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Moncak v. Liberty Life Assurance Co. of Boston

United States District Court, M.D. Pennsylvania

March 31, 2017

CAROL MONCAK, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge

         This is an action for benefits under the Employment and Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. This matter is before the Court on the parties' cross-motions for summary judgment. (Doc. 17; Doc. 20). For the reasons that follow, we will grant the defendant's motion and deny the plaintiff's motion.

         I. Background

         The material facts of this case are largely undisputed.

         The plaintiff, Carol Moncak, worked for Cinram Manufacturing Company LLC as a DVD Mold Operator. As a full-time non-union employee of Cinram Manufacturing LLC, she was insured under a group disability income policy (the “Policy”), bearing policy number GD/GF3-830- 505658-01, issued by the defendant, Liberty Life Assurance of Boston (“Liberty”), and effective January 1, 2005. (Doc. 10-1). The Policy provides long-term disability benefits to full-time employees of Cinram (U.S.) Holdings, Inc. (“Cinram”) and affiliated companies, including Cinram Manufacturing Company LLC.

         Moncak ceased work on February 24, 2010, because of low back and leg pain. She received short-term disability benefits under the Policy during a 180-day elimination period[1] before becoming eligible for payment of long-term disability benefits on August 23, 2010. She then received long-term disability benefits for two years under the Policy's “own occupation” period of disability coverage. On August 7, 2012, after reviewing Moncak's medical treatment records and obtaining a peer review report from a consulting physician, Liberty issued a determination discontinuing Moncak's benefits effective August 23, 2012, on the ground that she was not disabled under the Policy's “any occupation” period of disability coverage. Moncak pursued an administrative appeal of this decision, which was denied on March 6, 2013, following additional review of her medical records by a consulting nurse.

         A. The Policy

         The Policy provides a general definition of “disability, ” which states:

“Disability” or “Disabled” means that during the Elimination Period and the next 24 months of Disability the Covered Person, as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own Occupation; and . . . thereafter, the Covered Person is unable to perform, with reasonable continuity, the Materials and Substantial Duties of Any Occupation.

(Doc. 10-1, at 12). “‘Own Occupation' . . . means the Covered Person's occupation that he was performing when his Disability . . . began.” (Id. at 15). “‘Any Occupation' means any occupation that the Covered Person is or becomes reasonably fitted by training, education, experience, age, physical and mental capacity.” (Id. at 11). “‘Material and Substantial Duties' . . . means responsibilities that are normally required to perform the Covered Person's Own Occupation, or any other occupation, and cannot be reasonably eliminated or modified.” (Id. at 14).

         If the covered person is deemed “Disabled” under the Policy, Liberty is obligated to pay her a monthly benefit equal to 60% of her monthly earnings from Cinram, less any other earnings or benefits, such as workers compensation or Social Security disability benefits. (Id. at 9).

         The Policy also provides that “Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. Liberty's decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding.” (Doc. 10-2, at 24).

         B. The Plaintiff's Disability Claim

         Moncak ceased working on February 24, 2010, due to low back and leg pain. Over the course of the preceding three months, she had presented to her treating orthopedic surgeon, Alan P. Gillick, M.D., complaining of increasing and “relentless” back and leg pain, which had been causing her to miss work intermittently. (Doc. 10-9, at 27; Doc. 10-12, at 11). Moncak reported “pain radiating down the right leg into the toes and aching in both legs.” (Doc. 10-9, at 27). Upon physical exam, flexion and extension caused increased pain, and her straight leg raising was positive for increased back pain. (Doc. 10-9, at 27; Doc. 10-12, at 11). Based on medical imaging and a physical examination, Dr. Gillick found “endstage narrowing of the L5-S1 disk space” and “advanced disk degeneration L5-S1 with a central protrusion, ” and that Moncak “would probably be a candidate for an L5-S1 fusion.” (Doc. 10-9, at 27; Doc. 10-12, at 11).

         On April 20, 2010, Moncak underwent surgery, performed by Dr. Gillick. (Doc. 10-12, at 13-14). Dr. Gillick performed an anterior discectomy and interbody fusion, L5-S1, using anterior interbody cage and bone morphogenetic protein, and a bilateral L5 root decompression, instrumented L5-S1 fusion using bone morphogenetic protein and right posterior iliac crest graft. (Id.). She was discharged from the hospital three days later, on April 23, 2010. (Doc. 10-14, at 27-28). She presented for a follow-up appointment with Dr. Gillick on June 9, 2010. (Doc. 10-12, at 15). Dr. Gillick noted that she was “symptomatically doing relatively well” six weeks out from surgery. (Id.).

         On June 24, 2010, Liberty advised Moncak by letter that she had been determined eligible to receive long-term disability benefits under the Policy's “Own Occupation” period of disability, effective upon expiration of the Elimination Period on August 23, 2010. (Doc. 10-14, at 31-33).

         On July 19, 2010, Moncak presented to Dr. Gillick for a follow-up appointment. (Doc. 10-12, at 16). Dr. Gillick noted that Moncak “is three months out and seems to be doing extremely well.” (Id.).

Her exam shows well healed incision, no tenderness. No swelling, no pain with gentle movements, flexion, extension with restrictions of the brace. Straight leg raising is negative. Motor and sensation are normal. Reflexes are and symmetrical. Good pulses. No skin changes.

(Id.).

         On September 22, 2010, Moncak presented to Dr. Gillick for a follow-up appointment. (Doc. 10-12, at 17). Dr. Gillick noted that, five months out from surgery, she was “doing well.” (Id.). Moncak reported “somewhat of an achy discomfort in her back, ” and continued Vicodin use because without it, “her pain will start to escalate.” (Id.).

Her physical exam shows a healed incision, anteriorly and posteriorly. There is no tenderness. There is no pain with gentle flexion and extension type movements within the restrictions of the brace. Her straight leg raising is negative. Motor and sensation of the lowers are normal. Reflexes are and symmetric. Good pulses. No skin changes.

(Id.). Dr. Gillick advised her to start weaning herself out of the back brace she had been wearing since the surgery, maintaining a “cautiously increasing activity level.” (Id.).

         On December 1, 2010, Moncak presented to Dr. Gillick for a follow-up appointment. (Doc. 10-12, at 18). Dr. Gillick noted that, seven months out from surgery, she was “doing relatively well.” (Id.). Moncak reported that she still had “a fair amount of discomfort in her back. Some days she is good and some days she feels that she is still pretty limited.” (Id.).

Her physical exam shows a well healed incision. There is no swelling, redness, minimal tenderness. There is some discomfort with flexion and extension movements. Her straight leg raising is negative. Motor and sensation of the lowers are normal. Reflexes are and symmetric. Good pulses. No skin changes. She again no longer gets the pain radiation to her legs.

(Id.). Dr. Gillick started her on physical therapy. (Id.). Over the course of the next six months, Moncak participated in a physical therapy program, initially meeting with a therapist several days a week.

         On February 7, 2011, Moncak presented to Dr. Gillick for a follow-up appointment. (Doc. 10-12, at 19). Dr. Gillick noted that “[s]ymptomatically she seems to be doing well. She said she is a bit improved even a little more from the last visit.” (Id.).

Her physical exam shows a healed incision. There is minimal tenderness, minimal discomfort with flexion and extension and rotational movements. Her straight leg raising in negative. Motor and sensation of the lowers are normal. Reflexes are and symmetric. Good pulses. No skin changes.
X-rays show intact instrumentation, good alignment and good healing. She will finish up the physical therapy/ home exercise program.

(Id.). Dr. Gillick advised her to return for a follow-up appointment in two or three months, “hoping at that point that she can consider some type of modified return to work.” (Id.).

         On April 18, 2011, Moncak presented to Dr. Gillick for a follow-up appointment. (Doc. 10-12, at 20). Dr. Gillick noted that, one year after her surgery, she was “symptomatically doing reasonably well, ” though “she still has some aching discomfort in her back and a fairly constant aching in her legs. The aching in her back is actually worse when she walks, but if she walks with a cart . . . she has no pain at all.” (Id.).

Her physical exam shows healed incisions, anterior and posterior. There is some posterior midline tenderness. There is some discomfort with flexion and extension movements of the lumbar spine. Her straight leg raising is negative. Motor and sensation of the lowers are normal. Reflexes are and symmetric. Good pulses. No skin changes.
X-rays show intact instrumentation, good alignment and good healing.

(Id.). Dr. Gillick advised Moncak to continue to “cautiously increase her activity level” and return for a follow-up in six months. (Id.).

         On June 1, 2011, Dr. Gillick completed a Liberty Mutual Restrictions Form, stating that she was recovering from spine surgery, she should cautiously increase her activity level, she was taking Norco for pain, and she was not capable of working. (Doc. 10-12, at 3).

         On July 7, 2011, Moncak presented to her treating family physician, Thomas G. Majernick, D.O., with complaints of constant leg pain despite her pain medication. (Doc. 10-11, at 36-38). Dr. Majernick noted that Moncak walked with “a labored gait.” (Id.). He ordered an MRI of the lumbar spine and an arterial duplex lower extremity bilateral. (Id.).

         On July 12, 2011, Moncak underwent the prescribed medical imaging procedures. (Doc. 10-7, at 23-26; Doc. 10-11, at 46). According to the radiologist's report, the MRI revealed:

There are prominent focal concavities at ¶ 1 and L2 superior endplates suggesting chronic focal intervertebral herniations. . . . At ¶ 5/S1, there is facet and ligamentum flavum hypertrophy but no definite canal or foraminal stenosis. . . . Comparison with prior study shows stable superior endplate deformities at ¶ 1 and L2 and interval lower lumbar surgical changes.

(Doc. 10-11, at 46). The radiologist concluded: “Changes of interbody and posterior fusion at ¶ 5-S1. Mile levoscoliosis. No [herniated disc] or significant stenosis. Shallow spondylosis and bulging as above. Stable chronic superior endplate deformities at ¶ 1 and L2.” (Id.). A different radiologist read the arterial ultrasound, which revealed:

Bilateral resting [ankle/brachial indexes] suggest mild disease on the right side measuring 0.93 and moderate disease on the left side measuring 0.88.
The right lower extremity shows mild atherosclerotic wall changes. An increase in velocities in the right common femoral artery and proximal superficial femoral artery suggests a 50-75% stenosis and a 30-49% stenosis in the mid superficial femoral artery.
The left lower extremity shows mild atherosclerotic wall changes. An increase in velocities in the left common femoral artery suggests a 50-75% stenosis and a 30-49% stenosis in the proximal superficial femoral artery.

(Doc. 10-7, at 23-26).

         On August 8, 2011, Moncak presented to Dr. Majernick for a follow-up appointment with respect to her leg and back pain. (Doc. 10-11, at 39- 41). Dr. Majernick observed that Moncak walked with “a normal gait for age.” (Id.). Dr. Majernick referred her to a ...


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