The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
REBECCA MASEVICE, ) CASE NO. 1:22CV223
)
Plaintiff, ) SENIOR JUDGE
) CHRISTOPHER A. BOYKO
vs. )
) OPINION AND ORDER
LIFE INSURANCE COMPANY )
OF NORTH AMERICA, )
Defendant. )
CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court upon the Motion (ECF DKT #16) of Plaintiff
Rebecca Masevice for Judgment on the Administrative Record and the Motion (ECF DKT
#17) of Defendant Life Insurance Company of North America (“LINA”) for Judgment on the
Administrative Record. For the following reasons, both Motions are denied and the case is
remanded to the LINA Plan Administrator for additional fact-finding.
I. BACKGROUND SUMMARY
On February 8, 2022, Plaintiff filed a Complaint pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132 et seq., claiming that Defendant
wrongfully terminated her long-term disability benefits (“LTD”).
On March 15, 2015, Plaintiff was hired as a marketing manager for Accenture, LLP.
Plaintiff was a covered participant as a sponsored employee through the LTD Policy
administered and underwritten by Defendant. Plaintiff had a history of migraine headaches
which intensified in 2017. She began to suffer cluster headaches in 2017 also. Plaintiff was
diagnosed with postural orthostatic tachycardia syndrome (POTS), dizziness, fatigue,
shortness of breath and brain fog. Plaintiff last worked on January 31, 2018. Long-term
disability payments were approved by Defendant on October 3, 2018, with benefits
commencing effective July 31, 2018. Defendant’s Policy required continued proof of the
employee’s disability in order for benefits to continue.
On February 19, 2020, Defendant informed Plaintiff that it was beginning an
evaluation of whether she would continue to qualify as disabled under the new definition of
disability effective on July 31, 2020.
After Disability Benefits have been payable for 24 months, the Employee is
considered Disabled if, solely due to Injury or Sickness, he or she is:
1. unable to perform the material duties of any occupation for which he
or she is, or may reasonably become, qualified based on education,
training or experience; and
2. unable to earn 80% or more of his or her Indexed Earnings.
The Insurance Company will require proof of earnings and continued Disability.
Defendant advised Plaintiff that an Independent Medical Examination (IME) would be
necessary to establish continuing disability. An IME was first scheduled for June 2, 2020.
Plaintiff requested the examination be conducted by “telemed;” but Defendant confirmed that
method was not available. Defendant pushed back the date to allow review of recently-
received medical records. The IME was rescheduled for June 29, 2020. Since Plaintiff’s
current functionality was not clear to Defendant through her records, the IME remained
-2-
necessary; however, neither “telemed” nor “virtual” was an option. The IME was rescheduled
again at Plaintiff’s counsel’s request; but Plaintiff was reminded of Defendant’s right to
examine her and of the risk to Plaintiff of termination of benefits for failure to cooperate. The
IME was re-set for July 29, 2020. Plaintiff’s counsel requested once again that it be
conducted virtually. Defendant determined that an in-person examination was necessary since
Plaintiff’s own treating providers had not seen her in person since September of 2019.
Unfortunately, Plaintiff reported that she had COVID-19 symptoms of a sore throat, dry cough
and shortness of breath. Defendant cancelled the July 29, 2020 appointment.
Without completion of the IME due to Plaintiff’s refusal to attend and after completing
the review of her claim, Defendant informed Plaintiff that it was unable to continue paying
LTD benefits beyond July 31, 2020. (See Defendant’s letters of August 13, 2020 and October
28, 2020; ECF DKT #14-6 at 195, et seq. and #14-6 at 223).
Plaintiff acknowledges that Defendant scheduled yet another IME in October of 2020.
However, since her benefits had already been terminated, her claim was already closed and
Defendant gave no assurances that benefits would be reinstated in the interim, Plaintiff did not
appear. (Plaintiff’s Opposition, ECF DKT #20 at 5).
Pursuing an internal appeal, Plaintiff noted the “extraordinary circumstances of the
COVID-19 pandemic” and disputed that she failed to cooperate with respect to scheduling an
IME. Plaintiff’s concerns about attending the IME in person were valid, given her symptoms
and her compromised immune system. In her written appeal, Plaintiff offered updated records
from the Cleveland Clinic; updated letters/reports from her treating physician, Dr. Alla
Kirsch; the June 10, 2019 Functional Capacity Examination (FCE) performed by Michael
-3-
Millicia, a physical therapist; a list of medications; and a vocational report from Ms. Kate
Reis.
According to the June 10, 2019 FCE, Plaintiff was found to be unable to work full
time. She needed to alternate sitting and standing. She was unable to walk occasionally,
stand for an hour and forty-five minutes, or sit for five hours. She had only occasional
tolerance for firm grasping, gross coordination and repetitive kneeling and required frequent
rest breaks. (ECF DKT #14-6 at 1063).
Dr. Kirsch provided three reports: On May 12, 2020, Dr. Kirsch deferred to neurology
and cardiology specialists for any of Plaintiff’s restrictions or limitations. Dr. Kirsch
indicated that she had not seen Plaintiff in person since September of 2019. (ECF DKT #14-6
1068). After a virtual visit on May 20, 2020, Dr. Kirsch noted severe restrictions as to
standing and walking. (ECF DKT #14-6 at 1078-1080). In a further update, Dr. Kirsch
added that “[Plaintiff] is totally disabled physically & cognitively due to only intermittent very
short-lived bursts of improved function.” (ECF DKT #14-6 at 1086-1090).
Plaintiff consulted Kate Reis, a vocational expert. According to Plaintiff’s summary
in her written appeal paperwork, Ms. Reis concluded that Plaintiff cannot use any of the skills
she acquired in the marketing field and is not capable of even part-time work due to the
severity of her symptoms. (ECF DKT #14-6 at 238-239).
Defendant referred Plaintiff’s entire record to its own neurological and occupational
experts for review. As a Manager of Marketing Services, Plaintiff’s occupation required
sedentary demand activities according to the Dictionary of Occupational Titles. The
definition of “sedentary” encompasses:
-4-
Exerting up to 10 pounds of force occasionally or a negligible amount of force
frequently to lift, carry, push, pull, or otherwise move objects including the
human body. Sedentary work involves sitting most of the time, but may
involve walking or standing for brief periods of time. Jobs are Sedentary if
walking and standing are required only occasionally and all other Sedentary
criteria are met.
Defendant’s board-certified neurologist opined that Plaintiff’s neurologic
examinations showed no abnormalities and imaging showed no significant neurologic
abnormalities. Plaintiff had no limitations from a neurologic perspective from migraines. She
required restrictions and limitations for the POTS syndrome due to lightheadedness and risk
of falls with injury. She was restricted from working at unprotected heights, working near
open fire/water, operating heavy machinery, moving on a ladder. She was limited to lifting
twenty-five pounds frequently. She was able to work eight hours per day and forty hours per
week.
Defendant’s board-certified expert in Occupational Medicine opined that Plaintiff
showed a very mild case of POTS. Repeated dehydration, reported hypoglycemia and the
very low body mass index (BMI) provided more likely causes of the persistent symptoms.
Nevertheless, Plaintiff’s complaints continued and she was at risk for injury if physical
restrictions were not in place until the conditions resolved or stabilized. Remaining
conditions identified in the medical record were non-limiting since they had resolved,
remained relatively constant, or had never risen to a level sufficient to cause functional
limitations or require physical restrictions. In conclusion, Plaintiff could sustain functional
activity eight hours per day, forty hours per week if she adhered to the restrictions noted.
At Defendant’s request, a certified vocational rehabilitation counselor determined that
-5-
the occupations of Department Manager and Program Manager (both sedentary) exist that
Plaintiff could perform based on the above restrictions and for which Plaintiff would
reasonably be qualified based on education, training and experience.
On July 6, 2021, Defendant denied Plaintiff’s appeal in a letter to her counsel:
The policy provides that Life Insurance Company of North America would pay
benefits only if your client met the policy's requirements, including the
definition of Disability. Disability is determined by medically supported
limitations and restrictions which would preclude your client from performing
the material duties of any occupation. We do not dispute your client may have
been somewhat limited or restricted due to her subsequent diagnoses and
treatment; however, an explanation of her functionality and how her functional
capacity continuously prevented her from performing the material duties of any
occupation from August 1, 2020 through the present and beyond was not
clinically supported. The presence of a condition, diagnosis or treatment does
not necessarily equate to a presence of a disabling condition or decreased level
of functionality. As such, we are affirming our previous decision of August 13,
2020 within the meaning and terms of your client's group Long Term Disability
policy. (ECF DKT #14-6 at 427).
The instant administrative appeal followed. Plaintiff and Defendant filed Cross-
Motions for Judgment on the Administrative Record and Cross-Responses.
II. LAW AND ANALYSIS
Standard of Review
A claim under 29 U.S.C. § 1132(a)(1)(B) for denial of benefits is to be reviewed
“under a de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the
administrator or fiduciary is afforded discretion by the plan, the decision is reviewed under the
arbitrary and capricious standard. Evans v. Unum Provident Corp., 434 F.3d 866, 875 (6th
-6-
Cir. 2006).
In this case, the LINA Insurance Policy was issued in Illinois and the Policy contains a
choice-of-law provision. Illinois insurance law prohibits reserving discretion to the insurer.
Defendant recognizes this contractual restriction and stipulates to de novo review.
Under 29 U.S.C. § 1132(a)(1)(B), a court's review is limited to the administrative
record as it existed when the plan administrator made its final decision. Moon v. Unum
Provident Corp., 405 F.3d 373, 378–79 (6th Cir. 2005).
The court shall take a “fresh look” at the administrative record, [] giving proper
weight to each expert’s opinion in accordance with supporting medical tests and underlying
objective findings, and “accord[ing] no deference or presumption of correctness” to the
decisions of the plan administrator. See Hoover v. Provident Life & Acc. Ins. Co., 290 F.3d
801, 809 (6th Cir. 2002).
To succeed in her claim for long-term disability benefits under ERISA, Plaintiff must
“prove by a preponderance of the evidence that [she] is “disabled,” as that term is defined in
the Plan.” Javery v. Lucent Technologies, Inc. Long Term Disability Plan, 741 F.3d 686, 700-
701 (6th Cir. 2014). As a general rule, to establish by a preponderance of the evidence means
to prove that something is more likely so than not so.
For its review of Plaintiff’s ERISA appeal, the Court has taken a “fresh look” at the
Administrative Record and has given proper weight to each expert's opinion with supporting
medical tests and objective findings.
In Plaintiff’s 2019 Functional Capacity Examination (FCE), her physical therapist
found that Plaintiff’s disability prevented her from engaging in full-time work. Plaintiff’s
-7-
treating physician, Dr. Kirsch, concluded in a May of 2020 virtual visit that Plaintiff suffered
severe walking and standing restrictions; and Dr. Kirsch ultimately determined that Plaintiff
was totally disabled, both cognitively and physically. Upon review of Plaintiff’s medical
records, Plaintiff’s vocational expert, Ms. Reis, found that Plaintiff was incapable of even
part-time work in the occupation for which she is, or may reasonably become, qualified based
on education, training or experience.
For its part, Defendant noted that Plaintiff’s occupation as marketing manager was
sedentary. Defendant’s neurology expert discerned no abnormalities in the imaging or testing
Plaintiff underwent. Plaintiff’s POTS symptoms restricted her ability to work from heights or
to climb; but Plaintiff could work a full day in a sedentary occupation like her position with
Accenture, LLP. Likewise, Defendant’s expert in Occupational Medicine concluded that
Plaintiff could work forty hours a week, with reasonable restrictions. Throughout this
disability review process, Defendant encouraged Plaintiff to undergo an Independent Medical
Examination (IME). Without the IME, Defendant was unable to fully understand Plaintiff’s
current functionality. In the absence of an in-person IME, assessing the extent of Plaintiff’s
limitations and need for restrictions was “not achievable.” Plaintiff continually requested a
virtual IME, which Defendant insisted was not an option. For a variety of reasons, in-person
IME’s on June 2, 2020, June 29, 2020, July 29, 2020 and October 2020 never went forward.
The Court finds that Plaintiff has not proven by a preponderance of the evidence that
she is clearly entitled to disability benefits. The Court is not a medical specialist and the
disability determination is not the Court’s to make. See Elliott v. Metropolitan Life Ins. Co.,
473 F.3d 613, 622 (6th Cir. 2006).
-8-
A remand to the Plan Administrator is appropriate in an ERISA case where the
problem is with the Plan's decision-making process, rather than that a claimant was denied
benefits to which he was clearly entitled. ERISA, 29 U.S.C.A. § 1001 et seq. “[T]he district
court's standard of review and authority to remand are legally and analytically distinct, and,
even under de novo review, remand is the appropriate remedial measure where further
fact-finding is necessary to determine claimant eligibility for benefits. See Williams v. Int'l
Paper Co., 227 F.3d 706, 715 (6th Cir.2000) (recognizing that remand is proper where there
are factual determinations that need to be made to determine whether a participant is entitled
to benefits). Javery, 741 F.3d at 699-700.
In this instance, because Dr. Kirsch’s treatment notes do not explain the divergent
conclusions — from deferring to neurology and cardiology specialists for a
limitations/restrictions determination to finding total disability — all within days of each
other in May, 2020; because Plaintiff’s only FCE is from 2019; because Plaintiff participated
in no in-person examinations with Dr. Kirsch since September of 2019; and because Plaintiff
did not attend an IME, while Defendant considered that a crucial component of a functionality
assessment, there simply is not sufficient evidence in the record to support an outright award
to Plaintiff of LTD benefits.
The Court is compelled to say that the problems with the Plan Administrator’s
decisional process is not of Defendant’s own making. That is, the Court recognizes the
unique circumstances which the COVID-19 pandemic and quarantine posed for Ohio and the
country as a whole. There were necessarily fewer in-person doctor visits; and patients, like
Plaintiff, with compromised health, had legitimate fears and concerns about attending face-to-
-9-
face consultations.
The Court has the discretion to remand this matter to the Plan Administrator for
necessary fact-finding to determine Plaintiff’s eligibility for benefits. On remand, Plaintiff
shall be given the opportunity to submit additional, current medical evidence from relevant
treatment providers and Defendant may require that Plaintiff undergo an in-person IME, now
that the COVD-19 crisis has been alleviated. Defendant shall then examine Plaintiff’s
complete file, renew its decision-making process and clearly explain the reasons underlying its
ultimate benefits decision.
III. CONCLUSION
Accordingly, the Motion (ECF DKT #16) of Plaintiff Rebecca Masevice for Judgment
on the Administrative Record and the Motion (ECF DKT #17) of Defendant Life Insurance
Company of North America (“LINA”) for Judgment on the Administrative Record are denied
The case is remanded to the LINA Plan Administrator for proceedings in compliance with this
Order.
IT IS SO ORDERED.
DATE: March 16, 2023
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
-10-