[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-2307
BETTY RUTH SHAPIRO,
Plaintiff - Appellant,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Cyr, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Gertner,* District Judge.
Thomas F. Ginnerty for appellant.
Robert M. Duffy, with whom Sloan, Duffy, Sweeney & Gates was
on brief for appellee.
August 1, 1996
* Of the District of Massachusetts, sitting by designation.
GERTNER, District Judge. Plaintiff Betty Ruth Shapiro GERTNER, District Judge.
(Shapiro) brought this action under the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. 1132(a)(1)(B),
claiming that she was wrongfully denied benefits under a long-
term disability insurance policy provided by her employer and
issued by the defendant Reliance Standard Life Insurance Company
(Reliance). After a non-jury trial, the district court entered
judgment in favor of defendant. On appeal, plaintiff contends
that the district court's findings were clearly erroneous. She
also contends that she was denied due process of law when the
district court issued its decision without offering her the
opportunity to present additional evidence or make a closing
argument. We affirm. FACTS FACTS
The facts as found by the district court were as
follows: On October 13, 1991, plaintiff was involved in a serious
motor vehicle accident. She was treated at the scene and
returned home. Three days later, however, she went to an
emergency room complaining of neck, shoulder and arm pains. She
began seeing an orthopaedic surgeon, Dr. Kenneth Morrissey, and
remained in his care until May 12, 1992. In May of 1992,
plaintiff applied for reemployment with her employer,
Fleet/Norstar Financial Group, Inc. (Fleet),1 after Dr. Morrissey
advised her to "give it a try." She was not hired, however,
because there were no positions available. In April of 1992,
1 Although it is not clear from the record, plaintiff apparently ceased working sometime after her accident.
-2-
Shapiro filed for disability benefits with Reliance, which
provided group long-term disability insurance to Fleet's
employees. In response, Reliance sent letters to three of
Shapiro's treating physicians in order to evaluate her claim.
The doctors did not respond until July of 1992. Two of them
stated that they were treating plaintiff for non-disabling
maladies unrelated to her disability claim. The third, Dr.
Morrissey, found the plaintiff to be "totally disabled" for an
"indefinite period,"2 but that conclusion was belied by his
office records. The records indicated the Dr. Morrissey believed
the plaintiff to be only partially disabled, and that he had
advised plaintiff on May 12, 1992, the last date of his
treatment, that she could try to return to her job as a
securities input clerk.
In August of 1992, defendant retroactively approved
plaintiff's application for benefits for the period April 10,
1992 through July 10, 1992. Defendant then requested that
plaintiff provide additional information substantiating her claim
for benefits beyond July 10, 1992. It sent plaintiff a
"Supplementary Report for Continued Disability Benefits" and a
"Physical Capacities Evaluation Form" to be filled out by her
treating physician. In November, 1992, plaintiff returned the
Supplementary Report, but the portion to be completed by her
physician was left blank. Instead, plaintiff submitted a record
2 Dr. Morrissey had reported this conclusion on an "Attending Physician's Statement of Disability" dated April 7, 1992.
-3-
from a Dr. Tarpey, indicating that he was treating plaintiff for
asthma and emphysema. Plaintiff never submitted the Physical
Capacities Evaluation Form.
Defendant next sent letters directly to plaintiff's
physicians seeking information as to whether she continued to be
disabled. Defendant received no responses to these letters. In
February of 1993, plaintiff advised defendant by telephone that
she was seeing a chiropractor, Dr. Andrew Lombardi. In March of
1993, defendant sent a letter to Dr. Lombardi seeking information
about his treatment and plaintiff's disability. Dr. Lombardi
wrote back in April of 1993 providing information about
plaintiff's condition, but did not indicate whether plaintiff was
disabled, or whether she had been continuously disabled during
the period between May of 1992, when she ceased treatment with
Dr. Morrissey, and April of 1993.3 Moreover, Dr. Lombardi's
letter stated that plaintiff had "denie[d] any prior
accidents/incidents that could have produced the current
symptoms. In fact, as plaintiff admitted at trial, she had
earlier taken a nine month disability leave for an unrelated neck
and back injury in 1989.
3 This was significant because, under the terms of defendant's policy, plaintiff's benefits would terminate as soon as she ceased to be totally disabled. Since she was no longer working for Fleet in 1993, she needed to show that she was continuously disabled from the time when she was so employed in order to continue to receive benefits.
-4-
On April 30, 1993, defendant denied plaintiff's claim
for additional benefits. Plaintiff appealed through defendant's
internal appeal process, and her claim was again denied.
-5-
DISCUSSION DISCUSSION
I. The District Court's Findings I. The District Court's Findings
Under the terms of defendant's policy, plaintiff was
eligible for disability benefits only if she met four criteria:
(1) that she was totally disabled as a result of a sickness or
injury covered by the policy, (2) that she was under the regular
care of a physician, (3) that she completed a so-called
"Elimination Period," and (4) that she submitted satisfactory
proof of her total disability. Engaging in a de novo review of
plaintiff's claim, see Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989), the district court found that plaintiff
did not satisfy the first, second or fourth of these
requirements, and therefore was ineligible for benefits. We will
vacate these findings only if they are clearly erroneous.
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st
Cir. 1990). None of them is.
First, the district court found that plaintiff had
failed to submit satisfactory proof of her total disability to
defendant. This finding is not clearly erroneous. Although Dr.
Morrissey did aver that, as of April 7, 1992, plaintiff was
totally disabled, one month later, on May 12, 1992, Dr. Morrissey
advised plaintiff that she could try to return to work. Indeed,
plaintiff did attempt to return to work at that time, and was
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[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-2307
BETTY RUTH SHAPIRO,
Plaintiff - Appellant,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Cyr, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Gertner,* District Judge.
Thomas F. Ginnerty for appellant.
Robert M. Duffy, with whom Sloan, Duffy, Sweeney & Gates was
on brief for appellee.
August 1, 1996
* Of the District of Massachusetts, sitting by designation.
GERTNER, District Judge. Plaintiff Betty Ruth Shapiro GERTNER, District Judge.
(Shapiro) brought this action under the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. 1132(a)(1)(B),
claiming that she was wrongfully denied benefits under a long-
term disability insurance policy provided by her employer and
issued by the defendant Reliance Standard Life Insurance Company
(Reliance). After a non-jury trial, the district court entered
judgment in favor of defendant. On appeal, plaintiff contends
that the district court's findings were clearly erroneous. She
also contends that she was denied due process of law when the
district court issued its decision without offering her the
opportunity to present additional evidence or make a closing
argument. We affirm. FACTS FACTS
The facts as found by the district court were as
follows: On October 13, 1991, plaintiff was involved in a serious
motor vehicle accident. She was treated at the scene and
returned home. Three days later, however, she went to an
emergency room complaining of neck, shoulder and arm pains. She
began seeing an orthopaedic surgeon, Dr. Kenneth Morrissey, and
remained in his care until May 12, 1992. In May of 1992,
plaintiff applied for reemployment with her employer,
Fleet/Norstar Financial Group, Inc. (Fleet),1 after Dr. Morrissey
advised her to "give it a try." She was not hired, however,
because there were no positions available. In April of 1992,
1 Although it is not clear from the record, plaintiff apparently ceased working sometime after her accident.
-2-
Shapiro filed for disability benefits with Reliance, which
provided group long-term disability insurance to Fleet's
employees. In response, Reliance sent letters to three of
Shapiro's treating physicians in order to evaluate her claim.
The doctors did not respond until July of 1992. Two of them
stated that they were treating plaintiff for non-disabling
maladies unrelated to her disability claim. The third, Dr.
Morrissey, found the plaintiff to be "totally disabled" for an
"indefinite period,"2 but that conclusion was belied by his
office records. The records indicated the Dr. Morrissey believed
the plaintiff to be only partially disabled, and that he had
advised plaintiff on May 12, 1992, the last date of his
treatment, that she could try to return to her job as a
securities input clerk.
In August of 1992, defendant retroactively approved
plaintiff's application for benefits for the period April 10,
1992 through July 10, 1992. Defendant then requested that
plaintiff provide additional information substantiating her claim
for benefits beyond July 10, 1992. It sent plaintiff a
"Supplementary Report for Continued Disability Benefits" and a
"Physical Capacities Evaluation Form" to be filled out by her
treating physician. In November, 1992, plaintiff returned the
Supplementary Report, but the portion to be completed by her
physician was left blank. Instead, plaintiff submitted a record
2 Dr. Morrissey had reported this conclusion on an "Attending Physician's Statement of Disability" dated April 7, 1992.
-3-
from a Dr. Tarpey, indicating that he was treating plaintiff for
asthma and emphysema. Plaintiff never submitted the Physical
Capacities Evaluation Form.
Defendant next sent letters directly to plaintiff's
physicians seeking information as to whether she continued to be
disabled. Defendant received no responses to these letters. In
February of 1993, plaintiff advised defendant by telephone that
she was seeing a chiropractor, Dr. Andrew Lombardi. In March of
1993, defendant sent a letter to Dr. Lombardi seeking information
about his treatment and plaintiff's disability. Dr. Lombardi
wrote back in April of 1993 providing information about
plaintiff's condition, but did not indicate whether plaintiff was
disabled, or whether she had been continuously disabled during
the period between May of 1992, when she ceased treatment with
Dr. Morrissey, and April of 1993.3 Moreover, Dr. Lombardi's
letter stated that plaintiff had "denie[d] any prior
accidents/incidents that could have produced the current
symptoms. In fact, as plaintiff admitted at trial, she had
earlier taken a nine month disability leave for an unrelated neck
and back injury in 1989.
3 This was significant because, under the terms of defendant's policy, plaintiff's benefits would terminate as soon as she ceased to be totally disabled. Since she was no longer working for Fleet in 1993, she needed to show that she was continuously disabled from the time when she was so employed in order to continue to receive benefits.
-4-
On April 30, 1993, defendant denied plaintiff's claim
for additional benefits. Plaintiff appealed through defendant's
internal appeal process, and her claim was again denied.
-5-
DISCUSSION DISCUSSION
I. The District Court's Findings I. The District Court's Findings
Under the terms of defendant's policy, plaintiff was
eligible for disability benefits only if she met four criteria:
(1) that she was totally disabled as a result of a sickness or
injury covered by the policy, (2) that she was under the regular
care of a physician, (3) that she completed a so-called
"Elimination Period," and (4) that she submitted satisfactory
proof of her total disability. Engaging in a de novo review of
plaintiff's claim, see Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989), the district court found that plaintiff
did not satisfy the first, second or fourth of these
requirements, and therefore was ineligible for benefits. We will
vacate these findings only if they are clearly erroneous.
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st
Cir. 1990). None of them is.
First, the district court found that plaintiff had
failed to submit satisfactory proof of her total disability to
defendant. This finding is not clearly erroneous. Although Dr.
Morrissey did aver that, as of April 7, 1992, plaintiff was
totally disabled, one month later, on May 12, 1992, Dr. Morrissey
advised plaintiff that she could try to return to work. Indeed,
plaintiff did attempt to return to work at that time, and was
only refused because of the lack of an available position.
Defendant, aware that Dr. Morrissey had advised plaintiff she
could try to return to work, reasonably questioned whether she
-6-
remained totally disabled, and engaged in numerous attempts to
obtain additional proof to support her claim. Despite these
attempts, plaintiff never produced any evidence of her
disability. The district court's finding to that effect was not
clearly erroneous.
The district court also found that plaintiff was not
under the regular care of a physician. No evidence was presented
that plaintiff was regularly seeing any medical provider from
May 12, 1992, when she ceased treatment with Dr. Morrissey, until
February 22, 1993, when she started treatment with Dr. Lombardi.
There was also evidence that plaintiff had ceased all physical
therapy during this period. The district court's finding that
plaintiff was not under the treatment of a physician was not
clearly in error.
Finally, the district court found that plaintiff was
not, in fact, totally disabled during the relevant period.
Although Dr. Lombardi testified at trial that he believed
plaintiff to be totally disabled, and that her disability had
been in place during the relevant period, the district court did
not credit this testimony as it was inconsistent with the other
evidence, including Dr. Morrissey's advice on May 12, 1992 that
if plaintiff wanted to return to work she should "give it a try."
The district court also found that Dr. Lombardi's testimony was
based on false statements provided to him by plaintiff, including
a false statement that she had never been in any other accidents
which could have caused her current symptoms. (In fact,
-7-
plaintiff had missed work for nine months in 1989 after
complaining of neck and back problems.) Dr. Lombardi likewise
ignored the fact that plaintiff had reapplied for work just after
her initial application for disability benefits had been filed.
In light of the conflicting evidence, the district court was
entitled to reach the conclusion that it did.
II. Due Process Claim II. Due Process Claim
The trial was held on December 19, 1994. The district
court heard three live witnesses: the plaintiff, one of her co-
workers, and an employee of the defendant. At the close of the
day, the district court directed the parties to depose
plaintiff's two remaining witnesses, Drs. Morrissey and Lombardi,
and to file edited transcripts with the court. This was done a
few weeks later. Approximately one year later, on November 2,
1995, the district court issued its decision.
Plaintiff now contends that the district court denied
her due process of law because it failed to provide an
opportunity for closing argument, or for the submission of
additional evidence, prior to issuing its decision. Plaintiff
states that if given the opportunity, she would have presented
evidence that an Administrative Law Judge of the Social Security
Administration had found her to be totally disabled in April of
1995. Putting aside the question of whether this decision was
relevant or otherwise admissible, plaintiff waived her due
process claim by failing to raise it to the court below.
Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993).
-8-
Plaintiff never requested the opportunity to present additional
evidence or to make a closing argument in the eleven months
between the trial date and the issuance of the court's decision.
Moreover, plaintiff never moved to alter or amend the judgment
under Fed. R. Civ. P. 59.
CONCLUSION CONCLUSION
For the foregoing reasons, the judgment of the district
court is affirmed. Costs to appellees.
-9-