Bulas v. UNUM Life Insurance Company of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT BULAS, M.D.,

Plaintiff, :

Case No. 2:22-cv-112

Judge Sarah D. Morrison

v.

Magistrate Judge Chelsey M.

Vascura

UNUM LIFE INSURANCE

COMPANY OF AMERICA, et al., :

Defendants.

OPINION AND ORDER

Plaintiff Robert Bulas, M.D. brings this ERISA action against Defendant

Provident Life and Accident Insurance Company1 following its decision to terminate

benefits under a Provident-issued disability policy. (Compl., ECF No. 1.) The

Administrative Record was filed under seal (Admin. R., ECF No. 44) and the parties

filed cross-motions for judgment (ECF No. 52; ECF No. 53). Dr. Bulas and Provident

have each responded to the other’s motion, and replied in support of their own.

(ECF Nos. 54, 55.)

For the reasons set forth below, Dr. Bulas’s Motion for Judgment on the

Administrative Record (ECF No. 52) is GRANTED and Provident’s (ECF No. 53) is

DENIED.

1 Dr. Bulas originally filed his three-count complaint against UNUM Life

Insurance Company of America. (See Compl.) In an October 26, 2022 Opinion and

Order, this Court dismissed the first count and substituted Provident as the

defendant in counts two and three. Accordingly, Dr. Bulas’s only remaining claims

are asserted against Provident.

I. FACTUAL BACKGROUND

In 1994, after completing his radiology2 residency and neuroradiology3

fellowship, Dr. Bulas began practicing with CINHIO Diagnostic Imaging, Inc., now

known as Professional Radiology, Inc. (Admin R., PAGEID # 440, 444, 447, 629–33,

1598.) When Dr. Bulas joined the practice, CINHIO facilitated his purchase of a

disability income policy from Provident (the “Policy”). (See id., PAGEID # 617, 680.)

In 2017, Dr. Bulas filed a claim for Total Disability benefits under the Policy,

asserting that a vision impairment prevented him from working. Provident

approved the claim. This lawsuit arises out of Provident’s decision to terminate

those benefits four years later.

A. Relevant Policy Terms

The Policy provides income benefits to policyholders who become Totally or

Residually Disabled. (See id., PAGEID # 677–701.) Totally Disabled means that,

due to injury or sickness, “you [the policyholder] are not able to perform the

substantial and material duties of Your Occupation.” (Id., PAGEID # 684.) Your

Occupation means:

the occupation (or occupations, if more than one) in which you are

regularly engaged at the time you become disabled. If your occupation

2 “A radiologist is a physician who uses imaging methodologies to diagnose

and manage patients and provide therapeutic options.” (Admin. R., PAGEID

# 1755.)

3 “A specialist in Neuroradiology diagnoses and treats disorders of the brain,

sinuses, spine, spinal cord, neck, and the central nervous system, such as aging and

degenerative diseases, seizure disorders, cancer, stroke, cerebrovascular diseases,

and trauma. Imaging commonly used in Neuroradiology includes angiography,

myelography, interventional techniques, and magnetic resonance imaging (MRI).”

(Admin R., PAGEID # 1756.)

is limited to a board certified specialty, we will deem your specialty to

be Your Occupation.

(Id.) Residually Disabled means different things depending on whether the

disability occurs during or after the elimination period has been satisfied:

Residual Disability or residually disabled, during the Elimination

Period, means that due to Injuries or Sickness:

1. you are not able to do one or more of your substantial and

material daily business duties or you are not able to do your

usual daily business duties for as much time as it would

normally take you to do them; and

2. you have a Loss of Monthly Income in Your Occupation of at

least 20%.

After the Elimination Period has been satisfied, you are no longer

required to have a loss of duties or time. Residual Disability or

residually disabled then means that as a result of the same Injuries or

Sickness you have a Loss of Monthly Income in Your Occupation of at

least 20%.

(Id., PAGEID # 691.)

The Policy allows a policyholder to update their coverage in certain

circumstances. (See id., PAGEID # 697–98.) In 2002, Dr. Bulas exercised one such

option, thereby amending the Policy. (Id., PAGEID # 641–47.) The Increased

Benefit Amendment is signed by Provident’s chief executive and provides that it

and the application for increased coverage, are “a part of” the Policy. (Id., PAGEID

# 643.) Dr. Bulas’s application provides:

If coverage applied for qualifies as a benefit under an Employee

Welfare Benefit plan established or maintained by the employer and

governed by the Employee Retirement Income Security Act (ERISA),

UnumProvident Corporation and its affiliates will be the claims

administrator and have full, final, binding, and exclusive discretion to

determine benefits. Pursuant to ERISA the policyholder will be

entitled to appeal any claims decision.

(Id., PAGEID # 645.) Dr. Bulas’s signature immediately follows. (Id.)

B. April 2017 — Dr. Bulas developed serious ophthalmic issues

Dr. Bulas’s ophthalmic issues were first documented in 2011. (Id., PAGEID

# 660.) On March 31 of that year, Dr. Bulas presented to the Cincinnati Eye

Institute complaining of “hazy” vision in his left eye. (Id.) Dr. Michael Snyder

diagnosed vitreous condensates (referred to as “floaters”) and posterior vitreous

detachment in both eyes. (Id., PAGEID # 590, 661.) Dr. Bulas opted for observation

over surgery. (Id., PAGEID # 590.) Though he continued to experience “frosted

glass” vision due to the floaters, he “dealt with it at work by pausing . . . for seconds

to a few minutes at a time, attempting to relieve [his] symptoms by shaking [his]

head in order to attempt to move the floaters away from [his] central vision.” (Id.)

The “frequency and size of the floaters was noted to increase from 2015 to 2017,”

which caused him some difficulty in performing procedures and imaging. (Id.)

On April 14, 2017, Dr. Bulas experienced a sudden loss of vision in his right

eye. (Id., PAGEID # 590–91.) He was seen at the Cincinnati Eye Institute within an

hour. (Id., PAGEID # 523–26.) There, Dr. Matthew W. Manry determined that Dr.

Bulas suffered a retinal detachment with multiple retinal tears and a posterior

vitreous detachment in his right eye. (Id.) Dr. Bulas underwent surgery the next

morning. (Id., PAGEID # 521–22.)

On May 31, 2017, Dr. Bulas presented to Dr. Robert Hutchins for a post-

operative evaluation. (Id., PAGEID # 527–29.) Dr. Hutchins’s treatment notes

indicate that Dr. Bulas complained of diplopia (double vision) and “flutter.” (Id.,

PAGEID # 527.) Though Dr. Hutchins reported that Dr. Bulas was “46 Days

Excellent post op course,” he did identify two “new retinal breaks . . . suggestive of

early proliferative retinopathy (PVR).” (Id., PAGEID # 529.) Dr. Hutchins further

stated:

Dr. Bulas is clearly visually impaired and should be considered totally

disabled and unable to perform those tasks needing fine visual

functioning such as those tasks performed as an interventional

radiologist for a minimum of 8–12 months. The right eye currently

suffers from metamorphopsia (image distortion) and degraded visual

acuity resulting from his macula involving retinal detachment. The left

eye suffers from large vitreous floaters/condensations causing reduced

contrast sensitivity and blurred images. We can expect that it will take

1–2 years before all visual issues are settled. Unknowns at this time

include 1. whether or not the image distortion [right eye] will improve

over the next several months, 2. whether he’ll develop progressive PVR

[right eye] necessitating additional retinal surgery, 3. whether he’ll

need cataract surgery [right eye], and 4. whether vitrectomy surgery

would be indicated to address the vitreous opacities in his left eye.

(Id.)

C. July 2017 — Provident approved Dr. Bulas’s claim for Total

Disability

Shortly after his surgery, Dr. Bulas filed a claim seeking disability benefits

under the Policy. (Id., PAGEID # 436.) Dr. Bulas described his impairment on the

claim form as:

Visual loss/distortion

[Right] eye: Retinal tears/detachment → post-op

[Left] eye: Posterior vitreous detachment/giant floaters

(Id., PAGEID # 440.) He reported his symptoms as:

6 years of intermittent progression visual obscuration + partial visual

loss; 4/14/17 [right] eye loss of vision

(Id.) Dr. Bulas reported that he could “drive in daylight” and “do physical labor,” but

that he could not “read on paper or write for more than several seconds at a time” or

“focus on lit screens due to visual distortions causing dizziness.” (Id., PAGEID

# 441.)

As to his occupation, Dr. Bulas listed his job title as “Radiologist;

Neuroradiologist.” (Id., PAGEID # 444.) Dr. Bulas indicated that he worked 10-hour

days, splitting his time between hospital and office settings. (Id., PAGEID # 449.)

He described his occupational duties as follows:

Duty Diagnostic Imaging Radiologist

Hours Spent Each Week ~45

Description: Interpretation of medical imaging studies on computer

monitors, averaging 100 exams/day, including xrays, ultrasound, CT,

and MRI exams

Duty Interventional Radiologist + Neuroradiology

Hours Spent Each Week ~10–15

Description: Performance of image guided procedures: angiography,

arterial stenting, intraarterial embolization, kyphoplasty,

myelography, epidural steroid injections

(Id., PAGEID # 444.) Dr. Bulas described his workstation in a phone interview with

the claims specialist:

[H]e has 3 very large computer monitors and he sits with a dictophone

[sic] in one hand and a computer mouse in the other and he scrolls to

review the images and dictates into the phone.

(Id., PAGEID # 666.) Dr. Bulas represented that he could no longer perform any of

those duties: “As an imager/radiologist, I cannot accurately diagnose disease or

perform procedures due to vision obscuration on [left] + distortions on [right].” (Id.,

PAGEID # 441.) He further stated,

I cannot focus on printed word or images on computer monitors due to

visual distortions in [right] eye and intermittent blind spots in [left]

eye; therefore, I cannot perform any of my duties accurately or safely.

(Id., PAGEID # 444.)

Provident completed their own detailed vocational review on Dr. Bulas’s file.

(Id., PAGEID # 799–801.) Vocational consultant David Gaughan reviewed (i) CPT

codes for Dr. Bulas’s billed services for the year preceding his vision loss, (ii) calls

and written correspondence between Provident and Dr. Bulas, (iii) Dr. Bulas’s own

statements and Dr. Hutchins’s Attending Physician Statement, and (iv) the

occupational description provided by Dr. Bulas. (Id., PAGEID # 800.) After his

review, Mr. Gaughan concluded:

Vocationally, insured’s material duties consisted of Diagnostic

Radiology (Representing 84% of all gross charges billed). Examples

include the full scope of review & interpretation of X-Ray. CT (Head,

neck, chest, abdomen etc. . ). MRI.

Ancillary/Misc production included:

Surgical Procedures (representing 10% of all gross charges billed).

Examples include: Injection – Lumbar/Sacral. Fine needle Aspiration

w/guidance. Needle biopsy of kidney. Injection for Myelogram/CAT SC.

Diagnostic Ultrasound (representing 4% of all gross charges billed).

Examples include Echo exam of retroperitoneal. Echo exam of

abdomen, pelvis, transvaginal. Echo guidance for needle placement.

Demands

Visual Demands: Diagnostic reading/interpretation requires near

acuity (i.e. clarity of vision at 20 inches or less), ability to discern

differences in shape/shading/color. Binocular vision/depth perception

(i.e. ability to judge distance & spatial relationships) is required when

performing procedures.

(Id. (reproduced as written).)

On July 11, 2017, Provident approved Dr. Bulas’s claim for Total Disability

benefits under the Policy. (Id., PAGEID # 775–76.)

D. September 2018 — Provident found that Dr. Bulas remained

Totally Disabled

Dr. Bulas continued to see Dr. Hutchins. After a July 13, 2017 post-operative

appointment, Dr. Hutchins noted that Dr. Bulas “is doing well, but remains visually

impaired.” (Id., PAGEID # 831.) Two months later, Dr. Hutchins noted that Dr.

Bulas

feels that he is slightly better. He no longer feels dizzy, nauseated, or

off balance. He is able to read but has to go very slow. Images in the

right eye still have a “tail.” Vision in the left eye still has the large

floaters that get in the way when trying to read. He still has difficulty

driving at night.

(Id., PAGEID # 832.) Dr. Hutchins also recommended that Dr. Bulas undergo yet

another retinal procedure—this time, to address lattice degeneration observed on

examination of his left eye. (Id., PAGEID # 835.) The procedure was completed in

November 2017. (Id., PAGEID # 893.)

On March 15, 2018, Dr. Bulas presented for a follow-up visit. (Id., PAGEID

# 886–90.) Dr. Hutchins recorded his impression, in part, as follows:

Visual functioning: Distortion is nearly gone. [Dr. Bulas] still has

monocular and binocular diplopia (ask him to see strabismus

specialist) and inferior field fluttering [right eye]. The double vision

and reduced central vision [right eye] currently prevents him from

being able to work. . . . Large Vitreous Floaters [left eye] contribute to

visual difficulties.

(Id., PAGEID # 890.) A short time later, Dr. Hutchins completed another Attending

Physician Statement, concluding that Dr. Bulas was:

Unable to perform diagnostic imaging or image guided procedures due

to monocular and binocular double vision, large floaters in the left eye,

and blurred central vision in the right eye.

(Id., PAGEID # 906.)

Dr. Bulas next saw Dr. Hutchins on July 12, 2018. (Id., PAGID # 955.) At

that visit, he recounted his experience with the strabismus (crossed eyes) specialist,

Dr. Szmyd.4 Dr. Hutchins recorded in his notes:

The 54 year old male [Dr. Bulas] presents for 6 month retinal exam in

the right eye for ERM and left eye for lattice and vitreous floaters.

Patient states that there has been very little change in vision since his

last exam. He saw Dr Szmyd. She said there was no muscle issues but

they have trie[d] several “tricks” including wearing glasses for distance

on a regular basis. Visual acuity has improved slightly but the eyes

still feel “uncoordinated” or don’t focus together. He has noticed a new

spinning pinwheel in the area just above central vision in the right

eye. It started about 3 months ago and only sees it in dimmer light and

only when [blood pressure] is elevated, such as when he is jogging or

working in the yard. Floaters in the left eye are the same.

(Id.) Following examination, Dr. Hutchins concluded, in part:

Visual functioning. Distortion is nearly gone. He still has monocular

and binocular diplopia. His [visual acuity] is better with new

[prescription]. He reports new “pinwheel” symptom in central VA

[right eye] when [heart rate] increases. The double vision and reduced

central vision [right eye] currently prevents him from being able to

work. . . . Large Vitreous Floaters [left eye] contribute to visual

difficulties.

(Id., PAGEID # 959.)

With these medical records in-hand, Provident reviewed Dr. Bulas’s claim file

in September 2018. (See id., PAGEID # 983–84.) Provident concluded that Dr. Bulas

is improving, but very slowly. His [restrictions and limitations] remain

supported as reported by his [attending physician]—double vision,

4 The record includes a one-page treatment note from Dr. Szmyd. (Admin. R.,

PAGEID # 978.) It is largely illegible.

large floaters and blurred central vision—which preclude his ability to

work in his [occupation].

(Id., PAGEID # 984.)

E. April 2019 —Provident determined that Dr. Bulas had a “poor”

likelihood of ever returning to work

During a January 17, 2019 visit with Dr. Hutchins, Dr. Bulas reported that

his eyes were “stable,” with “no changes since [his] last visit.” (Id., PAGEID # 994.)

He also reported continued issues with “giant floaters” in his left eye and the

“pinwheel” in his right. (Id.) Dr. Bulas indicated that he had difficulty reading small

print. (Id.) Dr. Hutchins’s notes reflect:

Patient is having increasing trouble with reading. His other visual

symptoms are unchanged.

(Id., PAGEID # 998.)

In mid-March, Dr. Hutchins completed his third Attending Physician

Statement:

Distortion in right eye is almost gone but still has blurriness centrally

making reading difficult. Monocular and binocular double vision. Large

floaters in the left eye. Inferior visual field fluttering in the right eye.

. . .

Unable to perform duties such as diagnostic imaging or image guided

procedures due to monocular and binocular double vision, large

floaters in the left eye, and blurred central vision of the right eye

making reading small print difficult.

(Id., PAGEID # 1013–14.) The following month, a Provident claims specialist

interviewed Dr. Bulas. (Id., PAGEID # 1026–27.) Dr. Bulas advised “as far as a

retinal standpoint he is stable” but “his vision is worse” in his right eye due to a

growing cataract. (Id.) He planned to see a lens specialist to determine whether

surgery was necessary. (Id.) He reported that he continued to struggle with double

vision, but could read through the double vision and cataract symptoms when using

a magnifying glass in the proper light conditions. (Id.) Dr. Bulas then described

going on a two-week volunteer medical mission to Panama. (Id.) He prepared for the

mission by studying audio lessons on tropical medicine and Spanish language. (Id.)

He reported that “he did OK” because “he had back up.” (Id.)

In an April 26, 2019 file review, Provident determined that Dr. Bulas “is not

getting better and will likely only worsen [with] time barring surgery” and that the

likelihood Dr. Bulas would return to work in his own occupation “seems poor even

[with] surgery.” (Id., PAGEID # 1028.)

F. September 2019 — Provident transferred Dr. Bulas’s claim

Dr. Bulas next saw Dr. Hutchins on July 25, 2019. (Id., PAGEID # 1049.)

Following examination, Dr. Hutchins stated:

Patient is having increasing trouble with his vision. The floaters in his

left eye are hanging over his macula and constantly affect with [sic] his

vision. The cataract is worsening in his right eye.

(Id., PAGEID # 1053.)

Provident reviewed Dr. Bulas’s claim file again in September 2019, with a

clinical consultant and on-site physician (“OSP”). (Id., PAGEID # 1093.) The claim

file states:

OSP notes that significant improvement in [Dr. Bulas’s] vision to

enable him to [return to work] is not expected. Even if [Dr. Bulas] were

to have cataract surgery on his [right] eye, given the nuclear sclerosis

of same, vision would not improve to enable [him] to perform his visual

[occupational] demands as noted by [the vocational consultant].

(Id.) Based on this conclusion, Provident transferred Dr. Bulas’s claim to their

Special Benefits unit. (Id., PAGEID # 1096.)

G. August 2021 — Provident terminated Dr. Bulas’s benefits on

the grounds that he could now perform diagnostic radiology

On November 19, 2019, Dr. Michael Snyder performed a cataract extraction

on Dr. Bulas’s right eye. (Id., PAGEID # 1145.) The surgery was successful. (See id.,

PAGEID # 1205–07.) Dr. Bulas reported that the visual symptoms associated with

the cataract had resolved, but the double vision and floaters remained. (Id.)

On January 16, 2020, Dr. Bulas saw Dr. Hutchins for a follow-up. (Id.,

PAGEID # 1197–1202.) Dr. Hutchins recorded the following in his treatment notes:

[Dr. Bulas] states he received cataract surgery a couple months ago in

[right eye] and it has increased his acuity. [He] states the double vision

is gone in [right eye]. [He] states [left eye] is stable, with no changes.

[Dr. Bulas] states he still has the floaters in [left eye] that blocks [sic]

his vision.

(Id., PAGEID # 1197.) During that visit, Dr. Bulas decided to move forward with a

vitrectomy—surgery that would attempt to remove the floaters. (Id., PAGEID

# 1200–01.) Dr. Hutchins performed the procedure on May 7, 2020. (Id., PAGEID

# 1146–47.) At a three-month post-operative evaluation, Dr. Hutchins noted simply

that Dr. Bulas was “[d]oing well.” (Id., PAGEID # 1180.)

In March 2021, Provident reached out to Dr. Bulas and Dr. Hutchins for

updated information. On his Individual Statement, Dr. Bulas indicated that his

medical condition had not changed since he last provided information:

I did have another eye surgery in the last year on my [left] eye, a

vitrectomy. While it removed my [left] eye floaters, it didn’t change my

double vision, etc.

(Id., PAGEID # 1169.) As to his day-to-day activities, Dr. Bulas stated:

Household chores, exercise, grocery shopping; no reading still except

short emails + texts due to double vision/uncoordinated vision +

artifacts in [right] eye.

(Id.)

On his Attending Physician Statement, Dr. Hutchins also indicated that Dr.

Bulas’s medical condition had not changed. (Id., PAGEID # 1288.) He further

indicated that Dr. Bulas’s prognosis for improvement was poor. (Id.) As to his

specific limitations, Dr. Hutchins stated:

[Dr. Bulas] is unable to perform tasks such as diagnostic imaging or

image guided procedures due to diplopia and uncoordinated vision. He

has a spinning image centrally and a fluttering image in inferior vision

of the right eye.

(Id.)

In April 2021, Provident decided to review Dr. Bulas’s file, noting that “there

seems to have been some improvement in” Dr. Bulas’s visual acuity. (Id., PAGEID

# 1328.) In connection with that effort, Provident OSP Dr. Joseph A. Antaki spoke

with Dr. Hutchins about Dr. Bulas’s condition. (Id., PAGEID # 1461.) Dr. Antaki

summarized their May 10, 2021 conversation in a letter to Dr. Hutchins:

Thank you for speaking with me today regarding the

restrictions/limitations for Dr. Bulas. As you know, Dr. Bulas

continues to report disturbances involving the vision of his right eye,

including a description of an obscuring “spinning wheel” when his

heart rate increases, and episodes of vertical diplopia. I needed to gain

a better understanding of the limitations related to his visual

symptoms. Today, you clarified the following:

Though Dr. Bulas had a successful repair of his retinal detachment on

the right, it did involve the macula; in such cases fluid can migrate

under the fovea. You have identified some wrinkling of the retina.

Distortion of images can be common in these situations, and may never

resolve completely. There may not be physical exam findings of the eye

that correlate with the reported symptoms.

The left eye has better vision for fine detail at this point, though Dr.

Bulas is developing a cataract in that eye. Whether someone is able to

function without limitation with a disruption in the coordination of the

image between the two eyes is person dependent.

(Id.)

On June 14, 2021, Dr. Bulas saw Dr. Hutchins for a follow-up. Dr. Hutchins

wrote:

The 57 year old male presents for evaluation of 10mo floaters [follow-

up] in the left eye. [Dr. Bulas] states that his vision has remained the

same since last visit. He has adjusted to primarily using [left eye] and

is overall happy with his vision.

(Id., PAGEID # 1465.)

After receiving the June 14, 2021 notes, Dr. Antaki ordered a consult on Dr.

Bulas’s file from Dr. Richard Eisenberg. (Id., PAGEID # 1502.) Following a full

review of medical records, Dr. Eisenberg responded to the questions posed by Dr.

Antaki:

1. Is the insured’s report of intermittent disruption of the

vision in the right eye (i.e. “spinning wheel”) with activity

consistent with the conditions the insured has been treated for

(retinal detachment involving fovea with “wrinkling”) and the

subsequent exam findings?

There is no obvious or clear explanation for the insured’s persistent

symptoms of “spinning wheel” visual phenomenon associated with

activities causing a higher heart rate, and there are no correlating

physical examination findings present with such intermittent

occurrences. I do find the insured’s self-reported symptoms credible,

however, as such unexplained visual observations are not uncommon

[in] the setting of previous derangements involving the retina or optic

nerve; vascular perfusion factors may be invoked as well. Previous

damage to ocular nervous tissue such as the sensory retina and optic

nerve may result in residual visual phenomena even in the presence of

anatomic improvement of previously noted pathology.

2. Is there information in the file to explain the insured’s

reports of diplopia?

There is more evidence in the file to support the presence of monocular

diplopia than binocular. Monocular diplopia is a common result of

previous macula-off [retinal detachment] surgery, especially with a

resulting ERM, as noted in the insured. Several Amsler grid tests were

described as abnormal, with metamorphopsia and “double lines” a very

common observation in those with ERM. The most recent

examinations, however, indicate that the insured reported less

monocular diplopia with recovery of visual acuity s/p

phacoemulsification to 20/20 [right eye] (prior to the development of

posterior capsule opacification); the last macular OCT was also read as

normal by Dr. Hutchins on 6/14/21. This raises the question as to the

level of continued visual impairment [right eye].

The presence of binocular diplopia is more difficult to corroborate with

evidence in the medical records. The (barely legible) record of Dr.

Szmyd detailed more monocular than binocular diplopia, and there is

no evidence that prism treatment was initiated. Dr. Snyder described

full extraocular motility with a “tiny flick exotropia” that he linked

with the insured’s report of binocular diplopia. No follow-up with a

strabismus specialist or further attempts at glasses with prism

correction were pursued, even in the presence of improved vision in

both eyes individually. The presence of binocular diplopia by both Dr.

Hutchins and Dr. Snyder appears to be based more on the insured’s

self-reported symptoms than examination findings.

3. Is there any other testing that would be indicated to

evaluate the insured’s reported visual complaints involving the

right eye?

Yes, there are several testing parameters that would be indicated. A

more recent Amsler grid exam would corroborate his report that his

near function is “more dominant” with his left eye due to persistent

metamorphopsia in the right eye. This was reported in earlier visits

but has not been reported coincident with the insured’s improvement

in [visual acuity] after cataract surgery. A formal stereopsis test would

also be helpful in determining the degree of depth perception, as this is

one of the occupational requirements noted by [the vocational

consultant]. Fluorescein angiography or OCT angiography could

identify vascular perfusion abnormalities [right eye] that may

substantiate the visual complaints in this eye as well.

4. Is the insured’s eye condition consistent with the reported

inability to meet the occupational visual demands as outlined

by the [the vocational consultant]?

I opine that this is currently indeterminate due to the above

considerations. With the improvement of [visual acuity] [right eye]

(after cataract surgery to 20/20, notes indicating less monocular

diplopia, and most recent macular OCT read as normal) and [left eye]

(after vitrectomy surgery), it is possible that the insured’s overall

visual functional capacity would fulfill the occupational visual

requirements. As noted above, the most recent supportive data for

ongoing total disability is less compelling; the above testing

suggestions would assist in this determination.

At the present time, it appears as if the insured would be able to

perform visual tasks that do not require stereopsis [(depth

perception)], i.e. diagnostic Radiology, based on the function of his left

eye alone. The most recent [visual acuity left eye] of 20/25-2 should

suffice for frequent near acuity. However, the performance of

interventional Radiology, which requires depth perception, is more

nebulous due to the lack of recent supporting data. If subsequent

information is received that documents the presence of continued

metamorphopsia [right eye] with Amsler grid reports, and/or impaired

stereopsis (80 seconds of arc or greater), and/or macular vascular

abnormalities [right eye], this would support the presence of

[restrictions and limitations] pertaining to duties requiring depth

perception. If so, the impairment would be expected to be permanent. I

will be available to review and comment on this information if it

becomes available.

(Id., PAGEID # 1504–05.)

Provident’s file review team then asked Dr. Hutchins whether additional

testing was being considered. (Id., PAGEID # 1520.) Dr. Antaki summarized his

response:

Though the vision in the left eye is unencumbered by distortion or

floaters, you would not be able to attest to whether intact acuity of one

eye is an acceptable standard to allow the practice of diagnostic

radiology/neuroradiology. You do not know if that is information that

the Academy of Radiology could comment on.

In regards to Dr. Bulas’ intermittent distortion of the vision in the

right eye, though tests of stereopsis and further Amsler grid testing

could be done, these are tests of “gross function.” You would still have

to consider as credible Dr. Bulas’ report that this disturbance is

impairing and is similar to what a few other patients have reported

who have had a similar disturbance of the macula.

(Id., PAGEID # 1521.) Following this conversation, Dr. Antaki concluded that the

medical records no longer supported that Dr. Bulas was unable to perform activities

that did not require stereopsis (depth perception). (Id., PAGEID # 1529.)

To resolve the conflicting opinions between Dr. Hutchins (who believed, per

his Attending Physician Statement, that Dr. Bulas was unable to perform his

occupation) and Dr. Antaki (who believed that the records no longer supported

restrictions on performing diagnostic radiology), Provident referred Dr. Bulas’s file

for medical reviews by OSP Dr. Eisenberg and Designated Medical Officer Dr. Sami

Kamjoo. (Id., PAGEID # 1531.) Both Dr. Eisenberg and Dr. Kamjoo agreed with Dr.

Antaki. Dr. Eisenberg concluded:

I agree with Dr. Antaki’s determination that the insured retains the

visual functional capacity to perform the duties of his occupation that

do not require stereopsis. Using the VRC guidelines, the visual

requirements for diagnostic reading/interpretation include near acuity

and ability to discern differences in shape/shading/color. On the

insured’s last examination with Dr. Hutchins on 6/14/21, the [visual

acuity] in the left eye alone (20/25-2) satisfies these conditions, and

there is no evidence of a disturbance in color vision. Diagnostic

readings occur on a 2-dimensional surface and do not require

stereopsis. If the distortion or a double image in one eye is deemed to

“interfere” with the other, it could be adequately suppressed with

fogging techniques or the use of a Bangerter filter. However, it was

clearly stated by Dr. Hutchins that the insured “has adjusted to

primarily using [left eye] and is overall happy with his vision” on his

last examination. It appears that Dr. Hutchins’ reluctance to provide

agreement with Dr. Antaki’s suggestion that diagnostic testing could

be adequately performed monocularly is more based on his

unfamiliarity with Vocational requirements than abnormal

examination findings. Notably, Dr. Hutchins indicated on the most

recent [attending physician] contact that the insured’s present vision

[left eye] “is unencumbered by distortion or floaters.” The last macular

OCT was read as normal, and a significant cataract [left eye] (a

common development post-vitrectomy) had not yet developed.

As an aside, I do find credible Dr. Hutchins’ assertion that despite

recovery of [visual acuity] [right eye] to 20/20 post [retinal detachment]

repair and subsequent cataract surgery, it is common to experience

residual metamorphopsia and/or monocular diplopia that can

permanently degrade the degree of visual functioning in the affected

eye. Indeed, there were several post-[retinal detachment] repair

documentations of an abnormal Amsler grid [right eye], and this is a

test that rarely completely normalizes over time. Despite the lack of

more recent Amsler grid testing or formal stereopsis determination, I

agree that activities that require stereopsis are likely to be

permanently compromised in the insured.

(Id., PAGEID # 1533.) Dr. Kamjoo also agreed with Dr. Antaki:

The available medical records and clinical exam findings support [Dr.

Antaki’s] opinion that [Dr. Bulas’s] functional vision as documented in

the most recent records do not support restrictions/limitations

precluding activities that do not require stereopsis. The Insured has

undergone successful retinal detachment repair right eye and

vitrectomy left eye for vitreous floaters. The original retinal

detachment did involve the macula, which can lead to residual

monocular visual disturbances and distortion. However, on the most

recent Ophthalmology evaluation (6/14/2021), the Insured had visual

acuity of 20/40 right eye and 20/25 left eye, which supports that the

Insured is able to read 2-dimensional diagnostic images that do not

require stereopsis. There is intact visual fields bilaterally by

confrontation visual field testing. Optical coherence tomography

testing demonstrates normal retinal contour both eyes without cystoid

macular edema. Slit lamp exam and dilated fundus exam has been

stable per the available medical records. The treating retinal specialist

has noted that [Dr. Bulas] has adjusted to primarily using left eye and

is overall happy with his vision.

In summary, I agree with [Dr. Antaki’s] opinion that the evidence in

available medical records does not support restrictions/limitations

precluding activities that do not require stereopsis.

(Id., PAGEID # 1539–40.)

After Drs. Eisenberg and Kamjoo rendered their opinions, Provident sought

to confirm whether the substantial and material duties of Dr. Bulas’s occupation

required stereopsis. (Id., PAGEID # 1543.) Vocational consultant Robert J.

Rodecker reviewed Dr. Bulas’s claim file. He first noted that medical reports

indicate that Dr. Bulas “retains the visual functional capacity to perform duties of

his occupation that do not require stereopsis.” (Id., PAGEID # 1544.) He then noted

that the August 2017 vocational review determined that Dr. Bulas’s “material

duties consisted of Diagnostic Radiology which represent[ed] 84% of all gross charge

billed” and that “surgical procedures represented 10% of all gross charges billed.”

(Id.) “Based on review of CPT coding” and the August 2017 vocational review, Mr.

Rodecker concluded that “the important duties of [Dr. Bulas’s] occupation included

diagnostic reading and interpretation of x-rays.” (Id.) He then applied the visual

demands first identified in August 2017 to conclude:

[Dr. Bulas] can perform the work duties of a Diagnostic Radiologist

interpreting films/writing reports which he had performed prior to date

of claim. These positions exist in Hospitals as well as “Work from

Home” opportunities also known as Teleradiologist. Opportunities also

exist for “Remote Evening General Radiologists”.

(Id., PAGEID # 1556.)

On August 18, 2021, Provident sent a letter to Dr. Bulas explaining that the

company no longer considered him Totally Disabled and was terminating his

benefits. (Id., PAGEID # 1566–72.) The letter summarized the medical records,

along with the conclusions of Dr. Antaki, Dr. Eisenberg, Dr. Kamjoo, and Mr.

Rodecker. (Id.) It then advised Dr. Bulas that Provident did not consider him

eligible for Total Disability or Residual Disability benefits under the Policy:

We have determined you are able to perform the substantial and

material duties of a diagnostic radiologist, which was the dominant

portion of your pre-disability occupation. Therefore, you do not qualify

for Total Disability benefits. . . .

Although you have not claimed Residual Disability/Recovery Benefits,

we wish to advise you that you would not qualify for these benefits.

Residual Disability requires that you incur a loss of monthly income in

your occupation of at least 20 percent, because of disability. As you are

not working at all in your occupation, though you could do so, you

cannot satisfy this requirement. . . .

(Id., PAGEID # 1569–70.)

H. November 2021 — Dr. Bulas appealed Provident’s benefit

determination

On November 4, 2021, Dr. Bulas appealed Provident’s non-disability

determination. (Id., PAGEID # 1592.) In support of his appeal, Dr. Bulas attached:

two statements that he prepared; statements from Dr. Raymond C. Rost, Jr. and

Dr. Robert J. Ernst; an email from Joe Woods at Marsh McLennan Agency; and the

American Board of Medical Specialties’ 2020 Guide to Medical Specialties. (See id.)

Dr. Bulas argued that Provident erred when it concluded that (i) his

occupation was Diagnostic Radiologist, and (ii) he could perform diagnostic

radiology. (Id., PAGEID # 1592–93.) As to the first error, Dr. Bulas argued that the

CPT code analysis improperly led Provident to determine that interventional

procedures were not a substantial and material duty of his occupation. (Id.,

PAGEID # 1595 (citing McCann v. Unum Provident, 907 F.3d 130 (3d Cir. 2018).)

Dr. Bulas next argued that he could not perform diagnostic work using only

his left eye, largely due to the resulting strain and fatigue. (Id.) Dr. Rost’s

statement offers an account of a radiologist’s vocational requirements:

A Radiologist in private practice will interpret a variety of imaging

studies. These imaging studies include Xray or plain radiography,

advanced cross-sectional imaging studies (CT, MRI, PET Metabolic

imaging), nuclear medicine studies, and interventional procedures of

varying types and complexities. In the course of a ten-hour workday in

our practice, a radiologist will interpret between 75 and 125 imaging

studies. The viewing and the interpretation of these imaging studies is

performed on sophisticated computer workstations employing multiple

high-resolution monitors. These workstations also include dictation

hardware and software for the immediate generation of final imaging

reports. Xray or plain radiography studies usually have up to 5 images;

each image is reviewed on a computer monitor. Following review, a

report is generated. The total time spent would be less than 5 minutes.

Cross-sectional imaging studies such as CT or MRI contain hundreds

to thousands of images. These studies consist of multiple series of

images; each series of images needs to be reviewed by scrolling through

the images on the computer workstation. An individual series of

images may take less than 1 minute up to many minutes to review. A

basic non-contrast head CT will consist of hundreds of images. A

Radiologist should be able to review a head CT study and generate a

report in less than 5 minutes. The majority of CT and MRI studies

contain many more images and series than a non-contrast head CT. I

have interpreted complex CT Angiography studies containing 7000

images. Interpretation of more complex CT and MRI may take up to 30

minutes. Interpretation of these studies requires extensive scrolling

through each series of images. Each individual image needs to be

reviewed. On each image, there are a myriad of normal and potentially

abnormal structures that must be rapidly visually scanned and focused

upon, and as one scrolls from image to image, constant refocusing and

scanning with high visual acuity is required. Visual acuity and

constant focus is crucial to the perception and detection of imaging

abnormalities/findings. A Radiologist must be able to detect abnormal

findings measuring 1mm or greater in size. For example, sub-

centimeter pulmonary nodules or small pulmonary emboli need to be

detected on chest CT studies. Failure to perceive an abnormality may

lead to a delay in diagnosis and potential harm to the patient. Failure

of perception is the most common cause of Radiology malpractice suits.

(Id., PAGEID # 1613.) In his own statement, Dr. Bulas explains why he believes he

is unable to perform such tasks:

. . . I am unable to cover my right eye and read the stationary written

word with my left eye alone for more than a couple minutes without

developing debilitating eye strain, fatigue, and headache. To suggest

that I can accurately scan and accurately interpret hundreds of images

on even one exam with my left eye alone, and then repeat that process

again and again and again is absurd, given my extreme limitations

with even the stationary written word. I cannot accurately interpret a

handful of images with my left eye alone, let alone one entire imaging

study of one patient.

. . .

Read an eye chart with my right eye covered? Yes, with a little time

and a lot of effort. Read even 1 complex radiological imaging exam

accurately, let alone the 80–120 required a day to be a practicing

radiologist? No chance.

(Id., PAGEID # 1604, 1606.) Dr. Bulas further contends that, due to his visual

impairment, he would be unable to obtain liability insurance or facility privileges to

practice radiology. (See id., PAGEID # 1614, 1634.)

I. January 2022 — Provident denied Dr. Bulas’s appeal

Provident first sent Dr. Bulas’s appeal to vocational consultant Shannon

O’Kelley to determine whether the materials provided “alter the conclusions of the

visual requirements of the performance of the material and substantial duties of”

Dr. Bulas’s occupation. (Id., PAGEID # 1763.) Mr. O’Kelley first summarized the

vocational portions of the claim history, including Dr. Bulas’s occupational

description and Provident’s CPT code analysis. (Id.) He then summarized the

arguments and materials submitted on appeal. (Id., PAGEID # 1764–65.) Mr.

O’Kelley copied portions of Dr. Bulas’s statements into his report. (Id.) As to the

other documents submitted, however, Mr. O’Kelley stated:

The appeal also contained the opinion of the visual requirements of

Diagnostic and International Radiologists from two physicians which.

The appeal also included an email indicating that the insured is

uninsurable based on his visual deficits.

(Id., PAGEID # 1765 (reproduced as written).) Mr. O’Kelley then stated his

conclusion:

The vocational reviews presented the information provided within the

billing. The billing showed that the insured performed Diagnostic and

Interventional Radiology. Per the insured in the Occupational

Description, Interventional Radiology accounted for about 25% of his

reported work week. Per the billing analysis, the Surgical Procedures

accounted for about 3% of billing and 10% of the charges and

Diagnostic Radiology accounted for about 84% of the billing and 84% of

charges. The additional information does not alter that the visual

requirements of near acuity (clarity of vision at 20 inches or less) and

ability to discern differences in shape/shading/color when performing

Diagnostic procedure with the addition of binocular vision/depth

perception (ability to judge distance & spatial relationships) for

performing Interventional procedures.

(Id.)

Dr. Bulas’s appeal was then sent for medical review to determine whether

“the medical and file documentation reviewed support [restrictions and limitations]

due to [Dr. Bulas’s] vision conditions in the left and right eyes that would preclude

him from performing the visual demands of his occupation[.]” (Id., PAGEID # 1768.)

Dr. Clifford Michaelson completed his review on December 13, 2021. (Id., PAGEID

# 1772.) Based on Dr. Bulas’s claim file, Dr. Michaelson opined that Dr. Bulas:

should be able to perform the tasks of a diagnostic radiologist requiring

clarity of vision at 20 inches or less and the ability to discern

differences in shapes, shading, and color, using the vision of his left eye

alone (if he found this more comfortable, less distracting).

. . .

Dr. Bulas also wrote in his appeal that he cannot use his left eye for

more than a couple of minutes without developing debilitating eye

strain, fatigue, and headache. Given Dr. Hutchins’s examination

findings of 6/14/21, I can find no medical basis for why these symptoms

should occur. . . .

Finally, while there is no question that Dr. Bulas’s profession requires

visual precision and careful attention to detail, in my opinion, based on

the medical records provided for my review, it appears that from

6/14/21 going forward that Dr. Bulas should be able to meet the

minimal visual requirements as outlined by the [vocational consultant]

for working as a diagnostic radiologist.

(Id., PAGEID # 1774–75.)

Provident notified Dr. Bulas of its decision on appeal in a letter dated

January 3, 2022. (Id., PAGEID # 1789–96.) The letter concludes, in relevant part:

The medical and file documentation reviewed supports [Dr. Bulas’s]

visual conditions would preclude him from performing occupational

demands associated with depth perception/stereopsis which includes

interventional radiology procedures.

However, the medical and file documentation reviewed does not

support [Dr. Bulas’s] visual conditions would restrict or limit [him]

from performing occupational demands that do not require depth

perception/stereopsis including diagnostic radiology. Since [Dr. Bulas]

is capable of performing diagnostic radiology which accounted for a

significant portion of his pre-disability billings and charges (84%), [he]

is not Totally Disabled and he is not eligible for Total Disability

benefits.

(Id., PAGEID # 1792.) Provident noted that it would, however, consider his

eligibility for Residual Disability benefits. (Id.) It then responded to the issues

raised in Dr. Bulas’s appeal:

The occupational information reviewed supports [Dr. Bulas] worked as

a radiologist prior to disability with 84% of pre-disability billing and

charges accounting for diagnostic radiology. While [he] reports

interventional radiology accounted for about 25%-35% of his time, this

is only based on [Dr. Bulas’s] reports and is not consistent with the

CPT data which reflects surgical procedures accounted for about 3% of

billing and 10% of the charges.

We do not dispute that [Dr. Bulas] performed interventional radiology

procedures prior to disability, however, diagnostic radiology accounted

for a significant portion of billing and charges prior to disability.

Further, while you dispute the classification of [his] occupation and

assert [he] was working as an interventional radiologist; [Dr. Bulas]

did not solely perform interventional radiology prior to disability and

the information you provided does not change the visual demands

required of [his] occupation.

(Id., PAGEID # 1793.)

After receiving Provident’s decision on appeal, Dr. Bulas filed the instant

action.

II. STANDARD OF REVIEW

ERISA benefit determinations are reviewed de novo unless the plan expressly

grants its 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 a plan grants discretionary

authority, “application of the highly deferential arbitrary and capricious standard of

review is appropriate[.]” Yaeger v. Reliance Std. Life Ins. Co., 88 F.3d 376, 380 (6th

Cir. 1996). Here, the parties disagree about whether de novo or arbitrary and

capricious review applies. Because the Increased Benefit Amendment gives

Provident “full, final, binding, and exclusive discretion to determine benefits,”

(Admin. R., PAGEID # 645), the Court proceeds under the arbitrary and capricious

standard.5

“A decision reviewed according to the arbitrary and capricious standard must

be upheld if it results from ‘a deliberate principled reasoning process’ and is

supported by ‘substantial evidence.’” Schwalm v. Guardian Life Ins. Co. of Am., 626

F.3d 299, 308 (6th Cir. 2010) (quoting Baker v. United Mine Workers of Am. Health

& Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)). As the Sixth Circuit points out,

this test has both a substantive component (substantial evidence) and a procedural

one (deliberate and principled reasoning process). Autran v. Procter & Gamble

Health and Long-Term Disability Benefit Plan, 27 F.4th 405, 411 (6th Cir. 2022).

Substantial evidence exists “if a rational person could conclude that the evidence

was adequate to justify the decision.” Id. at 412 (internal quotation and citation

omitted). Though a deliberate, principled reasoning process is not so easy to define,

courts often ask questions like:

Did the administrator consider all the evidence or overlook evidence

that cut the other way? If the administrator departed from its earlier

benefits ruling, did it adequately explain the change? If the Social

Security Administration found that the participant was disabled under

federal law, did the administrator consider this ruling? If the

administrator credited certain doctors over others, did the credited

doctors undertake a mere “file” review or conduct a thorough in-person

5 The Policy provides that “[n]o change [to it] will be effective until approved

by one of [Provident’s] officers.” (Admin. R., PAGEID # 701.) Dr. Bulas argues that

the application for increased benefits “does not constitute a validly adopted

amendment to the” Policy because it is signed only by him, and not by a Provident

officer. (ECF No. 54, PAGEID # 1973.) But the Increased Benefit Amendment,

which expressly incorporates the application, is signed by Provident’s President and

CEO. The Amendment is a clear grant of discretion, triggering review under the

arbitrary and capricious standard. Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555

(6th Cir. 1998) (en banc).

evaluation? And did the administrator have a conflict of interest that

affected its decision?

(Id.) (collecting cases). Accordingly, though deferential, arbitrary and capricious

review is no “rubber stamp”—rather the court examines the “quantity and quality of

the . . . evidence on each side.” Schwalm, 626 F.3d at 308 (citing Evans v.

UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006)). If, following such review,

“it is possible to offer a reasoned explanation, based on the evidence, for a particular

outcome, that outcome is not arbitrary or capricious.” Shields v. Reader’s Digest

Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003) (quoting Davis v. Kentucky Fin. Cos.

Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989)).

III. ANALYSIS

Dr. Bulas first argues that Provident improperly strayed from the Policy

language when it terminated his Total Disability benefits. It is “a fundamental

principle of ERISA law—the plain language of the plan controls.” West v. AK Steel

Corp. Retirement Accumulation Pension Plan, 318 F. Supp. 2d 579, 585 (S.D. Ohio

2004) (Beckwith, J.) (citation omitted). Accordingly, the Court’s “starting point is

the language of the [Policy] itself.” Farhner v. United Transp. Union Discipline

Income Prot. Program, 645 F.3d 338, 343 (6th Cir. 2011). The Policy provides that

an insured is Totally Disabled if

you are not able to perform the substantial and material duties of Your

Occupation.

“Your Occupation” is then defined as

the occupation (or occupations, if more than one) in which you are

regularly engaged at the time you become disabled. If your occupation

is limited to a board certified specialty, [Provident] will deem your

specialty to be Your Occupation.

Dr. Bulas takes issue with Provident’s conclusion that he “was able to

perform the substantial and material duties of a diagnostic radiologist, which was

the dominant portion of [his] pre-disability occupation.” First, he notes that the

Policy gives no meaning to the “dominant portion” of an occupation. And second, he

argues that the termination of benefits was inappropriate because interventional

radiology was also a substantial and material duty of his occupation—and everyone

agrees that he cannot perform interventional radiology.

Provident first responds that it was reasonable to use language like

“dominant,” which is a synonym of substantial and material. Provident next argues

that Total Disability benefits are only available to policyholders who cannot perform

any of the substantial and material duties of their pre-disability occupation—and

because Dr. Bulas could perform at least one such substantial and material duty, he

was not Totally Disabled. Provident further notes that, in response to Dr. Bulas’s

appeal, it agreed to consider his eligibility for Residual Disability benefits, which

are available to policyholders who can perform some but not all of the substantial

and material duties of their pre-disability occupation.6

6 Inherent in Provident’s argument is an acknowledgement that

interventional radiology was a substantial and material duty of Dr. Bulas’s pre-

disability occupation. Accordingly, Dr. Bulas’s argument based on McCann v. Unum

Provident, 907 F.3d 130 (3d Cir. 2018) (holding that Unum Provident was wrong to

disregard Dr. McCann’s pre-disability interventional duties based on a CPT code

analysis alone) is inapposite.

Provident’s interpretation of the Total, versus Residual, Disability provisions

of the Policy is reasonable and, thus, entitled to the Court’s deference. See A.G. by

and through N.G. v. Cmty. Ins. Co., 363 F. Supp. 3d 834, 839 (S.D. Ohio 2019)

(Black, J.) (“A health benefit plan ‘should be read to give effect to all its provisions

and to render them consistent with each other.’”) (quoting Gallo v. Moen Inc., 813

F.3d 265, 270 (6th Cir. 2016)). So, although Provident erred in first determining

that Dr. Bulas was not entitled to Residual Disability benefits, its decision on

appeal was—at least in this regard—not arbitrary and capricious.

Dr. Bulas next argues that Provident incorrectly identified the functional

visual requirements for diagnostic radiology. From the first vocational review,

Provident applied the following visual demands for diagnostic radiology to Dr.

Bulas’s claim:

Diagnostic reading/interpretation requires near acuity (i.e. clarity of

vision at 20 inches or less), ability to discern differences in

shape/shading or color.

Dr. Bulas argues that this is an inappropriate standard—indeed, that “there is a

world of difference between being able to read an eye chart and being able to

perform diagnostic radiology.” (ECF No. 54, PAGEID # 1981.) Dr. Bulas offered his

own statement and Dr. Rost’s statement to support his assertion on appeal that

visual acuity, alone, provides an incomplete representation of the visual demands

on a diagnostic radiologist. Dr. Bulas and Dr. Rost agree that, in addition to visual

acuity, some level of endurance is necessary to perform in the occupation—and that

element is missing from Provident’s analysis. Provident submitted Dr. Bulas’s

appeal materials to its vocational consultant, Mr. O’Kelley. Mr. O’Kelley’s report

reflects that he considered Dr. Bulas’s statement as “additional vocational

information,” but contains only a truncated half-sentence as to Dr. Rost’s statement.

(Admin. R., PAGEID # 1765 (“The appeal also contained the opinion of the visual

requirements of Diagnostic and International [sic] Radiologists from two physicians

which.”).) The report then abruptly concludes that the information submitted on

appeal “does not alter” the visual requirements—but offers no explanation or

reasoning.7 There is no indication whether Mr. O’Kelley in fact considered Dr. Rost’s

statement, whether he found the statements to be creditable and somehow

consistent with his conclusion, or whether he found them not creditable and for

what reason. This is not indicative of a deliberate and principled reasoning process.

Cf. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“Plan

administrators . . . may not arbitrarily refuse to credit a claimant’s reliable

evidence . . . .”).

Dr. Bulas also asserts that the medical opinion evidence Provident relied

upon to terminate his benefits lack indicia of reliability. First, he notes that Drs.

Antaki, Eisenberg, Kamjoo, and Michaelson are all retained by Provident and are,

thus, susceptible to bias favoring a non-disability finding. See id. at 832

(acknowledging that physicians retained by benefit plans “may have an incentive to

make a finding of ‘not disabled’”). Dr. Bulas does not offer evidence that the

7 For its part, Provident argues that Dr. Bulas failed to rebut the vocational

consultant’s findings because he does not offer an opinion by a vocational expert.

But Provident cites no case law establishing that a vocational expert’s opinion is the

only evidence that can (or should) affect a determination on vocational functional

requirements.

physician’s opinions were influenced by any such bias. But the Court notes that, in

addition to none of the four being independent, none of the four physicians

examined Dr. Bulas in-person. See Autran, 27 F.3d at 413 (noting that a plan

administrator’s reliance on “high-quality evaluations,” as contrasted with “rest[ing]

its conclusion on file reviews,” is an indicator of a reasoned decision-making

process); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir. 2005) (finding

that claim administrator’s “reliance on a file review does not, standing alone,

require the conclusion that [it] acted improperly” but “that the failure to conduct a

physical examination . . . may, in some cases, raise questions about the

thoroughness and accuracy of the benefits determination”). That fact is notable as

to Drs. Eisenberg and Michaelson, in particular:

Dr. Eisenberg. In his first consulting opinion, Dr. Eisenberg opined

that the record was “indeterminate” as to Dr. Bulas’s functional capacity and

that further testing “would assist in this determination.” Dr. Antaki then

asked Dr. Hutchins whether further testing had been considered. Dr.

Hutchins had not planned to conduct the suggested testing—and Dr. Antaki

did not request it or refer Dr. Bulas for a Provident-facilitated medical

examination. When Dr. Bulas’s file was then sent back to Dr. Eisenberg, he

agreed—without the benefit of any additional testing—that Dr. Bulas could

perform the duties of a diagnostic radiologist.

Dr. Michaelson. Dr. Michaelson reviewed complaints made on appeal

that Dr. Bulas suffered debilitating eye strain, fatigue, and headache when

he tried to rely only his left eye. Dr. Michaelson dismissed this complaint,

stating that “he can find no medical basis for why these symptoms should

occur.” Although Dr. Michaelson referred to Dr. Hutchins’s treatment notes

from June 14, 2021 (a follow-up from surgery at which it is not clear whether

the fact of, cause, or effect of these symptoms was broached), the opinion

would have been of higher “quality” and greater reliability if Dr. Bulas’s

functional visual capacity had been evaluated in-person.

This concern is amplified by the equivocal tone taken in portions of their opinions.

For example, Dr. Eisenberg states:

If the distortion or a double image in one eye is deemed to “interfere”

with the other, it could be adequately suppressed with fogging

techniques or the use of a Bangerter filter.

(emphasis added). And Dr. Michaelson opined:

[I]t is possible that Dr. Bulas’s best-corrected visual acuity in the

right eye could be improved significantly from the 20/40-2 recorded on

6/14/21, possibly improving his visual comfort/function to some

degree.

(emphasis added). Perhaps with an in-person examination, Drs. Eisenberg and

Michaelson would have been able to definitively determine whether a fogging

technique adequately suppressed interference with left-eye function, or whether

visual comfort/function could be improved. Cf. McDonald v. W. S. Life Ins. Co., 347

F.3d 161, 170–71 (6th Cir. 2003) (“The mere possibility that a participant in an

ERISA plan might be able to return to some type of gainful employment, in light of

overwhelming evidence to the contrary, is an insufficient basis upon which to

support a plan administrator’s decision to deny that participant’s claim for LTD

benefits.”).

Dr. Bulas next takes issue with Provident’s reliance on this statement from

Dr. Hutchins’s June 14, 2021 treatment notes:

He has adjusted to primarily using [left eye] and is overall happy with

his vision.

In his view, Provident takes this statement out of context and improperly uses it to

negate—or, worse, as cover to ignore—his consistent reports of difficulty with visual

functioning. The Court agrees. Drs. Antaki, Eisenberg, Kamjoo, and Michaelson all

point to this statement as support for their opinions. Provident also quotes it in its

appeal determination letter. But, at the time of the June 14, 2021 appointment, Dr.

Bulas was doing household chores, shopping for groceries, not reading—and

certainly not practicing radiology. So, the statement cannot reasonably support the

proposition that Dr. Bulas could use his left eye alone to perform the intensive,

demanding, and high-stakes work of reading and interpreting diagnostic imaging

studies. See Kramer v. Paul Revere Life Ins. Co., 571 F.3d 499, 507–08 (6th Cir.

2009) (finding a plan administrator’s decision to terminate a former OB/GYN’s

disability benefits to be arbitrary and capricious when the decision was based on

surveillance footage showing the claimant preparing a boat for sale, when such

activity is an inappropriate proxy for performing surgeries, particularly because “on

the day she worked on her boat, she placed only her own health at risk, but while

performing deliveries or surgeries, she was responsible for the life and health of her

patients”); see also Hanusik v. Hartford Life Ins. Co., No. 06-11258, 2008 WL

283714, at *5–6 (E.D. Mich. Jan. 31, 2008) (limiting the relevance of specific

evidence in making a benefit determination).

Finally, Dr. Bulas points out the conflict of interest inherent in Provident’s

dual-role as claims administrator and payor. As with the physician-reviewers’

alleged conflict, Dr. Bulas does not offer evidence that Provident’s decision was the

product of interested consideration. Nonetheless, “courts must consider that conflict

as one factor among several in determining whether the plan administrator abused

its discretion in denying benefits.” Cox v. Standard Ins. Co., 585 F.3d 295, 299 (6th

Cir. 2009).

If one considers arbitrary and capricious review to be a shield, each of the

transgressions discussed above leaves a dent. Individually, they may not amount to

much—but together, they pierce the defense. On this record, the Court finds that

Provident’s decision was not the result of a deliberate, principled reasoning process

and was, accordingly, arbitrary and capricious.

IV. CONCLUSION AND REMEDY

In view of the above, the Court finds that Provident’s decision to terminate

Dr. Bulas’s benefits under the Policy cannot stand. “In cases such as these, courts

may either award benefits to the claimant or remand to the plan administrator.”

Elliott v. Met. Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006). Remand is

appropriate for “further fact-finding to supplement . . . an incomplete record.”

Javery v. Lucent Tech., Inc. Long Term Disability Plan, 741 F.3d 686, 700 (6th Cir.

2014). It is inappropriate, however, to “afford[ ] the plan administrator a chance to

correct its reasoning for rejecting [p]laintiff’s application.” Id.

Dr. Bulas argues that he is entitled to an award of Total Disability benefits

under the Policy. Provident does not argue for or request remand. Dr. Bulas’s claim

does not require further fact-finding. Accordingly, Dr. Bulas is entitled to

reinstatement of Total Disability benefits under the Policy effective back to August

18, 2021.

Dr. Bulas’s Motion for Judgment on the Administrative Record is

GRANTED; Provident’s is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE