administrator. Mitchell, 113 F.3d at 439; Abnathya, 2 F.3d at
In its final denial letter of November 29, 1997, Paul Revere
determined that Cini had not shown that he was totally disabled
for entire elimination period. Specifically, Paul Revere
considered Wukich's explanation that his letter of November 26,
1996, was not intended to be a work release. Paul Revere
determined that November 26th letter nevertheless showed that
Cini was in fact capable of resuming his occupational duties on a
part-time basis, but simply needed to verify with his employer
that such an accommodation was available.
Paul Revere reiterated that the objective medical evidence did
not support a finding of total disability. The pain from his
right clavicle was less, his doctor was convinced that it was
healing properly, his MRI reflected no change (from a prior MRI
taken when Cini was working full-time) and his spondylolisthesis
was mild. Thus, Paul Revere concluded that as of November 26,
1996, neither the fracture which occurred on September 1, 1996,
nor his spondylolisthesis caused a level of impairment such that
Cini was precluded from returning to work for four hours a day.
Similarly, with respect to Cini's diagnosis of fibromyalgia,
Paul Revere noted that Cini's appointment with Moidel did not
occur until December 12, 1996, and that the findings were
unremarkable. Although Moidel noted that likelihood of
fibromyalgia, his only recommendation for treatment was low
impact aerobics — not a restriction of any occupational duties.
Thus, Paul Revere determined that Cini's fibromyalgia did not
present a level of impairment between November 26, 1996, and
December 12, 1996, which prevented Cini from returning to work.
Paul Revere also noted that on his original claim form, Cini
indicated that he could only perform the occupational duties of
an accounts manager for 20 hours per week due to the symptoms
associated with spondylolisthesis and fibromyalgia (there was no
mention of disability based upon problems associated with his
fractured clavicle). In his original Attending Physician's
Statement, Dr. Wukich stated that Cini was precluded from
performing heavy lifting and prolonged sitting or standing.
After examining the entire record and the conclusions drawn by
Paul Revere based upon that record, the Court cannot find that
Paul Revere's denial of benefits was arbitrary and capricious.
Cini had the burden of providing to Paul Revere proof that he
qualified for benefits under the policy. Paul Revere determined
that Cini failed to satisfy this burden. I find that Paul Revere
conducted a thorough review of Cini's claim and provided
reasonably cogent reasons why the evidence offered did not
satisfy Cini's burden of establishing the he was totally disabled
as defined by the policy during the entire elimination period.
Paul Revere's decision was not without reason, unsupported by
the substantial evidence or erroneous as a matter of law. There
is clinical evidence in the record that Cini's clavicle was
sufficiently healed such that he could return to work on a
part-time basis.*fn5 Additionally, his spondylolisthesis
was mild and had remained unchanged for over a year (during which
time Cini was working). Similarly, there is no evidence that his
fibromyalgia prevented him from working part-time between
November 26, 1996, and December 12, 1996 (when he saw Moidel).
Cini simply did not produce evidence which convinced Paul Revere
that he had an impairment of a totally disabling proportion for
the entire elimination period.
Cini nevertheless argues that there are factual issues which
preclude the granting of summary judgment. Cini argues that there
is a factual dispute over whether Paul Revere considered either
of the clarification letters submitted after his August 16, 1997
denial. It is clear that both letters were reviewed and commented
on by Goldstein (to whom Paul Revere sent the record for an
independent view). Goldstein found that Moidel's letter was
"inconsistent" with his earlier statements. Also, Wukich's letter
did not alter Goldstein's view that Cini was capable of working
as of November 26, 1996. Finally, Paul Revere cited Wukich's
clarification letter in its final denial. Thus, the record does
not support Cini's contention that Paul Revere ignored his
physician's attempt to clarify their prior reports.
Cini also argues that Paul Revere disregarded the results from
his x-ray taken on November 26, 1996 which did not show a
fracture callus. On the contrary, Paul Revere explicitly referred
to the x-ray. However, Paul Revere considered it in the context
of Wukich's determination that although the x-ray does not show
signs of healing, Wukich "knew" that clinically it was healing,
that it was early for an x-ray to show the formation of a
fracture callus and that Cini was definitely feeling less pain.
Thus, the record indicates that Paul Revere considered the x-ray,
but that in light of Wukich's conclusion that Cini was healing in
combination with the diminution in pain, decided that the lack of
callus formation did not indicate the existence of a totally
Finally, Cini argues that Paul Revere did not consider that
Cini was right hand dominant. To this end, Cini has attached an
affidavit attesting to the fact that he is right hand dominant.
However, in reviewing the decision of a plan administrator to
deny benefits under an arbitrary and capricious standard, the
review is limited to the evidence that was before the plan
administrator at the time of its decision. Mitchell, 113 F.3d
at 440. Cini's late submission is beyond the evidentiary scope of
this appeal and will be disregarded.*fn6
Because there are no genuine issues of material fact and
because Paul Revere's decision was not arbitrary and capricious,
the motion will be granted. An appropriate Order follows.