BAIR v. MARS, INC. LONG-TERM DISABILITY BENFITS PLAN
Filing
96
MEMORANDUM/OPINION THAT I OVERRULE DEFENDANT'S STATEMENT OF OBJECTION TO THE ADMISSIBILITY OF ANY EVIDENCE BEYOND THE ADMINISTRATIVE RECORD OF DEFENDANT LIFE INSURANCE COMPANY OF NORTH AMERICA. I GRANT DEFENDANT'S MOTION FOR JUDGMENT ON PARTIAL FINDINGS, AND I ENTER JUDGMENT IN FAVOR OF DEFENDANT LIFE INSURANCE COMPANY OF NORTH AMERICA AND AGAINST PLAINTIFF MELINDA BAIR. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 10/12/11. 10/13/11 ENTERED AND COPIES E-MAILED.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MELINDA BAIR,
)
)
)
)
)
)
)
)
)
)
Plaintiff
vs.
LIFE INSURANCE COMPANY OF
NORTH AMERICA,
Defendant
*
*
Civil Action
No. 09-cv-00549
*
APPEARANCES:
KIRK L. WOLGEMUTH, ESQUIRE
On behalf of Plaintiff
BRADEN BORGER, ESQUIRE
JAMES A. KELLER, ESQUIRE
On behalf of Defendant
*
*
*
O P I N I O N
JAMES KNOLL GARDNER,
United States District Judge
This matter is before the court on defendant’s oral
motion for judgment on partial findings made on the record on
July 7, 2011, the first day of the non-jury trial of this matter.
Also before the court is defendant’s Statement of Objection to
the Admissibility of Any Evidence Beyond the Administrative
Record of Defendant Life Insurance Company of North America
(Document 82), which argues that no evidence should be admitted
at trial other than the jointly filed Administrative Record.
For the following reasons, I overrule defendant’s
objection to admissibility of evidence beyond the Administrative
Record of this matter.
I grant defendant’s motion for judgment
on partial findings, and I enter judgment in favor of defendant
Life Insurance Company of North America (“LINA”) and against
plaintiff Melinda Bair.
JURISDICTION
Jurisdiction in this case is based on federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
VENUE
Venue is proper pursuant to 28 U.S.C. § 1391(a)(2)
because the events giving rise to plaintiffs’ claims allegedly
occurred in Elizabethtown, Lancaster County, Pennsylvania, which
is within this judicial district.
PROCEDURAL HISTORY
Plaintiff initiated this action on February 9, 2009 by
filing a one-count civil Complaint against the Mars, Inc. LongTerm Disability Benefits Plan.
The Complaint alleges that
plaintiff was previously employed by Mars, Inc. but that, because
she suffers from bi-polar disorder, major depressive disorder,
paranoid delusions and suicidal ideations, she was unable to
work.
The gravamen of plaintiff’s Claim for Disability
Benefits Under 29 U.S.C. § 1132(a)(1)(B) is that the
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administrator of her former employer’s long-term disability plan
denied plaintiff long-term disability benefits to which she was
entitled, in violation of the Employee Retirement Income Security
Act of 1974, 29 U.S.C. §§ 1001-1461 (“ERISA”).
By Stipulation and my Order dated June 2, 2009, LINA
was substituted as the defendant in this action, in place of
defendant Mars, Inc. Long-Term Disability Benefits Plan (the
“Plan”), and the Plan was dismissed as a party to this action.
Previously, on April 9, 2009, LINA had filed its Answer and
Affirmative Defenses of Defendant Life Insurance Company of North
America in response to the Complaint.
As discussed more fully below, on July 29, 2009 United
States Magistrate Judge Henry S. Perkin issued an order on
defendant’s motion for clarification of Magistrate Judge Perkin’s
prior June 25, 2009 Order granting plaintiff’s motion to compel
the deposition of defendant’s Appeal Claim Manager, Patty
Ursiny.1
Specifically, by his July 29, 2009 Order, Magistrate
Judge Perkin limited the deposition of Ms. Ursiny to four
specific alleged procedural irregularities.2
1
By my Standing Order dated March 19, 2007, all discovery disputes
which cannot be amicably resolved are referred to Magistrate Judge Perkin for
disposition.
2
The four specific alleged irregularities articulated in Magistrate
Judge Perkin’s July 29, 2009 Order are (1) defendant’s reliance on the medical
evidence; (2) defendant’s alleged failure to explain the rejection of
plaintiff’s medical evidence; (3) defendant’s alleged failure to review
plaintiff’s job duties and whether she could perform the job with her
restrictions; and (4) defendant’s alleged failure to acknowledge that
plaintiff’s employer would not accommodate her restrictions.
-3-
Defendant filed a motion for reconsideration of
Magistrate Judge Perkin’s July 29, 2009 Order.
After oral
argument, and by Order dated September 20, 2009, I granted the
motion in part, and remanded the issue to Magistrate Judge Perkin
for a determination of the applicable scope of review in this
ERISA matter, and the impact of that scope of review on the
discovery dispute at issue.
On November 20, 2009, Magistrate Judge Perkin issued an
Order and Memorandum which concluded that this court should
consider the matter under a de novo standard of review.
party objected to this conclusion.
Neither
Accordingly, as discussed
below, my review of this case is de novo.
The parties filed cross-motions for summary judgment.
On May 28, 2010, the parties filed a joint administrative record
in this matter which, pursuant to Order of Magistrate Judge
Perkin dated May 20, 2010, is filed under seal.3 On August 23,
2010, I conducted oral argument on the parties’ cross-motions for
summary judgment, and took the matter under advisement.
By Order dated March 18, 2011, I denied both motions
for summary judgment.
Specifically, I concluded that there were
genuine issues of material fact which precluded entry of summary
judgment in favor of either party, including but not limited to
3
The parties’ motions, briefs, and statements of undisputed facts
and responses thereto contain citations to this joint administrative record.
The pages contain Bates numbers labeled “LINABAIR
”, which is how
references to the administrative record appear in this Opinion.
-4-
why plaintiff did not return to work in August or September 2008
and whether plaintiff’s inability to work with her manager and
coworkers was caused by her disability.
The parties appeared before me on July 7, 2011 and
July 19, 2011 for a two-day non-jury trial.
Prior to trial, on
June 14, 2011, defendant filed a Statement of Objection to the
Admissibility of Any Evidence Beyond the Administrative Record of
Defendant Life Insurance Company of North America (Document 82),
arguing that no evidence should be admitted at trial other than
the jointly filed Administrative Record.
On the first day of trial, I heard oral argument on the
objection and took the issue under advisement, and permitted the
parties to present evidence beyond the Administrative Record
subject to my later ruling, in this Opinion, on the objection.
In her case-in-chief, plaintiff Melinda Bair testified, and one
document was offered into evidence in addition to excerpted
deposition testimony of Ms. Ursiny.
At the close of plaintiff’s case-in-chief on the first
day of trial, defendant made a motion for judgment on partial
findings pursuant to Rule 52(c) of the Federal Rules of Civil
Procedure.
On the second day of trial, I heard oral argument on
defendant’s motion and deferred my ruling on it until after the
close of evidence, as permitted by Rule 52(c).
Defendant’s case-
in-chief consisted solely of additional excerpts from Ms.
-5-
Ursiny’s deposition which had been counter-designated by
defendant.
Accordingly, the issues before the court for purposes
of this Opinion are defendant’s objection to admission of
evidence beyond the Administrative Record, defendant’s motion for
judgment on partial findings, and adjudication of the non-jury
trial.
Hence this Adjudication.
STANDARD OF REVIEW
ERISA provides that a plan participant may bring a
civil action “to recover benefits due to him under the terms of
the plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of the
plan....”
29 U.S.C. § 1132(a)(1)(B).
Ordinarily, courts conduct
a de novo review of a company’s denial of benefits under ERISA
unless the benefit plan grants the plan administrator
discretionary authority to construe terms of the plan, in which
case courts review the denial of benefits under an arbitrary and
capricious standard.
Bill Gray Enterprises, Inc. Employee Health
and Welfare Plan v. Gourley, 248 F.3d 206, 216 (3d Cir. 2001).
Where, as here, the policy at issue requires plaintiff
to provide “satisfactory proof” of disability before benefits
will be paid and “continued proof” of disability for benefits to
continue, the policy administrator (here, LINA) does not have
discretionary authority to determine eligibility for benefits.
-6-
See Adams v. Life Insurance Company of North America, 2009 WL
2394150, at *6 (E.D.Pa. Aug. 3, 2009)(Padova, S.J.); Farina v.
Temple University Health System Long Term Disability Plan, 2009
WL 1172705, at *11-13 (E.D.Pa. Apr. 28, 2009)(Schiller, J.).4
In such cases, as here, the standard of review is de novo.5
De novo review means that this court’s inquiry is not
limited to, or constricted by, the administrative record, nor is
the plan administrator’s decision due any deference.
Luby v.
Teamsters Health, Welfare and Pension Trust Funds, 944 F.2d 1176,
4
At the August 14, 2009 oral argument before me on defendant’s
motion to reconsider Magistrate Judge Perkin’s July 29, 2009 discovery order,
plaintiff argued, for the first time, that Adams and Farina are applicable to
this case. Because the United States Court of Appeals for the Third Circuit
had not ruled on this scope of review issue, I concluded in my September 20,
2009 remand order that the Adams and Farina decisions issued in this judicial
district did not constitute a change in controlling law for purposes of
reconsideration. Brunson Communications Inc. v. Arbitron, Inc., 246 F.Supp.2d
446-447 (E.D.Pa. 2003). Therefore, I declined to reverse Magistrate Judge
Perkin’s July 29, 2009 Order regarding the scope of Ms. Ursiny’s deposition.
However, I concluded that Adams and Farina may be persuasive
authority which Magistrate Judge Perkin should be permitted to review and
consider. Thus, and because by my Standing Order all discovery issues are
referred to him in the first instance, as discussed above, I remanded the
matter to Magistrate Judge Perkin for consideration of the applicable scope of
review and its effect on the discovery dispute at hand.
5
Magistrate Judge Perkin’s November 20, 2009 Memorandum and Order
so concluded, based on his determination that the Plan language in this case,
regarding “satisfactory proof” and “continued proof”, is identical to the
language contained in the subject disability policies in Adams and Farina.
Magistrate Judge Perkin also noted that in both of those cases, LINA was the
defendant. (Memorandum of United States Magistrate Judge Henry S. Perkin
dated November 20, 2009, at 6.)
Neither party objected to or sought appeal from Magistrate Judge
Perkin’s determination that the applicable scope of review in this case is
de novo. Accordingly, it is the law of this case, and I consider this case
under that standard. See also Viera v. Life Insurance Company of North
America, 642 F.3d 407 (3d Cir. 2011).
-7-
1184 (3d Cir. 1991).
Thus, the district court is not limited to
evidence before the plan administrator.
Id.
However, this does not require the district court to
conduct an evidentiary hearing or a full trial de novo.
Rather,
“[i]f the record on review is sufficiently developed, the
district court may, in its discretion, merely conduct a de novo
review of the record of the administrator’s decision, making its
own independent benefit determination.
Luby, 944 F.2d at 1184-
1185.
Defendant’s Objection
As an initial matter, I address defendant’s objection
to the introduction of any evidence at trial beyond the jointly
filed Administrative Record.
Defendant contends that, for purposes of this non-jury
trial, evidence should be limited solely to the Administrative
Record, which consists of the universe of information presented
to defendant, as plan administrator, for determination of
plaintiff’s claim for long-term benefits.
In support of its
position, defendant asserts that the goal of ERISA and the
administrative review process set forth therein is to provide an
expeditious review of benefit decisions, and to keep district
courts from becoming substitute plan administrators.
Donatelli v. Home Insurance Company, 992 F.2d 763, 765
(8th Cir. 1993).
-8-
Defendant further asserts that by considering extraAdministrative Record evidence, this court would effectively
become a substitute plan administrator, because I would be
evaluating evidence which was not reviewed by LINA in determining
plaintiff’s claim.
It argues that ultimately, this court’s role
is to determine whether LINA made the right decision regarding
plaintiff’s claim, based on the information it had at the time.
Moreover, defendant contends that the Administrative
Record contains sufficient evidence from which to determine
plaintiff’s claim.
Specifically, defendant avers that the
Administrative Record is a sufficiently developed record, and is
the result of plaintiff’s two opportunities to provide
documentation to LINA.
Defendant contends that plaintiff
previously had ample opportunity to present documentation to LINA
and should not be permitted to offer even further evidence in
support of her claim.
Plaintiff contends that my March 18, 2011 Order denying
both cross-motions for summary judgment should be construed as a
determination that the Administrative Record was not, in fact,
sufficient from which to enter judgment for either party.
Therefore, she asserts that this court is not constricted by the
Administrative Record, and that additional evidence should be
permitted.
-9-
As discussed above, the United States Court of Appeals
for the Third Circuit has held that, in this context, de novo
review means that my inquiry is not limited to, or constricted
by, the administrative record.
Luby, 944 F.2d at 1184.
Thus, I
am not limited to evidence before the plan administrator.
Id.
However, I am not required to accept additional evidence; “[i]f
the record on review is sufficiently developed, the district
court may, in its discretion, merely conduct a de novo review of
the record of the administrator’s decision” and make its own
independent benefit determination.
Luby, 944 F.2d at 1184-1185.
Defendant relies on Luby for the proposition that where
the record on review is sufficiently developed, the district
court should not consider additional evidence.
Although I am
mindful of ERISA’s goal of an expeditious review of a benefit
determination, see Donatelli, 992 F.2d at 765, I conclude that
Luby does not prohibit me from considering additional evidence.
Rather, Luby makes clear that where the record on review is
sufficiently developed, the district court has discretion
regarding whether to simply conduct a de novo review of that
record, or whether to consider additional evidence.
Luby,
944 F.2d at 1184-1185.
In this case, I concluded in my March 18, 2011 Order
that genuine issues of material fact existed which precluded
entry of summary judgment for either party.
-10-
The issues
identified in that Order, while not limiting either party’s
ability to prove other issues at trial, included why plaintiff
did not return to work in August or September 2009, and whether
her inability to work with coworkers and her supervisor was
caused by her disability.
Although I agree with defendant that the Administrative
Record contains documentation relevant to those fact issues, I
conclude that those fact question require credibility
determinations for my de novo review of plaintiff’s claim.
Accordingly, I overrule defendant’s objection, and I will
consider the extra-Administrative Record evidence to the extent
it is relevant.6
FINDINGS OF FACT
1.
In 1999, plaintiff began employment with
Mars, Inc.
2.
From 2003 until 2008, her position with Mars
was as a Material Testing Senior Operator.7
6
In its formal written objection filed June 14, 2011, defendant
also argues that extra-Administrative Record evidence would likely be
irrelevant and prejudicial to defendant, and therefore should be excluded
under Rule 402 of the Federal Rules of Evidence. Moreover, it argues that the
evidence would be “needlessly duplicative of the substantial evidence already
in the record” and therefore excludable under Rule 403 of the Federal Rules of
Evidence. (Objection, page 5.)
However, at trial, defendant did not pursue these arguments, and
has identified no specific prejudice or ways in which the evidence offered by
plaintiff is cumulative or duplicative of evidence already in the
Administrative Record. Moreover, defendant did not articulate a specific
relevance objection, other than its general averment that evidence outside of
the Administrative Record should not be considered because it was not
presented to LINA for determination of plaintiff’s claim.
7
The Job Description for plaintiff’s position as a Material Testing
Senior Operator appears in the record at LINABAIR 0339-0341.
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3.
The primary function of a Material Testing
Senior Operator is to inspect and test cocoa
beans. Another primary function is to
provide assurance that raw materials
specifications are being met, and that only
quality cocoa beans are being used.
4.
Accountabilities of the position include the
analytical and sensory evaluation of incoming
cocoa beans. The Materials Testing Senior
Operator has to make decisions and
recommendations including analytical
compliance and analytical audit plan, and to
uncover potential problems based on data
results.
5.
The job description for Materials Testing
Senior Operator does not state that it is a
job duty, requirement or right to work during
certain preferred hours of the day, or to
work only with certain co-workers or not work
with certain co-workers. Whether plaintiff
likes or dislikes her co-workers is not a
material duty of her position.
6.
Plaintiff was covered under a policy of
insurance administered by LINA, known as
Group Policy No. LK-422838 (“Policy”).8 The
Policy was effective on January 1, 1994 and
has a policy rewrite date of August 1, 2001.
The Policy is fully insured, that is, LINA
both administers the Policy, and pays longterm disability benefits to disabled
claimants under the Policy.
7.
Psychiatric medical records dated March 18,
2008 indicate that plaintiff had been
suffering from depression and anxiety on and
off for years, including during her working
years at Mars. As of March 18, 2008, she was
feeling particularly depressed because of
problems with her job and her marriage.
8
In addition to its inclusion in the administrative record at
LINABAIR 0118-0134, the Policy is attached to the Complaint as Exhibit A.
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8.
Ms. Bair stopped working at Mars, Inc. on or
about May 15, 2008.
9.
On May 15, 2008, plaintiff was hospitalized
at Philhaven Hospital in Mt. Gretna,
Pennsylvania, because of psychiatric
problems. She was under the care of Dr.
Camelia Popa, M.D., a staff psychiatrist at
Philhaven.
10.
Upon her admission at Philhaven, plaintiff
had a Global Assessment of Function (“GAF”)
score of 25. Her highest GAF within that
past year was reported to be 70. On
admission, plaintiff reported increased
stress, conflict at work and some family
issues that added stress to her and her
husband.
11.
Plaintiff’s diagnoses at the time of her
discharge from Philhaven on May 22, 2008
included bipolar disorder type II,
depression, and panic disorder with
agoraphobia. At discharge, plaintiff had a
GAF score of 50.
12.
On May 23, 2008, plaintiff was re-admitted to
Philhaven. At that time, she reported
expressing symptoms of depression,
hopelessness, fatigue, decreased motivation,
fleeting death wish, racing thoughts, chest
pains, and paranoia. Her stressors were
reported to be job-related, marital strife,
and strife in relationships.
13.
While in an acute partial program at
Philhaven from May 23 to May 29, 2008, Ms.
Bair was under the care of Dr. Kathryn R.
Rexrode, Ph.D., and Dr. Jeremy Walters, M.D.,
a staff psychiatrist at Philhaven. During
that time, it was reported that Ms. Bair
admitted to having auditory and visual
hallucinations which were much more extensive
than she had disclosed in her previous
admissions.
-13-
14.
15.
After seeing Dr. Walters on May 29, 2008, Ms.
Bair was again admitted to the inpatient
program at Philhaven because she reported a
“high level of depression and anxiety and
indicated that she was unsure if she could be
safe that evening”. She felt “increased
depression and suicidal ideation” following a
marital session with her husband where her
husband asked her whether she was having an
affair with a man at work, an accusation Ms.
Bair denied.9
16.
Plaintiff’s diagnoses on discharge included
bi-polar disorder type II, depression and
panic disorder with agoraphobia.
17.
At the time of her second admission,
plaintiff’s GAF was 30, and her discharge GAF
was 60. Her highest GAF within that past
year was reported to be 60, although it was
reported to be 70 two weeks prior.
18.
Plaintiff was prescribed psychotropic
medication including Zoloft, Clonazepam and
Seroquel.
19.
Plaintiff’s inpatient treatment at Philhaven
ended on June 1, 2008. While there, she
actively participated in therapeutic groups
and activities, individual therapy sessions,
and a joint therapy session with her husband
and mother.
20.
9
Ms. Bair’s husband reported that she can be
very paranoid, to the extent that she would
close all the curtains in her house. Ms.
Bair also stated that she would turn all the
pictures in the house face down on a table so
that she does not have them staring at her.
When she was discharged on June 1, 2008,
plaintiff’s mood had improved, she denied
suicidal or homicidal ideation, she presented
no psychotic symptoms, and she felt ready to
leave the hospital.
LINABAIR 0252, 0255.
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21.
Starting on June 3, 2008, plaintiff attended
a partial program at Philhaven for follow-up
care.
22.
Medical records submitted to LINA shortly
thereafter exhibited plaintiff’s particular
dislike for her existing manager and two coworkers at Mars, describing them as
“toxic”.10 She indicated that those coworkers were a source of her “anxiety”.11
23.
She was discharged from the partial program
on June 10, 2008, and at that time, her GAF
score was 50. Her highest GAF within the
past year was then reported to be 64.
24.
On July 21, 2008, plaintiff reported to her
therapist, Karen Boyer, that she was “feeling
relief” that “action may occur...for her to
return to work part-time”.12 As far as fulltime work, plaintiff restated her belief that
her new manager and two new employees had
been very “toxic” to her emotional and
physical health for about 11 months, but she
believed she could work again “5:30 to 1 AM”,
that is, on a different shift than the new
manager and the new employees.13
25.
On July 29, 2008, plaintiff again discussed
with Ms. Boyer her efforts to return to work,
but indicated that her spouse was not
supportive of her concerns about working with
her old manager.
26.
On August 1, 2008, plaintiff reported to Ms.
Boyer with decreased anxiety, increased
hopefulness, and a positive plan to “work out
10
LINABAIR 0297.
11
LINABAIR 0293.
12
LINABAIR 0297.
13
LINABAIR 0297.
-15-
differences with employer/boss”.14 Plaintiff
reported to Ms. Boyer on August 2, 2008 that
she had been meeting with individuals at Mars
about modified shifts for her return to work.
27.
On August 15, 2008, plaintiff indicated not
only a desire to return to work, but also a
desire to take continuing education classes
in the fall of 2008. Specifically, plaintiff
reported to Ms. Boyer that she had obtained a
“greater clarity of her employment options
and options for school (# of classes for
fall). Realizes she may have to find a part
time job and take 1 course if modified work
release does not get accepted.”15
28.
Also on August 15, 2008, plaintiff reported
to Ms. Boyer that her mood about returning to
work had shifted from “they don’t want me” to
“I’m mad now”.16 She told Ms. Boyer that
“I’ve done everything to try to return to
work.”17 On August 19, 2008, plaintiff told
Ms. Boyer that she was “ready to go back to
day shift” at Mars.18
29.
By letter dated August 22, 2008, plaintiff’s
treating psychiatrist, Dr. Walters, released
plaintiff to return to work with the initial
restrictions of working three eight-hour days
from 5:30 p.m. to 1:00 a.m. “to avoid
triggers”.19
30.
Specifically, Dr. Walters reported that he
was treating Plaintiff for bi-polar disorder,
and that in his opinion, she has depressive
symptoms of that illness, including sleep
14
LINABAIR 0294-0295.
15
LINABAIR 0290.
16
LINABAIR 0290.
17
LINABAIR 0290.
18
LINABAIR 0289.
19
LINABAIR 0240.
-16-
disturbances, decreased motivation, variable
concentration and decrease in stress
tolerance. Dr. Walters noted that plaintiff
has difficulty in stressful situations and
has certain triggers that result in
decompensation.
31.
Dr. Walters stated:
[I]f she is able to avoid or limit these
stressors during the recovery period,
she would have a better prognosis. I
had recommended three 8-hour days from
5:30 p.m. to 1:00 a.m. This would allow
her to return to work slowly and avoid
triggers. If she is able to manage the
initial 3-day workweek, then she may be
moved up to 5 days per week and as she
recovers, her schedule may be extended
further. Subjecting Ms. Bair to
emotional triggers would further delay
recovery and could possibly require
hospitalization - a stress neither Ms.
Bair, her family, your company, nor this
office would want.20
32.
By letter to plaintiff dated September 2,
2008, Mars, through Karen Grimaldi, R.N.,
sought clarification of Dr. Walters’ August
22 letter. Mars wanted additional
information about the requested shift change
and what the “stressful situations” and
“emotional triggers” were for plaintiff so
Mars could seek to avoid putting plaintiff in
those situations. Mars also voiced its
concern about plaintiff’s safety working
“alone in a remote area of the plant in the
middle of the night” if it accommodated her
requested restrictions. Mars also asked if
plaintiff could work until 2:00 a.m. so she
would work a full eight-hour shift.21
20
LINABAIR 0240.
21
LINABAIR 0260.
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33.
In the September 2, 2008 letter, Mars
indicated that it might be willing to agree
to plaintiff’s request to restrict her
working hours and job duties temporarily, as
long as her healthcare provider provided the
additional documentation substantiating that
the restrictions would not pose a direct
threat to plaintiff’s health or safety.22
34.
On September 12, 2008, plaintiff restated to
Dr. Walters her desire to return to her job
and voiced her concern that Mars was “not
willing to comply [with her] request for work
restrictions”.23
35.
By letter dated September 15, 2008, Dr.
Walters responded to Ms. Grimaldi’s
September 2, 2008 letter. He offered his
professional opinion that plaintiff would,
indeed, have the “ability to work 8 hour days
from 5:30 pm to 2 am” and this would be “both
appropriate and acceptable”. However, he
refused to describe plaintiff’s emotional
triggers because those “issues are
confidential and disclosure of these issues
would itself be a trigger”. In the
September 15, 2008 letter, Dr. Walters did
not limit plaintiff to working three days a
week.24
22
LINABAIR 0260-0261. The September 2, 2008 letter also states that
because the essential functions of plaintiff’s job included performing
“microtest and sensory release of beans”, “[a]ll associates who are absent
from work for any extended period of time for any reason, including illness or
vacation, are required to recalibrate through side-by-side retraining with
another lab technician for at least 1 or 2 weeks”. LINABAIR 0260. The letter
further states that this retraining must necessarily occur during the day, in
the presence of other associates and the lab manager, and that if plaintiff
were to restrict her hours to nighttime, she would be unable to recalibrate.
Therefore, the letter indicates that if plaintiff were permitted to
temporarily work transitional nighttime hours, her tasks during that time
would likely be limited to “testing shell and nib samples, data analysis and
preliminary beans testing”.
LINABAIR 0261.
23
LINABAIR 0246.
24
LINABAIR 0241.
-18-
36.
On September 23, 2008, Dr. Walters filled out
a status form for LINA in which he asserted
that plaintiff was “not stable to return to
full or part time work currently”.25 Under
the heading “Ability to Perform”, Dr. Walters
indicated that plaintiff was not able to be
without face-to-face contact for extended
periods of time, that is, she could not work
alone or in isolation.26
37.
Dr. Walters’ September 23, 2008 report states
that plaintiff’s current GAF was 50 and that
her highest GAF in the past year was 52.
38.
Ultimately, Mars advised plaintiff by letter
dated October 1, 2008 that it had concluded
it was unable to accommodate plaintiff’s work
preferences because Dr. Walters would not
identify what “stressors” and “triggers” she
needed to avoid, and therefore Mars could not
truly determine if it could accommodate
plaintiff’s proposed restrictions.27
39.
Mars further indicated that when Mars asked
Dr. Walters for clarification regarding his
proposed restrictions and for additional
information regarding what “stressful
situations” and “emotional triggers”
plaintiff should avoid when she returned to
work, Dr. Walters did not disclose further
information for confidentiality reasons and
because disclosure would be an emotional
trigger in and of itself, and he did not
address of all of Mars’ concerns about
plaintiff working alone in a remote area of
the plant at night.
40.
Mars explained that the information from
plaintiff’s healthcare provider was
“insufficient to establish that returning to
work under these circumstances is a
reasonable accommodation that will not pose a
25
LINABAIR 0314-0316, at 0315.
26
LINABAIR 0316.
27
LINABAIR 0262.
-19-
threat to your health
undue burdens imposed
other associates” and
the Company is unable
restrictions”.28
or will overcome the
on the business and
that “[c]onsequently,
to accommodate your
Plaintiff’s Claim for Long-Term Disability Benefits
41.
42.
By letter dated November 4, 2008, LINA denied
plaintiff’s claim (“denial letter”). The
denial letter asserted that plaintiff had not
provided “medical documentation to support an
impairment of functional capacity severe
enough to affect [plaintiff’s] ability to
work throughout the Benefit Waiting
Period.”30 That is, LINA concluded that she
had not provided satisfactory proof that she
was disabled throughout the entire 180-day
Benefit Waiting Period.
43.
28
Plaintiff filed a claim for long-term
disability (“LTD”) benefits on October 7,
2008.29
The denial letter also stated that as of
October 29, 2008, plaintiff exhibited “low
intensity of symptoms”, had “no psychosis”,
had no suicidal ideation or homicidal
ideation and no “disinhibited behaviors”, and
was caring for a young child. LINA concluded
that plaintiff’s restrictions and limitations
were not supported by the medical information
LINABAIR 0262.
29
According to the October 1, 2008 letter, Mars permitted plaintiff
to remain on medical leave as an accommodation instead of agreeing to the
accommodations she requested, and indicated that she would continue to be
compensated under the company’s short-term disability (“STD”) policy. The
letter also indicates that as of October 1, 2008, plaintiff had used 16 weeks
of the total 26 weeks of paid medical leave for which she was eligible under
the STD policy, and that her remaining 10 weeks of STD benefits would expire
on November 13, 2008.
30
LINABAIR 0145.
-20-
on file and that her conditions were “not
conducive with global functioning
impairments.”31
44.
45.
On December 15, 2008, Dr. Walters referred
plaintiff to the “Day program” at Philhaven.
46.
On December 18, 2008, Mars terminated
plaintiff’s employment.
47.
On January 5, 2009, Dr. Walters indicated
that plaintiff’s depression “was triggered by
issues at work and it has continued”, that
she has “difficulty functioning at home and
has even had difficulty caring for her son
without her husbands [sic] support”, she has
“self-harm thoughts but has been able to
contract for safety”, she is “on several
medications but they have had limited
benefit”, the need to have her “return to a
day program is growing”, and at “this time I
do not believe that she is ready for work and
needs continued treatment”.32
48.
On January 11, 2009, a peer-review physician,
Dr. Stuart Shipko, M.D., reviewed plaintiff’s
medical records and concluded that
information contained therein was
“insufficient to support [plaintiff’s]
continuous disability for the time period of
5/15/08 to 11/10/08”.33
49.
31
On November 11, 2008, plaintiff appealed the
denial of her claim.
In support of his conclusion, Dr. Shipko
noted that plaintiff was “unable to work from
5/15/08 until about July 21, 2008”, but then
LINABAIR 0145.
32
LINABAIR 0367. Dr.
mistakenly, “January 5, 2008".
it was written in response to a
counsel to Dr. Walters, and the
January 5, 2009.
33
Walter’s January 5 letter is dated, apparently
However, a review of the letter reveals that
December 22, 2008 letter from plaintiff’s
parties agree that it should be dated
LINABAIR 0183-0190.
-21-
“she aggressively began to make arrangements
to return to work, but at a shift where she
would not have to confront her prior manager
and 2 other [co-workers]”. Therefore, Dr.
Shipko concluded that plaintiff was capable
of returning to work in her “usual occupation
as of July 21, 2008 but did not go back
because of a conflict with coworkers”.34
50.
51.
Dr. Shipko found that Dr. Walters’ attempt to
release plaintiff first to part-time work
with restrictions and then full-time with
restrictions was inconsistent with Dr.
Walters’ statement that plaintiff was unable
to work on September 23, 2008. He also
indicated that plaintiff’s “intact
occupational functionality” was supported by
the letters from Dr. Walters requesting
plaintiff’s return to work with
accommodations.35
52.
34
Although Dr. Shipko’s report notes that a Dr.
Coica reported that plaintiff’s GAF score was
52 as of March 18, 2008, he did not consider
whether someone with a GAF score of 52 was
capable of performing the job duties of
plaintiff’s position at Mars. Dr. Shipko did
not contextualize his findings in terms of a
GAF score.
Moreover, Dr. Shipko’s report noted that
plaintiff indicated in a questionnaire in the
claim file that she was “not able to work
around ‘other people,’ but the actual record
indicates that this was not a general problem
with all people but a specific problem with
her manager and 2 other coworkers”. He
further indicated that plaintiff’s “reported
restriction of not being around her manager
LINABAIR 0183-0190.
35
LINABAIR 0189. Although Dr. Shipko’s report refers to the
“8/22/08 and 9/13/08 letters from Dr. Walters”, presumably he was referring to
the August 22, 2008 and September 15, 2008 letters.
-22-
and 2 other employees, whom she perceived as
toxic, is not a factor of global
impairment”.36
53.
Dr. Shipko also called and directly spoke
with Dr. Walters on January 12, 2009. Dr.
Shipko and Dr. Walters together reviewed a
record from July 21, 2008 where plaintiff
reported that she could return to work at
Mars, but not with the same manager and
employees. According to Dr. Shipko, “Dr.
Walters concurred that the claimant would
have been capable of returning to work with
different coworkers around that time. He
went on to say that she seemed to deteriorate
in late October 2008 when she was not
accommodated in her request to return to work
in the last shift....”.37
54.
That same day, Dr. Shipko sent a summary of
his conversation to Dr. Walters and asked Dr.
Walters to fax the summary back with any
changes. Dr. Shipko advised Dr. Walters that
if he elected not to respond, “the insurer
may rely on this summary in its current
form.”38
55.
There is no evidence in the record that Dr.
Walters returned the summary or made any
changes to it.
56.
On January 21, 2009, after considering Dr.
Shipko’s independent review of plaintiff’s
records, LINA affirmed its denial of
plaintiff’s claim for long-term disability
benefits.
57.
Plaintiff initiated this lawsuit on
February 9, 2009.
36
LINABAIR 0189-0190.
37
LINABAIR 0188.
38
LINABAIR 0191.
-23-
LINA’s Review of Additional Medical Records
58.
In July 2009, it was discovered that in early
January 2009, during the original review of
plaintiff’s long-term disability appeal,
plaintiff’s counsel, Kirk L. Wolgemuth,
Esquire, had sent supplemental medical
information regarding plaintiff to LINA, but
at an incorrect mailing address.39
59.
There is no dispute that plaintiff’s counsel
sent the records to the incorrect address,
and that the records were therefore never
received by LINA up until that point in time.
Despite this error, which was no fault of
LINA’s, and although the review by this point
was past the administrative appeal deadline,
LINA voluntarily agreed to re-evaluate
plaintiff’s appeal and take this supplemental
information into account.
60.
As part of this voluntary re-evaluation, LINA
requested additional information from
plaintiff and forwarded the supplemental
medical information to Dr. Shipko, the same
psychiatrist who conducted the prior file
review and peer-to-peer consult with
plaintiff’s treating physicians, for his
review and evaluation.
61.
In his report dated July 21, 2009, Dr. Shipko
noted that the supplemental medical
information indicated that plaintiff’s
“condition deteriorated and she has
impairment that precludes occupational
functionality from 12/9/08 to 1/12/09.”
However, Dr. Shipko also reiterated that
“[t]he information still indicates that the
claimant was capable of returning to work by
7/21/08 as there has been no new information
provided relevant to that time period.”40
39
Specifically, the records were addressed to Patti Ursiny, LINA
Appeal Claim Manager, but they were sent to an incorrect post office box
number. Therefore, the records were never received by LINA.
40
LINABAIR 0380-0381.
-24-
62.
63.
LINA concluded that although plaintiff’s
“condition may have deteriorated on
December 9, 2008, the information provided is
insufficient to support continuous disability
for the time period of May 15, 2008 through
November 10, 2008” and, therefore, plaintiff
“did not fulfill her Benefit Waiting period
and does not meet the definition of
disability” under the Policy.41
64.
LINA made no attempt to determine what
plaintiff’s GAF score was at any point from
May 15, 2008 through the expiration of the
Benefit Waiting Period in November 2008.
LINA also made no attempt to determine
whether plaintiff could perform the material
duties of her occupation with a GAF of 50.42
65.
41
Taking plaintiff’s supplemental medical
information and Dr. Shipko’s supplemental
review of plaintiff’s records into account,
LINA affirmed its previous denial of
plaintiff’s long-term disability claim by
letter dated July 31, 2009.
Appeals Manager Patti Ursiny testified at her
January 6, 2010 deposition that she had no
discussions with Dr. Shipko or anyone else
regarding plaintiff’s ability to work with a
GAF of 50, and that she does not know whether
an individual with a GAF of 50 would perform
the duties of a Material Testing Senior
Operator.43
LINABAIR 0384-0386.
42
Defendant admits that LINA did not attempt to determine
plaintiff’s GAF scores or whether she could perform the duties of her job with
a GAF of 50. However, as discussed below, defendant contends that it had no
such obligation.
43
Excerpts of Patti Ursiny’s deposition were admitted into evidence
at trial as Plaintiff’s Exhibit 2, and were read into the record by plaintiff.
In its case-in-chief, defendant read counter-designated portions of the
deposition into the record.
-25-
66.
Ms. Ursiny also testified at her January 6,
2010 deposition that isolating, cutting, and
having auditory and visual hallucinations are
examples of disinhibited behavior, and that
it would be relevant to know if plaintiff’s
conflict with her co-workers was caused by
her mental illness. Ms. Ursiny also
testified that she never requested a
psychiatric independent medical evaluation
for an individual with a mental illness.
CONCLUSIONS OF LAW
Applying my factual findings to the standard of review
applicable to this ERISA case, I make the following conclusions
of law.
1.
The Policy was effective on January 1, 1994
and has a policy rewrite date of August 1,
2001.
2.
The Policy is fully insured. That is, LINA
both administers the Policy and pays longterm disability benefits to disabled
claimants under the Policy.
3.
LINA agrees to pay disability benefits to a
Mars “Associate” who becomes disabled while
covered by the Policy.
4.
As an Associate, it was Ms. Bair’s duty to
provide “Satisfactory Proof” of her
disability to LINA.
5.
Under the Policy, LINA will not begin paying
long-term disability benefits to a disabled
employee until that employee first has been
continuously disabled for a period of 180
days (“Benefit Waiting Period”).
6.
Plaintiff alleges that her mental illness
rendered her disabled, for purposes of the
Policy, on May 15, 2008.
-26-
7.
Therefore, to satisfy the Benefit Waiting
Period, plaintiff needed to provide
“satisfactory proof” that she was
continuously disabled from May 15, 2008
through November 11, 2008 (180 days).
8.
Plaintiff has not established that she was
continuously disabled during the Benefit
Waiting Period, that is, from May 15, 2008
through November 11, 2008.
9.
Plaintiff was able to return to work as early
as July 21, 2008 on a modified schedule and
was ready to return to work on her usual
schedule on August 19, 2008.
10.
Plaintiff’s GAF score of 50 on September 23,
2008 is not indicative of her functioning on
other dates during the relevant time period.
11.
Plaintiff’s ability to return to work and
perform all of the material duties of her own
job during that time renders her not “totally
disabled” for purposes of the Policy
throughout the entire Benefit Waiting Period.
12.
Accordingly, plaintiff has not established
that she is entitled to benefits under the
Policy.
CONTENTIONS OF THE PARTIES
Contentions of Plaintiff
Plaintiff contends that she is entitled to summary
judgment and that this court, reviewing the administrative record
of this matter, should reverse the Policy administrator’s denial
of her claim for long-term benefits.
In support of her argument,
plaintiff contends that LINA selectively considered the medical
evidence and improperly relied on the paper-review reports of its
experts while giving scant weight to plaintiff’s treating
-27-
psychiatrist, Dr. Walters, and arbitrarily refused to credit
plaintiff’s reliable evidence.
Specifically, plaintiff avers that in its November 4,
2009 denial of her claim, LINA ignored the medical evidence
presented by Dr. Walters.
Instead, plaintiff contends, LINA
relied on Dr. Rosenthal’s conclusion that plaintiff’s requested
limitations and restrictions were not supported by her medical
records.
Plaintiff further asserts that LINA failed to explain
why it disregarded Dr. Walters’ opinions that plaintiff had a GAF
score of 50, was completely disabled, and was unable to work.
Plaintiff also avers that LINA’s decision did not explain how
plaintiff would be able to perform her job without the
restrictions imposed by Dr. Walters.
Regarding LINA’s denial of plaintiff’s appeal,
plaintiff contends that Dr. Shipko erred in concluding that Dr.
Walters’ September 23, 2008 report was inconsistent with his
earlier request for her to return to work with accommodations.
Specifically, plaintiff avers that it was not inconsistent for
Dr. Walters to recommend that plaintiff attempt to return to work
with restrictions, first on a part-time basis and then on a fulltime basis, but also find that she could not return to work in
her regular position without the restrictions.
-28-
Plaintiff also contends that her illness caused her
perception that her co-workers were toxic, and suggests that Dr.
Shipko incorrectly characterized this as a personality problem
with her manager and two co-workers.
Moreover, plaintiff avers
that Dr. Shipko did not address the fact that plaintiff had a GAF
of 50, and she asserts that such a GAF score would be a serious
impairment in her occupational functioning.
Plaintiff asserts
that Dr. Shipko’s opinion is not credible or competent because he
did not personally evaluate her.
Regarding the Benefit Waiting Period, plaintiff
contends that even if she had returned to work full-time with
restrictions or part-time without restrictions in August 2008,
she would not have been considered “actively at work” under the
terms of the Policy.
Therefore, according to plaintiff, the
Benefit Waiting Period time would continue to accrue during that
time.
She also contends that the reason she did not return to
work at that time was that Mars did not accommodate the
restrictions imposed by Dr. Walters.
Finally, plaintiff contends that she was unable to
perform the essential duties of her job, because a requirement of
the Material Testing Senior Operator position was the ability to
work with co-workers.
She avers that Dr. Walters attempted to
release her to return to work as long as she did not have contact
with her co-workers, but that Mars could not accommodate her.
-29-
Contentions of Defendant
Defendant contends that it is entitled to summary
judgment in its favor for four reasons.
First, it avers that
plaintiff did not provide sufficient evidence that she was
continuously disabled throughout the entire applicable waiting
period of May 15, 2008 through November 11, 2008.
Specifically,
defendant avers the record before LINA at the time, and before
this court now, unequivocally indicates that plaintiff was
emotionally ready, medically cleared, and actively attempting to
return to work at her own job at Mars from at least July 2008
through September 2008.
Defendant also asserts that the restrictions proposed
by Dr. Walters (i.e., for plaintiff to work during certain hours
of the night, remotely, and with only certain people) are
preferences, but are not “material duties of her own job” for
purposes of the Policy’s definition of “total disability”.
Moreover, defendant avers that neither Dr. Walters nor Ms. Boyer
ever suggested that plaintiff could not perform the physical and
mental requirements of a Materials Testing Senior Operator when
she returned to work.
Defendant argues that this conclusion is supported by
the determinations of Dr. Shipko, an independent psychiatrist,
who reviewed plaintiff’s medical records and spoke to Dr.
Walters.
Dr. Shipko concluded that plaintiff was able to return
-30-
to work in her usual occupation as of July 21, 2008, but did not
go back because of a conflict with co-workers.
Defendant
contends that Dr. Shipko’s report indicates that plaintiff’s
subjective preference not to work with particular people is not
objective medical evidence of a disability.
Thus, defendant asserts that there is objective medical
evidence indicating that plaintiff was not continuously disabled
throughout the Benefit Waiting Period.
Defendant avers that Dr.
Walters implicitly confirmed this conclusion by failing to return
Dr. Shipko’s summary with any changes.
Second, defendant avers that aside from the Benefit
Waiting Period issue, LINA denied the claim because plaintiff had
not provided satisfactory proof of her disability as of
October 29, 2008.
Specifically, defendant contends that
plaintiff had low intensity of symptoms, no psychosis, no
suicidal or homicidal ideation, no “disinhibited behaviors”, and
was capable of caring for her child.
Moreover, defendant contends that plaintiff’s treating
physician had recommended a gradual return to work.
Defendant
further contends that plaintiff’s GAF score is not a static
value, but is a subjective measure of an individual’s function at
the particular time of evaluation.
Defendant also avers that
plaintiff discusses her GAF scores only when they were at their
-31-
lowest ebb, and does not discuss her GAF scores from mid June
through mid September 2008 (during the Benefit Waiting Period).
Defendant also asserts that it voluntarily agreed to
re-evaluate plaintiff’s claim in July 2009 after learning that
plaintiff’s counsel had attempted to send supplemental medical
information in January 2009.
Defendant avers that upon review of
the information, Dr. Shipko concluded that plaintiff’s condition
had deteriorated and her impairment precluded occupational
functionality from December 9, 2008 to January 12, 2009.
However, he also concluded that the evidence still indicated
plaintiff was capable of returning to work by July 21, 2008.
Therefore, LINA reaffirmed its previous denial of plaintiff’s
claim because the information provided was insufficient to
support continuous disability from May 15, 2008 through
November 10, 2008, and thus plaintiff did not meet the
definition of disability under the Policy.
Third, defendant contends that it considered all
medical evidence in the record when making its decision.
In
support of this assertion, defendant relies on the deposition of
Patti Ursiny for the proposition that LINA considers a claimant’s
occupation, job, disability, and eligibility for benefits.
Finally, defendant avers that Dr. Shipko’s independent
psychiatric evaluation should be given great weight because he
considered all of plaintiff’s psychiatric evaluations.
-32-
Moreover,
in response to plaintiff’s argument that her treating physician’s
opinion should be given greater weight than Dr. Shipko’s opinion,
defendant notes that Dr. Shipko and Dr. Walters were in agreement
that plaintiff could have returned to work in July 2008, thus,
there was no reason for Dr. Shipko to examine plaintiff
personally.
RELEVANT POLICY PROVISIONS
The Policy provides, in its Description of Benefits, as
follows:
Monthly Benefits
The Insurance Company will pay Monthly Benefits if
an Associate becomes Totally Disabled while
covered under this Policy. A Totally Disabled
Associate must satisfy the Benefit Waiting Period
and be under the care of a Physician.
Satisfactory proof of Total Disability must be
provided to the Insurance Company, at the
Associate’s expense, before benefits will be paid.
The Insurance Company will require continued proof
of the Associate’s Total Disability for benefits
to continue.
Benefit Waiting Period
The Benefit Waiting Period is a continuous period
of time an Associate is not in Active Service due
to disability before Monthly Benefits may be
payable. The Benefit Waiting Period is shown in
the Schedule of Benefits.
(Policy, LINABAIR 0125.)
-33-
In its schedule of benefits, the Policy also provides,
in relevant part:
Definition of Total Disability/Totally Disabled
An Associate is Totally Disabled if,
1.
during the first 24 months after
benefits commence, that due to Injury or
Sickness, and independent of any other
causes, he or she is unable to perform
all the material duties of his or her
own job with the Employer and provides
objective medical information confirming
that he or she is Totally Disabled; and
2.
after benefits have been payable for 24
months, he or she is unable to perform
all the material duties of any
occupation for which he or she may
reasonably become qualified based on
education, training or experience, and
solely due to Injury or Sickness, he or
she is unable to earn more than 75% of
his or her Indexed Annual Earnings.
....
Benefit Waiting Period
180 consecutive days of an eligible
Associate being disabled who is not
actively at work due to Injury or
Sickness.
....
If, during the Benefit Waiting Period, a disabled
Associate returns to work on other than a fulltime basis either with or without restrictions, or
returns to work on a full-time basis with
restrictions, he or she will not be considered in
Active Service and the Benefit Waiting Period
shall continue to be counted during this period of
employment.
(Policy, LINABAIR 0121-0122).
-34-
DISCUSSION
Defendant’s Motion for Judgment on Partial Findings
On the first day of trial, at the close of plaintiff’s
case-in-chief, defendant moved for judgment on partial findings
pursuant to Rule 52(c) of the Federal Rules of Civil Procedure.
Although I heard oral argument on defendant’s motion on the
second day of trial, I deferred my ruling on it until after the
close of evidence, as permitted by Rule 52(c).
At the close of
evidence, I took the matter under advisement.
Rule 52(c) provides:
If a party has been fully heard on an issue during
a nonjury trial and the court finds against the
party on that issue, the court may enter judgment
against the party on a claim or defense that,
under the controlling law, can be maintained or
defeated only with a favorable finding on that
issue. The court may, however, decline to render
any judgment until the close of evidence. A
judgment on partial findings must be supported by
findings of fact and conclusions of law as
required by Rule 52(a).
Fed.R.Civ.P. 52(c).
“In considering whether to grant judgment under Rule
52(c), the district court applies the same standard of proof and
weighs the evidence as it would at the conclusion of trial.”
EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 272 (3d
Cir. 2010).
Therefore, in evaluating a Rule 52(c) motion, the
court “does not view the evidence through a particular lens or
draw inferences favorable to either party.”
-35-
Id.
Moreover, the
court may evaluate the credibility of witnesses where
appropriate.
Id.
In support of its motion, defendant contends that the
evidence presented in plaintiff’s case-in-chief fails to
establish that plaintiff was unable to perform all of the
material duties of her own job from May 15, 2008 through November
11, 2008 and that, therefore, she did not provide satisfactory
proof of total disability throughout the applicable waiting
period.
Therefore, defendant contends that plaintiff has not
satisfied her burden of proving her entitlement to long-term
disability benefits under the Plan.
Specifically, defendant contends that the evidence,
including the administrative record which was admitted into
evidence as the parties’ Joint Exhibit 1, confirms that Ms. Bair
was able, prepared, and intending to work and perform her job
duties during the Benefit Waiting Period.
Defendant contends
that she was able to perform the essential duties of her own job
in at least July and August 2008, but that she did not return
because she wanted to work a different shift and with different
people.
Defendant avers that those are not job duties, but job
preferences which are not relevant to a determination of “total
disability” for purposes of her long-term disability eligibility.
Defendant also contends that plaintiff’s testimony
establishes that she has suffered from anxiety, depression and
-36-
mental illness for approximately 20 years, since the age of 13 or
14, when she was first hospitalized.
LINA also asserts that
plaintiff has worked consistently for Mars for several years
despite her condition.
Defendant avers that plaintiff’s episode of depression
during the relevant time period was triggered by job stress and
trouble with coworkers and her manager, rather than her mental
illness rendering her unable to work.
Moreover, defendant
contends that on July 21, 2008, plaintiff reported to her
therapist, Karen Boyer, that she was feeling relief and that
action may occur for her to return to work full-time.
Thus,
although acknowledging plaintiff’s admirable struggle with her
mental illness, defendant avers that the record demonstrates
plaintiff’s ability to return to work in July 2008.
Plaintiff responds that her illness caused her to
perceive trouble with her coworkers and that the problem was with
her, not with her coworkers.
She contends that this conclusion
is supported by Dr. Walters’ April 18, 2011 letter in which he
states that her illness “led to her inability to work and
prompted the subsequent request for special accommodations.”44
Moreover, plaintiff contends that LINA failed to fully
consider her GAF scores during the relevant time period.
example, she argues that Dr. Shipko, LINA’s peer-review
44
Plaintiff’s Exhibit 1.
-37-
For
physician, did not comment on the GAF scores found by Dr.
Walters.
Plaintiff also asserts that Patti Ursiny, LINA’s claims
adjuster, had no idea whether an individual with a GAF of 50
could perform the job duties of a materials testing operator.
Therefore, plaintiff contends that defendant failed to fully
consider whether plaintiff was capable of performing the
essential duties of her job.
Pursuant to the Policy, LINA agrees to pay disability
benefits to a Mars employee who becomes disabled while covered by
the Policy.
It is the employee’s duty to provide “satisfactory
proof” of disability to LINA.
An employee is “totally disabled”
if she is “unable to perform all the material duties of his or
her own job with the Employer and provides objective medical
information confirming that he or she is Totally Disabled”.
(Policy, LINABAIR 0121-0122).
Here, plaintiff alleges that she suffered an injury
and became disabled, as defined by the Policy, on May 15, 2008.
The parties agree that under the terms of the Policy, plaintiff
was subject to a 180-day Benefit Waiting Period from May 15,
2008 through November 11, 2008.
That is, as a first step to
receiving long-term disability benefits under the Policy,
plaintiff needed to be continuously disabled from May 15, 2008
through November 11, 2008, and to provide satisfactory proof of
such continuous disability to LINA.
-38-
Benefit Waiting Period
Plaintiff contends that she was continuously disabled
during the applicable Benefit Waiting Period, that is, from
May 15, 2008 through November 11, 2008.
Defendant contends that
it properly concluded she was not, because plaintiff’s treating
psychiatrist, Dr. Walters, and defendant’s peer-review
psychiatrist, Dr. Shipko, were in agreement that she was capable
of returning to work as of about July 21, 2008.
Plaintiff
contends that because Dr. Walters recommended her return to work
only with certain restrictions, she remained continuously
disabled during that time.
I find that on July 21, 2008, plaintiff reported to her
therapist, Karen Boyer, that she was “feeling relief” that
“action may occur...for her to return to work part-time”.45
She
also restated Ms. Boyer her belief that her new manager and two
new employees had been very “toxic” to her emotional and physical
health for about 11 months, but she believed she could work again
on a different shift than the new manager and the new employees,
specifically, she believed she could work from 5:30 o’clock p.m.
to 1:00 o’clock a.m.
By letter dated August 22, 2008, Dr. Walters
recommended that plaintiff “return to work slowly and avoid
triggers” by working three eight-hour days per week on the
45
LINABAIR 0297.
-39-
5:30 o’clock p.m. to 1:00 o’clock a.m. shift.
He further
indicated that “[i]f she is able to manage the initial 3 day work
week, then she may be moved up to 5 days per week” and extended
further as she recovers.46
In a follow-up letter dated September
15, 2008, Dr. Walters stated that it was “both appropriate and
acceptable” for Ms. Bair to work eight-hour days from 5:30
o’clock p.m. to 2:00 o’clock a.m.47
Plaintiff argues that Dr. Walters’ August 22, 2008 and
September 15, 2008 letters demonstrate that plaintiff was unable
to fulfill her regular job duties at that time, noting that Mars
required plaintiff to “recalibrate” during a day shift before
returning to her usual duties.
However, this contention is
contradicted by plaintiff’s statements to her therapist in August
2008.
Moreover, the record does not demonstrate that plaintiff
was unable to perform “recalibration” during a day shift.
Specifically, through mid-August 2008, Ms. Bair
continued to report to Karen Boyer her desire to return to work,
including a positive plan to “work out differences with
employer/boss”.48
She told Ms. Boyer that she had “done
everything to try to return to work.”49
46
LINABAIR 0240.
47
LINABAIR 0241.
48
LINABAIR 0294-0295.
49
LINABAIR 0290.
-40-
Indeed, on August 19,
2008, plaintiff told Ms. Boyer that she was “ready to go back to
day shift” at Mars.50
Moreover, neither Dr. Walters’ August 22, 2008 letter
nor his September 15, 2008 letter specifically states that
plaintiff was unable to return to work in her regular capacity
during the day shift.
Rather, he “recommended” the modified
schedule in order to avoid unspecified triggers, and
characterized the modified schedule as “both appropriate and
acceptable”, but did not characterize the proposed modifications
as necessary.51
Dr. Walters did not identify any specific triggers to
which plaintiff would be subjected if she were to return to work
in her usual capacity.
Moreover, Ms. Bair testified at trial
that Dr. Walters had not said she could not perform her job
duties.52
There is no evidence in the record that plaintiff was
unable to inspect and test cocoa beans; provide assurance that
raw materials specifications are being met, and that only quality
cocoa beans are being used; make decisions and recommendations
including analytical compliance and analytical audit plan; or
50
LINABAIR 0289.
51
This factual finding is bolstered by Ms. Bair’s trial testimony,
in which she stated: “My doctor thought a period – a transitional period would
be good for me to get back into working around other people”. N.T. 7/7/11 at
25.
52
N.T. 7/7/11 at 42.
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uncover potential problems based on data results, as required by
her Job Description.53
Thus, I find that plaintiff wished to return to work in
her regular capacity, albeit during different hours, as early as
July 21, 2008, and that she believed she was ready to return to
her regular shift on August 19, 2008.
Although Dr. Walters
recommended that she return to work initially on a modified
schedule, he did not indicate that she was unable to return to
work in her usual capacity.
Because this period of time was within the applicable
Benefit Waiting Period, plaintiff’s ability to return to work and
perform all of the material duties of her own job during that
time renders her not “totally disabled” for purposes of the
Policy.
Plaintiff’s contention that LINA erred in concluding
she was not totally disabled throughout the Benefit Waiting
Period is based in large part on her contentions regarding GAF
scores.
Specifically, plaintiff asserts that Dr. Shipko’s
opinion is flawed because he never determined Ms. Bair’s GAF
score, and that he could not have determined her GAF score
because he never examined her.
She also contends that Dr.
Walters’ determination that her GAF score was 50 in September
2008 indicates that she was incapable of working.
53
LINABAIR 0339-0341.
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A Global Assessment of Functioning rating, or GAF
rating, “is a subjective determination of the physician’s
judgment (on a 100-point scale) of the claimant’s overall ability
to function on that particular day, excluding physical and
environmental impairments.”
Long v. Astrue, 2009 WL 5033973,
at *1 n.1 (E.D.Pa. Dec. 21, 2009)(Pollak, S.J.)(citing Diagnostic
and Statistical Manual of Mental Disorders IV-TR (“DSM-IV”),
at 34 (4th ed. 2000).
A GAF score of 50 “indicates a serious
impairment in social and occupational functioning.”
Escardille v. Barnhart, 2003 WL 21499999, at *2 (June 24, 2003)
(Giles, C.J.)(citing DSM-IV at 34).
However, “a GAF score is a subjective scale that only
reflects an individual functioning at a particular moment in
time.”
Porter v. Astrue, 2008 WL 4707541, at *4 (M.D.Pa.
Oct. 23, 2008).
See also Burley v. Barnhart, 2005 WL 2212363,
at *1 (E.D.Pa. Sept. 9, 2005)(Sanchez, J.).
Thus, plaintiff’s
GAF score at a particular time, while reflecting her individual
functioning at that time, does not reflect her functioning at
another time.
Therefore, I conclude that although plaintiff’s GAF
score on September 23, 2008 was 50 as reported by Dr. Walters on
that date,54 that score is not indicative of her functioning on
other dates during the relevant time period.
54
LINABAIR 0314.
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Dr. Walters’
September 23, 2008 report also states that plaintiff’s highest
GAF score in the past year was 52.
However, the record does not indicate plaintiff’s GAF
score on July 21, 2008, when she reported to Karen Boyer that she
was ready to return to work, or on August 19, 2008, when she
reported that she was ready to return to the day shift.
Accordingly, I conclude that plaintiff’s GAF score in September
2008 does not establish that she was unable to return to work in
July or August 2008.
Moreover, to the extent plaintiff suggests that her GAF
score on a given day is nevertheless indicative of her ability to
work on other days, plaintiff’s contention that her GAF score of
50 in September 2008 indicates that she was entirely “incapable
of working”55 is belied by Dr. Walters’ September 15, 2008 letter
indicating that it was both appropriate and acceptable for
plaintiff to work eight-hour days from 5:30 p.m. to 2:00 a.m.
Finally, Dr. Walters and Dr. Shipko were in agreement
that plaintiff was able to return to work as of approximately
July 21, 2008.56
Although Dr. Walters recommended a modified
work schedule, in part so that plaintiff could work with
different coworkers, he did not identify the specific “triggers”
which the modifications sought to avoid, and, as discussed above,
55
Plaintiff’s Brief in Support of Proposed Findings of Fact and
Conclusions of Law (Document 84), page 22.
56
LINABAIR 0191.
-44-
he did not characterize the proposed modifications as
necessary.57
I conclude, therefore, that plaintiff has not
established that she was continuously disabled during the Benefit
Waiting Period, that is, from May 15, 2008 through November 11,
2008.
It is clear from the record of this matter, including
plaintiff’s trial testimony, that plaintiff has suffered serious
illness for much of her life, including during the relevant
period.
However, she has not established that she was unable to
perform the material duties of her own job throughout the
entirety of the Benefit Waiting Period.
Accordingly, I grant defendant’s motion for judgment on
partial findings pursuant to Rule 52(c) of the Federal Rules of
Civil Procedure, and I enter judgment in defendant’s favor and
against plaintiff.
57
The evidence at trial includes an April 18, 2011 letter from Dr.
Walters to plaintiff’s counsel. It states, in relevant part, that
“[plaintiff’s] illness limits her capacity to function. It was her illness
which led to her inability to work and prompted the subsequent request for
special accommodations.”
As discussed above, because the standard of review applicable to
this case is de novo, I am permitted to consider evidence beyond the
Administrative Record. Luby, 944 F.2d at 1184. Therefore, I have considered
Dr. Walters’ April 18, 2011 letter. However, I conclude that, in light of the
other evidence in the record, the letter does not establish that plaintiff was
continuously disabled during the Benefit Waiting Period.
It is clear from the record that plaintiff’s illness has limited
her capacity to function, as Dr. Walters’ letter states. However, although
his letter generally states that plaintiff was unable to work, it does not
demonstrate that throughout the entire Benefit Waiting Period, she was
continuously unable to perform the material duties of her job. Therefore, the
April 18, 2011 letter does not refute my conclusion that there were times
during the Benefit Waiting Period when plaintiff was ready and able to return
to work.
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CONCLUSION
For all the foregoing reasons, I overrule defendant’s
Statement of Objection to the Admissibility of Any Evidence
Beyond the Administrative Record of Defendant Life Insurance
Company of North America. I grant defendant’s motion for judgment
on partial findings, and I enter judgment in favor of defendant
Life Insurance Company of North America and against plaintiff
Melinda Bair.
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