UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL PALICZUK,

Plaintiff,

v. Case No. 09-10794

UNUM LIFE INSURANCE HONORABLE AVERN COHN

COMPANY,

Defendant.

______________________________/

MEMORANDUM AND ORDER

DENYING PLAINTIFF’S MOTION TO REVERSE ERISA BENEFITS DECISION

AND DISMISSING CASE

I. Introduction

This is a benefits case under the Employment Retirement Income Security Act,

29 U.S.C. § 1001, et seq (ERISA). Plaintiff Michael Paliczuk (Paliczuk) is suing

defendant UNUM Life Insurance Company, Inc. (UNUM). He claims that UNUM

wrongfully denied his claim for long term disability (LTD) benefits under a group

insurance policy (plan) held by his former employer, Milliken Millwork, Inc. (Milliken) and

issued and administered by UNUM. As will be explained, UNUM initially found Paliczuk

disabled under the plan and paid benefits for 24 months; it thereafter determined that he

no longer met the definition of disability. Paliczuk says this decision was arbitrary and

capricious.

The matter is before the Court on Paliczuk’s motion to reverse UNUM’s 

determination. For the reasons that follow, the motion will be denied and the case will

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 The court of appeals’ “Suggested Guidelines” are as follows:

1. As to the merits of the action, the district court should conduct a de

novo review based solely upon the administrative record, and render

findings of fact and conclusions of law accordingly. The district court may

consider the parties' arguments concerning the proper analysis of the

evidentiary materials contained in the administrative record, but may not

admit or consider any evidence not presented to the administrator. 

2. The district court may consider evidence outside of the administrative

record only if that evidence is offered in support of a procedural challenge

to the administrator's decision, such as an alleged lack of due process

afforded by the administrator or alleged bias on its part. This also means

that any prehearing discovery at the district court level should be limited to

such procedural challenges. 

3. . . . the summary judgment procedures set forth in Rule 56 are

inapposite to ERISA actions and thus should not be utilized in their

disposition.

150 F.3d at 619.

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be dismissed.

II. Legal Standard - Motion for Entry of Judgment 

In Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir.1998), the

Court of Appeals for the Sixth Circuit held that summary judgment procedures may no

longer be used in the Sixth Circuit in denial of benefits actions under ERISA. In Wilkins,

the court of appeals decided a district court should adjudicate an ERISA action as if it

were conducting a standard bench trial and, therefore, determining whether there is a

genuine issue of fact for trial would make little sense. 150 F.3d at 618-19 (Gilman, J.,

concurring in part and setting out the judgment of the court of appeals on the issue

regarding the summary judgment standard).

Accordingly, the Court will decide this matter under the guidelines set forth in

Wilkins1 by rendering findings of fact and conclusions of law based solely upon the

administrative record. See Eriksen v. Metropolitan Life Ins. Co., 39 F. Supp. 2d 864

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(E.D. Mich. 1999). 

III. Analysis

A. Findings of Fact

The following facts are gleaned from the administrative record.

1. Relevant Plan Provisions

a. Definition of Disability

The plan defines disability as follows:

-you are limited from performing the material and substantial duties of your

regular occupation due to your sickness or injury; and

...

After 24 months of payments, you are disabled when Unum determines that due

to the same sickness or injury, you are unable to perform the duties of any

gainful occupation for which you are reasonably fitted by education or

experience. 

b. Paliczuk’s Claim

Paliczuk was employed by Milliken as a “truck switcher.” Milliken explained that

a truck switcher “[m]aintains and services truck needs, e.g. gasoline, oil, lubrication,

cooling system, battery and other functional parts to facilitate safe transportation,” and

may “make minor repairs and adjustments” and “facilitates the loading department in

moving truck/trailer to assigned docks throughout the shift.” 

While employed by Milliken, Paliczuk was involved in a single car accident on

June 16, 2005 when he struck a guard rail and injured his back. In September 2005,

Paliczuk filed a claim for benefits, indicating that he was unable to perform his duties as

a truck switcher because of the accident, which rendered him “unable to walk, bend, sit

[or] stand for periods of time.” On September 6, 2005, Paliczuk’s then treating

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physician, Dr. Robert C. Meyer, told UNUM that Paliczuk was diagnosed with lumbar

radiculopathy, facet joint disease, bulging, lumbar disc, and sacroiliac joint pain. Dr.

Meyer also said that Paliczuk was restricted from lifting, bending, twisting climbing or

prolonged sitting. On October 13, 2005, UNUM granted Paliczuk benefits, dating back

to September 14, 2005, finding him disabled based on his inability to perform the duties

of his occupation. UNUM, however, informed Paliczuk that after a period of 24 months,

he would be disabled only if he was unable to perform the duties of any gainful

occupation for which he was reasonably qualified.

On March 23, 2006, UNUM requested from Paliczuk all medical records from

Drs. Earmond Kerkar, Robert Meyer, Asad Mazhari, who he identified as treating

physicians. On April 7, 2006, UNUM requested all medical records from Theramatrix,

where Paliczuk was receiving physical therapy. 

On July 21, 2006, in response to UNUM’s request, Dr. Mazhari reported that

Paliczuk could sit, stand and walk “intermittently” and “at will,” that he could frequently

lift or carry up to 10 pounds, that he could occasionally lift or carry up to 15 pounds and

could occasionally push or pull no more than 10 pounds.

On September 21, 2006, a UNUM representative called Paliczuk and explained

to him that after 24 months, the definition of disability changes to being unable to

perform any gainful occupation as opposed to his own occupation. By letter of

December 8, 2006, UNUM informed Paliczuk of the same and noted that his 24 months

will expire on September 14, 2007. UNUM also informed Paliczuk that it was “beginning

our evaluation of your eligibility for benefits beyond 24 months” and that this “process

includes reviewing current medical and vocational information from your physician and

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other sources.” 

On February 15, 2007, UNUM submitted a questionnaire to Drs. Meyer, Kerkar

and Mazhari asking various questions about Paliczuk’s medical condition. Dr. Kerkar

responded that Paliczuk’s restrictions and limitations were “not to lift more than 10

pounds, not to bend or twist, no squatting [and] no kneeling.” Dr. Mazhari reported that

he had “not examined [Paliczuk] since 7-18-06 [and therefore] cannot provide answers”

to the questions. Dr Meyer responded that Paliczuk’s only restrictions were “minimal

lifting [and] bending (over 20 lbs.).” UNUM also requested Paliczuk’s physical therapy

medical records from Rehabilitation Specialists of Michigan on March 21, 2007.

UNUM had Paliczuk interviewed by a field representative on April 4, 2007. 

Paliczuk informed that he had applied for and was denied Social Security benefits. The

Social Security Administration’s denial letter was sent to UNUM. The letter stated that

the “medical information shows that although you may experience discomfort in your

back at times, you are able to stand, walk and move about satisfactorily,” and that his

back issues did not prevent him from performing substantial work.

On May 30, 2007, UNUM conducted a clinical review of Paliczuk’s file by Linda

McKinney, R.N. She recommended that an independent medical examination be

conducted “to better understand [Paliczuk’s] current clinical status and functional

ability.” She also noted that because he “has chosen not to have further surgery and

some [restrictions and limitations] would be reasonable to expect,” yet it is “unclear why

the 45 [year old] cannot perform some level of full time activities” given his condition.” 

On June 20, 2007, Dr. Pat Young, an orthopedic medical consultant for UNUM

and board certified in orthopedic surgery, wrote to Dr. Kerkar asking whether, in Dr.

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Kerkar’s opinion, Paliczuk could “be expected to do sedentary work at this time?” Dr.

Kerkar responded on June 25, 2007. He did not answer the question but rather stated

that Paliczuk’s “restrictions are not to lift more than 10 lbs., not to carry more than 10

lbs.,” and “not to bend, not to twist, not to squat [and] not to kneel.”

On June 28, 2007, UNUM confirmed that Paliczuk would undergo an

independent medical examination (IME) by Dr. Peter Samet.

Thereafter, Dr. Samet conducted a direct clinical examination of Paliczuk, which

included taking his medical history, a neurological examination, skeletal examination,

and spinal examination. Dr. Samet also reviewed Paliczuk’s entire medical file. Dr.

Samet submitted a written report on July 10, 2007, summarizing his findings and

conclusions as follows:

At this point, based on a physical examination, this is almost a normal

examination. The patient has normal strength and sensation, as well as full

range of motion. Therefore, the patient is able to do some sort of work. Based

on a purely prophylactic basis, I recommend that the patent not return back to

work as a fueler/switcher due to the fact that he has had surgery done and it

could introduced some instability in his back. He is certainly capable of returning

back to work with light to medium duty, meaning no lifting more than 20 lbs. And

no twisting or bending. He would be capable of walking and standing, bur no

more than 4-6 hours a day. I would also recommend no climbing up and down

trucks and no twisting or pulling. The nature of these restrictions would likely be

permanent. 

UNUM also had a vocational assessment conducted by a vocational consultant,

Kenneth Maxwell, “to assess [Paliczuk’s] education, training and/or experience to

determine if he can perform other occupations” than that of a truck switcher. The

vocational assessment assumed that Paliczuk had the physical restrictions noted by Dr.

Samet and that gainful employment would be employment at $8.53/hour. The

vocational assessment concluded that there was both gainful sedentary and light duty

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work which Paliczuk could perform within his medical restrictions and consistent with his

education, training and background. 

Based on this information, UNUM wrote to Paliczuk on September 10, 2007

stating that it no longer considered him disabled under the plan because he was

capable of some gainful work. 

On November 15, 2007, Paliczuk submitted an appeal and enclosed two

additional documents: (1) a “disability certificate” from Dr. Kerkar that says Paliczuk is

disabled but does not identify any restrictions or limitations, and (2) a November 5, 2007

letter from Dr. Kerkar which simply stated that Paliczuk “was advised not to lift more

than 10 lbs. or consistently carry more than 5-10 lbs. [Paliczuk] was advised not to

bend, kneel or crawl. [Paliczuk] was also advised not to reach above his shoulders.

[Paliczuk] was advised to sit and stand at will. [Patient] is considered disabled at this

time. Treatment is still continued.” 

On December 4, 2007, UNUM requested Dr. Kerkar’s entire updated medical file

concerning Paliczuk. On December 14, 2007, UNUM wrote to Paliczuk asking him to

contact Dr. Kerkar to expedite the review of his appeal. On December 26, 2007, UNUM

informed Paliczuk that it would need an extension of up to 45 days to decide his appeal

because it only just received his medical records from Dr. Kerkar. 

On February 5, 2008, Paliczuk’s entire file, including the two additional

documents from Dr. Kerkar noted above, were examined an reviewed by Dr. Woolon W.

Doane. Dr. Doane reported:

I have reviewed all medical and clinical evidence provided to me by Company

personnel bearing on the impairments for which I am by training and experience

capable to assess. I have also reviewed the medical information from Drs.

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Meyer (Family Practice), Kerkar (pain management), Maxhari [sic]

(neurosurgery), Samet (IME-PM and R), field report of Mr. Koslovich, and PT

records from Theramatrix and Rehabilitation Specialists of Michigan. I also

reviewed the comprehensive and detailed review of available medical information

by D. Frank, PT dated 1.16/08.

Dr. Doane concluded that “[n]o new medical information was provided which

[Paliczuk’s] appeal of the denial of continued benefits” that would alter the denial. 

Dr. Doane in part explained:

Dr. Kerkar examined the claimant for the first time on 8/8/05 . . . On clinical

emanation, Dr. Kerkar reported palpable tenderness in the low back area but no

abnormal physical findings otherwise with specific reference to no loss of

sensation or motor function. With no supporting evidence [abnormal neurological

examination, EMG/NCS, CT, MRI], Dr, Kerkar diagnosed lumbar radiculopathy,

facet joint disease, disc bulge and SI joint pain. MRI on 7/15/05 showed only

degenerative changes consistent with the claimant’s age group and seen in 72-

85% of asymptomatic individuals in this age group. Once gain, I will point out

imaging studies to this date had only pre-existing degenerative lumbar spinal

changes not incompatible with the claimants [sic] age. Prior to 8/8/05 office visit

with Dr. Kerkar, physical therapist Mr. Molino of Theramatrix noted on 7/1/05 that

lumbar range of motion was normal for flexation and extension (70 and 20E ) as

well as side bending (15-20E). Straight leg raise to 75-80E with pain in low back

only (tight hamstrings) was normal and muscle strength was essentially normal. 

Thus, it is unclear the basis on which Dr. Kerkar made his diagnosis on 8/6/05.

. . .

Nevertheless, Dr. Kerkar proceeded with injection therapies over the

ensuing two years that included epidural injections, facet injections and sacroiliac

injections all of which resulted only in reported transient relief of symptoms. Dr.

Kerkar referred the claimant to Dr. Mazhari, neurosurgeon.

. . .

Dr. Mazhari examined the claimant on 10/25/05. Dr. Mazhari reported a

completely normal neuromuscular, skeletal and functional examination but

proceeded to obtain a lumbar mylogram on 11/08/05 with CT which was only

suspicions for compression of the right nerve at L4 and L5 that did not change

with flexion and extension and there was no evidence of subluxation despite the

normal physical and neuromuscular/sensory examination, Dr. Mazhari went

ahead and performed a partial laminectomy with disc resection at L-4-5 and L5-

S1 level. The claimant’s recovery was uncomplicated, but, without surprise,

symptoms of low back and right buttock pain persisted (so-called “failed back

syndrome”) – . . . Dr. Mazhari’s and Dr. Kerkar’s medical records did not describe

neuromuscular or skeletal functional loss during the course of their ministrations

to date.

Dr. Doane also noted that Dr. Samet found an essentially “normal general,

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neuromuscular and skeletal examination except for degenerative changes about both

knees with full range of motion in axel spine.” Dr. Doane concluded that “[i]t is clear . . .

that deconditioning plays a significant role in this claimant’s continued symptoms and

self-limiting behavior since he reports a primary sedentary left-style since [the car

accident] on 6/16/05" and that the “available medical evidence does not support that he

sustained injuries on 6/16/05 expected to result in ongoing impairment above a four

week period due to acute muscle strain recovery.” 

On February 11, 2008, the vocational assessment aspect of Paliczuk’s claim was

reviewed by a senior vocational rehabilitation consultant, Dr. G. Shannon O’Kelley. Dr.

O’Kelley concluded that the vocational assessment was sound. 

On February 12, 2008, UNUM informed Paliczuk that his appeal was denied. 

UNUM also informed Paliczuk that he had 30 days to submit any additional information. 

Paliczuk did not do so but instead filed the instant action. 

B. Conclusions of Law

1. Standard of Review 

The parties agree that the standard of review in this case is whether the denial of

benefits was arbitrary and capricious because UNUM had discretionary authority to

construe and interpret the policy. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir. 1991). 

This standard is the “least demanding form of judicial review.” Administrative

Committee of the Sea Ray Employees Stock Ownership and Profit Sharing Plan v.

Robinson, 164 F.3d 981, 989 (6th Cir. 1999). A decision regarding eligibility for benefits

is not arbitrary and capricious if the decision is “rational in light of the plan’s provisions.” 

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Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1988). “A plan administrator's

decision will not be deemed arbitrary and capricious so long as ‘it is possible to offer a

reasoned explanation, based on the evidence, for a particular outcome.’” Kalish v.

Liberty Mutual/Liberty Life Assur. Co. of Boston, 419 F.3d 501, 506 (6th Cir. 2005)

(quoting Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.

1989). Finally, the Sixth Circuit has explained that even if the standard is deferential, it

is not “inconsequential.” Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.

2005). “While a benefits plan may vest discretion in the plan administrator, the federal

courts do not sit in review of the administrator's decisions only for the purpose of rubber

stamping those decisions.” Id.

2. Dr. Kerkar’s Opinion

Paliczuk argues that UNUM’s decision was arbitrary and capricious because it

ignored Dr. Kerkar’s finding of disability. Paliczuk argues that Dr. Kerkar’s opinion as a

treating physician is entitled to more weight. However, as Paliczuk concedes, a plan

administrator need not defer to the opinions of treating physicians. In Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003) the Supreme Court explicitly rejected

a treating-physician rule:

[W]e hold, courts have no warrant to require administrators automatically to

accord special weight to the opinions of a claimant's physician; nor may courts

impose on plan administrators a discrete burden of explanation when they credit

reliable evidence that conflicts with a treating physician's evaluation.

Id. See also McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 169 (6th Cir.2003)

(“Generally, when a plan administrator chooses to rely on the medical opinion of one

doctor over that of another ... the plan administrator's decision cannot be said to be

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arbitrary or capricious.”). Although Paliczuk argues that there is some question as to

whether a treating physician who has seen a patient for a long period of time is entitled

to more weight, there is no authority for such an argument. Nord is the controlling

standard. 

Here, as set forth in detail above, UNUM conducted several reviews of Paliczuk’s

case, including having an IME by Dr. Samet, who conducted both a comprehensive

physical exam and document review, and a vocational assessment before denying

benefits. On appeal, UNUM had a senior vocational consultant again review Paliczuk’s

employability and also had Dr. Doane conduct a thorough review of the entire medical

file. Both Drs. Samet and Doane fully explained their conclusion that Paliczuk was not

disabled despite Dr. Kerkar’s contrary opinion. 

This is not a case where the treating physician’s opinion or medical evidence

supportive of the claim was ignored or even where the treating physician was not

consulted. Cf. Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005) (finding

abuse of discretion when administrator relies on opinion of physician who fails to explain

basis for rejecting other physicians' conclusions). Rather, the independent medical

examiners gave detailed reports which demonstrated that they scrutinized the medical

records, particularly Dr. Kerkar’s opinion, and gave reasoned explanations for rejecting

it based on the medical evidence. 

As UNUM cogently states:

[The] decision that [Paliczuk] was able to perform various gainful

occupations after September 14, 2007 was based upon abundant medical

evidence, including (1) Dr. Samet’s opinion that [Paliczuk] could lift up to 20 lbs.

(allowing him to perform “light duty” work) and could certainly perform

“sedentary” work, (2) Drs. Meyer and Mazhari’s opinions that he could lift more

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than 10 lbs., (3) Dr. Kerkar’s opinion that he could lift up to 10 lbs., (4) Drs.

Young and Doane’s opinions, reached after review of all medical information, and

(5) the vocational assessment performed by Mr. Maxwell and reviewed by Ms.

O’Kelley demonstrating that there were both gainful sedentary and light duty

occupations [Paliczuk] would be capable of performing consistent with his

physical limitations and his education, training and background. 

3. Social Security Determination

Although Paliczuk concedes that the administrative record shows that he was 

denied Social Security benefits, he argues that UNUM’s decision can be viewed as

arbitrary and capricious because he was recently granted Social Security benefits in

March of 2009. This argument lacks merit. While the fact that an individual was

awarded Social Security benefits can be relevant in determining whether a plan

administrator’s decision denying benefits was arbitrary and capricious, Glenn v. MetLife,

461 F.3d 6660 (6th Cir. 2006), it is not mean that an individual is automatically entitled to

benefits under an ERISA plan, as the plan’s disability criteria may differ from the Social

Security Administration’s. Whitaker v. Hartford, 404 F.3d 947, 949 (6th Cir. 2005). 

Notably, Social Security determinations follow a highly deferential “treating physician

rule” that does not apply in ERISA cases. Nord, 538 U.S. at 832-33 (“[C]ritical

differences between the Social Security disability program and ERISA benefit plans

caution against importing a treating physician rule from the former area into the latter.”). 

Moreover, Paliczuk was awarded Social Security benefits after UNUM denied his

claim. As such, evidence of his award was not before UNUM nor may Paliczuk

supplement the administrative record with evidence of his award. See Storms v. Aetna

Life Ins. Co., 2005 WL 2175997 (6th Cir. July 29, 2005). 

IV. Conclusion

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For the reasons stated above, having conducted a thorough review of the

administrative record, the Court finds no evidence that UNUM’s decision denying

Paliczuk’s claim for benefits was arbitrary or capricious. Accordingly, Paliczuk’s motion

to reverse ERISA benefits decision is DENIED. Given this determination, UNUM’s

decision is AFFIRMED. This case is DISMISSED.

SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: October 1, 2009

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, October 1, 2009, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

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