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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

CIVIL ACTION NO.: 1:17-CV-611 (WOB-SKB)

SHERRY LAAKE, PLAINTIFF

VS. MEMORANDUM OPINION AND ORDER 

THE BENEFITS COMMITTEE,

WESTERN & SOUTHERN FINANCIAL 

GROUP COMPANY FLEXIBLE BENEFIS 

PLAN, ET AL. DEFENDANTS 

This is a lawsuit filed by Sherry Laake against The Benefits 

Committee, Western & Southern (“W&S”) Financial Group Company 

Flexible Benefits Plan and W&S Financial Group Company Flexible 

Benefits Plan (the “Plan”) for improper denial of long-term 

disability benefits under ERISA. (Docs. 1; 54).

Laake alleges that Defendants improperly denied her long-term 

disability benefits. Plaintiff initially brought her denial of 

benefits claim in federal court in September 2017. (Doc. 1). In 

February 2019, this Court found the Defendants’ decision to deny 

Plaintiff benefits was arbitrary and capricious. (Doc. 28). On 

remand, Defendants again denied Laake long-term disability 

benefits, prompting Laake to reopen this case in February 2020. 

(Doc. 41). 

After a period of discovery, the parties have now filed CrossMotions for Judgment on the Administrative Record. (Docs. 94;

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95). Plaintiff has also filed a Motion for Summary Judgment (Doc. 

98), a Motion to Strike Deposition Errata Sheets (Doc. 101), and 

a Motion and Supplemental Motion for Attorney’s Fees and Costs. 

(Docs. 31; 40). Having reviewed this matter and concluding that 

these motions are appropriate for resolution without oral 

argument, the Court now issues the following memorandum opinion 

and order. 

Factual and Procedural Background 

A. The Plan Terms

The Plan at issue is an employee welfare benefit plan governed 

by ERISA. (Doc. 28 at 1). At all times relevant, Plaintiff was 

a covered beneficiary under the terms of the Plan. (Id.). The 

Plan provides for long term disability (“LTD”) benefits, which it 

defines as follows: 

Long Term Disability or Long Term Disabled shall mean 

for the first 24 months after the expiration of Temporary 

Disability, the complete and continuous incapacity of 

such Covered Employee to perform all of the material 

duties of any occupation for which he is or may 

reasonably become qualified based on his education, 

training, or experience. After the expiration of 24 

months of Long Term Disability, Long Term Disability or 

Long Term Disabled shall mean the complete and 

continuous incapacity of the Covered Employee, to engage

in any and every occupation, business or employment, 

including self employment, for wages, compensation or 

profit.

(Doc. 78 at 63–64). The plain terms of the Plan show that for the 

first 24 months, W&S will evaluate long term disability benefits 

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using one standard, and then employ a different standard if the 

disability extends beyond 24 months. 

There are some exceptions to LTD benefits. The exception 

applicable to this case states: 

§ 7.6: No benefits shall be paid for any period of Long 

Term Disability: (j) where the Long Term Disability 

extends beyond 24 months and is caused by a condition or 

disorder excluded from the definition of Mental Illness 

in Section 2.37. (See Schedule C)[.]

(Id. at 95–96). Schedule C lists Chronic Pain Syndrome as an 

exception. (Id. at 207–08). 

B. Plaintiff’s History Under the Plan

Plaintiff filed for LTD benefits in August 2016, claiming she 

was disabled due to rheumatoid arthritis, which caused her severe 

pain. (Doc. 28 at 2). W&S sent questionnaires to Plaintiff’s 

physicians asking about her condition. (Id.). Plaintiff’s 

rheumatologist, neurologist, and immunologist all said Plaintiff 

met the definition of long-term disabled, and only her neurologist 

said Plaintiff could work in sedentary positions in about three to 

four months. (Id. at 3). 

At the time, these physicians diagnosed Plaintiff with a 

variety of ailments. Her rheumatologist, Dr. Muntel, diagnosed 

her with inflammatory arthritis, chronic foot pain, low back pain, 

and chronic pain in general. (Id.). Dr. Muntel also noted that 

Plaintiff’s pain “frequently seems out of proportion to exam.” 

(Id.). Her neurologist, Dr. Stillwagon, diagnosed Plaintiff with 

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pelvic somatic dysfunction and myofascial muscle pain, chronic 

pain, and right low back pain. (Id.). Her immunologist, Dr. 

Bernstein, diagnosed her with mixed rhinitis, myofascial pain, and 

chronic arthritis. (Id. at 4). Finally, her orthopedist, Dr. 

Eisele, diagnosed her with rheumatoid arthritis, synovitis, and 

unspecified synovitis. (Id.).

Initially, the Benefits Department found that Plaintiff’s 

disability was due to chronic pain, and therefore, her disability 

payments were limited by § 7.6 of the Plan to only the 24-month 

period. (Id.). In the denial letter, Defendants did not cite the 

specific exception that would cause Plaintiff’s benefits to 

terminate in October of 2018. (Id.). Chronic pain is not a 

limitation under § 7.6 of the Plan. 

Plaintiff appealed the decision. W&S referred her case to 

Medical Care Management Corporation (“MCMC”), where Dr. Kramer, a 

rheumatologist, performed an independent review. (Id.). Dr. 

Kramer diagnosed her with atypical inflammatory arthritis, not 

chronic pain. (Id. at 5). However, she found that Plaintiff could 

sit without pain and could therefore work under certain 

limitations. (Id.). The Benefits Appeal Committee considered Dr. 

Kramer’s analysis, along with the documentation Plaintiff 

initially submitted, and found that she was disabled because of 

pain. (Id.). Thus, her disability benefits would terminate after 

24 months, in October 2018. 

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C. Initial District Court Decision

Plaintiff timely brought her denial of benefits claim in 

federal court in September 2017. (Doc. 1). In February 2019, 

this Court reviewed Defendants’ denial of benefits under the

arbitrary and capricious standard. (Doc. 28 at 5). 

This Court made several findings. First, W&S did not cite any 

specific provision of the Plan as the basis for its decision. 

Because the Plan provision that applied was an exclusion, W&S had 

the burden to show it was satisfied. (Id. at 6). Second, the 

Court also found that there was no evidence that Plaintiff suffered 

from Chronic Pain Syndrome. Although physicians had routinely 

diagnosed Plaintiff with various forms of chronic pain, none of 

them ever used the term Chronic Pain Syndrome. (Id. at 7). This 

diagnosis required a psychological basis, which no physician ever 

found consistent with her symptoms. Furthermore, W&S never asked 

any of Plaintiff’s physicians for their professional opinion on 

Chronic Pain Syndrome, and W&S’s independent review physician even 

discounted the idea that she suffered from Chronic Pain Syndrome. 

(Id.). Third, W&S applied the unable to perform “any and every” 

occupation standard when initially determining benefits, and did 

not wait until after 24 months had passed. (Id. at 9). 

The Court therefore found that W&S’s decision was arbitrary 

and capricious under the terms of the Plan. The Court remanded the 

case to allow for W&S to properly evaluate Plaintiff’s claim. (Id. 

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at 10). The Court also denied Plaintiff’s request for attorney’s 

fees (Id. at 12–13), but later granted Plaintiff’s request for 

leave to file for attorney’s fees again. (Doc. 32). W&S appealed 

the decision to the Sixth Circuit, but the case was ultimately 

dismissed for lack of subject matter jurisdiction because the 

remand and attorney’s fees determinations were not final and 

appealable decisions. Laake v. Benefits Committee, W&S Financial 

Group Company Flexible Benefits Plan, et al., 793 F. App’x 413, 

415 (6th Cir. 2019). 

D. On Remand

Despite the pending appeal before the Sixth Circuit, W&S did 

not obtain a stay. (Doc. 33). The Court remanded the case on 

February 21, 2019 (Doc. 28), yet W&S did not contact Plaintiff 

until May 2019 after Plaintiff inquired about the status of her 

claim. (Doc. 76 at 246–53). When W&S finally responded to 

Plaintiff, it asked for: (1) an updated HIPAA release; (2) a list 

of Plaintiff’s health care providers since August 2016; and (3) 

all additional medical information from October 2016 to October 

2018. (Id.). Plaintiff sent Defendants the requested information, 

and also included all medical records through February of 2019. 

(Id.). 

In September 2019, W&S again sent Plaintiff’s file to Dr. 

Kramer, the independent medical reviewer. (Doc. 77 at 437–43). 

W&S limited the evidence Dr. Kramer reviewed to only those medical 

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records dated through October of 2018. (Id.). Dr. Kramer’s report 

indicated that Plaintiff could sit without restriction, stand for 

about an hour per eight-hour workday, and hold negligible weight. 

(Id. at 440–41). She also discussed Plaintiff’s frequent 

infections while on her pain medication, as well as the likelihood 

of decreased functionality when she has flare ups, which occur 

every two to three months. (Id. at 440). Dr. Kramer ultimately 

determined that Plaintiff was not disabled under the terms of the 

Plan. (Id.). 

The following individuals then reviewed Plaintiff’s claim

using all evidence Plaintiff submitted and ultimately denied her 

benefits: Stephen Hussey, Dr. Keith Clark, Dr. Koester, Susan Reed, 

R.N., Lori Ohmer-Mitchell, R.N., Diane Burger, R.N., and Megan 

Rachford, R.N. (Doc. 77 at 445). W&S then sent Plaintiff a denial 

letter on November 14, 2019—almost ten months after the Court 

remanded Plaintiff’s claim, well beyond the forty-five-day 

deadline set forth by ERISA. 29 CFR § 2560.503-1(f)(3). (Id. at 

445–49). 

Following the November 14, 2019 denial, Plaintiff requested 

from W&S all “relevant” documents to her claim. (Id. at 461–62). 

Defendants did not respond until February 6, 2020, two days after 

Plaintiff reopened this case in federal court. (Id. at 472). W&S 

finally produced the Trust Agreement on September 10, 2020. (Doc. 

96, Danzl Decl. at ¶ 6). 

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E. Reopening of the Case

On February 4, 2020, Plaintiff moved the Court to reopen the 

case (Doc. 41), to which Defendants objected. (Doc. 45). 

Defendants argued that Plaintiff was required to exhaust her 

administrative remedies before moving to reopen the case. (Id. at 

5). The Court noted that the district court retains jurisdiction 

to review a denial of benefits following a remand order, and 

because Defendants disregarded the deadlines set forth in ERISA, 

Plaintiff was not required to appeal to W&S. (Doc. 53). 

Plaintiff’s Motion to Reopen was granted. (Id.). She filed 

an Amended Complaint on June 19, 2020. (Doc. 54). In it, she brings 

two claims: (1) improper denial of benefits in violation of ERISA 

and (2) failure to produce plan documents in violation of ERISA. 

(Id.). The magistrate judge allowed for discovery of material 

outside the administrative record because of the procedural 

defects alleged in Plaintiff’s complaint. (Doc. 65). 

Meanwhile, the parties continued with the administrative 

process. Plaintiff appealed her denial of benefits and was denied 

again on September 1, 2020. (Docs. 77 at 511–17; 95 at 16). W&S 

produced the administrative record as part of the discovery 

process. This September 1, 2020 letter was included in the record. 

(Id.). Also included in the record was a review by a second 

independent rheumatologist, Dr. Liarski, conducted after this case 

was reopened. (Id. at 503–10). The denial letter consistently 

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referenced his opinion letter. (Id. at 511–17). Following this 

latest denial of long term disability benefits, Plaintiff again 

requested on November 10, 2020, via discovery request, 

documentation showing the delegation of authority and that W&S was 

complying with its own rules and regulations. (Doc. 74-2 at 113–

18). 

Plaintiff filed her Motion for Attorney’s Fees and Costs on 

March 13, 2019, and her Supplemental Motion for Attorney’s Fees on 

January 24, 2020. (Docs. 31; 40). The Court declined to rule on 

these motions until a final decision had been reached. The parties 

filed Cross-Motions for Judgment on the Administrative Record on 

June 23, 2021. (Docs. 94; 95). Plaintiff also filed her Motion 

for Summary Judgment on July 22, 2021–almost a month after the 

dispositive motion deadline. (Doc. 98). Plaintiff then filed a 

Motion to Strike Deposition Errata Sheets on August 2, 2021. (Doc. 

101). In each filing, the opposing party timely filed their 

Response, and the moving party filed their Reply. 

ANALYSIS 

A. LTD Benefits Determination 

i. The Administrative Record 

As an initial matter, the Court addresses arguments from both 

parties about limiting the administrative record.

First, Plaintiff argues that the documents included in the 

administrative record that were issued after the case was reopened 

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should be excluded from the Court’s consideration because they are 

post-litigation rationalizations. (Doc. 95 at 24–26). This 

includes an opinion letter from Dr. Liarski that was issued on 

June 16, 2020 and W&S’s undated denial letter of Plaintiff’s appeal 

received on September 1, 2020. (Id.). 

The Sixth Circuit has held that a court may consider the 

evidence “at the time the final decision was made.” Miller v. 

Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991). Because 

the Court already determined that the administrative appeal was 

unnecessary to reopen the case, it therefore follows that the 

“final” decision that the Court is considering is the denial dated 

November 14, 2019. (See Doc. 53). The Supreme Court has said 

that, “the regulations merely state that a claim may be treated as 

having been denied after the 60- or 120- day period has elapsed . 

. . . This provision thus enables a claimant to bring a civil 

action to have the merits of [her] application determined, just as 

[she] may bring an action to challenge an outright denial of 

benefits.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 

134, 144 (1985). Additionally, the Sixth Circuit has written: 

[I]t strikes us as problematic to, on one hand, recognize 

an administrator’s discretion to interpret a plan by 

applying a deferential ‘arbitrary and capricious’ 

standard of review, yet, on the other hand, allow the 

administrator to ‘shore up’ a decision after-the-fact by 

testifying as to the ‘true’ basis for the decision after 

the matter is in litigation . . . . 

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Univ. Hosp. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 848 

n.7 (6th Cir. 2000). 

The case here is a straightforward application of these 

principles. First, W&S waited over 270 days from the Court’s remand 

to issue an initial decision regarding Plaintiff’s claims. (Doc. 

53 at 5). Aside from this being egregious, Plaintiff was in the 

right to consider her claim denied at this point. See Russell, 

473 U.S. at 144. Hence, she properly moved to reopen this action 

in February 2020 and the Court granted the motion in June 2020. 

(Doc. 53). Second, Dr. Liarski’s opinion letter is much more 

thorough than Dr. Kramer’s opinion letter, going further in-depth 

about his disagreements with Plaintiff’s current treatment plan 

and speculating that a different approach would help her pain. 

(Doc. 77 at 507). Dr. Liarski’s analysis also provides a much 

more thorough explanation as to why he believes Plaintiff could 

perform sedentary work and applied Plaintiff’s conditions to the 

Plan terms. (Id. at 506–07). Third, W&S’s denial letter received 

September 1, 2020 relies heavily on Dr. Liarski’s analysis to 

justify denying Plaintiff’s claims and has nearly two more pages 

of explanation as to why W&S denied her claim when compared to the 

November 2019 letter. (Compare Doc. 77 at 511–17 with id. at 445–

49). 

Courts require insurance companies to explain why they are 

denying a claimant benefits. Moore v. Lafayette, 458 F.3d 416, 

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436 (6th Cir. 2006). Plans are only required to substantially 

comply with ERISA. Id. But here, W&S knew it was being sued by 

Laake for a second time. It curated another physician’s opinion 

and then used that opinion to craft a carefully worded denial 

letter after litigation had already commenced to ensure 

substantial compliance with ERISA. This is very clearly a postlitigation rationalization. See Univ. Hosp. of Cleveland, 202 

F.3d at 848 n.7. Accordingly, it should not be considered as part 

of the administrative record. 

Second, Defendants argue the Court should only consider 

Plaintiff’s medical evidence dated through October 2018 as part of 

the administrative record. Defendants explained “[b]ecause the 

question [on remand] is whether Ms. Laake met the Plan’s definition 

of Long Term Disability as of October 2018, only those records 

reflecting Ms. Laake’s condition through October 2018 are relevant 

to the inquiry.” (Doc. 77 at 445). The Defendants are incorrect 

about this limitation. Remands from district courts are to be 

treated as an appeal from an adverse benefit determination. See 

Stiers v. AK Steel Benefits Plans Admin. Comm., No. 07-145, 2008 

WL 1924252, at *6 (S.D. Ohio Apr. 29, 2008). On appeal, the 

claimant can provide additional evidence of his or her disability. 

29 C.F.R. § 2560.503-(1)(h)(2)(ii)–(iv). Plaintiff supplied 

additional information of her disability through February of 2019, 

when the Court remanded the case. 

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“In an ERISA claim contesting a denial of benefits, the 

district court is strictly limited to a consideration of the 

information actually considered by the administrator.” Killian v. 

Healthsource Provident Adm’r, Inc., 152 F.3d 514, 522 

(6th Cir. 1998). It appears Defendants considered different 

medical evidence at different points on remand. W&S never asked 

Plaintiff for medical records dated after October 16, 2018. (Doc. 

76 at 246–51). The Benefits Committee only supplied Dr. Kramer 

with medical records through October of 2018. (Doc. 77 at 437–

43). But by W&S’s own admission, the Benefits Department 

considered all medical records Plaintiff submitted for the 

November 2019 denial. (Doc. 94-1; Response to Interrog. No. 3). 

Therefore, this Court can consider all the medical evidence 

Plaintiff submitted.1

ii. Standard of Review 

Next, Plaintiff argues for a de novo review of the record. 

Specifically, she argues that Defendants impermissibly delegated 

discretionary authority under the Plan. (Doc. 95 at 26–29). 

Defendants argue that the Plan allows them to grant discretionary 

authority to anyone they deem fit. (Doc. 99 at 10–13). 

Generally, courts review denial of benefit actions de novo 

unless the plan in question grants discretionary authority to 

1 This is largely immaterial because even the evidence dated before 

October 2018 shows Plaintiff was disabled under the terms of the Plan. 

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determine eligibility for benefits to the administrator. 

Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101, 115 (1989). 

If such a grant of discretionary authority exists, then courts 

review decisions under an arbitrary and capricious standard. Id. 

However, “when the benefits decision ‘is made by a body other than 

the one authorized by the procedures set forth in a benefits plan,’ 

federal courts review the benefits decision de novo.” Shelby Cty. 

Health Care Corp. v. Majestic Star Casino, 581 F.3d 355, 365 (6th 

Cir. 2009) (quoting Sanford v. Harvard Indus. Inc., 262 F.3d 590, 

597 (6th Cir. 2001)). 

Plaintiff argues that the Benefits Committee impermissibly 

delegated authority to the Benefits Department. (Doc. 95 at 26–

29). This argument is well-taken. Neither party disputes that 

the Plan grants discretion to the “Benefits Committee.” (Doc. 

78 at 156). The Plan states that “all action” by the Benefits 

Committee must be taken by a majority vote of a quorum of members 

of the Benefits Committee. (Id.). However, Plaintiff argues that 

these procedures were not followed. Specifically, Plaintiff 

points to the individuals listed in attendance at the October 10, 

2019 meeting on the disability evaluation for Laake’s claim for 

benefits. (Doc. 95-1, Resp. to Interrog. 3 at 2–3). In 

attendance, there were multiple individuals who voted to deny 

Plaintiff’s benefits but who are not actually members of the 

Benefits Committee. (Id.). 

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Defendants respond by arguing that this is accounted for in 

the Plan, which grants the Benefits Committee broad discretionary 

authority: 

To appoint or employ the Benefits Department and any 

individuals to assist in the administration of the Plan 

. . . and any other agents it deems advisable, including 

legal, accounting, and actuarial counsel. 

(Doc. 78 at 157). 

The word “assist” means: “To help, aid, succor, lend 

countenance or encouragement to; participate in as an auxiliary. 

To contribute effort in the complete accomplishment of an ultimate 

purpose intended to be effected by those engaged.” Assist, BLACK’S 

LAW DICTIONARY (5th ed. 1983) (emphasis added). Assist does not mean 

to join or be a part of. The terms of the Plan allow the Benefits 

Committee to receive contributions from anyone it deems fit. But 

it does not permit the Benefits Committee to confer voting rights 

to others for the purposes of official actions. Any individual is 

permitted to assist, but assist does not mean that the individual 

can become a part of the Benefits Committee. 

The group that met on October 10, 2019, was comprised of 

individuals that had a right to contribute to the meeting 

discussion. However, nothing in the Plan shows that members not 

a part of the Benefits Committee had a right to vote on claims. 

Defendants, in their interrogatories, responded that the following 

individuals attended the October 10, 2019 meeting where Ms. Laake’s 

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benefits were reviewed and decided: Stephen Hussey, Jr.; Lori 

Ohmer-Mitchell, R.N.; Megan Rachford, R.N.; Diane Burger, R.N.; 

Susan Reed, R.N.; Dr. Keith Clark, M.D.; Dr. Theresa Koester, M.D.; 

Michael Altenau; Patricia Donohoo; Liz Tabeling; John Kasising; 

and Tracy Bickers (Doc. 95-1, Resp. to Interrog. 3 at 2–3). The 

Benefits Committee at the time was comprised of Donald Wuebbling, 

Stephen Husey, Jr., Linda Lake, Jeffrey Meek, Daniel Harris, and 

Dr. Keith Clark. (Id. at 3). By Defendants’ own admission, only 

two members of the Benefits Committee were in the meeting about 

Ms. Laake’s claim. This was not enough to form a quorum to vote 

as to what action to take on Ms. Laake’s claim. (Doc. 78 at 156). 

Yet Hussey testified in his deposition that “the group” met on 

October 10, 2019 and “determined that Ms. Laake was not long-term 

disabled.” (Doc. 81, Hussey Dep. at 138:5–8).2 

Hussey’s deposition testimony also shows the W&S consistently 

blurred the lines between the Benefits Committee and the Benefits 

Department. For example, when asked who at the October 18, 2016 

meeting decided to approve the initial 24 months of disability to 

Ms. Laake, Hussey answered, “All members of the meeting . . . That 

was the determination of the group.” (Id. at 73:6–16). Hussey 

2 Defendants claim that Michael Altenau, Patricia Donohoo, Liz Tabeling, 

and Tracy Bickers attended the meeting but did not offer an opinion on 

whether Plaintiff’s LTD remand should be granted. (Doc. 95-1, Resp. to 

Interrog. 3 at 2–3). Even if this were true, it would not change the 

analysis. There were still plenty of individuals who were voting on 

Plaintiff’s LTD benefits but who had not been granted authority to do 

so by the Plan. 

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also testified in his deposition that the Benefits Department, not 

the Benefits Committee, decides a claimant’s eligibility for 

benefits. (Id. at 31:8–21). 

Defendants cite to a case from the Eastern District of 

Tennessee to argue that discretionary authority can be delegated 

in a plan. Nelson v. Unum Group Corp., No.: 1:13-cv-58, 2014 WL 

3908183, at *8 (E.D. Tenn. Aug. 11, 2014). The Court agrees with 

Defendants that the Plan can delegate authority, but such a 

delegation must be unequivocally clear. Perez v. Aetna Life Ins. 

Co., 150 F.3d 550, 555 (6th Cir. 1998). “While ‘magic words’ are 

unnecessary to vest discretion in the plan administrator . . . 

this circuit has consistently required that a plan contain a clear 

grant of discretion to the administrator to determine benefits or 

interpret the plan.” Id. (internal quotations omitted). The word 

“assist” does not clearly grant discretion. 

Defendants’ argument that the Plan allows the Benefits 

Committee to delegate authority is simply unpersuasive. 

Individuals who are permitted to “assist” in administration of a 

Plan cannot hold the same authority as those who have been 

delegated the authority to administer the Plan. “Administer” and 

“assist in administration” are not the same thing. Accordingly, 

the Court agrees with Plaintiff that de novo review is appropriate

because the Court must consider who made the benefit determination 

as part of its review.

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iii. Plaintiff is Disabled Under the Terms of the Plan

a. De Novo Standard 

De novo review is a non-deferential standard of review. This 

means that the Court will not defer to W&S’s findings or plan 

interpretations. See Perry v. Simplicity Eng’g, 900 F.2d 963, 966 

(6th Cir. 1990). The Court takes “a fresh look at the 

administrative record but may not consider new evidence or look 

beyond the record that was before the plan administrator.” Wilkins 

v. Baptist Healthcare Sys. Inc., 150 F.3d 609, 616 (6th Cir. 1998). 

The review is confined to the administrative record as it existed 

when W&S issued its final determination upholding the termination 

of Plaintiff’s benefits. Moon v. Unum Provident Corp., 405 F.3d 

373, 378 (6th. Cir. 2005). The Court may consider both quantity 

and quality of the evidence that the plan administrator considered 

when making its decision. See Crider v. Highmark Life Ins. Co., 

458 F. Supp. 2d 487, 503 (W.D. Mich. 2006) (citing Smith v. Unum 

Life Ins. Co. of Am., 305 F.3d 789, 794 (8th Cir. 2002)). In its 

evaluation, the Court decides whether it agrees with the Plan 

administrator’s decision. Perry, 900 F.2d at 966. 

b. Meaning of “Proof” Under the Plan 

After the initial 24-month period, the Plan defines LTD as, 

“the complete and continuous incapacity of the Covered Employee, 

to engage in any and every occupation, business or employment, 

including self-employment, for wages, compensation or profit.” 

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(Doc. 78 at 63–64). Disability benefits are further limited “where 

the Long Term Disability extends beyond 24 months and is caused by 

a condition or disorder excluded from the definition of Mental 

Illness in Section 2.37.” (Id. at 96). In Section 2.37, the Plan 

excludes from the definition of “Mental Illness” Chronic Pain 

Syndrome. (Id. at 96; 207). W&S may also limit disability 

benefits if the claimant “fails or refuses to furnish proof of 

Long Term Disability as required by the Benefits Department, 

refuses to be examined, or refuses to provide any release required 

by the Benefits Department.” (Id. at 95). 

The parties disagree as to what the term “proof” means under 

the Plan. Defendants argue that proof requires that Plaintiff 

submit objective medical evidence of her disability. (Doc. 94 at 

24–27). Plaintiff argues that the Plan does not require this 

higher threshold of evidence. (Doc. 100 at 3–5). 

The Court is inclined to agree with Plaintiff. Nowhere in 

the Plan is the term “proof” defined. The Fourth Circuit has 

defined proof not to require objective medical evidence, but rather 

proof that is “objectively satisfactory.” Gallagher v. Reliance 

Standard Life Ins. Co., 305 F.3d 264, 270 (4th Cir. 2002). When 

proof has not been defined, district courts in the Sixth Circuit 

have also considered subjective evidence, including the insured’s 

self-reported evidence. See James v. Liberty Life Assurance Co. 

of Boston, 984 F. Supp. 2d 730, 739-40 (W.D. Mich. 2013). But 

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courts will still give weight to evidence “in accordance with the 

supporting medical tests and objective findings that underline the 

opinion.” Crider, 458 F. Supp. 2d at 505. Accordingly, the Court 

should consider any objective evidence Plaintiff has provided but 

may also consider self-reported and subjective evidence submitted 

by the Plaintiff. 

c. Plaintiff’s Chronic Pain Syndrome Diagnosis 

Another one of Defendants’ arguments is that Plaintiff has 

been diagnosed with Chronic Pain Syndrome, and this in effect 

removes her from disability eligibility under the terms of the 

Plan. (Doc. 94 at 16). Plaintiff argues that she was never 

diagnosed with Chronic Pain Syndrome. (Doc. 54 at ¶15). Plaintiff 

is mistaken—she was clearly diagnosed with Chronic Pain Syndrome 

during a May 2018 visit with Dr. Muntel. (Doc. 76 at 497). But 

this does not mean that Plaintiff’s claims fail. 

The terms of the Plan dictate that to be ineligible for 

benefits, the claimant’s Chronic Pain Syndrome “caused” the long 

term disability. (Doc. 78 at 96). Defendants’ argument has a 

few notable flaws. First, the word “cause” means “[t]o be the 

cause or occasion of; to effect as an agent; to bring about; to 

bring into existence; to make to induce; to compel.” Cause, BLACK’S 

LAW DICTIONARY (5th ed. 1983) (emphasis added). Plaintiff’s first 

time being diagnosed with Chronic Pain Syndrome was in 2018, nearly 

two years after W&S had initially awarded her long term disability 

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benefits. Although the Plan has two different standards of proof 

for determining the continuation of disability benefits after 24

months, the Plan does not call for the redetermination of her

disability. Because Chronic Pain Syndrome was diagnosed after 

Plaintiff was already deemed to be disabled, it cannot be said now 

that Chronic Pain Syndrome “caused” her disability. Furthermore, 

when Plaintiff was initially awarded disability benefits, Dr. 

Muntel specifically disavowed Chronic Pain Syndrome, explaining it 

would not explain Plaintiff’s response to prednisone. (Doc. 76 at 

154). Plaintiff was diagnosed with a plethora of other ailments 

that also could have caused her disability. 

Second, the evidence of Chronic Pain Syndrome is minimal and 

peripheral at best. Dr. Muntel diagnosed Plaintiff with Chronic 

Pain Syndrome in May of 2018. (Id. at 497). However, in the 

subsequent visits, Dr. Muntel makes no mention of Chronic Pain 

Syndrome again in her patient visit notes. (See Doc. 76 at 269–

76; 483–89; 498–501; Doc. 77 at 6–13; 14–21). Furthermore, Chronic 

Pain Syndrome requires psychological factors to play a part in the 

onset of pain. (Doc. 28 at 6). In the visit where Dr. Muntel 

diagnosed Plaintiff with Chronic Pain Syndrome, there was no 

discussion of any mental illness, such as anxiety or depression. 

(Doc. 76 at 490–97). Although the Court itself is not a physician, 

the Court notes the lack of discussion from Dr. Muntel about 

Plaintiff’s Chronic Pain Syndrome diagnosis. Given the weight of 

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the evidence showing Plaintiff was diagnosed with a host of other 

ailments, the Court does not find Dr. Muntel’s diagnosis 

dispositive. 

d. Plaintiff’s Ability to Perform “Any” Job 

The primary question then comes down to whether Plaintiff can 

perform sedentary work. Defendants argue that she can; Plaintiff 

argues that she cannot. After a full review of the administrative 

record, the Court concludes that Laake is not able to perform 

sedentary job functions. 

Regulations define sedentary work as follows: 

Sedentary work involves lifting no more than 10 pounds 

at a time and occasionally lifting or carrying articles 

like docket files, ledgers, and small tools. Although a 

sedentary job is defined as one which involves sitting, 

a certain amount of walking and standing is often 

necessary in carrying out job duties. Jobs are sedentary 

if walking and standing are required occasionally, and 

other sedentary criteria are met.

20 C.F.R. § 404.1567(a).3 Walking and standing “occasionally” has 

been found by the Sixth Circuit to mean up to one-third of the 

time. Creech v. Unum Life Ins. Co. of N. Am., 162 F. App’x 445, 

451 n.10 (6th Cir. 2006); see also Wages v. Secretary of Health 

and Human Servs., 755 F.2d 495, 498 (6th Cir. 1985) (finding that 

“occasionally” meant at least two hours of an eight hour workday). 

3 The Court takes judicial notice of this definition. Brooking v. Harford 

Life and Acc. Ins. Co., 167 F. App’x 544, 548 (6th Cir. 2006). 

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After reviewing the Administrative Record, the Court notes 

there are two competing physician views at play: those of the 

treating physicians and those of W&S’s independent medical 

reviewers. The Supreme Court has held that ERISA does not require 

plan administrators to accord special deference to the opinions of 

treating physicians. Black & Decker Disability Plan v. Nord, 538 

U.S. 822, 833 (2003). Still, “a plan administrator may not 

arbitrarily disregard reliable medical evidence proffered by a 

claimant, including the opinions of a treating physician.” Evans 

v. Unum Provident Corp., 434 F.3d 866, 877 (6th Cir. 2006). 

Plaintiff is diagnosed with seronegative inflammatory 

arthritis, which results in widespread joint pain that can be 

sporadic. (Doc. 77 at 439–40). Dr. Muntel has noted that 

Plaintiff’s condition is marked by unpredictable and cyclical 

flare-ups, during which she must go off the medication that helps 

manage her pain. (Id. at 440). As Dr. Muntel explained to Dr. 

Kramer, W&S’s independent physician reviewer, Plaintiff has 

recurrent sinus infections and bronchitis every two to three months 

while taking Xeljanz, the medication that seems to help Plaintiff’s 

pain the most. (Id. at 439–40). When Plaintiff is forced to go 

off Xeljanz because of these infections, her inflammatory 

arthritis is exacerbated. (Id.). 

Defendants argue that Plaintiff is not limited in her upper 

body movement and ability to type. Dr. Kramer declared that 

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Plaintiff “is not restricted in the use of her hands. She can reach 

at any level.” (Id. at 441). Defendants primarily point to July 

and October 2018 visits with Dr. Muntel where she observed that 

Plaintiff had minimal wrist fullness and tenderness with 100% fists 

and no obvious hand synovitis or PIP tenderness. (Id. at 8; 16). 

But this cherry-picks Plaintiff’s medical records. For example, 

despite Dr. Muntel observing no PIP tenderness in Plaintiff’s July 

2018 visit, she did observe right hand first and second digit 

tenderness in a February 2019 visit. (Id. at 289). The Court 

also notes Plaintiff’s right shoulder bursitis diagnosis. (Doc. 

76 at 464). She was also diagnosed with cervical spinal stenosis

and degenerative arthropathy of the spinal facet joint in February 

2017. (Id. at 441). Dr. Muntel has also consistently noted that 

Plaintiff has pain associated with her elbows when she evaluates 

her range of motion. (Id. at 484; 492; 500). She also has observed 

fullness in Plaintiff’s wrists which causes her pain. (Id. at 

439; 477; 484; 492). Given the pain that Plaintiff has in her 

upper extremities and the objective evidence of such pain in 

Plaintiff’s medical records, Plaintiff is restricted in the use of 

her hands. She cannot reach any level, at least not without pain 

and discomfort. 

Perhaps most compelling is Dr. Kramer’s finding that 

Plaintiff is limited to walking and standing fifteen minutes at a 

time with a maximum ability to do so for up to one hour in an 

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eight-hour workday. (Doc. 77 at 441). Sedentary jobs require an 

individual to be able to stand and walk for at least two hours of 

the eight-hour workday. Wages, 755 F.2d at 498. Moreover, Dr. 

Kramer notes that “this functionality will be reduced even further 

during [Plaintiff’s] frequent episodes of disease exacerbation due 

to medication discontinuation.” (Id.). Meaning, Plaintiff’s 

already limited ability to walk and stand is reduced periodically. 

On Plaintiff’s best day, she cannot meet the physical requirements 

for sedentary work let alone the periodic physical condition she 

will be in because she is forced off her management medication. 

Also compelling is Dr. Muntel’s evaluation of Plaintiff’s 

ability to work as of October 2018. Dr. Kramer’s notes state that 

Dr. Muntel “expressed the claimant would not be able to hold down 

a job since she has sinus infections every couple of months causing 

discontinuation of her medications and exacerbation of the 

arthritis, especially her ankles.” (Id. at 440). Dr. Muntel 

further commented that Plaintiff “would not be able to work for 

several weeks at a time until her arthritis stabilized after 

restarting anti-arthritis medication . . . .” (Id.). Dr. Muntel 

also noted that although Plaintiff’s hip surgery was successful, 

the source of the Plaintiff’s pain has always been her ankles. 

(Id.). This comment goes on to discredit many of the arguments 

made by Defendants that argue Plaintiff’s pain was improved after 

a successful hip surgery. Her hip was not the major source of 

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pain. So, alleviating some of the pain from her hip did not solve 

the problem. (Id.). 

Given the evidence, the Court confidently concludes that 

Plaintiff was disabled under the terms of the Plan as of October 

of 2018.4 Plaintiff is incapable of performing sedentary work. 

She is unable to work any occupation. Accordingly, Plaintiff is 

entitled to reinstatement of benefits and back pay. Hayden v. 

Martin Marietta Materials, Inc. Flexible Benefits Program, 763 

F.3d 598, 609 (6th Cir. 2014). For the above reasons, Plaintiff’s 

Motion for Judgment on the Administrative Record is GRANTED, and 

Defendants’ Motion for Judgment on the Administrative Record is

DENIED as it relates to disability benefits.

B. Statutory Penalties

Plaintiff’s Motion for Summary Judgment, (Doc. 98), on 

Plaintiff’s 29 U.S.C. § 1132(c) claim is untimely and is DENIED.5 

However, Defendants move for Judgment on the Administrative Record 

on this claim. (Doc. 94). Under Rule 52, the Court should make 

4 The Court also finds that there is sufficient evidence to support a 

finding of arbitrary and capricious decision-making as it relates to 

Laake’s LTD benefit determination. 

5 Plaintiff’s Motion for Summary Judgment was filed July 22, 2021—almost 

a full month after the June 23, 2021 dispositive motions deadline. When 

a scheduling order is not met, the party that failed to meet the deadline 

must show good cause for that failure. Winter Enters., LLC v. West Bend 

Mut. Ins. Co., No. 1:17-cv-360, 2019 LEXIS 125841, at *6 (S.D. Ohio July 

29, 2019). Plaintiff has not shown good cause for her tardiness, and 

thus her Motion for Summary Judgment is denied. 

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findings of fact and render judgment accordingly after the parties 

have been fully heard on an issue, even if judgment is in favor of 

the non-moving party. FED. R. CIV. PRO. 52(a). After review, it 

is evident that the Defendants withheld documents from Plaintiff, 

and she is entitled to some form of relief. 

The primary purpose of § 1132(c) is to punish plan 

administrators who fail to provide claimants with documents as 

required under ERISA. Bartling v. Fruehauf Corp., 29 F.3d 1062, 

1068 (6th Cir. 1994). ERISA requires: 

The administrator shall, upon written request of any 

participant or beneficiary, furnish a copy of the latest 

updated summary, plan description, and the latest annual 

report, any terminal report, the bargaining agreement, 

trust agreement, contract, or other instruments under 

which the plan is established or operated.

29 U.S.C. § 1024(b)(4). After thirty days, a plan administrator 

who fails to provide the documents related to the request may be 

subject to a maximum $110 penalty per day. 29 U.S.C. § 1132(c); 

29 C.F.R. 2575.502(c)(1). 

i. Duty to Provide Plaintiff with “Relevant” Documents 

Plaintiff argues without merit that 29 U.S.C. §§ 1024, 1029, 

29 C.F.R. §§ 2560.503-1(h)(2)(iii), and (m)(8) establish a duty 

for W&S to provide all documents “relevant” to her claim. (Doc. 

54 at 9; ¶46). But Defendants cannot be penalized under § 1132(c) 

for a violation of § 2560.503-1. It is worth noting that § 

2560.503-1 is a regulation that implements 29 U.S.C. § 1133, not 

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§ 1132. VanderKlok v. Provident Life and Accident Ins. Co., 956 

F.2d 610, 615 (6th Cir. 1992). Therefore, violations of § 1133 by 

the plan administrator do not create liability on the plan 

administrator under § 1132(c). See Cultrona v. Nationwide Life 

Ins. Co., 936 F. Supp. 2d 832, 853 (N.D. Ohio 2013). 

ii. Duty to Provide Plaintiff with Plan Documents

Defendants nonetheless had a duty to provide Plaintiff with 

Plan documents upon written request. Plaintiff alleges that 

Defendants failed to properly do so. 

The Sixth Circuit has deliberately limited the scope of 

§ 1024(b)(4) to only the class of documents pertaining to how a 

plan is operated. Allinder v. Inter-City Prods. Corp., 152 F.3d 

544, 549 (6th Cir. 1998). The “other instruments under which the 

plan is established or operated” provision is not meant to be a 

broad “catch-all.” Cultrona, 936 F. Supp. 2d at 853–54 (citing 

Allinder, 152 F.3d at 549). 

It is worth noting that Plaintiff alleges Defendants failed 

to provide documents after four different requests: 2016, 2017, 

November 2019, and November 2020. The requests from 2016 and 2017 

are barred by the statute of limitations under ERISA, which courts

in this circuit have deemed to be one year. See Kumar v. Higgins, 

91 F. Supp. 2d 1119, 1123 (N.D. Ohio 2000) (citing Meade v. Pension 

Appeals & Rev. Comm., 966 F.2d 190 (6th Cir. 1992)). Plaintiff 

did not allege statutory penalties in her first complaint. 

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Additionally, another complaint of document withholding comes from 

the discovery process in November 2020. This should have been 

addressed in a motion to compel, not at this late stage of 

litigation. Accordingly, the Court only considers the statutory 

penalty claim as it relates to the November 2019 request. 

Turning to this specific request, the Court finds that on 

November 18, 2019, Plaintiff sent the Benefits Committee a letter 

asking for all “relevant” documents related to W&S’s denial of 

Laake’s disability claims. (Doc. 77 at 461–63). The letter 

specifically asked for documentation: (1) relied upon in making 

the benefit determination; (2) submitted, considered, and 

generated during the decision; (3) demonstrating compliance with 

the administrative processes; and (4) of statements of policy or 

guidance with respect to the plan concerning the denied treatment 

option or diagnosis. (Id.). Defendants responded to and 

acknowledged the request on November 22, 2019. (Id. at 465). 

However, W&S did not send the 2019 Summary Plan Description until 

February 6, 2020. (Id. at 472). W&S finally produced the Trust 

Agreement on September 10, 2020. (Doc. 96, Danzl Decl. at ¶ 6). 

Plaintiff is not entitled to the administrative record she 

seeks. See Cultrona, 936 F. Supp. 2d at 854. However, the request 

Plaintiff made clearly shows that she sought documentation that 

showed the “currently operative, governing Plan documents,” all of 

which are “instruments under which the plan is established or 

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operated” per § 1024(b)(4). Curtiss-Wright Corp. v. 

Schoonejongen, 514 U.S. 73, 84 (1995). Plaintiff was entitled to 

this documentation, and Defendants did not provide that 

information until February 6, 2020, and September 10, 2020. 

iii. Prejudice by Lack of Documentation

A showing of prejudice, although a factor, is not essential 

for a party to succeed on a statutory penalty claim. Gatlin v. 

Nat. Healthcare Corp., 16 F. App’x 283, 289 (6th Cir. 2001). Here, 

Plaintiff argues that failure to provide the requested documents 

prejudiced her on the grounds that she did not have her doctors 

submit relevant evidence. The Court agrees that the lack of 

document production prevented Plaintiff from understanding why her 

claim is continually denied. For example, nothing in the Plan 

indicates that she needed objective evidence of her disability. 

Yet if the internal policies and procedures governing the review 

of claims had outlined objective evidence as a requirement, 

Plaintiff could have provided documentation supporting an 

objective diagnosis. Along the same lines, Plaintiff has never 

been physically examined by Defendants. Understanding the 

internal policy as to why that is would also have been helpful in 

making arguments to the Appeals Committee. Essentially, Plaintiff 

has been left in the dark as to what W&S would consider the “right” 

kind of evidence, all while asking Defendants to explain what

evidence it was considering when making its determination.

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The Court also notes Defendants’ severe negligence in 

providing these documents. Following Plaintiff’s November 2019 

request, W&S waited until February 6, 2020 and September 10, 2020 

to finally respond to the request. (Doc. 77 at 472). It appears 

inexcusable and egregious delays are a frequent issue at W&S as it 

relates to Ms. Laake’s claim. When it finally did respond, W&S 

only provided the Plan, Summary Plan Description, and a 

significantly trimmed-down copy of the administrative record, 

without even addressing the other requests Plaintiff had made. 

(Id. at 474–75). After Plaintiff again asked for the documents in 

March 2020, Defendants notified Plaintiff that they would be 

turning over more documents—something they should have done from 

the start. (Id. at 478). Then, in the same letter, Mr. Altenau 

from W&S tells Plaintiff to “let us know immediately what specific 

materials are missing.” (Id.). It is beyond the comprehension of 

the Court how Plaintiff is supposed to know more than W&S in terms 

of what internal policy documents exist and are therefore missing 

from production. 

Courts have found an award of the maximum statutory amount 

of $110 per day in cases where there is evidence of egregious 

conduct and prejudice. See Shephard v. O’Quinn, No.: 3:05-cv-79, 

2006 LEXIS 24252, at *10 (E.D. Tenn. Apr. 26, 2006) (awarding the 

maximum amount when the defendant’s behavior was “egregious” and 

caused plaintiff to lose insurance coverage). The Court, in this 

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case, has great discretion as to how much in statutory penalties 

to award. Ciaramitaro v. Unim Life Ins. Co. of Am., 628 F. App’x 

410, 417 (6th Cir. 2015). But the factors in this case justify 

the maximum statutory penalty of $110 per day. See also Gatlin, 

16 F. App’x at 289–90 (granting $100 per day when defendants’ delay 

prevented plaintiff from appealing at the earliest possible time).

As to the actual amount, Plaintiff alleges the delay in the 

production of Plan documents, Trust Agreement, and internal Plan 

policies and procedures warrant penalties. Defendants argue that 

no such internal documents exist. (Doc. 94-1, Resp. to Doc. Req.

5 at 5). Although the Court is dubious that there are no internal 

documents outlining how the Benefits Committee should evaluate 

claims, absent more evidence, the Court will not award penalties 

for these missing, hypothetical documents. Accordingly, the 

penalties will be limited to the 50 day delay for the Plan and 

Summary Plan Documents and 267 days for the Trust Agreement. The 

award therefore totals $40,370. 

C. Motion to Strike Errata Sheets

Plaintiff’s Motion to Strike Errata Sheets is DENIED as moot.6

6 The egregious nature of Defendants’ errata sheets is not lost on this 

Court. The Sixth Circuit makes clear that a deponent is only permitted 

to correct typographic and transcription errors. Trout v. FirstEnergy 

Generation Corp., 339 F. App’x 560, 565–66 (6th Cir. 2009). Yet the 

changes Plaintiff complains of blatantly attempts to rewrite witness 

testimony made under oath. Plaintiff’s chart identifying the changes 

included in her Memorandum to Strike Defendants’ Errata Sheets is hereby 

incorporated by reference, (Doc. 101 at 3–11), and the Court makes note 

of Defendants’ misconduct. 

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D. Attorney’s Fees and Costs 

Plaintiff moves for reasonable attorney’s fees and costs. 

Plaintiff filed this in two motions: first, in March 2019 after 

the Court’s initial remand (Doc. 31) and second, in a supplemental 

motion for appellate attorney’s fees and costs. (Doc. 40). The 

first Motion requested relief totaling $49,594.47. (Doc. 31 at 

14). The second Motion requested additional relief totaling 

$58,800. (Doc. 40 at 8). 

When courts decide whether to award attorney’s fees, they 

apply a two-part test. First, courts consider whether the 

plaintiff has achieved some degree of success on the merits. Hardt 

v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2158 (2010). 

Next, in the Sixth Circuit, courts consider the following five

factors: (1) the degree of the opposing party’s culpability or bad 

faith; (2) the opposing party’s ability to satisfy an award of 

attorney’s fees; (3) the deterrent effect of an award on other 

persons under similar circumstances; (4) whether the party 

requesting fees sought to confer a common benefit on all 

participants and beneficiaries of an ERISA plan; and (5) the 

relative merits of the parties’ positions. Secretary of Dep’t of 

Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985). The Sixth 

Circuit has rejected a presumption that attorney’s fees should

normally be awarded to the prevailing plaintiff. Foltice v. 

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Guardsman Prod., Inc., 98 F.3d 933, 936 (6th Cir. 1996). Each 

factor is evaluated in turn. 

i. Success on the Merits

ERISA grants the Court broad discretion to award reasonable 

attorney’s fees and costs. 29 U.S.C. § 1132(g). As a threshold 

question, the Court must first address whether Plaintiff has 

achieved “some degree of success on the merits.” Hardt, 130 S. Ct. 

at 2158. Given that the Court will enter judgment in the 

Plaintiff’s favor, this clearly satisfies the threshold inquiry of 

“some degree of success on the merits.” Id. 

ii. Five-Factor Test

Courts in the Sixth Circuit apply a five-factor test to 

determine whether to award fees under 29 U.S.C. § 1132(g)(1). King, 

775 F. 2d at 669; see also Moon v. Unum Provident Corp., 461 F.3d 

639, 642 (6th Cir. 2006)). No factor is determinative, and the 

Court must consider each in its analysis. Schwartz v. Gregori, 

160 F.3d 1116, 1119 (6th Cir. 1998). 

a. Degree of Opposing Party’s Culpability

The Sixth Circuit has noted that when a plan administrator 

engages in “inadequate review” or “otherwise acts improperly in 

denying benefits,” the culpability factor is satisfied. Shelby 

Cty. Health Care Corp., 581 F.3d at 377. Here, W&S twice engaged 

in inadequate review. 

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In addition to the procedural defects, the Court notes 

Defendants’ egregious conduct throughout the course of this 

litigation. First, Defendants waited more than 270 days from remand 

to issue Plaintiff a denial. (Doc. 53 at 5). Second, the 

Defendants’ errata sheet “corrections” were quite egregious and 

out-of-bounds. (See Docs. 81; 82). Third, the Defendants failed 

to respond to Plaintiff’s request for documents until she reopened 

this case. (Doc. 77 at 472). The Court is cognizant of the fact 

what W&S has resources to expend defending this claim. Defendants’ 

conduct throughout this litigation has not gone unnoticed by the 

Court, making this factor weigh heavily in favor of Plaintiff. 

b. Defendants’ Ability to Pay

This factor clearly weighs in Plaintiff’s favor. W&S is a 

Fortune 500 company. As of 2019, the company had over $85.3 

billion in assets and a net income of over $764.5 million. 2019 

Annual Report, Western & Southern Financial Group (2020), 

https://www.westernsouthern.com/-/media/files/wsfg/2019-annualreport.pdf. Granted, a party’s financial ability to pay a fee 

award, even if undisputed, “should not be dispositive when 

examination of all other relevant factors indicated that fees 

should not be awarded.” Firestone Tire & Rubber Co. v. Neusser, 

810 F.2d 550, 557–58 (6th. Cir. 1987). 

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c. Deterrent Effect

The Sixth Circuit has routinely noted that the deterrence 

factor involves consideration of the deterrent effect on other 

plan administrators. Foltice, 98 F.3d at 937. This factor is 

more important when the defendants have “the sort of culpability 

that warrants punishment in [the claimant’s] case or deterrence in 

others.” Id. For example, misinterpreting plan documents carries 

less culpability than terminating benefits without any supporting 

medical evidence. Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 

532 (6th Cir. 2008). 

Here, W&S failed significantly in its fiduciary dealings, 

carrying a high degree of culpability. As discussed earlier, 

Defendants impermissibly delegated discretionary authority under 

the Plan. They also improperly interpreted the Plan to require 

objective proof where it never defined the term. The 

Administrators also failed to conduct a physical exam of Plaintiff 

despite denying her benefits for chronic pain. Even more, W&S kept 

Plaintiff waiting 270 days on remand for a decision. All these 

findings are evidence of egregious procedural failings at W&S. 

The payment of attorney’s fees should encourage other plan 

administrators to evaluate internal policies to ensure a more full 

and fair review. Accordingly, this factor also weighs in favor of 

the Court awarding attorneys’ fees and costs—although not as 

strongly as the first two. 

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d. Common Benefit Sought or Significant Legal Questions Answered

Plaintiff brought this lawsuit for personal benefits, not for 

the common benefit of other W&S beneficiaries. Even when a claimant 

“arguably obtained a common benefit for all plan participants in 

the form of deterring the plan administrator from making similarly 

unreasonable decision in the future . . . the deterrent-effect and 

common-benefit factors are separate inquires . . . .” Gaeth, 538 

F.3d at 533. 

This factor weighs against Plaintiff. Plaintiff did not seek 

to obtain a common benefit for all W&S participants. Plaintiff 

has also failed to establish, or even argue, that any other 

participant was in the same position as Laake. Nor did this case 

resolve any significant legal questions regarding ERISA. 

e. Relative Merits of the Parties’ Positions

As discussed above, the merits of Plaintiff’s case are strong, 

and this factor also weighs in favor of granting attorney’s fees. 

The record contains both objective and subjective evidence of 

Plaintiff’s disability. Additionally, both Plaintiff’s treating 

physicians and W&S’s independent reviewers have made findings that 

Plaintiff cannot perform sedentary work. Even if the Court were to 

apply the less stringent arbitrary and capricious standard, there 

are still procedural defects. Plaintiff is also entitled to 

statutory penalties. Additionally, Plaintiff’s Motion to Strike 

Defendants’ Errata Sheets was also strong, as Defendants rewrote 

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deposition testimony in violation of clearly established Sixth 

Circuit case law. Considering the above factors, the Court finds 

in favor of an award of attorney’s fees to Plaintiff. Although 

not every factor weighs in favor of Plaintiff, taking the five 

factors together, the scale tips in favor of Plaintiff. 

iii. Reasonableness of the Hours, Rate, and Costs

Courts review attorney’s fees by asking “whether a reasonable 

attorney would have believed the work to be reasonably expended in 

pursuit of success at the point in time when the work was 

performed.” Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 

1177 (6th Cir. 1990). “The most useful starting point . . . is 

the number of hours reasonably expended on the litigation 

multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 

461 U.S. 424, 433 (1983). It is worth noting that Plaintiff has 

only filed a motion for attorney’s fees as it relates to the first 

district court appearance of this matter and the subsequent appeal 

and remand. Plaintiff’s attorney has not filed a motion for 

attorney’s fees that includes hours worked beyond January 24, 2020.

Plaintiff’s counsel spent approximately 161.7 hours on Plaintiff’s 

initial claim and an additional 196 hours on her Sixth Circuit 

appeal and remand to W&S. District courts in the Southern District 

have found this number of hours to be reasonable. See Myers v. 

Bricklayers & Masons Local 22 Pension Plan, No. 3:13-cv-75, 2014 

U.S. Dist. LEXIS 171066, at *13–20 (S.D. Ohio Dec. 10, 2014) 

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(finding that 253.3 hours of work at only the district court level 

in an ERISA case was reasonable). 

“To arrive at a reasonable hourly rate, courts use as a 

guideline the prevailing market rate, defined as the rate the 

lawyers of comparable skill and experience can reasonably expect 

to command within the venue of the court of record.” Geier v. 

Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). Plaintiff’s counsel 

charges a rate of $300 per hour. Courts within the Southern 

District recognize that ERISA is a niche area of law that requires 

a certain skill level to render proper legal services. Javery v. 

Lucent Techs. Inc. Long-Term Disability Plan for Mgmt. or LBA 

Emps., No. 2:09-CV-8, 2014 WL 2779427, at *7–8 (S.D. Ohio June 19, 

2014). Counsel, Claire W. Bushorn Danzl, has over ten years of 

experience practicing ERISA law. (Doc 31-1, Denzl Decl. at 2, ¶3). 

Courts have consistently held that this is a reasonable rate. See 

e.g., Palombaro v. Emery Fed. Credit Union, No. 1:15-cv-792, 2018 

WL 5312687, at *6 (S.D. Ohio Oct. 25, 2018) (allowing a $350 rate 

for an attorney with twelve years of ERISA experience). Counsel’s 

rate is entirely reasonable. 

Plaintiff also seeks $400 in litigation fees for filing 

expenses. This too is reasonable. Courts in this circuit have 

awarded similar amounts. See, e.g., Schumacher v. AK Steel Corp. 

Ret. Acc. Pension Plan, 995 F. Supp. 2d 835, 854 (S.D. Ohio 2014) 

(awarding $455 filing fee); Disabled Patriots of Am., Inc., 424 F. 

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Supp. 2d 962, 969 (E.D. Mich. 2006) (awarding $500 in other client 

costs). The Court is well within its discretion to award Plaintiff 

$400 for filing expenses. 

Defendants argue that Plaintiff’s time sheets are too vague 

and thus the Court should reduce the amount of attorney’s fees 

awarded. The Sixth Circuit has noted that attorneys “have an 

obligation to maintain billing time records that are sufficiently 

detailed to enable courts to review the reasonableness of the hours 

expended on the case.” Imwalle v. Reliance Med. Prod., Inc., 515 

F.3d 531, 552 (6th Cir. 2008). Time entries cannot contain vague 

descriptions such as “research” or “office conference.” Black v. 

Lojac Enter., Inc., No. 96-5654, 1997 WL 377051, at *3 (6th Cir. 

1997). 

Plaintiff counsel’s time sheets are not vague. Any time she 

meets with Plaintiff, she notes what the meeting was regarding. 

(Docs. 31-1;40-1). She clearly annotated what specifically she 

was researching at a given point. (Id.). It is true that there 

are some entries where she bills time where she “receive[s] and 

review[s] email from opposing counsel” without any reference to 

what the email is regarding. (Doc. 40-1 at 7). But this is the 

only form of vagueness that the Court finds. Furthermore, 

Plaintiff’s counsel only bills for 0.1 or 0.2 hours when she uses 

this time entry. Given that the parties communicated primarily 

via email, and Plaintiff’s counsel did not spend an undue amount 

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of time on these emails, the Court is unpersuaded by Defendants’ 

argument that the time sheets are impermissibly vague. 

Accordingly, the attorney’s fees do not need to be reduced. 

CONCLUSION 

Therefore, having reviewed this matter, and the Court being 

advised, 

IT IS ORDERED that: 

(1) Plaintiff’s Motion for Judgment on the Administrative 

Record (Doc. 95), be, and is hereby GRANTED as it relates 

to Plaintiff’s long-term disability determination. 

(2) The Court GRANTS Plaintiff statutory penalties under 29 

U.S.C. § 1132(c), pursuant to Rule 52(a). 

(3) Defendants’ Motion for Judgment on the Administrative 

Record (Doc. 94), be, and is hereby DENIED. 

(4) Plaintiff’s Motion for Summary Judgment (Doc. 98), be, 

and is hereby DENIED.

(5) Plaintiff’s Motion for Attorney Fees (Doc. 31) and 

Supplemental Motion for Attorney’s Fees (Doc. 40), be, 

and is hereby GRANTED. 

(6) Plaintiff’s Motion to Strike Errata Sheets (Doc. 101), 

be, and is hereby DENIED AS MOOT. 

(7) Plaintiff shall file any remaining motions ON OR BEFORE 

DECEMBER 1, 2021. 

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This 5th day of November 2021. 

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