                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0168n.06
                            Filed: March 26, 2008

                                           No. 07-1371

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CHARLES THIEL,                                   )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
LIFE INSURANCE COMPANY OF NORTH                  )   EASTERN DISTRICT OF MICHIGAN
AMERICA, et al.,                                 )
                                                 )
       Defendants-Appellees.                     )




       Before: DAUGHTREY and SUTTON, Circuit Judges; and POLSTER, District Judge.*


       PER CURIAM. In this ERISA action, Charles Thiel seeks benefits under an accident-only

disability policy. Because Thiel did not become disabled “as a direct result” of the accident “and

from no other cause,” as the terms of the policy require, the district court correctly upheld the

insurer’s denial of benefits. We therefore affirm.


                                                I.




       *
         The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 07-1371
Thiel v. Life Ins. Co. of N. Am.

       In 1967, Charles Thiel began working for a company now known as Avaya, Inc. Thiel

participated in the Avaya Inc. Business Travel Accident Benefit Plan (“the Plan”), an accident-only

policy insured by the Life Insurance Company of North America (“the insurer”).


       On August 6, 2002, while Thiel was in Chicago on a business trip, a hit-and-run driver struck

him from behind as he attempted to cross the street. He filed a claim for accident-only disability

benefits with Avaya, claiming he was “totally disabled” under the policy. The insurer denied

benefits because Thiel’s disability was “primarily the result of his pre-existing degenerative [lumbar]

disc disease.”


       Thiel filed this ERISA action against Avaya, the Plan and the insurer. The parties filed cross-

motions for judgment on the administrative record. After dismissing Avaya and the Plan from the

case, the district court entered judgment in favor of the insurer.


                                                  II.


                                                  A.


       We need not enter the thicket created by the parties’ debate over whether de novo review or

arbitrary-and-capricious review governs this claim. See Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 115 (1989). Thiel’s claim fails under either standard.


       The policy provides benefits if a claimant is injured by a qualifying accident and “becomes

totally disabled as a direct result, and from no other cause, within 365 days after the accident.”

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Thiel v. Life Ins. Co. of N. Am.

(emphasis added). According to the insurer, this language means that, whenever a pre-existing

condition played any role, no matter how small, in causing the disability, no coverage exists. See

Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010–11 (10th Cir. 2000) (enforcing policy

language requiring that the “loss must result directly and independently of all other causes from

accidental bodily injury” and denying benefits where the insured’s death “did not occur independent

of all other causes”) (emphasis omitted). According to Thiel, this language means that a claimant

with a pre-existing condition may recover benefits unless the pre-existing condition “substantially

contributed to” the disability. Tolley v. Commercial Life Ins. Co., No. 92-6490, 1993 WL 524284,

at *3 (6th Cir. Dec. 17, 1993) (per curiam) (internal quotation marks omitted); see also Medford v.

Ins. Co. of N. Am., No. 95-35163, 1996 WL 405055, at *3 (9th Cir. July 18, 2006); Dixon v. Life Ins.

Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir. 2004); Adkins v. Reliance Standard Life Ins. Co., 917

F.2d 794, 797 (4th Cir. 1990).


       We need not take sides on this debate either. Even under the more lenient construction of

this language, the one favoring Thiel, he cannot shake free from the record-compelled conclusion

that his pre-accident back problems “substantially contributed to” his disability. The undisputed

medical evidence, to begin with, confirms that Thiel had serious back problems before the accident.

Doctors performed two lumbar laminectomies on Thiel at the L4-L5 level—one in 1986 and one in

1995. By 2002, the year of the accident and sixteen years after his first surgery, Thiel’s back pain

remained a serious problem. Just four months before the accident, an MRI showed “severe

degeneration of the L4-5 disc space,” as well as “[c]omponents of lumbar stenosis” at L3-L4 and L5-


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Thiel v. Life Ins. Co. of N. Am.

S1. Three months before the accident, Dr. Sidhu noted “back pain in the lower back [and] radiation

to the right buttock, thigh and leg” that had been ongoing “for the past 1-1/2 years,” as well as “loss

of disk height at L4-5” at a “level [that was] almost bone on bone.” Sidhu recommended physical

therapy and a series of epidural injections, and he prescribed pain medications. A little over two

months before the accident, Dr. Macon diagnosed Thiel with “lumbar radiculopathy” and noted that

he had “[s]ensory decreased sensation [in the] right lower extremity [at] the L4-L5 distribution.”


       While the accident may have affected the degree of Thiel’s physical ailments, it did not affect

their kind. An EMG from August 28, 2002, three weeks after the accident, “demonstrat[ed] some

chronic features of low grade S1 radiculopathy and more subacute, but still low grade [r]ight sided

L4-L5 radiculopathic features.” In describing the condition as “chronic,” Dr. Giancarlo conveyed

that it was an ongoing, not an accident-induced, problem, see Stedman’s Medical Dictionary 79120

(27th ed. 2000), and indeed the record shows that Thiel had suffered from lumbar radiculopathy

since at least May 2002. In September, an MRI showed “evidence of degenerative disc disease with

mild bulging disc” at L4-L5 and “minimal bulging discs at L5-S1 and L3-L4 disc space levels” but

no “evidence of recurrent or residual herniated disc.” Before his accident, Thiel likewise had

experienced disc degeneration at L4-L5 and likewise showed no signs of a herniated disc. In

January 2003, a radiology examination revealed “evidence suggestive of a small central disk

herniation at L5-S1” and “postoperative changes related to laminectomy surgery at the L4-L5 level,”

including “extensive hypertrophic spurring of the facet joints bilaterally at L4-L5.”             The




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No. 07-1371
Thiel v. Life Ins. Co. of N. Am.

January 2003 examination thus connects his disability in part to spurring “related to” his prior

laminectomy.


       The physicians’ post-accident opinions either show that Thiel’s pre-existing back problem

substantially contributed to his disability or are consistent with that conclusion. No physician took

a contrary view, and one physician concluded that factors unrelated to the accident contributed at

least 60 percent to the disability. In December 2002, Sidhu said that he “d[id] not believe [Thiel

was] able to work at all” “[b]ecause of [his current] symptomatology and his history of previous

surgery.” In April 2003, Thiel’s chiropractor concluded that his “maximum capacity” to perform

basic functions was “hampered by his spinal injuries” without specifying the cause of those injuries.

And in May 2004, after reviewing Thiel’s file at the request of the insurer, Dr. Nakkache, a

neurosurgeon, opined that “at the very most [Thiel] suffered an aggravation of a pre-existing

condition and as such, no more than 40% disability can be afforded as a result of the injury on

August 6, 2002.” No other physician gave an opinion on the degree to which the accident

contributed to Thiel’s disability, and no physician’s findings contradict Nakkache’s estimate.


       Thiel maintains that his disability “direct[ly] result[ed]” from the accident, “and from no

other cause,” because his medical records show herniation and bulging only after the accident. That

just shows, however, that Thiel’s back problems may have worsened after the accident; it does not

contradict the evidence that his serious pre-existing conditions “substantially contributed to” his

disabling back problems. It also remains unclear whether the disc herniation stemmed from the



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No. 07-1371
Thiel v. Life Ins. Co. of N. Am.

accident or represented a gradual progression of Thiel’s pre-existing back problems, given that

medical records before the accident (in May 2002) and shortly after the accident (in September 2002)

showed no signs of herniation and that the first sign of herniation did not occur until four months

after the accident.


        Thiel adds that the insurer should have sought an independent medical examination and that

we should discount Nakkache’s opinion because he never examined Thiel. “[F]ailure to conduct a

physical examination . . . may, in some cases, raise questions about the thoroughness and accuracy

of the benefits determination.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). But

that is not true here. Nakkache reviewed the relevant materials and relied on clinical tests and on

physician opinions. Cf. Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 510

(6th Cir. 2005). Objective medical evidence supports his conclusion. Cf. Calvert, 409 F.3d at 297.

And his opinion did not contradict the opinion of Sidhu or of any other treating physician. Cf. id.




        Nor does the policy’s definition of “disability” or the fact that Thiel has qualified for

disability benefits with the Social Security Administration change matters. The insurer does not

dispute that Thiel was disabled, and it does not dispute that the policy provides a functional

definition of disability. The question is what caused Thiel’s current disability and to what degree.

And the problem for Thiel is that none of these definitions of disability (and for that matter none of




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No. 07-1371
Thiel v. Life Ins. Co. of N. Am.

the opinions of Thiel’s treating physicians) shows that his pre-existing back problems did not

substantially contribute to his disability.


         Invoking our decision in Tolley, Thiel argues that, because he could work before the accident,

but not after it, the accident must have caused his current disability. 1993 WL 524284, at *4. But

in Tolley, there was no indication that the plaintiff suffered from any symptoms in the year and a half

leading up to his disabling injury or that his condition “materially impaired [his] health.” Id. Here,

by contrast, there is abundant evidence that Thiel received ongoing treatment for serious back

problems in the months leading up to the accident—problems that were similar in kind to his post-

accident conditions. Thiel’s pre-accident conditions, in short, substantially contributed to his current

disability.


                                                  B.


         The parties also debate our authority to resolve Thiel’s appeal with respect to the Plan.

Because counsel for Thiel sensibly acknowledged at oral argument that he did not wish to press this

issue in the event we affirmed the district court’s ruling as to the insurer, we need not reach this

issue.


                                                  III.


         For these reasons, we affirm.




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Thiel v. Life Ins. Co. of N. Am.




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