Benjamin Dizoglio v . Digital Equip. CV-98-402-B 07/23/99
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Benjamin Dizoglio v. Civil N o . 98-402-B
The Digital Equipment Corporation Disability Income Protection Plan
MEMORANDUM AND ORDER
Benjamin Dizoglio brings an action pursuant to 29 U.S.C. §
1132(a)(1)(B) to recover benefits allegedly due to him under the
terms of the Digital Equipment Corporation Disability Income
Protection Plan (the “Plan”). The Plan has moved for summary
judgment pursuant to Fed. R. Civ. P. 56(b), claiming that its
denial of Dizoglio’s claim was not arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with the law.
Dizoglio objects to the Plan’s motion and instead argues that I
should grant summary judgment in his favor. For the reasons set
forth below, I deny defendant’s motion for summary judgment,
partially grant plaintiff’s motion for summary judgment, and
remand the case to the Plan Administrator for further proceedings
consistent with the terms of this order. I. FACTS
Dizoglio joined Digital as a stockkeeper at its Nashua, New
Hampshire, facility in April 1986. In December 1991, he was
promoted to Senior Logistics Associate. Dizoglio’s two positions with Digital were very similar, requiring him to operate a
forklift, to lift, carry, and move stock weighing up to 100
pounds, and to spend approximately two hours each day running
reports at a computer terminal. See Pl.’s Am. Compl. at ¶ 7 .
In June 1992, Dizoglio struck the right frontal region of
his head against an overhanging cabinet in his home, suffering a
laceration and numbness on the right side of his face, dizziness,
and a loss of balance. See id. at ¶ 8 . Dizoglio attempted to
continue working, but over the course of the following year, he
began to experience progressive abnormalities, including
persistent numbness in his extremities and the left side of his
abdomen, double vision, fatigue, memory impairment, difficulty
thinking, and continued dizziness and loss of balance. See id.
at ¶ 9.
A. Dizoglio’s Medical History
Dizoglio began to seek treatment for his ailments shortly
after the incident. A cranial CT scan taken on July 1 6 , 1992,
-2- was normal, see Aff. of Kiernan, § G, p . 8 . A neurological
examination by D r . Daniel Botsford also found no abnormalities.
In light of these findings, D r . Botsford recommended no further
testing. See id. at 9-10. Nevertheless, Dizoglio visited D r .
Botsford five more times, on August 1 8 , September 2 9 , October 1 3 ,
October 2 8 , and December 9, 1992, repeatedly presenting with
numbness in his chest and difficulties with coordination. Dr.
Botsford’s reports from those visits, examinations, and follow-up
testing show that he was unable to identify the cause of
Dizoglio’s symptoms. See id. at 12-26. On December 9, 1992, D r .
Botsford noted that Dizoglio was moving “full speed ahead at
work,” that this “is not an unreasonable ultimate disposition in
the absence of a diagnosis,” and that “it probably makes most
sense to support him in his return to work and refrain from
rocking the boat.” Id. at 2 4 .
In August 1993, Dizoglio’s personal physician, D r . Mark
Timmerman again referred Dizoglio to D r . Botsford for dizziness,
numbness, and an inability to concentrate. D r . Botsford
recommended psychometric testing, thyroid function testing, a
Prozac level test, a sleep study, and a repeat MRI if no
diagnosis was produced by the aforementioned tests. See id. at
42. D r . W . David Brown conducted the sleep study in August 1993,
-3- finding significant sleep apnea and a “poor” sleep efficiency of
76 percent. D r . Brown recommended that Dizoglio use a CPAP mask
while sleeping and reduce or discontinue using Prozac. See id.
at 48-52.
In September 1993, D r . Joan Scanlon completed a
neuropsychological examination of Dizoglio, finding mild to
moderate impaired ability to discriminate between relevant and
irrelevant detail, below average visual sequencing, difficulty
with visual spacial skills, particularly on the left side, and
some impairment of bilateral memory. All other tests, including
tests of attention, language ability, and normal memory were
unremarkable. D r . Scanlon noted that Dizoglio demonstrated definite tendencies to exhibit somatic complaints without sufficient organic basis. Individuals with his profile may present with headaches, fatigue, weakness, pain, and a variety of musculoskeletal complaints, as well as more atypical presentations such as amnesia, blurred vision, dizziness, and other symptoms symbolizing an inability to face his present world. . . . presently, a clear differentiation of functional versus organic contributions to his difficulties is an essentially impossible task. However, he is prone to accept the patient role quite readily, as it alleviates him of responsibilities which have become increasingly burdensome to him.
Id. at 6 2 . D r . Scanlon recommended counseling, stress
management, and treatment with antidepressants. See id. at 62-
64.
-4- In September and October 1993, optometrist D r . Elliot F.
Lasky examined Dizoglio, noting that his initial eye examination
was “within normal limits,” but that the results of a threshold
visual field examination, to help determine the integrity of the
visual and neurological systems, showed “Incongruous Homonymous
Hemianopsia, with a more defined Scotoma in the right eye.” Id.
at 6 6 . D r . Lasky concluded that “the results suggest a post
chiasmal lesion” but he suggested a further neurological
evaluation by a neuro-opthalmologist to confirm his suspicions.
Id.
On October 1 5 , 1993, neuro-opthalmologist D r . Thomas R.
Hedges III performed a neurological eye examination on Dizoglio,
and found “very little, if anything, in the way of objective
findings to explain M r . Dizoglio’s symptoms.” Id. at 7 1 . He
recommended gathering more objective data through a visual-evoked
response test performed by a neurologist. See id. D r . Botsford
performed this visual-evoked response test in November 1993, with
normal results. See id. at 7 7 .
Meanwhile, D r . Brown performed a follow-up sleep test in
October 1993 and determined that the nasal CPAP he prescribed in
August had significantly improved Dizoglio’s sleep-related
difficulties. See id. at 67-69. A sinus rhythm test performed
-5- at D r . Timmerman’s request was also normal. See id. at 7 5 .
On December 2 0 , 1993, Dizoglio presented to D r . Timmerman
complaining of extreme dizziness that had allegedly caused him to
drive his car off the road and to fall out of his chair at work.
Dr. Timmerman referred Dizoglio to another neurologist, D r .
Khawaja M . Rahman. See id. at 81-84. At this time, Dizoglio’s
condition allegedly worsened to the point that he was no longer
able to perform the essential duties of his position, and he
ceased active employment at Digital on December 3 0 , 1993. See
Pl.’s Am. Compl. at ¶ 1 2 . The Plan immediately began providing
him disability benefits.
Dr. Rahman reviewed Dizoglio’s medical records, took a
medical history, and performed an examination on March 2 3 , 1994,
finding “no definite abnormality” after “very extensive
diagnostic workup.” D r . Rahman recommended an electronstagnogram
to determine the cause of Dizoglio’s dizziness, and a cervical
MRI to rule out cervical disc disease. He concluded, I am not convinced after reviewing the records and his history that he has M S . I think most likely we are dealing with post traumatic peripheral vestibular dysfunction with benign positional vertigo along with closed head injury (post traumatic syndrome). There is [sic] question that when he sustained the head injury he might have sustained cervical injury also, probable cervical disc disease resulting in paresthesias and numbness in the C8 distribution of both upper extremities.
-6- Aff. of Kiernan § G, p . 103. On April 1 1 , 1994, however, D r .
Rahman found a cervical spine MRI on Dizoglio unremarkable except
for a small bony spur at D1-D2. See id. at 105. D r . Rahman
continued to speculate that Dizoglio’s dizziness, decreased
concentration, and short term memory problems were the result of
closed head injury with post traumatic concussion syndrome, and
referred Dizoglio back to D r . Scanlon for a neuropsychological
reevaluation to attempt to confirm this speculative diagnosis.
See id.
Dr. Scanlon reevaluated Dizoglio on May 5 , 1994, and noted
that during his office visit, Dizoglio no longer relied on a cane
for balance and did not appear to be depressed or to lose his
train of thought. See id. at 106. According to D r . Scanlon’s
Diagnostic Summary and Recommendations, treatment for his depression and sleep disorder has provided a less complicated picture underlying his cognitive difficulties, and indeed, improvement in these areas is the likely basis for the variety of areas of improved functioning identified in the present evaluation. . . . Mr Dizoglio is manifesting improved memory skills although visual memory continues to be an area of weakness, greater motor control, improved ability to inhibit competing responses, and an improved ability to retain visual details. However, certain visual-spatial difficulties remain distinctly impaired, is certainly inconsistent with his history as an athlete [sic], and in all likelihood exists on the basis of his head injury.
Id. at 109-110. On the basis of these findings, D r . Scanlon
-7- concluded, I believe M r . Dizoglio is quite an appropriate candidate for rehabilitative therapies. . . . the present test results do not suggest any cognitive difficulties should he return to work, as his position substantially involves the use of verbal skills and the retention of details, where he exhibits entirely adequate functioning.
Id. at 110.
On the basis of D r . Scanlon’s recommendation, Dizoglio
underwent occupational rehabilitation therapy between May 3 1 ,
1994 and July 2 6 , 1994. During this therapy, he was referred to
optometrist D r . Kevin Chauvette, who performed a comprehensive
binocular vision evaluation and determined that Dizoglio’s eyes
were healthy and free from disease. D r . Chauvette noticed,
however, that Dizoglio had a marked reduction in the peripheral
vision in his right eye, difficulty using his eyes together to
track a moving target, and that he became dizzy when he tried to do s o . He also found a moderate exophoria1 and a large hyperphoria2 and concluded that, while this muscle imbalance
might not be the sole cause of Dizoglio’s dizziness, the eye
strain it causes might be a contributing factor. He recommended
1 A condition where the eyes tend to turn outward. See Aff. of Kiernan § G, p . 131. 2 Condition where the left eye pulls downward. See Aff. of Kiernan § G, p . 131.
-8- corrective lenses. See id. at 131.
On July 1 , 1994, Dizoglio became eligible for long-term
disability benefits, having been continuously absent from work
for a period of 26 weeks. He continued in rehabilitative
therapy, and at the conclusion of 23 sessions, Dizoglio’s
therapist, Donna Sweeney, “strongly recommend[ed]” that Dizoglio
return to work for a six week transition/trial period. Id. at
128. Dizoglio alleges that at that time, he made several
attempts to contact managers at Digital to establish a start
date, but due to the pending merger, his calls were not
immediately returned. See id. at 126.
Although out of work on disability for nine months at this
point, Dizoglio reported to D r . Timmerman in a September 1994
appointment that he was “doing activities to the extent that he
[could]” including fishing, playing softball, and playing golf.
See id. at 149-55, 179. Despite the recommendations of his
neuropsychologist and his physical therapist, however, Dizoglio
did not return to work.
In June 1995, Dizoglio presented to neurologist D r . James
Whitlock, Jr., with the same symptoms. D r . Whitlock examined
Dizoglio’s medical history, independently tested Dizoglio, and
concluded that Dizoglio was
-9- likely symptomatic from anxiety disorder, somatization disorder, or a combination of both. I do not think that the difficulty has its basis in either the inner ear or the part of the central nervous system associated with equilibrium or vestibular function. Id. at 142-43. D r . Whitlock, however, requested the opportunity
to review Dizoglio’s test results from the past several years,
including his MRI scans and his polysomnography report, before
making a final diagnosis.
Dr. Whitlock re-examined Dizoglio in July 1995, in light of
the additional information, and concluded that “there was a
significant emotional component to the symptomatology that was
being experienced” and that “the services of the right
psychologist could be very helpful.” Id. at 170. Nevertheless,
Dr. Whitlock did recommend one additional physiological test,
involving a sleep-deprived EEG, to rule out the possibility of
paroxysmal disorder, and noted that, “[i]f there is no paroxysmal activity seen, I am afraid that I have little more to add.” He
then noted that
[i]f the most thorough search possible for an underlying organic basis for balance disorder is desired, I would suggest a referral to Jules Friedman M.D. . . . [who] has been operating a very advanced vestibular laboratory . . . for over a decade and has been very helpful in documenting the physiologic basis (or lack thereof) of complaints related to equilibrium. He has access to measurement apparatus that is very hard to come by elsewhere in the country.
-10- Id. at 170.
Later that month, D r . Rahman performed the sleep-deprived
EEG to test for paroxysmal disorder, reported that Dizoglio’s
results were normal, and ruled out such a diagnosis. See id. at
175.
In November 1995, pursuant to D r . Timmerman’s recommenda-
tion, the Claims Administrator for Dizoglio’s insurance company
asked D r . Friedman to perform an independent medical evaluation
to determine the nature of Dizoglio’s repeated equilibrium-
related complaints. See id. at 185. Only a month later,
Dizoglio told D r . Timmerman that he had driven to Florida on
vacation, and had “[made] allowances [for his disability] by
placing two hands on the wheel.” Id. at 186.
That same month, however, D r . Timmerman completed a “Medical
Assessment of Ability to Do Work-Related Activities (Physical)”
form, stating that Dizoglio claimed that his ability to lift and
carry were affected by his impairment, that his dizziness
precluded his ability to sit, stand, or walk, that he could
occasionally climb, crouch, stoop, and kneel, but could not
balance, and that his ability to reach, hear, and speak were not
affected by his condition, but his peripheral vision was limited,
his sense of feeling was affected, and he dropped things
-11- unexpectedly and became dizzy when he performed pushing or
pulling activities. Finally, D r . Timmerman noted that Dizoglio
could not be exposed to heights, work with moving machinery,
experience heat and humidity, noise, fumes, or vibration, or
stare at a computer or fluorescent lights without exacerbating
his dizziness and nausea. See id. at 187-91. D r . Timmerman
admits, however, that no functional assessments were conducted
prior to drawing these conclusions, and that these assessments
were based solely on his observations and Dizoglio’s
representations. Dizoglio remained out of work, and continued to
collect benefits.
On November 8 , 1996, the Metropolitan Life Insurance Company
(“MetLife”), which provided administrative services for Digital
under the Plan, wrote to D r . Timmerman to inquire whether
Dizoglio had ever been sent to D r . Friedman for further
vestibular testing. MetLife asked D r . Timmerman to either
produce the results of that testing or to provide a status update
and specifically identify “what is presently preventing
[Dizoglio] from working.” Id. at 205. D r . Timmerman referred
Dizoglio to D r . Friedman on February 1 6 , 1997, and forwarded his
medical history, noting that Dizoglio was “believed” to have
closed head injury syndrome that his records indicate “an
-12- inconsistent multiplicity of complaints.” Id. at 216-17.
Dr. Friedman reviewed Dizoglio’s entire medical history and
conducted an independent battery of vestibular tests on February
1 8 , 1997. According to D r . Friedman, we today performed full field optokinetic testing and it was quite normal. I am certain that the findings on electronystagmography were an artifact of attention which is so commonly the case with that limited study . . . I would further venture that there are significant inconsistencies in the patient’s observed pattern of dysequilibrium. . . during portions of the examination for balance, the patient appeared to be more stable in situations that were more difficult than those in which he was less stable. I must strongly suspect a significant functional component to the patient’s observed dysequilibrium. . . .
Id. at 220. D r . Friedman concluded,
I can state with certainty that there is no evidence that M r . Dizoglio has central or peripheral vestibular dysfunction as a source of his symptoms. I am further convinced, at the very least, there is a significant component of embellishment of his observed dysequilibrium which was the one element of this examination and assessment which was abnormal. In considering his entire clinical course, I would further state that I would be hard pressed to define a particular etiology which would explain this pattern, frequency, and duration of symptoms. Taking all this into consideration, I must agree that there is no consistent evidence that these symptoms are anything other than the manifestations of a functional disorder. I state this recognizing that in all such cases there may be a small nucleus of organicity which is being embellished for whatever reason. Certainly, however, no effort has been spared over the years to try to document this elusive pathology and nothing has been forthcoming. . . . I trust the results of today’s work up will be helpful as perhaps one of the last pieces of
-13- the puzzle.
Id. at 218.
On April 1 8 , 1997, D r . Timmerman wrote to Met Life, noting
that “[t]he workup for possible physical (or organic) causes of
Ben’s continuation of symptoms has been unable to prove a causal
relationship.” Id. at 225. He also referred Dizoglio back to
Dr. Scanlon for a third evaluation, this time to assess
Dizoglio’s cognitive and psychological functioning with a focus
on the question of possible malingering or symptom exaggeration.
Dr. Scanlon concluded that Dizoglio’s “present symptoms are
largely maintained due to psychological factors as was discerned
in D r . Freedman’s [sic] examination,” noted that Dizoglio’s
psychological profile contains the classic “conversion V,”
depicting the conversion of psychological concerns into somatic
complaints, and that Dizoglio’s attentional variability could be
attributed to depression rather than any organic factor.
Although D r . Scanlon noted that Dizoglio’s continued difficulty
with visual-spatial skills would preclude him from operating a
forklift, he noted that Dizoglio was not precluded from resuming
another position, and that “his involvement in vocational
activities is imperative in terms of curtailing his psychological
difficulties and re-establishing his sense of competency.” Id.
-14- at 233.
Despite these findings, on August 1 3 , 1997, after his ERISA
benefits had been revoked by Met Life and denied on a first-level
appeal, Dizoglio submitted to the Claims Committee a Physical
Capacities Evaluation (“PCE”) completed by D r . Timmerman. The
PCE advocated the nearly total restriction of Dizoglio’s work
activities, concluding that Dizoglio “feels incapable of
functioning in a daily workforce at this time. His lifting,
carrying, pulling & grasping are all at the risk of dropping
objects. His 60 l b . weight gain, he believes, impairs all
activities. His balance impairs most walking and driving
activities.” Id. at 238-40. The record does not suggest that
any clinical testing was relied on in reaching these conclusions.
B. The Plan
The Plan is an uninsured employee benefits plan funded both
by Digital and its employees. See Aff. of Kiernan at Ex. 2 (§§
4.1, 4.2, 5.1, and Appendix B at § 7(c)). The version of the
Plan relevant to this complaint, the November 2 2 , 1993,
Restatement (Ex. 2 ) , is authorized pursuant to the Digital
Equipment Corporation Employee Benefits Master Plan (“Master
Plan”), see Aff. of Kiernan at ¶ 8 and Ex. 1 , and is sponsored
and administered by Digital. See Compl. at ¶ 4 . The Plan
-15- provides shorter- and longer-term disability benefits to eligible
participants. See Aff. of Kiernan at ¶ 8 .
Section 2.1 of the Plan provides that Digital employees are
eligible for Plan benefits in accordance with the terms of the
Disability Income Protection Policy (“Policy”), appended to the
Plan. See id. at Ex. 2 . This Policy provides that a participant
is “disabled,” and is eligible to receive long-term disability
benefits if there exists, After 26 continuous weeks of absence from work beginning with the 183rd continuous day of absence, a medical condition (or having such a condition, as the case many [sic] be) determined by the Plan Administrator to be one which is continuous and fully prevents the Employee from performing the essential duties of any position the Employee is capable of performing by virtue of his or her skills, training or experience. . . .
Id. at Ex. 2 , p . B - 2 , Sec. 1 ( c ) . The Plan’s definition of
disability further states that: The Plan Administrator reserves the right to require any medical evidence to be obtained and the Employee to submit to medical examination at its request that it deems appropriate or necessary in making a determination of “Disability” . . .
Id. The Plan also provides that:
Notwithstanding the foregoing, no Benefits shall be payable pursuant to this Policy . . . for any period of Disability due to treatment of a mental or nervous condition . . . during which an employee is not under the direct care of a Physician who is a licensed (certified) psychiatrist or psychologist or other
-16- mental health provider who is an eligible provider as determined by the Employee’s health care plan. Id. at Ex. 2 , p . B - 8 , § 9.
At all times relevant to this claim, Metropolitan Life
Insurance Company (“Met Life”) provided certain disability
administrative services on behalf of the Plan pursuant to a Basic
Order Agreement 12091 (Ex. 3 ) between Digital and Met Life,
including the review of first-level claims denial appeals. See
Aff. of Kiernan at ¶ 1 0 . The Plan provides, however, that the
Claims Committee is to have final review of all decision under
the Plan’s claims appeal procedure, and may appoint people to the
Committee to assist in the decisionmaking process. See Aff. of
Kiernan at Ex. 2 , p . 7 , Section 6.4(c).
According to the Plan, the Claims Committee, as a fiduciary
under the Plan, has discretionary authority to make such findings, determinations, or interpretations within the sole discretion of the fiduciary, and all such findings, determinations, and interpretations by the fiduciary shall be conclusive and binding on all parties, including [Digital], the Plan, and the Participants, unless a court of competent jurisdiction finds such finding, determination, or interpretation to be arbitrary and capricious and/or an abuse of discretion. For purposes of this paragraph, arbitrary and capricious shall mean “having no foundation.”
Id. at Ex. 2 , p . 9, Section 6.10.
-17- C. Dizoglio’s first-level appeal to Met Life
Dizoglio continued to receive long-term disability benefits
pursuant to the Policy until March 2 6 , 1997. See Aff. of Kiernan
at ¶ 1 4 . On that date, Met Life notified Dizoglio that his
benefits had been terminated because the results of D r .
Friedman’s vestibular test battery performed on February 1 8 ,
1997, had found no evidence of central or peripheral vestibular
dysfunction, or any other underlying organic dysfunction to
support his subjective complaints. See Aff. of Kiernan, Ex. 7 , §
A , p . 1 . Accordingly, Met Life concluded that Dizoglio’s
continuing claim for benefits was “not supported by the medical
evidence.” Id. at p . 1 . Met Life explained Dizoglio’s right to
a first-level appeal, and expressly invited him to submit “any
additional medical evidence” that supported his appeal, including
“detailed findings on examination, your diagnosis, treatment and
prognosis.” Id. at p . 1-2.
On April 2 , 1997, Dizoglio formally appealed Met Life’s
decision to terminate his disability benefits under the Plan.
Through his attorney, Dizoglio alleged that the independent
medical examination (“IME”) performed by D r . Friedman which Met
Life relied upon in terminating his benefits was “self-serving,”
and that, in addition to his “closed head injury,” he also
-18- suffered from spondylosis, degenerative joint disease at L5/S1,
neck and low back pain, ringing in the ears, sleep apnea, and
vision problems. See Aff. of Kiernan, Ex. 7 , §§ B and C .
On June 2 6 , 1997, Met Life denied Dizoglio’s first level
appeal, noting that the medical evidence did not support the
conclusion that Dizoglio was “disabled.” See Aff. of Kiernan,
Ex. 7 , § D. In denying Dizoglio’s first level appeal, Met Life
cited numerous medical reports in the administrative record which
failed to show a physiological basis for Dizoglio’s ongoing
symptoms, including: (1) the visual analyses conducted by optometrist D r . Elliott Lasky, on September 9, 1993 which produced normal results, and on October 1 and 1 5 , 1993, which indicated the presence of incongruous homonymous hemianopsia, but no objective findings to substantiate Dizoglio’s symptoms;
(2) the October 1 3 , 1993 polysomnographic evaluation which acknowledged Dizoglio’s “significant obstructive apnea,” but noted that treatment had eliminated his breathing abnormalities and normalized his sleep;
(3) the endocrine evaluation conducted in March, 1994, by D r . Robert Levine which failed to support any of Dizoglio’s symptoms;
(4) the neuropsychological evaluations conducted by D r . Joan Scanlon in September, 1993, and May, 1994, which noted that there were a “variety of areas of improvement” seen in the later testing, and that “the May, 1994 test results did not suggest any cognitive difficulties that would preclude performance of M r . Dizoglio’s position, as it substantially involved the use of verbal skills and the retention of details,
-19- where he exhibited entirely adequate functioning;” (5) the neurological evaluations performed by D r . James Whitlock on June 2 9 , 1995, which concluded that Dizoglio’s symptoms were “likely from an anxiety disorder, somatization disorder or a combination of the two,” but not due to problems in the inner ear or the central nervous system associated with the equilibrium or vestibular dysfunction;
(6) the chiropractic evaluations by D r . Kevin Moriarty in August, 1997, in response to Dizoglio’s complaints of “low back pain,” where D r . Moriarty diagnosed lumbosacral sprain/strain with early spondylosis, cervical segmental dysfunction with possible vestibular involvement, and post closed head injury syndrome, but noted improvement after six treatments and provided no evidence of further examinations or medical support for ongoing impairment; (7) the otoneurology consultations by D r . Jules Friedman on February 1 8 , 1997 which produced normal vestibular function tests and visual vestibular integration tests, “no evidence of central or peripheral vestibular dysfunction as a source of M r . Dizoglio’s symptoms,” an inability to maintain normal stance that was “inconsistent with [Dizoglio’s] observed normal ambulation,” and the conclusion that Dizoglio’s symptoms may have a “small nucleus of organicity, but that there is no consistent evidence that M r . Dizoglio’s symptoms are anything other than manifestations of a functional disorder,” and that “there was a significant component of embellishment” in Dizoglio’s symptoms; and finally,
-20- (8) D r . Scanlon’s follow-up neuropsychological evaluation of May 3 0 , 1997, which found “mild attentional variability, although marked difficulty with focused attention” and “[d]ifficulties in the visual-spatial realm” which D r . Scanlon felt would preclude Dizoglio from driving a forklift, but not from resuming any verbal aspects of his position. In fact, Dr. Scanlon noted that “involvement in vocational activities would be imperative for curtailing M r . Dizoglio’s psychological difficulties and re- establishing his sense of competency.” See id. at 8-9. Accordingly, Met Life concluded that
the documentation does not support total disability as defined in the Digital Equipment Corporation Disability Income Protection Policy. Whether or not a definitive diagnosis is made, we must consider M r . Dizoglio’s overall physical and mental functioning/abilities. We recognize that he continues to report a number of troublesome symptoms, however, comprehensive evaluation and tests do not support restrictions in activities that should prevent him from performing the essential duties of ‘any position’ he is capable of performing. Accordingly, the termination of M r . Dizoglio’s claim remains in effect.
Id. at p . 9-10. D. Dizoglio’s second-level appeal to Digital Claims Committee
On July 1 4 , 1997, Dizoglio submitted his second-level appeal
to the Claims Committee. See Aff. of Kiernan, Ex. 7 , § E . Prior
to the Claims Committee’s October 2 9 , 1997, meeting, Kiernan
prepared, indexed and distributed to the Claims Committee members
all records the Plan had timely received in connection with
Dizoglio’s second-level appeal. See id.
-21- On October 2 9 , 1997, the Claims Committee denied Dizoglio’s
appeal. See Aff. of Kiernan ¶¶ 15-16. The Administrative Record
assembled by Kiernan and the Claims Committee’s written decision
reflect that, in reaching their conclusion, the Committee
considered and cited all of the relevant evidence submitted by
Dizoglio, including the medical reports and conclusions of Drs.
Timmerman, Scanlon, Moriarty, Brown, Botsford, Lasky, Hedges,
Rahman, Chauvette, Whitlock, and Friedman.
In rejecting Dizoglio’s appeal the Claims Committee
stated To be eligible for benefits, the Disability Plan requires that objective medical evidence be presented to substantiate that, after 26 weeks of disability, an employee is totally disabled from performing the essential duties of any occupation based on his or her skills, training, and experience. The only evidence which supports this claim is an evaluation of M r . Dizoglio performed by D r . Timmerman. D r . Timmerman has admitted no objective tests were performed as part of his analysis and the results of the evaluation were based solely on M r . Dizoglio’s comments. All objective testing and evaluation had effectively ruled out any physical causes of his symptoms and there was no other documentation to support other causation.
-22- In light of the above, the Committee determined the medical documentation in M r . Dizoglio’s case did not reflect a condition of such severity that it prevented him from performing the essential duties of any occupation as of March 2 6 , 1997. Therefore, the committee voted to deny his appeal. See Aff. of Kiernan, Ex. 8 at 4 . Dizoglio now appeals the
Claims Committee’s decision under the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 e t . seq. (1994).
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c); see Lehman v . Prudential Ins. C o . of America, 74 F.3d 323, 327 (1st Cir. 1996). A “genuine” issue is one “that properly can
be resolved only by a finder of fact because [it] . . . may
reasonably be resolved in favor of either party.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250 (1986). A “material” fact
is one that “affect[s] the outcome of the suit.” Id. at 248. In
ruling on a motion for summary judgment, the court construes the
evidence in the light most favorable to the non-moving party.
See Oliver v . Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.
-23- 1988).
Where the nonmoving party bears the burden of persuasion at
trial, it must “make a showing sufficient to establish the
existence of [the] element[s] essential to [its] case” in order
to avoid summary judgment. Celotex Corp. v . Catrett, 477 U.S.
317, 322 (1986). It is not sufficient for the non-moving party
to “rest upon mere allegation[s] or denials [contained in that
party’s] pleading.” LeBlanc v . Great Am. Ins. Co., 6 F.3d 836,
841 (1st Cir. 1993) (quoting Anderson, 477 U.S. at 2 5 6 ) . Rather,
to establish a trial-worthy issue, there must be enough competent
evidence “to enable a finding favorable to the nonmoving party.”
Id. at 842 (internal citations omitted). Where the moving party
bears the burden of persuasion at trial, the movant must also
support its position with materials of evidentiary quality. See
Desmond v . Varrasso (In re Varrasso), 37 F.3d 7 6 0 , 763 n.1 (1st
Cir. 1994). Further, “[the] showing must be sufficient for the
court to hold that no reasonable trier of fact could find other
than for the moving party.” Lopez v . Corporacion Azucarera de
Puerto Rico, 938 F.2d 1510, 1516 (1st Cir. 1991).
III. DISCUSSION
Dizoglio challenges the Claims Committee’s decision
-24- upholding the denial of his benefits on a number of grounds. I first address his procedural complaints.
A. The Claims Committee Conducted a Full and Fair Review of Dizoglio’s Claims
Dizoglio makes a series of assertions suggesting that his
right to a “full and fair review” before the Claims Committee was
compromised. Among these allegations, Dizoglio complains that
(1) the Claims Committee “misinformed” him about his “right” to a
hearing, and never informed him of his “right” to request a
hearing; (2) a quorum of Committee members was not in attendance
when the Claims Committee reviewed and decided his claim; (3) the
Claims Committee failed to conduct a de novo review of his claim;
and (4) the Committee did not meet for long enough to conduct a
thorough review of the claim. I address each argument in turn.
According to the terms of the Plan, appeals to the Claims Committee are “reviewed at the next scheduled meeting of the
Committee, at whose discretion a hearing may be called for the
purpose of this review.” Aff. of Kiernan, Ex. 5A at ch. 1 2 , p .
14 (emphasis added). It is clear from this language that
hearings are called at the discretion of the Committee, and
Dizoglio has failed to point to any evidence in the record to
support his claim that he had a right to a hearing.
Dizoglio’s complaint about a lack of a quorum of Committee
-25- members on the day his claim was decided is similarly without
merit. The Plan requires only that the Committee act by a
majority of its members, noting that “a majority of all members
[here 4 of 7 ] shall have the power to act and the concurrence or
dissent of any member may be by telephone, electronic means, or
letter.” Aff. of Kiernan, Ex. 2 at Sec. 6.2. When the Committee
decided Dizoglio’s appeal on October 2 9 , 1997, four of the seven
Committee members voted to deny his claim - three in person and
one by e-mail, as specifically permitted by the Plan.
Finally, I have reviewed the materials used by the Claims
Committee to review Dizoglio’s appeal. Each Committee member was
provided an excellent summary of Dizoglio’s claims, indexed and
cross referenced to the medical documentation relating to each
claim. See Aff. of Kiernan, Ex. 7 . These packets were
distributed to Committee members for review a week prior to the
meeting. See Kiernan Dep. at 4 8 . Dizoglio fails to provide any
evidence to show that the individual committee members did not
read or consider this evidence prior to the meeting. As a
result, the amount of time the Committee spent discussing
Dizoglio’s file is of little consequence. I also agree with
Digital that it would be illogical for the Committee not to
reference MetLife’s first-level findings in reviewing Dizoglio’s
-26- claim.
Accordingly, I conclude that the Committee provided Dizoglio
with a “full and fair opportunity” for review of his claim. The
Committee properly considered all the relevant medical records
and other materials timely submitted by Dizoglio. At the actual
meeting, Kiernan provided an overview of Dizoglio’s claim, after
which, there was discussion among the members of the Committee
prior to its decision to deny the appeal. This is all that the
Plan requires. B. The Claims Committee was not Tainted by A Conflict of Interest
The parties agree that the Plan “gives discretionary
authority to the [Claims] Committee to make findings,
determinations, or interpretations in connection with its role in
rendering a review of a denial under the Plan.” Pl.’s O b j . to Mot. For Summ. Judg. at 8 . In cases such as this, where the Plan
gives the Plan Administrator discretion to interpret and apply
the Plan, its decision to reject a benefits claim ordinarily is
reviewed under the familiar “arbitrary and capricious” standard
of review. See Terry v . Bayer Corp., 145 F.3d 2 8 , 36 (1st Cir.
1998). Dizoglio argues that this case is subject to a recognized
exception to the general rule because the Claims Committee was
operating under a conflict of interest when it denied his claim.
-27- Accordingly, he argues that the decision should be reviewed de novo. I disagree. In Firestone Tire and Rubber C o . v . Bruch, 489 U.S. 1 0 1 , 115 (1989), the Supreme Court stated in dictum that “of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor in determining whether there is an abuse of discretion.’” Id. at 115, quoting Restatement (Second) of Trusts § 187 comment d (1959). Although the Firestone Court did not explain how to determine whether a conflict of interest exists in a particular case, the First Circuit recently provided some guidance on this issue in Doyle v . Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1998). 3 In Doyle, the court held
3 Other circuit courts have addressed the issue in a variety of different ways. See e.g., Armstrong v . Aetna Life Ins. Co., 128 F.3d 1263, 1265 (8th Cir. 1997)(reviewing case de novo when conflict present); Sullivan v . LTV Aerospace & Defense Co., 82 F.3d 1251, 1255 (2d Cir. 1996)(burden on claimant to prove that conflict improperly motivated denial of benefits); Chambers v . Family Health Plan Corp., 100 F.3d 8 1 8 , 824-27 (10th Cir. 1996)(adopting sliding scale approach); Doe v . Group Hospitalization & Med. Serv., 3 F.3d 8 0 , 87 (4th Cir. 1993) (same); Wildbur v . ARCO Chem. Co., 974 F.2d 6 3 1 , 638-42 (5th Cir. 1992)(same); Van Boxel v . Journal C o . Employees’ Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir. 1987)(same); Atwood v . Newmont Gold Co., 45 F.3d 1317, 1323 (9th Cir. 1995)(presuming conflict and shifting burden of proof to insurer); Brown v . Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-67 (11th Cir. 1990)(same).
-28- that: (1) the party alleging the existence of a conflict has the
burden of demonstrating that the Plan Administrator was
“improperly motivated”; (2) this burden is not satisfied when the
only evidence of an alleged conflict is an admission by the Plan
Administrator that it is a subsidiary of the plaintiff’s employer
and will be responsible for paying the claim from its own funds;
and (3) where a conflict of interest has not been demonstrated, a
decision denying benefits will be upheld as long as the
decisionmaker “had substantial evidentiary grounds for a
reasonable decision in its favor.” Id. at 184. 4
The only evidence of a conflict of interest in this case are
the Plan’s admissions that the Claims Committee is comprised of
high ranking Digital officials, and that it may cost Digital more
to fund its share of the Plan if Dizoglio is awarded benefits.
These allegations are insufficient to establish that the members
of the Claims Committee were improperly motivated when they voted
to deny Dizoglio’s claim. See e.g., Chalmers v . Quaker Oats Co.,
61 F.3d 1340, 1344 (7th Cir. 1995) (noting that Quaker Oats, with
4 The court also suggested in dictum that where a conflict has been established, the court will give “more bite” to the arbitrary and capricious standard by adhering to the standard but placing a “special emphasis on reasonableness.” Doyle, 144 F.3d at 184; see also Doe v . Travelers Ins. Co., 167 F.3d 5 3 , 57 (1st Cir. 1999) (assuming that decision denying benefits is reviewed for reasonableness when conflict of interest is present).
-29- an annual revenue of nearly $6 billion is “not likely to flinch
at paying out $240,000"); Van Boxel v . Journal Company Employees’
Pension Trust, 836 F.2d 1048, 1051 (7th Cir. 1987) (recognizing
that the amount of the benefit may be “too slight to compromise
impartiality of the trustees”). Accordingly, I review the
Committee’s decision by using the arbitrary and capricious
standard of review. C. Digital arbitrarily construed the Plan to require “objective medical evidence” in order to prove a disability claim
In rejecting Dizoglio’s claim, the Claims Committee stated
that,
To be eligible for benefits, the Disability Plan requires that objective medical evidence be presented to substantiate that, after 26 weeks of disability, an employee is totally disabled from performing the essential duties of any occupation based on his or her skills, training, and experience. See id. (emphasis added). After examining the evidence presently
in the record, however, I find no requirement in Digital’s
Disability Plan that a claimant must provide objective medical
evidence as a prerequisite for a finding of disability. Dizoglio
argues that the imposition of such a requirement by the Claims
Committee where none is stated in the Plan is arbitrary and
capricious. I agree.
Digital correctly asserts that in cases such as this, an
-30- administrator’s interpretation of Plan terms is entitled to
deference. See Firestone, 489 U.S. at 111 (Court’s function is
to determine whether any reasonable basis exists for the
fiduciary’s decision); Terry, 145 F.3d at 36-38 (“a fiduciary’s
interpretation of a plan will not be disturbed if reasonable”);
Doyle, 144 F.3d at 185 (fiduciary’s discretionary power includes
not only factual findings, but interpretation of plan terms). I
find, however, that the Plan language in this case cannot
plausibly be construed to require objective medical evidence as a
prerequisite to a disability claim.
Digital’s Plan provides that a participant is “disabled” and
eligible for long-term disability benefits if there exists After 26 continuous weeks of absence from work beginning on the 183rd continuous day of absence, a medical condition5. . . determined by the Plan Administrator to be one which is continuous and fully prevents the Employee from performing the essential duties of any position the Employee is capable of performing by virtue of his or her skills, training, or experience.
Aff. of Kiernan at Ex. 2 . p . B - 2 , Sec. 1 ( C ) . The Plan further
provides that
The Plan Administrator reserves the right to require any medical evidence to be obtained and the Employee to submit to medical examinations at its request that it
5 The term “medical condition” is not defined anywhere in the Plan.
-31- deems appropriate or necessary in making a determination of “Disability” at any time. . . Id. Finally, the Plan notes that,
An Employee’s right to receive any Benefit hereunder is further conditioned upon the receipt by the Plan Administrator of all medical information requested. . . to substantiate the existence of a Disability.
Id. at B-11, Sec. 13(B)(emphasis added). Nowhere on the face of
the Plan is there any mention of a requirement to provide
objective medical evidence as a prerequisite to proving
disability.
Although the First Circuit has not yet spoken on the
subject, other courts which have considered the issue have
concluded that it is arbitrary and capricious for an
administrator to “interpret” a requirement into a Plan that is
absent from the Plan’s language. See, e.g., Mitchell v . Eastman
Kodak Co., 113 F.3d 433, 442 (3d Cir. 1997)(concluding it arbitrary and capricious for an administrator to require
“objective medical evidence” to prove disability in interpreting
a Plan containing no such requirement); Miles v . New York State
Teamsters Conf. Pension and Retirement Fund Employee Pension Ben.
Plan, 698 F.2d 593, 599 (2d Cir. 1983)(noting that it is
arbitrary and capricious for administrator or fiduciary to add a
term or extra requirement which is not expressly part of the
-32- Plan); Duncan v . Continental Cas. Co., 1997 WL 88374, at *4
(N.D.Cal. Feb. 1 0 , 1997)(insurance company could not deny
disability claim for lack of objective medical evidence where
original policy did not refer to the objective medical evidence
standard and never defined the term); Durr v . Metropolitan Life
Ins. Co., 15 F. Supp. 2d 205, 211 (D. Conn. 1998)(same); Velez v .
Prudential Health Care Plan of New York, Inc., 943 F. Supp. 3 3 2 ,
342 (S.D.N.Y. 1996)(same). See also, Dewitt v . Penn-Del
Directory Corp., 106 F.3d 5 1 4 , 520 (3d Cir.1997) (administrator's
discretionary interpretation of plan "may not controvert the
plain language of the [plan] document") (citing Gaines v .
Amalgamated Ins. Fund, 753 F.2d 2 8 8 , 289 (3d Cir. 1985)).
Accordingly, I find that the Committee acted arbitrarily and
capriciously in importing an “objective medical evidence”
requirement into the Plan where none is expressly stated.
D. Remand is required to permit the administrator to
interpret the Plan using the correct legal standard
Although I find that the Committee’s decision was arbitrary
and capricious, I do not conclude that the Committee should
necessarily have granted Dizoglio's claim based on the evidence
in the record. In fact, the evidence presently in the record
weighs heavily against such a conclusion. Nevertheless, because
the Committee employed an improper legal standard (requiring -33- objective medical evidence where none was mandated by Plan terms)
in drawing its conclusion about Dizoglio’s disability, I must
remand Dizoglio’s case to the fund for reconsideration. See
Recupero v . New England Tel. & Tel. Co., 118 F.3d 8 2 0 , 830-31
(1st Cir. 1997)(noting the propriety of remand to fiduciary);
Saffle v . Sierra Pacific Power C o . Bargaining Unit Long Term
Disability Income Plan, 85 F.3d 455, 460 (9th Cir. 1996) (remand
appropriate when fiduciary has misconstrued a plan and applied a
wrong standard to benefits determination); Schadler v . Antham
Life Ins. Co., 147 F.3d 3 8 8 , 398 (5th Cir. 1998) (“it is not the
court’s function ab initio to apply the correct standard . . .
[t]hat function, under the Plan, is reserved to the Plan adminis-
trator”); Doe v . Travelers, 971 F. Supp. 623, 636 (D. M a .
1997)(remand to fiduciary appropriate when reviewing court
determines that process by which decision was made failed to
measure up to requirements of procedural fairness) (rev’d in
part, on other grounds, by Doe v . Travelers Ins. Co., 167 F.3d 53
(1st Cir. 1999)). While it is unlikely that the Committee will
ultimately award disability benefits to Dizoglio, because I
cannot conclude that no reasonable factfinder could find for
Dizoglio, I must remand the case for further review. Compare
Miller v . United Welfare Fund, 72 F.3d 1066, 1073 (2d Cir.
-34- 1995)(remand to the fiduciary is appropriate when reasonable
minds could differ as to the proper outcome of the case) with
Zuckerbrod v . Phoenix Mut. Life Ins. Co., 78 F.3d 4 6 , 50 (2d Cir.
1996) (remand to the fiduciary for further consideration is
unnecessary where the outcome is so certain that a remand would
be a “useless formality”).
III. CONCLUSION
Defendant’s motion for summary judgment (Document N o . 9 ) is
denied. Plaintiff’s cross-motion for summary judgment (Document
N o . 11) is granted in part and denied in part. The case is
remanded to the Committee for further consideration as directed,
and I retain jurisdiction to hear and decide any timely motion
for judicial review filed after further proceedings before the
Committee. SO ORDERED
Paul Barbadoro Chief Judge July 2 3 , 1999
cc: Janine Gawryl, Esq. Naomi Mooney, Esq. Joseph Piacquad, Esq.
-35-