeske was a
52-year-old man formerly employed by Wal-Mart Stores, Inc.
("Walmart") in the position of Project Manager I,
Systems Strategy-Risks Manager ("Risk Manager").
His duties included observing associate, customer, and
supplier behavior first-hand; making group presentations;
using a computer to locate information; creating documents
using a computer or writing instrument; visually verifying
information, often in small print; safely operating a motor
vehicle; and traveling both domestically and internationally
to multiple facilities, requiring consecutive or extended
overnight stays. (Doc. 12-3, p. 397). As an employee of
Walmart, Mr. Zaeske was a member of its Associate Health and
Welfare Plan (the "Plan"), which is insured by a
Group Disability Income Insurance Policy issued by Liberty
Life (the "Policy"). In addition to issuing the
Policy and paying benefits, Liberty Life also serves as
Zaeske's medical condition that gives rise to his claim
for benefits was first documented in 2010. In August of that
year, Mr. Zaeske visited Dr. David Garrett, a physician
practicing at Mercy Clinic in Lowell, Arkansas ("Mercy
Clinic"), and complained of depression and chronic pain,
including back pain. (Doc. 12-3, p. 79). Dr. Garrett
prescribed Darvocet, a pain medication used to treat mild to
moderate pain, for his "occasional use."
Id. On August 25, 2010, Mr. Zaeske had a follow-up
appointment with Dr. Garrett, and during that examination,
Dr. Garrett noted tenderness in the L5-S1 area of his lumbar
spine. Id. at 80. Also during that visit, Mr. Zaeske
complained that "he [could not] sit for very long"
when his back pain struck, and he "ha[d] to constantly
move." Id. Dr. Garrett prescribed him a steroid
injection for his back and refilled his pain medication
later, on October 7, 2011, Mr. Zaeske returned to Dr.
Garrett, complaining again of back pain and tenderness,
anxiety, depression, restless leg syndrome, and fatigue.
Id. at 82. Dr. Garrett prescribed oxycodone for pain
and Celexa for depression. Id. at 83. Mr.
Zaeske's back exam "demonstrated tenderness on the
right paravertebral muscle group." Id. He
returned to Dr. Garrett on May 4, 2012, complaining of
chronic pain, and refilling his medications. Id. at
84. It appears that his back pain worsened in the ensuing
months, as during the next check-up on January 2, 2013, Mr.
Zaeske reported to Dr. Garrett that the oxycodone was not
working well, and that the Darvocet he had been taking for
pain was now off the market. Id. at 85. Dr. Garrett
stopped his prescription for oxycodone, but prescribed
Voltaren, a non-steroidal antiinflammatory drug, and
Flexeril, a muscle relaxant. Id. at 86.
October 29, 2013, Mr. Zaeske had an appointment with Dr.
Janelle Potts, another physician at Mercy Clinic. During that
visit, Mr. Zaeske complained primarily of lower back pain. He
explained to Dr. Potts that he had experienced "low back
pain for many years off and on, " but only recently had
"a flair up [sic]" that caused his "[r]ight
leg . . . [to] go numb and tingly at times when laying in
bed." Id. at 87. Dr. Potts conducted a physical
examination that revealed lumbar tenderness, so she scheduled
a lumbar MRI and planned to perform two injections, one of
methylprednisolone acetate and one of dexamethasone-both
corticosteroids used to treat inflammation. Id. The
MRI, performed on November 6, 2013, revealed "chronic
appearing disc protrusion with severe stenosis at L4-5."
Id. at 282. Dr. Potts subsequently submitted a
Certificate of Health Care Provider for Associate's
Serious Heath Condition Form (an "FMLA form") on
November 15, 2013, in which she stated that Mr. Zaeske would
be incapacitated for three days per month due to back pain
and the effects of pain medication, and that these
restrictions would apply for six months. She also noted that
he had been "sent for [an] MRI and referred to [a] back
surgeon." Id. at 41-42. She further explained
that "when incapacitated with back pain [he] cannot
perform any task, " id. at 41, and emphasized
that the medication he was currently taking for back pain
"can cause somnolence, decreased concentration, [and]
inability to drive make decisions, " id. at
follow-up appointment on December 2, 2013, Dr. Potts wrote in
her progress notes that "hydrocodone [was] not really
controlling [Mr. Zaeske's] pain, " and that he was
"[f]inding it difficult to work due to pain."
Id. at 88. During that same visit, she prescribed
him Dilaudid, an opioid pain medication, to be used in
conjunction with hydrocodone in order to control any
breakthrough pain, and she instructed that he should not work
for two weeks. Id. at 89. Then, on December 9, 2013,
she completed another FMLA form, advising that Mr. Zaeske
would be unable to work from December 2, 2013, through
December 25, 2013, because he was "taking strong
narcotics for pain" and was "unable to work while
under the influence" of these medications. Id.
Potts' progress notes from February 10, 2014 reveal that
on January 14, 2014, Mr. Zaeske underwent a lumbar medial
bilateral branch nerve block at the Springfield Pain
Management Center, which provided "good results."
Id. at 302, 305. However, Mr. Zaeske's pain
recurred shortly thereafter, due to effects of "spinal
stenosis and bulging discs, " and he was instructed to
take Tizanidine-a muscle relaxant-and hydrocodone for pain.
Id. at 302-03. Mr. Zaeske then visited Dr. Jonathan
Nunley at Mercy Clinic on February 17, 2014. Dr. Nunley noted
that Mr. Zaeske's back pain worsened with extension,
standing, and walking. Id. at 57. Dr. Nunley then
made plans to perform a second lumbar medial branch nerve
block on Mr. Zaeske's lumbar spine. Id. at 60.
On February 26, 2014, Dr. Nunley successfully performed that
procedure and then scheduled a follow-up appointment.
Id. at 60-61. Because the second medial branch nerve
block also achieved good results, Dr. Nunley performed two
radiofrequency neurotomies on Mr. Zaeske, one on March 13,
2014, and the other on April 2, 2014. Id. at 62-65.
But, on April 2, 2014, Dr. Nunley concluded that the
radiofrequency neurotomies had not resulted in "much
relief of back pain to this point, " and that Mr. Zaeske
suffered "[c]ontinued pain worse with extension and with
standing for long periods." Id. at 65.
Zaeske had an appointment with Dr. Potts on April 7, 2014.
She noted that, although he was "[t]aking medications as
directed, " his "[b]ack pain [was] not well
controlled, " and he "had to miss work due to back
pain and the effects of pain medications." Id.
at 94. This was true despite the fact that he "had
injections with Mercy pain management." Id. She
also observed that his job was "in jeopardy."
Id. The record reflects that the very next day,
April 8, 2014, Mr. Zaeske made a claim for long-term
disability benefits under the Policy, and indicated that
April 7, 2014, was the date his disability began. In support
of his claim, Dr. Potts completed two FMLA forms, one on
April 18, 2014, id. at 47-48, and the other on May
29, 2014, id. at 45-46. The April 18 form stated Dr.
Potts' medical opinion that the "strong
narcotics" Mr. Zaeske was taking for back pain, leg
pain, and weakness made him "unable to work under the
influence" from April 7, 2014, until May 9, 2014.
Id. at 47-48. In the May 29 form, she wrote that Mr.
Zaeske was "unable to perform any function when
incapacitated due to pain" caused by
"intervertebral disc protrusion, lumbar degenerative
disc disease ... [and] radiculopathy of [the] leg."
Id. at 45-46. She estimated he would be unable to
work at his regular job from May 20, 2014, through November
20, 2014. Id. at 46.
April 8, 2014, Mr. Zaeske called Liberty Life and had a
conversation with his case manager, June Arrington, as
reflected in the claim notes of the Administrative Record.
Ms. Arrington documented in the file that Mr. Zaeske talked
with her about his claim and informed her that he was not a
candidate for back surgery and had recently undergone
ablation therapy. He also told her that Walmart had recently
warned him that "he must find another job within
Walmart[, ] as he cannot do his job." Id. at
23, 2014, Ms. Arrington referred Mr. Zaeske's disability
claim to Dr. Patricia Shannon for an independent medical
assessment. The referral sheet pertaining to the assessment
noted that Mr. Zaeske's job as Risk Manager for Walmart
involved "[l]ighf physical demands, and therefore was
not a sedentary position. Id. at 282. Dr. Shannon
reviewed the medical documents submitted by Drs. Garrett,
Potts, and Nunley, including the lumbar MRI from November 6,
2013, and concurred with the treating doctors' collective
diagnosis of "[c]hronic low back pain with recently
increased back and leg pain." Id. She found
that Mr. Zaeske's MRI "showed chronic appearing disc
protrusion with severe stenosis at ¶ 4-5 . . . ."
Id. In addition, she identified several
"co-morbid conditions potentially impacting [his]
capacity, " namely, "[m]orbid obesity, anxiety,
[and] sleep disorder." Id. In determining
whether Mr. Zaeske met the definition of
"disability" under the Policy, Dr. Shannon found
that his current estimated work capacity was "sedentary,
" rather than the "light" level of activity
needed to perform his current job. Id. She declined
to assess whether any potential accommodations existed that
would facilitate a return to work, but observed that Mr.
Zaeske was currently limited in his ability to sit, stand,
walk, bend, stoop, squat, climb ladders, or lift objects
weighing more than ten pounds. Id. at 283. She
concluded her report by opining that the limitations on his
mobility would likely last "an additional 3
months"-for a total of six months-but that his overall
prognosis was "depedent [sic] on response to
as the claim-review process progressed, Mr. Zaeske continued
to receive further treatment for his back pain from his
primary physicians. Dr. Potts submitted another FMLA form to
Liberty Life on May 30, 2014. Id. at 50. That same
day, Dr. Nunley performed another steroid injection on Mr.
Zaeske's lumbar spine. Id. at 71. It was not
until June 4, 2014, that Liberty Life sent Mr. Zaeske a
letter notifying him that his long-term disability claim had
been approved. See Id. at 264. In the letter,
Liberty Life concluded that Mr. Zaeske met the Plan's
definition of "disabled, " with respect to his
ability to perform "the Material and Subtantial Duties
of his Own Occupation." Id. at 264. His date of
disability onset was found to be April 7, 2014, and he was
deemed eligible to receive benefits as of July 6, 2014. The
letter from Liberty Life also informed Mr. Zaeske that it
would evaluate his claim "periodically to determine
ongoing disability." Id.
the month of June 2014, Mr. Zaeske continued to see Drs.
Potts and Nunley. In an appointment with Mr. Zaeske on June
10, 2014, Dr. Potts noted that his back pain had worsened and
was "uncontrolled, " that he was unable to work
while taking pain medications, and that he should continue
taking oxycodone and Dilaudid for pain, and Robaxin, a muscle
relaxant. Id. at 97-99. After a visit with Mr.
Zaeske on June 17, 2014, Dr. Nunley noted that both previous
lumbar steroid injections had been unsuccessful in reducing
Mr. Zaeske's pain levels, and that he continued to have
"[c]onstant" low back pain that worsened with
standing or walking, such that he was now sleeping in a
recliner at night. Id. at 73. Dr. Nunley gave him
yet another steroid injection on September 12, 2014, and
noted Mr. Zaeske's continued low back pain in his notes.
Id. at 76. On October 8, 2014, a different physician
at Mercy Clinic, Dr. Gannon Randolph, examined Mr. Zaeske and
noted he "[c]ontinues to have low back pain. All axial,
midline and band of pain." Id. at 159.
point, Mr. Zaeske had been receiving long-term disability
benefit checks for only a few months. On October 12, 2014,
Ms. Arrington of Liberty Life wrote a letter to Mr. Zaeske,
requesting that he obtain updated medical information on his
condition from his treating physicians, Drs. Potts, Nunley,
and Randolph. See Id. at 253. When Liberty Life
received no immediate response from the doctors, it sent
another request on October 27, 2014. See Id. at 211,
219, 227. Two days later, Dr. Randolph sent a summary of his
notes from his visit with Mr. Zaeske on October 8, 2014. The
notes listed Mr. Zaeske's current medications for pain
and inflammation, which included Gabapentin, Robaxin,
oxycodone, and Dilaudid, and observed that the reason why he
was seen that day was for "[p]ain." Id. at
208. The notes also included an order that Mr. Zaeske submit
to another lumbar MRI. Id. On November 7, 2014, Dr.
Potts faxed a "Restrictions Form" to Liberty Life,
in which she identified Mr. Zaeske's continuing diagnosis
as "lumbar degenerative disc disease, " and noted
that his "back pain, intervertebral disc protrusion . .
. [and] abnormal MRI of lumbar spine." Id. at
203. She confirmed that he was still receiving spinal
injections, and she opined that his return-to-work date was
"yet to be determined." Id.
Life apparently viewed these submissions by Drs. Randolph and
Potts as insufficient to document Mr. Zaeske's continuing
disability. On November 14, 2014, Ms. Arrington wrote a
letter to Mr. Zaeske, informing him that his benefits were
suspended, and that unless further medical records were
provided by December 11, 2014, his claim would be terminated.
See Doc. 196. One day after the deadline, on
December 12, 2014, Ms. Arrington wrote another letter to Mr.
Zaeske, letting him know that since Liberty Life "did
not receive all the necessary information to investigate your
claim, your claim has been denied effective December 11,
2014." Id. at 185.
days later, on December 15, 2014, Liberty Life received
additional medical documentation from Drs. Potts, Nunley, and
Randolph. See Id. at 136-37. The documents included
reports of medial branch nerve block procedures performed in
February of 2014; a radiofrequency neurotomy performed in
March of 2014; notes regarding physical exams, epidural
steroid injections, and radiofrequency ablation procedures in
April of 2014; reports of further steroid ...