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.
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
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 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