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June 7, 1999


The opinion of the court was delivered by: Lowell A. Reed, Jr., District Judge.


Plaintiff Carl J. Cini ("Cini") initially filed suit in the Court of Common Pleas of Philadelphia County against the Paul Revere Insurance Company ("Paul Revere") alleging that Paul Revere wrongfully denied his claim for residual long term disability benefits under a group disability insurance policy. Paul Revere removed the action to this Court pursuant to federal question jurisdiction under the federal Employee Retirement Insurance Security Act of 1974, 29 U.S.C. § 1001, et seq., as amended ("ERISA"). Presently before the Court is the motion of Paul Revere for summary judgment (Document No. 14) and response of plaintiff Cini and the reply of Paul Revere thereto. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. For the reasons set forth below, the motion will be granted.

I. Background*fn1

Cini is an account manager for Fishers Ambulance Service. According to his employer, Cini is the coordinator of all paperwork generated daily by the company. Each day Cini makes sure all the work is turned in and recorded. Cini also keeps a record log of all completed work. Not only is Cini the primary quality control person but he also is in charge of distributing paperwork to various billing staff to process and maintains contact with the various facilities and customers with which his employer deals. Cini's duties include filing, dispatching, personnel evaluations and all the statistical analysis required by the company and its customers. Cini's duties also require him to work on a computer. (Appendix of the Motion for Summary Judgment of Defendant, Paul Revere Life Insurance Company, ("Def.App.") at 57).

The genesis of this lawsuit began in January of 1997, when Cini made a claim against Paul Revere for residual long term disability benefits. The claim presented a primary diagnosis as spondylolisthesis, a condition which Cini had since 1963 and with which he had been working 20 hours per week as of December 16, 1996, and a secondary diagnosis of fibromyalgia.*fn2 Under the terms of the policy, there is a 90 day non-payable elimination period, which is the "length of time that the employee must wait before benefits begin" and "during this elimination period, you must be totally disabled from your own occupation." (Def.App. at 255, 267). On February 6, 1997, Cini's claim was denied because Cini's Statement for partial or residual disability benefits only indicated a reduction in hours and, therefore, Cini had not met the 90 day elimination period.

In response to the denial, Cini informed Paul Revere that he had had an accident on September 1, 1996, and was out of work thereafter until December 16, 1996. Thereafter, Paul Revere received a corroborating correspondence from Cini's employer, informing it that Cini had been accidentally injured on September 1, 1996, and out from work from September 2nd until December 6th and had been working part-time since his return on December 16th. (Def.App. at 39). Paul Revere then informed Cini that under the circumstances, his claim would be reconsidered.

On March 20, 1997, Paul Revere sent Cini's claim to Michael Theerman, M.D., for an independent review. On April 9th, Paul Revere denied Cini's claim for failure to meet the elimination period. On June 19th, Cini appealed the denial. Paul Revere sent Cini's claim file to Marvin Goldstein, M.D., for an independent review. On August 16th, Paul Revere again denied Cini's claim because his doctor had recommended that he return to work prior to the end of the elimination period. After some administrative confusion, Paul Revere re-opened the administrative record again for reconsideration of Cini's claim. Again, Paul Revere sent the augmented medical record to Goldstein for review and again Paul Revere denied Cini's claim because he failed to meet his burden of proving total disability during the ninety day elimination period beginning September 2, 1996.

The medical records available and reviewed by Paul Revere show that Cini suffered from spondylolisthesis since 1963. (Def.App. at 6). He has a long history of chronic low back pain. Over the last several years, however, his back was causing Cini more pain. In particular, his doctor noted that prolonged sitting was causing Cini problems. (Id. at 32).

On September 1, 1996, Cini fell from a horse and fractured his right clavicle (the collar bone). (Def.App. at 33). On September 3rd, Cini saw Dane Wukich, M.D., an orthopedist, for treatment of his fractured clavicle. (Cini's family physician, Joseph O'Neill, M.D., referred Cini to Wukich.) On an October 17th follow-up visit, Cini's clavicle was x-rayed. The x-ray showed no callus formation. (Def.App. at 26). Office notes from the visit also indicate that Cini had less motion and tenderness at the fracture site. (Def.App. at 34).

Wukich's office notes also reflect that Cini was experiencing increased back pain. Wukich noted that in the last seven to eight years Cini had gained a significant amount of weight and that "a weight reduction program would, in all likelihood, help his back pain to a great degree." (Def.App. at 31, 32). Nevertheless, Wukich ordered an MRI. The results of an October 30th MRI showed a bilateral spondylolysis and Grade I spondylolisthesis in his lower back. However, this condition had not changed since the previous study done a year earlier. (Def.App. at 28). There was no compression fracture or degenerative disk disease. (Id.). The apophyseal joints were normal and the bony pelvis and hips were intact. (Id.).

Wukich saw Cini again on in November of 1996. In a letter to O'Neill dated November 26th, Wukich noted that Cini's pain was "definitely less" but that the x-ray of Cini's clavicle showed there was "no significant healing." (Def.App. at 36). Nevertheless, Wukich stated that "clinically I know that it is healing."*fn3 (Id.). Wukich stated that he explained to Cini that his spondylolisthesis was rather mild and that "a fair number of people have it without being symptomatic." (Id.). Finally, Wukich wrote that "[Cini] also feels that he is unable to work full time 40 hours per week. I've asked him to talk to work about considering four hours per day. He'll get back to us with that." (Id.).

Wukich then referred Cini to Robert Moidel, M.D., a rheumatologist, for his back problems. Moidel saw Cini for the first time on December 12, 1996. His initial impression was that Cini "probably has fibromyalgia which is mainly affecting his back area." (Def.App. at 124). Moidel recommended that Cini do low impact aerobic exercises. In a follow-up letter to Cini's attorney dated June 13, 1997, Moidel confirmed his prior diagnosis of fibromyalgia. (Id. at 106). Moidel also explained that patients who have fibromyalgia often experience more pain when they are sedentary and often feel better when they are physically active. (Id.). Thus, he had recommended low impact aerobic exercises. Moidel further stated that "for a period of several months at the end of 1996 [Cini] was partially disabled from a combination of his right clavicular fracture and fibromyalgia symptoms." (Id.).

Also in a follow-up letter to Cini's attorney, Wukich stated that Cini had suffered from a delayed union of the clavicle fracture and in addition had a diagnosis of fibromyalgia, chronic low back pain and some post-immobilization adhesive capsulitis of this shoulder. Wukich opined that Cini was disabled as a result of the clavicle fracture from September 1, 1996 until the May 22, 1997. (Id. at 107).

In its denial of August 16, 1997, Paul Revere addressed each of the alleged disabling conditions. (Def.App. at 137). Specifically, with respect to Cini's fractured clavicle, on November 26, 1996, Wukich reported that Cini's pain was "definitely less" and that although the x-ray did not reveal fracture callus, "clinically I know that it is healing and that it's a little bit early to see the fracture callus." (Def.App. at 36). With respect to Cini's diagnosis of spondylolisthesis, Paul Revere noted that Wukich had explained to Cini that "his spondylolisthesis is rather mild." (Def.App. at 138). Finally, with respect to Cini's diagnosis of fibromyalgia, Paul Revere observed that Moidel recommended low impact aerobics and stated that Cini was only partially disabled for a period of months at the end of 1996.*fn4 Paul Revere also noted that shortly after Cini's diagnosis of fibromyalgia, he returned to work on a part-time ...

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