Summary
In Conway, the Fourth Circuit affirmed the district court's finding that an insured plaintiff whose policy defined total disability as the inability "to perform the important duties of Your regular occupation" was not totally disabled.
Summary of this case from Berenguer v. Lincoln National Life Insurance CompanyOpinion
Civil No. 5:99CV150-T
December 5, 2002
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the parties' cross-motions for summary judgment. For the reasons stated herein, the Defendant's motion for summary judgment is granted and the Plaintiff's cross-motion is denied.
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment is appropriate if there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, the moving party has the initial burden to show a lack of evidence to support the opponent's case. Shaw, supra (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If this showing is made, the burden then shifts to the opponent who must convince the Court that a triable issue does exist. Id. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the [opponent]." Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
II. THE PARTIES' STIPULATED FACTS
The parties have stipulated to the following facts:
1. The Disability Insurance Policy described in the complaint and attached to the second amended complaint as the Paul Revere Life Insurance Company Disability Insurance Policy Number 01022349800 is and has been in full force and effect from May 13, 1996, through the date of this Order.
2. The premiums for the above-referenced insurance policy were all paid in a timely manner.
3. At no time since the policy's acceptance has there been a lapse in coverage.
4. Throughout the term of the policy, the Plaintiff complied with all conditions precedent to the filing of the claim which is the subject matter of this action.
5. With respect to the filing of the claim for disability insurance benefits, the Plaintiff complied with all conditions precedent to the filing of the claim.
6. From October 1990 until June 1998, the Defendant paid the Plaintiff disability benefits under the terms of the policy.
7. Among the Plaintiff's important duties of his regular occupation with his employer Mainway Corporation as of the date he was last employed was to drive commercial vehicles on the public highways.
8. The Defendant Paul Revere Life Insurance Company is a corporation organized and existing under and by virtue of the laws of the Commonwealth of Massachusetts with its home office in Worchester, Massachusetts.
9. The Defendant is duly authorized to engage in the insurance business in the State of North Carolina.
10. The claim file produced by the Defendant during discovery is genuine and authentic and constitutes the administrative record in the case.
Parties' Stipulation of Facts, filed October 30, 2002.
III. FINDINGS OF FACT
The parties do not disagree as to the facts of the case, only as to the law to be applied thereto. In his cross-motion for summary judgment, the Plaintiff incorporated the Defendant's statement of facts as contained in its brief. Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment or, in the Alternative, Response to Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment, filed November 14, 2002, at 2.
Beginning in 1984, the Plaintiff, along with two other individuals, owned a moving company known as Mainway Corporation. As a benefit of employment, the company established and maintained a disability benefits plan which was funded by an insurance policy originally issued by the Defendant in 1986. Among the provisions of the policy issued to the Plaintiff are the following:
1. 10 "Total Disability" means that because of Injury or Sickness:
a. You are unable to perform the important duties of Your regular occupation; and
b. You are not engaged in any other gainful occupation; and
c. You are under the regular and personal care of a Physician.
. . .
7.2 Written notice of claim must be given to Us within 30 days after a covered loss starts, or as soon as reasonably possible.
7.3 After We receive the written notice of claim, We will send You Our proof of loss forms within 15 days. . . .
7.4 Written proof of loss must be sent to Us within 90 days after the end of a period for which You are claiming benefits. If that is not reasonably possible, Your claim will not be affected. But, unless You are legally incapacitated, written proof must be given within one year.
We can also require reasonable proof from You of Your
a. Prior Earnings; and
b. Monthly Earnings for the month for which Disability is claimed.
This may include income tax returns, financial statements, accountant's statements or other proof acceptable to Us. . . .
7.5 At Our expense, We can have a Physician of Our choice examine You as often as reasonably required while Your claim is continuous.
. . .
TOTAL DISABILITY IN YOUR OCCUPATION BENEFIT RIDER. This rider deletes the definition titled "Total Disability" in its entirety and substitutes the following definition in the Policy to which it is added:
"Total Disability" means that because of Injury or Sickness:
1. You are unable to perform the important duties of Your regular occupation; and
2. You are under the regular and personal care of a Physician.
Exhibit 1, Disability Income Policy, attached to Second Amended Complaint, filed March 9, 2000. The insurance application attached to the policy shows that the Plaintiff's exact duties were management and executive duties of Mainway Corporation and that his occupation was that of chief executive officer and president. Id. The policy also contained a provision for residual disability:
1.11 "Residual Disability" means that because of Injury or Sickness:
a. (1) You are unable to perform one or more of the important duties of Your regular occupation; or
(2) You are unable to perform the important duties of Your regular occupation for more than 80% of the time normally required to perform them; and
b. You are engaged in Your regular occupation or another occupation and Your Monthly Earnings are reduced to 80% or less of Your Prior Earnings; and
c. You are under the regular and personal care of a Physician.
Id.
On May 21, 1990, Plaintiff filed a proof of claim with the Defendant after injuring himself during a fall at his home on March 7, 1990. Volume 1, Administrative Record, attached to Defendant's Motion for Summary Judgment, filed October 25, 2002, at PRL000044. He was not treated at a hospital but was seen by his physician, Dr. Robert L. Swiggett, Jr., on March 23, 1990, and diagnosed with patellofemoral left knee pain, plantar fasciitis, muscular back strain, and lateral epicondylitis of the right elbow. Id., at PRL000048. The physician found him totally disabled. Id. The Plaintiff noted on his proof of claim that since October 1989, he had spent more time actually moving furniture, driving the moving truck and coordinating moves than administrative duties. Id., at PRL000046. Under additional comments, it was disclosed that due to an economic downturn, the Plaintiff went back to manual labor "working in the warehouse, loading and unloading moving trucks, doing some driving and some truck repair work and general warehouse work. . . . His administrative [and] management duties were taken over by Tom Phillips, V.P. Exec. [and] Dick Germain, Treasurer, while John worked at manual labor." Id., at PRL000047. The Defendant approved the Plaintiff's claim for total disability benefits and paid him $3,100 per month until June 1998.
Pain of the knee cap and thigh. Dorland's Illustrated Medical Dictionary (28th ed. 1994).
Inflamation of the sole of the foot. Dorland's, supra.
Inflammation or tennis elbow. Dorland's, supra.
The Defendant suggested rehabilitation therapy throughout the years following the initial diagnosis and finally, apparently, insisted on it. Ultimately, the Defendant's agents began to speak with the Plaintiff about a lump sum settlement of his disability claim. In December 1997, the Defendant was notified by Plaintiff that he and his family had relocated to Mooresville, North Carolina. Id., at PRL000632. In March 1998, Plaintiff was examined by Dr. Robert L. Saltzman, an orthopedic surgeon, for an evaluation of his condition. Id., at PRL000660-662. Dr. Saltzman also reviewed the treatment notes of Plaintiff's physician in New Hampshire. Id. Dr. Saltzman found that "[h]e is capable of some work, but there will always be some restrictions, and he is a candidate for vocational rehabilitation." Id., at PRL000662. Dr. Saltzman noted that the finding of total disability was based on the treating physician's opinion, not his opinion. Id. Spurred by Dr. Saltzman's findings, the Defendant placed the Plaintiff under surveillance for a two day period in late April 1998. Among the findings of the private investigator were the following:
Those notes reveal that the Plaintiff had arthroscopic lateral release of his left knee on October 1, 1990. Id., at PRL000862. He saw his treating physician, Dr. Swiggett, once a month in February, March, April and May 1991 and then did not see him again until December 1991. Id., at PRL000615. He did not see Dr. Swiggett again until August 25, 1992, when he was treated for a new injury to the left ankle. Id. The next visit to Dr. Swiggett was in March 1993. Id. At the end of August 1993, Plaintiff was seen by Dr. Swiggett for pain to his left shoulder which the Plaintiff attributed to a different and earlier fall than that for which he was receiving disability benefits. Id., at PRL000614. In 1994, he saw Dr. Swiggett twice for his semi-annual check-ups, once in February and once in August. Id. In both 1995 and 1996, the Plaintiff saw Dr. Swiggett only twice. Id., at PRL000613. Plaintiff last saw Dr. Swiggett in January 1997 and he and his family moved to North Carolina in December 1997. Id.
The [Plaintiff] arrived at Lowe's Hardware in the Northcross Shopping Center in Huntersville, NC. . . . [T]he [Plaintiff] was outside the Lowe's store apparently viewing the utility carts and lawn mowers. The [Plaintiff] was observed standing, walking, lifting a piece of paper to his face to read, bending fully forward at the waist, utilizing his right hand to lift a cart off the ground, and squatting to the ground while bending at the waist. . . . The [Plaintiff] exited the aforementioned store using both of his hands to push a large flat-bed, hand-truck across the parking lot. On the flat-bed hand-truck were bundles of large wooden stakes, an unassembled utility cart, and some plastic shopping bags. . . . [T]he [Plaintiff] opened the tailgate of his truck, and then turned and bent forward at the waist in order to pull the hand truck to him. The [Plaintiff] then bent forward at the waist and used both hands to lift a bundle of stakes and place them in the bed of his vehicle. The [Plaintiff] then walked to the side of the truck and moved a playmate cooler with his right hand to the top of the workbox in the bed of the truck. The [Plaintiff] . . . bent forward at the waist and, utilizing both hands, placed two more bundles of stakes in the bed of the vehicle. After placing the plastic shopping bags in the cab of the truck, the [Plaintiff] lifted one end of the utility cart box and placed it on the edge of the tailgate. The [Plaintiff] moved to the other side of the utility cart box, bent fully forward at the waist, and lifted the cart into the bed of the truck.
Id., PRL000671-672. That afternoon, the Plaintiff was observed working to clear a wooded lot at the end of which was a gazebo at the water's edge. Id., PRL000673. From 1:00 p.m. until 7:00 p.m., when the surveillance stopped, the Plaintiff was observed using a chain saw to cut trees and logs, dragging the same to a large bonfire (which he also built), carrying wood to the bonfire, and "twisting his torso to break loose large branches and drag them across the grass to the bonfire." Id., at PRL000674. All of the activities were performed without any apparent pain, discomfort, limping or stiffness. Id. Two days later, the Plaintiff was seen again at the wooded lot carrying his chainsaw, using it, and speaking with other individuals who had come to the lot. Id., at PRL000681.
The Defendant sent the videotape of the surveillance to another orthopedic surgeon, Dr. John Bianchi, who concluded that the tape "does not support any impairment." Id., at PRL000690. Dr. Saltzman also reviewed the videotape and concluded that
[g]iven the videotape reviewed and witnessed with Maureen Billings [the insurance investigator] and his clinical appearance and assessment on 3/18/98 at my office, the recommendation is for a functional capacity evaluation of the upper and lower extremities and the lumbar spine to assess both his functional capacity and the reliability coefficient to assess any malingering.
Id., at PRL000698. The Defendant's investigator also spoke with the Plaintiff about the surveillance tape.
States he wasn't doing anything that was not outlined on [his functional capacity assessment]. Doesn't understand our actions.
. . .
John told me that he and his family had moved down to North Carolina and brought a trailor (sic) to live in while looking into buying or building a house. He told me he had taken a building systems course and had gone to trade shows for contractors. He was trying to get in shape although he stated he had some problems with his feet and hands. . . . John indicated he was looking into the possibility of getting into the contracting business as building was booming. He asked if I had seen the styrofoam concrete forms that were being used in building now. He indicated that he thought if he was not able to build with them, perhaps he could sell them. At the same time, he bought a lot, started to clear it with a chainsaw and was burning the wood he was clearing. . . . He stated moving furniture was much heavier than what he was doing and he paid for the three day "spike" in activity.
Id., at PRL000699-700. The Plaintiff also admitted that he had built a deck onto his home and that he was building a house at the vacant lot. Id., at PRL000700-711. Moreover, he had joined the Coast Guard Auxiliary which assists persons in distress on Lake Norman (which bounds the vacant lot on which he was building the house). Id., at PRL000713. On June 4, 1998, the Defendant notified the Plaintiff that he was no longer eligible for continuing total disability benefits and ceased making payments under the Plan.
On August 31, 1998, the Plaintiff filed a new claim for disability benefits adding hypertension as a disabling condition. Volume 2, Administrative Record, at PRL000875. Reports from his treating physician were submitted in support of the claim. By letter of June 19, 1998, Dr. Craig DuBois, a neurologist, noted that he had seen the Plaintiff on that date for neck pain. "His current problem . . . started mainly this past spring when he was working on a lot cutting some trees down and moving some logs. He was doing some relatively heavy work over about 2 months time. . . . All of [his symptoms] seem to be worse with activity and he has not been active now in the last three weeks and some seem a little bit better." Id., at PRL000907 (emphasis added). On August 25, 1998, Dr. DuBois treated the Plaintiff again, noting that "[h]e continues to deal with his disability insurance company and I did explain to him at this time I don't feel he could work in his previous capacity as a furniture mover given his neck problems, along with his carpal tunnel syndrome and other difficulties." Id., at PRL000906.
This treatment occurred after the Defendant had notified the Plaintiff that he had been seen on videotaped surveillance.
Plaintiff was also evaluated by Dr. William Bell, a neurological surgeon, who noted
This 45-year old, white male states his symptoms have been going on since approximately 1992. At that time he had fallen down some steps and injured his knee and shoulder. After the fall, he started noticing neck pain with foot and hand numbness. In August 1994, he had increasing neck pain, arm pain and hand numbness. . . . His current episode has been ongoing since the spring of 1998. He had been clearing a lot with a chain saw and noticed increasing neck pain. The neck pain has continued since that time with off and on back and leg pain.
. . .
IMPRESSION: 1. Neck pain secondary to spondylosis. [2]. Back pain secondary to lumbar strain and degenerative disc disease.
A general term for degenerative change due to osteoarthritis. Dorland's, supra.
Id., at PRL000899-900 (emphasis and footnote added). Dr. Bell noted that Plaintiff could not return to his original job as a mover and could not lift over 50 pounds except on an occasional basis. Id. He recommended physical therapy and vocational rehabilitation. Id. On November 3, 1998, Dr. Bell noted that the Plaintiff had improved with physical therapy. Id., at PRL000901. Another surveillance videotape was recorded on November 30, 1998. Id., at PRL000936. During the morning and afternoon of that day, the Plaintiff was seen at the lot on which he was building his home,
standing for extended periods of time, walking throughout the woods, ascending an incline, descending an incline, . . . kneeling on his hands and knees for approximately one minute, opening a truck workbox, closing a truck workbox, opening a truck tailgate, closing a truck tailgate, carrying a chainsaw, performing maintenance work on the . . . chainsaw, pull-starting the . . . chainsaw, and cutting pieces of wood. . . .
Id.
During the afternoon of December 2, 1998, the Plaintiff was videotaped at the building site again
performing various tasks on the property site . . . walking; jogging briefly, walking while carrying pipe material (approximately 10 foot in length) on either his shoulders or in his arms; placing the pipe material on the ground while bending forward; carrying multiple pipes; carrying a bag with his right hand; utilizing a handsaw in order to cut the pipe material[;] moving his arms in a vigorous motion while bending slightly forward; bending forward at the waist for extended period while lining the piping material on the ground and applying some unidentified substance to the pipe with an apparent brush; reaching to the ground; and conversing with various individuals.
Id., at PRL000940. Investigators for the Defendant obtained copies of building permits issued for the dwelling on January 15, 1999, which listed John Conway as the building contractor. Id., at PRL000954.
On January 4, 1999, the Defendant notified the Plaintiff that his latest claim for total disability benefits was denied. Id., at PRL000972. Plaintiff retained counsel and initiated this action. On July 18, 2000, Dr. DuBois noted that the Plaintiff "returns after having not been seen for two years. He stated he needed to come back to be reevaluated with his disability, as well as the fact that he has been having some increasing headaches recently." Id., at PRL001223. It was also noted that the Plaintiff was on no medications at the time; had stopped taking any blood pressure medication prescribed by Dr. Vorwald; and had not seen Dr. Vorwald for the past two years. Id.
The parties agreed to stay the lawsuit pending an independent medical examination pursuant to 29 C.F.R. § 2560.503-1. On August 28, 2000, Dr. Joseph Estwanik, an orthopedic surgeon, examined the Plaintiff and submitted his report after having also reviewed all of his medical records and the surveillance videotapes. Id., at PRL001213. Among the conclusions rendered by Dr. Estwanik was his opinion that the initial injuries on March 7, 1990, "were all temporary conditions and should positively and routinely respond to conservative treatment programs." Id.
On October 1, 1990 the patient did have arthroscopic surgery and lateral release. This was performed for a lateral riding patella. . . . It is my opinion that a subluxing patella is not a traumatic event and is unrelated to the patient's stated fall. I additionally make note that his weight-bearing surfaces were seen as normal at that time. . . .
Partially dislocated. Dorland's, supra.
. . .
Only on 08/11/95 did the patient complain of some neck pain and that this was a "new" problem at that time. . . . The neck pain was not documented as [having] any association with trauma.
. . .
Dr. Saltzman made the diagnosis of chondromalacia and mild medial compartment osteoarthritis despite the minimal former scope findings. He also diagnosed a lateral epicondylitis which, again, is a very fixable and temporary transient situation. . . . Dr. Bell diagnosed neck spondylosis which is neck osteoarthritis, [and] a lumbar sprain with degenerative disk disease.
The softening of articular cartilage in the patella. Dorland's, supra.
. . .
[Upon review of the surveillance videotapes], [Plaintiff] had spent an extended period of time at what I certainly would consider heavy manual labor. After review of the tapes it is certainly clear that the patient has no working functional restrictions or favoring of knees, back, hands or elbows.
. . .
Initially we evaluated the patient's knee. He was able to stand well and has good alignment. The patient was asked to squat, and despite my having visualized him easily squatting up and down in the video, for this exam he showed symptom magnification and inconsistencies by actually holding on to a counter to help himself down and to help himself up. He certainly did not need such accessories when working in the woods. I then had the patient lie in the supine position. When I had barely just touched his knee he jumped and said "hold it boy." I did not produce any significant pressure and had barely begun my exam on his knee. This confirms symptom magnification. . . . I next examined the patient's wrist. . . . The patient did have a mildly positive left tinel's sign. He shows evidence of very mild carpal tunnel. This, again, is generally not a resultant traumatic situation from one fall. I then examined the patient's right elbow. The patient had a normal exam. At this point he had no areas of point tenderness. He had excellent range of motion and he had excellent stability. Again, it would be unphysiologic for a 10-year episode of lateral epicondylitis precipitated by one fall.
"Tinel's sign" is a tingling sensation in the distal end of a limb when percussion is made. Dorland's, supra.
Abnormal. Dorland's, supra.
. . .
I feel that his functional capacity or work classification is that of "heavy," only limited by the cervical osteoarthritis that is unrelated to trauma. His only restriction would be against "very heavy" activities. The patient has, indeed, wasted ten years of active employment opportunities as he certainly is capable of sedentary, light, medium and heavy activities. I would simply restrict lifting greater than 100 lb. I feel that he did show some inconsistencies and symptom magnification by dwelling on multiple body parts. My diagnosis is cervical osteoarthritis based upon undeniable MRI evidence. He has no sign of lateral epicondylitis. He has mild carpal tunnel syndrome which, again, is a curable situation. He does exhibit by arthroscopy, mild chondromalacia secondary to a lateral subluxation of the patella. This is a non-traumatic and non-work related situation. . . . The patient should avoid activities that require excessive range of motion or use of the neck. He may eventually require cervical spine surgery but, again, this is unrelated to the traumatic event. . . . The patient is and has been employable for the vast majority of the past ten years. The review of the surveillance tapes demonstrate a gentleman who is, and has been, quite active in construction "heavy work" activities.
Id., at PRL001213-1218 (footnotes added).
Dr. John Bianchi was asked to review the independent medical evaluation. He concluded that the Plaintiff is not limited to lifting over 100 pounds because the diagnosis of cervical arthritis is not clinically supported; spondylosis is not an unusual finding in the Plaintiff's age group and is not impairing in the absence of other abnormalities. Moreover, the activities in which the Plaintiff engaged on the videotapes could not be performed by someone with those symptoms. Id., at PRL001226-1227.
The Defendant's final conclusion was submitted to the Plaintiff in September 2000. While denying him total disability benefits, it was noted that should the Plaintiff return to some type of work, he could make a claim for residual disability benefits.
IV. STANDARD OF REVIEW APPLIED TO ERISA PLAN DETERMINATIONS
The Defendant argues that this Court should apply an abuse of discretion standard of review to the Plan's determination to deny total disability benefits. Plaintiff claims a de novo standard applies.
It is well-established that a court reviewing the denial of disability benefits under ERISA initially must decide whether a benefit plan's language grants the administrator or fiduciary discretion to determine the claimant's eligibility for benefits, and if so, whether the administrator acted within the scope of that discretion. No specific phrases or terms are required in a plan to preclude a de novo standard of review. The plan's intention to confer discretion on the plan administrator or fiduciary, however, must be clear. If a plan does not clearly grant discretion, the standard of review is de novo. Any ambiguity in an ERISA plan "is construed against the drafter of the plan, and it is construed in accordance with the reasonable expectations of the insured." Of course, because de novo review is more rigorous, if a reviewing court upholds a benefits decision under a de novo review, it also would uphold it under a deferential standard.
Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 268-69 (4th Cir. 2002) (quoting Bynum v. CIGNA Healthcare, Inc., 287 F.3d 305, 313-14 (4th Cir. 2002)) (other internal citations and footnotes omitted).
The language at issue here is contained in Section 7.4 and the supplemental rider of the plan: "Written proof of loss must be sent to Us. . . . We can also require reasonable proof from You of Your: a. Prior Earnings; and b. Monthly Earnings for the month for which Disability is claimed. This may include income tax returns, financial statements, accountant's statements or other proof acceptable to Us." Exhibit 1, Disability Income Policy, supra (emphasis added). "Total Disability" means that because of Injury or Sickness: 1. You are unable to perform the important duties of Your regular occupation; and 2. You are under the regular and personal care of a Physician." Id. (emphasis added). The supplemental social insurance benefit rider provides that written proof that the claimant qualifies for the additional benefit "must be satisfactory to Us." Id. (emphasis added). There is no language in the plan which defines the italicized phrases.
The Fourth Circuit in Gallagher recently addressed similar plan language. In that case, the plan provided that a benefit would be paid if the insured "submits satisfactory proof of Total Disability to us." Gallagher, 305 F.3d 269 (emphasis added). The Circuit noted that this language was susceptible to two interpretations: the claimant must submit objectively satisfactory proof of disability; or the claimant must submit such proof subjectively satisfactory to the plan administrator. Id. The Fourth Circuit found this language did not clearly and unambiguously grant discretion to the plan administrator, quoting a Ninth Circuit case for the proposition that "[n]o matter how you slice it, requiring a claimant to submit `satisfactory proof' does not unambiguously confer discretion. . . ." Id. (quoting Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1204 (9th Cir. 2000)). Thus, under Gallagher, the language of the supplemental social insurance benefit rider does not provide discretion to the plan administrator.
The remaining language does not relate to a finding of disability but to a finding of the claimant's income. At no point in the plan language is there any mention of proof of disability which must be acceptable to the plan administrator. While the plan requires a written proof of loss, there is nothing which provides that a determination of total disability is solely in the discretion of the plan administrator. "There is nothing discretionary . . . about a requirement to submit a disability claim in writing." Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 523 (4th Cir. 2000). In fact, there is nothing in this plan which provides the administrator with "the power to construe uncertain terms" or which declares that its "eligibility determinations are to be given deference." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). The proper standard of review is therefore de novo, i.e., "consideration of an issue as if it had not been decided previously." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992).
V. DISCUSSION
At issue, then, is whether the plan administrator's determination that the Plaintiff in 1998 was not totally disabled, using the de novo standard of review, was wrongly decided. In order to prevail, the Plaintiff must have been unable to perform the important duties of his regular occupation because of injury or sickness and must have been under the regular and personal care of a physician. "`[T]he applicable definition of `regular occupation' shall be a position of the same general character as the insured's previous job, requiring similar skills and training, and involving comparable duties.'" Gallagher, 305 F.3d at 271 (quoting Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 252 (2nd Cir. 1999)). When the policy language reads as that at hand, i.e., total disability due to the inability to perform the important duties of regular occupation, the claimant must show his disability "prevented him from performing all of those duties, not just some of them." McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 588 (8th Cir. 2002). Otherwise, the existence of the residual disability portion of the policy would have no meaning. Id.
Although the Defendant's brief contained an argument against the consideration of evidence outside the administrative record, the Plaintiff's brief did not request such consideration. The undersigned has therefore limited review to that before the plan.
It is evident that a person who can perform some but not all of his or her important duties has a "Residual Disability" within the meaning of the policy, and
that therefore in order to be eligible for total disability payments a person would be required to show that he or she was unable to perform any of those important duties. . . . [I]t is not otherwise possible to give effect to both parts of the contract.
Id.; accord, Russell v. Paul Revere Life Ins. Co., 288 F.3d 78, 82 (3rd Cir. 2002); Bond v. Cerner Corp., 309 F.3d 1064, 1068 (8th Cir. 2002) (Plaintiff "asks us to construe the plan in such a manner as to find [him] qualified for total disability benefits versus partial disability benefits depending upon whether [he] is working, as opposed to [his] level of disability."). The Dictionary of Occupational Terms defines the occupation of driver of a moving van and furniture mover as involving very heavy work, i.e., strength to move or lift over 100 pounds occasionally; over 50 pounds frequently and over 20 pounds constantly. Administrative Record, at PRL001228. Plaintiff argues that because every doctor who treated him concluded he could not lift more than 100 pounds, he is totally disabled. "[I]f a furniture mover becomes unable to move furniture weighing more than one hundred pounds, he will be entitled to receive total disability benefits. All other duties of a furniture mover, e.g., hearing and following instructions, reading directions, etc., are secondary to the important duty of moving furniture." Plaintiff's Motion, at 11. Assuming arguendo that the Plaintiff's regular occupation was that of furniture mover/truck driver as opposed to a managerial position, his argument belies the existence of the residual disability section of the plan. McOsker, supra ("in order to be eligible for total disability payments a person would be required to show that he or she was unable to perform any of those important duties.").
Taken as a whole, . . . [the] provisions [of the policy] disclose an expectation that the insured will continue to work in some capacity in his occupation unless the insured cannot perform any of the important duties of his job. . . . Although [Plaintiff] seems to acknowledge that he can perform some of the important duties of his occupation, he contends that if he is unable to perform one of those duties, he is totally disabled and entitled to benefits accordingly. However, the polic[y] provide[s] for full benefits upon total disability. As for benefits on partial disability, they are not payable unless the insured is working. [Plaintiff] . . . was not working. [Plaintiff] had not provided any basis for the payment of full benefits in the face of evidence that he is able to perform some of the important duties of his occupation but elected not to work at all and spend his time in non-occupational tasks.
Russell, supra; accord, Provident Life Accident Ins. Co. v. Cohen, 193 F. Supp.2d 845, 850 (D.Md. 2002).
Additionally, Plaintiff's medical records do not show that he was under the regular care of a physician for the disabling condition alleged. Proctor v. UNUM Life Ins. Co. of America, 28 Fed.Appx. 600 (8th Cir. 2002) (The claimant must be under the regular care of a physician for the allegedly disabling condition). After the arthroscopic lateral release of his left knee in October 1990, Plaintiff was seen by his treating physician, Dr. Swiggett, once a month in February, March, April and May of 1991 and then did not see him again until December 1991. Nine months later, he saw Dr. Swiggett for a new injury. His next visit to Dr. Swiggett was in March 1993; and in August 1993, Plaintiff was seen for pain to his left shoulder which he attributed to a different and earlier fall than that for which he was receiving disability benefits. In 1994, he saw Dr. Swiggett twice for his semi-annual check-ups, once in February and once in August. In both 1995 and 1996, the Plaintiff saw Dr. Swiggett only twice. Plaintiff last saw Dr. Swiggett in January 1997 and he and his family moved to North Carolina in December 1997. Plaintiff received no treatment until June 1998 at which time he was complaining of neck pain, not the disabling back, leg and elbow pain earlier attributed to the March 1990 fall. And, Dr. DuBois noted that the neck pain came after two months of heavy work. In July 2000, Dr. DuBois noted that he had not seen the Plaintiff for the past two years; however, he now presented with headaches while his new disability claim was pending. At that time, Plaintiff told the physician that he had stopped taking blood pressure medication, was not on any medications and had not seen Dr. Vorwald, who had prescribed the same, for two years. The undersigned is compelled to conclude that not only was the Plaintiff not under the regular care of a physician for the allegedly disabling conditions but also that he was not under a total disability.
This conclusion is further supported by the Plaintiff's admissions of his activity level as well as the surveillance videotape. Plaintiff had the ability to build a deck onto his home and to participate in the Coast Guard Auxiliary. In the spring of 1998, he had performed two months of heavy work continuously on his vacant lot preparing it for the building of his home. He could pull, drag, lift, carry, throw, twist, turn, crawl, bend, jump, jog, walk, sidestep, navigate steep and unlevel slopes while carrying heavy objects, use a chain saw on uneven ground, build and maintain a bonfire, lay drainage and other pipe, and drive a large truck loaded with building materials. All of this work was performed without any hint of discomfort or limitation and the medical records do not show that this work led to treatment for the allegedly disabling conditions. Moreover, it is inconceivable that someone with the injuries alleged by the Plaintiff would have gone without medication throughout such a significant period of time. See, e.g., Crossman v. Media General, Inc., 9 Fed.Appx. 147 (4th Cir. 2001); Dwyer v. Metropolitan Life Ins. Co., 4 Fed.Appx. 133 (4th Cir. 2001).
It is telling that surveillance efforts as early as June 1991 showed the Plaintiff as walking with no limp or discomfort and admitting to a private investigator that, at that time, he had a commercial license for lobstering in New Hampshire. Volume 1, Administrative Record, at PRL000188-189. In 1994, he still held a Class A commercial driver's license to operate double and triple trailers and tankers, buses and hazardous material carriers. Id., at PRL000409. This license required a yearly physical examination. Id., at PRL000410. He was also able to mow his lawn. Id., at PRL000425.
VI. ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff's motion to strike Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment are hereby DENIED; and
IT IS FURTHER ORDERED that the Defendant's motion for summary judgment is hereby GRANTED.
A Judgment dismissing this matter in its entirety is filed herewith.
JUDGMENT
For the reasons set forth in the Memorandum and Order filed herewith, IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Plaintiff's motion for summary judgment is DENIED, the Defendant's motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.