         Case: 16-16935   Date Filed: 11/17/2017   Page: 1 of 28




                                                    [DO NOT PUBLISH]




          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 16-16935
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:15-cv-01703-VMC-TGW




KRISTIAN HORNELAND,

                                                         Plaintiff - Appellant,

                                versus

UNITED OF OMAHA INSURANCE COMPANY,

                                                       Defendant - Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                          (November 17, 2017)
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Before MARCUS, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Kristian Horneland (“Plaintiff”) sued United of Omaha Life Insurance

Company (“Defendant”) under the Employee Retirement Income Security Act

(“ERISA”) for denying Plaintiff long term disability benefits on the grounds that

Plaintiff was either not disabled or, if he was disabled, his disability was the result

of a pre-existing condition. The parties filed cross-motions for summary judgment

solely on the issue of whether the pre-existing condition exclusion applied, and the

district court entered judgment for Defendant. Plaintiff moved to alter or amend

the court’s findings of fact or judgment, but the district court denied the motion.

Plaintiff appealed the district court’s rulings on both summary judgment and the

postjudgment motion. After thorough consideration of both the record and the

parties’ briefs, we conclude that there are genuine issues of material fact that

preclude entering summary judgment in favor of either party. Accordingly, we

REVERSE the district court’s entry of summary judgment for Defendant,

AFFIRM the district court’s denial of summary judgment to Plaintiff, DENY AS

MOOT Plaintiff’s motion to alter or amend findings of fact or judgment, and

REMAND for further proceedings.




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                                 BACKGROUND

      On March 12, 2012, Plaintiff was hired as a real estate manager for

Thornton’s, Inc., a gasoline and convenience store chain. As part of his

employment, Plaintiff received both short term and long term disability coverage

under Defendant’s insurance plans. Both plans are governed by ERISA. Although

his employment began on March 12, 2012, his long term disability coverage did

not begin until he had completed twelve months of employment (disability

coverage began “on the day following completion of 12 months of Active

Employment,”); that is, it did not begin until March 12, 2013.

      In addition, the long term disability policy includes a Pre-existing

Conditions Exclusion that states:

      Pre-existing Conditions

      We will not provide benefits for Disability:

        (a) caused by, contributed to by, or resulting from a Pre-existing
            Condition; and
        (b) which begins in the first 12 months after You are continuously insured
            under this Policy

      A Pre-existing Condition means any Injury or Sickness for which You
      received medical treatment, advice or consultation, care or services
      including diagnostic measures, or had drugs or medicines prescribed or
      taken in the 3 months prior to the day You become insured under this Policy.

“Injury” and “Sickness” are defined as:


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      Injury means an accidental bodily injury which is the direct result of a
      sudden, unexpected and unintended external force or element, such as a
      blow or fall, that requires treatment by a Physician. It must be independent
      of Sickness or any other cause, including, but not limited to, complications
      from medical care. Disability due to such injury must begin while You are
      insured under the Policy. Injury does not include elective or cosmetic
      surgery or procedures, or complications resulting therefrom.

      Sickness means a disease, disorder or condition, including pregnancy, for
      which you are under the care of a Physician. Disability must begin while
      you are insured under the Policy. Sickness does not include elective or
      cosmetic surgery procedures, or complications resulting therefrom.

      As set out above, the Pre-existing Conditions Exclusion includes a “look-

back period,” by which an injury or sickness condition constitutes a pre-existing

condition only if the injury or sickness was treated in the three months before

Plaintiff’s long-term disability coverage began on March 12, 2013. Thus,

Plaintiff’s look-back period ran from December 12, 2012 to March 12, 2013.

      Long before becoming a real estate manager for Thornton’s, Plaintiff hurt

his back on October 16, 1998, in a slip and fall accident that fractured the spinous

processes of Plaintiff’s T6, T7, and T8 vertebrae in his thoracic spine. In laymen’s

terms, Plaintiff hurt the parts of his vertebrae that attach muscles and ligaments to

his spine in the upper part of his back. Thanks to successful pain management and

rehabilitation, Plaintiff was able to live a relatively pain free life for roughly the

next fourteen years.



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      But being a real estate manager for Thornton’s required Plaintiff to spend

approximately fifteen to twenty hours a week driving to potential store locations.

And a few months after he began his employment with Thornton’s, Plaintiff began

again experiencing back problems. Specifically, around September 2012, Plaintiff

began suffering from back pain and “mid/lower back spasms” that he attributed to

“driving too much.” Plaintiff saw his physician Dr. Charles Gelia to have his back

checked and was prescribed pain medications, including Vicodin.

      On December 12, 2012, the look-back period for Plaintiff’s long term

disability policy began. Around the same time, one of Plaintiff’s co-workers was

fired and Plaintiff began regularly driving between forty and sixty hours a week.

In January 2013, Plaintiff experienced a “sudden onset of sharp, stabbing pain over

his mid back.” On March 4, Plaintiff returned to Dr. Gelia to obtain prescription

refills for Vicodin and Tramadol for pain in his “upper-mid back.” On March 12,

2013, the look-back period for Plaintiff’s long term disability policy ended.

      As Plaintiff continued to spend most of his week driving, his back pain and

muscle spasms became progressively worse. On April 23, 2013, Plaintiff returned

to Dr. Gelia and again complained of back pain caused by his increased driving.

By June and July, Plaintiff’s back pain and muscle spasms were so severe that he

was having difficulty walking, and pain medications no longer provided Plaintiff


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enough relief to make it through the day. His last day of work at Thornton’s

occurred on August 2, 2013 and he claimed to be disabled as of August 3, 2013.

      Plaintiff continued to seek treatment for his back after he had ceased

working at Thornton’s. On August 23, 2013, Plaintiff saw Dr. Sunil Panchal.

Plaintiff told Dr. Panchal that his pain began in February 2013 and became worse

with increased driving. Plaintiff also indicated to Dr. Panchal that his back pain

originated specifically in his T6, T7, and T8 vertebrae, and that he had first

experienced such pain on October 16, 1998—the day of his original fall. After a

physical examination, Dr. Panchal observed that Plaintiff’s “mid back pain

reproduced with thoracic facet loading,” which “suggest[ed] the involvement of the

lower thoracic and upper lumbar facet joints.”

      On September 12, 2013, Plaintiff obtained an MRI of his lumbar spine. The

next day Plaintiff saw Dr. Brody Henkel. Plaintiff informed Dr. Henkel that he

first hurt his T6, T7, and T8 vertebrae in 1998 and had a “history of mid back pain”

as a result. But Plaintiff indicated that he had remained relatively pain free until

earlier in 2013. Plaintiff also informed Dr. Henkel that he had been taking Vicodin

and Tramadol for his pain. In a physical examination of Plaintiff’s lumbar spine,

Dr. Henkel noted that Plaintiff had “Full, painless range of motion” and no

observable problems. Dr. Henkel also found the MRI of Plaintiff’s lumbar spine to


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be normal. Dr. Henkel thus assessed Plaintiff as suffering from “pain in the

thoracic spine” and recommended obtaining an MRI of his thoracic spine.

      Two weeks later, at the end of September 2013, Plaintiff submitted a claim

to Defendant for short term disability benefits. Plaintiff claimed that he was

disabled by severe back pain and muscle spasms. He also indicated that his

symptoms had begun in February 2013 and that he first treated them in February

and March of that year. Along with his claim, Plaintiff included a form with Dr.

Gelia’s assessment written on September 18th. Dr. Gelia stated that Plaintiff had

sciatica (pain that radiates along the sciatic nerve in the lower back and legs),

muscle spasms, and pain in the thoracic spine. Dr. Gelia also indicated that

Plaintiff’s symptoms first appeared on October 16, 1998, when Plaintiff fell.

      While going through the process of obtaining approval for his short term

disability benefits, Plaintiff emailed Defendant twice on December 2, 2013. In the

first email, Plaintiff asked Defendant to “go over [t]horacic spine injuries versus

lumbar spine injuries” and stated that he had a “more rare [t]horacic]” injury that

could be confirmed by his physicians. In the second, Plaintiff asked for assistance

obtaining a “thoracic MRI” that would allow Dr. Henkel to determine whether

Plaintiff was suffering from a herniated disk or nerve damage “in the [t]horacic




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spine.” Two days later, Defendant notified Plaintiff that it was automatically

transitioning his short term disability claim to a long term disability claim.

      On December 17, 2013, Plaintiff had an MRI on his thoracic spine.

Although the MRI noted that Plaintiff’s clinical indication was “thoracic pain,” the

MRI itself showed no evidence of “any significant abnormality.” Two days later,

Plaintiff followed up again with Dr. Henkel. Dr. Henkel noted that Plaintiff

continued to report “constant sharp stabbing pain over his mid back with no

radiating pain to his neck or lower back.” Dr. Henkel again checked Plaintiff’s

lumbar spine and found “no muscle spasms and normal range of motion.” After

reviewing the thoracic MRI, Dr. Henkel concluded that it was “normal,” and he

could not “identify an underlying Neurological etiology for [Plaintiff’s] reported

mid-back pain”—meaning he could not identify the cause of Plaintiff’s pain.

Nevertheless, Dr. Henkel assessed Plaintiff as suffering from “pain in the thoracic

spine” and recommended Plaintiff follow up with a pain management specialist.

      As Plaintiff waited for Defendant’s decision on both his short and long term

disability benefits, he continued to seek the opinion and assistance of more doctors.

On February 2, 2014, Plaintiff saw Dr. David Kalin, who prepared a medical report

to submit to Defendant. In preparing his report, Dr. Kalin reviewed Plaintiff’s

medical history and conducted a physical examination. Dr. Kalin’s report


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acknowledged that Plaintiff had previously fractured the spinous processes of the

T6, T7, and T8 vertebrae in his back in 1998, but noted that he had been

“asymptomatic” until September 2012 when he developed “mid/lower back

spasms,” sought treatment, and was prescribed Vicodin and Tramadol (among

other medications). From his physical examination, Dr. Kalin observed that

Plaintiff’s upper back had “palpable midline tenderness over thoracolumbar

junction with mild rotation.” By comparison, Plaintiff’s lower back was “without

midline tenderness or spasm.” In his assessment, Dr. Kalin found that Plaintiff

suffered from “Exacerbation/Aggravation [of a] chronic thoracolumbar

musculoskeletal ligamentous strain with minimal annular bulging L4-5, L5-S1”—

meaning that Plaintiff had exacerbated a chronic ligament strain in his thoracic or

lumbar region and had two bulging discs in his lumbar spine. Based on Plaintiff’s

“medical history, physical examination and review of available medical

records/diagnostic studies, [Plaintiff’s] present musculoskeletal [condition] was

initially caused by a slip/fall injury sustained during 1998, with fractures of the

spinous processes of T6-7-8.” Dr. Kalin ultimately concluded that “Within a

reasonable degree of medical probability [Plaintiff’s] employee obligations,

requiring long hours of prolonged driving have exacerbated and/or aggravated his

preexisting condition.”


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      On February 7, 2014, Defendant denied Plaintiff short term disability

benefits for everything but the period from August 10, 2013 to September 13,

2013. Defendant found that there was no “clinical or diagnostic evidence”

supporting Plaintiff’s disability and therefore concluded that Plaintiff was not

disabled.

      On February 12, 2014, Plaintiff saw another doctor, Dr. Steven Barna.

Plaintiff indicated to Dr. Barna that he was still suffering from “midback pain and

low back pain.” Dr. Barna diagnosed Plaintiff with “thoracic spondylosis” (spinal

degeneration).

      Two weeks later, on February 26, 2014, Defendant denied Plaintiff’s claim

for long term disability benefits. Defendant again concluded that there was

insufficient evidence to establish that Plaintiff was disabled. In addition,

Defendant found that Plaintiff had previously been treated for back pain and

muscle spasms through the prescription of Vicodin and Tramadol during the look-

back period. Hence, Defendant concluded that, even if Plaintiff was disabled, his

claim would be barred by the Pre-existing Conditions Exclusion.

      Plaintiff first appealed Defendant’s denial of short term disability benefits.

In July 2014, Plaintiff submitted a personal statement to Defendant describing the

initial onset of his back pain and muscle spasms in January 2013, his progressively


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worsening state that led to him stopping work in July 2013, his current condition

(comprised of both back pain and muscle spasms in his “mid to lower back”), and

his decreased quality of life. In addition, Plaintiff submitted a signed statement

from Dr. Gelia. Dr. Gelia stated that he diagnosed Plaintiff with “pain in the

thoracic spine, sciatica and hypermobility syndrome” caused or contributed to by

the significant time Plaintiff spent driving for work. And, in Dr. Gelia’s opinion,

Plaintiff was incapable of working in his current condition. Nevertheless, in

August 2014, Defendant denied Plaintiff’s appeal for additional short term

disability benefits beyond what had already been provided. Defendant again

asserted that Plaintiff had not sufficiently established his disability.

      A few days after Defendant denied Plaintiff’s appeal for short term disability

benefits, Plaintiff appealed the denial of his long term disability benefits. In regard

to the applicability of the Pre-existing Conditions Exclusion, Plaintiff asserted that

there was only a single instance of treatment in the look-back period and that the

diagnosis listed by Dr. Gelia on that occasion, “BA,” (presumed by Defendant to

mean “back ache”) was meaningless.

      In February 2015, Plaintiff saw Dr. Robert Guirguis and underwent

electromyography and nerve conduction velocity tests. Dr. Guirguis noted that

Plaintiff complained of “low back pain radiating to the bilateral LE with numbness


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and tingling in the bilateral foot.” In addition, Dr. Guirguis opined that the tests

provided evidence “consistent with lumbar radiculopathy affecting the bilateral L5

nerve roots” in Plaintiff’s lumbar spine.

      In March 2015, Dr. Gelia submitted a supplemental statement to Defendant.

He asserted that Plaintiff’s March 4, 2013 visit was for refilling prescription pain

medications because Plaintiff was experiencing pain in his “upper mid-back.” Dr.

Gelia then stated that it was “clearly now apparent that the condition that disables

[Plaintiff] is in the lumbar region and includes sciatica.” Dr. Gelia also opined

that, based on a recent MRI of Plaintiff’s thoracic spine that showed only minimal

protrusion of his T11 and T12 vertebrae, there was no support for a “thoracic-

based disability.” Dr. Gelia concluded that Plaintiff was unable to work “due to

his extensive lumbar issues.”

      Plaintiff also obtained a supplemental report from Dr. Kalin in March 2015.

Dr. Kalin’s updated report largely copied the first, but included a few notable

differences. First, in his physical examination of Plaintiff he now observed

“palpable tenderness T12-L2” in Plaintiff’s lower back in addition to the

tenderness in his upper back. Second, Dr. Kalin changed his initial assessment.

He found that Plaintiff now suffered from “Aggravation [of a] chronic

thoracolumbar musculoskeletal ligamentous strain with mild central protrusion T1-


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12 without canal stenosis or cord compression (02/11/15, MRI), mild osseous

degenerative change with mild scoliosis (01/27/15, MRI), [and] minimal annular

bulging L4-5, L5-S1 (09/12/13, MRI).” Dr. Kalin also added a new assessment for

“Chronic right sciatica and bilateral lumbar radiculopathy with electrodiagnostic

evidence consistent with lumbar radiculopathy affecting bilateral L5 nerve roots

(02/12/15, EMG NCV bilateral lower extremities) with antalgic gait.” Based on

this, Dr. Kalin came to three conclusions. First, “Within a reasonable degree of

medical certainty,” Plaintiff’s “preexisting condition due to fractures of the

spinous processes of T6, 7, 8, slip and fall injury 1998” was aggravated by

prolonged driving. Second, “Within a reasonable degree of medical certainty,” the

prolonged driving “caused additional compression extending from the thoracic to

the lumbar spine, resulting in further decompensation of the musculoskeletal

integrity in the mid/lower back” that resulted in Plaintiff’s lumbar problems,

including low back pain and sciatica. Finally, Dr. Kalin concluded that Plaintiff

was disabled from working “due to the extensive decompensation of his lumbar

spine.”

      Plaintiff submitted Dr. Kalin’s supplemental report to Defendant in April

2015. In the attached letter, Plaintiff asked Defendant to “note the distinction

between upper and lower thoracic issues,” and asserted that the “March 4, 2013


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office visit with Dr. Gelia addressed upper thoracic issues.” (Emphasis in

original.) Plaintiff also asserted that his lumbar radiculopathy could not be caused

by a “thoracic bulge or other lesion.”

      Taking Plaintiff’s medical documentation and history into consideration,

Defendant’s medical consultant Dr. Nancy Heimonen issued her opinion in May

2015. Dr. Heimonen found that Plaintiff’s sciatica and lumbar diagnoses lacked

“documented evidence” from when Plaintiff originally submitted his claim. In

addition, the findings of other doctors from around the time of Plaintiff’s initial

disability claim were inconsistent with a lumbar issue. In particular, Dr. Heimonen

noted that Plaintiff did not complain about lumbar problems or pain in 2013, that

his 2013 lumbar MRI did not show any issues, and that both Dr. Henkel’s and Dr.

Panchal’s physical examination findings were not consistent with lumbar

problems. Hence Dr. Heimonen concluded that the sciatica and lumbar diagnoses

were “new” problems and, if correct, had developed after Plaintiff filed his

disability claim. Dr. Heimonen also found that there was as an “absence of

documented evidence of neurological deficit, confirmed physical exam findings

and/or imaging study results that support/explain the extent of [Plaintiff’s] pain

complaints,” and therefore it was uncertain whether Plaintiff qualified as disabled.

Addressing Plaintiff’s pre-existing condition, Dr. Heimonen concluded there was


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“reasonable medical evidence” to find that the symptoms Plaintiff was treated for

during the look-back period were the same as those underlying his disability claim.

      In July 2015, Defendant denied Plaintiff’s long term disability benefits

appeal on the grounds that Plaintiff’s lumbar condition was a recent development

and not part of his disability, that Plaintiff was not actually disabled, and that, even

if disabled, the Pre-existing Conditions Exclusion applied because Plaintiff had

received treatment during the look-back period by being prescribed Vicodin and

Tramadol for back pain and muscle spasms.

      In response, Plaintiff brought suit against Defendant under 29 U.S.C.

§ 1132(a)(1)(B) for the denial of both Plaintiff’s short term and long term disability

benefits claims. The parties mutually resolved the short term disability benefits

claim. The parties also agreed that the only question to be decided by the district

court was whether the Pre-existing Conditions Exclusion applied. If the court

found that it did not, then the case would be remanded to Defendant to determine

whether Plaintiff met the definition of total disability. After filing cross-motions

for summary judgment on the issue, the district court found that the Pre-existing

Conditions Exclusion applied and entered judgment in favor of Defendant. The

district court based its ruling on two key facts. First, Plaintiff had obtained

treatment and took medication for back pain during the look-back period when he


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saw Dr. Gelia in March 2013. And second, both Dr. Heimonen and Dr. Kalin

concluded that Plaintiff’s complaints from the time he filed his disability claim

were the same as his complaints during the look-back period for which he was

treated.

      Plaintiff then filed a motion under Rules 52(b) and 59(e) to “add or amend

findings of fact or to alter or amend judgment” asserting that the district court’s

opinion should have recited an additional paragraph from Dr. Kalin’s supplemental

report. The district court found that Plaintiff’s motion was merely an attempt to re-

litigate the issues already decided on summary judgment and denied the motion.

Plaintiff now appeals the district court’s rulings on both summary judgment and

Plaintiff’s postjudgment motion.

                                   DISCUSSION

I.    Motion for Summary Judgment

      A.     Standard of Review

      We “review a district court’s grant of summary judgment in an ERISA case

de novo, applying the same judicial standard to the administrator’s decision that the

district court used to guide its review.” Melech v. Life Ins. Co. of N. Am., 739 F.3d

663, 673 (11th Cir. 2014) (citing Blankenship v. Metro. Life Ins. Co., 644 F.3d

1350, 1354 (11th Cir. 2011)). Although ERISA itself does not set a standard of


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review for the review of an administrator’s decision to deny benefits, we apply a

multi-step framework crafted from the Supreme Court’s guidance. Blankenship v.

Metro. Life Ins. Co., 644 F.3d 1350, 1354-55 (11th Cir. 2011).1 Because the

parties agree that Defendant had no discretion to either determine benefits

eligibility or construe the plan’s terms, we need not leave the first step, and we

“apply the de novo standard to determine whether the claim administrator’s

benefits-denial decision is ‘wrong.’” Id. at 1355 (citing Capone v. Aetna Life Ins.

Co., 592 F.3d 1189, 1195 (11th Cir. 2010)). Finally, because Defendant has
1
    The steps are:

         (1) Apply the de novo standard to determine whether the claim administrator's benefits-
         denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if
         it is not, then end the inquiry and affirm the decision.

         (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he
         was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse
         the decision.

         (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion
         in reviewing claims, then determine whether “reasonable” grounds supported it (hence,
         review his decision under the more deferential arbitrary and capricious standard).

         (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s
         decision; if reasonable grounds do exist, then determine if he operated under a conflict of
         interest.

         (5) If there is no conflict, then end the inquiry and affirm the decision.

         (6) If there is a conflict, the conflict should merely be a factor for the court to take into
         account when determining whether an administrator’s decision was arbitrary and
         capricious.

Blankenship, 644 F.3d at 1355.


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denied Plaintiff’s claim on the basis of the Pre-existing Conditions Exclusion, the

burden is on the administrator to show that the “exclusion prevents coverage.”

Horton v. Reliance Std. Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998) (per

curiam).

      B.     Back Pain and Muscle Spasms are not Pre-Existing Conditions
             under the Pre-Existing Conditions Exclusion
      A condensed timeline is helpful before we begin our analysis. Plaintiff

began his employment at Thornton’s on March 12, 2012. He ceased working on

August 2, 2013, and, in September 2013, he filed a claim for disability benefits

with Defendant. But, as with most disability plans, Plaintiff was not covered for

any disability that resulted from a pre-existing condition treated within a specified

period of time, referred to as “the look-back period.”

      Plaintiff’s look-back period began on December 12, 2012 and ended on

March 12, 2013. In August and October 2012, Plaintiff was prescribed pain

medications and gel to address his back pain. On December 28, 2012, Plaintiff

obtained a refill of his pain medications to address his continuing pain. And, on

March 4, 2013, he sought treatment and obtained refills for Vicodin and Tramadol,

which had been previously prescribed to treat the pain in his upper-mid back (the

thoracic region).




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      After the look-back period ended on March 12, 2013, Plaintiff’s back

problems persisted. On March 14, two days after the look-back period ended,

Plaintiff refilled the pain medication prescriptions for his back pain. A month

later, he saw Dr. Gelia, again complaining of back pain and muscle spasms.

Plaintiff’s back pain and muscle spasms became worse over the following months

until, in early August, Plaintiff alleges that they were so severe that he was forced

to quit his job. Shortly afterwards, in late August and September, Plaintiff saw a

number of doctors looking for treatment. During these visits, Plaintiff told both

Dr. Panchal and Dr. Henkel that he was suffering from pain seemingly identical to

the pain he had previously experienced from fracturing the spinous processes in his

T6, T7, and T8 vertebrae in 1998. Plaintiff also told Dr. Henkel that he had been

taking Vicodin and Tramadol to treat the pain. An MRI of Plaintiff’s lumbar spine

showed no significant problems or abnormalities, so Dr. Henkel recommended

obtaining an MRI of Plaintiff’s thoracic spine.

      At the end of September 2013, Plaintiff filed for disability benefits with

Defendant and claimed to be disabled by his back pain and muscle spasms. Dr.

Gelia’s assessment, attached to his claim, stated that Plaintiff was suffering from

sciatica, muscle spasms, and pain in the thoracic spine. Dr. Gelia also indicated

that Plaintiff’s symptoms had first appeared in 1998 after his fall.


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      Later, in December 2013, Plaintiff continued to try and obtain a thoracic

MRI as Dr. Henkel had recommended and asked Defendant for help. He told

Defendant that he needed the thoracic MRI because he had a “[t]horacic” injury

and the MRI was necessary to diagnose the underlying cause. Shortly afterwards,

Plaintiff underwent a thoracic MRI which, like his earlier lumbar MRI, showed no

significant abnormalities. As a result, Dr. Henkel diagnosed Plaintiff with “pain

the thoracic spine” and recommended pain management.

      But Plaintiff continued to seek other opinions. In February 2014, Plaintiff

saw Dr. Kalin, who concluded Plaintiff’s back problems were initially caused by

his fall in 1998 and were exacerbated by his driving for Thornton’s. Also in

February, Plaintiff saw Dr. Barna who diagnosed Plaintiff with thoracic

spondylosis. Despite this, Defendant denied Plaintiff’s claim for long term

disability benefits on the grounds that he was not disabled and, if he was disabled,

that his disability was the result of a pre-existing condition treated during the look-

back period.

      A year later—nearly a year and half after Plaintiff initially claimed to be

disabled—Plaintiff saw Dr. Guirguis for electromyography and nerve conduction

velocity testing. Based on the test results, Dr. Guirguis concluded that Plaintiff

was suffering from lumbar radiculopathy. Upon seeing these results, both Dr.


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Gelia and Dr. Kalin revised their initial assessments and asserted that Plaintiff’s

disability was a result of lumbar radiculopathy and other lower-back issues.

      Defendant’s medical consultant, Dr. Heimonen, reviewed Plaintiff’s medical

history and reached a number of conclusions. Specifically, she found that any

lumbar-based disability was “new” and did not exist at the time Plaintiff left his

job and filed for disability. She also concluded that it was uncertain whether

Plaintiff was actually disabled. And, finally, Dr. Heimonen found that there was

reasonable medical evidence to believe that Plaintiff had been treated during the

look-back period for the same symptoms he later filed disability for—meaning that

his disability was pre-existing. Defendant denied Plaintiff disability benefits for a

second time on these same grounds, asserting that he was either not disabled or that

the Pre-Existing Conditions Exclusion applied.

      Altogether, Defendant twice denied Plaintiff long term disability benefits

based on the Pre-existing Conditions Exclusion because Plaintiff received

treatment for “back pain and muscle spasms” during the look-back period—the

same symptoms that Plaintiff ultimately claimed, just a few months later, to be so

debilitating as to render him disabled and unable to work. In doing so, Defendant

relied on the fact that Plaintiff was prescribed, and refilled prescriptions for,

Vicodin and Tramadol for back pain during the look-back period in March 2013.


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In its ruling for Defendant, the district court agreed and found that Plaintiff

“treated with his primary care physician before, during, and after the look-back

period for back pain, and had prescriptions for pain medicine filled during the

look-back period.”

       But back pain and muscle spasms are not by themselves necessarily Pre-

Existing Conditions under the Exclusion. To interpret the plan and the Pre-existing

Conditions Exclusion, we look first to the plan’s text, and we give the plan’s terms

their plain and ordinary meaning. See Alexandra H. v. Oxford Health Ins. Inc.

Freedom Access Plan, 833 F.3d 1299, 1307 (11th Cir. 2016). The Exclusion states

that Defendant “will not provide benefits for Disability: (a) caused by, contributed

to by, or resulting from a Pre-existing Condition; and (b) which begins in the first

12 months after [the policyholder is] continuously insured under this Policy.” The

record shows, and the parties do not dispute, that (b) is satisfied. 2 The only

question then is whether Plaintiff had a Pre-existing Condition that caused,

contributed to, or resulted in his disability.

       The policy defines “Pre-existing Condition” as “any Injury or Sickness for

which [the policyholder] received medical treatment, advice or consultation, care


2
  Plaintiff first became insured under the policy when he was hired on March 12, 2013, and
Plaintiff states his disability began within a year.


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or services including diagnostic measures, or had drugs or medicines prescribed or

taken in the 3 months prior to the day [the policyholder] became insured under this

Policy.” In turn, “Injury” is an “accidental bodily injury,” and “Sickness” is “a

disease, disorder or condition.” Stitching these definitions together, a Pre-existing

Condition must be an accidental bodily injury, a disease, a disorder, or a condition.

      Back pain and muscle spasms are not by themselves an accidental bodily

injury, a disease, a disorder, nor a condition. Back pain and muscle spasms are the

symptom for which an accidental bodily injury, a disease, a disorder, or a condition

might be the cause. At no point in Defendant’s denial letters or in its brief does

Defendant assert that back pain and muscle spasms are, in and of themselves, an

accidental bodily injury, a disease, or a disorder.

      At most, Defendant occasionally refers to Plaintiff’s “disabling condition” as

back pain and muscle spasms. But the plain text of the plan expressly defines pain

as being a “symptom,” not a “condition.” The plan defines “Self-Reported

Symptoms,” in part, as “manifestations of [the policyholder’s] condition.”

(Emphasis added.) And “Examples of Self-Reported Symptoms include, but are

not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears,

dizziness, numbness, and loss of energy.” (Emphasis added.) So pain is the




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“manifestation,” or symptom, of a condition; it is not a condition itself. Under the

plan’s plain text, Plaintiff’s back pain is a symptom, not a condition.

       And this same logic dictates that muscle spasms cannot by themselves

constitute a Pre-existing Condition. Muscle spasms are, like pain, soreness, or

stiffness, a symptom of some underlying injury, disease, disorder, or condition.3

Muscle spasms are not a condition, nor are they an accidental bodily injury, a

disease, or a disorder. Because a Pre-existing Condition must be either an

accidental bodily injury, a disease, a disorder, or a condition, the Pre-existing

Conditions Exclusion cannot apply to Plaintiff’s back pain and muscle spasms.

       C.     Genuine Issues of Material Fact Preclude Summary Judgment

       That said, though, the underlying cause of Plaintiff’s back pain and muscle

spasms could constitute an accidental bodily injury, disease, disorder, or condition

that would potentially trigger the Pre-Existing Conditions Exclusion. The record,

however, is rife with inconsistencies and contradictory evidence that preclude

entering summary judgment for either party. Ultimately, to determine whether the

Exclusion applies, at least three facts are essential: (1) what Plaintiff’s disability


3
  Cf. Gagliardo v. Connaught Lab., Inc., 311 F.3d 565, 567 (3d Cir. 2002) (describing “muscle
spasms” as a “symptom”); Smith v. Kmart Corp., 177 F.3d 19, 23 (1st Cir. 1999) (same); Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (same); Preston v. Sec’y of Health and Human Serv.,
854 F.2d 815, 817 (6th Cir. 1988) (same); Smith v. Office of Pers. Mgmt., 784 F.2d 397, 398
(Fed. Cir. 1986) (same); Taylor v. Heckler, 742 F.2d 253, 256 (5th Cir. 1984) (same).


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is, (2) what Plaintiff’s Pre-Existing Condition is, and (3) what, if any, relationship

there is between Plaintiff’s Pre-Existing Condition and his disability. But the

record contains conflicting and inconsistent evidence that makes resolution of

these factual issues inappropriate for summary judgment.

      For example, it cannot be determined whether Plaintiff had a Pre-Existing

Condition that caused, contributed to, or resulted in his disability without first

establishing what Plaintiff’s disability is. In spite of this, the parties have—

through stipulations governing how they would like this litigation to proceed—

attempted to put the cart before the horse by limiting the sole issue before the

district court to whether or not the Pre-Existing Conditions Exclusion applied and

reserving a possible disability determination for later. Yet the parties themselves

acknowledge that a ruling on the Pre-Existing Conditions Exclusion necessitates

first establishing what Plaintiff’s disability is, demonstrated by the fact that both

spend the majority of their briefs arguing about whether Plaintiff’s disability is

caused by a lumbar or thoracic condition.

      And on this very confusing record, the issue of Plaintiff’s disability does not

lend itself to disposition on summary judgment. The record seems to indicate the

existence of a thoracic condition when Plaintiff’s complaints first began, based on

Plaintiff’s self-described symptoms, his initial claims and statements to Defendant,


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and the notes from the doctors he initially visited in August and September 2013.

Yet Dr. Henkel reviewed an MRI of Plaintiff’s thoracic spine and concluded in

December 2013 that, in fact, there were no significant abnormalities. Nevertheless,

two months later, in February 2014, Dr. Barna diagnosed Plaintiff with thoracic

spondylosis, and Dr. Kalin concluded that Plaintiff’s disability was an exacerbation

of his 1998 thoracic injury. So, there is conflicting evidence not only as to whether

Plaintiff had a thoracic condition, but whether even such a condition constitutes a

disability.

       And there is also evidence that suggests Plaintiff may have at a later time

developed a lumbar condition. Testing in February 2015 showed that Plaintiff was

suffering from lumbar radiculopathy. Upon reviewing these test results, Dr. Kalin

then revised his initial diagnosis to conclude that Plaintiff’s disability was now

primarily lumbar-based (though he still indicates there is some connection between

the lumbar disability and Plaintiff’s earlier thoracic injury).

       However, even if Plaintiff is currently disabled because of a lumbar

condition, it will also be necessary to determine when that disability arose, which is

yet another issue with conflicting evidence. Plaintiff’s disability coverage

presumably ended when he left Thornton’s employ on August 2, 2013, so

presumably Plaintiff must establish that his lumbar disability began no later than


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that date to be entitled to disability benefits. But the doctors’ notes and lumbar

MRI from September 2013 suggest that there were no significant problems in

Plaintiff’s lumbar spine. Indeed, aside from Dr. Gelia’s statements that Plaintiff

had sciatica, the record lacks documentation of any significant lumbar problems

until Plaintiff’s February 2015 lumbar MRI—roughly a year and a half after we

assume his disability policy to have ended.

        Perhaps Plaintiff can thread the eye of this needle and demonstrate (1) that

he was disabled by a lumbar condition (2) that arose before his insurance policy

ended and (3) that was not caused by an earlier thoracic injury that manifested

itself during the look-back period. But that determination cannot be made on this

record via a summary judgment motion.

        And this discussion only broaches the issue of Plaintiff’s disability. Once

that has been determined, it will then be necessary to establish what accidental

bodily injury, disease, disorder or condition Plaintiff was treated for during the

look-back period, and, whether that ailment caused, contributed to, or resulted in

Plaintiff’s disability. There are genuine issues of material fact on these issues as

well.

        Put simply, in light of the genuine issues of material fact that abound in this

case, summary judgment is an inappropriate mechanism to determine what


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Plaintiff’s disability is and whether the Pre-Existing Conditions Exclusion applies.

Therefore, on this record, we cannot approve the grant of summary judgment to

either party. Thus, we remand for further proceedings.

II.     Motion to Amend or Alter Findings of Fact or Judgment

        Because we hold that the district court erred by entering judgment in favor

of Defendant, Plaintiff’s motion to amend or alter findings of fact or judgment is

moot.

                                   CONCLUSION

        The district court’s order granting summary judgment in favor of Defendant

is REVERSED, the denial of Plaintiff’s motion for summary judgment is

AFFIRMED, and the motion to alter or amend findings of fact or judgment is

DENIED AS MOOT. The case is REMANDED to the district court for further

proceedings consistent with this opinion.




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