Lewis Bustetter v. Standard Ins. Co. ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0579n.06
No. 21-5441
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 13, 2021
LEWIS BUSTETTER, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
STANDARD INSURANCE COMPANY, ) KENTUCKY
)
Defendant-Appellee. )
Before: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Lewis Bustetter sued Standard Insurance Company,
claiming that Standard terminated his long-term disability and life-insurance benefits in violation
of the Employee Retirement Income Security Act of 1974. The district court granted judgment to
Standard based upon the administrative record. We affirm.
I.
Lewis Bustetter worked as a tank-truck driver for CEVA Logistics and was covered by
CEVA’s long-term disability and life-insurance plans, which were themselves governed by
ERISA. Standard was the administrator of both plans.
Under CEVA’s long-term disability plan, employees who were unable to perform their
“Own Occupation” were entitled to disability benefits for up to two years. Thereafter an employee
could obtain benefits only if he could not perform the duties of any occupation that would pay the
No. 21-5441, Bustetter v. Standard Insurance
employee at least 60% of his pre-disability earnings. For employees who made that showing,
CEVA also waived the premiums for its life-insurance policy.
Bustetter’s medical problems began in October 2014, when he complained of chronic pain
in his left knee that prevented him from working as a driver for CEVA. He aggravated the injury
while landscaping in his yard and underwent surgery to repair his knee. Bustetter hoped to work
in March 2015, but CEVA laid him off that February. That same month, Bustetter experienced
numbness and weakness in his arms and legs, along with muscle spasms in his back and neck. His
doctors diagnosed him with an inflammatory disorder of the spinal cord, transverse myelitis.
In May 2015, Standard approved Bustetter for long-term disability benefits under the “Own
Occupation” clause. But in December 2016 Standard determined that Bustetter had not shown
that he was disabled “from all occupations.” Standard therefore ended his disability benefits after
two years. Bustetter filed an administrative appeal, claiming that he was entitled under his ERISA
plan to long-term disability and life-insurance benefits, which Standard denied.
An ERISA plan beneficiary may sue to “recover benefits due to him under the terms of
his plan.” 29 U.S.C. § 1132(a)(1)(B). Bustetter thereafter brought this suit and the district court
eventually granted judgment on the record to Standard, finding that Bustetter had not shown he
was disabled from all occupations. This appeal followed.
II.
We review the district court’s grant of judgment on the record de novo. See Whitaker v.
Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005). The parties dispute whether
we defer to the district court’s factual findings. Bustetter argues that we should review the district
court’s factual findings de novo. See Javery v. Lucent Techs., Inc. Long Term Disability Plan for
Mgmt. or LBA Emps., 741 F.3d 686, 700 (6th Cir. 2014). Standard argues that we review for clear
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error. See Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 438 (6th Cir. 2006). But that
disagreement makes no difference to our decision here.
A.
We affirm for substantially the reasons stated by the district court in its notably thorough
and well-reasoned opinion. The principal issue on appeal is whether Bustetter proved by a
preponderance of the evidence that he was disabled from “all occupations” as a result of his
myelitis. See Javery, 741 F.3d at 700. We focus on Bustetter’s myelitis because CEVA’s disability
plan exempted certain disabilities, but not those caused by myelitis, from indefinite coverage.
For several reasons, the district court found that Bustetter had not. Bustetter principally
relied on a January 2017 Functional Capacity Evaluation performed by his physical therapist,
Karen Scholl. But Scholl never found that Bustetter was unable to perform the duties of any
occupation in the national economy. Nor did she consider whether any workplace
accommodations would allow Bustetter to work, or whether Bustetter’s physical limitations were
caused by his myelitis as opposed to some other cause. Nor did Bustetter’s treating physicians
make either of these findings. True, the Social Security Administration determined that Bustetter
was eligible for Social Security disability benefits. But the standard for awarding those benefits
was different from the standard for obtaining “all occupation” long-term benefits under the plan
here. See generally Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833 (2003). Nor is
the record here the same record that was before the Social Security Administration. The district
court was correct to find that Bustetter had not shown by a preponderance of the evidence that he
was disabled from all occupations as a result of his myelitis or any other cause.
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B.
Bustetter also asks that we remand this case so he can move for an award of attorney’s fees
in the district court. Under ERISA, a court may award attorney’s fees to a non-prevailing party
“as long as the fee claimant has achieved some degree of success on the merits.” Hardt v. Reliance
Standard Life Insurance Co., 560 U.S. 242, 245 (2010).
By way of background, in a September 2019 order, the district court remanded “[t]his
matter” to Standard “for a full and fair review” of its earlier decision to deny benefits. After that
review, Standard again denied benefits, after which the court entered judgment in favor of
Standard. That judgment is the one we affirm here. Bustetter’s argument now is that, as a result
of the September 2019 order, he is a “prevailing party” entitled to an award of attorney’s fees.
But that argument is forfeited. “Unless a statute or court order provides otherwise,” a
motion for attorney’s fees must be filed within 14 days after the entry of judgment. Fed. R. Civ.
P. 54(d)(2)(B). The court rules for Eastern District of Kentucky extend that period to 30 days. See
E.D. Ky. LR 54.4.
Bustetter sought an award of fees before the district court entered its September 2019 order,
but the court denied that request. Later the court invited Bustetter to file for fees “at the conclusion
of the litigation.” But Bustetter never did, and instead seeks them now. His request is therefore
untimely and forfeited.
The district court’s judgment is affirmed.
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