In Bustetter v. Standard Insurance Company, No. 21-5441, 2021 WL 5873159 (6th Cir. Dec. 13, 2021), Plaintiff-Appellant Lewis Bustetter appealed from the district court’s grant of judgment to Defendant-Appellee Standard Insurance Company on his claim that Standard wrongfully terminated his long-term disability benefits under the disability plan’s “all occupation” standard of disability. The Sixth Circuit affirmed the district court’s judgment. In doing so, it declined to decide whether it should review the district court’s factual findings de novo or for clear error because it makes no difference to the court’s decision. It found that Bustetter did not prove by a preponderance of the evidence that he was disabled from “all occupations” because of his myelitis. Bustetter relied on a Functional Capacity Evaluation performed by his physical therapist, but the therapist did not find that he was unable to perform the duties of any occupation in the national economy. The therapist also did not consider whether he could work with accommodations or if his limitations were caused by myelitis versus some other condition not covered under the disability plan. Bustetter did have a Social Security Disability Insurance award, but the court distinguished that claim from the disability plan’s “all occupation” standard.
Lastly, the court considered Bustetter’s request to remand the case so he could move for attorneys’ fees based on his success at the district court in securing a remand to Standard for a full and fair review of his claim. Standard denied his claim on remand and then the district court entered judgment in favor of Standard. The court found that Bustetter forfeited his claim for fees by not seeking fees at the conclusion of the litigation as directed by the district court. Because Bustetter is seeking fees on appeal, the request is untimely and forfeited.
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