Federal District Court Opinions

AMERICA, Defendant. Civil No. 05-2041. United States
District Court, W.D. Arkansas, Fort Smith Division.
November 6, 2006


JIMM HENDREN, District Judge

Now on this 6th day of November, 2006, the captioned
matter comes on for review, and from the Administrative
Record, and the briefs of the parties, the Court finds and
orders as follows: 1. Plaintiff Janet L. Strunk (“Strunk”)
is a participant in a short term disability plan (the
“Plan”) provided by her employer, Healthsouth Corporation,
and insured under a group insurance policy (the “Policy”)
by Unum Life Insurance Company of America (“Unum”). Strunk
was found eligible for benefits under the Plan, but later
terminated, and now appeals the termination decision.

2. The Plan is governed by the provisions of the Employee
Retirement Income Security Act (“ERISA”). Denial of ERISA
benefits is “reviewed on a de novo standard unless the
benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If
the administrator has discretionary authority, its
eligibility decisions are reviewed for abuse of that
discretion. Page 2 Groves v. Metropolitan Life Insurance
Co., 438 F.3d 872 (8th Cir. 2006).

The Plan here provides that “[w]hen making a benefit
determination under the policy, Unum has discretionary
authority to determine your eligibility for benefits and to
interpret the terms and provisions of the policy.” The
Court will, therefore, review Hartford’s benefits decisions
for abuse of discretion.

3. The abuse of discretion standard has been described as

In applying an abuse of discretion standard, we must
affirm if a reasonable person could have reached a similar
decision, given the evidence before him, not that a
reasonable person would have reached that decision. A
reasonable decision is fact based and supported by
substantial evidence. We may consider both the quantity
and quality of evidence before a plan administrator. And
we should be hesitant to interfere with the administration
of an ERISA plan.

Groves, 438 F.3d 872, 875 (internal citations and quotation
marks omitted).

“Substantial evidence” is “more than a scintilla but less
than a preponderance.” Leonard v. Southwestern Bell Corp.
Disability Income Plan, 341 F.3d 696, 701 (8th Cir. 2003).

Although abuse of discretion review puts a heavy burden on
a participant whose benefits have been terminated, it does
not amount to “rubber-stamping the result.” A termination
decision must be reasonable, i.e., “supported by
substantial evidence that is assessed by its quantity and
quality.” Torres v. UNUM Life Page 3 Insurance Co. of
America, 405 F.3d 670, 680 (8th Cir. 2005).

4. With the foregoing principles in mind, the Court has
examined the Administrative record, from which it has
derived the following relevant facts:

* The Policy provides, in relevant part, that a
participant is disabled “when Unum determines that: you
are limited from performing the material and substantial
duties of your regular occupation due to your sickness or
injury. . . .”

* The Policy further provides that a claim ends on the
occurrence of any one of several defined events. For our
purposes, the relevant event is “the date you are no
longer disabled under the terms of the plan. . . .”

* On June 24, 2003, Strunk, a Medical Records Supervisor
at Healthsouth, submitted a claim under the Plan to Unum.
The diagnosis supporting her claim was “cervicalgia,” or
neck pain. Strunk sought benefits starting June 11, 2003,
having gone off work on June 10, 2003.

* Starting in late June, 2003, Strunk tried physical
therapy as a treatment for her neck pain. This was not
helpful, and Dana Rabideau, M.D., Strunk’s physician,
referred Strunk to an neurosurgeon.

* An entry in Unum’s Activity Log dated June 26 and 27,
Page 4 2003, indicated that Kathy Cook in Human
Resources, presumably at Healthsouth, was contacted by
Unum and informed Unum that light duty was not available
in Strunk’s position. The entry also noted that “[p]er
account database,” Healthsouth “does not accommodate.”

* On July 1, 2003, Unum wrote Strunk and informed her
that her claim for short term disability benefits had been
approved from June 25, 2003, through July 7, 2003. The
letter advised Strunk that if she could not return to work
on July 8, 2003, she would be required to have her
attending physician provide medical records, a list of
activities she could not perform and an explanation for
the restrictions, and a copy of her treatment and return
to work plans. The letter instructed Strunk to “[m]ake
this letter available to your physician(s) and request
that your physician(s) mail or fax this information to
us,” and cautioned that “[a] note from your physician
saying you cannot return to work will not be acceptable
without the supporting medical data listed above.”

* On July 17, 2003, Strunk saw Anthony Capocelli, M.D., a
neurosurgeon. Dr. Capocelli diagnosed a disc herniation at
C6-7, and recommended an anterior cervical discectomy and

* On August 4, 2003, Dr. Capocelli performed the Page 5
recommended procedure.

* On September 16, 2003, Strunk returned for her first
post-operative visit. Dr. Capocelli noted that the
surgical wound was well-healed, and that Strunk was “just
having some relatively mild stiffness in the neck and
occasional pain effected by turning in certain positions
which I would expect is fairly normal at this time.” He
planned on follow-ups as needed, and released Strunk to
return to work for four hours a day as of September 29,
2003, for a period of two weeks, after which he indicated
that he would allow her to “progress to full time hours.”

* On September 30, 2003, Dr. Capocelli’s nurse made a
note in Strunk’s chart, stating that Strunk “came into
office — states is unable to work 4 hours due to
work requires 8 hours [with no] restrictions — given
note for off work until 10/13/03 & then return @ 8 hrs.”

* On October 1, 2003, Unum notified Strunk that her short
term benefits had been approved through October 12, 2003,
noting that it was Unum’s understanding that Strunk would
be returning to work on October 13, 2003.

* On October 6, 2003, Strunk called Unum and told the
claims examiner that she had been terminated by her
employer. Page 6

* On December 3, 2003, Unum called Healthsouth and spoke
to an employee there who confirmed that Strunk had not
returned to work, and that she did not have any details
about why, but that “she had an LTD [long term disability]
form on her desk to fill out and send to us `when she gets
around to it’.”

* On December 23, 2003, Strunk was examined by Dr.
Capocelli, who noted that she had returned to work for a
few days “and was having pain and difficulties and
apparently was fired from her job. She was unable really
to do the job with some significant symptoms after only
1-2 hours and it was our thought at that time that we went
ahead and took her off of work. Subsequently to that, she
has not been able to come to see us until now and is
unable to work during that time period.” As for her
current condition, Dr. Capocelli noted that Strunk
“continues to have ongoing radicular pain though
improved,” that she had “spasms in the trapezius,” and
that “[n]eurologically, she is intact, but does have
clear cut radicular symptomatology better than previous
but certainly present.” Dr. Capocelli ordered an MRI and
cervical spine x-rays, and stated that in the interim, “I
believe at this point that she is disabled and unable to
work.” Page 7

* Also on December 23, 2003, Unum notified Strunk that it
had reviewed her short term disability claim, and that
“[b]ased on the information in our file, there is no
disability supported by medical documentation.” Unum
stated that benefits would not be paid beyond October 12,
2003, and the claim would be closed.

* On December 30, 2003, Strunk underwent an MRI and
x-rays of her cervical spine. The MRI was reported as “#1
Anterior screw and side-plate device at C6-7 without
complication. #2 Small central to left-sided focal disk
protrusion at C2-3 and a small central disk bulge at C3-4.
Neither of these results in a significant canal stenosis.”
The x-rays were reported as “[p]ostsurgical findings of C6
to C7 as described. Degenerative spurring apparent in the
mid cervical area. Some anterior ligamentous ossification
also incidentally noted at C3-4 and C4-5. No acute change
from prior study 08/04/03.”

* On January 19, 2004, Strunk’s attorney lodged an appeal
on her behalf with Unum. In his letter he noted that
Strunk had “attempted to return to work as directed,” but
that “[p]rior to transitioning from part-time to full-time
work on a trial basis as recommended by her treating
neurosurgeon, HealthSouth released the Claimant Page 8
from work on or about 10/1/03. Stated grounds were that
Claimant was occupying a full-time job and therefore was
expected to do full-time work, but was unable to do so.”
The letter further stated that it was “Claimant’s position
that she is totally disabled and unable to work as of

* On February 12, 2004, in response to a question from
Unum, a Healthsouth employee stated that Strunk “returned
to work for 10 hrs during payperiod 09/21 –
10/04/03. Her term date was on 10/03/03 — it was a
voluntary quit.”

* On March 2, 2004, Dr. Capocelli examined Strunk,
stating that “according to her studies [she] remains
stable but she is continuing to have residual
difficulties. At this point, I do not believe she is ever
going to be able to return to her premorbid work duty and
at this point she is disabled. Though she has had some
improvement to the point that she can at least be
moderately function [sic] with her activities of daily
living, there is no way that she can return to her
premorbid work duty. This is also compounded by multiple
other medical problems in addition to her underlying spine
disease all of which culminate in her inability to return
to her premorbid work. At this point, we will just
followup with her Page 9 p.r.n. [as needed].”

* On March 22, 2004, Richard Tyler, M.D., an orthopedic
surgeon, reviewed Strunk’s file for Unum. It was Dr.
Tyler’s opinion that the “[r]ecord does not provide any
explanation for failure to seek medical attention during
hiatus of more than three months,” from September 16 until
December 23, 2003, and that the examination on December 23
was “unremarkable.” Dr. Tyler’s opinion was that Strunk’s
continuing neck and right upper extremity pain would
support limitations on “repetitious rotational or
flexion/extension mobilization of the neck,” but would not
support an inability to “carry out activities while
sedentary.” Dr. Tyler also stated that the additional
tests ordered by Dr. Capocelli in December, 2003, would
provide a better understanding of Strunk’s clinical

* Also on March 22, 2003, Unum notified Strunk that it
had completed appellate review of her claim and had
determined that the decision to deny benefits was
appropriate. It based this decision on the unexplained
lack of medical treatment between September 16, 2003, and
December 23, 2003, “for symptoms [Strunk] claims are
disabling,” and the lack of support for restrictions or
limitations during the time Strunk was released to work.
Page 10 It also noted “the claim that her employment was
terminated because of her inability to perform the job
duties on a full time basis appears unfounded.”

* On April 13, 2004, Dr. Capocelli signed a “To Whom It
May Concern” note stating that “Strunk was seen in our
clinic on 12-23-03 which was the earliest possible
appointment that we could see her after she called us on
09-30-03 regarding her work status. We did try to get her
in sooner than that, but unfortunately due to scheduling
problems were unable to see her until 12-23-03 and hence,
the delay in making final recommendations regarding her
work, etc.”

* Also on April 13, 2004, Strunk’s attorney wrote Unum,
enclosing various medical reports. The attorney stated,
with regard to Strunk’s termination at Healthsouth: “The
claimant attempted to return to work on 9/29/03 as
instructed in the doctor’s note attached above. She worked
for 4 hours the first day, 4 hours the second day, and 2
hours the next day for a total of 10 hurs. She was
instructed that if she could not do a full time job she
would be placed on personal leave and that at the end of
any personal leave there would not be a position available
to her and she would not be returned to work. This is not
a voluntary quit, but an Page 11 involuntary
termination, contrary to the doctor’s orders. It is
obvious that the claimant was terminated because she could
not perform the `material and substantial duties’ of her
job even with modifications and omissions.”

* On May 10, 2004, Unum notified Strunk that it had again
upheld the denial of benefits. The letter explained that
the additional medical documentation supplied by Strunk
did not “document any acute or significant changes from
the prior studies done on August 4, 2003, and that while
Dr. Capocelli “reference[d] multiple medical problems, . .
. he does not provide any description on how these
medical problems affect Ms. Strunk’s ability to perform
the duties of her occupation.” It further noted “there
still exists a substantial period of time in which there
are no medical records, physical exams, or testing to
support a lack of functional ability,” and that the
medical records “still do[] not explain why Ms. Strunk did
not return to work full time as instructed by Dr.
Capocelli.” The letter also stated Unum’s perception that
Healthsouth had offered to allow Strunk to continue her
personal leave.

* On May 28, 2004, Dr. Capocelli signed a “To Whom It May
Concern” note stating that “we did attempt to return Page
12 this patient to full work, but throughout this time
period, the patient was unable to tolerate the work
secondary to low back pain and difficulty relating to her
injury. The result was that she was taken off work. Though
the studies did not show any definitive changes, the
underlying nerve injury from the original herniation has
left the patient functionally unable to perform her
premorbid work activity.”

5. When the foregoing history of this claim is viewed as a
whole, the Court finds substantial evidence supporting
Unum’s conclusion that Strunk’s benefits should be
terminated as of October 12, 2003. Certainly it cannot be
said that no reasonable person could have reached the
decision reached by Unum in this case.

Under the terms of the Policy, it is a basis for
termination of benefits that a participant is no longer
disabled under the terms of the plan,” i.e., that she is no
longer “limited from performing the material and
substantial duties” of her regular occupation due to her
sickness. There is substantial evidence that Strunk had
reached this point by October 12, 2003. Strunk had a good
outcome from her fusion, and was experiencing only normal
pain and stiffness five weeks after surgery. She was in
good enough shape that Dr. Capocelli released her to return
to work as of September 29, 2003, with no limitation other
than that Page 13 she ease back into full-time work with a
two-week period of part-time work. The release was later
altered to allow her to simply return to work full-time as
of October 13, 2003, with no limitations on time or

In spite of the second release to work, it appears that
Strunk tried to return to work part-time at the earlier
date, and that Healthsouth, unwilling to allow part-time
work, terminated Strunk before she reached the date when
she had been released to work full-time. The evidence does
not, however, support a conclusion that Strunk tried to
work and was unable to perform the essential duties of her
job. The chart entry of Dr. Capocelli’s nurse on September
30, 2003, was to the effect that Strunk could not work four
hours because her job required her to work eight hours.
Strunk’s attorney explained the termination as being based
on Strunk’s not being able to work a full eight hours
immediately upon her return to work.

As for Strunk’s physical condition, Dr. Capocelli placed
no restrictions on her return to work except easing into it
by working four hours a day at first, and on September 30,
2003, after being told that Healthsouth would not permit
that, he allowed her to wait until October 13, 2003, and
then return to work full-time with no restrictions. In
December, Dr. Capocelli noted that Strunk continued to have
radicular pain, but that she was “improved,” and that even
with trapezius spasms she was Page 14 “better than
previous.” The MRI and x-rays taken on December 30, 2003,
were unremarkable. Dr. Capocelli’s opinion in March was
that Strunk “remains stable,” albeit with “residual
difficulties.” While Dr. Capocelli stated that Strunk was
disabled, until the final “To Whom It May Concern” note, he
gave no explanation for why he held this opinion, and his
medical records offer nothing to justify it. The May 28,
2004, note, while it offers “underlying nerve injury” as a
basis for a finding of disability, is not supported by any
nerve studies, nor is it particularly credible in light of
Dr. Capocelli’s position on Strunk’s work ability in

Dr. Tyler, reviewing Dr. Capocelli’s records and the
radiologic studies, pointed out the unexplained three-month
gap in treatment from September 16, 2003, to December 23,
2003, and the unremarkable physical findings in December.
While Strunk and Dr. Capocelli suggest that scheduling
problems explain the gap, Unum was certainly justified in
finding such an explanation less than credible on the part
of both patient and physician, given their position that in
the wake of a serious operation the patient was
deteriorating from “return to work” status to “disabled.”

Dr. Tyler felt that Strunk would need certain
accommodations in her job, but that she was capable of
carrying out sedentary work. Healthsouth’s reluctance to
offer those accommodations does not merit a finding of
disability for purposes of the Plan, Page 15 although it
may well be a legitimate subject of litigation for other

For all these reasons, the Court finds that the decision
of Unum was supported by substantial evidence, and should
be affirmed.

IT IS THEREFORE ORDERED that the decision of Unum Life
Insurance Company of America to terminate the short term
disability benefits of Janet L. Strunk is affirmed.