Whitley v. Hartford Life & Accident Insurance Co. , 262 F. App'x 546 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2189
JAMES A. WHITLEY,
Plaintiff - Appellant,
versus
HARTFORD LIFE & ACCIDENT INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cv-00129)
Argued: September 26, 2007 Decided: January 29, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Reversed and remanded with instructions by unpublished opinion.
Judge Gregory wrote the opinion, in which Judge Michael and Judge
Duncan joined.
ARGUED: J. Lynn Bishop, Charlotte, North Carolina, for Appellant.
Katherine Thompson Lange, WOMBLE, CARLYLE, SANDRIDGE & RICE,
P.L.L.C., Charlotte, North Carolina, for Appellee. ON BRIEF:
Debbie W. Harden, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
This lawsuit involves the termination of long-term disability
benefits under a group plan governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”). James A. Whitley
(“Whitley”) claims that Hartford Life & Accident Insurance Company
(“Hartford”) abused its discretion in wrongfully terminating his
benefits. After careful consideration, we reverse the district
court and award Whitley benefits.
I.
Whitley worked as a Wal-Mart truck driver for approximately
ten years. On September 4, 1998, Whitley filed a claim with
Hartford for long-term disability benefits, stating he could no
longer work as a truck driver because of lower back pain. With his
claim, he submitted evidence of degenerative disc disease and a
bulging disc in his lumbar spine, limiting him to light work and no
lifting over 35 to 40 pounds.
Hartford denied the claim, based on the presupposition that
driving trucks for Wal-Mart constituted light work, requiring only
the ability to lift 10 pounds. Whitley appealed and presented
evidence that Wal-Mart truck drivers must occasionally lift and
carry up to 40 pounds and, at times, lift up to 80 pounds.
Hartford obtained additional treatment records and ordered a
2
functional capacity evaluation of Whitley. Hartford eventually
approved Whitley’s benefits based on that evaluation.
Hartford then conducted a vocational assessment to determine
whether Whitley qualified for an alternate job. The assessment
indicated there were no alternative available jobs for someone with
Whitley’s education, work experience, and medical restrictions that
would pay enough to qualify as suitable work. On July 6, 1999,
Hartford informed Whitley that he met the policy definition of
“Total Disability” and that he would continue to qualify for
benefits. (J.A. 117.) The letter also stated that “[p]eriodically
[Hartford would] provide [Whitley] with supplementary claim forms
so that [he could] furnish [them] with continued proof of Total
Disability.” Id. Whitley received benefits from Hartford from
September 1998 to February 2003. On March 6, 2003, Hartford sent
Whitley a letter terminating his benefits.
Hartford began investigating the validity of Whitley’s claim
after their fraud department received an anonymous letter in late
March 2001. Following the receipt of the letter, Hartford began
surveillance of Whitley in late April 2001. The surveillance
revealed Whitley’s doing a number of activities, including
standing, sitting, driving, visiting his chiropractor, going to a
gym, and riding his tractor. (See Ex. Vols. 1 & 2.)
Additionally, as part of its investigation, Hartford had
Whitley submit an Attending Physician’s Statement of Continuing
3
Disability filled out by his chiropractor, Dr. George Ring. The
assessment indicated that Whitley had lower back pain with
radiation down his left leg and that his pain prevented him from
sitting more than one hour and from lifting heavy weights, although
he could manage conveniently placed medium weights. In late July
2001, a Hartford claim investigator interviewed Whitley, who
reported that he could, and did, do a number of activities.
In November 2001, Hartford requested another functional
capacity evaluation. That evaluation concluded that Whitley could
sit for thirty minutes to an hour, provided he could change
positions, and could possibly do some light lifting. Hartford
conducted additional surveillance in late November.
In December 2001, Hartford employed a nurse to review the
evaluation.1 She concluded that the functional capacity evaluation
appeared valid and recommended referring Whitley’s file for
possible employability analysis. The employability analysis, dated
December 13, 2001, found that none of the occupations Whitley could
perform, given his education, work experience, and physical
limitations, met or exceeded the required earning potential.
In June 2002, Hartford resumed surveillance of Whitley. Also
in June, an ergonomic job analysis report was prepared that
1
Whitley scored a 7 out of 16 on the Waddell questionnaire
associated with the 2001 functional capacity evaluation. According
to Hartford’s brief, “Waddell’s signs of positive for 3 or more are
strongly suggestive of symptom magnification.” (Appellee’s Br. 12
n.1 (emphasis added).)
4
indicated Wal-Mart truck drivers must sit for six to eight hours a
day and at two to four hours at a time. Other job requirements
included pushing and pulling with various amounts of force.
In October 2002, Hartford requested an updated statement from
Whitley’s attending physician. Because Dr. Ring, who was treating
him at the time, was unwilling to certify Whitley’s long-term
disability, Whitley went to see Dr. Abda, whom he had not seen
since January 8, 1999. Dr. Abda concluded that Whitley could stand
for 45 minutes, walk for 30 minutes, sit for 30 minutes and push or
pull 10 pounds. X-rays conducted that day revealed increased
narrowing in Whitley’s vertebrae.2
In January 2003, Hartford had Dr. Elkins conduct an
independent medical examination. Dr. Elkins diagnosed Whitley with
degenerative disc disease at L4-5 and stated that Whitley should be
able to lift 75 pounds occasionally and 50 pounds frequently.
In February 2003, the investigator contacted Dr. Abda by
letter, informing her that “[u]nlike typical truck-driver
occupational requirements, Wal-Mart’s truck-driver position is
considered ‘light work’ as the drivers do not load, unload, or
otherwise engage in any material handling.” (J.A. 154.)
On March 6, 2003, Hartford sent Whitley a detailed letter
terminating his benefits, explaining that he no longer met the
2
The x-rays revealed a narrowing in the lumbosacral joint or
L5-S1; previous narrowing had only been observed in his L4-5 space.
5
policy’s definition of disabled. Whitley appealed with support
from an independent medical examination by Dr. Shaffer, as well as
other documents. Dr. Shaffer’s report concluded, “[i]t is my
medical opinion that this patient is totally disabled from
returning to long distance truck driving.” (J.A. 559 (emphasis
added).) When asked to reconcile that conclusion with Whitley’s
activities depicted on the surveillance tape, Dr. Shaffer wrote:
“I see nothing in these films which would alter my opinions as
expressed in my report of 9/16/03 to you.” (J.A. 561.)
Dr. Turner of the University Disability Consortium reviewed
Whitley’s 2001 interview and the ergonomic job analysis for
Hartford. In his report, Dr. Turner indicated that if Whitley
could lift 30-40 pounds, there is no reason he could not push or
pull 60-80 pounds. Additionally, Dr. Turner found Dr. Schaffer’s
report inconsistent and the functional capacity evaluation
administrated by Hartford unreliable. Based on Dr. Elkins’ finding
that Whitley could lift 50 pounds, Dr. Turner concluded Whitley
could push or pull 100 pounds and that Whitley should be restricted
to light work. In the course of his assessment, Dr. Turner
performed no firsthand evaluations of Whitley’s condition.
On October 29, 2003, Dr. Turner sent a letter to Dr. Abda that
read: “[y]ou also feel that [Whitley] should have no problem
sitting 2-4 hours per day at a time as is required by his job. It
is your opinion that he should be able to lift and carry 35 pounds
6
occasionally and push/pull if necessary up to 100 pounds.” (J.A.
329.) Dr. Abda signed the letter.3 Based on these opinions,
Hartford determined that Whitley no longer qualified for benefits.
Pursuant to ERISA, Whitley filed suit in March 2004. Counsel
for both parties filed cross-motions for summary judgment. On
September 25, 2006, the United States District Court for the
Western District of North Carolina (“district court”) entered an
oral ruling on both motions for summary judgment. The district
court found that the policy granted Hartford the discretion and the
authority to determine benefits eligibility and to interpret the
policy terms. Using a modified abuse of discretion standard in
reviewing Hartford’s decision, the district court found (1) Whitley
did not meet his burden of proof because he failed to demonstrate
that he met the requirements of “total disability” under the
policy, (2) the defendant presented substantial evidence that
Whitley could work as a truck driver, (3) which Whitley failed to
rebut. Based on these findings, the district court concluded that
substantial evidence demonstrated that Hartford’s decision to deny
benefits was reasonable, and that no evidence indicated that
Hartford abused its discretion in denying Whitley’s total
3
Before signing the letter, Dr. Abda removed sentences stating
that she “noted [Whitley’s] lawyer tried to put words in [her]
mouth” and that she “[did] not note any evidence of impairment, and
your conclusion is in [sic] appears capable of performing his own
occupation as a truck driver full-time.” (J.A. 329.) Dr. Abda
replaced the latter with a statement rating Whitley at 25%
permanent partial impairment of his spine. Id.
7
disability benefits. Thus, the district court granted Hartford’s
motion for summary judgment, and denied Whitley’s. Whitley
appealed to this Court.
II.
Generally, this Court reviews a summary judgment denying
disability benefits de novo, using the same standards applied by
the lower court. Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.
1997) (citing Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins.
Co., 32 F.3d 120, 123 (4th Cir. 1994)).
When the benefit plan gives the administrator discretionary
authority in determining eligibility for benefits or construing the
terms of the plan, a reviewing court may only reverse the denial of
benefits if the administrator abused its discretion. Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989); see also
Carolina Care Plan, Inc. v. McKenzie, 467 F.3d 383, 386 (4th Cir.
2006) (citing Smith v. Cont’l Cas. Co., 369 F.3d 412, 417 (4th Cir.
2004)). However, when there is a conflict of interest, the
standard is slightly different. “The more incentive for the
administrator or fiduciary to benefit itself by a certain
interpretation of benefit eligibility or other plan terms, the more
objectively reasonable the administrator or fiduciary’s decision
must be and the more substantial the evidence must be to support
8
it.” Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 233 (4th Cir.
1997).
In light of the apparent conflict of interest here, this Court
reviews Hartford’s decision under the modified abuse of discretion
test used for fiduciaries with conflicts of interest. McKenzie,
467 F.3d at 386-87 (internal citations omitted).
III.
We begin by establishing the parameters of Hartford’s
disability coverage. Under the applicable policy,
Total Disability or Totally Disabled means that: (1)
during the Elimination Period; and (2) for the next 12
months you are prevented by: (a) accidental bodily
injury; (b) sickness; (c) Mental Illness; (d) substance
abuse; or (e) pregnancy, from performing the essential
duties of your occupation, and are under the continuous
care of a Physician, and as a result you are earning less
than 20% of your Pre-disability Earnings, unless engaged
in a program of Rehabilitative Employment approved by us.
(J.A. 60 (emphasis added).) The disability provision goes on to
explain that “[a]fter that, you must be so prevented from
performing the essential duties of any occupation for which you are
qualified by education, training, or experience” and that “‘[y]our
occupation’ includes similar job positions with the Employer which
may be offered to you, with a rate of pay 60% or greater of your
Indexed Pre-disability Earnings.” Id. Hartford agrees to pay
disability benefits to claimants until either the date a claimant
is no longer disabled, or the date a claimant fails to provide
9
proof of a continuous disability. Hartford terminated Whitley’s
benefits based on its assertion that the evidence in support of
Whitley’s claim did not establish that he continued to meet the
policy definition of “total disability.” We now turn to whether
that decision was an abuse of Hartford’s discretion or
unreasonable.
IV.
In general, “the administrator's decision will not be
disturbed if it ‘is the result of a deliberate, principled
reasoning process and if it is supported by substantial evidence.’”
Elliott v. Sara Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999)
(quoting Brogan, 105 F.3d at 161). Substantial evidence consists
of less than a preponderance but more than a scintilla of relevant
evidence that “a reasoning mind would accept as sufficient to
support a particular conclusion.” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966). In assessing the reasonableness of a
fiduciary’s decision, a reviewing court may look to a variety of
factors including:
(1) the language of the plan; (2) the purposes and goals
of the plan; (3) the adequacy of the materials considered
to make the decision and the degree to which they support
it; (4) whether the fiduciary's interpretation was
consistent with other provisions in the plan and with
earlier interpretations of the plan; (5) whether the
decisionmaking process was reasoned and principled; (6)
whether the decision was consistent with the procedural
and substantive requirements of ERISA; (7) any external
standard relevant to the exercise of discretion; and (8)
10
the fiduciary's motives and any conflict of interest it
may have.
Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 342-43 (4th Cir.
2000). In this case, we focus primarily on the sufficiency of the
evidence upon which Hartford based its conclusion that Whitley
failed to continue to qualify for disability benefits, as well as
the reasonableness of Hartford’s decision-making process.
In late March 2001, Hartford received the anonymous letter,
which sparked the two-year investigation of Whitley’s claim. That
letter stated:
The above referenced person has been collecting
disability benefits from your company fraudulently for
over 2 years. He had been talking about retiring for
awhile before going out on disability. He worked for
Walmart [sic] as a truck driver. Before becoming
disabled he bought a new GMC truck and said it was his
“retirement truck.” I can’t remember the exact date he
went on disability but I am recalling it as spring [sic]
1998.
Following his “retirement” on disability, he was
witnessed crawling around on a barn roof and helping a
neighbor build a new barn. In early 1999 when the
eastern part of North Carolina was flooded due to a
hurricane, he went with a church group to help rebuild
the houses, was gone for 2 weeks and slept on a hard
church pew the whole time (I saw this on video).
Every year he goes deer hunting with his son-in-law,
Chris Rodriguez and crawls around up in tree stands.
Every spring and summer since his “disability” he has
continually driven a tractor, plowed a garden, worked a
garden, and driven a riding lawn mower.
During the third week of March, he drove a full size
van to Orlando Florida [sic] from North Carolina and back
with his family. Now keep in mind that James is out on
permanent disability due to his back. He can’t work at
all but it is ironic that he can do other things he wants
to [sic]. Within the past year, I have heard him state
that he has a good disability policy and he makes more
money being disabled than he did working.
11
This irritates me to no end knowing he is doing what
he wants to do while I go to work and pay to keep up his
disability “retirement.” I can’t give my name because he
knows me very well, but if your company wants to save
some money, just watch him for a while.
(J.A. 130.) Following the receipt of the anonymous letter,
Hartford ordered a second functional capacity evaluation in
November 2001, the results of which ultimately supported Whitley’s
position. Yet in spite of the two evaluations, the claim
investigator assigned to Whitley’s case wrote an internal letter in
which she stated: “I don’t believe these results are accurate
given what has been reported to us by an anonymous person
concerning Mr. Whitley’s activities. . . . It is my suspicion that
this clam’t is capable of performing his Wal-Mart trucker job which
is considered Light and have [sic] the ability to sit for 2 hrs.
(minimal lifting).” (J.A. 185 (emphasis added).) In the same
correspondence, the claim investigator noted that she was currently
employing a registered nurse who had performed functional capacity
evaluations herself to review Whitley’s second evaluation. That
nurse found the results reliable and that Whitley “gave good
effort.” (J.A. 263.) When the same nurse was again asked for her
opinion in April 2002, the claim investigator noted that the nurse
“is of the opinion the claimant cannot return to work due to his
age and back problem.” (J.A. 176.) Five months later, Hartford
requested another evaluation from Dr. Abda, the results of which
showed further degeneration of Whitley’s condition. An x-ray
12
revealed narrowing of Whitley’s L5-S1, when previously narrowing
had only been observed in the L4-5 space. (J.A. 321.) Thus, all
of the objective tests requested by Hartford supported Whitley’s
continued disability.
Unlike many ERISA cases, which deal primarily with conflicting
medical diagnoses,4 the dispute here does not stem from Whitley’s
ailment, which is more or less undisputed: doctors on both sides
agree that Whitley has a degenerative disc disease at L4-5.
Additionally, it is undisputed that the disease has spread. Both
sides acknowledge that this problem limits his ability both to sit
and to lift. The disagreement is with respect to how severely the
undisputed disease impairs Whitley’s functioning. Thus, the
central issue of this case is not Whitley’s diagnosis, but whether,
given Whitley’s acknowledged physical limitations, he proved he
could not perform the essential duties of his former occupation.
We, therefore, first address exactly what constitutes the essential
duties of a Wal-Mart truck driver.
Wal-Mart’s Ergonomic Job Analysis Report specifically states
that opening the trailer door involves the ergonomic risk factors
4
In Ellis, 126 F.3d at 233, we held that an administrator
acted reasonably in denying a claim because, despite the opinion of
several doctors that she was disabled, the insurance company had
“substantial evidence” that her doctors did not agree on the proper
diagnosis, and three independent medical reports “concluded that
there was no conclusive diagnosis of Ellis’s condition.” However,
unlike in Ellis, here the doctors concurred in Whitley’s diagnosis.
13
of “force, reach, awkward posture (shoulder flexion, lateral back
flexion).” (J.A. 528.) The report indicates that beyond the
sitting and occasionally lifting, being a Wal-Mart truck driver
requires pushing and pulling:
The force required to release the tandem pin [at the back
of the truck] is estimated to be 30-35 lbs. under optimal
conditions. At times (occasionally), 50-65 lbs. of force
may be required to release the tandem pin, and on
occasion (rarely) up to 75 lbs. of force may be required.
Force required to adjust landing gear, dollying up, is
estimated to be 50-60 lbs. for an empty trailer and and
[sic] 120 lbs. with a loaded trailer. Varying amounts of
force are required to open the roll-up doors on the
trailers, depending upon the condition of the trailer and
the door.
(J.A. 519.) Accordingly, the report summarizes the exertion
required for the job as follows:
The physical demand of this job, overall, can be
classified as “sedentary to light”. The driving
component, in itself, requires mental alertness with some
physical demand required to operate controls, steering,
etc. This physical demand is associated with the ability
to sit for long periods (sedentary) and the ability to
operate driving controls, including steering,
accelerator, brake, clutch, gear changes, radio, and
various dashboard controls (light). The driver’s job
requires no material handling in terms of loading and
unloading freight. However, more taxing physical demands
do occur intermittently. More taxing demands occur as
the driver climbs in and out of the cab, stoops/crouches
during safety checks, dollies the trailer, adjusts
tandems, and opens and closes the trailer door. These
intermittent (and for the most part infrequent) tasks,
individually, fall into classification levels of
“medium”, “heavy” and “very heavy”. Assistance with the
more taxing physical demands is available while the truck
is in the yard. No assistance is available to drivers
after they leave the yard and they must perform these
tasks on the road independently as necessary.
14
(J.A. 529 (emphasis added).) Thus, even if a person could perform
most of the job’s “light” essential duties, he or she might have
difficulty with more taxing physical demands that occur
intermittently. Based on the physical requirements of a Wal-Mart
truck driver outlined in the Ergonomic Job Analysis Report, we
conclude that, although the more strenuous actions of releasing the
tandem pin and adjusting the landing gear do not take up a majority
of a Wal-Mart truck driver’s time on the job, they are nonetheless
essential duties for the purposes of assessing disability.
We now examine Hartford’s conclusion that Whitley, given his
undisputed medical condition, could perform all the essential
functions of a Wal-Mart truck driver. In particular, we assess the
evidence regarding whether Whitley could sit two to four hours at
a time and push and pull with 120 pounds of force.
Hartford looks to the medical opinion of two doctors, Dr.
Turner and Dr. Abda, in support of the reasonableness of its
decision to terminate Whitley’s benefits. However, neither doctor
presented reliable, persuasive evidence that Whitley could perform
all the essential duties of Wal-Mart trucker driver outlined in
Wal-Mart’s Ergonomic Job Analysis Report.
Both functional capacity evaluations, as well as Dr. Abda’s
2002 analysis, indicated that Whitley could not sit for the two to
four hours at a time required by his former job. To refute these
medical results, Hartford presented a letter signed by Dr. Abda,
15
concluding that Whitley could sit for the required amount of time.
However, the letter does only that: it concludes that Whitley is
capable of sitting two to four hours but without any justification
whatsoever. In fact, the letter is simply a series of conclusions,
at which Dr. Turner arrived, with which Dr. Abda indicates she
agrees absent any of her own independent medical evaluation. Dr.
Turner’s own report included no analysis, beyond his observation of
the surveillance video, and such casual, non-medical statements as
“[n]o one who has any significant back pain would intentionally
ride a riding lawnmower.” (J.A. 567.) He then concluded “there is
no reason that [Whitley] could not sit for two to four hours at a
time for a total of eight hours a day, as noted in his own job
description.” (J.A. 568.) Although, Dr. Turner and Dr. Abda made
conclusory statements regarding the length of time Whitley could
sit, they provided no explanation of the medical foundation used to
arrive at these conclusions.
Moreover, there is absolutely no evidence in the
administrative record that Whitley could exert the 120 pounds of
force that may, albeit rarely, be required of a Wal-Mart truck
driver. Although both Dr. Abda and Dr. Turner agreed that Whitley
could push or pull up to 100 pounds, no medical professional
expressed the view that Whitley could push or pull 120 pounds, the
amount of force necessary to “dolly up” a loaded trailer, according
to the Ergonomic Job Analysis Report. (J.A. 519.)
16
In determining disability under Hartford’s policy, the inquiry
is not whether a claimant can perform most of the essential duties
of the job: it is whether the claimant is prevented from
“performing the essential duties of [his] occupation.” (J.A. 60.)
Although Whitley may be capable of performing the light work that
constitutes most of a Wal-Mart truck driver’s responsibilities, his
inability to perform even a single and infrequent, yet essential,
job requirement renders him disabled under Hartford’s policy.
Specifically, we find nothing in the record to indicate that
Whitley is capable of exerting 120 pounds of force. All evidence
on both sides is to the contrary.
In short, Hartford has not presented any evidence with regard
to how Dr. Turner, a physician who had never examined Whitley,
could accurately deduce how long Whitley could sit at a time or the
amount of force with which he could push or pull. Similarly, there
is no evidence in the record of the process used by Dr. Abda to
arrive at her conclusion that Whitley could sit for two to four
hours at a time or could push or pull with 100 pounds of force,
given she had concluded after an office visit that Whitley could
sit for only half an hour and push or pull only ten pounds.
(Compare J.A. 325 with J.A. 329.) Perhaps tellingly, Dr. Abda’s
Progress Note on March 5, 2003 states that she agreed that Whitley
could perform “light duty work,” yet she removed the sentence
stating that Whitley “appears capable of performing his own
17
occupation as a truck driver full-time” from the October 29, 2003
letter Dr. Turner drafted for her to sign. (J.A. 329.) Dr. Abda
instead indicated that Whitley was at a 25% permanent partial
impairment of his spine. Thus, it seems the only medical
professional willing to state explicitly that Whitley could return
to work as a Wal-Mart trucker driver had never actually seen him.5
In light of the functional capacity evaluations,6 Hartford’s
nurse’s review of Whitley’s abilities,7 and Dr. Schaffer’s
evaluation,8 Whitley provided sufficient proof of his continued
5
Dr. Schaffer noted in his report that Dr. Abda indicated that
“[i]t was her opinion that the patient could be able to do light
duty work but she says nothing about going back to long distance
truck driving.” (J.A. 559 (emphasis in original).)
6
The first functional capacity evaluation, performed in March
1999, found Whitley capable of carrying only 20 pounds, pulling 53
pounds, and pushing 36 pounds and that he could sit only up to one
hour without pain. The second functional capacity exam in November
2001 indicated that Whitley could push with an average of 40.5
pounds of force, pull with an average of 42.83 pounds of force, and
sit up to 35 minutes.
7
As previously stated, in December 2001, Hartford employed a
registered nurse to review Whitley’s second functional capacity
evaluation. The nurse found the results to be valid and
recommended an employability analysis based on those results.
8
Dr. Schaffer wrote:
It is my medical opinion that this patient is totally
disabled from returning to long distance truck driving.
His job requirements are clear. They indicate the need
for forceful pushing and pulling, extraction of pins
requiring up to 130 [sic] lbs. of force and operating
trailer doors which at times stick. These are in a
addition to 1-5 hours of prolonged sitting in a bouncing
truck cab. Quite frankly, if I were a CDL examiner I
would fail this patient on his medical application for
continuation of that license based on my belief that he
18
disability, as required by the terms of Hartford’s policy.
Conversely, Hartford provided no substantial evidence that Whitley,
in fact, could perform all of the essential functions of his job.
We hardly find the medical opinions of one doctor based solely on
secondhand information and another doctor preoccupied with
Whitley’s performance at the gym, whose evaluation a year earlier
yielded completely different results, to be thorough or persuasive
when viewed in conjunction with the medical evidence supporting
Whitley’s continued disabled status. Given that Hartford’s
termination of Whitley’s benefits turned on the evaluations of one
medical professional who never performed a firsthand evaluation of
Whitley and another who based her conclusions on her non-medical
observations of Whitley at a local gym, as well as surveillance
would be a dangerous hazard to traffic in addition to
aggravating his physical condition. One cannot maintain
the continuous mental concentrations that are required to
operate a vehicle weighing up to 85,000 lbs. at speeds up
to 75 m.p.h. when one is experiencing pain. Such
distractions would make that driver inattentive and
liable for failing to avoid accidents which other
physically fit drivers would have no trouble avoiding.
(J.A. 559.) When asked if the surveillance tapes altered his
analysis of Whitley’s abilities, Dr. Schaffer replied:
I see nothing in these films which would alter my
opinions as expressed in my report of 9/16/03 to you. I
did note that Mr. Whitley walked with a flexed forward
gait which was certainly not brisk and unusually slow and
quite deliberate. The comments of him [sic] standing
around talking to acquaintances were noted to be
interrupted with moving around frequently, not standing
in a fixed position and on at least one occasion
appearing to lean against a truck bed.
(J.A. 561.)
19
videos depicting Whitley performing a variety of irrelevant
physical activities, we hold that Hartford failed to present
substantial evidence to support its determination that Whitley was
no longer disabled. Moreover, Hartford did not present a shred of
evidence that Whitley could perform the “heavy” to “very heavy”
essential duties of his job.
In sum, the anonymous letter Hartford received in March 2001
obscures the central issues of Whitley’s claim. Whitley initially
received disability benefits due to his limitations regarding
sitting and lifting. The heavy emphasis placed on Whitley’s
purported ability to engage in unrelated activities based on the
letter and surveillance videos, rather than on his ability to
perform all of the essential duties of a Wal-Mart truck driver, is
misplaced. Ironically, the objective tests and evaluations
requested by Hartford, in response to the anonymous letter,
effectively proved Whitley’s continued disability. Even the
doctors upon whom Hartford relies were not of the opinion that
Whitley could exert enough force to perform the medium to heavy
tasks associated with his former job. We, therefore, hold that
Hartford’s decision to terminate Whitley’s benefits was
unreasonable.
20
V.
Given the medical evidence in support of Whitley’s continuing
total disability and the unreliability of the evidence to the
contrary, Hartford failed to present substantial evidence in
support of the termination of Whitley’s benefits. We thereby
reverse the district court’s judgment and remand for entry of
judgment in Whitley’s favor.
REVERSED AND REMANDED WITH INSTRUCTIONS
21