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Hounihan v. Procter & Gamble Disability Committee

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

June 20, 2019




         This is an action under Section 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for disability benefits under an employer sponsored disability benefit plan, and for breach of fiduciary duty pursuant to Section 502(a)(3), 29 U.S.C. § 1132(a)(3). This matter is before the Court on the cross motions for summary judgment filed by Plaintiff Charlie Craig Hounihan (ECF No. 32) and by Defendants The Proctor & Gamble Disability Committee and The Proctor & Gamble Company (collectively, “P&G”) (ECF No. 39).[1] For the reasons set forth below, P&G's motion for summary judgment will be granted, and Plaintiff's motion for summary judgment will be denied.


         This case arises out of the denial of long-term disability benefits. The following facts are undisputed. Plaintiff was employed by P&G as a technician on the Bounty paper towel line at the P&G Cape Girardeau, Missouri plant. P&G provides disability benefits through a self-funded ERISA plan, and Plaintiff was enrolled in the P&G U.S. Short-Term Disability Plan (“STD Plan”) and the P&G Long-Term Disability Plan (“LTD Plan”) (collectively, “the Plan”). Local Review Boards have authority and responsibility to review and decide initial benefit claims under the Plan, as well as to decide whether participants continue to be entitled to disability income benefits under the Plan. Nurse case managers review claims for disability income benefits under the Plan and make recommendation regarding whether a claimant is entitled to benefits.

         The Disability Committee is the Plan's named fiduciary and is responsible for reviewing and making all final appeal decisions concerning benefit claims under the Plan. The Plan may require a participant to undergo an independent medical examination (“IME”) or a functional capacity evaluation (“FCE”) to determine whether a participant is or continues to be disabled and entitled to disability income benefits under the Plan.

         The Plan provides that it is the participant's burden to establish whether he or she is disabled. “Partial disability” and “total disability” must be based on objective medical evidence. Disability income benefits will not be paid to a participant for any period during which the participant fails to provide satisfactory proof that the participant is and continues to be disabled.

         The Plan defines “Total Disability” as follows:

“Total Disability” means a mental or physical condition resulting from an illness or injury which is generally considered totally disabling by the medical profession and for which the participant is receiving regular recognizable treatment by a qualified medical professional. Usually, total disability involves a condition of such severity as to require care in a hospital or restriction to the immediate confines of the home.

ECF No. 30-7 at 15. The Plan defines “Partial Disability” as follows:

“Partial Disability” means a mental or physical condition resulting from an illness or injury because of which the participant is receiving medical treatment and cannot perform the regular duties of his or her job, but can perform other roles at the same site or other jobs outside the Company. Thus, a partially disabled participant is not necessarily prevented from performing useful tasks, utilizing public or private transportation, or taking part in social or business activities outside the home.

Id. If a participant is partially disabled based on objective medical evidence, the participant may receive disability income benefits for a maximum of 52 weeks during his or her entire participation in the Plan.

         In the fall of 2012, Plaintiff began experiencing severe pain in his hip and knee. Plaintiff's primary care physician, Robert Tipton, M.D., ordered diagnostic testing and indicated that Plaintiff could not return to work. Plaintiff began receiving total disability benefits under the Plan, effective September 19, 2012.

         Jimmy Bowen, M.D., treated Plaintiff and began a course of pain management for pain radiating in Plaintiff's right hip, buttocks, and lower back. On January 10, 2013, Dr. Bowen released Plaintiff to return to work with the restrictions of light work. On February 11, 2013, the Cape Girardeau Reviewing Board (“Reviewing Board”) notified Plaintiff that he would begin receiving payments under the Plan as partially disabled, effective January 10, 2013, because Plaintiff's department did not have work available that could accommodate his restrictions. Later, Plaintiff was determined to be totally disabled under the Plan, effective February 5, 2013.[2]

         On May 9, 2013, David King, M.D., an orthopedic surgeon, diagnosed Plaintiff with a femoral acetabular impingement and labral tear with parent label cyst. On June 10, 2013, Plaintiff underwent a right hip arthroscopic femoroplasty and acetabulosplasty for impingement with labral tear repair. He was re-admitted to the hospital on June 22, 2013, due to an infected right hip. Thereafter, Kurt Merkel, M.D., performed an emergency irrigation and debridement of the right hip to treat the infection.

         Following surgery, Plaintiff continued to experience pain in his right hip. He underwent aspirations of the right hip and several irrigation and debridement procedures. In April 2015, Plaintiff had total hip replacement surgery and began treating with Christopher Mudd, M.D., an infectious disease specialist. Dr. Mudd opined that the infection from the original hip surgery was never fully cleared and that Plaintiff's hip implant should be removed. Thus, on May 6, 2015, Plaintiff's hip replacement was removed, and he underwent an irrigation and debridement procedure. On December 11, 2015, Plaintiff underwent his last total right hip replacement surgery. Overall, Plaintiff endured 17 surgical procedures on his hip, including several irrigation and debridement procedures, between 2013 and 2016.

         On June 21, 2016, a progress note from Dr. Merkel indicated that Plaintiff, six months after his most recent hip replacement surgery, “seem[ed] to be getting along well.” ECF No. 18-1 at 145. Dr. Merkel noted that Plaintiff reported no significant pain, but that stiffness in the hip limited his motion and caused discomfort. Dr. Merkel opined that, overall, Plaintiff “seems to be doing well.” Id.

         On July 29, 2016, a nurse case manager requested that Plaintiff submit to an IME based on Dr. Merkel's progress note. On September 6, 2016, Matthew W. Karshner, M.D., performed an IME of Plaintiff. Dr. Karshner's IME report states that Plaintiff went on leave in September 2012 and had not returned to work; lived at home; and was able to drive, get groceries, carry grocery bags, run errands, pick up light items, don socks, and walk up fifteen steps at a time. Dr. Karshner details Plaintiff's medical history and noted that Plaintiff walks with a limp favoring the right side, although the limp was slight in nature. He concluded that Plaintiff was not totally disabled, but rather partially disabled as of June 21, 2016, the date of his last visit with Dr. Merkel. Dr. Karshner based his conclusion on Plaintiff's medical records and a physical examination, which indicated mild impairments. Dr. Karshner also concluded the following:

The following restrictions are permanent given the hip joint replacement. Mr. Hounihan is limited to a 25 pound lift from floor to waist occasionally, 50 pounds waist to shoulder occasionally, 50 pounds above the shoulder, occasionally. He is able to carry 30 pounds for up to 200 feet occasionally. His trunk is not to bend below the waist as he only flexes 88 degrees at the right hip. He can bend occasionally to the waist, however. Squatting can be achieved half the distance, again due to limitations in hip flexion. He has no limitations for ambulation. He should be able to ascend and descend 1 flight of 15 steps at least twice an hour, but is not to climb ladders. There are no limitations for sitting, and no limitations regarding hearing or vision.

ECF No. 18-1 at 165. Dr. Karshner then recommended that Plaintiff be placed on a transitional work schedule.

         On October 3, 2016, P&G notified Plaintiff that he was again partially disabled under the Plan, and he would resume receiving payments under the Plan as a partially disabled participant beginning September 23, 2016. The letter advised Plaintiff that he had received disability benefits as a partially disabled participant for the periods of January 30, 2008 through May 2, 2008, and January 10, 2013 through February 4, 2013. Thus, 17 weeks of partial disability benefits had been exhausted, leaving Plaintiff with a total of 35 weeks of partial benefits remaining.

         On December 13, 2016, a progress note from Dr. Merkel indicated that approximately one year after Plaintiff's hip replacement surgery, Plaintiff was “getting along very well.” ECF No. 18-8 at 312. Dr. Merkel noted that Plaintiff was fully ambulatory without a cane or ambulatory aid, and Plaintiff reported he was back to full activities with no difficulty.

         On March 27, 2017, Plaintiff appealed the October 3, 2016 letter finding partial disability to the Disability Committee and requested additional time to supplement the record. Thereafter, Plaintiff submitted his formal appeal, arguing that the restrictions listed in the October 3, 2016 letter did not originate from his treating physician, but rather were designed by Dr. Karshner; that Dr. Karshner was not independent because he was paid by P&G to examine Plaintiff; that Dr. Karshner did not review 3, 722 pages of ...

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