                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 15a0610n.06

                                                Case No. 13-4450
                                                                                                    FILED
                                  UNITED STATES COURT OF APPEALS                             Aug 28, 2015
                                       FOR THE SIXTH CIRCUIT                             DEBORAH S. HUNT, Clerk


STEVEN STOCKMAN,
                                                             )
            Plaintiff-Appellee                               )
v.                                                           )       ON APPEAL FROM THE UNITED
                                                             )       STATES DISTRICT COURT FOR
GE LIFE, DISABILITY AND MEDICAL                              )       THE SOUTHERN DISTRICT OF
PLAN; METROPOLITAN LIFE                                      )       OHIO
INSURANCE COMPANY,                                           )
                                                             )
            Defendants-Appellants.                           )
                                                             )       OPINION
                                                             )

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.*

            PER CURIAM.1 Defendants-Appellants GE Life, Disability and Medical Plan (“Plan”)

and Metropolitan Life Insurance Company (“MetLife”) appeal a district court decision granting

Plaintiff-Appellee’s motion for judgment on the administrative record.                      In 2009, Plaintiff-

Appellee Steven Stockman (“Stockman”) was injured in an accident and lost the use of his left

foot for one year. A series of surgeries partially restored Stockman’s use of the foot, but it

remains permanently damaged. Stockman, a beneficiary under the Plan, submitted a claim for

benefits, but the Plan’s administrator, MetLife, denied the claim, determining that any loss that

Stockman experienced was neither “permanent” nor “total” and therefore did not qualify for

*The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
    Judge Boggs has filed a separate dissent.
Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


coverage under the policy. After exhausting his administrative remedies, Stockman sued the

Plan and MetLife for coverage under the Employee Retirement Security Act of 1974 (“ERISA”).

The district court granted Stockman’s motion for judgment on the administrative record and

denied MetLife and the Plan’s cross-motion, concluding that Stockman’s injury fell within the

Plan’s promise that “the permanent and total loss of function of the hand or foot as a result of an

accident after the loss has continued for at least 12 consecutive months” would be covered.

MetLife and the Plan timely appealed. For the following reasons, we AFFIRM.

                                                           I.

                                                          A.

            Near midnight on October 19, 2009, Steven Stockman fell two stories from a ladder

while he was attempting to change a light bulb in his home. Stockman “landed on his feet, and

experienced immediate pain in his left foot.” Stockman’s wife, Nicky Leonard (“Leonard”),

drove him to the hospital, where he was admitted to the emergency room and initially diagnosed

with a severe ankle sprain. A subsequent x-ray revealed, however, that Stockman had shattered

his heel bone.2

           Stockman began treatment with Michael Barnett (“Dr. Barnett”), an orthopedic surgeon,

on November 3, 2009. Dr. Barnett affirmed the hospital radiologist’s conclusion that Stockman

suffered from “a left calcaneus fracture, a fracture of the heel bone.” Dr. Barnett also diagnosed

Stockman “with a right knee abscess that was draining purulent material,” which had developed

from Stockman’s having to crawl on his knee to get around his home. Treatment of the abscess

delayed surgery on Stockman’s heel fracture, and Stockman developed infections of the bone




2
    “Stockman had a comminuted calcaneal fracture with soft tissue swelling.”


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


and surrounding soft tissue, as well as an inflammation of the tissue on the bottom of his foot,

after the surgery.3

         As a result of his injury, Stockman underwent seven surgeries to repair his foot beginning

November 12, 2009, and continuing through June 25, 2010.4 Stockman’s foot could not bear

weight during this time. On July 1, 2010, nine months after the injury, Dr. Barnett concluded

that Stockman’s foot was “completely non-weight bearing” and that he was unable to use the

foot. On July 20, 2010, Dr. Barnett referred Stockman to a plastic surgeon, having concluded

that his wound was not healing properly. On September 14, 2010, Stockman was “not putting

any weight” on his left foot, and Dr. Barnett gave him a handicap placard to help him perform

daily life activities. Stockman was still unable to put weight on his foot when Dr. Barnett next

saw him the following month.

         On November 9, 2010, Stockman had a follow-up appointment with Dr. Barnett, whose

notes from that visit state:

                  [Stockman] knows that he will never have a normal foot again and
                  may end up with chronic disability from this injury, but he is very
                  happy that he still has his foot and was thankful to me for saving it
                  for him.




3
 Throughout his treatment with Dr. Barnett, Stockman was diagnosed with calcaneal osteomyelitis (bone infection),
left plantar fasciitis (inflammation of the tissue at the bottom of the foot), traumatic arthropathy of the left subtalar
joint (arthritis in the joint between the calcaneus and talus), and cellulitis (soft tissue infection) of the left foot.
4
 Specifically, Stockman’s surgeries were: (1) a November 12, 2009, open reduction internal fixation of the
calcaneus fracture (placing the fractured fragments of the bone back in anatomic position and putting plates and
screws inside of the foot to try and hold the bone together until the bone is able to heal and bear weight); (2) a
January 19, 2010, irrigation and debridement to take way non-viable tissue due to infection; (3) a second irrigation
and debridement; (4) a third debridement performed on January 26, 2010—as a result of the third debridement,
Doctor Barnett placed a cement spacer containing antibiotics inside of Stockman’s foot “to try to elute antibiotics
over the course of the next eight weeks while [Stockman was] being treated by the infectious disease service with
the IV antibiotics”; (5) a June 25, 2010, repeat irrigation and debridement where Dr. Barnett removed the cement
spacer; (6) a repeat debridement and irrigation; and (7) a wound vacuum system procedure performed by plastic
surgeon, Dr. Michael Johnson.


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


Dr. Barnett also told Stockman to “get out as much as he can on his foot to try and get weight

back on [his foot]” and that if Stockman started to “put[] weight on [the foot] the bone should

start to feel better.” Dr. Barnett stated that he believed Stockman was “very scared to do so” and

referred him to a physical therapist who he believed could help Stockman. In a sworn statement,

Dr. Barnett asserted that he believed that the destruction of Stockman’s left heel bone was

“permanent.”

        The following year, Dr. Barnett noted that on May 23, 2011, Stockman walked into his

appointment, but that he “still had severe sharp pain in his heel” and “even had to put his foot up

on the table.” On August 30, 2011, the date of Stockman’s last visit, Dr. Barnett noted that

Stockman was able to limp into the office.5 At the time, Stockman did not have a cane; he was

provided one shortly thereafter, and Dr. Barnett expects that Stockman will have to use it for rest

of his life.

        Dr. Barnett concluded that Stockman’s injury resulted “in a loss of normal function”

because Stockman could not use his foot “for propulsion, for locomotion,” or “to get around.”

When questioned about Stockman’s injury and the Plan, Dr. Barnett asserted that Stockman’s

loss of normal function had been continuous for at least 12 consecutive months and that he

believed “Stockman would have met the definition that the MetLife policy lays out.” Though

Dr. Barnett stated that Stockman can “still use [his foot],” he clarified that Stockman will likely

require “an assistive device of some kind such as a cane and possibly even a scooter if a

traumatic arthritis worsens over time.”




5
 In a sworn statement, Dr. Barnett observed that Stockman “had gained some mild use of his foot to the point where
he was able to walk with an antalgic gait into [Dr. Barnett’s] office without any assistive devices.”


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                     B.

                                                      1.

        At the time of Stockman’s injury, his wife, was a GE employee covered by the

company’s dependent accidental death or dismemberment benefit plan. On November 9, 2010, a

little over a year after the accident, she submitted a claim for benefits on Stockman’s behalf.

The claim included a statement from Stockman that he had had “no use of his left foot” since the

accident. It also included Dr. Barnett’s statement as Stockman’s attending physician explaining

that Stockman had suffered “several set backs [sic] and complications . . . including multiple

infections” following the injury. Dr. Barnett’s statement also indicated that Stockman had not

been able to bear weight on his left foot since November 3, 2009.

        On May 31, 2011, MetLife sent a letter advising Leonard and Stockman that it had

received the claim.      The letter went on to explain that MetLife needed more information

“regarding the extent of [Stockman]’s injury(ies).” Under the policy,6 a “[l]oss of hand or foot

means the hand or foot is severed at or above the wrist or ankle joint, or means the permanent

and total loss of function of the hand or foot as a result of an accident after the loss has continued

for at least 12 consecutive months.” MetLife claimed that the documentation that had been

provided was not conclusive regarding a “permanent and total loss of function” that had

“continued for at least 12 consecutive months.” MetLife requested additional documentation to

meet the requirements. MetLife claims that it received no additional documentation following its

request.   Stockman claims that he provided the emergency room visit notes, surgery and




6
 MetLife’s letter quotes Section 1.3.1 of the GE Benefits Handbook for Exempt and Nonexempt Employees Eligible
to Participate in GE Life Insurance and Disability Benefits.


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


procedure reports, and other documentation following MetLife’s request for additional

documentation.7

        In a letter dated August 9, 2011, MetLife denied Stockman’s claim for benefits. MetLife

stated that the claim “must be denied” because they had “not been provided evidence that the

‘loss continued for at least 12 consecutive months’ as is required under the Plan.” MetLife

reiterated that a covered “loss” entails “the permanent and total loss of function of the . . . foot as

a result of an accident after the loss has continued for at least 12 consecutive months.” The letter

also explained Stockman had the right to appeal the decision within 60 days by submitting a

written request for appeal to MetLife. In the event that the appeal was denied in whole or in part,

Stockman was informed that he had the right to bring a civil action pursuant to Section 502(a) of

ERISA.

                                                      2.

        On October 13, 2011, MetLife received Mr. Stockman’s appeal. The eleven-page appeal

included “about 1000 pages of additional medical records” and a sworn statement from Dr.

Barnett detailing Stockman’s diagnoses and treatments. Stockman also submitted notes from his

in-home nursing care provider documenting that he received continuous in-home health care and

treatment from June 30, 2010, through November 16, 2010. Also submitted were photographs of

Stockman’s injured foot taken between September 2011 and October 2011, and CT images

injury taken in 2011.

        In addition to these documents, Stockman included a personal statement in which he

described how the injury affects his daily life. Stockman stated that the “quality of life as [he]

knew it was gone,” that he “spent every minute of every day in constant pain,” and was unable to

7
  At some point following the filing of Stockman’s claim, MetLife received the treatment notes from Stockman’s
emergency room visit, reports for surgeries and procedures that were performed following his fracture and
subsequent infection, and a physical therapy evaluation.


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


do “simple things” in life. Specifically, Stockman noted that he will never run, jump, ride bikes,

walk, or go bowling with his children and wife again. Stockman explained that he takes eight

Vicodin pills each day for “minimal” pain relief, medicine that he must take two-to-three hours

ahead of time if he needs to venture out of his home. Stockman also reiterated that, during the

period between the accident on October 20, 2009, and October 20, 2010, he had continuous

surgeries, had no use of his left foot, and used a small four-wheel push scooter to get around to

prevent his foot from touching the ground or bearing weight on his left foot.

       Upon receipt of the additional documentation, MetLife directed Dr. Elyssa Del Valle

(“Dr. Del Valle”) to complete a medical referral review on Stockman’s claim. In her subsequent

report, Dr. Del Valle stated that, “[w]ithin a reasonable degree of medical certainty, it can be

determined that the injury sustained on 10/20/09 . . . resulted in a permanent loss of normal

function of [Stockman’s] foot.”      She also noted, however, that Stockman retained “some

functionality of the left foot” and that he could “weight bear with limitations and [could] walk

with a cane.” Dr. Del Valle concluded that “if total loss of function means total inability to

perform activities attributed to feet such as stand, walk and for locomotion, then [Stockman did]

not have total loss of function as he [was] capable of walking and standing.” She further

concluded that, “within a reasonable degree of certainty,” Stockman “did have total loss of

function of the left foot for a period of more than 12 months.”

       Following the report from Dr. Del Valle, MetLife sent Stockman a letter dated November

22, 2011, upholding the denial of his claim. The letter cited Stockman’s ability to walk into his

appointments with Dr. Barnett on May 23, 2011, and August 30, 2011, as proof that Stockman

“has use and function of his left foot.” Unlike its first denial, MetLife’s second denial seemed to

concede that Stockman lost use and function of his left foot for twelve consecutive months, but




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


alternately concluded that because he was able to walk without an assistive device at some point

following those initial twelve months, the loss was not “permanent and total” as required by the

Plan. Because this reason for denial differed from the reason in MetLife’s first denial of

benefits, MetLife allowed Mr. Stockman a second opportunity to appeal. As with the first

appeal, Stockman would have to provide additional documentation within 60 days of receipt of

the letter, and if the appeal was denied in whole or in part, he would have the right to file a civil

action pursuant to Section 502(a) of ERISA.

                                                             3.

            In a letter dated December 19, 2011,8 Stockman’s attorney notified MetLife that it was

Stockman’s position that he had exhausted all of his administrative remedies.             Stockman

requested that MetLife treat the letter as his formal appeal and asked that MetLife take any steps

necessary to exhaust his administrative remedies. Stockman did not provide any additional

documentation with the December 19, 2011, letter as he did “not have any additional

documentation to submit.” The letter also stated that if MetLife’s position did not change,

Stockman would “promptly file suit directly after receiving that response.”

            In an appeal review form dated January 6, 2012, MetLife noted that it had re-examined

Stockman’s claim and stated that his most recent letter did not “provide any additional points of

appeal” or “include any additional documentation to support an appeal.”             Relying on the

information in the previously submitted appeal, MetLife concluded that “though [Stockman’s

injury] did continue for 12 consecutive months, [the injury] was neither permanent [n]or total,

which [was] required by the plan.” MetLife upheld its previous denial of claim benefits and

notified Stockman that he had the right to file a civil action.



8
    The record indicates that MetLife received the letter on January 3, 2012.


                                                           -8-
Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                  C.

       Stockman filed his complaint in federal district court on February 22, 2012. Both parties

moved for judgment on the administrative record on October 19, 2012. On November 30, 2012,

they both also filed responses to the motions. Stockman argued that MetLife’s decision to deny

his claim was flawed for two reasons: (1) MetLife failed to interpret the phrase “total loss of

function” in the “ordinary and popular sense” as required by law; and (2) MetLife failed to look

at the full administrative record, instead only taking into account “a few select statements of a

treating physician . . . and crafted a denial around them.”         Stockman insisted that the

administrative record before the district court—and before MetLife at the time of its denial—

“demonstrates that when the terms of the Plan are applied in their ‘plain and ordinary sense,’ the

injury to Mr. Stockman’s foot constitutes a ‘total loss of function’ and he is entitled to a

judgment on the record and an award of AD&D benefits in the amount of $125,000.00, plus

interest from the date of loss and costs of this action.”

       Conversely, MetLife argued that its denial of Stockman’s claim for dismemberment

benefits was proper. MetLife relied heavily on statements made by Dr. Barnett in which he

noted that “Plaintiff was able to walk on his foot and could even do so for lengthy periods.”

MetLife argued that because the Plan pays dismemberment benefits “only where a foot has been

severed at or above the ankle, or where there has been a ‘permanent and total loss of function’”

and because Stockman’s foot was not severed, the administrative record, including Dr. Barnett’s

statement, demonstrated that Stockman’s injury did not result in a “permanent and total loss of

use of his foot.”

       On September 27, 2013, the district court issued an opinion granting Stockman summary

judgment on the administrative record and overruling the defendants’ motion for the same. The




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


district court first noted that that it was undisputed that Stockman could only receive claim

benefits under the second clause of the Plan’s definition of “loss”—i.e., that it had been clear

from the outset that Stockman’s foot had not been “severed at or above the . . . ankle joint,” but

that the clause at issue was “the permanent and total loss of function of the hand or foot as a

result of an accident after the loss has continued for at least 12 consecutive months.” In

particular, the court noted that as of the date of Stockman’s initial claim under the policy, he

clearly fit within the Plan’s definition of “loss”:

                The court’s review of the administrative record shows that on
                November 9, 2010, over twelve consecutive months had passed,
                during which period of time Stockman could not place any weight
                on his foot without excruciating pain that required heavy doses of
                pain medication. That finding accords with the policy definition of
                a permanent and total loss of function of Stockman’s foot, after the
                loss had continued for at least 12 consecutive months.

        While the court acknowledged Dr. Barnett’s statements that Stockman had been able to

ambulate, it emphasized that Dr. Barnett’s statements needed to be taken in context, and that

MetLife’s reliance on “minimal improvements in weight bearing and ambulation that

[Stockman] was able to achieve 19 to 22 months after the accident” and the “mere fact that [Mr.]

Stockman’s foot was still attached to his body” were not sufficient to “demonstrate

functionality.” The district court also highlighted that MetLife’s own physician reviewer, Dr.

Del Valle, had concluded that Stockman’s “total loss of function following the accident was for

more than 12 consecutive months,” supporting an award of benefits under the definition in the

Plan.

        The district court was particularly concerned that MetLife changed its reason for denial

between Stockman’s initial claim and his appeal some months later. As discussed, on November

9, 2010, the date of Stockman’s application for benefits, over twelve consecutive months had




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


passed in which he could not bear weight on his foot. MetLife denied that claim on August 9,

2011, on the grounds that, “according to the information provided to MetLife, [it had] not been

provided with evidence that the ‘loss has continued for at least 12 consecutive months’ as is

required under the Plan.” Stockman appealed, and after MetLife’s own physician reviewer

concluded that he had indeed had a “total loss of function following the accident [] for more than

12 consecutive months,” MetLife denied his appeal on the grounds that “the loss is not

‘permanent and total,’ as is required by the term of the Plan[.]”

       The district court took issue with MetLife’s shifting grounds for denial, stating that

               Defendants cannot use the word “permanent” in the definition of
               loss to evade the definition’s criterion that, once the “permanent
               and total loss of function” has lasted for twelve consecutive
               months, the beneficiary is entitled to benefits. Such a reading
               would allow Defendants to point to any minimal improvement,
               after twelve consecutive months and eligibility has been
               established, as a basis for denying eligibility. Furthermore, to the
               extent that “permanent” and “continued for at least 12 consecutive
               months,” as conditions of loss, create an ambiguity, the Court must
               construe the language in Stockman’s favor.

Ultimately, the district court concluded that Stockman “suffered a ‘permanent and total loss of

function’ of his foot, and that the loss continued for at least twelve months after the date of his

injury.” Accordingly, the district court found for Stockman. MetLife timely appealed.

                                                 II.

                                                 A.

       The underlying purpose of ERISA is to protect “the interests of participants in employee

benefit plans and their beneficiaries.” 29 U.S.C. § 1001(b); see also Firestone Tire & Rubber

Co. v. Bruch, 489 U.S. 101, 113 (1989) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90

(1983)). Both the district court and this Court review de novo a plan administrator’s denial of

ERISA benefits, unless the benefit plan gives the plan administrator discretionary authority to


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


determine eligibility for benefits or to construe the terms of the plan. See Firestone, 489 U.S. at

115. This de novo standard of review applies to the plan administrator’s factual determinations

as well as his legal conclusions. See Rowan v. Unum Life Ins. Co., 119 F.3d 433, 435 (6th Cir.

1997).

         The language in an insurance policy “is to be given its ordinary meaning unless it is

apparent from a reading of the whole instrument that a different or special meaning was

intended.” Comerica Bank v. Lexington, Ins. Co., 3 F.3d 939, 942 (6th Cir. 1993). “[T]he terms

of an ERISA plan [are to] be interpreted in an ordinary and popular sense, and [] any ambiguities

in the language of the plan [are to] be construed strictly against the drafter of the plan.” Regents

of Univ. of Mich. v. Empls. of Agency Rent–a–Car Hosp., Ass’n., 122 F.3d 336, 339-40 (6th Cir.

1997). “A technical construction of a policy’s language which would defeat a reasonable

expectation of coverage is not favored . . . [and] an insurer has a duty to express clearly the

limitations in its policy.” Id. at 339.

         When interpreting ERISA plan provisions, courts have at times gone beyond the actual

language of the plan to ascertain the underlying intent.        See Citizens Ins. Co. of Am. v.

MidMichigan Health ConnectCare Network Plan, 449 F.3d 688, 692-93 (6th Cir. 2006).

However, we have the “paramount responsibility in construing plan language . . . to ascertain and

effectuate the underlying intent.” Id. (citations omitted). Therefore, we must first reference the

plan language itself, but may also consider reasonable inferences and presumptions under the

particular circumstances of the claim. The language of a plan is ambiguous only “if it is subject

to two reasonable interpretations.” Id. at 694; see also Schachner v. Blue Cross & Blue Shield of

Ohio, 77 F.3d 889, 893 (6th Cir. 1996). In other words, if Plan language, “however inartfully

worded or clumsily arranged, fairly admits of but one interpretation it may not be said to be




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


ambiguous or, indeed, fatally unclear.” Reardon v. Kelly Servs., Inc., 210 F. App’x 456, 459 (6th

Cir. 2006).

                                                 B.

       In the case at bar, the specific language of the Plan defines loss of a foot as a foot that has

been “severed at or above the . . . ankle joint, or means the permanent and total loss of function

of the . . . foot as a result of an accident after the loss has continued for at least 12 consecutive

months.”      At issue, essentially, is the following question:      Does a “total loss” become

“permanent” for purposes of triggering the Plan’s coverage upon lasting for twelve consecutive

months after an injury, or must an injury be both total and permanent to trigger coverage under

the Plan, for which a twelve-month waiting period is simply a condition of eligibility? MetLife

and the Plan say the answer is the latter; Stockman (and the district court), the former.

       It is undisputed that Stockman’s foot was not severed and that he seeks benefits pursuant

to the portion of the plan that allows for recovery based on the “permanent and total loss of

function . . . for at least 12 consecutive months.” Reviewing the language of the Plan and the

administrative record, we conclude that this relevant provision of the Plan is ambiguous or, in

other words, subject to two reasonable interpretations.

       Beginning with the second requirement, we find that Stockman did lose the use of his

foot for twelve consecutive months.        Following Stockman’s initial claim for benefits on

November 9, 2010, MetLife denied his claim because he had not submitted sufficient

documentation to determine that he had suffered a “‘loss [that had] continued for at least 12

consecutive months’ as is required under the Plan.” Assuming, without deciding, that this was in

fact the case at the time of Stockman’s initial application, we are satisfied that this was not the

case following the submission of considerable additional documentation to the administrative




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


record during Stockman’s first appeal (and MetLife’s second denial). A review of the complete

record reveals that between the date of the accident, October 20, 2009, and October 20, 2010,

Stockman underwent numerous surgeries and had no use of his left foot, suffered from “multiple

infections” following the injury, and received continuous in-home health care from June 30,

2010, through November 16, 2010. Both Stockman and Dr. Barnett stated that Stockman used a

push scooter to get around to prevent his left foot from touching the ground or bearing weight.

We find that, based on these facts, Stockman had a “total loss of function [of his left foot] . . . for

at least 12 consecutive months.” MetLife and the Plan do not dispute this interpretation on

appeal.

          The aspect of the Plan’s language we question, however, is the first requirement—i.e.,

that Stockman suffer a “permanent and total” loss of function to qualify for benefits.                           In

particular, “permanent” is the term that renders the Plan language unclear in light of the other

requirements of the provision.9 As discussed, the parties offer different interpretations of this

term in context. MetLife and the Plan concede that “Stockman submitted evidence that arguably

shows a total loss of function for twelve months.” They insist, however, that “none of the

medical evidence . . . supports a finding that any total loss of function is permanent,” and that

“[t]here is no ambiguity in the Plan[’s] equirements.]” Stockman counters that the district

court’s interpretation was correct: that the Plan language is susceptible to two reasonable

interpretations, and asserts that the resulting ambiguity must be construed against MetLife and

the Plan under the doctrine of contra proferentem. See Marquette Gen. Hosp. v. Goodman

Forest Indus., 315 F.3d 629, 632 & n.1 (6th Cir. 2003); Regents of Univ. of Mich., 122 F.3d at




9
 The Court need not address the definitions of “total,” “loss,” and “function” as MetLife has not denied Stockman’s
claim for failure to satisfy those requirements.


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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


339-40 (“[A]ny ambiguities in the language of the plan [are to] be construed strictly against the

drafter of the plan.”).

        We find that the meaning of the term “permanent” is ambiguous in light of the other

provisions of the policy. Simply put, a reading of the policy alone does not clarify which

interpretation of the term is correct, and either interpretation is feasible under its terms. Federal

law holds that we may use “traditional methods of contract interpretation to resolve th[at]

ambiguity, including drawing inferences and presumptions and introducing extrinsic evidence.”

Boyer v. Douglas Components Corp., 986 F.2d 999, 1005 (6th Cir. 1993). We therefore begin

with the “ordinary meaning” of the word “permanent.”             Comerica Bank, 3 F.3d at 942.

Stockman argues that the dictionary definition of the word should apply. We agree. Webster’s

Dictionary defines “permanent” as something that is “continuing or enduring without

fundamental     or   marked    change:   STABLE.”         Merriam-Webster       Online   Dictionary

(http://www.merriam-webster.com/dictionary/permanent, last visited May 21, 2015).

        MetLife counters that Stockman’s injury was not “permanent” because he was able to

walk without an assistive device at some point following the initial twelve-month period.

However, we are unpersuaded that this alone means that Stockman’s loss of use of his foot was

not “continuing or enduring without fundamental or marked change.” In his sworn statement,

Dr. Barnett highlighted that Stockman’s injury is not expected to improve:

                    At this point [Stockman] is reaching what we call maximum
                medical improvement. I don’t expect [Stockman]’s condition to
                get much better over the next few months or the next five years or
                even ten years. [Stockman] is far enough out from his surgeries
                that we can begin to predict what his level of functioning is going
                to be for the rest of his life. . . .
                    I do expect [Stockman] for the rest of his life will require, at
                times, the brief use of a cane for brief periods, maybe he will not
                use anything at all but I do not anticipate him doing this for long
                periods of time.”



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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.



Dr. Barnett also stated that “the destruction of [Stockman’s] calcaneus [heel] is permanent”

because, “from an orthopedic standpoint,” Stockman “has loss of the bony tissue which can

never recover or be rebuilt in any way.” Stockman’s condition is considered “chronic,” which

Dr. Barnett explained means “it is expected to be with the patient permanently.” Finally, Dr.

Barnett also acknowledged that the arthritis Stockman suffers as a result of the accident “may, in

fact, be progressive. . . . Arthritis will tend to get worse over time; therefore, I am expecting

[Stockman] to have future problems with the subtalar arthritis that he experienced after the

trauma. . . . He’ll likely need an assistive device . . . if traumatic arthritis worsens over time.” To

the extent Stockman’s condition is not “stable,” it will only get worse.

       Additionally, we note that there is no indication that using this definition causes the

reading of the whole instrument to have a different or special meaning than what was intended.

See Comerica, 3 F.3d at 942. There is in fact more than one plausible reading of the provision.

Addressing MetLife’s proffered example, where a Plan participant suffers a broken hand in

January 2012, the hand is still in a rigid cast and totally immobile in January 2013, the claimant

files for benefits on February 1, 2013, and the cast comes off and the claimant regains full use of

his hand by March 1, 2013, we find the instant case is distinguishable.              Unlike the Plan

participant in MetLife’s example, it is undisputed that Stockman has not regained full use of his

foot. Quite the opposite: both Dr. Barnett and Dr. Del Valle have, based on their extensive

medical knowledge, determined that Stockman will never regain normal use of his foot again. If

Stockman’s injury, which has resulted in the “permanent” loss of the use of his foot in the way

that a foot should be used does not qualify him to receive benefits, we are unsure of a situation,

absent actual severance, where a claimant would qualify.




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


         It is not our intention to convert the dismemberment Plan into a disability plan, to

fundamentally and improperly alter the Plan, or to read the term “permanent” in a way that

would render it superfluous. However, based on the facts in this particular case, we conclude

that the word “permanent,” if interpreted in the way urged by the Plan and MetLife, will create

an insurmountable requirement to claim benefits. As emphasized by the district court, to hold

otherwise “would allow Defendants to point to any minimal improvement, after twelve

consecutive months and eligibility has been established, as a basis for denying eligibility.”

Though we acknowledge MetLife’s argument that “dismemberment is permanent and total,” the

Plan explicitly allows for the recovery of benefits when a person has suffered an injury that, for

all intents and purposes, has resulted in the loss of the use of the foot to the point where it no

longer serves the purpose it was intended to serve and will never be able to serve that purpose

again.

         It is undisputed that Stockman had a total loss of the function of his foot for at least

twelve months, consecutively. “[T]he terms of an ERISA plan [are to] be interpreted in an

ordinary and popular sense, and [] any ambiguities in the language of the plan [are to] be

construed strictly against the drafter of the plan.” Regents of Univ. of Mich., 122 F.3d at 340.

Construing the language of the dismemberment provision in MetLife’s plan according to the

ordinary sense of its language and resolving ambiguities against the drafter, we find it

inescapable that MetLife’s reading of the provision is incorrect in this case, and that Stockman is

qualified to receive benefits because he has suffered a “permanent and total loss of function of

[his] . . . foot as a result of an accident after the loss . . . continued for at least 12 consecutive

months.”




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                              III.

       Accordingly, we AFFIRM the judgment of the district court and REMAND the case for

a determination of attorney fees.




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


       BOGGS, Circuit Judge, dissenting.          The provision of the Accidental Death or

Dismemberment Insurance policy (the “Plan”) relevant here provides that benefits will be paid

for accidental “loss of foot,” which “means the permanent and total loss of function of the . . .

foot as a result of an accident after the loss has continued for at least 12 consecutive months.”

This provision requires three things: (1) a permanent loss of the function of the foot; (2) a loss

that is total; and (3) a loss that has continued for twelve months. By the plain language of the

policy, each requirement is independent.

       In the ordinary case, a severe injury can be seen to cause a total and permanent loss of

function, and payments will begin as soon as the twelve-month period expires. However, it is

quite plausible for a loss of function to be total for a while but then be subject to some

improvement, even if that improvement takes more than twelve months to manifest. That is

what happened here. Stockman’s foot was badly injured. He lost all function for a while but

was expected to improve. That improvement took more than twelve months but there is no

doubt that it occurred. Stockman can now use his foot to get around, ambulate with a cane or

with a limp at times, and bear some weight as his doctor expected. He does not have “normal”

function of his foot, and never will—but he is able to use his foot to a reasonable extent and thus

his permanent loss of function is far from total. He is therefore not entitled to dismemberment

benefits. If he wanted a disability policy, he could have bought one. He did not.

       The majority at some points reads the Plan as though it says “total loss of function for at

least twelve months,” even if not permanent. See Maj. Op. at 17. It doesn’t. At other points, the

majority reads the Plan as if it says “permanent loss of normal function.” See id. at 4, 16. It

doesn’t. I therefore respectfully dissent.




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                 I

       In order to establish the proper context, I offer a brief recitation of the factual background

of Stockman’s claim.

                                                 A

       On October 19, 2009, Stockman fell from a ladder while changing a light bulb and

shattered his left calcaneus, or heel bone. The office notes of Stockman’s surgeon, Dr. Barnett,

from less than a month after the accident explain that Stockman “has been nonweightbearing on

his left side, but has had a shooting pain all throughout his heel, especially with weightbearing.”

Records from January 7, 2010, state that, while Stockman had remained nonweightbearing to

that point, “[h]e will be allowed to begin weightbearing in one weeks [sic] time.” Dr. Barnett

also opined that Stockman’s “pain will go down once he bears more weight on his left side.”

However, due to a continuing infection in the wound and multiple irrigation and debridement

procedures, Stockman remained nonweightbearing for several months.

       In a follow-up visit on June 22, 2010, Dr. Barnett noted that Stockman’s wound was still

“nonhealing,” but had “dramatically improved.”            At this time, Stockman “had been

nonweightbearing using a wheeled knee walker,” and, though his pain was “well tolerated,” it

became “worse with attempts at weightbearing.” On October 12, 2010, nearly a year following

the accident, Stockman’s wound was “doing great,” but he was still not putting any weight on his

foot and was using a wheeled knee walker. Stockman’s “refus[al] to bear weight” at this point

made Dr. Barnett “concerned.”

       In November 2010, Stockman reported “a great deal of difficulty walking on his foot”

and pain that was “worse with weightbearing.” Dr. Barnett observed “no obvious significant

other issues besides swelling when [Stockman] has been ambulating for quite awhile [sic].”




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


During this visit, Stockman again “refuse[d] to bear weight” on his foot. Significantly, in his

report, Dr. Barnett stressed that:

       I believe [Stockman] needs to get out and do as much as he can on his foot to try
       and get weight back on there. I offered him physical therapy and he accepted. He
       will go . . . [to] physical therapy and have them work with him on getting his
       range of motion, strength and gait going again. I believe all of the time that he
       had off has really restricted him. I believe if he gets out and starts putting weight
       on this that the bone should start to feel better. I know he is very scared to do so
       and I believe the therapist will help him. . . . However, he knows that he will
       never have a normal foot again and may end up with chronic disability from this
       injury but he is very happy that he still has his foot and he was thankful to me for
       saving his [foot] for him.

(emphases added).

       Several months later in May 2011, Dr. Barnett noted that Stockman was “putting full

weight” on his foot and came into his office “walking today without any assistive devices,”

though with a “mild antalgic gait on his left side.” At this time, Stockman was not taking any

narcotic pain medications. Dr. Barnett’s final records from August 30, 2011, indicate that

Stockman complained of “constant pain that is unbearable,” and that Stockman’s condition was

aggravated by weightbearing and relieved by elevation. However, Dr. Barnett’s assessment

notes that Stockman’s weightbearing status was “full,” that Stockman was issued a cane to help

with walking, and that Dr. Barnett would “try [physical therapy] for now” as the recommended

treatment plan.

                                                B

       In a sworn statement given on September 27, 2011, Dr. Barnett noted that it was not

“typical” for patients suffering from a fractured calcaneus to be nonweightbearing for such a

long period.      According to Dr. Barnett, such patients typically “begin weight bearing

approximately eight to ten weeks after their [surgery]” and “ge[t] back to as normal function as

they can within a couple of months.” Stockman, however, did not heal in the typical timeframe



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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


and “was unable to get back to full weight bearing during” the first half of 2010 “due to the

infections and the multiple surgeries which he needed.”

         Dr. Barnett reiterated his “opinion that [Stockman] will never have a normal foot,”

explaining that Stockman “can expect to have some functional impairment as time goes on.”

(emphases added). Dr. Barnett agreed that Stockman has not made “a total recovery” and has

not “regained 50 percent of the capacity that he had” prior to the accident. Stockman was not

expected to improve much going forward; however, as of August 30, 2011, Stockman had

“gained some mild use of his foot to the point where he was able to walk with an antalgic gait

[that is, a limp] into [Dr. Barnett’s] office without any assistive devices.” Dr. Barnett expected

that Stockman “for the rest of his life will require, at times, the use of a cane for brief periods,

maybe he will not use anything at all but I do not anticipate him doing this for long periods of

time.”

         Regarding the relevant language of the Plan, Dr. Barnett agreed that the “destruction of

[Stockman’s] calcaneus” was “permanent” due to “loss of the bony tissue which can never

recover or be rebuilt.” Regarding functionality, Dr. Barnett defined “the function of a foot” as

being “mainly used for propulsion, for locomotion, . . . to get around.” When addressing the

Plan’s requirement of “a total loss of function,” Dr. Barnett stated that he would consider

Stockman’s condition to be “a loss of normal function.” (emphasis added). Dr. Barnett also

confirmed that Stockman was under care for his condition “for at least 12 consecutive months”

and identified Stockman’s condition as “chronic,” in that it “is expected to be with the patient

permanently.” Regarding Stockman’s future, Dr. Barnett opined that he “has a relatively poor

prognosis” and “will have difficulty walking [around] the mall and doing shopping” and will

“likely need an assistive device of some kind such as a cane.” When asked about Stockman’s




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


weightbearing and whether his foot is “useful or beneficial to him,” Dr. Barnett stated that

Stockman was not going to have the capabilities of “jumping, running, [or] normal locomotion

without a limp . . . going forward.” However, Dr. Barnett stressed that “it’s incredibly useful and

incredibly beneficial to still have your foot on your body,” and that Stockman “can still use [his

foot] to get around.” (emphasis added).

       MetLife’s expert, Dr. Del Valle, determined “[w]ithin a reasonable degree of medical

certainty” that Stockman’s injury “resulted in permanent loss of normal function of his foot. He

however has some functionality of the left foot in that he can weight bear [sic] with limitations

and can walk with [a] cane. He thus has some functionality of his left foot, and thus it is not [a]

total loss of function.” (emphasis added). Regarding Dr. Barnett’s conclusions, Dr. Del Valle

observed that “[l]oss of normal function as noted by Dr. Barnett is not equivalent to total loss of

function.” (emphasis added). The “[f]unctionality of [Stockman’s] left foot is significantly

limited,” but he does not suffer from a “total loss of function or [else] he would be unable to bear

weight and ambulate with or without assistive devices.”

       Dr. Del Valle did conclude that in the twelve-month period immediately following the

accident, Stockman had a “total loss of function of his left foot as he was instructed to be non

weight bearing [sic].” However, Stockman’s “functionality improved” following the surgical

procedures and healing “more than 12 months after the accident.” Because Stockman’s ability to

bear weight and ability for locomotion returned, “his [total] loss proved to not . . . be

permanent.”

                                                 II

       When interpreting the language of an ERISA plan, this court will apply the plain meaning

of the plan’s language to give effect to its unambiguous terms. Farhner v. United Transp. Union




                                               - 23 -
Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


Discipline Income Prot. Program, 645 F.3d 338, 343 (6th Cir. 2011). Plain meaning refers to the

language as it would be understood by an ordinary person. Kovach v. Zurich Am. Ins. Co.,

587 F.3d 323, 332 (6th Cir. 2009). While any ambiguities in the plan’s language should be

construed against the insurer, we must “not artificially create ambiguity where none exists. If a

reasonable interpretation favors the insurer and any other interpretation would be strained, no

compulsion exists to torture or twist the language of the policy.” Evans v. Safeco Life Ins. Co.,

916 F.2d 1437, 1441 (9th Cir. 1990).

                                                 III

        The Plan under which Stockman claimed benefits includes an Accidental Death or

Dismemberment Insurance policy, which, unsurprisingly, “pays benefits in case of an accidental

death or dismemberment.” The applicable policy is thus explicitly a dismemberment policy, and

not a disability plan. Included under the relevant provision for “dismemberment benefits” is

coverage for “loss of foot,” which “means the . . . foot is severed at or above the . . . ankle joint,

or means the permanent and total loss of function of the . . . foot as a result of an accident after

the loss has continued for at least 12 consecutive months.” There is no dispute that Stockman’s

foot was not severed; thus, he can only be eligible under the “loss of function” portion of the

Plan.

        According to MetLife, the plain language of this provision requires that Stockman’s loss

of function be i) permanent; and ii) total; and iii) one that has continued for at least twelve

consecutive months.     I agree. Thus, a beneficiary can suffer from a severe injury that is

nonetheless ineligible for dismemberment benefits because the resulting loss of function is total

but not permanently so; or is permanent but not total; or is both total and permanent but has not

yet been present for twelve consecutive months following the causal accident.




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                A

       The central point of contention regarding the proposed interpretations of the Plan offered

by Stockman, MetLife, and the majority opinion involves the interaction between the terms

“permanent” and “continued for at least 12 consecutive months.” The majority determines that

the word “permanent” renders the Plan ambiguous “in light of the other provisions of the

policy.” Maj. Op. at 15. Apparently, in the majority’s view, interpreting the world “permanent”

according to its plain meaning would conflict with the twelve-consecutive-months language and

“create an insurmountable requirement to claim benefits.” Id. at 17. This is not so. Under the

most plausible understanding of the Plan based on its plain terms, each of the Plan’s

requirements—i.e., that the loss of function be total, permanent, and one that has continued for at

least twelve consecutive months—operates quite comfortably alongside one another.1

       All parties seem to agree that function in this context refers to using a foot for

weightbearing and ambulation, or “to get around.” See id. at 4. Thus, a total loss of function

would be characterized by an “absolute” or “utter” loss of the ability to bear weight and get

around using the injured foot. Webster’s Third New International Dictionary 2414 (1986)

(defining “total” as “unqualified in extent or degree; absolute; utter”). And such a loss would be



1
  The majority asserts that the Plan is ambiguous because it “is susceptible to two reasonable
interpretations.” Maj. Op. at 14. Any interpretation of the Plan that reads out or significantly
undermines the Plan’s express requirement that the loss of function be permanent, however,
should not be considered reasonable so long as a sensible interpretation that gives meaning to
each of the Plan’s terms exists. See Adams v. Anheuser-Busch Cos., 758 F.3d 743, 748 (6th Cir.
2014) (“The mere fact that parties propose competing interpretations of language in a[n ERISA]
Plan ‘does not dictate a finding that the provision is ambiguous.’ Rather, ‘the alternative
interpretation . . . must be a plausible one.’” (omission in original) (quoting Shelby Cty. Health
Care Corp. v. Majestic Star Casino, LLC Grp. Health Benefit Plan, 581 F.3d 355, 370 (6th Cir.
2009))); Marquette Gen. Hosp. v. Goodman Forest Indus., 315 F.3d 629, 632 n.1 (6th Cir. 2003)
(“Disagreement between the parties as to an interpretation of the language does not create
ambiguity in the legal sense.”).



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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


permanent if it were “continuing or enduring . . . without fundamental or marked change” and

“not subject to fluctuation or alteration.” Id. at 1683 (defining “permanent”).2

       The twelve-month time frame serves as a waiting period during which a beneficiary

cannot receive benefits even if he alleges that he suffered a total and permanent loss. It reflects a

determination that any final assessment of the extent and nature of a loss of function not be made

for at least one year, providing confidence that the assessment is made to a reasonable degree of

medical certainty and is based on sufficient evidence. The Plan’s use of the phrasing “after the

loss has continued for at least 12 consecutive months” supports the understanding that the

twelve-month language describes a separate evidentiary requirement, rather than modifies the

definition of “loss” in the same way as do the terms “permanent” and “total.” In this way, the

twelve-month requirement does not undermine or cabin the Plan’s requirement that a covered

loss be “permanent,” but in fact operates comfortably alongside it. Adopting this interpretation

would therefore best fulfill our duty to “give effect to the unambiguous terms of an ERISA

plan.” Lake v. Metro. Life Ins. Co., 73 F.3d 1372, 1379 (6th Cir. 1996). In the majority’s

reading, by contrast, total loss for thirteen months would result in eligibility for benefits even if

all agreed that the injured foot would become wholly normal in the fourteenth month and it in

fact becomes so. That is not a plausible reading of the Plan.


2
  Stockman criticizes such an understanding of the term “permanent” as necessitating an
“essentially . . . unknowable” determination that a loss of function will “last indefinitely without
change.” Appellee Br. 38. It is of course true that a beneficiary cannot demonstrate to an
absolute degree of certainty that a loss of function—or anything else for that matter—will last
forever, but this is not what the Plan requires. Rather, as is necessary in determining whether a
loss is “total” or “has continued for at least 12 consecutive months,” the permanence inquiry
requires the exercise of reasoned judgment based on medical evidence. The use of such a
“medical or technical perspective,” id. at 36, does not undermine the plain meaning of the Plan’s
language, but rather simply reflects that medical evidence is important and indeed necessary in
determining whether a beneficiary qualifies for dismemberment benefits, as Stockman’s own
reliance on medical records and expert testimony demonstrates.



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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


       The majority disclaims any intent “to read the term ‘permanent’ in a way that would

render it superfluous.”   Maj. Op. at 17.      Yet, even in framing the question presented by

Stockman’s appeal, the majority asks: “Does a ‘total loss’ become ‘permanent’ for purposes of

triggering the Plan’s coverage upon lasting for twelve consecutive months after an injury, or

must an injury be both total and permanent to trigger coverage under the Plan . . . ?” Id. at 13.

Even though the Plan flatly requires a “permanent and total loss of function,” the majority

ultimately opts for the former interpretation over the latter. If defining the term “permanent” to

mean “lasting for twelve consecutive months” does not render that term superfluous, I am not

sure what would—the provision would read the same whether or not the word “permanent”

appeared.   Cf. id. at 15 (recognizing dictionary definition of permanent as “continuing or

enduring without fundamental or marked change”). Indeed, the majority goes on to hold that

Stockman is qualified to receive benefits because “[i]t is undisputed that Stockman had a total

loss of the function of his foot for at least twelve months, consecutively.” Id. at 17. By this

point, “permanent” has disappeared entirely from the majority’s analysis.

       The majority’s interpretation essentially converts the Plan’s definition of loss into “a total

loss of the function of [the] foot for at least twelve months,” ibid., whether or not the loss is

permanent—i.e., continuing or enduring without fundamental or marked change. This is not

what the Plan says, and this court should not alter the terms of an ERISA plan because of

supposed ambiguity when a perfectly sensible interpretation based on the plan’s plain language

exists. See Adams v. Anheuser-Busch Cos., 758 F.3d 743, 748–49 (6th Cir. 2014) (determining

that an ERISA plan had “only one plausible interpretation” when the relevant “provision is

understood according to its ordinary meaning, and no term is ignored” or “rendered

superfluous”).




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                  B

       Under the proper understanding of the Plan based on its plain terms, it is clear that

Stockman’s injury, which certainly did “continu[e] for at least 12 consecutive months” following

the accident, did not result in a permanent and total loss of function. The administrative record

demonstrates that Stockman suffered both a total loss of function that was temporary (and thus

not permanent), and thereafter a permanent loss of some function (and thus not total), but not a

total and permanent loss of function as the Plan requires.

       MetLife’s own expert agreed that for the twelve-month period following the accident,

Stockman had a “total loss of function of his left foot,” as he was instructed to remain completely

nonweightbearing because of significant pain exacerbated by attempts at ambulation. In the

district court and the majority’s view, this ended the matter: If MetLife were able to rely on

Stockman’s improved functionality “more than 12 months after the accident” to conclude that

Stockman’s “loss proved to not . . . be permanent,” MetLife could “point to any minimal

improvement, after twelve consecutive months and eligibility has been established, as a basis for

denying eligibility.” Maj. Op. at 11. Not so.

       It would be problematic for an insurer to deny benefits based on some mild improvement

that left little or no function in the foot, but that is not the situation here. The real issue is not

that there was some “minimal improvement” in Stockman’s condition, but rather that his

condition was expected to improve enough—as it ultimately did—that, based on reasoned

medical judgment, Stockman never suffered from a total loss of function that is permanent, given

that he can now use his foot to get around, ambulate with a cane, and bear some weight as his

doctor anticipated. Put differently, the record lacks any expressed expectation from the relevant

time period that Stockman’s total loss of function—demonstrated by the “absolute” or “utter”




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


inability to bear weight and ambulate—would continue “without fundamental or marked

change.”

       Dr. Barnett’s records from January 2010, less than three months after the accident,

indicate his expectation that Stockman would “be allowed to begin weightbearing in one weeks

[sic] time.” This corresponds with Dr. Barnett’s observation that individuals suffering from a

fractured calcaneus typically “begin weight bearing approximately eight to ten weeks after their

[surgery]” and “ge[t] back to as normal function as they can within a couple of months.”

Unquestionably, Stockman did not heal within the normal timeframe “due to the infections and

the multiple surgeries which he needed.” But there was no indication that these setbacks would

constitute more than a temporary delay, albeit a significant one, in Stockman’s ability to regain

some function, which would render any permanent loss of function less than total. Indeed, by

November 2010, Dr. Barnett recommended that Stockman “do as much as he can on his foot to

try and get weight back on there,” and believed that if Stockman “gets out and starts putting

weight on this [then] the bone should start to feel better.” It seems unlikely that a physician

would make such a recommendation to a patient permanently suffering from the inability to bear

weight and ambulate.

       Stockman argues that his loss is permanent by stressing that he has suffered a “loss of the

bony tissue” and “supporting structure” of his foot that “can never recover or be rebuilt in any

way.” Appellee Br. 31. The majority in effect adopts this argument, observing that “‘the

destruction of [Stockman’s] calcaneus [heel] is permanent’ because, ‘from an orthopedic

standpoint,’ Stockman ‘has loss of the bony tissue which can never recover or be rebuilt in any

way.’” Maj. Op. at 16. This demonstrates only that Stockman suffers from a physical injury that

is permanent. But, of course, that is not the relevant inquiry. We are concerned here with




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


whether the loss of function associated with that injury is permanent (and total). Compare id. at

2 (noting the Plan’s requirement of a “permanent and total loss of function of the . . . foot”), with

id. at 13 (framing the question as whether “an injury [must] be both total and permanent to

trigger coverage under the Plan”), and id. at 4 (“[T]he destruction of Stockman’s left heel bone

was ‘permanent.’”) (emphases added).          Indeed, at no point does the majority hold that

Stockman’s total loss of function is permanent as the Plan requires, nor could it. Cf. id. at 1

(Stockman “lost the use of his left foot for one year. A series of surgeries partially restored

Stockman’s use of the foot, but it remains permanently damaged.”); id. at 16 (“Stockman has not

regained full use of his foot.”) (emphases added).

       I do not foreclose the possibility that an individual could, under some circumstances,

suffer a permanent, total loss of function resulting from an injury that would typically be

expected to involve a recovery of function. However, that is not the case here.

                                                  C

       Dr. Barnett’s statements that Stockman will not have the “capabilities” of “jumping,

running, [or] normal locomotion without a limp . . . going forward,” “can expect to have some

functional impairment as time goes on,” “will have difficulty walking [around] the mall and

doing shopping,” and will “likely need an assistive device of some kind such as a cane” do not

undermine this analysis. Rather, they are consistent with Dr. Barnett’s conclusion, which is

supported by MetLife’s expert, that Stockman has suffered “a loss of normal function.” But that

is not sufficient to meet the Plan’s requirement of a total loss of function.

       The majority’s observation that “for all intents and purposes,” Stockman’s foot “no

longer serves the purpose it was intended to serve and will never be able to serve that purpose

again,” id. at 17, is contradicted by the administrative record and Dr. Barnett’s own statement




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Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


that Stockman “can still use [his foot] to get around.” See id. at 4 (noting Dr. Barnett’s opinion

that Stockman can “still use [his foot]”). As Dr. Barnett expected from the beginning, Stockman

retains some function in his injured foot. See id. at 1 (“A series of surgeries partially restored

Stockman’s use of the foot . . . .”).3 Stockman observes that his ability to stand and ambulate

using his injured foot is “permanently limited,” and that the functionality of his foot is

“significantly limited” as a result. Appellee Br. 19, 21. However, permanent and significant loss

of function is not permanent and total loss of function, which would be characterized by the

“absolute” or “utter” loss of the ability to bear weight and get around.

          The majority gets around this fact by once again accepting Stockman’s invitation to alter

the language of the Plan, converting the definition of loss into total and permanent4 loss of

normal function. See Maj. Op. at 16 (extending coverage where the claimant “will never regain

normal use of his foot again”); id. at 4 (“Dr. Barnett asserted that Stockman’s loss of normal

function had been continuous for at least 12 consecutive months . . . .”); Appellee Br. 35

(stressing Stockman’s “loss of normal function permanently”) (emphases added). That is not our

proper role.5



3
  Indeed, Stockman’s own narrative statement submitted to MetLife in October 2011 expressed
that he had “no use of [his] left foot” between “October 20, 2009 and October 20, 2010,” which
is the twelve-month period following the accident, but as of October 2011 “do[es] not have full
use of this foot.”
4
    See supra Part III.A.
5
  The majority expresses concern that a plain-language interpretation of the Plan would “create
an insurmountable requirement to claim benefits,” Maj. Op. at 17, and posits that it is “unsure of
a situation, absent actual severance, where a claimant would qualify” under MetLife’s reading.
Id. at 16. These concerns are overstated. Indeed, all parties, including MetLife’s own expert,
agree that Stockman himself suffered from a total loss of function for the twelve months
following the accident, without actual severance. All that is preventing Stockman from meeting
the Plan’s requirements for coverage is the lack of expressed medical judgment that such total
loss would continue “without fundamental or marked change” in the future. It is certainly


                                                - 31 -
Case No. 13-4450, Stockman v. GE Life, Disability and Medical Plan, et al.


                                                IV

       I do not doubt the significant pain and suffering that Stockman’s injury has caused and

continues to cause him, nor the drastic impact that the injury has had upon his life. Nevertheless,

the record establishes that, as his doctor expected, Stockman retains some ability to use his foot

to bear weight and “get around,” which is the ordinary understanding of the function of a foot.

Thus, for the purposes of dismemberment-insurance benefits under the Plan, Stockman has not

suffered a permanent and total loss of function. Stockman’s injury certainly constitutes a

significant disability, and some wording in a disability policy might support compensation.

However, the requirement in Stockman’s dismemberment policy that he suffer from a “loss of

foot” is not met. I respectfully dissent.




possible to envision circumstances where a beneficiary with a similar injury (and a slightly worse
prognosis) would be able to make this showing without suffering a severance.



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