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Price v. Tyson Long-Term Disability Plan

United States District Court, W.D. Arkansas, Fayetteville Division

August 17, 2017

WESLEY W. PRICE PLAINTIFF
v.
TYSON LONG-TERM DISABILITY PLAN; and UNUM LIFE INSURANCE COMPANY OF AMERICA, PLAN ADMINISTRATOR DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Before the Court is an action under the Employee Retirement Income Security Act of 1974 (“ERISA”), as set out in Plaintiff Wesley W. Price's amended complaint (Doc. 8). Defendants Tyson Long-Term Disability Plan (the “Plan”) and Unum Life Insurance Company of America (“Unum”) filed an answer (Doc. 10), and the parties submitted a stipulated administrative record (Docs. 11, 12).[1] Having considered the parties' respective briefs on Mr. Price's entitlement to disability benefits (Docs. 16, 17), the Court finds that Mr. Price's claim should be dismissed for the reasons set forth below.

         I. Background

         Mr. Price was hired by Tyson Foods, Inc. as a long-haul truck driver on November 17, 2011. (Doc. 12-1, p. 46). He became eligible for coverage under the Plan on December 1, 2012. (Id.). His last day worked was January 25, 2013. (Id.). Plaintiff's claim for long-term disability payments was filed on May 24, 2013, and listed the medical conditions resulting in his disability as “herniated disks in neck and lower back, pinched nerves, [and] no feeling on right arm/hand.” (Id., pp. 38, 41). As part of his claim, Mr. Price also included an attending physician's statement from Dr. Ronald Bertram, his primary care physician, who found that Mr. Price suffered from cervical radiculopathy, a herniated disc, foraminal narrowing, and lumbar radiculopathy. (Id., p. 39). Mr. Price's claim, supporting documents, and medical records were sent to Unum for an initial review.

         On July 23, 2013, Unum notified Mr. Price that it had approved his request for long-term disability benefits based on his inability to complete his own job. (Doc. 12-2, pp. 173-176). The Plan defined “disability” as the inability to perform “the material and substantial duties of your own job due to your sickness or injury.” (Doc. 12-1, p. 80). While Unum found Mr. Price's lumbar spine complaints to be pre-existing conditions and excluded from coverage as having been treated during the Plan's lookback period, [2] his claim was approved based on his cervical radiculopathy and herniated disc. (Doc. 12-2, p. 174). Unum found that “based on his use of oxycodone he is precluded from driving per [Department of Transportation] regulations.” (Doc. 12-2, p. 152).

         Unum stopped sending payments after 12 months, pursuant to a provision of the Plan that excluded benefits “after 12 months of payments, when you are able to work in any gainful occupation on a part-time basis but you do not.” (Doc. 12-1, p. 86). In effect, Unum defined “disability” during the first 12 months based on the claimant's inability to perform his “own job, ” but after this period the claimant's disability was based on his inability to perform “any gainful occupation.” The Plan defines “gainful occupation” as “an occupation that is or can be expected to provide you with an income within 12 months of your return to work, that exceeds: 80% of your indexed monthly earnings, if you are working; or 60% of your indexed monthly earnings, if you are not working.” (Id., p. 93). Gainful employment is based upon occupations for which the claimant is “reasonably fitted by education, training or experience.” (Id., p. 80).

         By letter dated August 7, 2013, Unum notified Mr. Price of the different definition of disability under the Plan after 12 months. (Doc. 12-2, p. 219). During a telephone call that same day, Mr. Price told Unum that he was also seeking Social Security Disability Insurance. (Id., p. 256). By letter dated October 3, 2013, Mr. Price received his second denial notice for Social Security disability benefits. (Id., pp. 271-272).

         In reviewing Mr. Price's claim under the “any gainful occupation” standard, Unum sent updated disability reports to Dr. Bertram, who concluded that the claimant remained incapable of any work, including sedentary and light work.[3] (Doc. 12-3, pp. 40-41). At Unum's request, Dr. Bertram's medical opinion was reviewed by Dr. Tammy Lovette, also a doctor of family medicine. (Doc. 13-1, pp. 13-15). Focusing on the reported neck pain, Dr. Lovette did “not agree with Dr. Bertram that Mr. Price ha[d] no work capacity, ” finding that “he would be able to perform some level of work.” (Id., p. 14). Dr. Lovette noted that Mr. Price did not have surgery, injections, or seek any “aggressive treatment for his reported pain.” (Id.). For restrictions and limitations, Dr. Lovette opined that Mr. Price was not precluded from occupations that involved “[e]xerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly … to move objects. Based on his cervical spine, no restrictions related to sitting, standing and walking would be necessary.” (Id., p. 15). This evaluation was reviewed by Dr. Suzanne Benson, Unum's designated medical officer. (Id., pp. 17-19). With regards to Dr. Lovette's restrictions and limitations, Dr. Benson concluded that “it is medically reasonable that the claimant restrict overhead activity to occasional and avoid prolonged awkward head positions …. I recognize the claimant's report of low activity level, but findings and intensity of investigation and treatment failed to support conditions that would preclude the activity level outlined by [Dr. Lovette].” (Id., p. 18).

         A certified rehabilitation consultant, Marian Pearman, then provided Unum with a vocational assessment of Mr. Price. (Doc. 13-1, pp. 22-27). Ms. Pearman's assessment included the restrictions and limitations offered by Dr. Lovette and Dr. Benson. Ms. Pearman considered Mr. Price's prior work experience as a truck driver, forklift operator, and landscape supervisor. She also considered Mr. Price's skills, his eleventh grade education, occupations that met the required wage level, [4] and his geographic location in Springdale, Arkansas. The labor market survey identified five occupations for which Mr. Price was qualified: an order clerk, production clerk, routing clerk, final inspector, and chauffeur. (Id., p. 25).

         By letter dated April 18, 2014, Unum informed Mr. Price of its decision to terminate his long-term disability benefits. (Doc. 13-1, pp. 36-41). Unum “determined you are able to perform the duties of other gainful occupations.” (Id., p. 37). According to Unum, Mr. Price's medical data did not support restrictions or limitations precluding him from: “[e]xerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/a negligible amount of force constantly … to move objects … [with] no restrictions related to sitting, standing and walking” and jobs that “restrict overhead activity to occasional and avoid prolonged awkward head positions such as may be required of a car mechanic.” (Id.). Unum relied upon the five jobs identified by Ms. Pearman in her vocational assessment in concluding that Mr. Price would be able to hold gainful occupation.[5] (Id., p. 38). Unum's decision was administratively appealed by the claimant (Doc. 13-2, p. 81), but the decision was upheld. (Doc. 13-3, p. 44).

         II. Legal Standard

         Once a plaintiff in an ERISA action has exhausted his administrative remedies under a benefits plan, a reviewing court's function is to examine the record that was before the administrator of the plan at the time the claim was denied. Farfalla v. Mut. of Omaha Ins. Co., 324 F.3d 971, 974-75 (8th Cir. 2003); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). A denial of benefits claim under ERISA is reviewed for an abuse of discretion when “a plan gives the administrator discretionary power to construe uncertain terms or to make eligibility determinations.” King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-99 (8th Cir. 1997) (en banc) (citing Firestone, 489 U.S. at 111). When a plan confers discretionary authority, as is the case here, then the Court must defer to the determination made by the administrator or fiduciary unless such determination is arbitrary and capricious. Firestone, 489 U.S. 115. “[R]eview for an ‘abuse of discretion' or for being ‘arbitrary and capricious' is a distinction without a difference” because the terms are generally interchangeable. Jackson v. Prudential Ins. Co. of Am., 530 F.3d 696, 701 (8th Cir. 2008), citing Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 946 n.4 (8th Cir. 2000).

         Plaintiff disputes that abuse of discretion is the proper standard of review, and instead advocates for a de novo review based on Ark. Admin. Code 054.00.101 (“Rule 101”). Under Rule 101, “[n]o policy… for disability income protection coverage may contain a provision purporting to reserve discretion to the insurer to interpret the terms of the contract…” Ark. Admin. Code 054.00.101-4. This Rule applies to “all disability income policies issued in this State which are issued or renewed on and after March 1, 2013.” Ark. Admin. Code 054.00.101-7; see also Davis v. Unum Life Ins. Co. of Am., 2016 WL 1118258, at *3 (E.D. Ark. Mar. 22, 2016). Plaintiff argues that the Plan was renewed on January 1, 2014 because it lists January 1 as the “Policy Anniversary Date.”[6] (Doc. 12-1, p. 66). Plaintiff contends that the Plan is “renewed every year on that date.” (Doc. 16, p. 2). The Court disagrees. As Unum correctly points out, the anniversary date of a policy is not a renewal within the meaning of Rule 101. See Owens v. Liberty Life Assurance Co. of Boston, 184 F.Supp.3d 580, 585 (W.D. Ky. 2016) (finding that a policy's “anniversary date” did not constitute a renewal under Arkansas's Rule 101); Rogers v. Reliance Standard Life Ins. Co., 2015 WL 2148406, at *7 (N.D. Ill. May 6, 2015) (A policy does not renew annually “simply because the Policy mentions an ‘Anniversary Date.'”).

         The Plan was issued with an effective date of January 1, 2002, and Amendment No. 19 gave the Plan an effective date of change of September 1, 2011. (Doc. 12-1, p. 65). The policy's “plan year” is “October 1, 2002 to January 1, 2003 and each following January 1 to January 1.” (Id., p. 68). The annual enrollment period occurs before the beginning of each plan year. (Id., p. 93). The Court finds that the Plan's anniversary date exists for purposes of designating each plan year's annual enrollment period and does not equate to an annual renewal of the policy. Because the policy ...


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