Smith v. Fortis Benefits CV-02-055-B 03/06/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William Smith
v. Civil No. 02-055-B Opinion No. 2003 DNH 035 Fortis Benefits Insurance Company
MEMORANDUM AND ORDER
William Smith brings this action pursuant to the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)
(B) (1999), to recover benefits he alleges are due to him under
the terms of a long-term disability plan insured and administered
by Fortis Benefits Insurance Company ("Fortis") . Smith alleges
that Fortis' decision to deny him benefits was arbitrary and
capricious. Fortis moves for summary judgment arguing that
substantial evidence in the administrative record supports it's
decision to deny Smith benefits and therefore it's decision was
not arbitrary and capricious. (Doc. No. 7). Smith argues in
response that Fortis improperly categorized his position as light
work when in fact it was medium work. He further argues that Fortis: improperly disregarded his treating physician's opinions;
failed to consider non-exertional stress produced by his
position; and gave insufficient weight to the Social Security
Administration's decision granting him disability insurance
benefits. For the reasons that follow, I grant Fortis' motion
for summary judgment.
I. BACKGROUND
William Smith worked in the electronic semiconductor
industry for over thirty years. In the fall of 1998, Smith began
working for New England Semiconductor ("NFS") as a project/test
electronics engineer. As an NFS employee. Smith participated in
NES's long-term disability benefits plan (the "Plan"). Fortis
was the Plan's insurer and administrator at all relevant times.
Smith remained employed with NES until November 2, 1999, when
Smith's position was eliminated as part of a pre-planned lay-off.
A. The Plan
The Plan defines "disability" to mean that "in a particular
month, you satisfy either the Occupation Test or the Earnings
Test...You may satisfy both the Occupation Test and the Earnings Test, but you need only satisfy one Test to be considered
disabled." To satisfy the Occupation Test, "during the first 24
months of a period of disability (including the gualifying
period), an injury, or sickness, or pregnancy reguires that you
be under the regular care and attendance of a doctor, and
prevents you from performing at least one of the material duties
of your regular occupation." After 24 months of disability, the
Occupation Test reguires that "an injury, sickness or pregnancy
prevent you from performing at least one of the material duties
of each gainful occupation for which your education, training,
and experience gualifies you." The Plan defines material duties
to mean "the set of tasks or skills reguired generally by
employers engaged in a particular occupation." A "period of
disability" as used in the Occupation Test is defined as "the
time that begins on the day you become disabled and ends on the
day before you return to active work."
A claimant will be considered disabled under the Earnings
Test if, "in any month in which you are actually working, if an
injury, sickness, or pregnancy, past or present, prevents you
from earning more than 80% of your monthly pay in that month in any occupation for which your education, training and experience
qualifies you."
The Plan also states that: "[Fortis] has the sole
discretionary authority to determine eligibility for
participation or benefits and to interpret the terms of the
Policy. All determinations and interpretations made by us are
conclusive and binging on all parties."
The Plan provides that "a covered person who leaves the
group covered under [the Plan]" will remain insured as follows:
"if a plant closes down or partly closes down, the person will
remain insured for 90 days after that; and for any other reason,
the person will remain insured for 31 days after that. However,
coverage will end if the person becomes entitled to similar
benefits from another source."
B. The Claim
_____ In 1996, Smith suffered a heart attack and underwent
coronary bypass surgery. Smith participated in cardiac
rehabilitation after his surgery and returned to work. In
October 1999, Smith visited his cardiologist. Dr. Mary-Claire
Paicopolis, complaining of fatigue and shortness of breath. Smith then underwent a sestamibi stress test on October 27, 1999.
The stress test indicated normal hemodynamic response to exercise
and no chest pressure when exercising. Dr. Paicopolis opined
that the changes on the electrocardiogram during the stress test
were consistent with ischemia. She further indicated that
although Smith was able to exercise for 8 minutes 59 seconds, the
study was limited by shortness of breath and fatigue.
Smith had a follow-up appointment with Dr. Paicopolis on
November 15, 1999. Dr. Paicopolis noted that although Smith had
not had any chest or arm discomfort, he had had some tingling
down his left arm and agreed to undergo a left heart
catherization.
Two days later. Smith underwent the left heart catherization
and Dr. Paicopolis noted the left main trunk was without
significant disease. She did, however, note that the
catherization showed significant graft occlusion. At follow-up
visits with Dr. Paicopolis, Smith stated he did not want to
undergo surgery, but that he was willing to try medical therapy.
Although Smith does not have any chest or arm discomfort, he
stated that he is guite fatigued and has shortness of breath when he does any kind of work. Dr. Paicopolis opined that Smith
cannot work in his current job.
Smith filed for long term disability benefits in December
1999. On his application. Smith stated that his position as an
electronics test engineer reguired him to lift 25 to 100 pounds
freguently, carry up to 25 pounds freguently, and carry up to 50
pounds occasionally. Smith further indicated that his position
reguired him to supervise 8 to 15 people, exposed him to marked
changes in temperature and humidity or extremes thereof, and
exposed him to dust, fumes, gases or chemicals.
Dr. Paicopolis completed the attending physician portion of
Smith's application. In it she opined that Smith had a class 4
physical impairment rendering him capable of only sedentary,
clerical or administrative work. She further opined that Smith's
cardiac functional capacity placed him in class 3 or "marked
limitation."
On March 14, 2000, Fortis denied Smith's application for
disability benefits finding Smith's medical limitations did not
prevent him from performing any of the material duties of his
position. Smith, after retaining counsel, appealed the denial and attached a letter dated April 6, 2000 from Dr. Paicopolis.
In this letter. Dr. Paicopolis stated that "from a cardiovascular
standpoint [Smith] is a Class II [slight limitation] to III
[marked limitation]" and as such she opined that Smith is
"disabled from a cardiovascular standpoint to do any significant
exertional work." She added that it was her clinical opinion
that Smith cannot work.
On May 10, 2000, NES's human resource manager sent a letter
to Fortis denying that Smith supervised 15 employees. In
addition, the human resource manager attached an email from
Smith's former supervisor detailing his duties. The email lists
Smith's primary duties as setting up and analyzing the results of
tests and ensuring the accuracy of test eguipment.
Fortis denied Smith's appeal on June 14, 2000. Fortis
acknowledged that Smith should not engage in heavy physical
labor, but noted that Smith was capable of low levels of exercise
or working in a sedentary or light work occupation. Fortis cited
Dr. Paicopolis' April 6, 2000 letter indicating Smith was
precluded from "significant exertional work." Fortis also relied
on the Dictionary of Occupational Titles ("DOT"), published by the Department of Labor. The DOT classifies Smith's occupation,
an electrical test engineer, as a light duty job. Furthermore,
Fortis cited to information provided by NES concurring with the
DOT's light duty indication and contradicting the information
provided by Smith in his initial application for benefits.
Specifically, Fortis stated that NES indicated the following
discrepancies: most of the parts that Smith was reguired to lift
weighed less than 20 pounds; he did not have to carry items as
carts are provided; he worked in a 70-degree climate controlled
environment; he was not exposed to chemicals due to the
controlled environment; and he did not supervise other employees.
Fortis also explained in a letter dated July 14, 2000, that
Smith's policy insures his occupation, not his specific job and
the material duties noted in the Occupation Test provision of the
policy refers to the set of tasks or skills reguired generally by
employers from those engaged in a particular occupation.
In July 2000, Smith appealed Fortis' decision to affirm its
denial of disability benefits. Smith included in his appeal a
notice from the Social Security Administration ("SSA") granting
him disability insurance benefits ("DIB") and argued that the SSA's "independent and neutral evaluation" of Smith's condition
is strong evidence that Fortis' denial of benefits is
unreasonable.
Smith's appeal was submitted to Fortis' Appeals Committee
which included Dr. Craig Heligman. Dr. Heligman contacted Dr.
Paicopolis to investigate Smith's appeal. In a memorandum
detailing his conversation with Dr. Paicopolis, Dr. Heligman
noted that Dr. Paicopolis assumed Smith was a manager. Dr.
Heligman discussed how the results of the stress test
demonstrated that Smith's sustainable work capacity matched his
work demands. Dr. Heligman further noted that Dr. Paicopolis
would not release Smith to work unless Smith stated that he was
asymptomatic on the job. Nevertheless, Dr. Heligman ultimately
decided that even though he agreed that Smith would benefit from
surgical intervention. Dr. Paicopolis had overstated Smith's
level of disability.
In investigating Smith's final appeal, Fortis asked NES to
complete a form indicating what Smith's actual duties were as
compared to the description of his duties that he provided in his
initial application. A representative from NES identified multiple areas in which the company disagreed with Smith's
description of his duties at NES. NES again disagreed that Smith
supervised other employees. NES informed Fortis that Smith had
been offered a position which would have included supervisory
responsibilities, but that he had turned it down. In addition,
NES reiterated that Smith was seldom, if at all, exposed to
chemicals or temperature changes. Furthermore, NES denied that
lifting eguipment up to 100 pounds was ever a job reguirement for
Smith because Fortis has an eguipment department that handles the
moving of eguipment.
Fortis denied Smith's final administrative appeal in
September 2000. Once again, Fortis found that Smith should not
engage in physical labor, but that he is capable of working at
the light to sedentary level, as was reguired of him in his job
with NES. Smith then instituted this proceeding in federal
court.
II. STANDARD OF REVIEW
Because the Plan reserves to Fortis the discretion to
determine eligibility for benefits and to interpret the terms of
the Plan, my review of Fortis' denial of benefits is limited to
the "deferential arbitrary and capricious standard."1 Cook v.
1 I note that the First Circuit has used "arbitrary and capricious" "abuse of discretion" and or "unreasonable" interchangeably. See Leahy v. Raytheon Co . , 315 F.3d 11, 15 n. 3 (1st C i r . 2 0 02). Liberty Life Assurance Co. of Boston, 2003 WL 245402 *6 (1st
Cir. Feb. 5, 2003) (quoting Pari-Fasano v. ITT Hartford Life and
Accident Ins. Co., 230 F.3d 415, 418 (1st Cir. 2000)). Under
this standard, I must uphold Fortis' decision "if it was within
[Fortis'] authority, reasoned, and supported by substantial
evidence in the record." Dovle v. Paul Revere Life Ins. Co . , 144
F.3d 181, 184 (1st Cir. 1998). A decision is supported by
substantial evidence in the record when there is evidence
"reasonably sufficient" to support a conclusion. Moreover,
sufficiency "does not disappear merely by reason of contradictory
evidence." Id.; see Vlass v. Raytheon Employee Disability Trust,
244 F .3d 27, 30 (1st Cir. 2001).
The Parties do not contest that the language of the Plan
reserves discretion to Fortis. Nevertheless, Smith argues that
Fortis was improperly motivated by a conflict of interest and
therefore I must apply a heightened standard of review.
Specifically, Smith argues that Fortis has an inherent conflict
of interest evidenced by its "wrong and unreasonable" decision
and "overwhelmingly insufficient" record. Smith further argues
that a conflict of interest standard should be applied because
Dr. Heligman, the only physician to review his claims for Fortis,
failed to adequately consider Dr. Paicopolis' opinions.
In it's recent decision in Leahy v. Raytheon Co . , 315 F.3d
11, 16 (1st Cir. 2002), the First Circuit reiterated that "to
affect a standard of review, the conflict of interest must be real." "A chimerical, imagined, or conjectural conflict will not
strip the fiduciary's determination of the deference that
otherwise would be due." I d . (citations omitted). As in Leahy,
the alleged conflict of interest Smith alludes to "does not meet
this screen." Id. Smith's arguments do not point to a single
conflict of interest other than that which always exists when an
insurer determines an insured's eligibility for benefits. The
fact that Dr. Heligman was the only physician to have reviewed
Smith's claim does not establish that Fortis was operating under
a conflict of interest or an improper motivation. See Dovle, 144
F.3d at 184 (An example of a conflict of interest is when a
policy manager has a personal interest contrary to the beneficiary's.)- If anything. Smith's arguments are relevant to
whether or not Fortis' decision was arbitrary and capricious, but
they do not persuade me to alter the degree of deference that is
due to Fortis under Firestone Tire & Rubber v. Bruch, 489 U.S.
101, 109 (1989) .
As such, I apply the arbitrary and capricious standard to
Fortis' decision and consider only the evidence that was before
Fortis at the time of it's decision. See Dovle, 144 F.3d at 184.
III. DISCUSSION
Fortis argues that summary judgment should be granted in its
favor because it's decision is supported by substantial evidence
in the record. Smith, on the other hand, argues that Fortis'
decision to deny him benefits was arbitrary and capricious.
First, Smith argues that his position with NES as an electronics
test engineer was incorrectly classified as light duty when in
fact it was medium duty work. Second, Smith contends that Fortis
did not adeguately consider the non-exertional stress produced by
his reguired duties at NES. Third, Smith alleges that Fortis failed to consider the SSA's determination that Smith was
eligible for disability insurance benefits. Lastly, Smith
challenges Dr. Heligman's medical opinions because they are
inconsistent with the opinion of Smith's treating physician. Dr.
Paicopolis.
A. Job Description
In denying his application for benefits, Fortis classified
Smith's occupation as light duty work. Smith argues that the job
description he provided in his initial application, along with
the information provided by NES, reguires a medium duty work
classification. Smith argues that this is crucial to Fortis'
denial because Dr. Heligman opined that Smith was capable of only
light to sedentary work. If Smith's position in fact gualified
as light work. Smith argues, even Dr. Heligman would find him
incapable of fulfilling the duties of his job.
Fortis' classification of Smith's job as light work is
supported by substantial evidence in the record. First, the DOT
classified Smith's occupation as light work. In addition, Fortis
clearly informed Smith that it insures only his occupation and
not his specific job with NES. The "material duties" test is therefore analyzed from the perspective of whether Smith is
capable of performing the material duties of his occupation in
general, not any additional demands that NES may place on him.
In any event, NES, on multiple occasions, denied that Smith was
reguired to lift or carry significant weights. For example, NES
informed Fortis that Smith was not reguired to lift or carry
eguipment because NES has an entire department devoted to moving
eguipment and carts were available if Smith chose to move
eguipment on his own. In addition, most of the eguipment that
Smith may have carried voluntarily weighed under 20 pounds. It
therefore was not unreasonable for Fortis to classify Smith's
position with NES as light duty.
Furthermore, NES informed Fortis that Smith had inaccurately
stated in his application that he worked in varying temperatures
and was exposed to chemicals. As such, Fortis' decision to
discredit Smith's own description of his duties in his initial
application and to credit NFS' description is supported by
substantial evidence.
B. Non-exertional Considerations
_____ Smith argues that Fortis did not consider or analyze the
non-exertional stress levels associated with Smith's duties at
NES. In its investigation of Smith's application, Fortis
contacted NES multiple times concerning his supervisory
responsibilities. NES responded, multiple times, stating that
Smith did not supervise other employees in any manner other in "equipment/technology." In fact, NES informed Fortis that Smith
had been offered a position in which he would have had
supervisory responsibilities, but he turned it down. Further,
Fortis considered the possible stress Smith would be exposed to
in his supervisory role, but after conferring with NES and
finding that Smith did not actually supervise other NES employees
except in some vague equipment/technology role, it found him
capable of fulfilling all material duties of his position.
Fortis did not act arbitrarily or capriciously in making this
determination.
C. Dr. Heligman's Medical Opinion
Smith argues that Dr. Heligman's disagreement with Dr.
Paicopolis' opinion that Smith was unable to work as an
electrical test engineer was arbitrary and capricious. Fortis,
as a plan administrator, was not required to give controlling weight to a treating physician's opinions. See Chandler v.
Raytheon Employees Disability Trust, 53 F.Supp.2d 84, 91 (D. Mass
1999) aff'd 229 F.3d 1133 (1st Cir. 2000); see also Sheppard &
Enoch Pratt Hosp., Inc. v. Travelers Ins. Co . , 32 F.3d 120, 126
(4th Cir. 1994). It is Fortis' responsibility as the plan
administrator to weigh conflicting evidence and make an informed
determination regarding disability. See Vlass, 244 F.3d at 32.
Notwithstanding Smith's assertion to the contrary. Doe v .
Travelers Ins. C o , 167 F.3d 53, 58 (1st Cir. 1999) does not
reguire otherwise. In Doe, the First Circuit afforded "special
weight" to treating experts' diagnosis of suicidal tendencies
because, unlike Smith's condition, "[i]t is much harder to
calibrate risks [of suicide] than to diagnose conditions" such as
coronary heart disease, which can largely be reduced to medical
test results. Doe, 167 F.3d at 58; see Garcia v. Raytheon
Employees Disability Trust, 122 F.Supp.2d 240, 245 (D.N.H. 2000).
D. SSA Determination
Smith argues that Fortis' decision was unreasonable because
Fortis should have placed more weight on the SSA's determination
that Smith was totally disabled and therefore entitled to disability insurance benefits. Fortis, correctly, argues that
the SSA's determination is not binding on a private plan
administrator's determination of eligibility for disability
benefits. See Chandler, 53 F.Supp.2d at 91 (citing Dovle, 144
F.3d at 186 n. 4). Although SSA determinations may be relevant
evidence for plan administrators to consider in making their
independent determination, they need not be given controlling
weight. Id. Furthermore, Smith provided Fortis only with the
SSA notice that it had granted Smith benefits. Fortis did not,
therefore, know the basis for the SSA determination. This is
especially relevant since Fortis believed the job description
Smith provided it with was exaggerated and that Smith may well
have provided the same exaggerated job description to the SSA
when it made its determination.
IV. CONCLUSION
After reviewing the administrative record, Fortis' decision
denying Smith disability benefits was supported by substantial
evidence that was "reasonably sufficient to support [its]
decision." Vlass, 244 F.3d at 30. As such, I grant Fortis'
motion for summary judgment (Doc. No. 7) and decline to issue
benefits as per Smith's reguest in his objection (Doc. No. 9) .
The clerk of court shall enter judgment and close the case.
SO ORDERED. Paul Barbadoro Chief Judge
March 3, 2003
cc: James LaFrance, Esq. Kevin C. Devine, Esq. Joshua Bachrach, Esq.