Opinion
CIVIL ACTION NO. 01-5899.
July 9, 2003
MEMORANDUM AND ORDER
Plaintiff Marlene Talasnik has been denied long-term disability benefits by the defendant Mellon Bank Long Term Disability Plan, and has brought this ERISA action for restoration of benefits. The defendant has filed a motion for summary judgment.
Plaintiff is a law school graduate who began her career in banking, rather than in practicing law. She is represented in this action by her former husband, Allen Feingold, Esquire.
Plaintiff was employed as an accounts manager in the Trust Department of Mellon Bank until May 9, 1996, when she became unable to cope with the increased pressures of a new job assignment, and developed colitis and other ailments. Shortly thereafter, she sustained a fall when she tripped over her shoelaces, bumped into a brick wall and fell to the sidewalk.
Under the terms of the Disability Plan, plaintiff was entitled to disability benefits for a maximum of two years, if she was unable to perform each and every function of her previous job, but her benefits would terminate at the end of two years unless she was then totally disabled — i.e., unable to perform any gainful employment for which she qualified or could qualify.
Plaintiff applied for, and was granted, benefits commencing as of May 9, 1996. As the end of the two-year eligibility period approached, the Plan administrator notified plaintiff that her benefits would terminate unless she was, indeed, totally disabled from all gainful employment. Plaintiff was asked to fill out and return a questionnaire providing information about her then employability. On the advice of her counsel, plaintiff initially declined to return the questionnaire, since it was not, in her view, specifically required by the terms of the Plan. Eventually, however, plaintiff did return the questionnaire. Defendant then requested plaintiff to submit medical information, and sent plaintiff forms of authorization for the release of medical records. This generated a flurry of correspondence between Mr. Feingold and the defendant's administrator, addressing such matters as whether the Plan itself required such authorizations to be executed, whether the authorizations sought by the defendant involved matters unrelated to plaintiff's disability claim, etc. Eventually, Mr. Feingold insisted upon drafting the medical authorizations himself, so that they would not authorize disclosure of information he believed irrelevant.
Eventually, Mr. Feingold submitted authorizations signed by the plaintiff to permit the disclosure of the medical records of three named medical professionals. The defendant sent these authorizations to the named physicians, requesting their records pertaining to plaintiff, but none of the three physicians responded. A physician who was not on Mr. Feingold's list did, however, submit medical records and information to the defendant, but the information supplied did not express a definitive view as to whether plaintiff was or was not disabled.
Concluding that the information at hand did not suffice to permit a firm decision as to whether plaintiff was or was not disabled, the defendant determined to obtain an independent medical evaluation. Because of the delays which had already occurred, and which would be necessary in order to arrange for the evaluation sought, defendant authorized the continuation of disability benefits for a further period beyond the two years, pending a final decision after completion of the IME.
Mr. Feingold at first protested that plaintiff could not be required to submit to a further examination, since the Plan did not expressly so provide. Actually, however, Section 2.5 of the Plan provides as follows:
"Cessation of Eligibility for Benefits. A Participant who has been receiving benefits hereunder shall no longer be eligible for benefits on the date the Participant: . . .
"(b) fails to submit to a medical examination requested by a Plan Manager for purposes of establishing whether he continues to be Totally Disabled (unless later waived by such Plan Manager); . . ."
The defendant sought to have plaintiff submit to three evaluations, one by a medical doctor, one by a physiotherapist, and one by a neuropsychologist. Mr. Feingold protested that plaintiff should only be required to undergo one medical exam, not three, and that the examination should take place in Center City Philadelphia, rather than at the location proposed by defendant. Moreover, Mr. Feingold emphatically asserted that the independent medical examination would be a farce, and was being requested merely in order to provide a colorable basis for a denial of benefits. Mr. Feingold expressed the view that the proposed examiners were not independent at all, but would be expected to do defendant's bidding.
Eventually, Mr. Feingold acquiesced in having plaintiff examined by the physician chosen by the defendant (a Dr. Lerman), but insisted that the defendant pay the cost of transporting plaintiff and Mr. Feingold from her home to the examination. Mr. Feingold refused to have plaintiff examined by the physiotherapist (since he was not a doctor), or by the neuropsychologist. The defendant agreed to have only Dr. Lerman examine the plaintiff initially, and stated that, if Dr. Lerman found plaintiff to be disabled, no further examinations would be required.
Dr. Lerman did conduct a thorough examination of plaintiff, but reported to the defendant that, in his opinion (1) from a musculoskeletal standpoint, plaintiff was not disabled; (2) the subjective symptoms she reported were inconsistent, seemingly exaggerated, and perhaps the product of psycho-social problems; and (3) that plaintiff should be examined by a neuropsychologist.
Defendant sent Mr. Feingold a copy of Dr. Lerman's report, and requested that Mr. Feingold suggest five possible dates which would be convenient for the proposed neuropsychological evaluation. Mr. Feingold flatly refused, stating, in a letter dated December 31, 1999:
"I have no further time to waste on you, the bank, or your plan and suit will be filed shortly so we can get everything moving in the right direction. It is a shame, what our government has allowed to happen to workers' rights and to their health and disability plans, but the pendulum swings both ways and eventually, the games that you are playing and that your plan allows you to play will be ended."
This lawsuit followed.
As noted above, defendant has filed a motion for summary judgment, accompanied by documents which reflect the events described above, and which include all of the evidence upon which its decision to deny benefits was based. Plaintiff has responded by submitting an affidavit of the plaintiff stating, in pertinent part:
"(3) At no time since I became disabled and started receiving the short term disability benefits to this day, have I been able to return to work, any work, on a full time or part time basis and am totally and permanently disabled from obtaining or keeping any job that I have ability, knowledge, training or experience to perform.
"(4) My disability is so severe that to read the report provided by Dr. Lerman would be to read about some other person, certainly not me and my disabilities and problems.
"(5) It is evident that the defendant constructed a plan or procedure to terminate as many individuals and past employees as possible from their disability roles [sic], for the sole purpose of saving substantial monies and close substantial files.
"(6) There was really no medical reason or basis for the defendant to terminate my disability benefits, but a preconceived, intentional, wanton, willful and reckless plan to obtain support for their position from medical providers, alleged experts and/or others who they knew would support their position of termination, long before a medical exam or review of records and that was the sole purpose why they were hired.
"(7) Defendant's actions and decisions were arbitrary and capricous [sic]."
This affidavit was accompanied by a large group of documents which purport to be all of plaintiff's medical records from 1993 to date (not in chronological order). It is plaintiff's position that these documents clearly establish that plaintiff has been totally disabled since she left her employment in 1996, and that no reasonable person could reach a contrary conclusion. Plaintiff seems to overlook the fact that this Court is limited to considering the evidence which was before the Plan administrator at the time the decision to deny benefits was made; and that the issue is whether plaintiff was totally disabled at that time, not whether she was disabled earlier, or may be disabled at the present time.
I have nevertheless carefully reviewed all of the materials submitted by plaintiff. Over the years, she has undoubtedly consulted many health professionals, for a wide variety of problems and symptoms. She has several times been diagnosed as having fibromyalgia, has at times suffered from sleep apnea, depression and anxiety. Virtually all of her treating and diagnosing physicians seem to agree that plaintiff has difficulties of a psychogenic nature. The only psychiatric treatment she has received has been rendered by a social worker, whom plaintiff has consulted once or twice a month for years. It was recommended that plaintiff's pain from fibromyalgia might be relieved by various medications, and that she would benefit from hydrotherapy. Plaintiff has objected to the side-effects of proposed medication, and declined hydrotherapy because she does not like to swim.
Strangely, among all of these voluminous medical records there are very few if any expressions of professional opinion to the effect that she is disabled from employment of all kinds. Only the psychiatric social worker expressed that view, and even her opinion was simply that plaintiff's prognosis for return to work was "guarded" (in 1997).
To summarize, even if all of plaintiff's medical records had been supplied to the defendant, as they should have been, the denial of benefits would not necessarily have been an abuse of discretion or otherwise subject to challenge, given the broad authority of the Plan administrator. See Firestone Tire Rubber Co. v. Bruch, 498 U.S. 101, 109 S.Ct. (1989); Luby v. Teamsters Health, Welfare Pension Trust Funds, 944 F.2d 1176 (3d Cir. 1991).
Focusing only upon the evidence which was before the Plan administrator at the time the decision was made, the most that can be said is that that evidence showed that plaintiff had been having problems, and might indeed be disabled; but there was no expression of any professional opinion that, on a current basis, plaintiff was unable to perform gainful employment.
Of even greater importance, however, is that the defendant had an independent basis for denying benefits, namely, plaintiff's refusal to submit to requested medical examinations. Whether analyzed under an arbitrary and capricious standard, a heightened arbitrary and capricious standard, or de novo, the undisputed facts clearly show that plaintiff lost her eligibility for benefits under the Plan when, through counsel, she refused to submit to neuropsychological examination in December 1999.
For the foregoing reasons, defendant's motion for summary judgment will be granted.
An Order follows.
ORDER
AND NOW, this day of July 2003, upon consideration of defendant's motion for summary judgment, and plaintiff's response, IT IS ORDERED:
1. Defendant's Motion for Summary Judgment is GRANTED.
2. Judgment is entered in favor of the defendant and against the plaintiff.
3. This action is DISMISSED with prejudice.