United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE
Christopher Wilcox brought this action for judicial review of
the denial of his claim for long-term disability (LTD)
benefits by Defendant Aetna Life Insurance Company under
section 502(a)(1)(B) of the Employee Retirement Income
Security Act (ERISA). Wilcox asserts that Aetna's
decision was arbitrary and capricious while Aetna contends
that it made its decision after a full and fair review. The
court has jurisdiction over this case under 29 U.S.C. §
1132. Currently before the court are cross motions for
summary judgment and Wilcox's unopposed motion for leave
to file documents with restricted electronic access. For the
reasons that follow, Aetna's motion for summary judgment
will be granted, Wilcox's motion for summary judgment
will be denied, and the case will be dismissed.
in 2004, Wilcox was employed full time as a life and property
insurance sales person for McCormick, Klessig & Assoc.,
Ltd. primarily selling life and commercial property
insurance. Aetna issued an ERISA-governed employee welfare
plan (the Plan) to Wisconsin Manufacturers & Commerce,
Inc. Wilcox's employer was a participating employer under
the policy as well as the Plan Administrator, though Aetna
administered claims under the Plan.
Plan provides, in relevant part, the following:
Test of Disability
From the date that you first become disabled until the end of
the Own Occupation Period, you will be deemed to be disabled
on any day if:
• You are not able to perform the material
duties of your own occupation
solely because of: disease or injury; and
• Your work earnings are 80% or less of your
adjusted predisability earnings.
After the Own Occupation Period, you will be deemed to be
disabled on any day if you are not able to work at any
reasonable occupation solely because of:
• Disease; or
If your own occupation requires a
professional or occupational license or certification of any
kind, you will not be deemed to be disabled solely because of
the loss of that license or certification.
Record (AR) 2242, Dkt. No. 17-7 at 148. The “own
occupation period” is defined in the Plan as
“[t]he first 24 months that a Monthly Benefit is
payable during a period of disability.” AR 2233, Dkt.
No. 17-7 at 139. The Plan defines a “reasonable
occupation” as “any gainful activity for which
you are; or may reasonably become; fitted by: education;
training; or experience; and which results in; or can be
expected to result in; an income of more than 80% of your
earnings.” AR 2259, Dkt. No. 17-7 at 165.
September 9, 2014, Wilcox initiated a claim for LTD benefits
under the Plan. Aetna solicited further information from
Wilcox in September. Aetna also faxed an Attending
Physician's Statement (APS) form to Dr. Mazin Ellias,
Wilcox's pain specialist, and was informed that Dr.
Ellias was out of the office and unable to complete the APS.
In October, Aetna received an APS from Dr. Mark
Szmanda-Wilcox's neurologist-dated October 31, 2014,
wherein he identified spinal degeneration and post-concussion
syndrome as Wilcox's medical conditions. Regarding
Wilcox's abilities and limitations, Dr. Szmanda wrote
“defer” and did not fill out any of the fields in
that section. Over the course of the next three months, Aetna
spoke with Wilcox over the phone and requested information
from Wilcox's employer.
March 24, 2015, after its medical consultants reviewed the
records submitted by Wilcox, Aetna advised Wilcox in writing
that it denied his claim, finding that Wilcox was not
disabled from performing both his own occupation as well as a
reasonable occupation. Aetna stated:
In view of the above, we have determined that the medical
information on file fails to support a functional impairment
from your own occupation. Despite numerous diagnoses which
have changed over time, we do not have a provider willing to
speak to impairment. While Dr. Szmanda completed a portion of
the Attending Physician Statement it is unclear if he is
disabling you from work activity. A note from Dr. John Myers
an internal medicine provider indicates that he is not
willing to complete disability paperwork. At this time, we
are unable to accept liability on your Long Term Disability
application and it has been denied.
AR 1875, Dkt. No. 17-6 at 169.
appealed Aetna's decision on September 22, 2015, arguing
that he was disabled from performing his own occupation and
any reasonable occupation as defined by the Plan. Wilcox
requested multiple extensions to submit information related
to his appeal and to obtain legal counsel, which Aetna
granted. Among the additional information submitted was a
second APS from Dr. Szmanda dated April 23, 2015, an APS from
Dr. Kneeland dated August 17, 2015, and a letter and APS from
Dr. Ellias dated December 30, 2016.
Szmanda identified low back pain, fibromyalgia, and lumbar
stenosis as conditions that impaired Wilcox, and indicated
that Wilcox was capable of performing light work with the
following limitations: no driving due to pain medication, no
sitting in a chair for more than two hours due to leg and
back pain as well as weakness, and no standing for more than
one hour. AR 467-68, Dkt. No. 17-2 at 207-08. Dr. Szmanda
limited Wilcox to working two hours a day, five days a week
and listed pain and medication as objective findings that
substantiate impairment. Id.
Kneeland identified the same limiting conditions as Dr.
Szmanda and also indicated Wilcox would be capable of
performing light work, but did not check any boxes indicating
the number of hours and days Wilcox could work. AR 471-72,
Dkt. No. 17-2 at 211-12. Dr. Kneeland listed generalized
fatigue, muscle pain, and medication side effects as
objective findings that substantiate impairment. Id.
Dr. Kneeland did not check any boxes related to the number of
hours and days Wilcox could work, and instead deferred to Dr.
Szmanda's recommended limitations. Id.
Ellias identified cervical/lumbar spine degenerative joint
disease and musculoskeletal knee/shoulder and side effects
from medication-slow reaction time as well as mental and
psychological effects-as conditions that impaired Wilcox. AR
484, Dkt. No. 17-2 at 224. Dr. Ellias indicated Wilcox had no
ability to work. AR 485, Dkt. No. 17-2 at 225. In his letter,
Dr. Ellias stated Wilcox's restrictions are both
physical, restricting him “to sedentary type of work,
” and cognitive side effects of his medications that
“further impair his judgment/reaction time.” AR
479, Dkt. No. 17-2 at 219. Dr. Ellias opined that these
limitations, combined with the personality dysfunction
identified by Dr. Azizi, “make it impossible” for
Wilcox to return to gainful employment. Id. In
addition to these APS forms, Wilcox submitted medical records
from multiple providers dating back to 2009.
obtained an independent medical review from Dr. Chalonda
Hill, who was hired by a third-party vendor. Dr. Hill is
board certified in occupational medicine and holds a diploma
from the American Board of Internal Medicine and the American
Board of Preventative Medicine. Dr. Hill submitted a report,
dated February 1, 2017, based on her review of Wilcox's
medical records that spanned from June 14, 2014, to December
30, 2016. As part of the report, Dr. Hill also spoke with Dr.
Ellias, who informed her that Wilcox (1) suffers from
cervical and lumbar pain due to degenerative disc disease;
(2) has been treated with radiofrequency ablation and opioid
medications; (3) has limited range of motion of the cervical
and lumbar spine due to his conditions; and (4) suffers from
seizure disorder. AR 447, Dkt. No. 17-2 at 187. Dr. Hill
noted Dr. Ellias' opinion in her report:
It is Dr. Ellias' opinion that due to cervical and lumbar
degenerative disc disease, decreased range of motion combined
with seizure disorder, he is unsure if he is able to function
in any job. He also notes a psychological aspect involving
stress may play a role in limiting his abilities.
on her review of the records, Dr. Hill opined that Wilcox was
functionally limited from June 10, 2014, to the present due
to cervical degenerative disc disease, lumbar degenerative
disc disease, seizure disorder, bilateral knee degenerative
joint disease, left avulsion distal fracture of distal
fibula, failed back syndrome, and long-term opioid use.
Id. Dr. Hill stated that Wilcox was capable of
full-time work with the following restrictions:
Able to sit up to 1 hour at a time for a total of 8 hours per
day. Allow for 5 minute breaks after sitting one hour for
Able to walk up to 20 minutes at a time for a total of 2
hours per day.
Able to stand up to 30 minutes at a time for a total of 2