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Clark v. Cuna Mutual Long Term Disability Plan

United States District Court, W.D. Wisconsin

March 15, 2016

JON CLARK, Plaintiff,



In this ERISA action, plaintiff Jon Clark challenges the decision of defendant CUNA Mutual Insurance Society, his former employer, and its benefit plan, defendant CUNA Mutual Term Disability Plan, denying him long term disability insurance. Before the court are cross motions for summary judgment. (Dkt. ##14, 17.) For the reasons that follow, the court concludes that defendants acted arbitrarily and capriciously in denying Clark benefits. Accordingly, the court will grant plaintiff’s motion, deny defendants’ motion, and will remand for further administrative proceedings consistent with this opinion.[1]


A. The Parties

Plaintiff Jon Clark is a participant in defendant CUNA Mutual Long Term Disability Plan (“the Plan”). The Plan is an employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974 (“ERISA”). Defendant CUNA Mutual Insurance Society (“CUNA Mutual”), now known as CMFG Life Insurance Company, is Clark’s former employee. At times, the court will refer to the defendants collectively as “CUNA.” As an employee, CUNA Mutual issued Clark coverage under the Plan. During the course of Clark’s employment, he became eligible for certain employee benefits, including long-term disability insurance (“LTDI”) as provided by the Plan. Disability Management Services, Inc. (“DRMS”) is the claims administrator of the Plan, with the delegated authority to issue benefits on behalf of defendants. (R. at CM-CLARK000033-34.)

B. Relevant Plan Terms

The Plan provides for payment of LTDI benefits after the “Elimination Period” when CUNA “receive[s] proof that

1. You are Totally Disabled or Partially Disabled due to Sickness, Injury, Mental/Nervous Disorder, or Substance Abuse; and
2. You require the regular care and attendance of a Physician for Treatment in connection with the Totally Disabling or Partially Disabling condition. The Treatment must be provided by a Physician certified to treat Your specific condition and must be aimed at maximizing recover and return to work, when possible; and
3. You are in compliance with the Treatment plan outlined by Your Physician; and
4. Your Total Disability or Partial Disability started while You were insured under the Policy and results in a loss of income from employment for You.

(R. at CM-CLARK000014.)

The Plan defined “Total Disability” or “Totally Disabled” as:

Total Disability or Totally Disabled means during the Elimination Period and the next 36 months of disability You are unable to perform, with reasonable accommodation, all of the Material and Substantial Duties of Your Own Occupation because of any Injury, Sickness, Mental/Nervous Disorder, or Substance Abuse.
After 36 months of benefits have been paid, it means because of an Injury, Sickness, Mental/Nervous Disorder, or Substances Abuse You are unable to consistently perform, with reasonable accommodation, all the Material and Substantial Duties of any gainful occupation for which You are or could reasonably become qualified by training, education, or experience.

(R. at CM-CLARK000008.)

“Injury” is defined as “bodily injury resulting directly from an accident and independently of all other causes, ” and “Sickness” is defined as “an illness, disease, pregnancy or Complications of Pregnancy, ” not including “Mental/Nervous Disorder or Substances Abuse.” (R. at CM-CLARK000006-7.)

“Own Occupation” is defined as “the occupation You were performing on the beginning date of Total Disability or Partial Disability[.] We will look at Your occupation as it is normally performed instead of how the works tasks are performed for a specified employer or at a specific location and will not consider any tasks performed in excess of 40 hours per week.” (R. at CM-CLARK000006.)

“Material and Substantial Duties” are those “normally required for the performance of Your Own Occupation or any occupation, and cannot be reasonably omitted or modified except that We will consider You able to perform the Material and Substantial Duties if You are working or have the capacity to work 40 hours per week.” (R. at CM-CLARK000006.)

“Elimination Period” is defined as “a period of consecutive days of Total Disability or Partial Disability for which You are under the regular care and attendance of a Physician and for which no benefit is payable.” (R. at CM-CLARK000005.) For Clark, the schedule of benefits provides that the elimination period is 120 days, and it is undisputed that this period was satisfied as of November 10, 2011. (R. at CM-CLARK 000003, 270.)

C. Clark’s Employment History

Clark worked as a “Retirement Education Specialist, Virtual, ” at CUNA from July 26, 1990, to July 13, 2011. In that position, Clark’s duties included presenting, educating and promoting retirement plans through virtual educational sessions, providing technical/product training to credit unions and their employees, and assisting in the sales and marketing of available retirement options. The position required Clark to be able to sit, stand, write, operate a keyboard and other office equipment, reach, walk, and lift/carry/push/pull up to ten pounds. It also required about ten percent travel time.

Clark’s last day at work was July 12, 2011. The next day, Clark received a third discectomy of his right L5-SI disc space, which is described below.

D. Medical Conditions

i. Overview

At various times, Clark has been diagnosed with the following medical conditions: lumbar radiculopathy, herniated nucleus pulposus (lumbar), degenerative disc disease, disc collapse, foraminal stenosis, chronic lower back pain, right-sided lower extremity pain, recurrent disc herniation at L5-S1, depression, and residual right nerve root tension and weakness in the right lower extremity. At various times, Clark’s medical records reveal that he suffers from chronic pain in his lower back, pain in the right buttock and posterior aspect of the thigh to the knee and proximal calf, numbness and tingling in his right leg, limited range of motion, radiculopathy, and radiation down the back of the right leg with sharp shooting pain.[2]

Clark regularly takes ibuprofen (1, 000 mg. daily) and aspirin (975 mg. daily) to take the edge off of his pain. He previously used certain prescription medications, including gabapentin and hydrocodone, but experienced negative side effects and was concerned about developing an addiction to painkillers. CUNA does not dispute this, but disputes any inference that this means Clark has exhausted his available options for pain management.

ii. Timeline of Significant Medical Events


In the summer of 2006, Clark injured his back while lifting a heavy couch, causing it to seize up and pain to radiate down his buttocks, right hamstring and calf. X-rays and MRI in June and July 2007 revealed a large disc protrusion at L5-S1. Clark attempted several, non-invasive treatments, some of which provided some improvement in pain, but he ultimately opted for surgery. On July 18, 2007, Clark underwent an L5-S1 microdiscectomy performed by an orthopedic surgeon, Thomas Zdeblick, MD.

In September 2007, Clark reinjured his back when, as a spectator at a triathlon, he attempted to save a swimmer from drowning. A January 2008 MRI later revealed a recurrent right paracentral disc protrusion at L5-S1 with surrounding granulation tissue causing posterior lateral displacement of the right S1 nerve root. Dr. Zdeblick diagnosed Clark with a recurrent disc herniation at L5-S1, as well as recurrent, right-sided sciatica, and performed a revision microdiscectomy at L5-S1 on February 18, 2008.

Following the second surgery, Clark’s condition improved enough for him to return to work, although he continued to have low back pain. Clark contends that his improvement stalled, however, after a coughing incident in May 2008, when he felt a “pop” in his back and pain in his right calf. At a May 2008 appointment, Dr. Zdeblick noted that ...

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