Opinion
Case No. 3:00CV7652
September 24, 2001
Daniel R. Michel, Joseph W. O'Neil, Arthur, O'Neil, Mertz Bates Defiance, OH, For Plaintiff.
Danielle Konrad Pitcock, Cleary Associates, Cleveland, OH, Timothy R. Cleary, Cleary Associates, Cleveland, OH, For Defendant.
ORDER
This is an ERISA case in which the plaintiff seeks continuation of long-term disability coverage, to which the defendant concluded that she was not entitled after paying her benefits for a period of less than one month. Pending are cross-motions for summary judgment.
For the reasons that follow, the defendant's motion for summary judgment shall be granted, and the plaintiff's motion for summary judgment shall be denied.
Background
Plaintiff worked for Frozen Specialties, Inc. as an accounting assistant, responsible for "preparation, payment, and file maintenance for accounts payable invoices, daily input of production usage information, and providing daily information to support the company's cash and working capital requirements." (RSL 88).
Plaintiff had surgery in July, 1999, to repair a rotator cuff tear in her right shoulder. Following a ninety day "elimination" period (i.e., period before benefits would be payable), plaintiff received — simultaneously — a notice that she was entitled to benefits for the period October 6, 1999, to November 1, 1999, a computation of her benefits, a check, and notice that she would not be receiving further benefits. This suit ensued..
Defendant claims that plaintiff's complaint must be dismissed for failure to exhaust her administrative remedies under the policy. Plaintiff asserts that a demand for such review was sent by express delivery, and submits exhibits supporting that contention.
Plaintiff has satisfied her burden of showing that she undertook to obtain administrative review, as defendant does not suggest that her proof is false or her request for review was misaddressed. Instead, it simply states that it has no record of having received the request. Plaintiff has shown that she did all that was required of her, and cannot be faulted — or have judgment entered against her — because something happened to cause defendant to have no record of the appeal. I also note that defendant has not argued that it was prejudiced by having not conducted its administrative review.
The medical record on which the defendant limited plaintiff's entitlement to benefits contains a description of her July 8, 1999, surgery (RSL 119-20), subsequent progress notes from her attending physician, Dr. Saddemi, and notes of her physical therapy.
On July 21, 1999, Dr. Saddemi reported that plaintiff was "doing well," and that "[s]he has an appropriate range of motion at this point." (RSL 118). On September 1, 1999, Dr. Saddemi reported:
She has excellent passive motion, passive forward flexion of about 165 degrees, passive external rotation of about 60 degrees, active external rotation of 45 degrees and active elevation of about 45 degrees . . . .
She is doing much better than prior to surgery. She states her pain is much less. She will continue with her exercise program. We have refilled her prescriptions for Ultram and Darvocet.
(RSL 117)
Due to a lack of insurance coverage, plaintiff was unable to continue with physical therapy after October 29, 1999. By then, her chief functional problems, according to her physical therapist, were lock of right shoulder strength and "mild right shoulder pain." (RSL 104). The therapist's concluding treatment note states that goals were not met "due to irreparable cuff tear." (RSL 105).
On a "release slip" dated November 1, 1999, Dr. Saddemi stated that plaintiff's restrictions were "No repetitive use of right arm, no work above waist level, no lifting [greater than] 10 lbs." (RSL 98). His progress notes of the same date stated:
She has been improving slowing [sic]. . . . Her pain is gradually improving. She states that she does occasionally use Davrocet. She is able to get her hand to her mouth., but does not have much strength so if she is lifting a glass or other objects she usually uses her other arm for assistance and generally props her arm up on something to do her hair . . . .
Examination right shoulder; active forward flexion-45 degrees, passive forwad flexion-165 degrees, active external rotation-45 degrees. active internal rotation-L1, she has weak rotator cuff muscles, . . . she is not able to actively hold her hand in forward flexion against gravity, but if gravity is eliminated she is able to hold her arm up and push against weight resistance. . . . She was given restrictions for work with no repetitive use of the right arm, no work above waist level and no lifting greater than 20 pounds. She may gradually increase all activities as tolerated . . . .
(RSL 97).
In a telephone conversation on November 12, 1999, with a claims representative, Dr. Saddemi stated that the plaintiff could return to work with no repetitive use of her right arm, no work above waist level and no lifting above twenty pounds. (RSL 42). In a form filled out on October 7, 1999, by Dr. Saddemi, he also stated, however, that he estimated plaintiff's return to work date as July 1, 2000. That report also indicated that plaintiff could not use her right upper extremity to so either simple grasping, pushing/pulling, or fine manipulation. (RSL 123).
Plaintiff's employer terminated her employment in November, 1999, due to her absence from work for six months.
Defendant's review of plaintiff's claim included the foregoing treatment and progress reports, its own internal assessments, and application of the Dictionary of Titles (DOT) occupational description for the position of accounting clerk. That position, according to the DOT, requires frequently reaching, handling, and fingering, with finger dexterity in the 34-66% range and manual dexterity in the 10-33% range. (RSL 86, 87).
The defendant's review also included application of the Medical Disability Advisor, a reference work, which indicates that the expected duration of a hemiarthroplasty (the type of surgical repair of a rotator cuff tear used in plaintiff's case) was three months. (RSL 31).
On the basis of the record and the DOT and Medical Disability Advisor, the defendant limited plaintiff's period of disability to November 1, 1999.
Discussion
The defendant's policy expressly gives the defendant "discretionary authority to interpret the Plan and the insurance policy and to determine eligibility for benefits." (RSL 11). Consequently, this court's review of the determination to deny benefits is limited. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57 (1989) ("a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan."). Where the "plan administrator has discretionary authority to determine benefits, . . . review [of] a decision to deny benefits [is] under `the highly deferential arbitrary and capricious standard of review.'" Sanford v. Harvard Industries, Inc., ___ F.3d ___, ___ (6th Cir. 2001) (citing Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996).
Under the policy, the plaintiff is entitled to benefits when she is "cannot perform the material duties of his/her regular occupation." (RSL 7). Defendant has interpreted this language to mean that benefits are to be paid on the basis of an inability to perform the general duties of a person in the same occupation, rather than just the specific duties of the plaintiff's job.
In Hanser v. Ralston Purina Co., 821 F. Supp. 473, 478 (E.D.Mich. 1993), the plaintiff contended, as does the plaintiff in this case, that "regular occupation" language in the policy means that she is entitled to benefits if she cannot perform the specific duties of her job. The court rejected that contention, stating:
Plaintiff argues that "regular occupation" should be defined as an employee's specific job within the company. While the court cannot say that this interpretation of the terms "regular occupation" is wrong, it is still simply one interpretation. The question to which the court must address itself is whether the defendant's interpretation of the term is irrational, that is, arbitrary or capricious, or made in bad faith. The court finds that defendant's interpretation of the terms "regular occupation" as meaning the type of work which a covered employee is trained to perform rather than the specific job at which the employee was working when he became ill, is a rational interpretation supported by the plain meaning of the words.
(citation omitted).
In view of its non-arbitrary determination that it could base its eligibility determination on the general requirements of plaintiff's occupation, rather than on the specific requirements of her actual job, defendant's recourse to the DOT was also not arbitrary or capricious. Nor was its categorization of plaintiff's job as that of an accounting assistant, as described in the DOT, arbitrary. On comparison of the duties as described by her employer with the description from the DOT applied by the defendant, I find nothing inappropriate, much less arbitrary, in its categorization of plaintiff's occupation.
Looking at that definition, which, as noted, requires frequent reaching, handling, and fingering, with finger dexterity in the 34-66% range and manual dexterity in the 10-33% range (RSL 86, 87), I conclude that the defendant's determination of non-eligibility was not arbitrary or capricious. Reading the record of Dr. Saddemi's evaluation of the plaintiff, it was not arbitrary to find that the plaintiff could perform these functions in view of her restrictions to no repetitive use of her right arm, work above waist level, lifting above twenty pounds, or use of right upper extremity for simple grasping, pushing/pulling, or fine manipulation. The defendant could also decline to credit, as it apparently it did, Dr. Saddemi's estimate of a return to work date of July 1, 2000, in view of the absence of any such estimate elsewhere in the record.
Conclusion
Review in this case not being de novo, in view of the discretion given under the policy to the defendant to interpret its terms and determine eligibility, I conclude that the defendant's determination must be affirmed. It is, therefore,
ORDERED THAT defendant's motion for summary judgment be, and the same hereby is granted; plaintiff's motion for summary judgment is denied.
So ordered.