Messing v. Provident Life & Accident Ins. Co.

Decision Date09 September 2022
Docket Numbers. 21-2780/21-2790
Parties Mark M. MESSING, Plaintiff-Appellant/Cross-Appellee, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

48 F.4th 670

Mark M. MESSING, Plaintiff-Appellant/Cross-Appellee,
v.
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant.

Nos. 21-2780/21-2790

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2022
Decided and Filed: September 9, 2022


ARGUED: Gerald B. Zelenock, Jr., JAY ZELENOCK LAW FIRM PLC, Traverse City, Michigan, for Appellant/Cross-Appellee. D. Andrew Portinga, MILLER JOHNSON, Grand Rapids, Michigan, for Appellee/Cross-Appellant. ON BRIEF: Gerald B. Zelenock, Jr., JAY ZELENOCK LAW FIRM PLC, Traverse City, Michigan, George R. Thompson, THOMPSON O'NEIL PC, Traverse City, Michigan, for Appellant/Cross-Appellee. D. Andrew Portinga, Jacob Carlton, MILLER JOHNSON, Grand Rapids, Michigan, for Appellee/Cross-Appellant.

Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.

CLAY, Circuit Judge.

Plaintiff Mark Messing received long-term disability benefits from Defendant Provident Life & Accident Insurance Company ("Provident") from 2000 until 2018, at which time, Provident terminated Messing's benefits. Messing commenced this action seeking the reinstatement of his benefits. Provident counterclaimed that it was entitled to reimbursement for the benefits it had paid Messing over those eighteen years. The district court denied Messing's motion for judgment on the administrative record, which sought to reinstate his benefits, finding that Messing had failed to show by a preponderance of the evidence that he remained unable to work; but the court granted Messing's motion for summary judgment on Provident's counterclaim. For the reasons set forth below, we AFFIRM in part and REVERSE in part.

I. BACKGROUND

A. Factual Background

Mark Messing was an attorney in Traverse City, Michigan. In 1985, he applied for a long-term disability ("LTD") insurance policy (the "Plan") through Provident. During the application process, Messing indicated that his occupation was "attorney" and that the "exact duties" of his occupation were simply to "practice law." (LTD Policy Application, R. 1-1, PageID #28.) Provident approved Messing's application, and the Plan went into effect on August 1, 1985.

The Plan provided that if Messing suffers a "Total Disability due to ... Sickness" after 1988 but before he reached the age of 65, he would receive monthly payments of $3,080 "for life." (Id ., PageID ##15, 17, 34.) According to the Plan's definitions, "Total Disability" meant that the insured is "not able to perform the

48 F.4th 675

substantial and material duties of ... the occupation (or occupations, if more than one) in which [he is] regularly engaged at the time [he] become[s] disabled." (Id ., PageID #16.) Additionally, the Plan defined "Sickness" to include a "sickness or disease which is first manifested while [the] policy is in force." (Id .) The Plan also provided that "Benefits are payable while a period of Total Disability continues," and that the beneficiary "must present satisfactory proof of [his] loss." (Id ., PageID #17.) Messing consistently paid the Plan premiums.

Beginning in 1994, Messing began struggling with depression. At first, the depression was mild, and his doctor prescribed him anti-depressants. But by 1997, his condition deteriorated. Messing was admitted to the hospital for his depression on January 2, 1997, and not released from an outpatient treatment center until January 27, 1997. He returned to work on January 31, but never in a full-time capacity.

In March 1998, Messing filed a claim with Provident claiming he was totally incapable of working as an attorney. On his claim form, he indicated his job title as "attorney admitted to Michigan and federal bar, personal injury litigation." (Occupational Information, R. 38-9, PageID #1691.) He attached to his application an "Attorney Questionnaire." In the questionnaire, Messing indicated that at the time of submitting his claim, his job duties included: (1) traveling by car and air; (2) preparing for and appearing in court; (3) filing documents with a court or agency; (4) taking depositions; (5) interviewing clients in person; (6) legal research; (7) writing briefs; (8) completing and answering discovery requests; (9) writing letters or memos; (10) using the telephone; (11) investigating cases outside of my office; (12) closing files; (13) hiring secretarial help; (14) managing secretarial help; (15) reading advance sheets, professional journals, and articles; (16) discussing cases with other lawyers; and (17) attending professional continuing education programs or seminars.

Provident initially approved his claim; but after a few months of payouts, it changed course and initiated a dispute. Messing commenced a lawsuit in 1999, which was settled in 2000 with Provident agreeing to resume payments.

Every year Messing was asked in some form what duties of his former job he was able to perform. Every year he indicated in varying terminology that he was unable to perform substantially all of the duties he performed as a personal injury trial attorney and that he had no intention of ever returning to practice. In 2010, Provident began using an "Individual Disability Status Update" form. (See , e.g. , R. 38-2, PageID ##675–77.) The Individual Disability Status Updates continued to ask what duties of lawyering Messing was unable to perform, to which Messing continued to indicate "substantially all." (See, e.g., id .) Notably, the Individual Disability Status Updates contained a "Fraud Warning," which cautioned Messing against submitting "false, incomplete, or misleading information" regarding his claim. (See, e.g. , id ., PageID #677.) After the fraud warning, Messing signed a notice stating, "I also acknowledge that should my claim be overpaid for any reason it [is] my obligation to repay any such overpayment." (Id .) Messing signed identical acknowledgments from 2010 through 2017. (R. 38-2, PageID ##677, 758, 774, 794, 815, 835, 851, 874.)

In 2018, Provident transferred Messing's claim to Jennifer Crowley, a Senior Disability Specialist, for review. During her review, Crowley contacted Messing. She specifically asked him whether he had

48 F.4th 676

represented any individuals, and Messing stated he had not.

Crowley sought further proof, beyond Messing's own certifications, that he was actually unable to work as an attorney. Provident requested updated records from Messing's treating psychiatrist, Dr. Laura Franseen. Dr. Franseen submitted a report in July 2018 diagnosing Messing with "Major Depressive Disorder, recurrent, minimal to mild." (Franseen Report, R. 38-4, PageID #1177.) She noted that Messing had stopped using medications to treat his depression in 2012 "and ha[d] been stable for the most part since then." (Id .) She concluded her report noting that although Messing "must avoid highly stressful situations as best he can, ... [h]e is better able to tolerate ‘normal stress’ nowadays." (Id ., PageID #1178.) Dr. Franseen's report did not render an opinion as to whether Messing could return to work.

Provident had Dr. Alex Ursprung review Dr. Franseen's report. Dr. Ursprung believed based on Messing's medical record that Messing could return to work. He sent a follow-up letter to Dr. Franseen asking "[d]o you agree with my opinion that Mr. Messing is not psychiatrically precluded from returning to work?" (R. 38-11, PageID #2022.) When Dr. Franseen did not reply to the letter, Dr. Ursprung called. As in her report, she expressly refused to give her opinion as to whether Messing could return to work as an attorney.

To get an answer to this question, Provident then hired Dr. Craig Lemmen for the specific purpose of evaluating whether Messing could work. Dr. Lemmen conducted an interview with Messing for over two hours. After their meeting, Dr. Lemmen prepared a lengthy report. He noted that Messing "indicated that he was not depressed at this point in time and that he is trying not to have any anxiety." (Lemmen Report, R. 38-15, PageID #2492.) When Dr. Lemmen asked Messing how he was impaired at that time, Messing replied, "I'm not." (Id .) Dr. Lemmen agreed with Dr. Franseen's diagnosis of Major Depressive Disorder, but found that Messing "is not experiencing significant symptoms." (Id ., PageID #2493.) Therefore, in Dr. Lemmen's professional opinion, Messing's condition was "in remission." (Id .) At bottom, Dr. Lemmen concluded "[t]here is no objective evidence that [Messing] would not be able to practice as an attorney, should he desire to do so." (Id ., PageID #2494.)

Provident reviewed Dr. Franseen's report and Dr. Lemmen's report and determined that Messing was no longer unable to work as a personal injury trial attorney. Messing appealed the termination of his benefits to Provident's appeals division. In support of his appeal, Messing attached three affidavits from attorneys who all stated that, in their opinions, Messing was unable to return to work as an attorney. Messing also attached a report from a third psychiatrist, Dr. Paul Callaghan. Dr. Callaghan agreed with Dr. Franseen and Dr. Lemmen that Messing suffered from "Major Depression, recurrent." (Callaghan Report, R. 38-17, PageID #2852.) He noted that Messing's diagnosis was "in remission" because of his "diligence and mindfulness to avoid significant stressors." (Id .) However, Dr. Callaghan disagreed with Dr. Lemmen's findings "that there is ‘no objective evidence’ that Mr. Messing would not be able to return to practice as an attorney, as Mr. Messing has a clear history of exacerbation of major depression when exposed to stressors, particularly work stressors." (Id .) Finally, Messing attached to his appeal

48 F.4th 677

a vocational rehabilitation evaluation.1

Provident reviewed the evidence presented on appeal. It found Dr. Lemmen's ten-page report "thoughtful, comprehensive and consistent with accepted professional standards," and Dr. Callaghan's one-and-a-half-page report "quite terse." (R. 38-17, PageID ##2879–80.) Ultimately, Provident's appeals division affirmed the termination...

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