815 F.3d 1134 (8th Cir. 2016), 15-1524, Whitley v. Standard Insurance Co.

Docket Nº:15-1524
Citation:815 F.3d 1134
Opinion Judge:LOKEN, Circuit Judge.
Party Name:Gwendolyn Whitley, Plaintiff - Appellee v. Standard Insurance Company, Defendant - Appellant
Attorney:For Gwendolyn Whitley, Plaintiff - Appellee: Sean Thomas Foss, KENNELLY & O'KEEFFE, Fargo, ND. For Standard Insurance Company, Defendant - Appellant: Molly R. Hamilton Cawley, Terrance J. Wagener, MESSERLI & KRAMER, Minneapolis, MN.
Judge Panel:Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
Case Date:March 04, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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815 F.3d 1134 (8th Cir. 2016)

Gwendolyn Whitley, Plaintiff - Appellee


Standard Insurance Company, Defendant - Appellant

No. 15-1524

United States Court of Appeals, Eighth Circuit

March 4, 2016

Submitted October 21, 2015

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Gwendolyn Whitley, Plaintiff - Appellee: Sean Thomas Foss, KENNELLY & O'KEEFFE, Fargo, ND.

For Standard Insurance Company, Defendant - Appellant: Molly R. Hamilton Cawley, Terrance J. Wagener, MESSERLI & KRAMER, Minneapolis, MN.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.


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LOKEN, Circuit Judge.

In February 2011, Dr. Gwendolyn Whitley was involved in a roll-over car accident, suffering a serious head injury. Board certified in family medicine, Dr. Whitley had worked as an emergency room physician at Lake Region Hospital (" Lake Region" ) in Fergus Falls, Minnesota, in the twenty-four months preceding the accident. She returned to work full-time from

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March 16 through March 24, but fatigue and short-term memory issues forced her to stop. On June 28, she filed a claim for long-term disability (" LTD" ) benefits under Lake Region's Group Long Term Disability Insurance Policy issued by Standard Insurance Company (" Standard" ). Standard, serving as administrator of the Policy, approved Whitley's claim and paid LTD benefits beginning May 22, 2011.

In August 2012, Standard determined that Whitley was no longer disabled, discontinued benefits effective July 31, 2012, and rejected Whitley's internal appeal of that decision. She then commenced this action in state court, asserting various claims against Standard and Lake Region. After Standard removed the case to federal court, Whitley filed an amended complaint asserting, as relevant here, a claim under ERISA that Standard's denial of continuing disability benefits was contrary to the terms of its Policy. See 29 U.S.C. § 1132(a)(1)(B). The district court granted summary judgment for Whitley, concluding that Standard abused its discretion in discontinuing LTD benefits. Standard appeals. Reviewing the grant of summary judgment de novo and Standard's decision for abuse of discretion, we reverse. See Manning v. Am. Republic Ins. Co., 604 F.3d 1030, 1038 (8th Cir.), cert. denied, 562 U.S. 1062, 131 S.Ct. 648, 178 L.Ed.2d 480 (2010) (standard of review).

I. Background.

For physician members of the insured group, such as the 57-year-old Whitley, the Policy provided " Own Occupation" disability benefits up to retirement age, if the disability persisted:

[Y]ou are required to be Disabled only from your Own Occupation.

You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder: 1. You are unable to perform with reasonable continuity the Material Duties of your Own Occupation; and 2. You suffer a loss of at least 20% in your Indexed Predisability Earnings when working in your Own Occupation. * * * * Material Duties means the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted.

Whitley's June 2011 claim stated that she was unable to perform her Own Occupation due to post-concussive syndrome, C5 disc rupture, back pain, headaches, and memory problems. She submitted an Attending Physician Statement from her primary care physician, Dr. Patricia Lindholm, who diagnosed Whitley with " post-concussive syndrome." Dr. Lindholm noted Whitley's failed attempt to return to work, and recommended that she not return to work until cleared by treating neuropsychologist Dr. Paula Bergloff. In an April 7 neuropsychological evaluation, Dr. Bergloff concluded that Whitley suffered from " [m]ild traumatic brain injury with persistent postconcussion symptoms." Dr. James Andrews examined Whitley on April 26 and concluded that Whitley should not be working because her postconcussive syndrome was " significantly affecting her memory."

In August 2011, Whitley submitted Attending Physician Statements from Dr. Bergloff and Dr. Tanya Harlow. Dr. Bergloff recommended that Whitley not be working and opined that she would need a " reduction in work hours" when able to return to work. Dr. Harlow diagnosed Whitley as suffering from postconcussive syndrome and noted she was " gradually

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improving" but unable to work because of " cognitive difficulties." Dr. Harlow opined that Whitley was likely to improve in three to six months and might be ready for a trial return to work within two months. In September, Dr. Andrews took MRIs of Whitley's spine, found no significant problems, and noted " excellent gains from a postconcussive standpoint."

Psychologist Dr. Elaine Greif, an independent consultant, reviewed the claim at Standard's request and agreed that Whitley was disabled due to her " mild traumatic brain injury with persistent postconcussive symptoms and a history of multiple concussions." Dr. Greif predicted that Whitley would be able to return to work within three to six months and recommended that work restrictions be lifted based on future neuropsychological re-evaluations. On September 27, Standard approved Whitley's claim effective May 22 (the end of the Policy's ninety-day waiting period). The letter advised that Standard would require Attending Physician Statements " to monitor and document your continued eligibility for LTD Benefits," and asked Whitley to notify Standard " of any change in your medical or employment status."

On August 30, 2011, Whitley told Dr. Harlow that " she is ready to go back to work in the next month." In January 2012, Whitley told Dr. Lindholm she was " doing well" and was " currently asymptomatic." That month, Dr. Bergloff concluded Whitley was doing " fairly well" and recommended a part-time return to work. In a February 2012 letter to Lake Region, Whitley stated that she was ready to return to " perform the full scope of emergency medicine duties." She reported that her " medical team has approved my return to work in the Emergency Department" and requested that she be allowed to return " for two 4 hour shifts a week with double coverage for the first weeks." Lake Region responded that it could not accommodate that request but was open to alternative work possibilities.

After a March neuropsychological re-evaluation, Dr. Bergloff found that Whitley was " performing within the high average range for overall intellectual abilities . . . [with] no cognitive impairments in any area." Dr. Bergloff recommended return to work on a part-time basis with hours gradually increasing. In April, Whitley told Dr. Lindholm she felt " back to normal," did not have headaches or attention span problems, had completed eighty hours of Continuing Medical Education (CME), and was " very eager to get back to work and have some purpose in her life." In June 2012, Whitley provided Standard an Attending Physician Statement in which Dr. Lindholm noted Whitley's improved condition, stated no further treatment was planned, and recommended " a transitional return to work starting with [a] 4 hours/day limitation." Dr. Lindholm wrote to Lake Region that Whitley had " no physical limitations or restrictions in regard to work."

In July 2012, Standard asked Dr. Bradley Fancher, an independent consultant, to review Whitley's medical records. Evaluating Whitley's ability to return to work as a family practice physician, her board certified specialty, Dr. Fancher determined she could return to work, concluding that a gradual return to work was not " an imperative requirement." Standard advised Whitley it was discontinuing benefits effective July 31. In the lengthy August 5 letter, Standard explained that Lake Region " was not able to provide record of your professional service codes" documenting that sixty percent of Whitley's income was earned in an emergency medicine sub-specialty, and therefore her Own Occupation as defined in the Policy was " as broad as the scope of your [family] medicine

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license." The letter reviewed the medical records and opinions in some detail and concluded, " the records do not support that you have residual physical or cognitive limitations and restrictions that would preclude you from working with reasonable continuity in your Own Occupation at this time."

On August 23, Whitley appealed Standard's decision. She wrote: " I am improved; I am happy to be better. I do want to return to full-time work as an emergency medicine physician. I am not ready to return to work full-time yet." In support, Whitley submitted letters from Drs. Lindholm and Bergloff and speech-language pathologist Nan Kennelly opining that Whitley should not initially return to work full-time. Kennelly noted that Whitley could have " difficulty executing with [the] distraction, time pressure, interruptions and multi-tasking" of an emergency room. Dr. Bergloff reported that sustained activity increased Whitley's " pain symptoms." Dr. Lindholm suggested a trial return to work, but noted that Whitley " has no physical limitations" and " [h]er cognitive abilities are back to baseline."

In considering Whitley's appeal, Standard consulted Dr. Thomas Morgan, a neurologist. He reviewed all of Whitley's records and found that she " does not have any restrictions or limitations with respect to her work as a family practice physician in an emergency room setting . . . based on the nature of her mild concussion post-concussion syndrome and the normalization of her neuropsychological testing." Mark Williams, Ph.D., conducted an independent neuropsychological review of the claim at Standard's request. In preparing an extensive report, Dr. Williams considered Whitley's medical records, spoke to Dr. Bergloff, and reviewed " actual raw test data" from...

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