Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aberg v. Charter Communications, Inc.

United States District Court, E.D. Wisconsin

August 23, 2016

PENNY ABERG, Plaintiff,
v.
CHARTER COMMUNICATIONS, INC. WELFARE BENEFIT PLAN, and LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendants.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         INTRODUCTION

         Contrary to popular belief, when you fall off a horse, it’s not always a good idea to get back on. Plaintiff Penny Aberg hurt her back when she fell off of a horse, twice. She commenced this action against Charter Communications, Inc. Welfare Benefit Plan and Liberty Life Assurance Company of Boston alleging violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., seeking long term disability benefits allegedly due under an employee benefit plan governed by ERISA. Aberg has moved for summary judgment, as have the defendants. All parties have consented to the jurisdiction of this court. Briefing is complete and the motions are ready for resolution.

         FACTS

         A. The Parties

         Charter Communications, Inc. (“Charter”) employed plaintiff Penny Aberg from September 6, 2011, until April 4, 2014. (ECF No. 18, ¶¶ 9, 12.) Defendant Charter Communications, Inc. Welfare Benefit Plan (the “Plan”) is an employee benefit plan subject to ERISA. (ECF No. 18, ¶ 2.) Defendant Liberty Life Assurance Company of Boston (“Liberty”) is an insurance company licensed to do business in Wisconsin. (ECF No. 18, ¶ 3.) Liberty issued a group disability insurance policy to Charter as part of the Plan. (ECF No. 18, ¶ 15.)

         B. Aberg’s Position

         Aberg’s position at Charter was Customer Care Billing Advisor, which is a sedentary position. According to Aberg’s job description, the position requires responding “accurately, promptly, and effectively to call center calls, ” “quickly resolv[ing] customer concerns” and “proactively sell[ing] Charter products and services.” The position also requires the ability to perform the job at a workstation for prolonged periods of time, using a headset. (ECF No. 18, ¶ 11.)

         C. The Plan and Its Terms

         Aberg was a participant in the Plan, which provided Long-Term Disability Insurance (“LTDI”) among other benefits. (ECF No. 18, ¶ 16.) Liberty is responsible for paying any benefits due under the Plan. (ECF No. 18, ¶ 17.) Liberty has “the discretionary authority to construe the terms of [the Plan] and to determine benefit eligibility” under the Plan. (ECF No. 18, ¶ 18.)

         Under the Plan, “[w]hen Liberty receives Proof that a Covered Person is Disabled due to Injury or Sickness and requires the Regular Attendance of a Physician, Liberty will pay the Covered Person a Monthly Benefit….” (ECF No. 18, ¶ 19.) In the first 24 months of disability, “Disabled” means that a Plan participant is “unable to perform the Material and Substantial Duties of his Own Occupation” due to sickness or injury. (ECF No. 18, ¶ 21.) After 24 months, the Plan considers a participant disabled if he or she is unable to perform the Material and Substantial Duties of any occupation, i.e., an occupation for which she is or becomes “reasonably fitted.” (ECF No. 18, ¶¶ 21, 29.) “Material and Substantial Duties” are defined as “responsibilities that are normally required to perform the Covered Person’s Own Occupation, or any other occupation, and cannot be reasonably eliminated or modified.” (ECF No. 18, ¶ 25.)

         The Policy limits the benefits for non-verifiable symptoms “to not exceed a combined period of 12 months of Monthly Benefit payments while the Covered Person is insured under this Policy.” (ECF No. 28 at 13.) “Non-Verifiable Symptoms” “means the Covered Person’s subjective complaints to a Physician which cannot be diagnosed using tests, procedures or clinical examinations typically accepted in the practice of medicine. Such symptoms may include, but are not limited to, dizziness, fatigue, headache, loss of energy, numbness, pain, ringing in the ear, and stiffness.” (ECF No. 18, ¶ 28.)

         D. Medical Conditions

         Aberg primarily suffers from back pain stemming from two horseback riding accidents. She has been diagnosed with the following medical conditions related to her back: thoracic spondylosis, thoracic facet syndrome and facet disease, chronic thoracic lumbar back pain, a compression fracture of T11, change in geometry of back post kyphoplasty, persistent myofascial pain, fibromyalgia, and lumbar radiculopathy. (ECF No. 33, ¶ 1.)

         Aberg’s first horse accident occurred in September 2012. (ECF No. 33, ¶ 4.) The next day Aberg visited physiatrist and rehabilitation specialist Dr. Elizabeth Bensen. (ECF No. 33, ¶ 4.) Dr. Bensen noted acute pain, bruising, and tenderness in Aberg’s lower back. (ECF No. 33, ¶ 4.) In October 2012 Dr. Bensen permitted Aberg to return to work for a trial period whereby she would work full-time for a few days followed by a few days off work. (ECF No. 33, ¶ 5.) Later that month Dr. Bensen reviewed MRI results of Aberg’s lower back and concluded that it showed a T11 compression fracture and degenerative disc disease. (ECF No. 33, ¶ 6.) Dr. Bensen further noted that Aberg’s ongoing back pain had kept her off work for six weeks. (ECF No. 33, ¶ 6.) In September, October, and November 2012, Dr. Bensen indicated that Aberg was “totally incapacitated at this time.” (ECF No. 33, ¶ 33.) In December 2012 Dr. Bensen noted that Aberg still complained of not being able to “sit or stand for any length of time, such that she can return to work in her position at Charter.” (ECF No. 33, ¶ 7.) Aberg remained off work the rest of the year. (ECF No. 33, ¶ 7.)

         Treatment notes from January 2013 indicate that Aberg returned to work at Charter, although she did suffer from “somewhat increased back pain [after] prolonged sitting[.]” (ECF No. 33, ¶ 8.) Dr. Bensen permitted Aberg to return to work for “up to 8 hours per day as tolerated.” (ECF No. 33, ¶ 34.) In February 2013 Dr. Bensen noted that Aberg had unsuccessfully attempted to increase her work hours[.]” (ECF No. 33, ¶ 9.) Dr. Bensen recommended that Aberg work a maximum of four to six hours per day due to Aberg’s impaired sitting tolerance. (ECF No. 33, ¶ 35.)

         Dr. Bensen referred Aberg to Dr. Robert Mann, a neurosurgeon, to discuss a vertebroplasty. (ECF No. 33, ¶ 6.) Aberg underwent a vertebroplasty in April 2013. (ECF No. 33, ¶ 10.) About eight days after the vertebroplasty, Aberg again met with Dr. Bensen. (ECF No. 33, ¶ 11.) Dr. Bensen noted that Aberg was experiencing “some improvement in symptoms” but said she may ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.