United States District Court, W.D. Wisconsin
JAMES R. DAHLKA, Plaintiff,
UNUM LIFE INSURANCE COMPANY OF AMERICA and ILLINOIS TOOL WORKS, INC., Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
civil suit for monetary relief, plaintiff James Dahlka
contends that defendant Unum Life Insurance Company of
America’s determination that he did not satisfy the
elimination period with respect to his claim for long-term
disability benefits was arbitrary and capricious, in
violation of his rights under the Employment Retirement
Income and Security Act (ERISA), 29 U.S.C. §
1132(a)(1)(B). Before the court are the parties’ cross
motions for summary judgement. Dkt. #12 and #16.
asserts that Unum acted arbitrarily and capriciously in
denying benefits by: (1) issuing multiple denials that
amounted to a “moving target”; (2) using an
erroneous vocational standard for light work and not the
actual job requirements provided by plaintiff’s
employer; (3) failing to consider plaintiff’s failed
work attempts after he underwent surgery; and (4) not
considering plaintiff’s treating provider evaluations.
He also seeks attorney fees and costs under 29 U.S.C. §
1132(g)(1) on the ground that defendants’ position is
not substantially justified. Defendants argue that: (1)
defendant Unum is entitled to summary judgment because it
reviewed plaintiff’s claim fully and fairly and had a
rational basis for denying it; (2) plaintiff has no
independent basis for asserting a claim against defendant
Illinois Tool Works; and (3) even if defendant Unum acted
arbitrarily and capriciously, plaintiff’s benefits are
subject to an offset for plaintiff’s estimated Social
Security Disability Insurance benefits.
reasons stated below, I find that defendant Unum did not act
arbitrarily and capriciously in denying plaintiff benefits.
Accordingly, I am granting defendants’ motion for
summary judgment and denying plaintiff’s motion for
summary judgment with respect to Unum’s denial of
plaintiff’s claim for long-term disability benefits.
Because plaintiff does not contest defendants’
contention that he does not have an independent basis for
asserting a claim against defendant Illinois Tool Works, I
also am dismissing plaintiff’s claims against his
the parties’ proposed findings of fact and the
administrative record (AR), I find the following facts to be
The Parties and the Policy
James Dahlka is a resident of Chippewa County, Wisconsin, and
was employed as a manufacturing general technician by
defendant Illinois Tool Works, Inc. at its plant in Chippewa
Falls, Wisconsin. Defendant Unum Life Insurance Company of
America is an insurance company authorized to conduct
business in Wisconsin.
March 7, 2011, plaintiff signed a copy of a job description
for the position of manufacturing general technician at
Illinois Tool Works. The brief description focused on the
particular tasks involved with monitoring molding machines
and equipment to maintain production demands and parts
quality and did not include any exertional requirements. AR
February 1, 1985, Unum issued a group long-term disability
insurance policy to Illinois Tool Works for the benefit of
its eligible employees. AR 76. The policy terminated on July
1, 2013. Under the policy, Unum had the “discretionary
authority” to determine an employee’s eligibility
and to construe the terms of the policy. Id. at 80.
The policy provides for an “elimination period,”
meaning that benefits do not begin until after a claimant has
been continuously disabled for a consecutive period of 180
days or the expiration of the short-term disability benefit
period. AR 78. If the claimant’s disability stops
during the 180-day elimination period for any period of 30
days or less, the disability is treated as continuous for
calculating the 180 days of continuous disability. However,
the days that a claimant is not disabled do not count toward
the satisfaction of the 180-day elimination period.
Id. at 82. Under the policy,
“disability” and “disabled” mean that
because of injury or sickness:
1. the insured cannot perform each of the material duties of
his regular occupation; and
2. after benefits have been paid for 24 months, the insured
cannot perform each of the material duties of any gainful
occupation for which he is reasonably fitted, taking into
consideration training, education or experience, as well as
prior earnings; or
3. the insured, while unable to perform all of the material
duties of his regular occupation on a full-time basis, is:
a. performing at least one of the material duties of his
regular occupation or another occupation on a part-time or
full-time basis; and
b. earning currently at least 20% less per month than his
indexed pre-disability earnings due to that same injury or
Plaintiff’s Surgery, Short-Term Disability and Work
2011, plaintiff reported having severe foot and ankle pain in
his right leg. On June 12, 2013, plaintiff’s
podiatrist, Dr. Mark Schumaker, restricted plaintiff from
work because of the pain. AR 573. On June 18, 2013, Dr.
Schumaker diagnosed calcaneal navicular coalition, ankle
instability, a torn anterior and posterior talofibul ligament
and a partial tear of the anterior tibial fibular ligament.
Id. at 522-23.
17, 2013, plaintiff filed a short-term disability claim with
Aetna Life Insurance Company and received benefits under that
plan until approximately May 22, 2014. Plaintiff’s
short-term disability benefits were supposed to terminate on
January 1, 2014, but because of a processing error by Aetna,
the benefits continued longer than they should have. AR 309.
24, 2013, Dr. Schumaker performed calcaneal and navicular
coalition resection surgery on plaintiff’s right foot
and ankle and restricted plaintiff from working until
September 16, 2013 so that he could recover from the surgery.
AR 283, 340, 526. On September 18, 2013, plaintiff attempted
to return to work without restrictions, but he worked for
only two shifts. Id. at 338. On September 24, 2013,
Dr. Schumaker limited plaintiff to a “sit down
job.” Id. at 342. Because plaintiff’s
employer could not accommodate that restriction, Dr.
Schumaker issued another work restriction on September 27,
2013, stating ...