United States District Court, W.D. Arkansas, Fayetteville Division
WESLEY W. PRICE PLAINTIFF
TYSON LONG-TERM DISABILITY PLAN; and UNUM LIFE INSURANCE COMPANY OF AMERICA, PLAN ADMINISTRATOR DEFENDANTS
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
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). 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
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
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,
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).
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).
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).
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. (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).
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,  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).
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. (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).
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).
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.” (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
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 ...