UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

GLENN MATTHEWS, 

 Plaintiff - Appellant, 

v. 

PENNSYLVANIA LIFE INSURANCE, 

 Defendant - Appellee. 

No. 14-4100 

(D.C. No. 2:12-CV-00896-TC) 

(D. Utah)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 Glenn Matthews appeals from a summary judgment entered in favor of 

Pennsylvania Life Insurance (the insurer) on his claim for benefits under an Accident 

Benefit Policy (the policy).1

 Because there is no genuine dispute as to any material 

fact and the insurer is entitled to judgment as a matter of law, we affirm. 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Our jurisdiction derives from 28 U.S.C. § 1291.

FILED 

United States Court of Appeals 

Tenth Circuit 

April 7, 2015

Elisabeth A. Shumaker 

Clerk of Court

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BACKGROUND 

In 2002, when he was 50 years old, Matthews “was riding a horse and was 

bucked off. He landed on his hip and lower back and sustained a severe hip injury 

which has never fully healed.” Aplee. App. at 2. Matthews was hospitalized the 

same day. Dr. Dunn, the physician who looked at the x-rays, said they “show 

abnormal widening of the pubic symphysis.” Aplt. App. Vol. 1 at 98. He also noted 

“[b]oth SI joints seem to be somewhat wider than average as well. The appearance of 

the pelvis suggests that [Matthews] probably has developmental diastasis of the 

symphysis pubis and the AC joints may look abnormal as a result. There do appear 

to be some degenerative changes of the spine.” Id. Dr. Dunn stated “I cannot 

entirely exclude the possibility that this might be exaggerated by an acute injury but I 

doubt that the appearance is acute.” Id. He again acknowledged an “abnormal 

widening of the symphysis pubis with widening of both SI joints,” but “suspect[ed] 

that these findings are primarily chronic and developmental.” Id. 

A few days later Matthews was seen by another physician, Dr. Brunsdale, who 

noted “the diastasis of the symphysis pubis does appear abnormal.” Id. at 100. He 

commented that the abnormality “could be a chronic thing” or “an acute orthopedic 

injury.” Id. 

At the time of the accident Matthews was insured against an “Injury [that] 

causes Total Disability.” Id. at 53. The policy defined “Injury” as “accidental bodily 

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injury sustained: (1) directly and independently of disease or bodily infirmity, or any 

other causes; and (2) while [the] [p]olicy is in force.” Id. at 49. 

As a result of the horseback riding accident, Matthews made a claim for 

disability benefits. The insurer paid benefits from the time of the accident through 

November 2003, when Matthew’s physician, Dr. Callahan, released him to return to 

full-time work as a construction supervisor. In 2008, he was permanently laid off 

due to a lack of work. In early 2009, Matthews talked to a couple of companies 

about work as a construction supervisor, but there were no openings. He made no 

further effort to find work because he “just figured it would be the same story 

everywhere.” Id. at 80. As Matthews’s explained the situation, I “[p]retty much” 

resigned myself to retire. Id. 

In March 2010, Matthews circled back to the insurer and filed a second claim 

for disability benefits. As grounds he cited a “[b]ad back.” Id. at 344. In support of 

the new claim, Dr. Callahan described the disability as “continuing degenerative 

disease, continued pain.” Id. at 345. The insurer initially approved benefits while it 

gathered Matthews’s medical records and scheduled a functional capacity 

examination. At the beginning of the examination in August 2010, Matthews stated 

“the low back aching was constant and the pubic bone discomfort comes and goes.” 

Id. at 333. Matthews, however, was unable to complete the examination due to his 

hypertension, which was out of control. He was advised to seek medical treatment 

for that problem and return at a future date. In the meantime, the insurer wrote to 

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Matthews in early December advising it would discontinue benefits in mid-February 

2011. In particular, it referenced Dr. Callahan’s notes from September 22, 2009 

(Matthews’s first back-related medical appointment since 2004) stating “your 

medical records reflect that you have ‘multiple level degenerative disc disease and 

degenerative arthritis.’” Id. at 141. As such, the insurer determined the disability 

was not the result of an “Injury” as defined in the policy because it did not arise 

“directly and independently of disease or bodily infirmity, or any other causes.” In 

other words, although Matthews may have suffered a pelvic injury (pelvic symphysis 

diastasis) in the horseback riding accident, his disabling back pain did not arise 

directly from that injury and was not independent of all other causes. 

In July 2011, Matthews filed for Social Security disability insurance benefits 

in which he listed the following impairments: (1) pelvic injury; (2) bad back; 

(3) depression; (4) high blood pressure; (5) degenerative discs; and (6) arthritis. 

Ultimately the agency found two severe impairments: “degenerative disk disease in 

the lumbar area of the spine and pelvic symphysis diastasis.” Aplt. App. Vol. 2 

at 541. In February 2012, the agency concluded in light of Matthews’s “age, 

education, work experience, and residual functional capacity, there are no jobs that 

exist in significant numbers in the national economy that [he] can perform,” and 

accordingly he was disabled and entitled to benefits. Id. at 543. 

In September 2012 Matthews filed suit seeking benefits under the policy. 

According to the complaint, the “hip injury [suffered in the horseback riding 

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accident] is the most predominating condition that affects [his] total disability and 

has had a major impact upon his ability to function.” Aplee. App. at 2. He 

acknowledged the existence of “degenerative disc disease,” but alleged the “disease, 

but for his hip injury, would not be relevant.” Id. 

When asked during discovery to describe the medical symptoms preventing 

him from working, Matthews said: “Split pelvis, degenerative disc[] disease.” Aplt. 

App. Vol. 2 at 379. According to Dall, Matthews’s own medical expert, pubic 

diastasis (pelvic symphysis diastasis) was the only accident-related injury suffered by 

Matthews and his degenerative disc disease, low back pain, and osteoarthritis of the 

hip were all non-accident related. Dall stated there was no “objective medical 

evidence [as to the] impact or synergistic effects . . . the accident-related diagnoses 

had on Matthews’ non-accident related diagnoses.” Aplt. App. Vol. 1 at 137. 

The insurer’s medical expert, Dr. Ballard, opined “[t]here are multiple causes 

for [Matthews’s] work restrictions [including] [t]he accident-related pubic diastasis 

with secondary sacroiliac joint dysfunction, and also [t]he lumbar degenerative 

changes in his back which are not secondary to the accident in question.” Aplee. 

App. at 28. 

When asked to comment on Ballard’s report, Dall submitted a frank rebuttal. 

In it he does “not have a lot to say inasmuch as Dr. Ballard’s comments are fairly 

consistent with mine. We both agree that the pain leading to [Matthews’s] functional 

limitations and restrictions is multifactorial.” Aplt. App. Vol. 2 at 547. 

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At the conclusion of discovery the insurer moved for summary judgment 

because Matthews failed to prove his disability was the result of an accidental injury 

“directly and independently of disease or bodily infirmity, or any other causes.”2

 The 

district judge found “the undisputed evidence shows that the horse riding accident, at 

most, exacerbated or contributed to Matthews’ low back pain and degenerative disc 

disease [and the court therefore] conclude[d] that the accident was not the sole and 

direct cause of his disabling condition.” Id. at 705.3

 

ANALYSIS 

“We review the district court’s order granting summary judgment de novo.” 

Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013). 

Summary judgment is available if “there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“There is no genuine issue of material fact unless the evidence, construed in the light 

most favorable to the non-moving party, is such that a reasonable jury could return a 

verdict for the nonmoving party.” Koessel, 717 F.3d at 742 (internal quotation marks 

omitted). In order to survive summary judgment, “[f]or dispositive issues on which 

the plaintiff will bear the burden of proof at trial, he must go beyond the pleadings 

 

2

 Alternatively, the insurer moved for summary judgment claiming Matthews 

failed to prove he was receiving the regular and personal care of a physician for his 

disability as required by the policy. The district judge did not address this issue. See

Aplt. App. Vol. 2 at 705 n.4. 

3

 Judgment was also entered in favor of the insurer on Matthews’s claim for bad 

faith breach of contract. Matthews does not appeal from that decision. 

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and designate specific facts so as to make a showing sufficient to establish the 

existence of an element essential to his case.” Cardoso v. Calbone, 490 F.3d 1194, 

1197 (10th Cir. 2007) (alterations omitted) (internal quotations marks omitted). 

Matthews had the burden to prove he was totally disabled due to an injury as 

defined by the policy. See Winchester v. Prudential Life Ins. Co. of Am., 975 F.2d 

1479, 1487-88 (10th Cir. 1992) (“In order to prevail on the merits [of his claim that 

he was entitled to accidental death benefits under a policy that required the injury to 

arise directly and independently of all other causes he] had to prove that the death 

occurred independently of any other cause, including a preexisting bodily 

infirmity.”). 

 In interpreting nearly identical language in an accidental death policy, this 

court held “the words ‘directly and independently of all other causes’ . . . are not 

ambiguous.” Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir. 

2000). Given this lack of ambiguity, we concluded this policy language “imposes 

two obvious conditions. First, the loss must result directly from accidental bodily 

injury. Second, the loss must result independently of all other causes. . . . Any other 

interpretation in this context is contrived.” Id. at 1010-11. 

Matthews tries to create the illusion of a genuine issue of material fact by 

engaging in a selective, hyper-technical parsing of the evidence. His efforts are not 

convincing. We have independently examined the evidence as part of our de novo 

review and agree with the trial judge’s well-stated conclusion: 

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All of the physicians who either treated Matthews or reviewed his 

medical records could not determine a precise cause of his back pain 

and indicated that his preexisting back condition may have been 

exacerbated by his riding accident. Not one physician concluded that 

the riding accident was the sole and independent cause of Matthews’ 

back pain. 

Because the undisputed evidence shows that the horse riding 

accident, at most, exacerbated or contributed to Matthews’ low back 

pain and degenerative disc disease, the court concludes that the accident 

was not the sole and direct cause of his disabling condition. 

Aplt. App. Vol. 2 at 705. 

 Matthews continues to press particularly hard on one issue: whether his own 

declaration was sufficient to create a genuine issue of material fact as to whether the 

horseback riding injury was the direct and independent cause of his disabling back 

pain. Despite the fact that “[n]ot one physician concluded that the riding accident 

was the sole and independent cause of [Matthews’s] back pain,” id., Matthews 

offered his own contrary medical opinion: 

 The pelvis, pubis, lower spine, L4-S5, SI joints and hips are all 

generally in the same body quadrant and same plane. Pain originating 

in any of these areas could be described as lower back pain. . . . When 

speaking of low back pain, Matthews attests that he at all times has 

described all the pain in this area from his SI joints and pelvic diastasis 

as low back pain. In fact, on January 3, 2014, he purchased diagnostic 

injections into the nerves associated with his pelvic diastasis and SI 

Joint disruption. This temporarily relieved most of his pain. Because of 

this he can attest his pain is caused by his diastasis symphysis pubis and 

SI Joint disruption. 

Aplt. Supp. App. at 716. 

Matthews’s continued reliance on the results achieved from the injections is 

disingenuous because it is based on a proposed addendum to Dall’s expert report, in 

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which Dall “opined that because [Matthews] experienced good results from the 

injections, it strongly suggested that [his] pain was, in fact, coming from his 

sacroiliac joints, which supports [his] claim that his disability is caused solely by the 

horse-riding accident.” Aplee. App. at 10. Upon a motion, the district judge struck 

the addendum, which contains improper rebuttal testimony; it presents new evidence 

that is being used to bolster [Matthews’s] case-in-chief. Id. at 11. We reject 

Matthews’s attempt to end run the court’s order by adopting Dr. Dall’s stricken 

medical opinion as his own. 

More to the point, Matthews is not qualified to give a medical opinion. 

Matthews cites cases reciting the unremarkable proposition that a lay witness can 

testify as to the state of his or her own physical health. However, the opinion of a lay 

witness “is limited to one that is: [] rationally based on the witness’s perception; [] 

helpful to clearly understanding the witness’s testimony or to determining a fact in 

issue; and [] not based on scientific, technical, or other specialized knowledge within 

the scope of [the rule on expert testimony].” Fed. R. Evid. 701 (emphasis added). 

Matthews’s “opinion” is based on scientific, technical, or other specialized 

knowledge and is not admissible on summary judgment. See Fed. R. Civ. P. 56(c)(4) 

(“An affidavit or declaration used to support or oppose a motion [for summary 

judgment] must be made on personal knowledge, set out facts that would be 

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admissible in evidence, and show that the affiant or declarant is competent to testify 

on the matters stated.”). 

AFFIRMED. 

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge 

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