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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16935 Non-Argument Calendar ________________________
D.C. Docket No. 8:15-cv-01703-VMC-TGW
KRISTIAN HORNELAND,
Plaintiff - Appellant,
versus
UNITED OF OMAHA INSURANCE COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 17, 2017) Case: 16-16935 Date Filed: 11/17/2017 Page: 2 of 28
Before MARCUS, WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Kristian Horneland (“Plaintiff”) sued United of Omaha Life Insurance
Company (“Defendant”) under the Employee Retirement Income Security Act
(“ERISA”) for denying Plaintiff long term disability benefits on the grounds that
Plaintiff was either not disabled or, if he was disabled, his disability was the result
of a pre-existing condition. The parties filed cross-motions for summary judgment
solely on the issue of whether the pre-existing condition exclusion applied, and the
district court entered judgment for Defendant. Plaintiff moved to alter or amend
the court’s findings of fact or judgment, but the district court denied the motion.
Plaintiff appealed the district court’s rulings on both summary judgment and the
postjudgment motion. After thorough consideration of both the record and the
parties’ briefs, we conclude that there are genuine issues of material fact that
preclude entering summary judgment in favor of either party. Accordingly, we
REVERSE the district court’s entry of summary judgment for Defendant,
AFFIRM the district court’s denial of summary judgment to Plaintiff, DENY AS
MOOT Plaintiff’s motion to alter or amend findings of fact or judgment, and
REMAND for further proceedings.
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BACKGROUND
On March 12, 2012, Plaintiff was hired as a real estate manager for
Thornton’s, Inc., a gasoline and convenience store chain. As part of his
employment, Plaintiff received both short term and long term disability coverage
under Defendant’s insurance plans. Both plans are governed by ERISA. Although
his employment began on March 12, 2012, his long term disability coverage did
not begin until he had completed twelve months of employment (disability
coverage began “on the day following completion of 12 months of Active
Employment,”); that is, it did not begin until March 12, 2013.
In addition, the long term disability policy includes a Pre-existing
Conditions Exclusion that states:
Pre-existing Conditions
We will not provide benefits for Disability:
(a) caused by, contributed to by, or resulting from a Pre-existing Condition; and (b) which begins in the first 12 months after You are continuously insured under this Policy
A Pre-existing Condition means any Injury or Sickness for which You received medical treatment, advice or consultation, care or services including diagnostic measures, or had drugs or medicines prescribed or taken in the 3 months prior to the day You become insured under this Policy.
“Injury” and “Sickness” are defined as:
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Injury means an accidental bodily injury which is the direct result of a sudden, unexpected and unintended external force or element, such as a blow or fall, that requires treatment by a Physician. It must be independent of Sickness or any other cause, including, but not limited to, complications from medical care. Disability due to such injury must begin while You are insured under the Policy. Injury does not include elective or cosmetic surgery or procedures, or complications resulting therefrom.
Sickness means a disease, disorder or condition, including pregnancy, for which you are under the care of a Physician. Disability must begin while you are insured under the Policy. Sickness does not include elective or cosmetic surgery procedures, or complications resulting therefrom.
As set out above, the Pre-existing Conditions Exclusion includes a “look-
back period,” by which an injury or sickness condition constitutes a pre-existing
condition only if the injury or sickness was treated in the three months before
Plaintiff’s long-term disability coverage began on March 12, 2013. Thus,
Plaintiff’s look-back period ran from December 12, 2012 to March 12, 2013.
Long before becoming a real estate manager for Thornton’s, Plaintiff hurt
his back on October 16, 1998, in a slip and fall accident that fractured the spinous
processes of Plaintiff’s T6, T7, and T8 vertebrae in his thoracic spine. In laymen’s
terms, Plaintiff hurt the parts of his vertebrae that attach muscles and ligaments to
his spine in the upper part of his back. Thanks to successful pain management and
rehabilitation, Plaintiff was able to live a relatively pain free life for roughly the
next fourteen years.
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But being a real estate manager for Thornton’s required Plaintiff to spend
approximately fifteen to twenty hours a week driving to potential store locations.
And a few months after he began his employment with Thornton’s, Plaintiff began
again experiencing back problems. Specifically, around September 2012, Plaintiff
began suffering from back pain and “mid/lower back spasms” that he attributed to
“driving too much.” Plaintiff saw his physician Dr. Charles Gelia to have his back
checked and was prescribed pain medications, including Vicodin.
On December 12, 2012, the look-back period for Plaintiff’s long term
disability policy began. Around the same time, one of Plaintiff’s co-workers was
fired and Plaintiff began regularly driving between forty and sixty hours a week.
In January 2013, Plaintiff experienced a “sudden onset of sharp, stabbing pain over
his mid back.” On March 4, Plaintiff returned to Dr. Gelia to obtain prescription
refills for Vicodin and Tramadol for pain in his “upper-mid back.” On March 12,
2013, the look-back period for Plaintiff’s long term disability policy ended.
As Plaintiff continued to spend most of his week driving, his back pain and
muscle spasms became progressively worse. On April 23, 2013, Plaintiff returned
to Dr. Gelia and again complained of back pain caused by his increased driving.
By June and July, Plaintiff’s back pain and muscle spasms were so severe that he
was having difficulty walking, and pain medications no longer provided Plaintiff
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enough relief to make it through the day. His last day of work at Thornton’s
occurred on August 2, 2013 and he claimed to be disabled as of August 3, 2013.
Plaintiff continued to seek treatment for his back after he had ceased
working at Thornton’s. On August 23, 2013, Plaintiff saw Dr. Sunil Panchal.
Plaintiff told Dr. Panchal that his pain began in February 2013 and became worse
with increased driving. Plaintiff also indicated to Dr. Panchal that his back pain
originated specifically in his T6, T7, and T8 vertebrae, and that he had first
experienced such pain on October 16, 1998—the day of his original fall. After a
physical examination, Dr. Panchal observed that Plaintiff’s “mid back pain
reproduced with thoracic facet loading,” which “suggest[ed] the involvement of the
lower thoracic and upper lumbar facet joints.”
On September 12, 2013, Plaintiff obtained an MRI of his lumbar spine. The
next day Plaintiff saw Dr. Brody Henkel. Plaintiff informed Dr. Henkel that he
first hurt his T6, T7, and T8 vertebrae in 1998 and had a “history of mid back pain”
as a result. But Plaintiff indicated that he had remained relatively pain free until
earlier in 2013. Plaintiff also informed Dr. Henkel that he had been taking Vicodin
and Tramadol for his pain. In a physical examination of Plaintiff’s lumbar spine,
Dr. Henkel noted that Plaintiff had “Full, painless range of motion” and no
observable problems. Dr. Henkel also found the MRI of Plaintiff’s lumbar spine to
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be normal. Dr. Henkel thus assessed Plaintiff as suffering from “pain in the
thoracic spine” and recommended obtaining an MRI of his thoracic spine.
Two weeks later, at the end of September 2013, Plaintiff submitted a claim
to Defendant for short term disability benefits. Plaintiff claimed that he was
disabled by severe back pain and muscle spasms. He also indicated that his
symptoms had begun in February 2013 and that he first treated them in February
and March of that year. Along with his claim, Plaintiff included a form with Dr.
Gelia’s assessment written on September 18th. Dr. Gelia stated that Plaintiff had
sciatica (pain that radiates along the sciatic nerve in the lower back and legs),
muscle spasms, and pain in the thoracic spine. Dr. Gelia also indicated that
Plaintiff’s symptoms first appeared on October 16, 1998, when Plaintiff fell.
While going through the process of obtaining approval for his short term
disability benefits, Plaintiff emailed Defendant twice on December 2, 2013. In the
first email, Plaintiff asked Defendant to “go over [t]horacic spine injuries versus
lumbar spine injuries” and stated that he had a “more rare [t]horacic]” injury that
could be confirmed by his physicians. In the second, Plaintiff asked for assistance
obtaining a “thoracic MRI” that would allow Dr. Henkel to determine whether
Plaintiff was suffering from a herniated disk or nerve damage “in the [t]horacic
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spine.” Two days later, Defendant notified Plaintiff that it was automatically
transitioning his short term disability claim to a long term disability claim.
On December 17, 2013, Plaintiff had an MRI on his thoracic spine.
Although the MRI noted that Plaintiff’s clinical indication was “thoracic pain,” the
MRI itself showed no evidence of “any significant abnormality.” Two days later,
Plaintiff followed up again with Dr. Henkel. Dr. Henkel noted that Plaintiff
continued to report “constant sharp stabbing pain over his mid back with no
radiating pain to his neck or lower back.” Dr. Henkel again checked Plaintiff’s
lumbar spine and found “no muscle spasms and normal range of motion.” After
reviewing the thoracic MRI, Dr. Henkel concluded that it was “normal,” and he
could not “identify an underlying Neurological etiology for [Plaintiff’s] reported
mid-back pain”—meaning he could not identify the cause of Plaintiff’s pain.
Nevertheless, Dr. Henkel assessed Plaintiff as suffering from “pain in the thoracic
spine” and recommended Plaintiff follow up with a pain management specialist.
As Plaintiff waited for Defendant’s decision on both his short and long term
disability benefits, he continued to seek the opinion and assistance of more doctors.
On February 2, 2014, Plaintiff saw Dr. David Kalin, who prepared a medical report
to submit to Defendant. In preparing his report, Dr. Kalin reviewed Plaintiff’s
medical history and conducted a physical examination. Dr. Kalin’s report
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acknowledged that Plaintiff had previously fractured the spinous processes of the
T6, T7, and T8 vertebrae in his back in 1998, but noted that he had been
“asymptomatic” until September 2012 when he developed “mid/lower back
spasms,” sought treatment, and was prescribed Vicodin and Tramadol (among
other medications). From his physical examination, Dr. Kalin observed that
Plaintiff’s upper back had “palpable midline tenderness over thoracolumbar
junction with mild rotation.” By comparison, Plaintiff’s lower back was “without
midline tenderness or spasm.” In his assessment, Dr. Kalin found that Plaintiff
suffered from “Exacerbation/Aggravation [of a] chronic thoracolumbar
musculoskeletal ligamentous strain with minimal annular bulging L4-5, L5-S1”—
meaning that Plaintiff had exacerbated a chronic ligament strain in his thoracic or
lumbar region and had two bulging discs in his lumbar spine. Based on Plaintiff’s
“medical history, physical examination and review of available medical
records/diagnostic studies, [Plaintiff’s] present musculoskeletal [condition] was
initially caused by a slip/fall injury sustained during 1998, with fractures of the
spinous processes of T6-7-8.” Dr. Kalin ultimately concluded that “Within a
reasonable degree of medical probability [Plaintiff’s] employee obligations,
requiring long hours of prolonged driving have exacerbated and/or aggravated his
preexisting condition.”
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On February 7, 2014, Defendant denied Plaintiff short term disability
benefits for everything but the period from August 10, 2013 to September 13,
2013. Defendant found that there was no “clinical or diagnostic evidence”
supporting Plaintiff’s disability and therefore concluded that Plaintiff was not
disabled.
On February 12, 2014, Plaintiff saw another doctor, Dr. Steven Barna.
Plaintiff indicated to Dr. Barna that he was still suffering from “midback pain and
low back pain.” Dr. Barna diagnosed Plaintiff with “thoracic spondylosis” (spinal
degeneration).
Two weeks later, on February 26, 2014, Defendant denied Plaintiff’s claim
for long term disability benefits. Defendant again concluded that there was
insufficient evidence to establish that Plaintiff was disabled. In addition,
Defendant found that Plaintiff had previously been treated for back pain and
muscle spasms through the prescription of Vicodin and Tramadol during the look-
back period. Hence, Defendant concluded that, even if Plaintiff was disabled, his
claim would be barred by the Pre-existing Conditions Exclusion.
Plaintiff first appealed Defendant’s denial of short term disability benefits.
In July 2014, Plaintiff submitted a personal statement to Defendant describing the
initial onset of his back pain and muscle spasms in January 2013, his progressively
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worsening state that led to him stopping work in July 2013, his current condition
(comprised of both back pain and muscle spasms in his “mid to lower back”), and
his decreased quality of life. In addition, Plaintiff submitted a signed statement
from Dr. Gelia. Dr. Gelia stated that he diagnosed Plaintiff with “pain in the
thoracic spine, sciatica and hypermobility syndrome” caused or contributed to by
the significant time Plaintiff spent driving for work. And, in Dr. Gelia’s opinion,
Plaintiff was incapable of working in his current condition. Nevertheless, in
August 2014, Defendant denied Plaintiff’s appeal for additional short term
disability benefits beyond what had already been provided. Defendant again
asserted that Plaintiff had not sufficiently established his disability.
A few days after Defendant denied Plaintiff’s appeal for short term disability
benefits, Plaintiff appealed the denial of his long term disability benefits. In regard
to the applicability of the Pre-existing Conditions Exclusion, Plaintiff asserted that
there was only a single instance of treatment in the look-back period and that the
diagnosis listed by Dr. Gelia on that occasion, “BA,” (presumed by Defendant to
mean “back ache”) was meaningless.
In February 2015, Plaintiff saw Dr. Robert Guirguis and underwent
electromyography and nerve conduction velocity tests. Dr. Guirguis noted that
Plaintiff complained of “low back pain radiating to the bilateral LE with numbness
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and tingling in the bilateral foot.” In addition, Dr. Guirguis opined that the tests
provided evidence “consistent with lumbar radiculopathy affecting the bilateral L5
nerve roots” in Plaintiff’s lumbar spine.
In March 2015, Dr. Gelia submitted a supplemental statement to Defendant.
He asserted that Plaintiff’s March 4, 2013 visit was for refilling prescription pain
medications because Plaintiff was experiencing pain in his “upper mid-back.” Dr.
Gelia then stated that it was “clearly now apparent that the condition that disables
[Plaintiff] is in the lumbar region and includes sciatica.” Dr. Gelia also opined
that, based on a recent MRI of Plaintiff’s thoracic spine that showed only minimal
protrusion of his T11 and T12 vertebrae, there was no support for a “thoracic-
based disability.” Dr. Gelia concluded that Plaintiff was unable to work “due to
his extensive lumbar issues.”
Plaintiff also obtained a supplemental report from Dr. Kalin in March 2015.
Dr. Kalin’s updated report largely copied the first, but included a few notable
differences. First, in his physical examination of Plaintiff he now observed
“palpable tenderness T12-L2” in Plaintiff’s lower back in addition to the
tenderness in his upper back. Second, Dr. Kalin changed his initial assessment.
He found that Plaintiff now suffered from “Aggravation [of a] chronic
thoracolumbar musculoskeletal ligamentous strain with mild central protrusion T1-
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12 without canal stenosis or cord compression (02/11/15, MRI), mild osseous
degenerative change with mild scoliosis (01/27/15, MRI), [and] minimal annular
bulging L4-5, L5-S1 (09/12/13, MRI).” Dr. Kalin also added a new assessment for
“Chronic right sciatica and bilateral lumbar radiculopathy with electrodiagnostic
evidence consistent with lumbar radiculopathy affecting bilateral L5 nerve roots
(02/12/15, EMG NCV bilateral lower extremities) with antalgic gait.” Based on
this, Dr. Kalin came to three conclusions. First, “Within a reasonable degree of
medical certainty,” Plaintiff’s “preexisting condition due to fractures of the
spinous processes of T6, 7, 8, slip and fall injury 1998” was aggravated by
prolonged driving. Second, “Within a reasonable degree of medical certainty,” the
prolonged driving “caused additional compression extending from the thoracic to
the lumbar spine, resulting in further decompensation of the musculoskeletal
integrity in the mid/lower back” that resulted in Plaintiff’s lumbar problems,
including low back pain and sciatica. Finally, Dr. Kalin concluded that Plaintiff
was disabled from working “due to the extensive decompensation of his lumbar
spine.”
Plaintiff submitted Dr. Kalin’s supplemental report to Defendant in April
2015. In the attached letter, Plaintiff asked Defendant to “note the distinction
between upper and lower thoracic issues,” and asserted that the “March 4, 2013
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office visit with Dr. Gelia addressed upper thoracic issues.” (Emphasis in
original.) Plaintiff also asserted that his lumbar radiculopathy could not be caused
by a “thoracic bulge or other lesion.”
Taking Plaintiff’s medical documentation and history into consideration,
Defendant’s medical consultant Dr. Nancy Heimonen issued her opinion in May
2015. Dr. Heimonen found that Plaintiff’s sciatica and lumbar diagnoses lacked
“documented evidence” from when Plaintiff originally submitted his claim. In
addition, the findings of other doctors from around the time of Plaintiff’s initial
disability claim were inconsistent with a lumbar issue. In particular, Dr. Heimonen
noted that Plaintiff did not complain about lumbar problems or pain in 2013, that
his 2013 lumbar MRI did not show any issues, and that both Dr. Henkel’s and Dr.
Panchal’s physical examination findings were not consistent with lumbar
problems. Hence Dr. Heimonen concluded that the sciatica and lumbar diagnoses
were “new” problems and, if correct, had developed after Plaintiff filed his
disability claim. Dr. Heimonen also found that there was as an “absence of
documented evidence of neurological deficit, confirmed physical exam findings
and/or imaging study results that support/explain the extent of [Plaintiff’s] pain
complaints,” and therefore it was uncertain whether Plaintiff qualified as disabled.
Addressing Plaintiff’s pre-existing condition, Dr. Heimonen concluded there was
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“reasonable medical evidence” to find that the symptoms Plaintiff was treated for
during the look-back period were the same as those underlying his disability claim.
In July 2015, Defendant denied Plaintiff’s long term disability benefits
appeal on the grounds that Plaintiff’s lumbar condition was a recent development
and not part of his disability, that Plaintiff was not actually disabled, and that, even
if disabled, the Pre-existing Conditions Exclusion applied because Plaintiff had
received treatment during the look-back period by being prescribed Vicodin and
Tramadol for back pain and muscle spasms.
In response, Plaintiff brought suit against Defendant under 29 U.S.C.
§ 1132(a)(1)(B) for the denial of both Plaintiff’s short term and long term disability
benefits claims. The parties mutually resolved the short term disability benefits
claim. The parties also agreed that the only question to be decided by the district
court was whether the Pre-existing Conditions Exclusion applied. If the court
found that it did not, then the case would be remanded to Defendant to determine
whether Plaintiff met the definition of total disability. After filing cross-motions
for summary judgment on the issue, the district court found that the Pre-existing
Conditions Exclusion applied and entered judgment in favor of Defendant. The
district court based its ruling on two key facts. First, Plaintiff had obtained
treatment and took medication for back pain during the look-back period when he
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saw Dr. Gelia in March 2013. And second, both Dr. Heimonen and Dr. Kalin
concluded that Plaintiff’s complaints from the time he filed his disability claim
were the same as his complaints during the look-back period for which he was
treated.
Plaintiff then filed a motion under Rules 52(b) and 59(e) to “add or amend
findings of fact or to alter or amend judgment” asserting that the district court’s
opinion should have recited an additional paragraph from Dr. Kalin’s supplemental
report. The district court found that Plaintiff’s motion was merely an attempt to re-
litigate the issues already decided on summary judgment and denied the motion.
Plaintiff now appeals the district court’s rulings on both summary judgment and
Plaintiff’s postjudgment motion.
DISCUSSION
I. Motion for Summary Judgment
A. Standard of Review
We “review a district court’s grant of summary judgment in an ERISA case
de novo, applying the same judicial standard to the administrator’s decision that the
district court used to guide its review.” Melech v. Life Ins. Co. of N. Am., 739 F.3d
663, 673 (11th Cir. 2014) (citing Blankenship v. Metro. Life Ins. Co., 644 F.3d
1350, 1354 (11th Cir. 2011)). Although ERISA itself does not set a standard of
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review for the review of an administrator’s decision to deny benefits, we apply a
multi-step framework crafted from the Supreme Court’s guidance. Blankenship v.
Metro. Life Ins. Co., 644 F.3d 1350, 1354-55 (11th Cir. 2011).1 Because the
parties agree that Defendant had no discretion to either determine benefits
eligibility or construe the plan’s terms, we need not leave the first step, and we
“apply the de novo standard to determine whether the claim administrator’s
benefits-denial decision is ‘wrong.’” Id. at 1355 (citing Capone v. Aetna Life Ins.
Co., 592 F.3d 1189, 1195 (11th Cir. 2010)). Finally, because Defendant has 1 The steps are:
(1) Apply the de novo standard to determine whether the claim administrator's benefits- denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator’s decision was arbitrary and capricious.
Blankenship, 644 F.3d at 1355.
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denied Plaintiff’s claim on the basis of the Pre-existing Conditions Exclusion, the
burden is on the administrator to show that the “exclusion prevents coverage.”
Horton v. Reliance Std. Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998) (per
curiam).
B. Back Pain and Muscle Spasms are not Pre-Existing Conditions under the Pre-Existing Conditions Exclusion A condensed timeline is helpful before we begin our analysis. Plaintiff
began his employment at Thornton’s on March 12, 2012. He ceased working on
August 2, 2013, and, in September 2013, he filed a claim for disability benefits
with Defendant. But, as with most disability plans, Plaintiff was not covered for
any disability that resulted from a pre-existing condition treated within a specified
period of time, referred to as “the look-back period.”
Plaintiff’s look-back period began on December 12, 2012 and ended on
March 12, 2013. In August and October 2012, Plaintiff was prescribed pain
medications and gel to address his back pain. On December 28, 2012, Plaintiff
obtained a refill of his pain medications to address his continuing pain. And, on
March 4, 2013, he sought treatment and obtained refills for Vicodin and Tramadol,
which had been previously prescribed to treat the pain in his upper-mid back (the
thoracic region).
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After the look-back period ended on March 12, 2013, Plaintiff’s back
problems persisted. On March 14, two days after the look-back period ended,
Plaintiff refilled the pain medication prescriptions for his back pain. A month
later, he saw Dr. Gelia, again complaining of back pain and muscle spasms.
Plaintiff’s back pain and muscle spasms became worse over the following months
until, in early August, Plaintiff alleges that they were so severe that he was forced
to quit his job. Shortly afterwards, in late August and September, Plaintiff saw a
number of doctors looking for treatment. During these visits, Plaintiff told both
Dr. Panchal and Dr. Henkel that he was suffering from pain seemingly identical to
the pain he had previously experienced from fracturing the spinous processes in his
T6, T7, and T8 vertebrae in 1998. Plaintiff also told Dr. Henkel that he had been
taking Vicodin and Tramadol to treat the pain. An MRI of Plaintiff’s lumbar spine
showed no significant problems or abnormalities, so Dr. Henkel recommended
obtaining an MRI of Plaintiff’s thoracic spine.
At the end of September 2013, Plaintiff filed for disability benefits with
Defendant and claimed to be disabled by his back pain and muscle spasms. Dr.
Gelia’s assessment, attached to his claim, stated that Plaintiff was suffering from
sciatica, muscle spasms, and pain in the thoracic spine. Dr. Gelia also indicated
that Plaintiff’s symptoms had first appeared in 1998 after his fall.
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Later, in December 2013, Plaintiff continued to try and obtain a thoracic
MRI as Dr. Henkel had recommended and asked Defendant for help. He told
Defendant that he needed the thoracic MRI because he had a “[t]horacic” injury
and the MRI was necessary to diagnose the underlying cause. Shortly afterwards,
Plaintiff underwent a thoracic MRI which, like his earlier lumbar MRI, showed no
significant abnormalities. As a result, Dr. Henkel diagnosed Plaintiff with “pain
the thoracic spine” and recommended pain management.
But Plaintiff continued to seek other opinions. In February 2014, Plaintiff
saw Dr. Kalin, who concluded Plaintiff’s back problems were initially caused by
his fall in 1998 and were exacerbated by his driving for Thornton’s. Also in
February, Plaintiff saw Dr. Barna who diagnosed Plaintiff with thoracic
spondylosis. Despite this, Defendant denied Plaintiff’s claim for long term
disability benefits on the grounds that he was not disabled and, if he was disabled,
that his disability was the result of a pre-existing condition treated during the look-
back period.
A year later—nearly a year and half after Plaintiff initially claimed to be
disabled—Plaintiff saw Dr. Guirguis for electromyography and nerve conduction
velocity testing. Based on the test results, Dr. Guirguis concluded that Plaintiff
was suffering from lumbar radiculopathy. Upon seeing these results, both Dr.
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Gelia and Dr. Kalin revised their initial assessments and asserted that Plaintiff’s
disability was a result of lumbar radiculopathy and other lower-back issues.
Defendant’s medical consultant, Dr. Heimonen, reviewed Plaintiff’s medical
history and reached a number of conclusions. Specifically, she found that any
lumbar-based disability was “new” and did not exist at the time Plaintiff left his
job and filed for disability. She also concluded that it was uncertain whether
Plaintiff was actually disabled. And, finally, Dr. Heimonen found that there was
reasonable medical evidence to believe that Plaintiff had been treated during the
look-back period for the same symptoms he later filed disability for—meaning that
his disability was pre-existing. Defendant denied Plaintiff disability benefits for a
second time on these same grounds, asserting that he was either not disabled or that
the Pre-Existing Conditions Exclusion applied.
Altogether, Defendant twice denied Plaintiff long term disability benefits
based on the Pre-existing Conditions Exclusion because Plaintiff received
treatment for “back pain and muscle spasms” during the look-back period—the
same symptoms that Plaintiff ultimately claimed, just a few months later, to be so
debilitating as to render him disabled and unable to work. In doing so, Defendant
relied on the fact that Plaintiff was prescribed, and refilled prescriptions for,
Vicodin and Tramadol for back pain during the look-back period in March 2013.
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In its ruling for Defendant, the district court agreed and found that Plaintiff
“treated with his primary care physician before, during, and after the look-back
period for back pain, and had prescriptions for pain medicine filled during the
look-back period.”
But back pain and muscle spasms are not by themselves necessarily Pre-
Existing Conditions under the Exclusion. To interpret the plan and the Pre-existing
Conditions Exclusion, we look first to the plan’s text, and we give the plan’s terms
their plain and ordinary meaning. See Alexandra H. v. Oxford Health Ins. Inc.
Freedom Access Plan, 833 F.3d 1299, 1307 (11th Cir. 2016). The Exclusion states
that Defendant “will not provide benefits for Disability: (a) caused by, contributed
to by, or resulting from a Pre-existing Condition; and (b) which begins in the first
12 months after [the policyholder is] continuously insured under this Policy.” The
record shows, and the parties do not dispute, that (b) is satisfied. 2 The only
question then is whether Plaintiff had a Pre-existing Condition that caused,
contributed to, or resulted in his disability.
The policy defines “Pre-existing Condition” as “any Injury or Sickness for
which [the policyholder] received medical treatment, advice or consultation, care
2 Plaintiff first became insured under the policy when he was hired on March 12, 2013, and Plaintiff states his disability began within a year.
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or services including diagnostic measures, or had drugs or medicines prescribed or
taken in the 3 months prior to the day [the policyholder] became insured under this
Policy.” In turn, “Injury” is an “accidental bodily injury,” and “Sickness” is “a
disease, disorder or condition.” Stitching these definitions together, a Pre-existing
Condition must be an accidental bodily injury, a disease, a disorder, or a condition.
Back pain and muscle spasms are not by themselves an accidental bodily
injury, a disease, a disorder, nor a condition. Back pain and muscle spasms are the
symptom for which an accidental bodily injury, a disease, a disorder, or a condition
might be the cause. At no point in Defendant’s denial letters or in its brief does
Defendant assert that back pain and muscle spasms are, in and of themselves, an
accidental bodily injury, a disease, or a disorder.
At most, Defendant occasionally refers to Plaintiff’s “disabling condition” as
back pain and muscle spasms. But the plain text of the plan expressly defines pain
as being a “symptom,” not a “condition.” The plan defines “Self-Reported
Symptoms,” in part, as “manifestations of [the policyholder’s] condition.”
(Emphasis added.) And “Examples of Self-Reported Symptoms include, but are
not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears,
dizziness, numbness, and loss of energy.” (Emphasis added.) So pain is the
23 Case: 16-16935 Date Filed: 11/17/2017 Page: 24 of 28
“manifestation,” or symptom, of a condition; it is not a condition itself. Under the
plan’s plain text, Plaintiff’s back pain is a symptom, not a condition.
And this same logic dictates that muscle spasms cannot by themselves
constitute a Pre-existing Condition. Muscle spasms are, like pain, soreness, or
stiffness, a symptom of some underlying injury, disease, disorder, or condition.3
Muscle spasms are not a condition, nor are they an accidental bodily injury, a
disease, or a disorder. Because a Pre-existing Condition must be either an
accidental bodily injury, a disease, a disorder, or a condition, the Pre-existing
Conditions Exclusion cannot apply to Plaintiff’s back pain and muscle spasms.
C. Genuine Issues of Material Fact Preclude Summary Judgment
That said, though, the underlying cause of Plaintiff’s back pain and muscle
spasms could constitute an accidental bodily injury, disease, disorder, or condition
that would potentially trigger the Pre-Existing Conditions Exclusion. The record,
however, is rife with inconsistencies and contradictory evidence that preclude
entering summary judgment for either party. Ultimately, to determine whether the
Exclusion applies, at least three facts are essential: (1) what Plaintiff’s disability
3 Cf. Gagliardo v. Connaught Lab., Inc., 311 F.3d 565, 567 (3d Cir. 2002) (describing “muscle spasms” as a “symptom”); Smith v. Kmart Corp., 177 F.3d 19, 23 (1st Cir. 1999) (same); Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (same); Preston v. Sec’y of Health and Human Serv., 854 F.2d 815, 817 (6th Cir. 1988) (same); Smith v. Office of Pers. Mgmt., 784 F.2d 397, 398 (Fed. Cir. 1986) (same); Taylor v. Heckler, 742 F.2d 253, 256 (5th Cir. 1984) (same).
24 Case: 16-16935 Date Filed: 11/17/2017 Page: 25 of 28
is, (2) what Plaintiff’s Pre-Existing Condition is, and (3) what, if any, relationship
there is between Plaintiff’s Pre-Existing Condition and his disability. But the
record contains conflicting and inconsistent evidence that makes resolution of
these factual issues inappropriate for summary judgment.
For example, it cannot be determined whether Plaintiff had a Pre-Existing
Condition that caused, contributed to, or resulted in his disability without first
establishing what Plaintiff’s disability is. In spite of this, the parties have—
through stipulations governing how they would like this litigation to proceed—
attempted to put the cart before the horse by limiting the sole issue before the
district court to whether or not the Pre-Existing Conditions Exclusion applied and
reserving a possible disability determination for later. Yet the parties themselves
acknowledge that a ruling on the Pre-Existing Conditions Exclusion necessitates
first establishing what Plaintiff’s disability is, demonstrated by the fact that both
spend the majority of their briefs arguing about whether Plaintiff’s disability is
caused by a lumbar or thoracic condition.
And on this very confusing record, the issue of Plaintiff’s disability does not
lend itself to disposition on summary judgment. The record seems to indicate the
existence of a thoracic condition when Plaintiff’s complaints first began, based on
Plaintiff’s self-described symptoms, his initial claims and statements to Defendant,
25 Case: 16-16935 Date Filed: 11/17/2017 Page: 26 of 28
and the notes from the doctors he initially visited in August and September 2013.
Yet Dr. Henkel reviewed an MRI of Plaintiff’s thoracic spine and concluded in
December 2013 that, in fact, there were no significant abnormalities. Nevertheless,
two months later, in February 2014, Dr. Barna diagnosed Plaintiff with thoracic
spondylosis, and Dr. Kalin concluded that Plaintiff’s disability was an exacerbation
of his 1998 thoracic injury. So, there is conflicting evidence not only as to whether
Plaintiff had a thoracic condition, but whether even such a condition constitutes a
disability.
And there is also evidence that suggests Plaintiff may have at a later time
developed a lumbar condition. Testing in February 2015 showed that Plaintiff was
suffering from lumbar radiculopathy. Upon reviewing these test results, Dr. Kalin
then revised his initial diagnosis to conclude that Plaintiff’s disability was now
primarily lumbar-based (though he still indicates there is some connection between
the lumbar disability and Plaintiff’s earlier thoracic injury).
However, even if Plaintiff is currently disabled because of a lumbar
condition, it will also be necessary to determine when that disability arose, which is
yet another issue with conflicting evidence. Plaintiff’s disability coverage
presumably ended when he left Thornton’s employ on August 2, 2013, so
presumably Plaintiff must establish that his lumbar disability began no later than
26 Case: 16-16935 Date Filed: 11/17/2017 Page: 27 of 28
that date to be entitled to disability benefits. But the doctors’ notes and lumbar
MRI from September 2013 suggest that there were no significant problems in
Plaintiff’s lumbar spine. Indeed, aside from Dr. Gelia’s statements that Plaintiff
had sciatica, the record lacks documentation of any significant lumbar problems
until Plaintiff’s February 2015 lumbar MRI—roughly a year and a half after we
assume his disability policy to have ended.
Perhaps Plaintiff can thread the eye of this needle and demonstrate (1) that
he was disabled by a lumbar condition (2) that arose before his insurance policy
ended and (3) that was not caused by an earlier thoracic injury that manifested
itself during the look-back period. But that determination cannot be made on this
record via a summary judgment motion.
And this discussion only broaches the issue of Plaintiff’s disability. Once
that has been determined, it will then be necessary to establish what accidental
bodily injury, disease, disorder or condition Plaintiff was treated for during the
look-back period, and, whether that ailment caused, contributed to, or resulted in
Plaintiff’s disability. There are genuine issues of material fact on these issues as
well.
Put simply, in light of the genuine issues of material fact that abound in this
case, summary judgment is an inappropriate mechanism to determine what
27 Case: 16-16935 Date Filed: 11/17/2017 Page: 28 of 28
Plaintiff’s disability is and whether the Pre-Existing Conditions Exclusion applies.
Therefore, on this record, we cannot approve the grant of summary judgment to
either party. Thus, we remand for further proceedings.
II. Motion to Amend or Alter Findings of Fact or Judgment
Because we hold that the district court erred by entering judgment in favor
of Defendant, Plaintiff’s motion to amend or alter findings of fact or judgment is
moot.
CONCLUSION
The district court’s order granting summary judgment in favor of Defendant
is REVERSED, the denial of Plaintiff’s motion for summary judgment is
AFFIRMED, and the motion to alter or amend findings of fact or judgment is
DENIED AS MOOT. The case is REMANDED to the district court for further
proceedings consistent with this opinion.