119 F.3d 433 (6th Cir. 1997), 96-5918, Rowan v. Unum Life Ins. Co. of America

Docket Nº:96-5918.
Citation:119 F.3d 433
Party Name:Marcy M. ROWAN, Plaintiff-Appellee, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
Case Date:July 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 433

119 F.3d 433 (6th Cir. 1997)

Marcy M. ROWAN, Plaintiff-Appellee,



No. 96-5918.

United States Court of Appeals, Sixth Circuit.

July 16, 1997

Argued April 21, 1997.

John D. Schwalb (argued and briefed), Brewer, Krause, Brooks & Mills, Nashville, TN, for Plaintiff-Appellee.

W. Kyle Carpenter (argued), Tony R. Dalton (briefed), Woolf, McClane, Bright, Allen & Carpenter, Knoxville, TN, for Defendant-Appellant.

Before: MERRITT, RYAN, and HILL, [*] Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which RYAN, J., joined. HILL, J. (p. 438), delivered a separate concurring opinion.


MERRITT, Circuit Judge.

The plaintiff in this ERISA action challenges the discontinuation of her long-term disability insurance benefits pursuant to 29 U.S.C. § 1132(a)(1)(B). The district court granted summary judgment for the plaintiff. We find, however, that there are disputed issues of material fact regarding whether or not the plaintiff meets the policy's definition of disability and whether she was under the regular attendance of a physician, as required to receive benefits under the group

Page 434

insurance policy. Therefore, we REVERSE and REMAND for further proceedings.


Plaintiff Marcy Rowan was injured in an automobile accident in July 1991. Prior to and for a few months after the accident, the plaintiff was an executive vice president for FISI-Madison International. The plaintiff's work consisted primarily of traveling and conducting seminars throughout the United States. She stopped working in October 1991 due to severe back and leg pain. In February 1992 she was diagnosed with lumbar disc herniation and underwent back surgery. She submitted a disability insurance claim to the defendant, from whom her employer had purchased a group long-term disability insurance policy. The defendant approved the claim and paid long-term disability benefits until April 1995. The defendant terminated benefits at that point, based on its conclusions that the plaintiff was no longer disabled and that she was not under the regular attendance of a physician because she had not been treated by a physician in over eleven months.

The benefits section of the disability insurance policy provides:

When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit.... The benefit will be paid for the period of disability if the insured gives to the Company proof of continued:

  1. disability; and

  2. regular attendance of a physician.

The proof must be given upon request and at the insured's expense.

A later subsection of the benefits section titled "TERMINATION OF DISABILITY BENEFITS" provides:

Disability benefits will cease on the earliest of:

1. the date the insured is no longer disabled;

2. the date the insured dies;

3. the end of the maximum benefit period;

4. the date the insured's current earnings exceed 80% of his indexed pre-disability earnings.

The policy defines "disabled" as follows:

"Disability" and "disabled" mean that because of injury or sickness:

1. the insured cannot perform each of the material duties of his regular occupation; or

2. the insured, while unable to perform all of the material duties of his regular occupation on a full-time basis, is:

  1. performing at least one of the material duties of his regular occupation or another occupation on a part-time or full-time basis; and

  2. earning currently at least 20% less per month than his indexed pre-disability earnings due to that same injury or sickness.

According to a job analysis form that the plaintiff's former employer completed, the plaintiff's job required five hours per week preparing speeches, seventeen and one half hours of on-site preparation, ten hours of travel, seven and one half hours coordinating efforts with other company representatives, and ten hours speaking at conferences, training meetings and conventions. According to the employer, in an eight-hour work day, the plaintiff's job required her to sit two to five hours, stand two to six hours continuously, walk two to three hours with breaks, and lift and carry luggage and materials two to three hours with breaks. The employer reported that in an eight-hour workday, the plaintiff would lift or carry up to twenty pounds up to thirty-three per cent of the time, but would not lift or carry more than twenty pounds. The plaintiff, however, has submitted an affidavit stating that her job required her to travel for periods of a week at a time...

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