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Zeaske v. Liberty Life Assurance Co. of Boston

United States Court of Appeals, Eighth Circuit

August 23, 2018

Damon Zaeske Plaintiff- Appellee,
Liberty Life Assurance Company of Boston Defendant-Appellant.

          Submitted: March 2, 2018

          Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.

          COLLOTON, Circuit Judge.

         This appeal arises from Liberty Life Assurance Company's denial of Damon Zaeske's application for long-term disability benefits under his employer's welfare benefit plan. After Zaeske sued under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), the district court ruled that Liberty Life's denial was an abuse of discretion and ordered the company to pay Zaeske benefits and attorney's fees. Liberty Life appeals, and we conclude that its decision was not an abuse of discretion, so we reverse the judgment.


         Zaeske worked at Walmart as a project manager. On April 4, 2014, he stopped working due to chronic back pain. As a Walmart employee, Zaeske was a member of Walmart's Associates' Health and Welfare Plan, a plan insured and administered by Liberty Life. After his last day of work, Zaeske applied to Liberty Life as administrator for long-term disability benefits under the plan.

         To evaluate Zaeske's claim, Liberty Life obtained medical records from his treating physicians-Dr. Garrett, Dr. Potts, and Dr. Nunley. The administrator then submitted those records to Dr. Shannon, an independent consulting physician. Dr. Shannon gave her assessment to Liberty Life on May 30, 2014.

         Based on Zaeske's medical records, including the results of magnetic resonance imaging in 2013, Dr. Shannon diagnosed Zaeske with chronic low back pain and recently increased back and leg pain due to disc protrusion with severe stenosis. From this diagnosis, Dr. Shannon concluded that Zaeske's current estimated work capacity was limited to sedentary work, rather than the light work required by his job at Walmart.

         Dr. Shannon explained, however, that the usual recovery time for Zaeske's primary impairing condition was three to six months. In a later portion of her report, when asked to address the estimated duration of Zaeske's restrictions and limitations, Dr. Shannon stated: "An additional 3 months and depe[n]dent on response to treatment." Dr. Shannon suggested that Liberty Life continue to obtain updated office notes from Zaeske's treating physicians for ongoing review of his condition. Liberty Life then approved Zaeske's claim on June 4, subject to periodic evaluation of his disability.

         Zaeske began receiving benefits on July 6. As part of its periodic evaluation, Liberty Life sent requests for updated medical records to Zaeske's treating physicians on October 12 and October 27. Although Liberty Life received Dr. Potts's responses to a generic restrictions form and an office visit summary from a new treating physician, Dr. Randolph, the administrator did not receive a response from Dr. Nunley or updated medical records from any of the physicians. On November 14, Liberty Life notified Zaeske that it had suspended his benefits and that Liberty Life would close his claim if it did not receive updated records by December 11. On December 12, Liberty Life had not received any updated records and thus denied Zaeske further benefits.

         On December 15, Liberty Life received updated medical records from Dr. Potts, Dr. Nunley, and Dr. Randolph for May 9 to November 7, 2014. The same day, Liberty Life sent the records to Dr. Glassman, a second independent consulting physician, for his assessment. Dr. Glassman attempted to contact each of Zaeske's treating physicians three times, but received no response.

         In a report dated December 23, Dr. Glassman observed that Zaeske had been diagnosed with lumbar degenerative disc disease and bulging discs, and that he suffered from spinal stenosis. Dr. Glassman noted that there was no evidence of any side effects from the medication that Zaeske used to control his pain. From Zaeske's records, Dr. Glassman concluded that the only diagnosis causing his impairment was lumbar degenerative disc disease and back pain. Dr. Glassman then opined that "a gentleman who is 51 years old with a history of lumbar degenerative disc disease, but no evidence of any disc herniation" could perform full-time activities throughout an eight-hour work day, five days a week. Liberty Life concluded, based on Dr. Glassman's assessment, that Zaeske was not entitled to long-term disability benefits and denied his claim.

         On February 20, 2015, Zaeske appealed the denial and submitted a number of documents. These included treatment notes from Dr. Potts dated December 29, 2014, in which she found that Zaeske was "[p]ositive for back pain," but did not address whether the pain was uncontrolled. In a letter dated February 10, 2015, Dr. Potts stated that "[Zaeske] is unable to work due to severe back pain and medication that causes drowsiness and inability to concentrate." But Liberty Life declined to change its determination, because it had received no ...

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