Holzmeyer v. Walgreen Income Prot. Plan for Pharmacists & Registered Nurses

• Citation: 44 F.Supp.3d 821
• Decision Date: 04 September 2014
• Docket Number: No. 1:12–cv–01737–SEB–DML.,1:12–cv–01737–SEB–DML.
• Parties: Michael HOLZMEYER, Plaintiff, v. WALGREEN INCOME PROTECTION PLAN FOR PHARMACISTS AND REGISTERED NURSES, Defendant.
• Court: U.S. District Court — Southern District of Indiana

44 F.Supp.3d 821

Michael HOLZMEYER, Plaintiff

v.WALGREEN INCOME PROTECTION PLAN FOR PHARMACISTS AND REGISTERED NURSES, Defendant.

No. 1:12–cv–01737–SEB–DML.

United States District Court, S.D. Indiana, Indianapolis Division.

Signed Sept. 4, 2014.

Bridget L. O'Ryan, Indianapolis, IN, for Plaintiff.

Eric P. Mathisen, Mark E. Schmidtke, Ogletree Deakins Nash Smoak & Stewart, P.C., Valparaiso, IN, Kimberly A. Jones, Ogletree Deakins Nash Smoak & Stewart, P.C., Chicago, IL, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, District Judge.

This cause is before the Court on the parties' cross motions for summary judgment on Plaintiff's suit under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for judicial review of the denial of long-term disability benefits. For the reasons set forth below, Plaintiff's motion for summary judgment [Docket No. 27] is GRANTED, and Defendant Walgreen Income Protection Plan's motion for summary judgment [Docket No. 29] is DENIED.

Factual Background

A. Holzmeyer's treatment history

Plaintiff Michael Holzmeyer is a resident of Indiana and a former employee of Walgreen, Inc. (“Walgreens”). Am. Comp. ¶ 2. Holzmeyer is a doctor of pharmacy and a licensed pharmacist, who from 2003 to 2009 worked for Walgreens as a “retail pharmacy manager.” R. 369.¹ In September 2009, Holzmeyer began working for Walgreens as a “home pharmacist,” a position in which he reviewed the filling of orders and prescriptions by the company's retail pharmacists from his home via computer. Docket No. 28 at 2. Holzmeyer was enrolled in the Walgreen Income Protection Plan for Pharmacists and Registered Nurses (“Plan”), a self-funded employee benefits plan under ERISA, whose claim administrator is Sedgwick Claims Management Services, Inc. (“Sedgwick”). Pl.'s Ex. 2 at 22.²

The Plan provides both short-term and long-term disability benefits for its enrollees, and it defines long-term “disability” as follows:

For the long-term disability period, “disabled” or “disability” means that, due to sickness, pregnancy, or accidental injury, you are prevented from performing one or more of the essential duties of your own occupation and are receiving appropriate care and treatment from a doctor on a continuing basis; and

For the first 18 months of long-term disability, you are unable to earn more than 80% of your pre-disability earnings or indexed pre-disability earnings at your own occupation for any employer in your local economy;

Following that 18 month period, you are unable to earn more than 60% of your indexed pre-disability earnings from any employer in your local economy at any gainful occupation for which you are reasonably qualified, taking into account your training education, experience and pre-disability earnings.

Pl.'s Ex. 2 at 8. The Plan further defines an enrollee's “own occupation” as “the activity that you regularly perform and that serves as your source of income. It is not limited to the specific position you hold or held with Walgreens. It may be a similar activity that could be performed with Walgreens or any other employer.” Id. at 9.

Holzmeyer has a lengthy history of back problems, stemming originally from an automobile accident in December 1986 in which he fractured his spine and underwent fusion surgery.³ Docket No. 28 at 8 (citing R. 147, 149). In 2009, while living in Florida, he began to experience serious back pain and sought treatment at Tampa Bay Orthopaedic specialists. In a July 9, 2009 visit with Dr. Howard Sharf, Holzmeyer reported back pain, deep vein thrombosis in his left leg, and foot pain; Dr. Sharf noted that Holzmeyer had an abnormal gait and displayed tenderness in his spinal area. He conducted imaging which showed “significant degenerative changes of the lumbar spine including the sacroiliac joints” and the appearance of “disengagement of one of his most superior hooks.” R. 520–521.⁴ Dr. Sharf later examined Holzmeyer in a follow-up appointment and scheduled CT scans of his spine. R. 522. Several months later, on February 17, 2010, Holzmeyer saw Dr. Gary Holland in an effort to deal with continuing back pain. He reported that the back “bracket” set up by his previous surgery seemed to be “breaking,” and he complained of increased pain and diminished mobility. Dr. Holland noted that Holzmeyer's range of motion was “significantly limited by pain.” R. 553.

Holzmeyer underwent a CT scan of his cervical spine, thoracic spine, and lumbar spine on April 7, 2010. The scan revealed multilevel disc bulging with some “unremarkable” degenerative changes in the cervical spine; it also showed deterioration in the condition of the Harrington rods that had been implanted during his first back surgery. R. 105. On April 23, 2010, Holzmeyer consulted with Dr. Glenn Fuoco at Tampa Bay Orthopaedic Specialists, to whom he had been referred by Dr. Sharf. Holzmeyer reported to Dr. Fuoco that he had pain “across the lower back, right greater than left, [with] some symptoms shooting pains and numbness into the right leg.” R. 96. He also told the specialist that his 2009 shift to a primarily sedentary position as a “home pharmacist” had exacerbated his pain issues; Dr. Fuoco noted that “since September [2009] he has been doing sitting work and this has caused a lot of the lower pack pains. He has to sit with his left leg elevated [due to a clotting issue] which is aggravating his back pain.” Id. He further noted that Holzmeyer rated his lumbar spinal pain at “7 to 8/10” and assessed his standing tolerance as 5 to 10 minutes only. Id. Dr. Fuoco later administered a bilateral sacroiliac joint injection in an effort to ameliorate Holzmeyer's pain. R. 108, 120–121. At a follow-up appointment with Dr. Fuoco two weeks after the injection, Holzmeyer reported that his symptoms had temporarily eased, but had returned only days after the injection. Dr. Fuoco then recommended a different pain-relief injection-a caudal epidural. R. 123, 532, 543–544. Holzmeyer later reported that this injection, too, produced only temporary relief and had no longer-term effect on his chronic pain. R. 129.

On July 1, 2010, Holzmeyer visited the Laser Spine Institute, where he reported an average pain level of “9/10” when active and “6 to 7/10” when resting; examination revealed tenderness at several of his vertebrae and a limited range of motion. R. 160–161.⁵ After another examination on July 7, he was scheduled for a second back surgery. Two doctors at the Institute performed the surgery on July 20–an operation which consisted, in their words, of three procedures: destruction by thermal ablation of the paravertebral facet joint nerves, lumbar laminectomy and foraminotomy, and an additional caudal epidural steroid injection. R. 166.⁶ After initially reporting some improvement, Holzmeyer contacted the Institute in August 2010 to tell them that his lower back pain had returned; the Institute's treatment note indicates that “[Holzmeyer] feels he is deteriorating due to returning pain in his right hip and [lower extremity].” R. 170. On September 1, 2010, a physician with the Institute administered another caudal epidural steroid injection. R. 483–484. Mr. Holzmeyer underwent an MRI on September 27, 2010. The presence of metal distorted some of the readings, but the imaging report noted abnormalities on the “L4–5 level” indicating “degenerative disc disease ”; it further stated that “nerve root compression cannot be excluded on a degenerative basis.” R. 549.

After Holzmeyer moved to Indiana, he became a patient of Dr. Ross Whitacre, an orthopedic specialist at Tri–State Orthopaedics; his first appointment occurred on October 18, 2010. R. 192–194. At this initial appointment, Dr. Whitacre noted that Holzmeyer had “significant lumbar spondylosis with stenosis at L4–5” that had been “incompletely resolved” by his July 2010 surgery, “symptomatic spondylosis of the lower lumbar levels,” neck pain with “fluctuant soft tissue mass over the cervicothoracic junction,” and headaches “that appear to be tension related.” R. 193. Tri–State ordered a CT scan the same day; the scan analysis notes that while there is no “acute fracture or dislocation” of the spine as a whole, the L4–L5 vertebrae showed “broad-based disc osteophyte complex which appears to be causing moderate to severe central spinal canal stenosis.” R. 194. When initial efforts at pain management, including “back blocks,” did not produce satisfactory results, Dr. Whitacre referred Holzmeyer to Dr. John Grimm, an orthopedic surgeon affiliated with Tri–State. After an examination, Dr. Grimm summarized Holzmeyer's reported symptoms as follows:

He points to the worst of his complaints in his low back at the lumbosacral junction. The pain also does radiate bilaterally into the lateral aspects of his hips and down the lateral aspects of his thighs into his calves. He states that the left leg is much worse than the right. He has no bowel or bladder dysfunction or gait disturbance. Walking is the worse of his complaints, which he only can do for less than a block. Standing also greatly increases the pain and he cannot tolerate standing for more than 10 minutes. He states that sitting is tolerated for about 30 minutes. He feels as though his condition is slowly getting worse over time.

R. 256. Dr. Grimm's spinal examination revealed “tenderness throughout the entire thoracic and lumbar spine,” although he stated that “motor, reflex, [and] sensory testing in the upper extremities reveals no deficit.” R. 257. Grimm judged Holzmeyer's latest CT scan to show “moderate collapse” of the L4–5 disc, and some deterioration of the “hook” portion of the hardware installed by the 1987 fusion surgery. Id. Dr. Grimm assessed Holzmeyer with an “Oswestry Disability Index” score of 70%.⁷ Id.

On December 22, 2010, Holzmeyer underwent another CT scan of his spine, which showed a “right laminectomy defect” with “moderate to severe central spinal canal stenosis” at vertebrae L4–L5, “mild...