                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         April 7, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GLENN MATTHEWS,

             Plaintiff - Appellant,

v.                                                         No. 14-4100
                                                   (D.C. No. 2:12-CV-00896-TC)
PENNSYLVANIA LIFE INSURANCE,                                 (D. Utah)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


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


      Glenn Matthews appeals from a summary judgment entered in favor of

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

Benefit Policy (the policy).1 Because there is no genuine dispute as to any material

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




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      Our jurisdiction derives from 28 U.S.C. § 1291.
                                  BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

injury.” Id.

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

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




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

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

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

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

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

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

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

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

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

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

resigned myself to retire. Id.

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

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

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

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

gathered Matthews’s medical records and scheduled a functional capacity

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


                                          -4-
accident] is the most predominating condition that affects [his] total disability and

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

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

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

      When asked during discovery to describe the medical symptoms preventing

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

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

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

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

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

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

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

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

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

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

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

App. at 28.

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

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

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

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


                                          -5-
      At the conclusion of discovery the insurer moved for summary judgment

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

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

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

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

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

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

                                      ANALYSIS

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

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

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

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

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

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

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

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

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

2
       Alternatively, the insurer moved for summary judgment claiming Matthews
failed to prove he was receiving the regular and personal care of a physician for his
disability as required by the policy. The district judge did not address this issue. See
Aplt. App. Vol. 2 at 705 n.4.
3
       Judgment was also entered in favor of the insurer on Matthews’s claim for bad
faith breach of contract. Matthews does not appeal from that decision.


                                          -6-
and designate specific facts so as to make a showing sufficient to establish the

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

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

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

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

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

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

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

occurred independently of any other cause, including a preexisting bodily

infirmity.”).

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

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

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

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

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

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

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

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

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

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

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


                                          -7-
             All of the physicians who either treated Matthews or reviewed his
      medical records could not determine a precise cause of his back pain
      and indicated that his preexisting back condition may have been
      exacerbated by his riding accident. Not one physician concluded that
      the riding accident was the sole and independent cause of Matthews’
      back pain.

            Because the undisputed evidence shows that the horse riding
      accident, at most, exacerbated or contributed to Matthews’ low back
      pain and degenerative disc disease, the court concludes that the accident
      was not the sole and direct cause of his disabling condition.

Aplt. App. Vol. 2 at 705.

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

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

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

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

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

offered his own contrary medical opinion:

             The pelvis, pubis, lower spine, L4-S5, SI joints and hips are all
      generally in the same body quadrant and same plane. Pain originating
      in any of these areas could be described as lower back pain. . . . When
      speaking of low back pain, Matthews attests that he at all times has
      described all the pain in this area from his SI joints and pelvic diastasis
      as low back pain. In fact, on January 3, 2014, he purchased diagnostic
      injections into the nerves associated with his pelvic diastasis and SI
      Joint disruption. This temporarily relieved most of his pain. Because of
      this he can attest his pain is caused by his diastasis symphysis pubis and
      SI Joint disruption.

Aplt. Supp. App. at 716.

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

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

                                          -8-
which Dall “opined that because [Matthews] experienced good results from the

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

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

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

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

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

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

medical opinion as his own.

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

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

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

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

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

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

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

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

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

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

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




                                          -9-
admissible in evidence, and show that the affiant or declarant is competent to testify

on the matters stated.”).

      AFFIRMED.

                                                  Entered for the Court


                                                  Terrence L. O’Brien
                                                  Circuit Judge




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