129 F.3d 857 (6th Cir. 1997), 96-4263, Smith v. Ameritech

Docket Nº:96-4263.
Citation:129 F.3d 857
Party Name:Cas. 2126, Terry SMITH, Plaintiff-Appellant, v. AMERITECH; Ameritech Publishing, Inc.; Sickness and Accident Disability Benefit Plan; Long Term Disability Plan, Defendants-Appellees.
Case Date:November 20, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 857

129 F.3d 857 (6th Cir. 1997)

Cas. 2126,

Terry SMITH, Plaintiff-Appellant,


AMERITECH; Ameritech Publishing, Inc.; Sickness and

Accident Disability Benefit Plan; Long Term

Disability Plan, Defendants-Appellees.

No. 96-4263.

United States Court of Appeals, Sixth Circuit

November 20, 1997

Argued Oct. 31, 1997.

Page 858

[Copyrighted Material Omitted]

Page 859

Terry J. Lodge (argued and briefed), Toledo, OH, for Plaintiff-Appellant.

Rolf Scheidel, Shumaker, Loop & Kendrick, Toledo, OH, Jeffery M. Peterson (briefed), Thomas G. Kienbaum (argued and briefed), Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, MI, for Defendants-Appellees.

Before: LIVELY, KENNEDY, and NELSON, Circuit Judges.


KENNEDY, Circuit Judge.

Plaintiff, Terry Smith, appeals from the District Court's order granting summary judgment in favor of defendants, Ameritech, Ameritech Publishing, Inc. (now known as Ameritech Advertising Services), their Sickness and Accident Disability Benefit Plan ("SADB Plan"), and their Long Term Disability Plan ("LTD Plan") (hereinafter collectively referred to as defendants). Plaintiff alleged that defendants denied him disability benefits in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461; interfered with his right to future disability benefits in violation of ERISA § 510, 29 U.S.C. § 1140; denied him reasonable accommodations for his disability in violation of both the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12213, and OHIO REV.CODE ANN.

Page 860

§ 441202(A); and discharged him without just cause in violation of a collective bargaining agreement. The District Court granted summary judgment in favor of defendants on all of his claims. For the following reasons, we affirm.

I. Facts

In 1991, plaintiff began working for Ameritech Advertising Services as a "premises sales representative." In that capacity, plaintiff traveled through northwestern Ohio and southeastern Michigan selling advertising space in Ameritech's yellow pages directories. On April 16, 1992, while traveling from a personal errand to meet with a business client, plaintiff was injured in an automobile collision. Plaintiff suffered a herniated disc at the T7-T8 level of his spine, causing chronic back pain. Despite the pain, plaintiff continued working for eighteen months, until he took a disability leave of absence on October 19, 1993.

At that time, Ameritech and Ameritech Advertising Services offered two plans which provided benefits to employees who were prevented from working by illness or injury arising outside the scope of employment. The Sickness and Accident Disability Benefit Plan ("SADB Plan") provided qualified employees with short-term disability benefits for up to fifty-two weeks. After receiving SADB Plan benefits for fifty-two weeks, an employee who still is disabled from working becomes eligible for benefits under the Long Term Disability Plan ("LTD Plan"). It is undisputed that both plans qualified as "employee welfare benefit plans" under ERISA, 29 U.S.C. § 1002(1). The original SADB Plan designated the "Company" as the plan administrator. A subsequent modification to the SADB Plan vested the Ameritech Employees' Benefit Committee with

full discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. The Committee decides conclusively for all parties all questions arising in the administration of the Plan and any decision of this committee is not subject to further review.

In practice, Ameritech's Occupational Medicine Department made the initial decisions regarding claims for benefits under the SADB Plan, and the Employees' Benefit Committee convened to review the appeals of applicants who had been denied benefits.

Upon plaintiff's application, Ameritech initially approved SADB Plan benefits from a start date of October 26, 1993. The SADB Plan required plaintiff to submit medical disability forms from his physician to support his claim for benefits. Between October, 1993 and July, 1994, plaintiff submitted several letters and reports from physicians to Ameritech's Occupational Medicine Department. These reports were authored by three doctors: Dr. Zambrano, plaintiff's physician; Dr. Sullivan, an orthopaedist specializing in spinal surgery; and Dr. Spetka, another specialist who provided a second opinion on plaintiff's condition. In a letter dated October 6, 1993, Dr. Sullivan reported his initial diagnosis that plaintiff had "a disc herniation at this [T7-T8] level, although it is not striking." He recommended that plaintiff "modify his activity, take medication, and 'live with this problem,' " because surgical intervention "would be a somewhat formidable procedure" that is indicated "only for intractable pain." Sometime in November of 1993, Dr. Zambrano submitted a report to Ameritech that diagnosed plaintiff with a herniated disc and osteoarthritis and stated that the date he could be expected to return to work was "undetermined at this time."

The next report from Dr. Zambrano, dated December 3, 1993, reported that plaintiff could not work at that time because he "has pain on any exertion; lifting, bending, standing for a long l[ength] of time." It also reported that plaintiff could be expected to return to work on February 1, 1994. Dr. Sullivan's next letter, dated January 3, 1994, reiterated that a non-operative plan of "essentially 'living with' his disability and getting on with his life" was preferred over surgical intervention. Dr. Sullivan's report to Ameritech dated January 19, 1994 reported the same diagnosis and plan but postponed the return to work date to June 1, 1994. In February, Dr. Sullivan issued two more reports recommending the same non-surgical treatment plan and estimating the

Page 861

same return to work date of June 1, 1994. Dr. Sullivan submitted another report on March 3, 1994, that was based on plaintiff's February appointment and reached the same conclusions. Eight days later, Dr. Sullivan issued another report based on the same February physical examination. This report stated that plaintiff was "totally disabled" and could not be expected back to work until August 1, 1994.

Ameritech's Manager of Sickness Disability Administration, Dr. Anfield, wrote a letter dated March 23, 1994 to Dr. Sullivan concerning the medical basis for plaintiff's disability benefits. Dr. Anfield wrote that, while plaintiff's "conservative treatment plan of physical therapy" had not led to any improvement in his apparent condition, his reluctance to pursue surgical treatment suggested "that the employee does not find his discomfort so severe as to be intolerable or totally disabling." Dr. Anfield commented that this seemed to conflict with Dr. Sullivan's determination that plaintiff was "totally disabled." He concluded that he could not "continue to certify the employee's receipt of wage indemnity under the company's sickness disability benefits plan without particularized and detailed data describing the employee's symptoms, his impairment and how he is, in fact, totally disabled." Dr. Anfield's letter warned Dr. Sullivan that, without a response, plaintiff's short-term disability benefits would lapse in ten working days.

In response, Dr. Sullivan issued a brief letter to Dr. Anfield, dated March 24, 1994, stating that he had already provided his diagnoses of plaintiff's medical condition and that plaintiff "continues with the same restrictions." In a letter dated April 28, 1994, Dr. Spetka provided a second opinion concurring in Dr. Sullivan's diagnosis and non-surgical treatment plan.

Despite Dr. Anfield's warning that plaintiff's disability benefits would end in ten working days, plaintiff apparently continued to receive regular payments from Ameritech. On May 19, 1994, Ms. Jean Sell, from Ameritech's Occupational Medical Department, talked to plaintiff on the telephone. She subsequently sent plaintiff a letter, dated June 13, 1994, in which she reported that the Occupational Medical Department interpreted his medical evaluations as indicating that he had "reached a plateau" in his recovery and was "at the end of healing." The letter also informed plaintiff that "[b]ecause you have been released to return to work and have permanent restrictions that cannot be accommodated within your present position of outside salesperson, a Medical Priority Placement is being initiated to attempt to place you in another position within your department or elsewhere within the company." Sell told plaintiff that one of his supervisors at Ameritech Advertising Services would contact him and advise him of what he needed to do. Nevertheless, plaintiff continued to receive benefits payments.

Plaintiff subsequently submitted an additional letter from Dr. Sullivan, which was dated July 25, 1994 and written in response to a request for "specifics regarding [plaintiff's] limitations." It reported plaintiff's condition as follows:

The patient essentially is not fit for any bending, lifting, twisting carrying, stooping, or reaching type of activities. He can walk for only brief periods of time, by that I mean 15 to 20 minutes. Standing should be limited. Essentially that plaintiff is fit only for the most sedentary type of employment. I consider these restrictions to be permanent.

In his complaint, plaintiff conceded that "[d]uring the spring of 1994, Plaintiff was cleared to work with permanent physical restrictions." The parties agree that plaintiff was not qualified...

To continue reading