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Presi v. Ascension Health Aliance

United States District Court, E.D. Missouri, Eastern Division

March 14, 2019




         This matter is before the court on Defendants Ascension Health Alliance (“Ascension”), Ascension Long Term Disability Plan (“LTD Plan”), Ascension Short-Term Disability Plan (“STD Plan”), and Sedgwick Claims Management Services, Inc.'s (“Sedgwick”)(collectively “Defendants”) Motion for Summary Judgement filed November 6, 2018. (ECF No. 55). This matter is also before the Court on Plaintiff Jacqueline E. Presi's Motion for Judgement on the Administrative Record or in the Alternative Motion for Summary Judgement, filed November 6, 2018. (ECF No. 58). The Court will take up both motions together. The motions are fully briefed and ready for disposition.


         Plaintiff was employed by Alexian Brother's Health System (“Alexian”) as a Unit Secretary, which required clerical duties, reception functions, training new unit secretaries and other staff, and ensuring that the department operated effectively. (Defendants' Statement of Uncontroverted Material Facts (“Defendant Facts”) ¶ 22; and see, Plaintiff's Statement of Uncontroverted Material Facts (“Plaintiff Facts”) ¶ 5). At all times relevant hereto, Plaintiff was an employee of Alexian.[2] (Plaintiff Facts ¶ 4). Alexian by written agreement adopted a welfare benefit plan through Acension, which offered short-term disability benefits (“STD benefits”) and long-term disability benefits (“LTD benefits”) for the benefit of some or all of its employees including the Plaintiff. (Plaintiff Facts ¶¶ 1, 8). Ascension delegated the discretionary authority to make claims determinations to Sedgwick, the Claims Administrator. As such, Sedgwick possessed discretionary authority to make benefit determinations. (Defendant Facts ¶¶ 14-15, citing AR AH1226, AR AH1288).

         Plaintiff filed the present lawsuit on November 22, 2016, seeking STD benefits pursuant to the STD Plan. (ECF No. 55 ¶1). Plaintiff amended her claim on May 7, 2018, to include a claim for LTD benefits pursuant to the LTD Plan.[3] Id.

         I. Plaintiff's STD claim

         Plaintiff first missed work due to her alleged Disability on or about May 20, 2015.[4](Defendant Facts ¶ 23). Plaintiff alleges that she has a history with osteochondroma (benign tumors of the bones), muscle spasm, shoulder pain, and anxiety disorder, and had some osteochondroma surgically removed from her shoulder in May of 2012.[5] (Defendant Facts ¶ 23, citing AR AH0205). Plaintiff submitted a claim for STD benefits at which time Sedgwick requested medical documentation to evaluate her claim. (Defendant Facts ¶ 24, citing AR AH0156-165). The STD Plan requires that Plaintiff submit proof, in the form of objective medical evidence to substantiate the existence of Plaintiff's alleged Disability. (Defendant Facts ¶¶ 9-10, citing AR AH0074).

         The STD Plan defines “disability” and “disabled” for the purposes of STD benefits as follows:

[D]ue to an Injury or Sickness which is supported by objective medical evidence (a) the Participant requires and is receiving from a Licensed Physician regular, ongoing, medical care and is following the course of treatment recommended by the Licensed Physician; and (b) either (1) or (2) below is satisfied. (1) the Participant is unable to perform each of the Material Duties[6] of the Participant's Regular Occupation;[7] or (2) while unable to perform each of the Material Duties of the Participant's Regular Occupation on a full-time basis and while eligible for Rehabilitative Employment, (A) the Participant is performing at least one of the Material Duties of Regular Occupation or any other work or service on the part-time or full time basis; and (B) the Participant's earning from work while Disabled does not exceed 80% of the Participant's Basic Weekly Earnings.

(Defendant Facts ¶ 6).

         a. Plaintiff's Initial STD Claim

         In September of 2014, the Plaintiff visited the emergency room due to severe headache with facial numbness, and a CT scan was performed. The CT scan was normal and the Plaintiff was discharged the next day. (Defendant Facts ¶29, citing AR AH0189-93). The records state that Plaintiff had “complete near resolution of her migraine, was able to tolerate her meal, ambulate, and tolerate light noise without difficulty. Patient was then released from the hospital discharged home.” (AR AH0189). On December 12, 2014, Plaintiff visited Dr. Danielle Anderson[8] for a follow-up after her hospital visit to discuss persistent facial pain. Dr. Anderson prescribed Tegretol RX tabs (seizure control medicine), and instructed the Plaintiff to continue her other medications including Lyrica (pain medication to treat pain caused by nerve damage), Norco (pain medication), and Mortin (pain medication). (Defendant Facts ¶ 30, citing AR AH0197-99).[9] Dr. Anderson in her record states:

The patient tells me that it onsent of the left maxillary region shooting/stabbing pains May 2014 at the time she was diagnosed with a sinus infection treated by an ENT, Dr. Dreitch with antibiotics. This did resolve the pain temporarily, but pain resumed, she describes the pain as lightning bolts in nature, 8/10 severity at times, occurring on a daily basis, episodically, throughout the day but still severe to this date. She has seen Dr. Rosenblatt, neurosurgery and diagnosed her with a left-sided atypical facial pain and instructed her to come here for medical treatment….she denied any weakness of face or extremities.

(AR AH0197). Dr. Anderson additionally determined that the Plaintiff had, “no drift or asymmetry in the upper or lower extremities; strength symmetrical and full in all four extremities…range of motion at the left shoulder joint is normal.” (AR AH0198).

         On December 30, 2014, Plaintiff visited Dr. Anderson again and stated that the new medication provided good relief for her facial pain. (Defendant Facts ¶ 31, citing AR AH0194-96). The record goes on to state that the Plaintiff experiences some “break through pain” and that the “Patient does have some dizziness and lightheadedness on her current medication regimen but is slowly getting used to it. She denies any new focal neurological deficits.” (AR AH0194).

         On May 20, 2015, and on June 3, 2015, the Plaintiff visited Dr. Sood for complaints of shoulder pain and for assistance completing paperwork for disability and FMLA leave. (Defendant Facts ¶ 34, citing AR AH0210-15). Dr. Sood noted that on May 20, 2015, the Plaintiff complaint included pain management. Dr. Sood stated that,

Patient uses strong opiate pain medications and muscle relaxant to control her pain and muscle tightness. The side effects impair her ability to perform her work in a safe and effective manner. The over use of her shoulder and arms with repetitive movement can exacerbate her condition and is presenting today for further evaluation.

(AR AH0213).

         Sedgwick also received records from Dr. Sanjay Patari's[10] office which reflected that on June 10, 2015, the Plaintiff complained of pain in her left scapula. (Defendant Facts ¶ 25, citing AR AH0184-88). Plaintiff received six series of corticosteroid injections from one of her other treating physicians, Dr. Rajiv Sood. Id. Dr. Patari's physical examination indicated some crepitus (grating, crackling or popping sounds) in Plaintiff's shoulder and “some atrophy of the surrounding fat musculature.” (AR AH0167). Dr. Patari recommended that the Plaintiff receive corticosteroid between the scapula and the ribs as well as physical therapy to improve her strength. Id.

         On July 13, 2015, Sedgwick spoke with the Plaintiff who explained her medical history with osteochondromas and noted prior medical issues including glaucoma and migraines. The Plaintiff further stated that although she was unable to vacuum, lift or clean, she could do lots of things with her left arm and could write with both hands. (Defendant Facts ¶ 31, citing AR AH0201-03). On July 20, 2015, Dr. Sood completed an Attending Physician Statement, in which he made an objective finding of osteochondroma and subjective systems of pain, muscle spasms, increased anxiety and weakness. (Defendant Facts ¶ 33, citing AR AH0205). Dr. Sood noted that the Plaintiff was ambulatory but also noted his belief that the Plaintiff could not return to her regular occupation without restrictions or without restricted light duty. (Defendant Facts ¶ 33, citing AR AH0205). In his Attending Physician Statement, Dr. Sood marked that on May 20, 2015, he advised the Plaintiff to discontinue her job duties. Id.

         Nurse Case Manager Jennifer Jansen RN, [11] reviewed the medical documentation and found Dr. Sood's examination to be normal with no indication of limited range of motion or decreased strength resulting from Plaintiff's complaints of pain. (Defendant Facts ¶ 33, citing AR AH1188-89). Nurse Jansen further found that there was no swelling or muscle spasms, and no increase in medications over the last three appointments with Dr. Sood. The Plaintiff had only received refills on her medication. Nurse Jansen also reviewed the diagnostic imaging contained in the Plaintiff's claim file and determined that all of the tests were unremarkable and within normal limits or unchanged from previous imaging. Based on her review, Nurse Jansen recommended that STD benefits be denied. Id.

         On July 31, 2015, the Plaintiff was notified by letter that her claim for STD benefits had been denied. (Defendant Facts ¶ 36, citing AR AH0230-31). In its denial letter, Sedgwick explained that its decision to deny Plaintiff's claim was based on the physical examinations of Dr. Sood between May and July of 2015, which appeared normal and did not indicate a limited range of motion or decreased strength, swelling or spasm and because the Plaintiff did not receive any dosage increases on her medications. Sedgwick looked at the MRI, EKG and CT scans provided, all of which were in normal ranges, unremarkable or did not show a change from prior imaging. (Defendant Facts ¶ 37). Sedgwick also relied upon a record from Dr. Patari, from June 10, 2015 which reflected that a recent CT scan showed no obvious impingement or recurrence of osteochondroma of Plaintiff's scapula. Id., citing AR AH0230-31. The letter also advised the Plaintiff of her right to appeal. Id.

         b. Plaintiff's Appeal of Her STD Claim

         On August 6, 2015, the Plaintiff requested a copy of her claims file which was provided to her on August 25, 2015. (Defendant Facts ¶ 38). On January 26, 2016, the Plaintiff appealed the initial denial of her STD benefits and submitted her medical records, biographical information, and curriculum vitae documentation for her providers. (Defendant Facts ¶¶ 39-40, citing AR AH0454-064). Additional documentation included records from Dr. Sood and Dr. Chintalben Shah for visits in 2012 and 2013 for shoulder pain and steroid injections. (Defendant Facts ¶ 41, citing AR AH0539-553). On April 12, 2015, Dr. Sood recommended that Plaintiff undergo a functional capacity evaluation to which the Plaintiff declined.[12] (Defendant Facts ¶ 43, citing AR AH0531-33). On August 12, 2015, Plaintiff visited Dr. Sood again to review FMLA papers and was physically examined. The examination was normal except for bilateral shoulder popping in Plaintiff's upper extremities and facial pain. (Defendant Facts ¶ 44, citing AR AH0520-21). Dr. Sood notes that “[p]atient has had multiple growths on her shoulder that keep growing back.” (AR AH0521).

         On August 21, 2015, the Plaintiff saw Melissa Swierad, APN for continued headaches and shoulder pain; and to complete paperwork for time off of work. At this appointment Ms. Swierad physically examined the Plaintiff and noted normal findings except for shoulder pain and popping. (Defendant Facts ¶ 45, citing AR AH0514-16). On September, 9, 2015, the Plaintiff went back to Dr. Sood and sought further evaluation. Dr. Sood's report stated that the Plaintiff is “severely impaired, can't live with the pain but can't live with the side effects caused by the pain medications. It was recommended that Plaintiff to follow up with her rheumatologist and pain specialist for chronic pain.” (Defendant Facts ¶ 46, citing AR AH0514-16).

         A letter from Dr. Bigol dated January 22, 2016, indicated that on December 10, 2015, the Plaintiff came in for persistent left scapular pain, radiating to the left shoulder and neck region. (AR AH0494). The letter contains a review of Plaintiff's conditions. Dr. Bigol had been treating the Plaintiff for osteochondroma of the left scapula which was resected in May of 2012. Dr. Bigol's letter explains that the Plaintiff experienced a complication of “reversible mild brachial plexus traction injury, manifested by left shoulder numbness and tingling…[and] snapping scapula which worsened and persisted after the procedure.” Dr. Bigol states that:

She continued to be symptomatic of left periscapular pain, which was described as sharp and radiating to the left shoulder and left neck areas. It is also accompanied with constant tingling and numbness, and with the sensation of muscular fatigue and upper extremity instability. This is more apparent during repetitive movement. It results in her dropping things due to momentary loss of movement control, loss of strength and weakness. The pain is felt at all times even at rest and becomes worse with activities. She had undergone several steroid injections without success. Treatment modality such as local heat, topical over the counter medications and massage offered minimum relief. The only medication that helps are narcotics…[t]his has allowed her to perform the activities of daily living but has limitations due to side effects, such as drowsiness. Over time she required higher doses of medication with increasing side effects…this is not compatible for her to maintain livelihood.

(AR AH0494). Dr. Bigol also included his physical examination findings while the patient was on pain medication. Upon physical examination Plaintiff was deemed to have full range of motion of the left shoulder with pain and clicking or snapping sounds and experienced localized pain around the surroundings of left scapula. (Defendant Facts ¶ 51, citing AR AH0504; and see, AR AH0494). The documentation from Dr. Bigol also referenced an initial evaluation at Alexian Rehabilitation, at which time it was determined that the Plaintiff, not on pain medication during the evaluation, experienced decreased range of motion and pain upon movement. (AR AH0494; but see, Defendant Facts ¶ 51 citing, AR AH0504). These records state that medical and surgical treatments have not been successful and that the Plaintiff's “complicated osteochondroma is a debilitating illness. It limits her control and ability to perform the lightest duties inclusive of her left upper extremity and movements requiring pivoting at the lumbar (abdomen or lower spine), thoracic (mid-spine) and cervical spine (neck) regions with associated pain” the Plaintiff “would have difficulty functioning with activities of daily living and will be unable to fulfill her professional duties at work” and her condition is likely to be permanent with the only viable treatment being pain control. (Defendant Facts ¶ 51, citing AR AH0504).

         On December 15, 2015, the Plaintiff sought a second opinion from Dr. Gregory Drake regarding the pain in her left neck, shoulder and periscapular region. (Defendant Fact ¶ 47, citing AR AH0485-87). At that appointment the Plaintiff states that her,

“[p]ain is severe with a rating of 10/10. She describes the symptoms as constant, sharp, stabbing, throbbing, aching, pressure and radiating. The symptoms worsen as the day progresses. The symptoms are worse in the evening. Additional symptoms include numbness, stiffness, tingling, weakness, swelling, instability, fatigue, ROM (range of motion) limitation, radiation of pain on the involved side, sleep disturbances and loss of feeling. Since the onset, the symptoms have been worsening. Symptoms are made worse with rest, activity, lifting and movement.”

(AR AH0485). Upon examination, Dr. Drake notes that, “[t]here is no deformity, swelling ecchymosis (bruising), or atrophy present, ” that Plaintiff's right and left neck were pain free with a full range of motion, but there was tenderness in the left bicipital groove but no swelling, ecchymosis or deformity. Dr. Drake goes does note that Plaintiff experiences pain with 160 degrees of right abduction and with 90 degrees of right external rotation. Id. Dr. Drake stated that there was no evidence of rotator cuff tear, nor was this a recurrence of the Plaintiff's osteochondroma. (Defendant Facts ¶ 47, citing AR AH0485-87). Dr. Drake recommended physical therapy and further recommended dry needling for periscapular pain. Id.

         On January 5, 2016, the Plaintiff visited Dr. Matthew Jiminez with complaints of pain and popping in her shoulder and cervical spine. (Defendant Facts ¶ 48, citing AR AH0505-07). Dr. Jiminez observed the popping on range of motion, but also observed a full range of motion. Id. Dr. Jiminez ordered x-rays which showed that the glunohumeral joint was well located and confirmed Plaintiff's diagnosis of multiple osteochondromatosis. Id. On January 12, 2016, Plaintiff described her pain as “involving mainly the L (left) periscapular region radiating to L (left) shoulder and neck area” which was “reduced by narcotics from 10/10 to tolerable intensity of 4-5/10…nothing helps her except medications.” (AR AH0894). The Plaintiff then saw Dr. Jay Joshi on January 20, 2016, for left shoulder pain aggravated by weather. Dr. Joshi prescribed left thoracic medial beta block injections. (Defendant Facts ¶ 49, citing AR AH0499-500).

         On February 10, 2016, Plaintiff saw Dr. Joshi for a post procedure follow up. Her diagnosis at this time was, unspecified thoracic, thoracolumbar, and lumbosacral intervertebral disc disorder; pain in the thoracic spine, intercostal neuropathy, other disorders of the peripheral nervous system, osteochondropathy, unspecified of unspecified site, hyperesthesia, neuropathic pain, intercostal neuralgia, and osteochondritis. (AR AH0899-900). Plaintiff reported that her pain was felt when using her left arm and that right scapula popping was extremely painful, she stated that actions such as bending backwards, exercise, lifting ...

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