United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge
MATTER IS BEFORE THE COURT on cross motions for
summary judgment, each supported by an accompanying brief.
Each party responded to the other's motion, and replied
to the other's response. These cross-motions are thus
ripe for consideration.
28, 2015, Plaintiff filed suit against Defendant in this
Court. [Doc. 1]. On September 28, 2015, Defendant filed an
Answer to Plaintiff's Complaint. [Doc. 4]. On April 5,
2016, Plaintiff filed its motion for summary judgment
(“Plaintiff's Motion”) and an accompanying
brief in support. [Doc. 8, 9]. On the same day, Defendant
filed its motion for summary judgment (“Defendant's
Motion”) and an accompanying brief in support. [Doc.
11, 11-1]. On April 22, 2016, Plaintiff filed a response in
opposition to Defendant's Motion. [Doc. 12]. On the same
day, Defendant filed a response in opposition to
Plaintiff's Motion. [Doc. 13]. On May 2, 2016, Defendant
filed a reply brief in support of Defendant's Motion.
[Doc. 14]. On the same day, Plaintiff filed a reply brief in
support of Plaintiff's Motion. [Doc. 15].
JURISDICTION AND VENUE
Court has jurisdiction over this matter pursuant to the
Employee Retirement Income Security Act of 1974
(“ERISA”), and in particular 29 U.S.C. §
1132(e) and 1132(f) contained therein, which give District
Courts jurisdiction to hear civil actions involving benefit
claims arising under Employment Welfare Plans such as the one
at issue in this action. 28 U.S.C. § 1331 gives District
Courts jurisdiction to hear cases involving actions arising
under the laws of the United States.
is a citizen and resident of Lincoln County, North Carolina,
and was employed full-time by Netjets, Inc.
(“Netjets”) as a commercial pilot. [Doc. 1] at
1-2. Defendant is the claims administrator for the
Netjects's Long-Term Disability Plan (the
“Plan”), and also insures the benefits under the
Plan. [Doc. 1] at 1-2; [Doc. 4] at 1. Venue in the Western
District of North Carolina, Statesville Division, is
appropriate by virtue of Plaintiff s residence and
Defendant's presence and doing business in this district.
STATEMENT OF FACTS
times relevant to this action, Plaintiff has been a covered
beneficiary under the Netjets, Inc. Long-Term Disability Plan
(the “Plan”), which provides group long-term
disability (“LTD”) benefits to eligible
employees. [Doc. 1] at 2; [Doc. 4] at 2.
Plan provides LTD benefits when a claimant meets the
“test of disability, ” which is defined as:
Test of Disability
From the date that you first become disabled and until
Monthly Benefits are payable for 24 months, you will be
deemed to be disabled on any day if:
• you are not able to perform the material
duties of your own occupation
solely because of: disease or injury; and
• your work earnings are 80% or less of your adjusted
. . . .
If your own occupation requires a
professional or occupational license or certification of any
kind, you will not be deemed to be disabled
solely because of the loss of that license
Record (AR 7010004)
Plan defines “Material Duties” as duties that:
• are normally required for the performance of your
own occupation; and
• cannot be reasonably: omitted or modified. However, to
be at work in excess of 40 hours per week is not a material
Record (AR 7010017)
Plan defines “Own Occupation” as:
This is the occupation that you are routinely performing when
your period of disability begins. Your occupation will be
viewed as it is normally performed in the national economy
instead of how it is performed:
• for your specific employer; or
• at your location or work site; and
without regard to your specific reporting relationship.
the overriding job functions for a Netjets pilot is to
“[b]”e able to meet physical demands as outlined
in the Physical Demands Summary of this Essential Job
Functions form.” [Doc. 8-1] at 1. Among other
requirements, and most relevant to Plaintiffs claim, the
Physical Demands Summary lists the following tasks which a
Netjets pilot must be able to perform:
Ascending or descending ladders, stairs, scaffolding,
ramps, poles and the like, using feet and legs and/or hands
and arms. Body agility is emphasized. This factor is
important if the amount and kind of climbing required exceeds
that required for ordinary locomotion: Climb or descend steep
or narrow passageways such as stairways to aircraft;
climbing on wings, to put engine covers on,
up and down aircraft stairs.
. . . .
Balancing. Maintaining body equilibrium to prevent falling
and walking, standing or crouching on narrow, slippery, or
erratically moving surfaces. This factor is important if the
amount of balancing exceeds that needed for ordinary
locomotion and maintenance of body equilibrium.
. . . .
Crouching. Bending the body downward and forward by
bending leg and spine.
. . . .
Standing. Particularly for sustained periods of time.
. . . .
Walking. Moving about on foot to accomplish tasks,
particularly for long distances or moving from one work site
to another: Sometimes may be required to run while
carrying or pulling suitcase, kitbags, etc.
. . . .
Response to emergency situations.
Must be able to override jammed or manually operative
flight controls; operate and reset emergency exit
handles; Ability to evacuate the airplane in an emergency
from available exits effectively utilizing appropriate
emergency equipment such as slides, rafts and other flotation
devices; Ability to open window and evacuate cockpit via a
rope in an emergency. Must be able to lift, turn and
otherwise manipulate objects weighing up to 65 [pounds]
during emergency procedures including emergency exit doors,
and life-rafts. Must be able to apply at a minimum
the following forces: pitch and roll (arm) control,
two hands available 50-75 [pounds] of force; pitch and roll
(arm) control, one hand available 25-50 [pounds] of force;
yaw (leg) control exerting 150 [pounds] of
Id. at 1-3 (original emphasis omitted) (emphasis
11, 2012, Plaintiff underwent decompression surgery for
lumbar stenosis, which was performed under the auspices of
Dr. Timothy Adamson. (AR 7000064). Following Plaintiff's
general recovery, he returned to work on April 26, 2013.
Id. On November 6, 2013, Plaintiff stopped working,
alleging he suffered from disability, including lumbosacral
spondylosis, tarsal tunnel syndrome, and significant leg
weakness, and could no longer safely and reliably perform
some of the essential job functions for a Netjets pilot.
[Doc. 1] at 3; [Doc. 4] at 2. Plaintiff reported that his
inability to depend on leg strength and stability precluded
him from performing any duty listed on the capabilities
worksheet that require use of his leg. (AR 7000212). More
specifically, Plaintiff reported that “his right leg
has weakness and will ‘give out' on him
intermittently.” Record (AR 7000089). At
Plaintiff's November 6, 2013, appointment, Dr. Adamson
recommended a right L5-S1 epidural injection, referred
Plaintiff to physical therapy, and noted that “[d]ue to
the type of work that Mr. Cline does, we will have him remain
out of work until his next office appointment.” (AR
7000271). Plaintiff underwent physical therapy from December
31, 2013 to February 24, 2014. Id. at AR 7000276. On
February 26, 2014, Plaintiff followed-up with Dr. Adamson,
who noted that “as part of his job duties [Plaintiff]
does need to strengthen the lower extremities, since the
right leg continues to give out from time to time we will
have him remain out of work at this point.”
Id. at AR 7000268.
about May 5, 2014, the end of the elimination period and at
least 180 days after the onset of his asserted disability,
Plaintiff applied for LTD benefits. [Doc. 1] at 3; [Doc. 4]
at 3. On May 24, 2014, Dr. Adamson ordered a right lower
extremity electromyography (“EMG”) nerve
conduction study, which was performed on June 5, 2014 by Dr.
John Welshofer. (AR 7000234); (AR 7000234). Dr. Welshofer
reported that the EMG revealed “[m]ild prolongation of
the conduction velocity of the peroneal nerve around the
fibular head, ” “a mild peroneal neuropathy at
the fibular head, ” and “mild prolongation of the
[right] medial and lateral plantar mixed sensory responses
suggestive of a mild [right] tarsal tunnel compressive
neuropathy, ” but no “electrodiagnostic evidence
to diagnose a lumbar radiculopathy” or “other
significant electrodiagnostic abnormalities.” (AR
7000237). Dr. John Lesher then ordered an ultrasound, which
was performed on July 8, 2014. (AR 7000227); (AR 7000221).
After reviewing the ultrasound, Dr. Lesher reported that he
thought Plaintiff's symptoms are “related to
chronic right S1 radiculitis given his sensory involvement
affecting the lateral aspect of his foot and diminished right
Achilles reflex.” (AR 7000223).
16, 2014, while Plaintiff underwent the evaluations described
above, Defendant sent a letter to Dr. Adamson, asking him to
confirm that Plaintiff was able to perform “Light
Work.” Id. at AR 7000256-7000257. The letter
defined “Light Work” as:
Light work involves lifting, carrying, pushing, or pulling 20
pounds occasionally, up to 10 pounds frequently, or
negligible amount constantly. May include walking and/or
standing frequently even though weight is negligible. May
include pushing and/or pulling of arm and/or leg controls
while sitting most of the time.
Id. Dr. Adamson signed the letter, confirming that
Plaintiff could perform light work, subject to the caveat
that “[t]here is concern he will not be able to use
foot pedal effectively. He may work
light duty if it does not involve
flying.” Id. (emphasis added).
25, 2014, Defendant denied Plaintiff's LTD benefit claim,
asserting that “[t]he medical information does not
support your inability to perform the material duties of your
own occupation based on the information currently noting no
evidence of neuromotor loss of the lower extremities in
particular the lower leg, ankle, foot that would result in
ongoing functional loss of the right foot. Record (AR
November 14, 2014, Plaintiff appealed Defendant's
decision in the form of a letter and supporting
correspondence from Dr. Adamson, Dr. Welshofer, and Dr. Allen
Edwards, Plaintiff's Aviation Medical Examiner.
Id. at AR7000212-7000218. Plaintiff's narrative
states that, after his leg began collapsing at random times,
he realized that “if [his] leg were to give out as it
has and continues to do, that could result in injury to me
and/or passengers ...